To'a v Inu [2009] TOCA 7; AC 08-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 08 of 2009

BETWEEN:

MAEA TO’A
Appellant

AND:

1. POLICE OFFICER SIONE INU
2. POLICE OFFICER SOANE NAUFAHU
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
Respondents

Coram: Ford P
Burchett J
Moore J

Counsel: Mr. Fifita for the Appellant
Ms. Mafi and Ms. Lavakei’aho for the
Respondents

Date of hearing: 2 July 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

Introduction

[1] The appellant has appealed against a judgment of Shuster J. dated 20 February 2009 in a civil case where he was the plaintiff and the respondents the defendants. The claim was one for damages based on alleged unlawful arrest, false imprisonment and assault. Although the judgment records the dates of hearing as 10 - 11 January 2009 that is incorrect. The case went to trial on 10 - 11 February 2009.

[2] The appellant sought damages under various heads totalling $11,500.00 together with costs and interest. The first and second respondents were police officers and it was accepted that if the plaintiff was successful in his claim then the third and fourth respondents would be vicariously liable for the tortious acts of the police officers.

[3] In his judgment, the primary judge concluded that the plaintiff had failed to prove his case against the defendants and, accordingly, the claim was dismissed and the defendants were awarded costs to be taxed by the Registrar.

[4] One unusual feature of the hearing was that on 2 February, 2009 eight days before the trial commenced, counsel then acting for the four respondents filed an application for leave to amend the statement of defence and to withdraw as counsel acting for the first respondent. The latter application was based on the fact that the first respondent had left the police force and moved to New Zealand to live but his whereabouts in New Zealand could not be traced. Counsel for the appellant filed a notice of opposition to the application on 3 February 2009 but, for reasons explained in the judgment, the applications were not considered by the trial judge until 10 February 2009, the morning of the hearing. In his judgment the judge said:

"On Tuesday the 10th February 2009 -- the trial date, I told both parties to the proceedings in chambers and again in open court that I was not prepared to delay this trial any further because it is now four years and four months since the plaintiff first issued and served his writ. Various witness subpoenas had been issued, and I wanted the case to proceed to trial immediately -- without any further delay because further it had been evident for quite some time that the first defendant cannot be located (or contacted) because he is living overseas.”

[5] There was debate before us as to whether the primary judge had allowed the two applications sought by the respondents. There was no formal order made and sealed one way or the other but the judge allowed the respondents to adduce evidence contrary to the admissions made in their original statement of defence. Quite responsibly, counsel for the respondents accepted before us that they were bound by the admissions made in their original statement of defence.

The facts

[6] The 46-year-old appellant, a married man with six children, grows crops. The incident giving rise to the claim occurred on Saturday 26 June 2004. The appellant and his wife, who were then living in Lapaha, had been in Nuku'alofa selling produce at the market. As they were returning home that evening they were stopped by the first two respondent police officers who were in a police van close to a neighbouring allotment. The appellant overheard one of the officers say to his wife that they were arresting him for stealing Tongan goods. The appellant was placed in the police van and then, because his wife could not drive, one of the officers drove her home in the appellant's vehicle. The police van followed and, after picking up the officer who had driven the appellant's wife home, it proceeded on to the Mu'a Police Station.

[7] The appellant claimed that he was then questioned at the Mu'a Police Station by the first respondent in relation to a suggestion that the previous week he had been sitting in a van (at around noon) by the roadside in the vicinity of a crime which had occurred about the same time. The appellant claimed to have told the officer that he had stopped his vehicle at the roadside because his brother-in-law, Monu Finau, had to get out of the car to answer a telephone call from his mother who was calling from the United States.

[8] Approximately half an hour after his arrival at the Mu'a Police Station, the appellant was placed in handcuffs and taken in a police vehicle by the first respondent to see a magistrate at the magistrate's home. He asked the magistrate for the handcuffs to be taken off his wrists but the magistrate replied that they would be taken off "when he would be locked in the cell". The appellant was asked if the magistrate had told him anything else and he replied: "The magistrate told me that I will be delayed because I had to confess." He was not challenged on that statement.

[9] On the following day, which was a Sunday, the appellant was visited at the police station by his wife who bought him food at around lunchtime. Then on Monday 28 June 2004 at around 10 a.m. the police released the appellant from custody without charge and transported him to his home.

[10] In his statement of claim the plaintiff alleged that after they had arrived back at the police station following the visit to the magistrate, the first respondent continued questioning him about the alleged offence and when the appellant insisted he knew nothing whatever about the offence, the first respondent shook the plaintiff's hands and moved the handcuffs causing severe pain to his wrists. The primary judge correctly noted, however, that the appellant had not given evidence to this effect. What he said in evidence was that the first respondent handcuffed him and shook his hands and tightened the cuffs causing pain but that evidence appeared to relate to the point in time immediately prior to his being taken to the magistrate's home.

