Tu'ivai v Kingdom of Tonga [2009] TOCA 30; AC 10 & 11 of 2007 (26 February 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

AC 10 of 2007
AC 11 of 2007

BETWEEN:

'AMINI TU'IVAI
Appellant

AND

KINGDOM OF TONGA
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Tu'ivai in person in each appeal
Mr Kefu for the Respondent in each appeal

Date of hearing: 18th July 2008
Date of judgment: 26th February 2009

JUDGMENT OF THE COURT

1. Before the Court of Appeal are appeals against decisions to strike out statements of claim in each of two actions in the Supreme Court brought by the Appellant against the Respondent alleging (inter alia), in the one case, that he was maliciously prosecuted in a particular criminal proceeding, and in the other, that he was maliciously prosecuted in another criminal proceeding. The appeals were heard together.

2. In Appeal number 10 of 2007, the Appellant presented his case, not by reference to the Statement of Claim that was struck out, but by reference to a proposed Third Amended Statement of Claim annexed to an affidavit sworn by him on 30 June 2008. However, there is little relevant difference between the documents, so we shall consider the latest form of pleading in accordance with the Appellant's wishes, without further discussion, calling it simply the statement of claim.

3. What the statement of claim identifies as "Claim No. 1" is set out in paragraph 3. Paragraph 3 does not state one claim, but consists of a number of claims revolving around the Plaintiff's contention that 600 cartons of Bounty rum imported by him from Fiji were wrongly forfeited upon his conviction by a jury of a charge of attempted evasion of the customs duty due in respect of those cartons of rum. The conviction has twice been affirmed by this Court which, in doing so, held as well that the rum was forfeited, as a consequence of the offence, by the direct operation of the Customs and Excise Act. The statement of claim raises, as a bar to the forfeiture, a letter said to have been authorised by the Minister of Finance which contemplated disposal of the rum through a duty–free store. It alleges the seizure of the rum constituted "trespass and/or conversion" by "the Police", and that the charge of attempting to evade customs duty was made by an indictment which contravened the Constitution of Tonga and which the Crown Prosecutor was estopped from preferring, and it adds that the police were negligent in failing to act on the letter already referred to. The losses suffered are alleged to include "the value of the said rums [sic]" and the damages claimed include the amount of the fine imposed following the criminal trial, T$20,000, which was affirmed by this Court on appeal. All of these issues were raised at the trial, or upon the appeals, and were determined adversely to the Appellant. In these circumstances, the claims pleaded amount to an abuse of process upon the principle stated by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529 at 542. See also Walton v Gardiner (1993) 177 CLR 378 at 393; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; D'Orta–Ekenaike v VLA [2005] HCA 12; (2005) 214 ALR 92 at 109; and Sea Culture v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279. The principle embraces the proposition that, where an issue has already been determined in criminal proceedings, it is an abuse of process to raise that issue in a civil proceeding by way of a collateral attack on the finality of the criminal proceedings.

4. What is called "Claim No. 2" is set out in paragraph 4, which pleads the execution of an unlawful search warrant at the home of the Appellant. The unlawfulness of the warrant is alleged to have flowed from the breach of a constitutional duty binding the police "to take care of the plaintiff" and "protect" him, and from the exonerating effect of the letter pleaded in Claim No. 1. So far as the lawfulness of the search warrant is concerned, this, as well as the effect of the letter, was an issue in the criminal trial and appeals. Claim No. 2 no more escapes the principle of Hunter than does Claim No. 1.

5. What is called "Claim No. 3" appears to be founded on Claim No. 2, alleging that the taking of documents under the search warrant was also unlawful, and caused damage to the Appellant including his incurring the fine of T$20,000. Again, this issue was involved in the criminal trial and appeals, with the same result.

6. What is called "Claim No. 4" refers to the Appellant's arrest on the occasion when he was charged. This arrest is described as "baseless" and "unlawful". The only ground for such a description that can be gleaned from the pleading is that the ultimate conviction was on an amended count, not upon the charges as originally formulated by the police. That, of course, is far from unusual. The original charges and the amended count refer to the same importation and the same false customs entry document. The fact that a particular charge is withdrawn or fails does not in itself provide any basis for an assertion that the arrest was unlawful.

