Manu v Police [2012] TOSC 32; AM 01 of 2012 (20 July 2012)

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

AM 01 of 2012

LINIOLA MANU

-v-

POLICE

BEFORE THE HON. JUSTICE CATO

JUDGMENT

This is an appeal from the decision of the magistrate on the 18th January 2012 to convict the appellant of reckless driving of a motor vehicle under s 25 of the Traffic Act (cap 156). He was fined $200.00.

The case is unusual. The appellant was a bailiff who was enforcing a distress warrant issued by the Magistrates Court which required him to seize a number of buses. The appeal arises out of his actions in seizing one of the vehicles and driving it to a place of detention. The appellant having seized the bus from the driver who co-operated and told passengers to leave the bus, then proceeded to drive it to a place of detention at Fasi which was only a short distance from the bus stop. Unfortunately, during his short drive the appellant drove into the rear of a vehicle, damaged others and caused others to take evasive action.

Ultimately he was interviewed by the police concerning his driving and he said the brakes failed. He did not however give evidence before the magistrate and nor did he call any evidence on the condition of the brakes.

The bus driver gave evidence that was to be his last trip and that the bus was performing properly that day on several trips he had made. He also said that the appellant appeared to have difficulties with the gears and he offered to come with him but the driver drove off. Shortly after this he learned of the accident as the bus left Vuna Road and collided with the rear of a vehicle near the markets in Fatafehi Road, and also hit another vehicle. There was some evidence the bus was travelling quickly described at high speed.

In the light of this evidence largely unchallenged by the defence, the decision of the Magistrate to convict for careless driving is not surprising, and nor is the fine one that could be described as excessive.

At the hearing of this appeal Mr. Pouono rightly in my view did not seek to challenge the findings of the magistrate in support of the conviction nor the fine of 200 pa'anga which plainly was not manifestly excessive.
Rather, Mr. Pouono for the appellant who was also his counsel in the lower Court argued as he had before the magistrate that his client should not be prosecuted under the Traffic Act. Mr. Pouono contended that the Bailiff's Act 2000 applied and that the provisions of that Act should have been invoked. He argued before the Magistrate and before this Court that s 17-18 applied to this case excluding the general law.

Section 17 of the Act provides;

"Subject to this Act, no liability attaches to a Bailiff for any act committed by him in good faith in the performance of his duties."

Section 18 however provides;

"A bailiff who knowingly does anything amounting to neglect, misconduct, or a breach of duty commits an offence and is liable on conviction to a fine not exceeding $1000.00 or imprisonment for a term not exceeding 12 months or both."

Civil liability is governed by s 19 which provides;

"Notwithstanding s 18 of this Act civil proceeding may be instituted against a Bailiff for any refusal, neglect, willful delay or improper conduct in the performance of his duties."

Mr. Pouono contended that because the Bailiff was acting bone fide he could not be prosecuted. The magistrate on this issue considered that the appellant fell outside the provisions of s 17 and was not acting in good faith because the prosecution contended that he did not have a licence to drive the bus.

He was as it were an unlicenced driver. The magistrate said on this point.

"If there was such a driver, he is careless. If the police seize a vehicle whereby he does not have a licence to drive, he will not drive and that is good faith."

Further he said;

The Court rules that the accused did not have a licence to drive a bus although there is no evidence.

Therefore this is a first for the Government to charge its own people. This person went to seize a bus pursuant to an order, but he did not have the skill to do so. Good faith is to be accompanied by common sense.

I do not accept the submission to strike out the case, let us proceed."

Mr. Pouono seems to have been taken by surprise at this turn of events and in this Court argued that he was denied natural justice and there was no evidence called that his client was unlicensed.

However, he seems not to have approached his client or have dissuaded the Court or even attempted to do so when the prosecutor and later the magistrate made their observations. In these circumstances, I do not think he can now say there was a denial of natural justice. If the true position was that his client did have a licence then he should have brought this to the notice of the magistrate. I proceed on the basis that there is no irregularity in the way in which this case proceeded.

Unlike the magistrate, I take the view that in driving the bus to a depot for safekeeping the bailiff was acting bone fide in discharge of his duty albeit that he may not have been licensed to drive the bus. Seizing and preserving the property was precisely what he was attempting to do, perhaps unwisely if he did not carry the appropriate licence. However I do not think that in acting as he did he was stepping outside his obligations to enforce the warrant and acting in bad faith.

Bailiffs who seize property have an obligation to ensure reasonably the protection of that property and leaving a chattel in a public place could expose a bailiff to civil liability under s 19 should the chattel be stolen or harmed in some way.

The respondent contended that he should have asked another bailiff or police officer with the right licence (a class E driver's licence) to drive the bus back to the bailiff's office. That would have been a sensible approach. Perhaps he could have invited the driver to drive the bus the short distance to Fasi for storage. He did not do so, but in failing to adopt an alternative to driving himself I do not consider it could be said he was acting in bad faith. I consider in driving the bus himself he was attempting to secure and safeguard the property and was acting in good faith.

I do not however consider that this is an answer as Mr. Pouono would contend to the question of prosecution under the Traffic Act. Although 17 extends immunity to bailiffs for Acts done in the performance of their duty that is not an end of the matter. Ms 'Atiola for the Crown argued strongly that whatever be the scope of s 17 it could not be a bar to a prosecution for a criminal or regulatory offence. Mr. Pouono himself acknowledged that this was a novel point. Ms 'Atiola argued that clause 4 of the Tongan Constitution said that no laws shall be enacted for one class and not for another class but the law shall be the same for all people of the land. She said that it would be wrong to find that s 17 immunity extended to prevent prosecutions under the general law. Mr. Pouono contended however that was the very purpose of s 17-18 of the legislation, section 18 being the provision under which bailiffs could be prosecuted exclusively. Mr. Pouono contended that the specific legislation had priority of application over the application of the general law. Prosecution of a bailiff acting bone fide could be pursued only under the provisions of s 18 of the Act.

Most of the cases under which immunities have been considered relate to the issue of whether civil action could be pursued where loss has arisen. The Bailiff's Act 2000 preserved civil action against a bailiff for refusal, neglect, willful delay or improper conduct in the performance of his duties. It also provides in s 18 a statutory offence where a bailiff knowingly does anything that amounts to neglect, misconduct or breach of duty. However, I do not consider that this provision, as Mr. Pouono would contend, is all encompassing and that prosecution of offences under the general law is excluded. To argue that this was the effect of 17-18 would be to extend the scope of the immunity such as it may be, much wider that Parliament could ever have intended.

In my view it would be also against the public interest to stretch the ambit of the immunity such as it exists this far for example, if a person had been seriously injured or killed in this case, the argument of Mr. Pouono would, if upheld, mean that there could be no prosecution for aggravated reckless driving. I do not consider that the legislature would ever have contemplating clothing bailiffs with such an immunity from prosecution and I do not accept that s 17 was ever intended to exclude the application of the general law of offending, in which I include criminal as well as traffic offences. S 18 relates to misconduct, negligence and breaches of duty relevant to his or her obligations as a bailiff under the Act, and he may be prosecuted over and above the general law for transgressions of this kind. However, in my view the Crown contention is correct. Whether a bailiff acts bona fide or not in performance of his duties, he is not immune under s 17 for criminal or regulatory offending carried out in performance of those duties.

Accordingly, I would dismiss the appeal on both conviction and sentence.

DATED: 20 JULY 2012

JUDGE