Taulanga v Kama [2005] TOSC 32; CV 690 2003 (29 April 2005)

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

CV 690/2003

BETWEEN:

MISS FINAU TAULANGA
PLAINTIFF

AND:

1. PC NIUA KAMA
2. MINISTRY OF POLICE
3. KINGDOM OF TONGA
DEFENDANTS

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 26, 27, 28 & 29 April 2005

Counsel:
Plaintiff: Mr Teisina Fifita
Defendants: Ms Linda Simiki

RESERVED DECISION GIVEN ON 5 JANUARY 2006

Preliminary

The Plaintiff Miss Finau Taulanga of Pea claims for false imprisonment arising out of her alleged arrest by the 1st Defendant, PC Niua Kama, on 3 different occasions on 18 & 25 June & 27 July 2002 (although she gave different dates for all 3 occasions), when she was aged around 16. The claims arose from what the Plaintiff said were 3 different arrests arising from the same complaint by her near neighbour Miss Haitelenisia Hoko, who was then aged around 18. The Plaintiff said that all 3 arrests were made without telling her the reason for the arrest at the time of arrest, and she was not taken before a Magistrate during the 3 arrests. She said that at all 3 incidents she was not given a choice whether to go to the Police Station or not, but said she submitted to the authority of the Defendants.

The Plaintiff claimed that the actions of the 1st Defendant were oppressive, arbitrary, and unconstitutional; that she suffered damages (including damages to her reputation) and at material times suffered fear, emotional distress, inconvenience and homesickness. She claimed for damages of $8,500 for unlawful imprisonment including fear, distress, homesickness, inconvenience and harassment; $2,000 for aggravated damages; $500 for assault and unlawful break-in to the house; $1,000 for reputation; and $8,000 for exemplary damages.

The Defendants denied those claims and said that what the 1st Defendant did was lawful as in these instances the Plaintiff was not arrested on the first 2 occasions because the 1st Defendant was still in the process of investigating the case, but was lawfully arrested and charged on the third occasion.

Evidence and submissions

The Plaintiff gave evidence herself; and led evidence from her mother Mrs ‘Ana Taulanga, Pea; and her sisters Mrs Losana Fifita, Kolofo’ou and Miss Tae Taulanga, Pea.

The Defendants led evidence from PC Ualosi Kailea; the 1st Defendant PC Niua Kama; Ms Haitelenisia Hoko, Pea; Inspector Soane Vaka’uta; PC Siaosi Tu’ivailala; and Det Sgt Lolesio Hausia. The Defendants also produced one exhibit, the Investigation Diary.

After the evidence had been heard over 4 days written submissions were made for both sides in support of their cases. These were received by the Court on 9 and 16 May respectively.

I regret that I found that the Plaintiff and her sister Tae were not entirely credible nor reliable witnesses in giving evidence; and they had admitted to the Police that they had made up the original story about Haitelenisia Hoko, which caused all these incidents. In addition to their evidence being very confused about dates and incidents, so that the whole sequence of events was difficult to get clear, in evidence the Plaintiff admitted lying to the Police about her sister being at Longolongo on the third occasion. Their evidence also contradicted each other and the evidence of their mother Mrs Taulanga, whose evidence and that of their sister Mrs Losana Fifita I accepted as generally credible and reliable.

I also accepted the evidence of the Defendants’ witnesses as generally credible and reliable, so that where there was a conflict of evidence between the Plaintiff and her sister Tae and the evidence for the Defendants I preferred the evidence for the Defendants.

Relevant law

I must begin by stating once again that in a civil claim the legal position is that it is for a plaintiff to establish his or her case on the balance of probabilities, which in turn depends on credible and reliable evidence to establish the essential facts of the claim:

"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

Any counsel for a plaintiff must take that as the starting point in a civil claim.

Police duties

The Police Act (Cap 35) in section 20(e),(f)&(g) states:

"Every police officer shall –

....

(e) prevent the commission of offences and public nuisance;

(f) detect offenders and bring them to justice;

(g) apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exits.”

It is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime and for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice. (Rice v Connolly [1966] 2 All ER 649,651 (DC); Halsbury’s Laws (4th Ed reissue) Vol 11(1), para 320 n3))

Although it is the general duty of the Police to obtain all possible information regarding criminal offences which have been committed, they have in general no power to compel any person to disclose facts within his or her knowledge or to answer questions put to him or her: Halsbury’s Laws (4th Ed reissue) Vol 11(1) para 692; (4th Ed) Vol 36, para 320.