7. What is called "Claim No. 5" alleges that the interview recorded by the police in the record of interview was not voluntary, and that it denied the Appellant's right of silence. Again, liability to the fine, as well as imprisonment for failure to pay it as ordered, are alleged to be part of the Appellant's damages. But the issue of the voluntariness of the admissions recorded in the record of interview was a live issue on the appeals, although no voire dire had been sought at the trial. This Court rejected the Appellant's attempt to exclude on appeal the admissions made by him during the interview. In that situation, it would fly in the face of Hunter to allow a collateral attack to be made by the present proceeding on the decision in the criminal appeals.

8. What is called "Claim No. 6" alleges that "[a]fter the said interview" (ie. the one recorded by police officers), the Appellant was charged by a summons in a Magistrate's Court with five indictable offences, shortly described as knowingly dealing with forged documents (The Criminal Offences Act, s. 172), conspiracy to deal with forged documents (ibid, ss15, 172), abetting an offence of forgery (ibid, s 15), conspiracy to induce by false pretence the execution of "an important document" (this appears to be a grossly inaccurate paraphrase of some charge under ss 15 and 165, ibid), and conspiracy to bribe a customs officer (ss 15, 51, ibid); that the prosecution of these charges was malicious and/or an abuse of process and/or without due care and/or reckless "as they were all issued to the plaintiff before the police prosecution were looking for evidence"; that a "reasonable prosecutor" must look for his evidence before charging an accused; that the charges were all withdrawn or dismissed, no evidence being proffered; that "[t]hese unlawful conducts of the Defendant's servants" violated the Appellant's rights under clauses 1 and 14 of the Constitution; and that the five charges "were done as an unlawful aggravated conducts of the said police officers in addition to" the seizure of the rum, unlawful entry and taking away of documents, arrest and questioning of the Appellant and the charging of him.

9. The gist of Claim No. 6 appears to be the allegation of malicious prosecution. But the only basis for the necessary finding of malice to ground this claim is that the five charges "were all issued to the plaintiff before the police prosecution were looking for evidence". That alone could not show malice. The police evidence pleaded as unlawfully obtained was the very evidence, or part of it, adduced in the successful prosecution upon the indictment as amended. In the first appeal decision, Tu'ivai v Rex (Court of Appeal, Burchett, Salmon and Moore , JJ, 16 August 2006) at para 8, this Court commented, concerning the amended indictment presented at the hearing, that "it is clear that the charges he originally faced involved the same series of actions and the same documents as were relied upon for the charge in respect of which he was ultimately convicted". And the issue of the lawfulness of the obtaining of that evidence, once again, was squarely raised in the prosecution and determined against the Appellant.

10. However, it is necessary to turn to certain "particulars" added to the pleading of Claim No. 6, which may be summarised as follows:

1) That the five charges were an abuse of process "as these charges were baseless and no evidence gathered by the police at all before charging the plaintiff". (This particular is, of course, repetitious of part of the pleading.) The particular goes on to allege delays and adjournments "of Court hearings and the said trial for two and a half years because the police requested the Court from time to time for these adjournments so they can try to get evidence against the plaintiff and/or...." (the intention appears to be to link all of the particulars by the expression "and/or"). It is not suggested by the Appellant that objection was taken to the adjournments or any of them, or indeed that they were not by consent.

2) "That the police prosecution was in Negligence by failing to [gather] enough evidence before charging the plaintiff." It will be seen this retreats from the allegation in particular 1 that "no evidence... at all" was gathered.

3) "That these said (5) charges were made maliciously as 'Unga Fa'oa was at all material time[s] the head of the police prosecution which he has sour relationship with the plaintiff since from in or about 1989. In 1989 Mr Fa'oa among other police officers arrested the plaintiff from Talamahu Market (for parking at a wrong parking) and assaulted him (plaintiff) at the police station. The plaintiff sued the police for the said assault and recovered T$2,000.00 as damages. Since then the relationship between the plaintiff and Mr Fa'oa were [sic] sour." The particular continues by asserting (although it was not suggested in the document or shown in argument in this Court that there is any legal basis for the assertion) that Mr Fa'oa knew all complaints regarding import duties "should be prosecuted under [the] Custom[s] and Excise Act", not the Criminal Offences Act. We can see no basis in the Acts for this limitation on the powers of the police and the Crown. Then comes a surprising fresh allegation: "That the Custom officer Kelemete Vahe whom he [sic] made the Custom complaint to the police in regarding this 600 cartons of rums already knew that the Minister of Finance as the Controller of Custom already made a final decision regarding this matter but he still made the said complaint to the police. Mr Kelemete Vahe is among the senior corrupted officers of the Custom and was involved in receiving moneys and goods from the plaintiff in his other earlier imported containers of Bounty Rums. That Mr Vahe among other senior officers of the Custom invited the plaintiff from in or about 1998 to import Bounty Rums from Fiji and they were cleared from Queen Salote Wharf without import duties paid. Therefore he (Mr Vahe) is estopped to complaint [sic], after all these times he was involved in the allowing the plaintiff to continue in importation of his Bounty Rums without paying any import Duty..."

