Kalapa v Inukiha'angana [2005] TOSC 26; C 0296 2002 (13 October 2005)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 296/2002

BETWEEN:

TONGA KALAPA
PLAINTIFF

AND:

1. SIONE INU-KI-HA’ANGANA
2. KINGDOM OF TONGA
DEFENDANTS

BEFORE THE HON. CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 2, 3 & 4 March 2005

Counsel: Plaintiff: Mr Fakahau
Defendants: Ms Simiki

RESERVED DECISION GIVEN ON 13 OCTOBER 2005

Preliminary

The Plaintiff, Mr Tonga Kalapa, claims that he was assaulted by the 1st Defendant, PC Sione Inukiha’angana, on 30 March 2002 while in Police custody at Mu’a Police Station, when he was aged 23. He claims against the 1st Defendant and the 2nd Defendant, the Kingdom of Tonga, $20,000 general damages and $20,000 exemplary damages.

The Defendants deny those claims and say the Plaintiff was arrested, along with his cousin ‘Aisea Sime, by the 1st Defendant and other Police officers outside the hall at Lavengatonga, where he had been involved in a fight with Insp (now Chief Insp) Vili Lutua (who was off duty and in plain clothes) and others. The Defendants say that the Plaintiff received his injuries in that fight. The Plaintiff had then been taken to Mu’a Police Station but the Defendants deny that he had been assaulted there.

Evidence and submissions

The Plaintiff gave evidence on his own behalf and led evidence from Mr Manase Sikalu, his cousin Mr ‘Aisea P Sime, & Dr Lemesio Sa’ale, who had examined him the following day. The Defendants led evidence from Mr Fakatakatu T Tu’ifua, Mr Taleni Kefu, Chief Inspector Viliami Lutua, PC Mosese Katoa, Mr Tinitale Sili & PC Alamoti Langi. Both sides also produced documentary exhibits.

Regrettably the 1st Defendant PC Sione Inukiha’angana did not attend and give evidence, as he was said to be in New Zealand on vacation leave until the end of June 2005. The trial had been set for 2-4 March since November 2004 and I considered it very unfortunate that the 1st Defendant had chosen to go overseas during it. I did not accept that as a reason for postponing the trial.

After the evidence had been heard written submissions were made for both sides in support of their cases. These were received by the Court on 21 March and 5 April respectively.

For the reasons given below I was unable to accept the Plaintiff and his cousin ‘Aisea Sime as entirely reliable witnesses as they were clearly very drunk on the night of the incident. In addition I was unable to accept 'Aisea Sime as a credible witness as his evidence contradicted that of the Plaintiff himself and other witnesses whose evidence I accepted, in particular in relation to his evidence about not taking part in the fight with Insp Lutua, seeing injuries to the Plaintiff inside the Police van even though it was dark, and alerting the Police to the Plaintiff's injuries. I was also unable to accept the evidence of Manase Sikalu as entirely reliable as it was contradictory and uncertain in places. I accepted the other witnesses as generally credible and reliable.

Grounds of decision

Plaintiff was drunk

It was very clear from the evidence that the Plaintiff was very drunk on the evening of Saturday 30 March 2002. That was not disputed in his Counsel’s closing submissions. In evidence he himself said that he was drunk that night as he and other rugby colleagues had been drinking since about 6 pm at Halaika Beach, Lavengatonga, straight after their match, until this incident occurred at 11 pm, and they had not eaten. There were 4 bottles of vodka or rum which were mixed with water, shared among about 22 players.

Chief Inspector Vili Lutua also gave evidence that from his observation the Plaintiff had been drunk that evening. He knew the Plaintiff as he comes from the village of Halaliku, which is within the district where the Plaintiff lives (at Nakolo); and he also knew that the Plaintiff often came to practice with the rugby team of Lavengatonga and Nakolo youths which he coaches, even though the Plaintiff is not part of that team. Strangely the Plaintiff said he did not recognise Insp Lutua (who was not in uniform) and thought he was an elderly man from Lavengatonga. If that evidence of the Plaintiff’s perception were correct, it simply reinforced the other evidence about how drunk the Plaintiff was.

