To'a v Inu [2009] TOLawRp 7; [2009] Tonga LR 57 (20 February 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 837/2004

To'a

v

Inu anors

Shuster J
10 and 11 January 2009; 20 February 2009

Tort – claim against police – unlawful arrest, false imprisonment, and assault – claim not proved and therefore dismissed

On Saturday 16 June 2004 the plaintiff claimed the first and second defendants arrested the plaintiff at about 1600 - 1700 hours near to his neighbour's property. Officers placed the plaintiff into the rear of a police van and then they moved his car without permission; thereby allegedly committing a trespass to his vehicle. The plaintiff claimed he was not informed of the reason for his arrest. He also claimed the arrest was made on private property. He further claimed the period he spent in custody was unreasonable and therefore unlawful and that he lost his self esteem and also his dignity, he also lost the company of his wife and family during his time in custody. The plaintiff claimed the actions of the two police officers, the first and the second defendants, were oppressive, arbitrary and, unconstitutional, and that, the third and the fourth defendants were vicariously liable for their torts. As a result of his treatment during these dates, the plaintiff claimed he was entitled to both aggravated and to exemplary damages. The plaintiff claimed damages for unlawful arrest, imprisonment and assault. The details were as follows: inconvenience and loss of wife's company, $2,000; false imprisonment, $5,000; assault, $1,000; aggravated damages, $500; exemplary damages, $3,000; and costs, and interest at 10% from date of judgment.

Held:

1. The Court found as a fact that the plaintiff was arrested by police officers who were on duty at around about 5pm on Saturday 26th June 2004. The plaintiff was informed of the reason for his arrest and that he knew his arrest was for the alleged theft of Tongan goods and that knowledge was itself sufficient, to make the arrest lawful.

2. A police officer was obliged to care for the property of every man and woman taken into police custody under arrest and every police officer had a duty to observe the law. The plaintiff's wife could not drive so the police officers had a duty to ensure the safety of the plaintiff's car, and all its contents and that duty extended to include looking after the safety of the plaintiff's wife.

3. The Court could not find any evidence that the plaintiff was unlawfully assaulted. Further, there was no evidence led of anything oppressive, arbitrary or unconstitutional by or towards the plaintiff, so the claim for exemplary damages failed.

4. The Court found that the plaintiff failed to prove his case against the defendants, so the claim was dismissed and the defendants were clearly entitled to their costs to be taxed by the Chief Registrar.

Cases considered:

Anderson v Both [1969] 2 QB 216

Dallison v Caffery [1965] 1 QB 348 (CA)

John Lewis & Co Ltd v Tims [1952] AC 676

R v Brosch [1988] Crim LR 743

R v Innwood 57 Cr App R 529 (CA) 50

Statute considered:

Police Act (Cap 35)

Counsel for the plaintiff : Mr Fifita
Counsel for the defendants : Mr Little

Judgment

This case is a claim for damages for the unlawful arrest, imprisonment and assault of the plaintiff- MAEA TOA. A statement of claim was filed by the plaintiff in the Supreme Court on 22nd November 2004. The various certificates of service reveal the writ and the statement of claim were served on each of the defendants on 29-30th November 2004. A Statement of Defence was filed (albeit out of time) with the leave of this court on 9th March 2005.

The Claim for Damages

The plaintiff's claim for damages is listed as follows:-

1. Inconvenience and loss of wife's company $2,000.00

2. False imprisonment $5,000.00

3. Assault $1,000.00

4. Aggravated damages $500.00

5. Exemplary damages $3,000.00

6. Costs and incidentals to these proceedings

7. Interest at 10% from judgment- until the damages are paid

8. Any other order(s) the court deems just

Chronology

On 11th September 2008 a trial date was set for 10th and 11th February 2009 as a firm fixture with a PTC date on the 30th January 2009 and confirmed at a PTC. On the 27th January 2009 the Crown Law Office asked for witness summonses for Inspector of Police SOANE NAUFAHU. Perusing this file- it is evident there have been numerous adjournments, date fixes, and chambers hearings concerning this matter. There have been a number of dates in which the case had been officially set down for trial then there have been late applications for an adjournment.