11. The allegation about Mr Vahe in particular 3 focuses on the assertion of an estoppel. But it is an estoppel that could not possibly be established. However, the extraordinary allegations made concerning Mr Vahe and the Appellant himself would certainly be relevant should the issue of reasonable or probable cause for the prosecution of the Appellant come into question. It is not pleaded that Mr Vahe was a prosecutor for the purposes of the tort of malicious prosecution, but it is alleged he made on behalf of the Customs Department the relevant complaint to the police, and if the facts set out in particular 3 are correct, it seems, at the least, probable that he provided information sufficient to establish reasonable or probable cause.

12. Claim No. 6 continues a theme of two of the earlier claims – that the police and the prosecution authorities were negligent. See Claim No. 1 and the second particular of Claim No. 5. A proceeding making such a claim is not admissible in law. In Elguzouli–Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335 the question was "whether the Crown Prosecution Service ("the CPS') owes a duty of care to those it is prosecuting", to use the words of Steyn LJ (as Lord Steyn then was) at 342. His Lordship referred (at 347) to the availability of the remedy for malicious prosecution and to the "analogy" of the position of the police, citing Hill v Chief Constable of West Yorkshire [1989] AC 53, where, as he said, "the House of Lords....held....that as a matter of public policy the police were immune from actions of negligence in respect of their activities in the investigation and suppression of crime." The Court of Appeal (Steyn, Rose and Morritt L.JJ) was unanimous in applying the analogy of Hill and holding the Crown Prosecution Service owed no relevant duty of care or, if it did, it was "immune from liability in negligence" (per Steyn LJ at 350). Morritt LJ pointed out (at 352) that if negligence were available, it would subvert the protection built in to the independent torts of malicious prosecution and misfeasance in a public office, supplanting them with a mere want of reasonable care. See also Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228; and Jagroop v Sokai (Court of Appeal of Tonga, Burchett, Tompkins and Spender JJ, 27 July 2001) where (in para 6) the Court held that the application in general in Tonga of the principles stated in Hill and Elguzouli–Daf was "not to be doubted".

13. Returning to the pleading, the final claim (called "Claim No. 7") begins by alleging "the Defendant's prosecutor" (not, it will be noticed, "the police" or a particular police officer which or who appears to be the target of Claim No. 6) issued a new indictment, count 3 of which charged an attempt to evade customs laws contrary to s 210 (1) (e) of the Customs and Excise Act. It is alleged this was "by surprise", without serving it on the Appellant, and it was "never read to the plaintiff" at the start of the trial (an assertion which is directly contrary to the finding of this Court made in the same para 8 of its judgment on appeal that we have cited in para 9 of this judgment). However, the pleading confesses and attempts to avoid the service of the amended indictment on his counsel, alleging that was "null and void" as counsel was in a position of "conflict of interest", having been the Minister of Police at the time the prosecution was originally begun. All this was raised when the Appellant appealed to this Court against his conviction, was fully considered, and was rejected. There had been no complaint at the trial. Plainly, the pursuit of this claim now is a collateral attack on the decision in the criminal proceeding, barred by the principle of Hunter.

14. Claim No. 7 goes on to allege that "[t]he Defendant's prosecutor" (again, not "the police" or any police officer) "either maliciously did the said conducts and/or without due care (by recklessly and/or negligently) to it said conducts [sic] and/or abusing the process". Contraventions of clauses 11, 12, 13 and 94 of the Constitution are then alleged. There is a complaint about the unavailability of transcript at the initial hearing of the appeal, but this was the basis on which the Appellant was permitted a second hearing in order that he might advance any argument to which the transcript might be relevant: Tu'ivai v Rex (Court of Appeal, Burchett, Salmon and Moore JJ, 4 April 2007). The estoppel alleged to have arisen out of the letter said to have emanated from the Minister of Finance was raised yet again – but this, too, was an issue in the criminal proceeding and on appeal from the conviction. Quite apart from the application of the principle of Hunter, there is no prospect that any of the alleged contraventions of the Constitution could be established.