However a constable is himself subject to the law and whether or not the conduct of a constable is inconsistent with his acting in the execution of his duty is very much a matter of degree: eg, touching a person on the shoulder for the purpose of attracting his attention may be an assault in law, but such a trivial interference with a citizen’s liberty would not be sufficient to take a constable out of the course of his duties: Donnelly v Jackman [1970] 1 All ER 987 (QBD); Ludlow v Burgess [1971] Crim LR 283, 75 Cr App Rep 227 (DC); Halsbury’s Laws (4th Ed) Vol 36, para 320.

The cardinal principle is that which is officially done must be accordance with the law: Arthur Yates & Co (Property) Ltd v Vegetable Seeds Committee [1945] HCA 55; (1975) 72 CLR 37,66 per Sir John Latham CJ. A constable who detains a person against his will without arresting him is acting outside the course of his duty: Ludlow v Burgess; Halsbury’s Laws (4th Ed reissue) Vol 11(1), para 320 n3).

For completeness I also mention again what I set out in R v Vaiangina [1990] Tonga LR 118,119:

“When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. This is so whether or not the person has been taken into custody.

All citizens have a duty to help police officers to discover and catch criminals.

But apart from arresting him, the police cannot compel any person against his will to come to or remain in a police station.”

What amounts to arrest

I have previously set out the law about arrests in Fainga’a v Lelea [2005] TOSC 6 (CV 38/03, 6.1.05). In law arrest consists in the seizure or touching of a person’s body with a view to his or her restraint; words may however amount to arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person’s notice that he or she is under compulsion and he or she thereafter submits to the compulsion: Alderson v Booth [1969] 2 All ER 271 (DC). In 2 of the classic statements of the law, in Shaaban bin Hussien v Chong Fook Kam [I969] 3 All ER 1626,1629 (PC), Lord Devlin said in the Privy Council in London:

“An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when, by words or conduct, he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.”

and in Spicer v Holt [1976] 3 All ER 71,79 (HL), Viscount Dilhorne said:

“'Arrest’ is an ordinary English word. ... Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases.”

Whether on the facts of a particular case it has been made clear to a person that he or she is under arrest is a matter of fact: R v Inwood [1973] 2 All ER 645 (CA); (Halsbury’s Laws (4th Ed) Vol 11(1) para 693.

False imprisonment

A false imprisonment is a complete deprivation of liberty for any time, however short, without lawful cause: Clerk & Lindsell on Torts (16th Ed) paras 17-15.

But an initially lawful arrest does not become unlawful if the arresting person relents or matters are not taken further: Clerk & Lindsell on Torts (16th Ed) para 17-42; Dallison v Caffrey [1964] 2 All ER 610,616,618 (CA).

Assault and battery

The law draws a distinction between an assault and a battery, both forms of trespass to the person. Battery is the intentional and direct application of force to another person. Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on her or him by the defendant: Winfield & Jolowicz on Tort (12th Ed) p 54. But a necessary ingredient of the tort of trespass to the person is hostility: Wilson v Pringle [1986] EWCA Civ 6; [1986] 2 All ER 440,444-6 (CA).

The least touching of another in anger is battery (Clerk & Lindsell on Torts (16th Ed) para 17-03), but not every deliberate touching of another constitutes battery and the “touching must be proved to be a hostile touching” (Wilson v Pringle) (para 17-04).

The law draws a broad exception to allow for the exigencies of everyday life, and among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his or her attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose: Collins v Wilcock [1984] 3 All ER 374,378 (DC), referred to in Wilson v Pringle. The test is essentially whether a particular type of contact exceeds that degree or type of physical contact “generally acceptable in everyday life”: Collins v Wilcock. The contact must be offensive outside the accepted usages of daily life: Fleming on The Law of Torts (7th Ed) p 23.

Trespass to land and nuisance

The criminal offence of house-breaking is not applicable in civil law and the Plaintiff would have to establish a trespass to land or a nuisance, neither of which were pleaded.

While the tort of trespass to land (meaning an unjustifiable interference with the possession of land) can occur in many ways, it is clear from the authorities that it normally deals with physical entry by setting foot on the land and that pointless litigation which could yield only nominal damages is discouraged. (Clerk & Lindsell para 23-01 etc; Halsbury’s Laws (4th Ed) Vol 45 para 1384; Winfield & Jolowicz p 359-60; Fleming p 36-8) Damage must be proved in nuisance: Clerk & Lindsell para 23-06.