It is also fair to say that essentially the applications for an adjournment; were as a result of witness problems. Any reasonable man in possession of all the fasts might conclude there has been a substantial delay in the hearing of this matter, but it is also fair to say the delays were caused by all of the parties- to this action.

The latest question of a possible further delay to this long running case- arose on Tuesday 10th February 2009, when the case was called in court for trial. On 2nd February 2009 the Supreme Court Registry received an application from the defendants to amend their statement of defence; they also asked for permission to cease to act for the first defendant essentially, because he could not be traced.

The defence application to amend the statement of defence was opposed by a notice from the Plaintiffs lawyer dated 3 February 2009 and is on file. However I cannot trace a request for a chambers hearing, to air this matter, pre trial. I also must place on record the defendants request to amend and to cease to act, might well have been overlooked, because of a recent bereavement which had affected the whole of our Supreme Court staff that week.

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 has been evident for quite some time that the first defendant cannot be located (or contacted) because he is living overseas.

It is thought the first defendant is now living in New Zealand- and he has not returned telephone calls or responded to various e-mails from the Crown lawyers. I am satisfied after hearing representation from counsel, and having read the affidavit of Peter Little that the defendants counsel, has made every reasonable effort to locate, ex-PC INU, but to no avail. I have been told the ex-Tongan police officer may have overstayed and, or he may well have re-settled in New Zealand, or even moved on. What I know is certain; ex PC INU is no longer a serving Tongan Police Officer, he is no longer within this court's jurisdiction and that the case must proceed without further delay.

It is settled law the third and the fourth defendants would remain vicariously liable for the torts of its police officers, were the plaintiff to be found by the court to be successful in this claim.

The Plaintiff's Case

The plaintiff is MAEA TOA and at the time of this alleged incident he lived at LAPAHA with together with his wife and his family. He describes himself as a planter and he grew crops at HA'ASINI for a living and they sold the crops at markets.

On Saturday the 16th June 2004 the plaintiff claims, the first and second defendants arrested the plaintiff at about 1600 -1700 hours near to his neighbour's property. Officers placed the plaintiff into the rear of a police van and then they moved his car without permission; thereby committing a trespass to the plaintiffs vehicle. The plaintiff claims he was not informed of the reason for his arrest. He also claims the arrest was made on private property.

He claimed he asked PC INU if he could drive his own vehicle back to his allotment, but the request was refused. The plaintiff claims PC INU the first defendant could not start the plaintiff's vehicle; but Inspector NAUFAHU the second defendant was able to start the plaintiff's car; so he drove the car to the plaintiff's residence. The plaintiff says in court and in his statement of claim he did not consent to either of the police officers moving or driving his vehicle.

The plaintiff claims he was subsequently taken and lodged at the MUA police station. The plaintiff claims he was questioned while he was held initially at the MUA police station, by PC INU in relation to a suggestion that he had been seen sitting in a van (at around noon) by the road in 'ALAKIFONUA the previous week in the vicinity of a crime which had occurred around about the same time. The plaintiff claims he told the officers, he had stopped the vehicle at the roadside because his brother in law MONU FINAU had to get out of the car to answer a telephone call from MONU'S mother, who was calling from the United States.

After a brief detention at MUA police station the plaintiff says he was taken by PC INU to see MAGISTRATE TATAFU. He says he asked the Magistrate for his handcuffs to be removed. He said the Magistrate said the police would take them off. Quote, "When he would be locked in the cell." He testified he was with the Magistrate for about 15-20 minutes.

The defendant says he was then taken back to MUA Police Station and claims he was questioned about (1) a housebreaking; and (2) the slaughter of a cow. He denied involvement in either of these alleged crimes. The plaintiff claims the police handcuff which were placed on his wrists were shaken by PC INU and, as a result of the shaking they tightened and hurt him.

