Latu v Leone [2007] TOSC 12; CV 727, 728 of 2006 (14 September 2007)

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

CV 727-8 of 2006

BETWEEN

1. LISIATE LATU
2. TOKA’ONE KOLO
Plaintiffs

AND

1. POLICE OFFICER VEIMAU LEONE
2. MINISTRY OF POLICE
3. KINGDOM OF TONGA
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr. Fifita for the Plaintiffs,
Mr. Little for the Defendants.

Dates of hearing : 25 -29 June 2007
Date of judgment : 14 September 2007

JUDGMENT

These two matters have been heard jointly as they involve the one incident or series of events said to have occurred on the 6th of May 2006 at ‘Eua.

The plaintiff Toka’one Kolo claimed that he was assaulted by the first defendant, police officer Veimau Leone, on the 6th of May 2006 at 'Eua at the time of his arrest but more significantly at the time when he had been placed in the cells at Angaha police station at 'Eua. There is also a claim for false imprisonment. He claims, against all defendants, the sum of $5,000 and exemplary damages of $7,000 together with $500 for false imprisonment; $500 for aggravated damages and special damages of $200 for costs associated with hospitalisation. The plaintiff Lisiate Latu likewise makes similar claims for damages.

The first defendant, police officer Veimau Leone [hereinafter for convenience referred to as Veimau ] counterclaims against the plaintiffs seeking damages in the sum of $1200 for unlawful assault and special damages of $30 being damages to clothing.

The defendants deny the plaintiff Kolo's claims and say that he Kolo was arrested on this night somewhere near Maxi’s discotheque when he was involved in obstructing the course of justice as he had attacked police officer Veimau as he was in the process of arresting Lisiatu Latu[ the second plaintiff]. The defendants say that if the plaintiff received any injuries at all, it was at the time he was obstructing the course of justice and deny that he was assaulted in the police cells.

THE FACTS

The plaintiff [Kolo] said that on this day he had played in a rugby match in the afternoon, and after going home he met up with some of his friends including Latu [the second defendant], and they began to drink alcohol near the Catholic Church at Havaka. They had won the grand final in their local competition and were celebrating. Thereafter they all headed towards Maxi’s discotheque but had stopped near a primary school where they talked for awhile. In cross-examination he agreed that they had consumed about four bottles of spirits amongst them but was vague as to how many of them were drinking. Thereafter they met another friend who advised them that he had another bottle at home which he was instructed to go and get. This he did and they all continued to drink. The plaintiff was again very vague as to what they were drinking suggesting that it could have been whisky or rum. The plaintiff admits that they had mixed alcohol in a bucket and they were drinking from the bucket. They also drank from a bottle. I am satisfied that both plaintiffs were affected by alcohol on this night.

The plaintiff, Kolo, said that police officer Veimau then appeared on the scene and without saying anything went to get hold of the bottle. He says that one of his group threw the bottle away as the police approached. Latu then ran after the bottle. Veimau ran after Latu and a struggle broke out in which Veimau lifted Latu up, threw him to the ground, punched him and dragged him along the gravel road. He says that Latu called for help and that in order to save his friend he ran in and took hold of Veimau from the back and pulled him off Latu. Latu then ran away. A neighbour came to Veimau's assistance and in a further struggle he, Kolo, was subdued and shortly afterwards he was taken to the police station where he was arrested and placed in the cells. Later that night he says that Veimau came into the cells where he punched and kicked him on his body particularly on the testicles which caused him great pain and he attended the medical aid centre next day after his release.