PC Katoa took part in the subsequent arrest that evening of the Plaintiff at Lavengatonga and also observed him to be very drunk, staggering when he walked and talking away, saying things which PC Katoa could not understand. PC Langi, who was on duty at Mu'a Police Station when the Plaintiff was brought there, knew him by sight because he used to attend Tonga College when PC Langi was at Tupou College, and saw that the Plaintiff could not stand up properly and was staggering when he was led in by the 1st Defendant PC Inukiha’angana, and that he was very drunk. Mr Tu’ifua, one of the men who had been in Cell No 1 at Mu’a Police Station that night, also gave evidence that when the Plaintiff and his cousin ‘Aisea Sime were brought into the adjacent Cell No 2 they were drunk.

The Plaintiff’s cousin ‘Aisea Sime, who lives in the same village, was also a witness for him. However, as already mentioned, I found that ‘Aisea also was drunk on that night as part of the group in which the Plaintiff was drinking, so that his evidence was not reliable.

Subsequently, as Police Prosecutor for Mu'a District, Insp Lutua prosecuted the Plaintiff and his cousin 'Aisea Sime for drunkenness and disorderly behaviour that evening. They both pleaded guilty to the charges and the Plaintiff was fined $20.

I therefore accepted that the Plaintiff was very drunk that night; and that in that state his evidence of the events of the evening was not reliable, and he could clearly have forgotten or mistaken the real events that took place that night.

Plaintiff’s injuries

It was also very clear from the evidence that the Plaintiff received several injuries between the time he was standing outside the Church Hall at Lavengatonga on the Saturday evening and the following morning, when he was released from custody at Mu’a Police Station around 11 am or 12 noon. The Plaintiff claimed that his injuries were inflicted on arrival at Mu’a Police Station, but did not claim that he received any further injuries after he was put into a cell.

The Plaintiff was seen later on the Sunday morning immediately after his release by Dr Lemesio Sa’ale (with whom he is friendly as he has relatives at Nakolo) whose report [Exhibit 2] made at 12.30 pm was:

“Medical Report on Police Case

Name Kalapa, Tonga

M 25 yrs

31/03/02 Time first seen 12.30 hrs

Type of cases: Allegedly Assault

Examination & Finding:

1. Left Black Eye (Periorbital bruised swelling with conjunctival redness).
2. Painful tender swelling nose with bled clots in the nose, shoes & clothes.

3. Laceration back of oral mucosa left side.

4. Abrasions on left of back, left and right shoulder.

X Rays: A) nose: fracture nasal bone seen

B) chest: no fracture seen

Opinion: Injuries involved fracture nasal bone and other soft tissue injuries.

Medical Officer: (sgd) Saale.”

Dr Sa’ale said that when he examined the Plaintiff he had a black eye, a swollen nose with blood clots, one laceration on the inside of his mouth on the left side, abrasions on his left back and left and right shoulders and a fracture on the nose, but he did not have any bruises or fractures on his chest area or ribs; and on arrival at the hospital, the Plaintiff's nose was not running continuously with blood, the only observation that he noticed was that of blood clots inside the nose.

That evidence was supported by Exhibit 1, which was photos of the injuries taken on the Sunday, the day after the incident and the same day as Dr Sa’ale examined the Plaintiff. The photos were taken after Dr Sa’ale’s examination.

However I found the photos of the Plaintiff in Exhibit 1 rather unconvincing in relation to his claim. They showed his black eye and on close examination his swollen nose, and scratches to his neck and back – all of which were verified by Dr Sa’ale. But beyond that the photos failed to substantiate claims that he had been kicked in the chest or ribs or that his nose was still bleeding at that time (see below).

That evidence given by Dr Sa’ale, which I accepted, was inconsistent with the evidence of 'Aisea Sime who claimed that he saw the 1st Defendant kick the Plaintiff on the ribs; and the evidence of blood clots inside the nose was inconsistent with the Plaintiff's own account that his nose was bleeding continuously up to the time the photographs were taken. The Plaintiff said in evidence that proof of this was Photo 1 of Exhibit 1, but on that and the other photos there was no sign of bleeding; and the Plaintiff himself said in evidence that it was a kind of watery liquid, not blood.

The Plaintiff said that he had been unable to eat solid food for 3 days after his release.

