Poteki v Ve'ehala [2005] TOSC 36; CV 527 2004 (2 June 2005)

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

CV No 527/04

BETWEEN:

SAMISONI POTEKI
Plaintiff

AND:

1. SEMI VE'EHALA
2. MINISTRY OF POLICE
3. KINGDOM OF TONGA
Defendants

BEFORE THE HON JUSTICE THOMAS

Counsel: Mr Fifita for Plaintiff and Mr Sisifa for Defendants

Dates of Hearing: 25 and 26 May 2005
Date of Judgment: 2nd June, 2005

JUDGMENT

This is a claim for damages by the plaintiff against the police officer who purported to arrest him on the 30th of March 2004 and the vicariously liable second and third defendants. The claim alleges false imprisonment and assault and seeks damages totalling $19,000 under a variety of heads. The defendant says that the plaintiff was in the lawful custody of the police and that no assault occurred. The second and third defendants acknowledge that should the claim be established against the first defendant then they would be vicariously liable.

The background to the claim is a housebreaking and theft of a fine mat at the village of Talafo'ou sometime before the 30th of March 2004. There is apparently at least one eyewitness who allegedly can identify the plaintiff as being at the scene of the offence and coupled with the admissions made after the purported arrest the plaintiff faces criminal charges which are currently before the Supreme Court in its Criminal jurisdiction. This court does not need to rule on the admissibility or otherwise of the statements made by the accused/plaintiff. In any event the standard of proof required here is on a balance of probabilities and not beyond reasonable doubt.

The evidence for the plaintiff came from himself and his mother and Dr Mafi. For the defence we heard from the first defendant Constable Ve'ehala and also a Constable Langi II.

The brief sequence of events is that the plaintiff was uplifted from his home at Makaunga and was then taken to the school at Talafo'ou before being taken to the police station at Mu'a. The plaintiff says he was uplifted in the morning of the 30th March 2004 while the first defendant maintains it was about four o'clock in the afternoon. The plaintiff alleges various things happened to him at the police station which the defendant denies. The record indicates that an interview was completed by 20 minutes to five, the charge forms at 5 pm and the confession form at 5:15 pm in which the plaintiff did make admissions of guilt in respect to the charges that he faces. His mother visited with food for him between 6 pm and 7 pm but was not able to speak to him although she saw him from the front of the police station. The plaintiff was taken to a Magistrate at 7:20 pm and kept in custody overnight. The next morning which is the 31st of March he was again taken to the scene of the alleged offence for the purpose of a demonstration. At that time he told the policeman that it was not he who had committed the crime and therefore could not demonstrate how it occurred. On the way back from the scene to the police station at Mu'a the plaintiff alleges he was assaulted while travelling in the van driven by the policeman. The assault is denied by the policeman. The plaintiff was then left in the cells, subsequently made a further admission, and was eventually released at 3.27 pm when he signed the station diary indicating he had no complaint. He was uplifted by his mother sometime between 4 and 5 pm. He made a complaint of having been assaulted and suffering injuries and being in pain at that time. He was taken to see Dr Mafi at the hospital who confirmed injuries consistent with the allegations. The plaintiff was given painkillers and spent several days in bed before being fully recovered some three to four days after the events.

There is obviously a conflict between what the plaintiff and his mother tell me and what the first defendant tells me. The plaintiff is a young man now aged 18 who was 17 years and three months at the time of this incident. His mother is a mature woman aged 54 who was visibly upset when giving evidence about what she regarded as the ordeal of her son. The first defendant is an experienced policeman aged 39 with 20 years in the police force and now stationed at the Central Police Station. He is physically an obviously powerful man and plainly much stronger than the plaintiff. I found no reason to disbelieve what Mrs Poteki told me although it seemed to me that the plaintiff may have exaggerated matters from time to time. On the other hand the first defendant appeared capable of being somewhat overbearing and certainly capable in my estimation of not telling the truth in order to defend himself and his actions.

The two areas of facts which need to be examined more closely are firstly in relation to the uplifting of the plaintiff by the first defendant from the plaintiffs home and the events at the police station; and secondly in relation to the alleged assault which took place in the police van on the way back to the police station at Mu'a on the morning of the 31st of March 2004.

So far as the first area is concerned the plaintiff and his mother were adamant that the police officer attended at their house sometime after 10 o'clock that morning. They provide an interesting detail about the plaintiff being asleep, coming outside without a shirt on and being told by the policeman to "get a shirt". The policeman could not recall that detail. It is the sort of detail however that one would not expect to be fabricated. Nevertheless the first defendant was clear, that it was sometime after 4 pm that he uplifted the plaintiff. However both the plaintiff and first defendant are agreed that there was a trip to the school at Talafo'ou and a discussion with a potential witness before returning to the police station at Mu'a. The statement of the plaintiff has then been completed by 4:40 pm. Given the distances involved and the time taken for the statement that could not have all occurred in the time indicated by the first defendant. I am satisfied and find as a fact that the plaintiff was uplifted much earlier than the first defendant has said.