15. Under the heading PARTICULARS, (1) a claim of negligence was repeated against "the Crown Prosecutors"; (2) the amendment to the indictment, as upheld by this Court on appeal, was alleged to have been an abuse of process and to have been contrary to the letter previously referred to; and (3) the prosecutor was said to have been in breach of clauses 11, 12 and 13 of the Constitution on grounds that repeat those argued upon appeal from the criminal conviction.

16. The Appellant claims general damages of T$1,000,000, together with aggravated and exemplary damages of a further T$1,000,000 and special damages of many millions.

17. The successful application to strike out the third of the four statements of claim successively relied on by the Appellant was made under Order 8 Rule 8 (1) (a) and (b) of the Supreme Court Rules 2007. But in argument, both below and in this Court, the question of abuse of process, which invokes the Court's inherent jurisdiction, was also raised. In Halsbury, 4th ed. reissue, vol. 36 (1), paras 81 and 82, it is made clear that the Court's inherent power to deal with pleadings which are embarrassing or an abuse of process is "complementary" to the jurisdiction given by such a rule, evidence being admissible on the questions arising under the inherent power, although not, of course, on the question posed by the rule whether the pleading makes out a cause of action. In Tonga, Order 8 Rule 8 (1) (d) expressly adds abuse of process to the scope of the rule, and para (c) may add other matters falling within the inherent jurisdiction. Halsbury, in footnote (7) to the abovementioned para 81, suggests the omission of a reference to it in the application "will not prevent an applicant from relying on the courts inherent jurisdiction".

18. Claim No. 6 makes an allegation of malice and, as we have noted, the gist of it appears to be a cause of action for malicious prosecution. The prosecution of the charges in the Magistrate's Court, brought by a police officer, it is pleaded in Claim No. 6, "was malicious... as they were all issued to the plaintiff before the police prosecution were looking for evidence". We have already found the fact pleaded to be insufficient; but in particular 3 of the added particulars, a further basis is stated for the allegation of malice – "as 'Unga Fa'oa was...the head of the police prosecution which he has sour relationship with the plaintiff since from in or about 1989". References follow to an alleged assault by Mr Fa'oa on the plaintiff in 1989, for which the plaintiff recovered T$2,000.00 damages, and to the proposition that it was wrong, as Mr Fa'oa knew, to charge the plaintiff under the Criminal Offences Act. The balance of particular 3 makes it plain that the prosecution was not brought on the unprompted initiative of the police, but in response to a complaint from a Mr Vahe, an officer of Customs. Serious allegations are made against Mr Vahe, but it is not pleaded that he "initiated" the proceedings in the sense required for the tort of malicious prosecution: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at 502, which would involve that he "play[ed] an active role in the conduct of the proceedings", being "actively instrumental' in setting the law in motion", a requirement that would not be satisfied simply by reporting incriminating facts to the police: see Fleming on The Law of Torts, 6th ed. (1983) at 579. Citing the more recent 9th ed (1998) of Fleming at 676, Gleeson CJ, Gummow, Kirby, Hayne, Heydon end Crennan JJ ("the joint judgment") in A v State of New South Wales at 512, said:

"To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion."

Nor is it pleaded that Mr Fa'oa initiated the proceedings, whether by laying an information or otherwise, but simply that he was "the head of the police prosecution". The head of such a group would not necessarily be the one who initiated a particular prosecution. As this Court affirmed in Kaufusi v Kingdom of Tonga [1999] Tonga LR 118 at 124-125, in a similar situation, "the appellant had to nominate in his pleading the individual person or persons whom he alleged to have instigated his prosecution, and, he had to further allege that they did so with malice, before any claim of the respondent's vicarious liability could be contemplated". The same judgment had earlier (at 124) made it clear that, in the pleading, the allegation of malice must be made, "not in any merely abstract sense", but in a "specific, factual sense". However, although Claim No. 6 neither identifies the instigator of the prosecution nor pleads that that person did so with malice, ie. with a dominant motive the law regards as malicious, in a specific, factual sense, we shall assume for the purposes of these reasons that the prosecuting police officer is pointed to with sufficient clarity.

19. In Claim No. 7, it is pleaded "the Defendant's prosecutor" issued an amended indictment, count 3 of which charged the attempt to evade Customs laws. This claim focuses on Crown counsel, not the police, and malice is alleged neither clearly, nor in any sense specifically or factually. There is simply nothing to show what is intended to be put forward as constituting malice on the part of Crown counsel.

20. In the course of a comprehensive review of the tort of malicious prosecution, the joint judgment in A v State of New South Wales at 531 states:

"What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an 'illegitimate or oblique motive'. That improper purpose must be the sole or dominant purpose actuating the prosecutor."