The Plaintiff claimed that his nose still hurt and Dr Sa’ale confirmed that he had told him to go and see an ear, nose and throat specialist, Dr Lei Saafi, to confirm the status of his nose, however up to the time he gave evidence 3 years later the Plaintiff had not done that, from which I inferred that the Plaintiff did not treat the injury to his nose as very serious. Dr Sa'ale had looked at the Plaintiff’s nose again just before giving evidence, and said his nose was still not right, although that was based on observation only and not on X-ray evidence nor the opinion of a nose specialist.

The dispute in this case was as to how the Plaintiff received those injuries.

Plaintiff’s fight with Insp Vili Lutua

The Plaintiff accepted that he had a fight and wrestled with Insp Lutua, which had started when he was outside the Church Hall at Lavengatonga towards an electric post, holding in his hand a cup of alcohol, and Insp Lutua came out from the Hall and questioned him about where he came from. The Plaintiff said that Insp Lutua took the cup of beer and poured it on his face and started to slap his face. The Plaintiff said he struggled with Insp Lutua and that punches were thrown at him, but said he was not hit by any punches. The Plaintiff thus accepted that he was still drinking up to the time of that fight.

The Plaintiff’s witness Manase Sikalu, who was a bystander, agreed with that evidence of the Plaintiff and said that there were many people at the scene that night and that Insp Lutua (whom he knew) started to slap the Plaintiff, who struggled with him and punches were thrown at each other. However his subsequent evidence was contradictory as he said that no injuries were inflicted on the Plaintiff in the fight and no punch ever landed on the Plaintiff’s face and no injuries or any blood appeared on the Plaintiff's face, but in cross-examination accepted that he did not recall the places where the punches landed. He also accepted that the Plaintiff and Insp Lutua were wrestling and that there were others fighting, not only the Plaintiff, but estimated the duration of the fight at 15-20 minutes, although he also said that it was not long before the Police arrived and the fight ceased.

I accepted the submissions for the Defendants that Manase was not a very observant bystander, as he could not recall the specifics of the fight, especially as to where Insp Lutua’s punches landed, which indicated that he was not attentive to the fight and did not notice any injuries to the Plaintiff. His estimation of the time the fight lasted was for a long period of 15-20 minutes, which I considered was unreliable and that Insp Lutua's estimation of time of 2-3 minutes, although probably a slight under-estimate, was more reliable, as Insp Lutua said that if he had been allowed to fight with the Plaintiff for that long the Plaintiff would have been suffered more injuries.

The Plaintiff’s cousin ‘Aisea Sime said that he was not involved in the fight between the Plaintiff and Insp Lutua and that he was just watching the fight, then when the Police arrived they took him into the Police van just because he was around the area where the fight occurred. He said he could not remember if any punches landed on the Plaintiff but he did not recall seeing any injuries on the Plaintiff on that night when taken into the Police van. However, as already mentioned, I found that ‘Aisea also was drunk on that night as part of the group in which the Plaintiff was drinking, so that his evidence was not reliable. I accepted the evidence of Insp Lutua that ‘Aisea was among those attacking him, in particular tearing off his shirt, so that at the end of the fight it was in tatters and Insp Lutua had no shirt on. As already mentioned, ‘Aisea also was prosecuted together with the Plaintiff and they both pleaded guilty to the charges of drunkenness and disorderly behaviour.

On the other hand, Insp Lutua’s account in evidence, which in general I accepted in preference to the accounts on the Plaintiff’s side, was that he was at the Church Hall at Lavengatonga at a Kalapu Kava Tonga on that night at approximately 8.30-9.00 pm. While a prayer was said around 10.30 pm he had heard someone swearing outside and he went outside to check, because he knew there was trouble outside because of the noise that was coming from outside. He enquired outside as to who swore and was told by a lady at a shop that it was the Plaintiff. He knew the Plaintiff from rugby practice at which he was coach and he approached him and asked him who swore, grabbing his hand in which he was holding a plastic cup of alcohol. He said he told the Plaintiff that he was being arrested for drunkenness and disorderly behaviour, but the Plaintiff resisted by holding onto his cup and refusing to be led by the Insp Lutua, who said he was trying to isolate the Plaintiff from the group of approximately 4 people sitting together with him. While Insp Lutua was trying to isolate the Plaintiff a person called 'Oni, whom the Insp knew well, as he is from Nakolo and in his rugby team, and is the same size as the Insp, tackled him (the Insp) from behind and held him. Insp Lutua's grip on the Plaintiff's hand loosened and the Plaintiff was free and started punching the Insp, who back-elbowed 'Oni off him. 'Oni then ran off and the Insp faced the Plaintiff and 'Aisea Sime, who was also attacking him from behind and tearing his shirt off him, so that it was in tatters and almost completely torn off, which gave an indication of the ferocity of ‘Aisea’s attack on him.