Grounds of decision

General

I believe that the translation of Entry No 10 on 18.6.02 from the Investigation Diary [Defence Exhibit 1], where the Plaintiff and her sister were referred to as Finau and Tae Nikua, gives a picture of the circumstances which were the background to this claim:

“PC Kama went to Pea and took Tapenisa Pola's statement and brought Tae Nikua and Finau Nikua [the Plaintiff and her sister] to take down their statements. To my understanding about this complaint there is a rift between Tapenisa Pola and the household of Haitelenisia and it was spoken by Tapenisa that her husband Tevita, a minister of Tonga Hou'eiki Church of Pea, had an affair with the mother of Tenisia, Melaia Hoko and Tevita was expelled from being a Minister at Pea. The statement by Tae and Finau Nikua shows that it was them that told the story and found out by Tapenisa. It was said by Tae and Finau that Tenisia went over one day in 1999 and there was a red mark on her neck like love bites and they made jokes about it ever since then. Tae and Finau also said that Telenisia herself told them that one night she was asleep at her house and her uncle Manulea Moala happened to come by and caressed her stomach. There then was a rift between Tapenisa and Tenisia's mother and Tapenisa talked with Tae and Finau and Tae and Finau explained this story to Tapenisa. Tapenisa then told this story to Telenisia on Sunday the 5 of May 2002 during the feast of a wedding held at Longolongo [between the Plaintiff’s sister Losana and her Counsel Mr Teisina Fifita] and Telenisia was upset by it so she came and complained. The IO [Investigating Officer] again conversed with Haitelenisia about the story told by Tae and Finau about her uncle and she was very upset and came and complained. The IO talked again with Telenisia about the story that Tae and Finau told about her uncle and she denied it, that she did not tell such a story Tae and Finau but about the red mark on her neck she said yes it is true her neck was red but it was red because she was playing with her younger sister.”

From the evidence it was not disputed that Miss Haitelenisia Hoko of Pea made a complaint to the Police on 9 May 2002 about another lady Tapenisa Pola who told her some allegedly defamatory comments conveyed to her by the Plaintiff Finau Taulanga (who became 16 on 25 July 2002) and her younger sister Tae (who was then aged around 15, but had stopped attending school).

The 1st Defendant PC Niua Kama was the Police officer who took over task of investigating the case from PC 422 Kailea around 6 June 2002.

The 1st Defendant saw the Plaintiff on 3 different occasions in relation to the investigation of this matter, on 18 and 25 June and 27 July 2002.

The first incident

The Plaintiff claimed that the 1st Defendant went to her house at Pea on Monday 10 June 2002 and arrested her and her younger sister Tae (who was 15 at the time) and took them to the Central Police Station, Nuku'alofa [CPS], but the Investigation Diary [Defence Exhibit 1], which I accepted as being an accurate record on this point, showed that the date was 18 June 2002. The Plaintiff said that the 1st Defendant was accompanied by another officer (Sgt Hausia) who took no part in her alleged the arrest. She said the arrest was made on or about 2000 hours that evening.

The Plaintiff claimed that her friends knew about that night time arrest and it was very shameful, but there was no evidence from any of her friends about that.

The Plaintiff claimed that she was interrogated by the 1st Defendant at the CPS and was returned home at about 2150 hours the same night. She said that at the arrest she was not told the reason for her arrest, but at the CPS the 1st Defendant told her that she was arrested for defamation of Haitelenisia Hoko. She said she was not asked whether she wanted the assistance of a lawyer or a family member; that she was imprisoned for approximately 2 hours; and that her arrest, detention, and interrogation amounted to false imprisonment, from which she suffered damages. The Plaintiff also said in evidence that she was ill-treated by the Police, but that that was because she was being spoken to angrily.

The 1st Defendant said that he was informed by the complainant, Haitelenisia Hoko, that the Plaintiff and her sister Tae were the people that had started the defamatory remarks, so he approached the Plaintiff and her sister to ask questions about the complaint. The 1st Defendant said it was normal procedure to take in witnesses to the Police Station: while Sgt Hausia said that witnesses can give their statements at the Police Station or at their homes, there are no hard and fast rules as to where statements by witnesses are taken, which I accepted.

The 1st Defendant, whose evidence I accepted on this point, said that, on the first occasion he went to the Plaintiff's house, he asked at the house for the Plaintiff and her sister and they said ‘Here we are’. He said that he told the Plaintiff and her sister the reason why he was there - because of a complaint lodged by Haitelenisia - and that he needed to take statements from them about the complaint. Although the Plaintiff denied that the 1st Defendant told her the reason why she was required to take a statement until they got to the CPS, her sister Tae said in evidence that she knew that the reason why they were taken to the Police Station was due to the complaint made by Haitelenisia, so I was unable to accept the Plaintiff’s evidence on this point.