Their Honours having referred, as illustrative motives, to spite, ill will, a desire to punish, and a desire to stop a civil action brought against the prosecutor, added:

"But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose."

A v State of New South Wales was not concerned with the state of the pleadings, but the statement of the unlimited variety of purposes that may constitute malice illuminates the question touched upon by this Court in Kaufusi v Kingdom of Tonga of the degree of specificity required in the pleading of malice. For the analogous pleading of the dishonest state of mind involved in fraud has been held on high authority to require specificity and particularity for just the reason that fraud may take too wide a variety of forms for it to be safe, in the interests of justice, to face a defendant with a pleading of it at large. In Banque Commerciale S. A., en Liquidation v Akhill Holdings Ltd (1990) 169 CLR 279 at 285, Mason CJ and Gaudron J said:

"It has long been recognized that fraud may take a variety of forms and is, on that account, incapable of precise definition. ...That variety effectively deprives a party who may or may not have acted fraudulently from ascertaining precisely what must be negatived. Indeed, it is this feature of fraud which underlies the rule of practice...that fraud must be pleaded specifically and with particularity."

And their Honours (at 287) referred to a "bare and unparticularized assertion" of fraud in a pleading as not making relief for fraud "available on the pleadings". The passage at 285 was referred to with approval by Brennan, Deane, Gaudron and McHugh JJ in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573. In Middleton v O'Neill [1943] NSWStRp 10; (1943) 43 SR (NSW) 178 at 184, Jordan CJ said "a statement of claim is demurrable if it merely alleges fraud without pleading the facts alleged to constitute it". Powerful statements in the well known House of Lords decision in Wallingford v The Directors, etc., of the Mutual Society (1880) LR 5 HL 685 at 697, 701, 705 and 709 underpin these more modern authorities.

21. The effect of the principle was in England for some time obscured by an interpretation which the Court of Appeal gave to the then Order XIX, r.22 of the Supreme Court Rules in Burgess v Beethoven Electric Equipment Ltd [1943] 1 KB 96. That rule provided:

"Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances which the same is to be inferred."

The Court of Appeal construed the rule as unaffected by any requirement to plead a cause of action with particularity. Subsequently, as we shall show, a change in the Rules rectified the position, but before proceeding to explain that, we draw attention to the terms of rule 22. Consistently with the similarity we have found in certain features of fraud and malice which underlie the importance the law gives to the particularity required for a pleading of fraud, and we conclude for a pleading of malice, r. 22, in making its contrary provision, refers together to malice and fraudulent intention. In other words, it treats them as relevantly similar cases. We turn to the sequel. By the time Feeney v Rix [1968] 1 Ch. 693 came before Cross J and, subsequently, before the Court of Appeal (at 698), a new rule, Order 18, r. 12 (1) (b), provided that "every pleading must contain the necessary particulars of any claim... including... (b) where a party pleading alleges any malice, fraudulent intention...particulars of the facts on which the party relies". Cross J and the Court of Appeal applied the new rule very fully, Winn LJ (at 702) referring to "ordinary principles, apart altogether from the express wording of [the rule]". Thus Burgess v Beethoven provides no bar to the application of the principles we have discussed.

22. The primary matters of fact on which rests the allegation of malice made against the police officer who brought the charge are the assault in 1989, the ensuing legal proceedings and the "sour relationship" with Mr Fa'oa. But this is to dredge up events going back to 1989, and nothing is shown to have happened since that would support a conclusion of malice. As has already been pointed out, the prosecution succeeded, although on an amended indictment. The fact that the police saw the matter as involving forgery, a false customs declaration having been made, while crown counsel considered a charge of attempted evasion of customs duty to be more appropriate, provides no ground for an inference of malice. We agree with Mr Kefu's submission on this point. But, in any case, the reference to a "sour relationship" with Mr Fa'oa does not go anywhere near showing a ground for an allegation of malice on the part of the police officer who initiated a prosecution many years after the cause of the sourness is alleged to have arisen. Certainly, if Mr Fa'oa had anything to do with the choice of the Criminal Offences Act as containing appropriate provisions breaches of which should be charged, there is no basis, in the face of the plain terms of the statutes, for the conclusion that his dominant purpose was to be regarded in law as malicious.