Insp Lutua is 5’11” and has a larger stature and build than the Plaintiff, being a much stronger and bigger man. Insp Lutua said that he struggled with the Plaintiff by grasping his back and shoulders, and he recalled clearly punching the Plaintiff on the left eye with his right fist. He demonstrated to the Court how he clenched his fist (which was a wide fist due to the size of his hand) and punched the Plaintiff on the eye and he fell flat on his back. Insp Lutua said that shortly after his punch he noticed the Plaintiff's eye starting to swell up and show bruising. He also punched the Plaintiff a second time when the Plaintiff charged at him again and he punched him on the nose area and was quite certain that, due to the size of his fist, the punch also fell on the Plaintiff's upper lip or mouth, which might have caused laceration inside the mouth; and he noticed that blood started to come out of the Plaintiff’s nose after the second punch. He said that during the course of the fight, as he struggled with the Plaintiff, he picked him up by both shoulders and threw him on the ground.

Insp Lutua estimated the fight had gone on for about 2-3 minutes and said if it had gone on for longer the Plaintiff would have suffered more injuries. But he did not consider that the Plaintiff was in a serious condition and considered that in view of his drunkenness he should be kept in custody.

It was not disputed that the area where the fight took place was beside a street light and the witnesses could see the events that took place. Insp Lutua, who was closest to the Plaintiff during the fight, could see the injuries he inflicted and the consequences.

It was therefore submitted for the Defendants that the evidence of Insp Lutua should be accepted because on that night he was not drunk and knew the Plaintiff and the state that he was in. It was submitted that, comparing the physical appearance and strength of Insp Lutua and the Plaintiff, it was clear that Insp Lutua had the strength and ability to inflict injuries of that degree to the Plaintiff; and the Plaintiff’s injuries described in the medical report submitted for him were consistent with Insp Lutua’s evidence as to the places where Insp Lutua said that he had punched or roughly handled the Plaintiff during the fight. I accepted those submissions.

The Defendants therefore said that the Plaintiff received his injuries in the fight he had with Insp Lutua, which I accepted. The Plaintiff said in evidence that in the fighting with Insp Lutua he was not injured by the fight despite Insp Lutua being a bigger, taller and stronger man than he was, but on all the evidence I was unable to accept that as it was inherently improbable.

The Defendants’ witness PC Katoa also said that on arrival at the scene at Lavengatonga with the 1st Defendant he noticed 'Aisea Sime attacking Insp Lutua from behind and so he concentrated on restraining him from attacking Insp Lutua and put him into the Police van and did not notice nor look at the Plaintiff. He said that when he put 'Aisea Sime into the Police van, he then stood there holding the door open and looking inside the van and waiting for the Plaintiff to be put into the van by the 1st Defendant and Insp Lutua. PC Katoa also said that the back of this Police van is like a jail where offenders are put, having no lighting, so that when the doors were closed it was completely dark.

'Aisea Sime, although claiming that the Plaintiff was uninjured in the fight, also agreed that the inside of the Police van was dark and he could not see anything that night: so it was submitted for the Defendants that 'Aisea Sime did not see any injuries on the Plaintiff. 'Aisea Sime was put in the van first by PC Katoa and was the first to be taken out off the van by PC Katoa at Mu'a Police Station, so it was submitted for the Defendants that at no point or time was he able to observe the Plaintiff's injuries straight after the fight with Insp Lutua. I accepted those submissions.