The plaintiff claims the placing of the handcuffs on his wrist was an assault and that assault was therefore unlawful. The plaintiff said in evidence he did not consent to either- his arrest or to his imprisonment. He claims from 1700 hours on Saturday June 26th to 1000 hours on Monday 28th June 2004 he was never questioned, and he did not record any statement about any crime or any offence(s) He was released on Monday 29th June 2004 at around 10.00am and taken home by the police.

The plaintiff claims the period he spent in custody was unreasonable and, therefore unlawful. The plaintiff claims he lost his self esteem and also his dignity, he also lost the company of his wife and family during the material time whilst in custody.

The plaintiff claims the actions of the two police officers the first and the second defendants, were oppressive, arbitrary and, unconstitutional, and that, the third and the fourth defendants are vicariously liable for their torts. As a result of his treatment during these dates, the plaintiff claims he is entitled to both aggravated and to exemplary damages.

What Constitutes an Arrest

In general- an arrest is constituted by a physical seizure or the touching of the arrested person's body, with a view to his detention. R v BROSCH [1988] Crim LR 743 but there may be an arrest by mere words ANDERSON v BOTH [1969] 2 QB 216 an arrest is constituted when any form of words is used which is calculated to bring to the suspect's notice, and does so, that he is under compulsion, and he therefore submits to that compulsion and in R v INNWOOD 57 Cr App R 529 (CA) the CA said there is no magic formula, there is only an obligation to make it plain to the suspect, by what is said, and done, that he is no longer a free man.

Different procedures might apply or; be needed according to the persons age, ethnic origin, knowledge of the language, intellectual qualities physical or mental disabilities. It is trite law a police officer may use reasonable force in order- to effect or carry out or effect- an arrest.

The Consequences of an Arrest

Where a private citizen (and also a PC who is off duty) makes a lawful arrest either at common law or under statute, he should take the arrested person before a justice of the peace, or a police officer,- not necessarily forthwith - but as soon as is reasonably practicable.

Authority: - the cases of John Lewis & Co Ltd v Tims [1952] AC 676 a decision of the House of Lords and Dallison v Caffery [1965] 1 QB 348 (CA) (Civil Div.)

The Evidence

The court heard evidence from the plaintiff and his wife Mele TOA, of the circumstances surrounding the plaintiff's arrest and his detention by the police on the 26th June 2004 at around 5pm.

• The plaintiff accepted that he was stopped by the police, and that he was put into the rear of the police vehicle by a police officer.

• The plaintiff told the court he could not see who drove the police vehicle because he was placed in the back of the van.

• The plaintiff says he was not told of the reason for his arrest at the scene.

• The plaintiff said in his evidence he heard his wife ask the officers the reason for his arrest.

• The plaintiff accepted in cross examination that his wife was told the reason for his arrest and that was- for stealing Tongan goods and the officer said to her further that, "the plaintiff was present in the vicinity-both where and when goods were stolen."

Applying the above leading cases on what constitutes an arrest, and, looking at the consequences of an arrest, I find as a fact the plaintiff was arrested by police officers who were on duty at around about 5pm on Saturday 26th June 2004.

Upon hearing the sworn evidence of both the plaintiff and his witness Mele TOA, I am satisfied that the Plaintiff was informed of the reason for his arrest and that he knew his arrest was for the alleged- theft of Tongan goods and that knowledge was itself sufficient, to make the arrest lawful.

I turn now to look at the issue of the alleged trespass to the plaintiff's car. It is trite law and has been the law for many years that a police officer is obliged to care for the property of every man/woman taken into police custody- under arrest and every police officer has a duty to observe the law. Mele Toa also testified she could not drive. Because police officers have a duty to protect both life and property and I was told that the arrest was around 5.00pm (perhaps it was getting dark) would the police officer happily leave a woman alone with or inside a car that did not start? The answer must be No.