The plaintiff says that they had not been drinking homebrew at this time. I do not accept that evidence, firstly, as the plaintiffs were very evasive as to what in fact they had been drinking. The defendant police officer Veimau said in his evidence that he came across the group and saw they were drinking and he knew that it was homebrew which was the reason he had approached the group. It is an offence to consume homebrew and on the evidence it is regarded as a particular social problem on 'Eua. It does not take the exercise of much imagination to realise that the bottle was being thrown away from the approaching police as it was homebrew. Why else would the bottle of alcohol have been thrown away? The plaintiff Latu had run after the bottle in order to retrieve it and I am satisfied in order to avoid the police. I am satisfied that the plaintiff and Latu struggled with police officer Veimau in order to avoid arrest and I am satisfied that any injuries Latu suffered were caused as he was obstructing the course of justice in that he was resisting arrest. In any event Latu's injuries are not as great as he has asserted. True it is that he had a cut over his eye and I found the police evidence in attempting to say that this had occurred during the football match that afternoon, to be unconvincing. But nurse Lisi Lemeki who saw Latu that night said that he was not in a serious condition except for the cut on the right eyebrow which she treated with a saline solution. Both the plaintiff and police officer Veimau are powerfully built men and I would expect there to be a few bumps and bruises in any scuffle between them. But the fact is that Latu was obstructing the course of justice at this time and I am not satisfied that there was an unlawful assault on him in these circumstances.

The plaintiff Latus' claim for damages is dismissed with costs to the defendants as agreed or taxed.

COUNTER CLAIM

The first defendant police officer Veimau counterclaims for damages for unlawful assault. He seeks damages in the sum of $1200 and also for the sum of $30 being the cost of a T-shirt which he says was torn in the struggle with both plaintiffs.

There is no evidence of the injuries suffered by police officer Veimau although no doubt there would have been some bruising and discomfort. But I think any injuries must have been minimal and short lasting and would only give rise to nominal damages.

I would award the sum of $200 for damages against the plaintiff Latu together with the sum of $15 being half the cost of the damaged T-shirt and costs to the 1st defendant as agreed or taxed.

1st Plaintiff Toka’one Kolo and alleged assault at Angaha Police Station

The plaintiff Kolo claims that after he was arrested he was taken to ANGAHA police station where he was placed in a cell and later that night Veimau came into the cell and he says," he shone a torch in my face and as I looked at him he held my head and hit it on the wall and he said " are you a tough guy and if so I need to be brave". He says he replied that he was not a tough guy and Veimau then punched him on the mouth. He said he was punched many times and fell to the floor. He said his head was dragged along the wall as he was sitting or lying. He was kicked repeatedly on the body and on his penis and testicles. He said he was in great pain. He said his testicles continued to ache for a period of four months.

In support of this evidence the plaintiff has called a prisoner, Wai Pani, who was also said to be in the cell as well as another prisoner Longoia Sailosi who said he was in the next cell and heard the noises of a beating as well as the words " are you a tough guy". There is medical evidence said to be in support of injuries to the plaintiff including injuries to the testicles. There is also evidence from the accused’s wife in relation to those injuries and evidence from police officer Tevita Faka'osi who was the duty officer in charge at Angaha police station at this time and who has given evidence that he heard noises coming from the cell; that he went there and saw the plaintiff lying on the floor and Veimau was kicking him. He says he heard the words, "are you a tough guy". He said Kolo had his hands up as if trying to protect himself. He says he told other police to get the other prisoners out of the cell and thereafter Veimau came out of the cell . He had seen Veimau kicking Kolo on the face and stomach and lower part of his body.

The defendant Veimau, has given evidence denying that these events ever occurred. Evidence supporting his account has been given by police officer Vaka and police officer Taufa who say they neither saw nor heard any such assault at the police station.

The next morning, the plaintiff made an incriminating statement and confirmed that he had no complaints against the police. I do not accept this evidence for I am satisfied on any test that Kolo was kicked and assaulted in the cells including having been kicked in the testicles.

I take the following matters into account:

• The fact of injury to the plaintiff and injuries to his testicles is confirmed in the medical evidence.
  
• Whilst there is a paucity of medical records from the medical aid station, I acept the evidence of the medical staff as to their honesty and the accuracy of their recall. For example, nurse Tevita Halahala treated the plaintiff by applying a compress to his testicles. This was at about 7 p.m. on the day after he had been released. Health officer Asipeli Mafi saw bruising on the plaintiff and was acting on a report of the plaintiff having been assaulted. He also noticed that the plaintiff had difficulty in walking. Additionally the accused's wife has given evidence as to the state of her husband's testicles.
  