The evidence of PC Katoa therefore conflicted with the evidence of the Plaintiff that there were no injuries on him or any blood when he was taken to the Police van, but he was punched at Mu'a Police Station, which caused his injuries; and the evidence of ‘Aisea Sime, who said that there were no injuries to the Plaintiff when he was put into the Police van; and to some extent the evidence of Manase Sikalu and also the Plaintiff. I preferred the evidence of PC Katoa.

I was unable to accept the submission for the Plaintiff that the amendment of the Statement of Defence to refer to Insp Lutua’s part at Lavengatonga necessarily led to a conclusion that the amendment was a result of the absence of the 1st Defendant. The Statement of Claim itself rather surprisingly made no mention at all of the Plaintiff being involved in a fight at Lavengatonga leading to his arrest there.

Because the evidence for the Plaintiff was unreliable, vague or contradictory, I therefore preferred the evidence for the Defendants about the fight at Lavengatonga and, on the basis set out above, I found on the balance of probabilities that the Plaintiff did receive injuries during that fight. In making this finding, I have to note that the 1st Defendant only arrived at Lavengatonga as the fight was ending, so the absence of evidence from him had no effect on this finding.

Timing of events

The Mu’a Police Station Diary [Defence Exhibit 1], which I accept as good evidence of when the events happened, shows that the first complaint from Lavengatonga about drunkards swearing and causing a disturbance was received by phone at 2156, and the complainant was advised at 2159 by PC Langi that the Police would attend once a vehicle arrived. The 1st Defendant and PC Katoa then left for Lavengatonga at 2215 (the entry time of 2115 must be a slip of the pen) and returned at 2230 after arresting the Plaintiff and ‘Aisea for being drunk in a public place. At 2231 the Plaintiff and ‘Aisea were searched and put into Cell No 2.

So all the events at Lavengatonga must have taken place in quite a short period of time and, as already mentioned, I therefore considered that the evidence of Insp Lutua as to the duration of his fight with the Plaintiff at 2-3 minutes is more likely to be accurate, though perhaps a slight under-estimate, than the estimate of Manase Sikalu of 15-20 minutes, although paradoxically Manase’s estimate would be more consistent with the likelihood of heavier injuries being inflicted on the Plaintiff in the fight.

Alleged assault at Mu’a Police Station

On arrival at Mu'a Police Station, it was not disputed that PC Katoa opened the door to the back of the Police van and led out 'Aisea Sime, while the Plaintiff was still inside the van, but PC Katoa said he did not see the Plaintiff and said he did not notice the injuries on the Plaintiff until he was brought in by the 1st Defendant to the office.

The Plaintiff said that on arrival at Mu'a Police Station 2 Police officers held open the back door of the van and the 1st Defendant told him to get out. Before his feet touched the ground he said that the 1st Defendant’s very first action was that he punched him on the bridge of his nose and on his head and dragged him inside. But that evidence was contradicted by the evidence of his witness 'Aisea Sime, who stated that he was approximately only 5 metres away from the Plaintiff and that he was walking in front of PC Katoa and he looked back to the Plaintiff and saw the 1st Defendant kicking him on his face and ribs. ‘Aisea said that he heard a loud noise and the sound of someone breathing with difficulty. He said that the 1st Defendant punched the Plaintiff and while the Plaintiff was lying in the floor, the 1st Defendant kicked the Plaintiff twice and dragged him, with the consequences shown in photographs P1-5.

Paragraph 6 of the Statement of Claim states that the 1st Defendant started the beating when 'Aisea Sime was taken to the prison, which contradicted the evidence of 'Aisea that he was still outside and witnessed the beating.

The Plaintiff also said that after the 1st Defendant punched him on the nose he then kept punching him on the head and dragged him inside, but did not mention being kicked by the 1st Defendant (as alleged in Para 7 of the Statement of Claim) nor of falling down. It was submitted for the Plaintiff that that was corroborated by the evidence of ‘Aisea that he saw him lying on the floor and the 1st Defendant kicked him twice and dragged him, but I found that contradicted the Plaintiff’s evidence and did not support it.