The findings

[11] There was no direct evidence on exactly what the magistrate had ordered but the primary judge concluded that the appellant had been taken before magistrate Tatafu in accordance with section 22 (1) of the Police Act and the admission by the appellant that the magistrate had said that the police would remove the handcuffs "when he would be locked in the cell" indicated that the magistrate had decided to remand the appellant in custody. He held that that was a judicial act and from that point on the appellant was in lawful custody and therefore there can be no claim for false imprisonment.

[12] In relation to the claim of assault arising from the application of the handcuffs, the primary judge stated:

"It is accepted police practice (throughout the world) to handcuff each and every prisoner whenever they travel, or are transported inside a police vehicle. Handcuffing of a prisoner is done (1) to prevent the prisoner from escaping, and (2) in order to protect the lives and the property of everyone. The need for protection would extend to include the protection of the police driver -- and all police escorts -- effectively handcuffing is used to prevent unnecessary harm or risk to everyone; including the prisoner and his escort. Additionally, if a prisoner were to escape from lawful police custody, then that would no doubt probably result in "the escape” becoming a disciplinary offence for all of the officers concerned.”

The judge concluded that he could find no evidence of an unlawful assault.

Discussion

[13] The principles applicable to the tort of false imprisonment were considered by this court in Edwards v Pohiva [2003] Tonga L R 231, 236:

"The law relating to the tort of false imprisonment is well established. It is a form of trespass to the person. As stated by Lord Bridge in Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733 at 743:

"The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.”

It is a tort of strict liability. There is no onus on a plaintiff to prove that the imprisonment was unlawful or malicious. Once the plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. It may be so, for example, if it is pursuant to an order of the court or the exercise of statutory powers. An action for false imprisonment will succeed or fail depending on whether the defendant can, as a matter of law, justify the detention or imprisonment.”

[14] In Fifita v Fakafanua [1998] Tonga LR 127, 128, this court drew attention to the dissenting judgment of Lord Atkin in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206; [1941] 3 All ER 338 at 362 which, as noted, has since been generally recognised to be a masterly statement of the law, in which his Lordship referred, as "one of the pillars of liberty", to the principle "that in English law every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act."

[15] The fact of imprisonment was clearly established. The issue is whether or not lawful authority existed to justify it. That requires a consideration of the terms of section 22 of the Police Act. Section 22 provides:

"(1) A police officer making an arrest without warrant shall, without unnecessary delay and subject to any provisions under any Act as to bail or recognizance, take or send the person arrested before a magistrate there to be charged or before a police officer of the rank of sergeant or above or before the police officer in charge of the police station.

(2) If it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours after he has been so taken into custody, the police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and shall grant or withhold bail in accordance with the Bail Act 1990.”

[16] Section 22 has been considered by this court on other occasions. In Fifita (supra) it was noted that the provision was enacted for the specific purpose of safeguarding the rights of the citizen and that any authority given by this law to infringe individual liberty should be construed strictly. What section 22 provides is that an arrested person is to be taken before a magistrate without unnecessary delay to be charged (emphasis added). In other words, by the point in time when the police officer takes the arrested person before a magistrate the police should have already made up their mind that he is going to be charged with a criminal offence and the charge then has to be laid before the magistrate.

[17] Once a suspect has been charged then the provisions of the Bail Act (No.27 of 1990) come into play. That Act creates a presumption in favour of bail. A person charged with an offence is to be released on bail unless the magistrate or senior police officer concludes that bail should not be granted for one or other of the reasons set out in section 4 of the Bail Act.

[18] The procedure involved in having an arrested person charged before a magistrate is covered by Part II of the Magistrates' Courts Act (Cap 11). Section 13 in this Part provides that the person desiring to institute a prosecution must apply in person to the clerk for a summons and at the same time state clearly the nature of the offence complained of and the time and place in which it was committed. Section 14 then provides that the clerk is to make out a summons which is to state concisely the offence for which the defendant is charged and is to require the defendant to appear at a specified time before the magistrate's court to answer the charge in the summons. Section 16 then provides that every summons, before being issued, shall be read by the magistrate who shall affix his signature and the seal thereto. We were told from the Bar that the summonses are kept in booklet form and after they have been signed by the magistrate, the original is handed to the defendant and the carbon copy remains in the booklet with the Magistrates’ Court.

[19] What we have, in other words, are these complementary statutory provisions in the Magistrates' Courts Act, the Police Act and the Bail Act prescribing the procedures to be followed from the point of arrest covering the laying of charges and the grant of or, in appropriate cases, the withholding of bail.

[20] It is axiomatic from these statutory provisions that the requirement in section 22 of the Police Act that an arrested person is to be taken or sent before a magistrate to be charged means that the police officer is to take or send the person before a magistrate's court where the clerk is to make out a summons in Form 1 in the schedule to the Magistrates' Court Act and then have it signed by the magistrate and sealed and served on the accused. At the same time, the magistrate is required to deal with the issue of bail under the Bail Act.