23. The appeal in AC 10 of 2007 is dismissed with costs.

24. In the second appeal, AC 11 of 2007, the Appellant appeals against both the refusal of leave to file a third amended statement of claim and the striking out of his filed statement of claim with costs. The respondent's case, below and on appeal, was not limited to an argument that the pleading and the proposed pleading failed to make out a cause of action, but included claims that they were frivolous and vexatious and each amounted to an abuse of process. When the appeal came on for hearing, the Appellant relied on yet another redraft of his statement of claim as the form of pleading he wished to uphold and, as in the earlier appeal, we shall consider the arguments by reference to this document, calling it simply "the statement of claim".

25. The statement of claim arises out of the investigation of a complaint made against the Appellant by a senior Crown Prosecutor, Mr Pouono, who was then prosecuting in the Customs matter out of which the appeal AC 10 of 2007 arose and who considered a payment of T$400.00 received by him from the Appellant to be a bribe. The Appellant was suspended as a law practitioner by Webster CJ, the complaint having also been made to the President of the Law Society and referred to the Chief Justice, and a police officer brought a charge upon which the Appellant stood trial. His defence acknowledged the payment, alleging, however, it was not a bribe but a payment of "lunch money" gratuitously made in recognition of co-operation previously received from Mr Pouono in a civil matter. The Appellant was acquitted by Ford J (as he then was), sitting without a jury, on the ground that the relevant intention (which, on Mr Pouono's evidence, was entirely a matter of inference) had not been made out, and the Appellant's evidence that the payment was a gratuitous payment of lunch money should be accepted. Mr Tu'ivai then brought his action for malicious prosecution, abuse of process, negligence, and contraventions of clauses 1, 10 and 14 of the Constitution.

26. Paragraph 2 of the statement of claim pleads that "Mr 'Ofa Pouono (a Senior Counsel) at the Solicitor General Department and Police Officers Inspector Halatanu and Deputy Commissioner of Police 'Unga Fa'oa" were at all material times employed by the defendant. Paragraph 3 then pleads Mr Pouono on 27 May 2005 "made an unfound [sic] and/or malicious complaint to the Defendant's Ministry of Police at Nuku'alofa Police Station alleged [sic] that the Plaintiff had been bribing him (on the said day) with a cheque of TOP $400.00 so that he use his authority as counsel [in the Customs prosecution] to adjourn the said criminal case forever or sine die".

27. Paragraph 4 alleges Mr Pouono wrote a complaint to the President of the Tonga Law Society based on this matter, which led to the Appellant's immediate suspension as a law practitioner. (Paragraph 7 of what is called "Claim No. 1" states that the President reported the complaint to Webster CJ who suspended the Appellant.) Paragraph 4 goes on to plead that the suspension contravened clauses 1, 10 and 14 of the Constitution because it was a punishment before sentence according to law (see clause 10; cf clause 14). But, of course, the suspension of a professional practitioner based on some serious allegation of misconduct is not a punishment (that is a matter left to the criminal law), but is a protective measure taken in the public interest. In any case, the pleading discloses that this decision was not taken by Mr Pouono (who merely reported the matter to the Law Society) but by Webster CJ on the referral of it to him by the President.

28. Paragraph 6 pleads that Police Inspector Halatanu and another officer, on 7 June 2005, took the Appellant to the Central Police Station for interview. "Under the supervision and/or advise [sic] of Deputy Commissioner 'Unga Fa'oa, Police Inspector Halatanu charged the Plaintiff with the criminal offence of bribing Mr 'Ofa Pouono (a civil servant) with the said cheque contrary to section 51 of Criminal Offences Act". The only person here clearly pleaded to have initiated the prosecution in the sense required for the tort of malicious prosecution is Police Inspector Halatanu who "charged the Plaintiff" – Mr Pouono is not pleaded to have done more than report the matter, as alleged in paragraph 3, to the police as a complaint eleven days earlier, and Deputy Commissioner Fa'oa's involvement is suggested only by the expression "[u]nder the supervision and/or advise of Deputy Commissioner 'Unga Fa'oa". Yet paragraph 7 proceeds to plead that all three "were experts and well experienced Law Officers in Criminal prosecutions [who] knowingly and deliberately Abusing the said process and/or maliciously and/or recklessly without due care and Negligently prosecuted the Plaintiff with the said charge even [though] they found no basis and no sufficient evidence and/or evidence beyond reasonable doubt (because the plaintiff is a Law practitioner) against the Plaintiff in the said charge".