PC Katoa and PC Langi (who was the officer who received complaints that night and also recorded details in the Station Diary, as exhibited in Court as Defence Exhibit 1) said in evidence that the Plaintiff could not stand up properly when he arrived at Mu’a Police Station and he was being held up by the 1st Defendant holding his shoulder. PC Katoa said that he first led 'Aisea Sime and at no point of time did he hear or see the 1st Defendant beating the Plaintiff, the only sound he recalled hearing from behind him was that of the van door being shut. It was his evidence that it was only he and the 1st Defendant who went to the complaint at Lavengatonga and they were the only ones on arrival at Mu'a Police Station who led ‘Aisea and the Plaintiff to the Police Station.

There was also evidence from PC Langi that PC Katoa first entered the Police office with 'Aisea Sime and less than a minute afterwards the 1st Defendant entered with the Plaintiff and he observed that the Plaintiff had injuries to his nose, mouth and eyes. He did not think the injuries were serious enough to be referred to hospital. He had not heard any noises from outside of any beating or any shortage of breath or gasping from the Plaintiff when he appeared in the office. He was the one who noted down in the Station Diary the names and addresses of ‘Aisea and the Plaintiff. They were then searched by PC 'Alani Tonga before they were taken to the cell.

PC Langi was cross-examined as to whether he would know if the Plaintiff was beaten on arrival, but he had no knowledge of that because he was inside the office. In relation to why the Plaintiff was not taken to hospital for his injuries, PC Langi said that he saw that the injuries were not serious, and I accepted that at that point the Plaintiff’s injuries would not appear so serious as to need hospital treatment.

It was submitted for the Plaintiff that it would have been very unreasonable for Insp Lutua as a Prosecutor and Police Inspector to take an injured person and retain him in Police custody overnight, so that the evidence of Insp Lutua about the injuries to the Plaintiff inflicted by him (including the fracture to the Plaintiff’s nose, its bleeding and the swollen left eye) was not reliable. As stated above, as I accepted that at that point the Plaintiff’s injuries would not appear so serious as to need hospital treatment, I was unable to accept that submission.

There was also evidence from 3 prisoners who had been in Cell No 1 that night, Fakatakatu Tu’ifua, Taleni Kefu and Tinitale Sili, who had been put into the cell that afternoon for alleged stealing of pigs. They all stated that at the time they were put into the cell they were drunk but by 11 pm or thereabouts they had sobered up. They all gave evidence to the effect that the Plaintiff and ‘Aisea were brought in quite late at night and Taleni Kefu said in evidence that he recognised the Plaintiff because he used to see him in their village of Lapaha. They noticed there were injuries to the Plaintiff's face, but at no time did they hear the Plaintiff or 'Aisea call out or make noises. According to their evidence, shortly after the Plaintiff and ‘Aisea were put into Cell No 2, they could hear no noise and assumed they were asleep.

It was submitted for the Plaintiff that he could not stand properly because he was punched by the 1st Defendant prior to their arrival at the office where PC Langi was, and blood was bleeding and his left eye was swollen. I was unable to accept the submission for the Plaintiff that it followed that he was punched and due to the injuries to him he could not walk properly, which did not necessarily follow, as the overwhelming evidence was that the Plaintiff was very drunk that night, which I found was the reason why he could not walk properly.

It was also submitted for the Plaintiff that the evidence of PC Katoa contradicted the evidence of ‘Aisea and the Plaintiff; and that there was no evidence to corroborate the evidence of PC Katoa, but it corroborated the evidence of PC Langi that the Plaintiff could not stand properly, which it was submitted confirmed that there was an injury to the Plaintiff which had just been inflicted on him and also bleeding as stated by PC Langi – but I was unable to accept those submissions.

In Paragraph 8 of the Statement of Claim it was stated that ‘Aisea was inside the prison and heard the bang and loud noises of the assault of the Plaintiff by the 1st Defendant, but that was contradicted by the evidence of ‘Aisea that he was led by PC Katoa and saw the assault of the Plaintiff while lying on the floor. It was also contradicted by the evidence (which I accepted) given by the 3 prisoners in Cell No 1, who saw both men brought in at the same time to Cell No 2. The Plaintiff thus failed to prove that paragraph in the Statement of Claim.

In general in respect of the events when the Plaintiff arrived at Mu’a Police Station, I preferred the evidence for the Defendants to the evidence for the Plaintiff. Taking into account the unreliability of the evidence of the Plaintiff and his witness ‘Aisea, I thus found that the Plaintiff had failed to establish that the injuries of which he complained were inflicted by the 1st Defendant or at Mu’a Police Station. While the abrasions on the Plaintiff’s back may have been consistent with him being dragged along at the Police Station, there was also evidence, which I preferred, that they could have been incurred at Lavengatonga.