The 1st Defendant said in evidence, which again I accepted, that the Plaintiff and her sister were not arrested at the first incident as they were not suspects, they were witnesses in his investigation and he needed to get statements against the complaint made. The Plaintiff and her sister had consented to his request.

The Plaintiff also said in evidence that she was told at the CPS that she would get a witness subpoena to give evidence in court, which was inconsistent with her being arrested as a suspect. In due course she was subpoenaed and gave evidence at the trial in the Magistrates’ Court of Tapenisa Pola.

The Plaintiff said that at the time of the first incident on 18 June her mother was not allowed to accompany her to the Police Station, but I found that she was confused on this point, as her mother was only present on one occasion, the second incident, and had not known that the Plaintiff and her sister Tae had been to the CPS on the first occasion. The 1st Defendant said in evidence, which I accepted, that the Plaintiff had told him that they wanted to wait for their mother, but he told them to come along because there were 2 of them and that they would return them once the work was complete. It was then that the girls agreed and went with the 1st Defendant and Sgt Hausia. In reality, they did not tell their mother about the first incident until just before the hearing of this case.

In relation to the first incident I thus accepted that the Plaintiff and her sister at that stage were not formally suspects in the complaint by Haitelenisia Hoko, as the complaint was made against Tapenisa Pola, so the 1st Defendant had no intention to arrest them at that time, as he viewed them as witnesses and not suspects, as he said in evidence. Against that background in terms of the evidence of what happened there was no arrest, and the Plaintiff was not seized, touched or restrained and the 1st Defendant had clearly asked her and her sister if they could come with him for him to take statements in relation to the complaint made. I therefore found on the balance of probabilities that the Plaintiff was not arrested on the occasion of the first incident.

The Plaintiff’s request for her mother to be present was not a sign of refusal to go, but, as submitted for the Defendants, when the 1st Defendant said that there were 2 of them and they would be returned, that was not compulsion but was a further request to which the Plaintiff and her sister agreed.

In addition to not finding that the first incident amounted to an arrest, I was unable to characterise the purpose of taking the Plaintiff and her sister into the CPS as interrogation, so I did not accept the submission for the Plaintiff that it was for the purpose of interrogation, not for a legal purpose, ie to take her before a Magistrate as an arresting officer.

As stated above, false imprisonment is complete deprivation of liberty for any time, however short, without lawful cause. As I found that the Plaintiff was not arrested at the first incident and thus she was not completely deprived of her liberty, I therefore found on the balance of probabilities that her claim of false imprisonment in relation to the first incident was not established. In addition, the 1st Defendant had lawful cause to take her to the CPS, ie to interview her as a witness in relation to Haitelenisia’s complaint.

The second incident

The circumstances of the second incident were narrated in Entry 11 of 25.6.02 in the Investigation Diary:

“PC Kama brought in [or arrested] Tae and Finau Nikua and the complainant so that they can talk about this complaint because it has reached a stage where this case is very complicated due to the unreliability of Tae's and Finau's statements and it is contrary to Haitelenisia's statement. Tae and Finau were further questioned about their story of Manulea Moala stroking Haitelenisia's stomach. It was then understood that their first statement was not true when they said that Telenisia told them that Manulea stroked her stomach. They both explained that they were just making up this story about Manulea and Telenisia due to them being upset with Melaia mother of Telenisia due to Tapenisa Pola telling them that Melaia gossiped about Tae and Finau's mother saying she is a whore.”

In relation to the second visit to the Plaintiff's house, the 1st Defendant said that due to some differences in the statements made by the complainant and the Plaintiff he decided to get all parties involved in the matter to give further statements. This resulted in the 1st Defendant going again with Sgt Hausia to the Plaintiff's house and the complainant's house to pick them up. The 1st Defendant said in evidence that when he arrived at the house the Plaintiff’s mother was there and he approached her and informed her of the reason why he was there and that he needed to take the girls in for statements in relation to the complaint by Haitelenisia. That was confirmed in evidence by the Plaintiff’s mother Mrs ‘Ana Taulanga, who said that when the 1st Defendant informed her of the reason of why they wanted her girls she agreed. She said in evidence that she had asked the Police if she could come too but was informed that the car was full, but she agreed that she did not take any other steps to follow the girls, even though she had a car at her house which she could have asked neighbours to drive for her when she needed to be taken somewhere. I accepted that the inference was that this was not an occasion which she felt was important enough to take that option.