On the basis of that finding therefore it leaves room and time for the allegations that the plaintiff makes about the actions of the police officers to take place. The plaintiff is a young man who had not come to the attention of the police before and had not experienced either arrest or interrogation by the police. I must acknowledge therefore that some of what he told the court may reflect a mistake about what the police required him to do or indeed said to him. This is relevant in respect of the initial meeting because the first defendant alleged that he plainly told the plaintiff he was under arrest in respect to the housebreaking and theft at that time. The plaintiff said he was merely told to get into the car. However the plaintiff said that he did not know about the allegation until he was at the police station and had made a statement of his whereabouts over a period of time as required by the police officer. The evidence of the plaintiffs mother however was of a visit the previous day by two different policemen about the same allegation of theft but directed at the plaintiffs younger brother. On that basis I am satisfied that the plaintiff knew why he was being required by the police at an earlier time than he has said. I am also satisfied however that the plaintiff was probably in a state of fear about what was going on which may also reflect his understanding and recollection.

The plaintiff alleged that having completed this paper setting .out his whereabouts at certain times the first defendant became angry. He was told to stand on one foot with both hands up in the air and required to keep that posture for some time and he was also threatened by another police officer. He said that having had this treatment he lied about what had happened and admitted to the housebreaking and theft. He said it was at that time that the statements and other forms were taken which as I have previously indicated were completed between 4:40 and 5:17 pm. The first defendant and his witness said none of this happened. In my view and on a balance of probabilities given my finding on the time issue, and the nature of the details disclosed by the plaintiff, I am satisfied that something untoward and unnecessary did occur before the statements were taken by the police officer although no violence occurred.

What is also of interest and relevant in respect to the assessment of the time in custody is that when his mother visited him there was a gratuitous remark apparently passed by one of the policeman on duty that the plaintiff "looks like he is homesick".

The plaintiff was not of course released but was taken to the magistrate at 7:20 pm. The unchallenged evidence of the plaintiff was that he did not in fact see the magistrate but was told to stay in the police car. The entry in the Station Diary records that "... summons to be issued and taken to court tomorrow". The plaintiff was not taken to court but was released by the police officer at 3.27 in the afternoon. These findings will be relevant in assessing the proof of the allegation of false imprisonment.

The allegation of assault encompasses a much narrower portion of the evidence. Both plaintiff and first defendant agree that they were in a police van. The plaintiff says that following the failure of the demonstration and on the way back to the police station in an area of bush just after his home village he was assaulted. He was first struck with the left elbow of the first defendant to his right chin and jaw area and, secondly he was punched with the right hand to the cheek and thirdly his head was held down by the first defendant's left-hand and his head was punched three times and fourthly he was told to raise his right arm while the first defendant punched him hard to the ribs several times. He said that the van was travelling slowly and whilst the first defendant had both hands off the driving wheel the van veered to the right causing the policeman to stop his actions and return the vehicle to its correct side. The first defendant said that none of this happened. In addition he made the interesting comment that given his physique if he had assaulted the plaintiff the number of times alleged then the damage would have been more severe than the plaintiff stated. It would seem to me however that given the position of the two men seated in separate seats in the front of a vehicle with one man driving then the ability to exert a great deal of force becomes rather more limited.

It is important to consider the injuries. The plaintiff said that he was aching all over. It was difficult for him to open his mouth. He had a sore head, jaw and ribs. His mother confirmed that state and that he did not wish to eat. She took him to hospital the next day. Dr Mafi confirmed the plaintiff could not open his mouth, he had a tender and painful right jaw, and a tender chest wall on the right aspect. The plaintiff was prescribed Panadol. Mrs Poteki confirmed that he spent the next three days in bed. She also confirmed that at the time the policeman uplifted her son he was in a healthy condition but that was not the case when he returned from the police station. There was no other opportunity from the time he returned from the police station to the time of examination by the doctor for him to have received his injuries.

Mr Pouono for the defendants submitted that the nature of the injuries did not support the specific allegations of the assaults. He also submitted that they must have happened at a time after he was released from the police station. He also referred to the practical difficulties of such assaults when the first defendant is driving a motor vehicle. On that basis he submitted that the court could not be satisfied to the required standard that these assaults had occurred as alleged. Mr Fifita submitted I should accept the evidence of the plaintiff as consistent with the other evidence and reject the denials of the First Defendant as untrue.

In my view the nature of the injuries are entirely consistent with the assaults apart from the alleged blows to the top of the head of the plaintiff. I am not satisfied that those particular blows occurred. I am satisfied that the plaintiff was a healthy young man at the time he was uplifted by the police but he had been injured by the time he was released by the police. There is simply no evidence of any other opportunity for him to have received his injuries. The first defendant is lying when he denies that these assaults occurred as described by the plaintiff and I reject those denials. I am satisfied therefore that the cause of action of assault has been established on a balance of probabilities.

I turn then to the allegation of false imprisonment. There are a number of decisions of the Supreme Court of Tonga in this area in respect to actions of police officers and they have been usefully summarised in the decision of Chief Justice Webster delivered on the 6th January, 2005, in Fainga'a v Police C.R. 38/2003. False imprisonment requires proof of two ingredients, firstly the fact of imprisonment, and secondly the absence of lawful authority to justify it. It is a tort of strict liability and once imprisonment has been established then it is for the defendant to prove that the detention was lawful. The two areas of concern for me are firstly the initial apprehension of the plaintiff and secondly what occurred with the magistrate and thereafter.