The Plaintiff said in examination-in-chief that he had brought charges against the 1st Defendant for assault in the Magistrates’ Court and he had been found guilty and he had to pay $60, but there was no documentary evidence to substantiate that and in cross-examination he said that was the present case. In any event, given the general unreliability of the Plaintiff’s evidence, I was unable to accept his evidence about that.

Face washing

It was undisputed that the Plaintiff and ‘Aisea had blood on their faces and that the Plaintiff had blood on his T-shirt; and that the following morning (as stated in Para 10 of the Statement of Claim) the 1st Defendant told them that they were to wash their faces and the Plaintiff was to wash his shirt. 'Aisea said that he also washed his shirt, even though he was not asked to by the 1st Defendant.

PC Langi confirmed that in evidence, but said that it was not usual procedure to tell prisoners to go and wash their faces, but in this instance he did not consider it unusual because the 1st Defendant told him that the Plaintiff was a member of his family and he was talking with the Plaintiff on that morning. The Plaintiff himself said in examination-in-chief that the 1st Defendant did not talk about his injuries and the only thing he talked about was that the Plaintiff should stop drinking and concentrate on his family, as he was already married – which appeared appropriate advice for the Plaintiff.

It was submitted for the Plaintiff that the reason why the 1st Defendant directed the Plaintiff and ‘Aisea to wash their faces and also their clothes was to disguise the blood stains, but I was unable to draw from that evidence an inference that the 1st Defendant did so because he had assaulted the Plaintiff, as the 1st Defendant’s action could equally be ascribed to a wish to make them recover from their undoubted hangovers and smarten up.

Conclusions

On the evidence I had no doubt at all on the balance of probabilities that both the Plaintiff and his cousin ‘Aisea were very drunk that night. Therefore I was unable to accept their evidence as completely reliable, in particular their evidence about the Plaintiff’s injuries and his being kicked at Mu’a Police Station by the 1st Defendant. They contradicted each other and their evidence did not correspond with the actual injuries of the Plaintiff.

I accepted the submission for the Defendants that:

"The plaintiff has the burden of proving both the fact and the amount of damage before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss."

McGregor on Damages (15th ed 1988) para 1779

This passage underlines the legal position that it is for a plaintiff to establish his case – and a plaintiff cannot expect a defendant to cooperate and give evidence to assist the plaintiff’s case. So while it is surprising that the 1st Defendant was not present at the trial, the Plaintiff cannot complain about that: he was clearly very drunk on the night in question, so the evidence of him and his witnesses could not be considered reliable and he therefore failed to establish his case.

Accordingly I found that on the balance of probabilities it was not established that the Plaintiff was kicked by the 1st Defendant, which thus cast doubt on their evidence about the Plaintiff being punched by the 1st Defendant, especially as there was credible and reliable evidence about how the Plaintiff did get his injuries.

I did not consider that the evidence about the 1st Defendant telling the Plaintiff and ‘Aisea to wash their faces and clothing assisted one way or the other.

So I found that it was not established on the evidence on the balance of probabilities that the 1st Defendant, PC Sione Inukiha’angana, assaulted the Plaintiff, Tonga Kalapa, on 30 March 2002 while in Police custody at Mu’a Police Station. The 2nd Defendant thus did not incur any vicarious liability in respect of the 1st Defendant’s actions.

The Plaintiff’s claim therefore failed and is dismissed.

While the evidence did show that the Plaintiff was assaulted in a fight at Lavengatonga by another Police officer, Inspector Lutua (now Chief Inspector), this was not a claim against Insp Lutua, although it might be said that his actions went beyond what was reasonable force in self-defence and/or effecting an arrest, albeit not started by him. But as that was not alleged in this claim, I cannot make any award against him or the 2nd Defendant the Kingdom of Tonga in relation to the events at Lavengatonga.

Costs

I therefore award the Defendants costs (as agreed or taxed) against the Plaintiff.

DATED: 13 October 2005

Chief Justice