The Plaintiff claimed in her Statement of Claim that on or about 1300 hours on 20 June 2002 (again that date was wrong) the 1st Defendant came to her house to arrest her and her sister. She said that she was lying on a couch in the house and the 1st Defendant without saying any word reached in from outside and pulled her hair very suddenly and in a hard way, which I did not accept. The Plaintiff said that the 1st Defendant, in reaching from outside her house with the intention of pulling her hair, and in fact pulling it (which she said was an assault on her), was an act of house breaking.

The Plaintiff, her sister Tae and the 1st Defendant all accepted in evidence that on the second occasion, the 1st Defendant on arrival at the house went to the living room window and saw Tae and asked where was the Plaintiff and was told that she was sleeping on the sofa near the window. The 1st Defendant said in evidence that because that was his second visit, he asked Tae twice to wake up the Plaintiff but she did not, so according to him he playfully tugged at the Plaintiff's hair which woke her up and she said to him ‘Why do you always come here?’ He said he did it as a joke in a playful manner. The Plaintiff said in evidence that the pull hurt her, but there was no independent evidence to show that her reaction to the pull at the time it was carried out was that of agony or pain and I could not accept the Plaintiff’s evidence on that matter.

The Plaintiff said she was surprised and stood up and the 1st Defendant told her to go with him to the CPS. She did not want to go and said she told the 1st Defendant that she would not go as her mother was not at home, but the 1st Defendant told her and her sister just to get into the car and go with him to the CPS. The Plaintiff said they then went to the CPS without her knowing the reason for the alleged arrest, but again I was unable to accept that, especially as it occurred just a week after the first incident.

I accepted that the 1st Defendant told the Plaintiff why they were there again, when her mother walked from the neighbour and the 1st Defendant also told her about wanting to take the girls to the Police Station to take down statements about the complaint and she agreed.

Mrs Taulanga said in evidence that she was never informed of any complaint against the Police for any wrong work they had done from her daughters, and that it was not until the day before she gave evidence that she found out. I accepted the submission for the Defendants that if that issue of pulling of her hair had been so important to the Plaintiff she would have told her mother the same day it happened, not 2½ years later, at the start of the trial.

The Plaintiff said in evidence that she did not know that the 1st Defendant had spoken to her mother on the second occasion, but that contradicted the evidence of her mother that she had told them why the 1st Defendant was there on the second occasion, and I preferred the evidence of her mother.

The Plaintiff gave conflicting evidence on whether she had had a conversation with the 1st Defendant in the interval since the first incident, but in cross-examination admitted that she had, which I accepted.

The Plaintiff said that in the CPS the 1st Defendant told her to go upstairs to record a statement relating to a defamation complaint by Haitelenisia Hoko and he asked her why she was lying in matters relating to Haitelenisia. She told him that what she recorded before was the truth, but he angrily said to her "You are lying". She said that the 1st Defendant also told her that she forced her sister to lie. The 1st Defendant then recorded the complainant's statement. After recording the complainant's statement the 1st Defendant recorded the Plaintiff’s statement.

However the Plaintiff herself in evidence accepted that at the CPS there had been a reconciliation between the parties (as her sister, the 1st Defendant and Sgt Hausia also said in evidence), as she and her sister informed the Police that they had made up the story about the complainant. The Plaintiff also admitted that there had been tears and she and her sister had apologised to Haitelenisia. The 1st Defendant then drove them home, about 1600 hours the same day. Again the Plaintiff said she was told she would be given a witness subpoena.

The Plaintiff claimed that she was full of fear and insecure, as she was taken with her younger sister, that she was adolescent and that she lost her self esteem and dignity, as it was shameful when her peers found out that she was taken by the Police twice to the CPS for defamation, but there was no independent evidence of that and I did not accept it.

In relation to the second incident I accepted that the Plaintiff and her sister at that stage were still not formally suspects in the complaint by Haitelenisia Hoko, and that the 1st Defendant’s intention was to get all parties involved in the matter to give further statements, as he obviously needed to clarify this complicated matter. Then after recording the complainant's statement he recorded the Plaintiff’s statement. After that had been done, the Plaintiff accepted that the 1st Defendant drove them home, and there was no evidence that they had been charged on that occasion.

It was submitted for the Defendants that because in these 2 instances there were not arrests, it therefore followed that the Plaintiff was not imprisoned and that the Plaintiff's presence at the Central Police Station was voluntary due to the fact that she and her sister consented to it at the first instance and the Plaintiff’s mother consented in the second instance. I accepted that submission.

Indeed the 1st Defendant said he thought the matter would end there, but that had not been the case, as the complainant said in evidence that the problem still continued and she contacted the 1st Defendant and complained again that the Plaintiff was still spreading around defamatory comments about her.

