Nasilai v Kingdom of Tonga [2010] TOCA 5; AC 05 of 2010 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY APPEAL

NO. AC 5 of 2010

BETWEEN:

VILI HETI NASILAI
Appellant

AND:

KINGDOM OF TONGA
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Clive Edwards for the Appellant
Mr A. Kefu for the Respondent

Date of Hearing: 7 July 2010
Date of Judgment: 14 July 2010.

JUDGMENT OF THE COURT

The Appellant brought against the Kingdom an action in tort for wrongful arrest, false imprisonment and malicious prosecution. His arrest had occurred at a road-block at Nuku’alofa on the day after the riots of 16 November 2006, that is on Friday 17 November 2006, at or shortly after 8 pm.

The judgment under appeal was delivered by Andrew J, who dismissed all the claims with costs, after a hearing at which the Appellant and a number of police witnesses were cross-examined. In large part, the decision was based on His Honour’s view of the credibility of these witnesses.

The Appellant’s case, both as pleaded and as put forward in evidence, was that he had stopped as required by a police officer’s signal, when he was driving with a passenger towards Nuku’alofa at a point near the former British High Commission residence. Having stopped, he was arrested, with his passenger, taken to the central police station, and locked in a cell until the following Monday 20 November. He was arrested without a warrant and was not informed of the reason for his arrest. According to his pleading and evidence, he was not taken to a Magistrate pursuant to s.22 of the Police Act until Monday 20 November.

Further allegations covering a period of over six months to 7 June 2007 referred to stringent bail conditions maintained during that time, and to the claim of malicious prosecution. So far as the bail conditions are concerned, they were, of course, imposed by the Magistrate after a further period of one week of custody, also ordered by the Magistrate. If the orders were mistaken, the mistake was that of a judicial officer, and the Appellant could have challenged his decision by appeal. On 12 April 2007, the Appellant was charged by summons with failing to stop upon being signalled to do so by a police officer, and he pleaded guilty to that charge in May 2007, being fined $80 according to a police witness or $200 according to himself. The allegation of malicious prosecution concerned an earlier charge relating to the Appellant’s possession, at the time of his arrest, of $649, which police officers initially contended, so they asserted, was in the circumstances of the rioting most probably obtained by looting. The police later conceded that the money belonged to the appellant.

Much of the evidence was about the circumstances of the Appellant’s arrest and subsequent detention at the central police station. Cross-examination of the Appellant seriously undermined his credibility. Confronted with the police allegation that he had failed to stop as signalled and had actually collided with a barrier at the check point, he repeatedly denied it, and denied knowing that that conduct and his drunkenness were the reason for his arrest. But after a series of further questions, the following questions and answers are recorded in the transcript:

"Q: When you understood you were held in custody, the truth is, that you believed that the reason why you were arrested was because you failed to stop to the signal at check point, is that right?

A: If there was a sign in front I would know.

Q: You did not answer my question. I put it to you when you knew you were going to be kept in custody, did you know the reason why you were arrested is it because you failed to stop when you were signalled at check point.

A: Yes

Q: I put to you that the police officer did tell you why you were arrested because you failed to stop at his signal.

A: Yes"

After further questioning on other topics, the Appellant was again asked:

"Q: I put it to you that the time you were told that you were going to go to the police station, you knew why you were arrested and that you were going to be kept in custody. Were you aware of that?

A: Yes, I understood at this time when I arrived at the police station.

Q: The reason being that you failed to stop when signalled to stop, correct?

A: Yes

Also in the course of his cross-examination, the Appellant conceded that his mobile telephone, the value of which he was claiming on the basis the police had taken it at his arrest and not returned it, was returned to him with other items on 27 November, when he was released on bail.

In the light of the Appellant’s admissions in cross-examination, it was inevitable that his claim to have been arrested unlawfully without being made aware of the basis of that arrest had to fail. He knew very well he had not heeded an officer’s signal and had been arrested for it. But the concession that such important allegations had been untruly made, and persisted in through evidence in chief and the earlier part of cross-examination, must also have seriously tainted his credit on other issues.