In this case in my view the officers did the right thing. They used their common sense, and because they were now legally "bailee's" of the plaintiff's car, had they left it on the road and in the hands of someone who could not by her own admission — drive- damage or theft from the car might result- for which the officers might be found liable.

Once the officers had arrested the plaintiff, they then had a duty to ensure the safety of the plaintiff's car, and all its contents and that duty might also extend to include looking after the safety of a female person Mele Toa.

The police officers were entitled to start the car and to remove it to a place of safety which was the plaintiff home address. Accordingly I reject any assertion that there was, a trespass to the plaintiff's vehicle by the police officers driving the vehicle back to the plaintiff's property. As the plaintiff had been lawfully arrested, it follows he could not have driven his vehicle whilst he was in police custody.

Evidence of an Assault

The plaintiff told the court that he was handcuffed and that PC INU at a point in time shook the handcuffs and they were tight. The plaintiff told the court, and I accept that the handcuffs were ONLY placed on him when he was transported from the police station at MUA to see the Magistrate while he travelled in the vehicle and for his return to the police station.

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 to 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. So on balance on the evidence before me I could find no evidence that the plaintiff was unlawfully assaulted. I heard no evidence of any intentional assault or battery towards the plaintiff by any police officer.

The Trip to See the Magistrate

In this case the plaintiff was arrested by the police on suspicion of committing a crime; that is to say he was arrested on suspicion of committing an offence of theft. Historically a police officer is a special class of person, who by virtue of his office can arrest any person, found committing an arrestable offence, or on suspicion of committing an arrestable offence and the officer generally derives his powers of arrest- under statute.

In Tonga if an officer does effect an arrest of- any person; unless he has a judicial warrant for that person's arrest- he must take that person before a Magistrate as soon as is practicable, under section 22 of the Police Act.

22(1) A police officer making an arrest without warrant shall without any 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.)

What does it mean "without any unnecessary delay." Well it means as soon as is reasonably practicable? It means having regards to all the circumstances of the case- and this is looked at by the court, on a case by case basis. So a court would look at all the circumstances of the case, what time of the day or the night was the arrest made? What is / was the availability of the Magistrate? What is the time frame for gaining access to an official vehicle for the safe transportation of the arrested person, to see the Magistrate; and where does the meeting with the Magistrate take place? These are all questions of fact and are to be decided upon by- a case by case basis.

The plaintiff accepts that about half-an-hour after he was taken to the police station at MUA on the 26th June 2004, he was placed in handcuffs and was taken police vehicle to see a Magistrate- by PC INU. The plaintiff said in evidence he did not know the name of the Magistrate but testified that he was with the Magistrate for some 15-20 minutes. In his statement of claim however, the plaintiff accepted he appeared before Magistrate Tatafu. The plaintiff claimed that during his time with the Magistrate- he asked the Magistrate for the handcuffs to be taken off his wrists. He said both in his evidence before me, and in his statement of claim

"The learned Magistrate said that the police would take it off when he would be locked in the cell" (paragraph 20)

That statement and the admission by the plaintiff most clearly indicates, the Magistrate decided to remand the plaintiff in custody on the 26th June 2004- and to the police cells at Mua as is normal practice. The remand by my calculations would be at approximately 6.00pm on Saturday 26th June 2004.

This remand by the Magistrate was; and is a judicial act the fact the plaintiff was at the Magistrate's home for 15-20 minutes indicates quite clearly the Magistrate carried out a proper inquiry into this case, as he is required to do. In other words; I find as a fact that Magistrate Tatafu met with PC INU and the plaintiff. The Magistrate officially heard the police officers application on behalf of the plaintiff on the 26th June 2004.

I find as a fact the Magistrate physically saw the plaintiff in the flesh and in person on the 26th June 2004 and as a result of what the Magistrate was told; by the investigating officer he decided to remand the plaintiff into custody, and that is- and was and always will be a judicial act. From that point on; AND it is trite law--the plaintiff was lawfully in custody- there can be no claim for false imprisonment because the police officer MUST act upon the Magistrate's order.