Again, against that background, at the second incident there was no arrest in terms of the evidence of what happened, as the Plaintiff was again not seized, touched or restrained. On the second occasion the evidence showed that the 1st Defendant had informed the Plaintiff’s mother of the reason why he wanted her girls to go with the Police and she had agreed. I therefore found on the balance of probabilities that the Plaintiff was again not arrested on the occasion of the second incident.

Once more, in addition to not finding that the second incident amounted to an arrest, I was unable to characterise the purpose of taking the Plaintiff and her sister into the CPS as interrogation, nor to make her admit that she had made up the defamatory statement, even although as events turned out at the CPS, having made the admission she was told to apologise to Haitelenisia, which she did. So again I did not accept the submission for the Plaintiff that it was for the purpose of interrogation or forcing an admission from her, not for a legal purpose, ie to take her before a Magistrate as an arresting officer.

It was submitted for the Plaintiff that the Defendants’ Investigation Diary [Defence Exhibit 1] at No 11 on 25 June used the Tongan word “puke”, which properly means “arrest”, rather than “brought in” as in the English translation of that entry tendered by the Defendants; and that that contrasted to No 10 on 18 June, which used the Tongan word “'omai”, which correctly means “brought in”. I accepted all that, and that Entry No 11 recorded the Plaintiff as having been arrested, however that was only 1 element in all the other evidence of what happened, and against all that other evidence I did not find No 11 conclusive in establishing that the Plaintiff was arrested on that occasion, as the overwhelming evidence was that at that stage she was still being regarded as a witness and not a suspect.

As I found that the Plaintiff was not arrested at the second incident, thus again she was not completely deprived of her liberty, and again I therefore found on the balance of probabilities that her claim of false imprisonment in relation to the second incident was not established. In addition, once more the 1st Defendant had lawful cause to take her to the CPS, ie to interview her again as a witness in relation to Haitelenisia’s complaint for some much-needed clarification.

In relation to the incident when the 1st Defendant put his hand through the louvres and pulled the Plaintiff’s hair, she also claimed damages for assault and house-breaking. It is important that in a civil case these have to be judged according to the civil law of torts, not the criminal law.

In relation to the claim of assault, it is clear that what was being claimed by the Plaintiff was battery rather than assault, as the 1st Defendant actually touched her and there was no evidence that she was caused reasonable apprehension of the infliction of a battery on her. Battery was not pleaded. But in any event the Plaintiff failed to establish on the balance of probabilities the necessary element of hostility by the 1st Defendant, who I accepted pulled her hair playfully, and in addition it was not established that the particular type of contact was offensive outside the accepted usages of everyday life. It may have been a trivial interference with the Plaintiff’s liberty, but that did not take it outside the course of the 1st Defendant’s duty.

In relation to the alleged house-breaking, as mentioned the criminal offence of house-breaking is not applicable in civil law and the Plaintiff would have to establish a trespass to land or a nuisance, neither of which were pleaded. It was clear from the evidence that the 1st Defendant did not set foot inside the house and this was another trivial aspect of the incident. I did not find on the balance of probabilities that it amounted to trespass to land or nuisance, and further no damage to the Plaintiff was established.

The third incident

The circumstances of the third incident were narrated in Entries 12 & 13 of 27.7.02 in the Investigation Diary:

“PC Tu'ivailala, PC Kama arrested Finau Nikua in order to complete the work.

PC Kama released Finau Nikua on the completion of the R/lnterview, charge, confess and fingerprinting and summons will be later served because the PI booklet is busy and plus Finau has a tooth ache and she can't stand the pain she will go to the hospital and her summons can be given later.”

In the Statement of Claim the Plaintiff said that on or about 21 August 2003 (again an incorrect date) at 0900 Hrs the 1st Defendant arrested her at Vaha'akolo Road, Kolofo'ou, Nuku'alofa on her way back from the store. She said that she did not want to go to the CPS; and that she asked the 1st Defendant that she wanted to stop at her elder sister's house (where she was residing at the time) so that her elder sister Losana Fifita would know where she was, but the 1st Defendant disagreed and said they would go straight to the CPS. The Plaintiff said that from fear of being taken to the CPS she told the 1st Defendant that her younger sister (who she said was also sought to be arrested for the same offence) was at Losana's house: the 1st Defendant had then agreed and stopped there. The Plaintiff admitted in evidence that she lied in saying that, but said she was being “enslaved” by the 1st Defendant’s arrests (which in the circumstances I did not accept).