29. Under the heading "Claim No. 1", the pleading sets out "PARTICULARS FOR MALICIOUS PROSECUTION AND/OR ABUSING OF THE PROCESS AND/OR". Paragraph 1 of these makes a similar allegation against 'Unga Fa'oa of assault in 1989 and the subsequent recovery of damages by the Appellant against the Ministry of Police to that made in the other statement of claim, but this time it is alleged that 'Unga Fa'oa and Inspector Halatanu "were among the police officers that arrested the Plaintiff and assaulted him", and it is alleged that since then "the relationship between the plaintiff and the said two officers were [sic] sour". Particular 2 then alleges that on 2 December 2003, Fa'oa "was in charge of the Ministry of Police CID and Prosecution Dept. in arresting the Plaintiff with Hon. Veikune and charged the plaintiff with (5) indictable and felony offences...". Particular 3 alleges the Appellant on 23 December 2003 filed an action against Fa'oa (amongst others) and the Kingdom of Tonga arising out of that prosecution, and particular 4 alleges both the criminal and the civil case were at all material times "going on".

30. Paragraph 5 of the particulars turns back to Mr Pouono, alleging he attended the Law School of the University of the South Pacific in Vanuatu with 'Unga Fa'oa, both graduating BA LLB. In their first year, 'Ofa Pouono was aged about 22, 'Unga Fa'oa being "much older" and "more like a big brother for him". Particular 6 indicates Mr Pouono went on to receive a scholarship and obtain a Master's degree in law, a fact which seems to be urged as demonstrating he would have known the payment of T$400.00 was not a bribe "but for the lunch money and/or shout the plaintiff promised to give Mr Pouono when they settled the civil claim". It is alleged Mr Pouono "maliciously twisted the story in his complaint to the police".

31. Finally, the last of these particulars (No. 8) alleges "the said baseless prosecution...was maliciously done and/or deliberately abusing the process, by Mr 'Ofa Pouono, Inspector Halatanu and Deputy Commander [sic] 'Unga Fa'oa due to the long sour relationship since from in or about 1989 and the plaintiff naming Mr Fa'oa as 1st Defendant in [the above mentioned civil action]. The twisted story complaint of Mr Pouono to the Police was used by Mr Fa'oa and Inspector Halatanu as stepping stone for this Malicious Prosecution and/or the abusing the process".

32. There follow "PARTICULARS FOR ALTERNATIVE CAUSE OF ACTION IN ABUSING OF PROCESS AND/OR NEGLIGENCE AND/OR". Particular 1 refers to Inspector Halatanu as "leading investigator for Mr Pouono's complaint", and particular 2 says of 'Unga Fa'oa that "he did continue the approval for the go ahead with the pursuing the said investigation and the prosecution". Both are alleged to have acted by "abusing the process and/or without due care for the consequences [to the Appellant]". Particular 3 refers to Mr Pouono; it indicates his story was alleged to be "twisted" because of his inference that a sum of T$400.00 was more than "lunch money" and was intended to be a bribe, but this particular does not relate him to the criminal proceeding, only to the complaint to the Law Society.

33. Under the heading "Claim No. 2", a further cause of action is pleaded as follows: "That the said Inspector Halatanu with another police officer were [sic] in or about the 7th May, 2005 Falsely Imprisoned the plaintiff and/or by trespass to person by taking him to the Nuku'alofa police station against his will for questioning regarding the said complaint of Mr 'Ofa Pouono..." This cause of action was added, without any particulars, when the Appellant sought leave below to amend further his statement of claim, and has been repeated in the document dated June 2008 on which this Court was told the Appellant wished to rely. Its bare allegations reveal no clear basis on which the arrest is claimed to have been unlawful. The judge at first instance, having struck out the filed statement of claim, exercised his discretion against allowing the further amended statement of claim to be filed.

34. So far as the statement of claim pleads malicious prosecution, it faces a number of difficulties. First, we have earlier cited A v State of New South Wales at 512 for the proposition that, to incur liability for the initiation of the proceedings, a person "must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion". The statement of claim focuses on Mr Pouono, Deputy Commissioner Fa'oa and Inspector Halatanu, but, of these only Inspector Halatanu is alleged to have arrested, questioned and charged the Appellant. He is also referred to, in a later part of the pleading, as the "leading investigator for Mr Pouono's complaint". Mr Pouono made a complaint to the President of the Law Society and to the police, but it is not pleaded he controlled or attempted to control the pursuit of either complaint through referral to the Chief Justice (which was the action of the President of the Law Society) or the laying of a charge under the Criminal Offences Act (which was the action of Inspector Halatanu). Seen as a witness only in a proceeding brought by a police charge, and continued by the Crown, the law protects him from a civil claim based on his evidence in Court or on the earlier statement outlining that evidence for the purposes of the prosecution: Watson v M' Ewan [1905] AC 480 at 486, 488; Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 525; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 141; Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 213. It is alleged that Inspector Halatanu was under the supervision and/or advice of Deputy Commissioner Fa'oa, but this is too exiguous a link with the relevant action taken by the Inspector to make the Deputy Commissioner a person who initiated the prosecution.