This information also appears in the plaintiff's statement of claim.

I Take Judicial Notice

Because the following day 27th June 2004 was a Sunday, and being a Sunday, it was a day of rest in the whole of the Kingdom of Tonga; I have to ask would the Tongan Police Force have been criticized if they had interviewed the plaintiff, or if they had continued with their investigation into the alleged theft of the Tongan goods by questioning witnesses ON A SUNDAY? The Magistrate will certainly have known the next day was a Sunday when he initially remanded the plaintiff in lawful custody.

Prisoners' Food

I turn to look at the question of who is responsible for supplying prisoners, with food and water- to persons in the custody of the police- be they in custody on remand or whilst they are at the police station being questioned by police AND whilst under arrest. It is trite law that it is the duty of the police to properly and to adequately feed, cloth and provide medical assistance to every prisoner who is being held in police custody, particularly whist they are ordered remanded by a Magistrate.

Prisoners are to be fed not less than three meals a day and are to be given an adequate supply of clean drinking water. Further the supply of food and water to each prisoner- and the time it is served- is to be clearly recorded in the police station diary and or in a custody record held for that purpose for every prisoner from now on- without fail this would help the police in the long run in claims such as this.

I heard evidence, that it is the custom in the Kingdom- that the plaintiff was visited, by his wife and that she brought the plaintiff- food at around lunch time on Sunday 27th June 2004, The plaintiff's wife told me and I accept- she saw her husband and she informed me she stayed with him for about an hour around noon on Sunday 27th June 2004. I heard no more or little evidence about the supply of food at other times, but the plaintiff told me he did get a good supply of water.

I also heard evidence and it is not disputed- the police released the plaintiff from custody without charge on Monday 28th June 2004, and the police transported the plaintiff to his home address, and dropped him off at home at around 10.00am.

A Citizen's Duty

I remind everyone; every citizen has a duty to assist the police in their investigations into allegations of crime(s.) However-citizens cannot be compelled to come to a police station otherwise than by arrest. In this case I accept the evidence of the plaintiff, that he was arrested by uniformed police officers at about 5.00pm on Saturday 26th June 2004.

I accept the evidence that the plaintiff was taken before a Magistrate in accordance with section 22(1) of the Police Act. I accept the evidence the plaintiff was remanded by the Magistrate and that remand would be until the next available court date which would be Monday 28th June 2004, because courts do not sit on Sundays; unless the plaintiff was released in the meantime by the Magistrate or the police.

This court has to conclude, that having considered their position the police decided to release the plaintiff around about 10.00 on Monday 28th June 2004, AND without charge. This they are entitled to do- and MUST do if they have found no evidence against him or decided other than to lay charges. If they do this then they must immediately notify the Magistrate of their decision.

It is important to note the fact the plaintiff was no charged, does not mean, the arrest was unlawful. Considering all the evidence adduced in this case I have come to the following conclusions.

Damages and Relief Sought

1. Inconvenience

This head of damage, for inconvenience and the loss of the plaintiff's wife's company, clearly fails because no cause of action was pleaded.

2. False Imprisonment

Because the police officers complied with section 22(1) of the Police Act by taking the plaintiff before a Magistrate, within 30 minutes of the time of his arrest, and the Magistrate remanded the plaintiff in custody, this action must fail.

3. Assault

I heard no evidence of an unlawful assault and can find no evidence of any assault other than an officer taking hold of the plaintiff by the arm in order to effect- an otherwise lawful arrest.

4. Aggravated Damages

I heard no evidence entitling me to award aggravated damages to the plaintiff -so this claim fails.

5. Exemplary Damages

I agree with the Defendants submission, on the evidence placed before this court, there was no evidence led of anything oppressive, arbitrary or unconstitutional by or towards the plaintiff, so this claim also fails.

Ruling

I find the plaintiff has failed to prove his case against the defendants, so this claim is dismissed- and the defendants are clearly entitled to their costs to be taxed by the Chief Registrar.