The Plaintiff said that she ran into the house and told her sister Losana that she did not want to go to the CPS, as the 1st Defendant seemed to enjoy arresting her and he would do that until she said she committed the crime that she did not. She said that Losana came to the lounge and saw the 1st Defendant reaching to the curtain and he moved it aside, peeping into the house. Losana asked the 1st Defendant what he was doing peeping into the house, and also asked him to wait for Mr Teisina Fifita, who would be home soon to help the Plaintiff.

The Plaintiff claimed that the 1st Defendant said he was arresting her and his job was to take away anyone arrested, without any referral to anyone or listening to anyone. She claimed that the 1st Defendant said he was not waiting for that “eat shit” Teisina. She said that on that occasion the 1st Defendant was accompanied by another Police officer who played no part in the arrest and seemed to dislike the 1st Defendant's action.

She said that Losana finally accompanied her with the 1st Defendant and the other officer to the CPS, where the 1st Defendant recorded her same statement again. She said that she was returned to Losana's house at about 1200 hrs.

The Plaintiff claimed she felt that if the 1st Defendant pressed her one more time (by means of arrest) she could not stand the pressure and she would tell the 1st Defendant what he wanted her to tell him, just to avoid being arrested again. She said he did not want her to be assisted by a lawyer.

The Plaintiff claimed that this arrest also was unlawful and amounted to false imprisonment. She said that again the 1st Defendant's action was arbitrary, oppressive, and unconstitutional; and she suffered damages and inconvenience, fear, and homesickness. She claimed that she was entitled to aggravated and exemplary damages.

I regret that I was able to accept only part of the Plaintiff’s narration of the third incident and found that it occurred about a month later, on 27 July. I found that the 1st Defendant met the Plaintiff on Vaha'akolo Road in Nuku’alofa, which was the only time he carried out an arrest of the Plaintiff, as another complaint had been laid by the complainant with the 1st Defendant. This time the 1st Defendant was with another Police Officer, PC Tu'ivailala. The 1st Defendant and PC Tu'ivailala said in evidence that the 1st Defendant arrested the Plaintiff on the offence of defamation against the complainant Haitelenisia Hoko. It was the intention of the 1st Defendant to take the Plaintiff straight to the Police Station, but the Plaintiff asked the 1st Defendant to stop at her brother-in-law Teisina Fifita's house to get her sister Tae, which the 1st Defendant did.

When the Plaintiff was slow in returning the 1st Defendant went to Mr Fifita’s house to get her. There was a conflict in evidence as to whether the 1st Defendant touched the curtain of the house or not, according to the Plaintiff and Losana Fifita he did, but according to the 1st Defendant he was just outside on the verandah and looked into the house and saw the Plaintiff and Losana. The Plaintiff and her witnesses said that the 1st Defendant went into the garage which was part of the house, put in his hand and moved the curtain then finally swore at the place. According to the 1st Defendant there was some disagreement between himself and Losana as to his taking the Plaintiff to the Police Station and he explained to Losana that there was a complaint against the Plaintiff. However as I found that the Plaintiff was lawfully arrested that issue was not material in the case.

The 1st Defendant strongly denied that he had sworn at or about Mr Teisina Fifita, Losana's husband, which both the Plaintiff and Losana claimed he had done, but again this is a case by the Plaintiff Finau Taulanga and not by Mr Teisina Fifita, so that issue is not relevant in this case.

The 1st Defendant then allowed Losana to accompany the Plaintiff, which it was submitted for the Defendants was an act by him which portrayed humane consideration of the Plaintiff. I accepted that the 1st Defendant explained to Losana the previous 2 incidents in which the Plaintiff was taken in to make statements and this time she was to be charged; and that it was the 1st Defendant who suggested that Losana should accompany her sister to the CPS.

As stated in evidence by the Plaintiff, Losana and the 1st Defendant, on their way to the CPS they met Mr Teisina Fifita. It was not disputed that they stopped when they met him and the 1st Defendant got out and explained the situation to Mr Fifita, in that they were going with the Plaintiff to the CPS due to complaints against her by Haitelenisia, and Mr Fifita agreed. It was also not disputed that at that point Losana also left the Police vehicle and went with her husband.

It was submitted for the Defendants that it was clear from that evidence that at that point the Plaintiff’s sister Losana, and her husband and lawyer Mr Teisina Fifita, did not care much about her welfare or protection against the Police, as they both allowed the Police to take the Plaintiff without their company. It was therefore submitted for the Defendants that Mr and Mrs Fifita either trusted the Police in full, or they did not see the need to provide any support to the Plaintiff, because she did not show any need for either moral support or assistance. Losana said in evidence that the Plaintiff during that time was living with them and it was submitted for the Defendants that they both failed as guardians of the Plaintiff to offer any kind of assistance to her – which was not offered or given because there was no need for it. While I could not accept these submissions in their entirety, I did conclude from the evidence that at that time neither Mr nor Mrs Fifita had any grounds for thinking that there was any question of wrongful arrest or false imprisonment, or they would have gone with the Plaintiff to the Police Station, even if Mr Fifita had an appointment with other clients at his office.