35. Secondly, liability for malicious prosecution would require that the Appellant plead and establish that Inspector Halatanu "acted without reasonable and probable cause": A v State of New South Wales at 503. The nature of this question, which ultimately is not one for the jury, was elaborately discussed in A v State of New South Wales, in which the joint judgment concluded (at 539):

"Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis."

Earlier, their Honours had referred (at 530) with approval to the statement of Lord Atkin in Herniman v Smith [1938] AC 305 at 319:

"It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution."

The gift of a quite substantial sum by an accused in very serious criminal proceedings to Crown counsel then acting in those proceedings fell squarely within Lord Atkin's words, notwithstanding a defence was open which, in the event, was upheld, although not without an adverse observation expressing "obvious concern" about the "ethical issues" the defence raised: Rex v Tu'ivai [2006] TOSC 34 at para 39. There is a further consideration that points in the same direction. Balkin and Davis on the Law of Torts, 3rd ed. (2004) at section 25.14, footnote 90, refers to Riches v Director of Public Prosecutions [1973] 2 All ER 935, where the Court of Appeal "held that an allegation of want of reasonable cause in an action against the DPP stood no chance of success when the committing magistrate, the trial judge and the jury all shared the view of the evidence held by the DPP". Here, the matter was raised by senior Crown counsel; the committing magistrate and the President of the Law Society thought respectively that the complaint should go to trial and that it should be referred to the Chief Justice; and Webster CJ found sufficient substance in it to warrant the Appellant's suspension from practice.

36. Thirdly, the issue of malice: the pleading puts forward a number of matters, but assuming all of them were proved, the Appellant would inevitably fail to make out a case to go to the jury, for a conclusion of malice in fact could not be drawn on such material. And, of course, once it is accepted that the prosecutor was actually Inspector Halatanu, the weakness of the case on malice becomes even clearer. What the Appellant is really putting forward, as a case to go to the jury on malice, is that Inspector Halatanu should be held to have acted for the dominant purpose of revenge for a long past episode since which nothing has occurred to support a conclusion of continuing malice, and in which the Inspector's part did not rise above what is conveyed by the allegation that 'Unga Fa'oa and he "were among the police officers that arrested the Plaintiff and assaulted him" in 1989; and that since then "the relationship between the plaintiff and the said two officers [was] sour". This is not inference, but thinly veiled assumption. Nor is it improved by the allegation that Deputy Commissioner Fa'oa supervised and advised Inspector Halatanu – an allegation devoid of the content of any particular advice, on any basis, much less of any instruction, to charge the Appellant. On both the issue of reasonable and probable cause, and the issue of malice, this case cannot possibly succeed.

37. As was noted earlier, the Appellant also pleaded abuse of process. This tort, as Fleming, op. cit., 589, points out, is "probably the clearest illustration in our law of what civilians call an 'abuse of right' ". It lies where "a legal process, not itself devoid of foundation, has been perverted to serve some extraneous purpose, such as extortion or oppression". But no basis for the conclusion of perversion of the process is pleaded beyond what is alleged in an attempt to make out a case of malice to establish malicious prosecution. What is put forward could no more show a relevant perversion of the process than it could show malice in its initiation.

38. Then the Appellant pleads negligence. But authorities have earlier been examined (in connection with the appeal in AC 10) which leave no doubt that both the police and the Crown prosecution service are immune from attack pursuant to the law of negligence; their liability, in a proper case, must be found elsewhere, and is generally governed by the principles laid down in relation to the tort of malicious prosecution.

39. We have already pointed out that clauses 1, 10 and 14 of the Constitution do not found any relevant claim in the circumstances pleaded.

40. It follows that the appeal against the striking out of the Appellant's statement of claim fails. We see no ground to interfere with his Honour's discretionary decision to refuse leave to file a further version of the statement of claim which does not avoid the vices of that struck out, but seeks to add an entirely new claim the precise basis of which is either unstated or merely reflects the misconceptions underlying the other claims. As was the case in Kaufusi v Kingdom of Tonga, this action should, in the interests of justice, be terminated.

The appeal is dismissed with costs.

BURCHETT J
SALMON J
MOORE J