The next issue arose out of the obligations of the police following an arrest without warrant under s.22 of the Police Act. The Appellant’s evidence was he was not taken before a Magistrate between the Friday night and the following Monday. The evidence of the police officers was to the effect it was not practicable in the conditions following the riot to take him before a Magistrate on the Saturday, but a Magistrate saw him at the police station on the Sunday. Both the difficulties affecting the police and that the Magistrate came on the Sunday are in dispute. So far as the difficulties of that week-end are concerned, the picture created by the police evidence is one of unprecedented numbers of arrested persons requiring to be dealt with. Mr Edwards claimed the numbers at the police station were limited, but his client admitted there were "many other prisoners held in custody", the majority for riotous behaviour and some for stealing. So far as the Sunday is concerned, the trial judge, who saw and heard the witnesses, accepted the police account. As a decision which must have been heavily influenced by his impression of the oral evidence, the judge’s determination should not be set aside on appeal except for a compelling reason coming within the principles relating to appellate intervention with respect to such a question.

However attention needs to be given to the terms of s. 22 of the Police Act:

"(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."

It appears, the Court was told, to have become the practice in Nuku’alofa, where magistrates should normally be available, to treat this section as if the whole duty of the police would be satisfied by recourse to a magistrate "without unnecessary delay", even in a case where it was "not practicable" to do so within 24 hours. This Court affirms without qualification that the entire section must be complied with, so in such a case a police officer of the rank of sergeant or above or the police officer in charge of the police station must perform his or her statutory function. The inescapable necessity to observe the strict requirements of the law where a person’s liberty is in question should not need emphasis: see Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, per Lord Atkin; Fifita v Fakafanua [1998] Tonga LR 127; Lavaka v Ministry of Police [2000] Tonga LR 17; Edwards v Pohiva [2003] Tonga LR 231; Tavake v Kingdom of Tonga (Ford CJ, unreported, 19 December 2008).

In the present case, there was no evidence of any attempt to have the provisions of s. 22 fulfilled by anyone other than a Magistrate. In those circumstances, this Court must hold that the further imprisonment of the Appellant became unlawful upon the expiry of 24 hours from his taking into custody until he was seen by the Magistrate on the Sunday, that is it was unlawful for a period of somewhat less than 24 hours in length. Otherwise, the appeal, so far as it relates to false arrest and wrongful imprisonment, fails.

We turn to the question of malicious prosecution. The trial judge dismissed this quite tersely on the ground the Appellant had not shown any malice. We agree. The claim related to the charge recorded on 20 November 2006 in respect of the sum of $649.55 on the Appellant’s person at his arrest, which was suspected of being stolen. Whether the circumstances of the rioting and looting which occurred just before the arrest of the Appellant, combined with his failure to stop when called upon to do so and his collision with the barrier, gave reasonable and probable cause for this charge or not, there was simply nothing to show malice. But Mr Edwards relied on the evidence of Inspector Latu, a senior police officer, that, as early as 27 November, when the Appellant was released on bail, he considered it probable this charge would be withdrawn, and suggested the inference was the delay in withdrawing it must have been motivated by malice. Only on 7 June 2007 did the police formally offer no evidence, so that the charge was dismissed. But Inspector Latu gave evidence to the effect that on 27 November 2006 he did not oppose bail and thereafter he gave to his superiors a list of charges to be cancelled but did not receive confirmation until about 7 June 2007. He was cross-examined, and referred to the "thousands of files" he had to deal with. He said he "had to confirm further when the investigation was finished" and he did not personally conduct the interview of the Appellant on that matter. Nothing in the cross-examination suggests any malice or any prevarication. Inspector Latu appears to be simply a conscientious officer with an avalanche of work caused by the riot and a need to obtain confirmation from his own superiors before terminating the prosecution. The judge who saw and heard him when he gave his evidence accepted there was no malice revealed by it. The appeal on the claim of malicious prosecution must fail.

We turn to the issue of damages for the very short period of unlawful imprisonment. We have found guidance in Tavake v Kingdom of Tonga, although that case was complicated by the fact that torture during one part of the imprisonment there in question was proved. Utilising, however, the award of $550 for a 17 days period during which there was no torture as some yardstick, we conclude that an award of $250 would provide full and adequate compensation for the brief interval of unlawful imprisonment suffered by the Appellant.

The final issue is costs. In all the circumstances, we consider it would be appropriate that each party bear his or its own costs both here and below.

The appeal should be allowed to the extent indicated in these reasons.

Burchett J
Salmon J
Moore J