The 1st Defendant then took the Plaintiff to the CPS, recorded a record of interview and so-called confession and charged her with the offence of defamation; and her fingerprints were taken. These documents were not produced in Court except for the Investigation Diary [Defence Exhibit 1], which recorded that such work had been done. The 1st Defendant said, and I accepted, that after working on the documents relating to the Plaintiff he than passed them on to the Prosecution Branch. Insp Soane Vaka'uta, who was the Police Prosecutor at the time, said in evidence that after investigation of a case the CID Branch passes the file to the Head of CID and then to the Prosecution Branch. All CID files passed on to Prosecution were registered in their Movement File and a check was made as to whether the file had enough evidence to be taken to Court or not. Insp Vaka’uta said that the file charging the Plaintiff was not registered in the File Movement Register, which could mean that there was insufficient evidence. However he recalled prosecuting a case against Tapenisa Pola.

The Plaintiff claimed that she was frightened, but, if she was, that is an understandable reaction to a lawful arrest and does not make the arrest unlawful.

The Plaintiff claimed that on the third occasion her arrest had no basis nor justification. As mentioned earlier, the Plaintiff ultimately gave evidence in the Magistrates’ Court in the criminal case against Tapenisa, but the Police did not proceed further with the charge against the Plaintiff. However that does not make the original arrest unlawful.

On this third occasion I found that the 1st Defendant did arrest the Plaintiff, but in terms of the law as set out in Fainga’a it was a lawful arrest, so there was no false imprisonment of the Plaintiff, even though the complaint was not subsequently proceeded with. Because the arrest was made on lawful grounds, the 1st Defendant committed no civil wrong in the course of making the arrest in pulling aside the curtain of the house when the Plaintiff was delaying in going with him to the CPS.

It was also clear from the evidence that the Plaintiff and the 1st Defendant met after the claim was served on the 1st Defendant. The 1st Defendant said in evidence that the Plaintiff told him that he was not to worry about the case because she did not want it to go ahead, but it was Mr Teisina Fifita who was insisting. When this was put to the Plaintiff she did not deny that, but said that she told the 1st Defendant that she would pursue the case because Mr Fifita had been burdened with preparing the claim and was bearing all the costs for the claim and not her.

In addition it was submitted for the Defendants that it was surprising that the Plaintiff’s sister Tae was not joined as a Plaintiff, because in the first 2 incidents she was also taken in by the Police: but she said in evidence that she was not bringing any claims against the 1st Defendant, so the presumption was that she was happy and was not treated in any way contrary to law. It was submitted for the Defendants that her not being part of this claim against the 1st Defendant was a strong indication that neither the Plaintiff nor her sister suffered any pain, inconvenience, or damage to reputation as alleged in the statement of claim.

While these 2 aspects did not contribute to the reasons for the Court’s decision in this case, they did raise questions about the motives for bringing these claims.

Conclusion

As none of the Plaintiff’s claims have succeeded they are therefore dismissed, with costs as agreed or taxed to the Defendants.

I regret to record that in general I found that the Plaintiff’s claims in this action were lacking in merit and they were not established. I must point out that it is important to apply the law to the facts of the case, not the other way round by trying to fit the facts to the law. I regret that I consider that there must have been inadequate consideration of the law in relation to the facts of the case. I must emphasise yet again that the responsibility lies with Counsel, not the Court, to find out the law applicable to the facts claimed. None of the law set out above is complex, nor was it difficult to find, as it comes from standard text books and the universally accessible All England Reports.

I noted that the submissions for the Plaintiff seemed to place emphasis on why the Court should award aggravated damages and exemplary damages, whereas it would have been more appropriate if they had concentrated on whether the basic claim had succeeded. In addition the amounts claimed and the submissions made in their support bear no relationship to reality and simply serve to confuse: cf Kaufusi v Lasa [1990] Tonga LR 139 (CA).

I also have to add that even if the Plaintiff’s claims had been established, given that she had been one of the authors of the defamation in question, any damages would have been absolutely minimal. It is unfortunate that 4 days of the hard-pressed time of the Supreme Court was taken up with these claims.

I very much regret the delay in issuing this decision due to various pressures on the time of the Court and other factors beyond its control.

R M Webster
Chief Justice