The first area concerns the lawfulness or otherwise of the arrest. The defendant's submission is that there was sufficient evidence for the police to arrest the complainant and he was therefore in their lawful custody. This is on the basis of what the defendant said to the plaintiff at the time of apprehension that he was under arrest and the reason for that arrest. The plaintiffs view supported by his mother is that he was simply told to get into the car. I had earlier indicated that the plaintiff would have been aware of why the police wanted to speak to him. Even if the words of arrest were not spoken it was plain that he was involuntarily in the custody of the police. I have some concern about the time it took for him to be interviewed but on the whole I am not satisfied during this period his detention was unlawful.

Section 22 of the Police Act sets out the procedure in cases of arrest without warrant. The provision was considered in detail by the Court of Appeal of Tonga in Fifita & Edwards v Fakafanua [1998] Tonga LR 127. The Court made it plain that the provision was to safeguard the rights of citizens who should be brought before a magistrate as soon as practicable. The proviso in subsection 2 is not simply a licence to ask questions for as long as one wants and then attempt to comply with the provisions of the section.

In this case it is clear that the police had all the documentation they needed from the plaintiff in terms of the admissions and statements. He could have been released on bail by the police sometime after 5.30 pm. He was however taken to the magistrate at 7:20 pm. His unchallenged evidence is that he sat in the car and did not see the magistrate. Section 22 refers to him being brought "before a magistrate". To remain in the police car cannot meet the terms of this section. An arrested person plainly must see the magistrate. On that basis he was not lawfully in custody from that time. In addition of course the direction of the magistrate was that he was to be summonsed to court the next morning. That direction was not followed. On that basis he was falsely imprisoned from the early evening of the day of his arrest to half past three the next day, the 31st March 2004.

In the circumstances then I am satisfied on a balance of probabilities that both causes of action have been established by the plaintiff against the defendants and I now turn to consider the issue of damages.

The plaintiff claims $2000 for fear, pain and inconvenience, $2000 for false imprisonment, $6,000 for the assault, $2000 for aggravated damages, and $7,000 for exemplary damages. The claim for fear, pain and inconvenience must of necessity fall within the claims for general damages for the assault and false imprisonment and cannot be considered as a separate item. Mr Fifita for the Defendants suggested that a global award of $7000 would be sufficient if liability was found against the defendants.

The issue of the quantum of damages for false imprisonment was considered by Chief Justice Webster in the Fainga'a case referred to above. On the basis of the rulings in that case I therefore award the sum of $1000 damages to the plaintiff for the false imprisonment. This was an unnecessarily unpleasant ordeal suffered by the plaintiff.

In terms of damages for assault I have been referred to 2 decisions of Justice Finnigan delivered in 2000. Lavaka v Police CR 1236/99 and Tonga v Police CR 1045/99. In addition I have considered Kaufusi v Lasa [1990] Tonga LR 139 and Muller v Manu [1997] Tonga LR 192. In those cases there were awards of damages for less than what has been claimed here to figures up to $20,000 for the loss of an eye. Obviously the nature and extent of injuries and the assaults influence the levels of such awards.

In this case one must take into account the youth of the plaintiff and his inexperience of such situations. The injuries were painful enough but not long-lasting. They nonetheless saw him out of action for several days. In my view the sum of $3500 is a sufficient figure for general damages for the assault.

As indicated the plaintiff also seeks aggravated and exemplary damages. Aggravated damages were again discussed in the Fainga'a case referred to above. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation if the award were restricted to a basic award. Such features can include the conduct of those responsible for the arrest and detention of a plaintiff which can heighten a person's sense of injury. In this case a youth has been held unlawfully for a period of time and has been assaulted by police whose job it is to uphold the law. This was oppressive and high-handed conduct and justifies an award, albeit a modest one, of aggravated damages in the amount of $2000.

Exemplary damages involve an element of punishment and are only awarded in exceptional circumstances. They are granted where there has been oppressive or arbitrary action by servants of the government such as the police. It is disappointing to note the number of times that police in Tonga have been the subject of such awards. Such cases date back a number of years and to hear again about actions of police constables in 2004 which do not meet the standards required of those sworn to uphold the rule of law is an indictment indeed on the standards of policing in this country. The judiciary has condemned such abuses of power by police in decisions over the last 15 years at least and one would have thought the message should have got through by now.

In this case again there has been arbitrary and high-handed action by the police officer involved. He has assaulted a suspect and failed to meet the minimum requirements of the provisions of the Police Act in a situation of arrest without warrant. There must be an award to recognise that such behaviour is totally unacceptable and must be punished. In the circumstances I award the sum of $3000 for exemplary damages.

It follows from those determinations that there will be judgment for the plaintiff against all defendants for the total of these awards namely $9,500. The plaintiff is entitled to costs against the defendants to be agreed or taxed.

I Thomas
JUDGE

NUKU’ALOFA: 2nd JUNE, 2005.