[21] Section 22 of the Police Act does not, in our view, envisage that it is sufficient simply for an accused person to be taken before a magistrate at his home. This requirement is reinforced by the wording of section 22 of the Police Act when it was first enacted. As noted in Fifita (supra) at 131, subsection (2) originally included the reiteration: "but where a person is kept in custody he shall be brought before a magistrate's court as soon as practicable" (emphasis added). There may be rare or emergency situations where a magistrate is equipped and prepared to issue a summons and deal with bail at his home but they should be very much the exception rather than the rule.

Conclusions

[22] The onus lay on the respondents in the present case to prove that lawful authority existed for the appellant's imprisonment. They did not do that. Instead, the primary judge made an inference that the magistrate had made some form of order from the pleading in the statement of claim that the magistrate said the handcuffs would be removed "when he (the appellant) would be locked in the cell." The judge said that the appellant also made that admission in evidence before him but the transcript does not reveal that. What the appellant said, according to the transcript of his evidence was:

"And the magistrate told me to come with them to the police station then the handcuff will be taken off.”

[23] As noted above, the appellant also alleged that the magistrate told him that he would be delayed because he had to confess. He was not cross-examined on that allegation but even if the statement was made it could not be relied upon as lawful authority for detaining the appellant. In a matter where a person's liberty is at stake the law requires strict compliance with any alleged authority to infringe that individual liberty. Inferences by a trial judge based on unsatisfactory evidence are insufficient to establish the lawful authority required to be proven in order to justify the tort of false imprisonment. For this reason, the appeal must succeed.

[24] Turning to the assault claim based on the application of the handcuffs, the primary judge held in [12] above that it was accepted practice throughout the world to handcuff "every prisoner whenever they travel" but there was no evidence before the court about the practice in Tonga in relation to the transportation of suspects in police vehicles. In another case that came before us this session where judgment is also being delivered this morning, Hurrell v Naufahu (AC09/09), we were critical of the same judge for acting on his personal experience and observations "as a former police officer and chief police officer with over 10 years experience." In the present case, he again seems to display a predilection to personal knowledge of facts gained from his past experience with the police. The comments the judge made in [12] above seem to infringe against the principle we expand on in Hurrell. Had such evidence been given by a defence witness then counsel for the appellant would have been able to cross examine that witness and no doubt an attempt would have been made to distinguish between the position of a "prisoner" on the one hand, which was the description referred to by the primary judge, and a "suspect" on the other, such as the appellant in the present case who was never charged with the commission of a crime -- let alone a crime of violence.

[25] As stated in Blackstone's Criminal Practice (1993) D1.7:

"Handcuffs should only be used where they are reasonably necessary to prevent an escape, or to prevent a violent breach of the peace by a prisoner . . . it would seem that where handcuffs are unjustifiably resorted to, the use will constitute a trespass even though the arrest itself be lawful."

[26] Given the fact that no evidence was called on behalf of the respondents to try and justify the use of handcuffs in the present case, the appeal must also succeed on this ground and the appellant is entitled to damages for the assault resulting from trespass to the person.

Damages

[27] The appellant had sought a new trial but we consider that the justice of the case can best be met by our allowing the appeal and making our own assessment in relation to damages. To this end, we invited counsel to file additional submissions on damages and costs. We found the submissions helpful and we are grateful to counsel for complying with what was a rather tight timeframe.

[28] The appellant was arrested and taken into custody at the Mu'a Police Station at 1700 hrs on 26 January 2004. He was taken before a magistrate at 1730 hrs on the same day and was eventually released without charge at 1000 hrs on 28 January 2004. As noted in [10] the appellant claimed in his statement of claim that he remained in handcuffs back at the police station after he had been taken before a magistrate but the evidence did not support that allegation.

[29] Counsel for the appellant, in his written submissions, invites the court to award $3000 for unlawful imprisonment; $1000 for assault (the handcuffing); $500 aggravated damages and $3000 exemplary damages. Counsel for the respondent submits that an appropriate award would be "within a range" of $1000 -- $1500 for general damages and $500 -- $1000 for aggravated damages but there should be no award for assault, special damages or exemplary damages.

[30] In relation to aggravated damages, the basis of the respondent’s acknowledgement of liability is summed up in the following submission from counsel:

“Although these experienced police officers were acting under the direction of the Magistrate to remand the appellant in custody, they should have ensured as a primary objective that they had legal authority to keep the appellant in police custody even after it was found that there was no reasonable grounds of suspicion to keep him there.”

[31] We have taken into account the submissions made by counsel in support of their various contentions. In particular, we have noted the emphasis counsel for the appellant placed on the fact that Sunday is a very special day in Tongan society, especially for families, and the appellant would have endured shame and embarrassment in the knowledge that his six children were aware that their father "a respected figure in their family" was being kept like a criminal in police custody.

[32] Applying the principles outlined in the Hurrell case (supra) we fix an award of general damages for false imprisonment and assault in the sum of $1500 and aggravated damages in the sum of $1000. We agree with counsel for the respondent that it is not a case for exemplary damages. We have noted the respective submissions on costs. The appellant is awarded costs on the appeal and in respect of the lower court hearing in an amount to be agreed or taxed.

Ford P
Burchett J
Moore J