• But most importantly, the duty officer at the police station, Terita Faka'osi has given an eye witness account of the assault and of the kicking. He described the plaintiff with his hands up as if trying to protect himself. It must have taken some courage for police officer Faka'osi to give this evidence for other police have closed ranks around their O.I.C., that is, Veimau, in denying that any assaults took place. Police officer Faka'osi's evidence is consistent with the other evidence of eyewitnesses and most importantly it is corroborated by the medical evidence.
  
• I accept that Faka'osi had previously given a contradictory statement in which he also closed ranks around his C.I.O. but I believe that he has acted in accordance with his conscience and in my view he was a most impressive witness. There was some attempt to discredit him by saying that he was only interested in what money he might get for giving evidence but I do not accept that evidence. I do not accept the evidence of Veimau. He was no doubt in an angry state of mind. He had previously been assaulted by the plaintiffs and in that state of mind he went into the cells where Kolo was being held and assaulted him. I am satisfied that he unlawfully assaulted Kolo by punching him in the head and kicking him on his body including on the penis and testicles and that this assault was continuous.
  
• In these circumstances of Kolo having been beaten I give no weight to any so-called confession or record of interview or any disclaimer about his treatment at the police station.
  

DAMAGES

The plaintiff, as stated, claimed:

Special damages for transportation to hospital	$700
General damages: battery, fear, pain, blood loss, and inconveniences	$5,000.
False imprisonment	$500
Aggravated damages	$500
Exemplary damages	$7,000

Interest of 10% until damages are paid.

Clearly, there will be no award for wrongful imprisonment as I have already found that the plaintiff was lawfully arrested when he obstructed the course of justice. I do not believe that any costs were incurred by transportation to hospital.

GENERAL DAMAGES.

The first defendant Veimau acted with blatant disregard for the law and the rules of police conduct and he did it in the presence of other officers, confident that they would not intervene. As stated in FATONGIATAU V HAUSIA [2001] TOSC 34 that " this type of conduct is totally unjustified and exactly the sort of conduct this court has been condemning in increasingly stern terms over the last decade. Yet it still continues and each time it does the reputation of what should be a proud police force becomes more tarnished."

The offence was committed on a man who was effectively defenceless.

In assessing the compensatory damages, I do not consider this is a case where there should be a separate award for discomfort and emotional suffering. It is all part of the one incident and I take that into account as part of the seriousness of the assaults.

I do take into count that the assaults while viscious and nasty did not, mercifully, seem to have caused any permanent injury. One factual aspect of the case in relation to the assessment of aggravated or exemplary damages is the issue of provocation. Whilst provocation is not a defence to an action for assault in these circumstances it may be a ground for preventing or reducing an award of aggravated or exemplary damages: See LANE v HOWARD [1967] EWCA Civ 1; [1968] 1 Q.B. 379 and FUMERA V PAHULU [2003] TOSC 22. I consider that there was an element of provocation in this matter and in those circumstances I do not award aggravated damages and exemplary damages are accordingly reduced and only a moderate award is appropriate.

For the assault, and the pain and suffering I consider an appropriate award in this case is $5,000.

I award $1000 for exemplary damages.

I give judgment to the plaintiff Kolo in the sum of $6,000.

I award interest on the judgment sum at 10% from the 7th February 2007 being the date when his trial was fixed until payment.

Costs are awarded to the plaintiff, Kolo, as agreed or taxed.

COUNTER CLAIM

The 1st defendant Veimau, counterclaims for unlawful assault against the plaintiff Kolo. As in the case of Latu I think that any injuries caused were minimal and short lasting and would only give rise to nominal damages. I am satisfied that Kolo unlawfully assaulted Veimau when he sought to prevent the arrest of Latu.

I award damages of $200 together with the sum of $15 being ½ of the cost of the damaged T-Shirt. That is an award of $215. Costs to the Defendant as agreed or taxed.

NUKU'ALOFA: 14 September 2007

JUDGE