Langi v Lavaki [2012] TOSC 89; CV 16 of 2013 (6 November 2012)

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

CV 16 of 2013

BETWEEN:

'AISEA LANGI
PLAINTIFF

AND:

1. PC LATU LAVAKI
2. PC SIFA LATU
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
DEFENDANTS

BEFORE HON. JUSTICE CATO

Mr T Fafita for the plaintiff
Mr Kefu and Mrs Langi for the defendants

JUDGMENT

[1] The plaintiff claimed damages of $59,000 against the defendants alleging malicious prosecution. He claimed that the first defendant, Latu Lavaki, had wrongfully charged him with possession of stolen property, a 30Hp outboard motor suspected of being stolen under section 153 Criminal Offences Act. It was claimed the first case was instituted without any evidence and without reasonable and probable cause. It was alleged this prosecution was dismissed by the Magistrate after it had been first called in the Magistrate's Court on or about the 18th February 2011, and then after it had been adjourned a number of times it was "rejected" or dismissed for no evidence, on or about 13th February 2012. Thereafter, it was alleged the second defendant, Sifa Latu, continued the prosecution and further adjournments were sought before the prosecution was ultimately dismissed.

[2] It was alleged that the defendants maliciously instituted and continued with proceedings and as a consequence, the plaintiff suffered damages. Damages were claimed for;

Legal costs	$3500.00
Damage to Reputation	$5000.00
Inconvenience	$1000.00
Income loss	$32,000
Aggravated damages	$5000.00
Exemplary damages	$10,000
Unlawful Imprisonment	$3000.00

[3] The defendants denied the allegations. Essentially, the defendants, although admitting that the prosecution had been dismissed as a result of witnesses failing to appear, claimed that this did not mean the plaintiff was in fact innocent of the criminal charge. The defendants also said that, amongst the items found at the plaintiff's residence and alleged also to be stolen, were a 15 hp Yamaha outboard motor and a compressor. These had been reported as stolen. The defendants also admitted that the case had been adjourned on several occasions, but the first was to enable the plaintiff to obtain legal counsel and for the police to prepare its witnesses. Thereafter, the defendants admit the case was adjourned three times because witnesses did not appear and on 10th February 2012 the second defendant asked the magistrate to "reject and recharge". The Magistrate accepted this. The defendants admitted that the plaintiff was recharged by the second defendant for the same offence and denied this was improper. The defendants claimed that the Magistrate had earlier granted leave or authority for the plaintiff to be recharged.

[4] The defendants also asserted that the prosecution had not been unlawfully instituted or commenced because two other items the Yamaha engine and the compressor had been identified by their owners and had been found in the possession of the plaintiff.

[5] I heard evidence from the plaintiff. It transpired that this search was part of an overall wider police operation and was ancillary to a major inquiry in which the plaintiff had been arrested and charged with armed robbery with others. The search was directed at the possibility of locating a weapon but the police were also authorised under the warrant to seize other items involved in crime activity. It was not suggested at the hearing that the search was illegal. Although the plaintiff was in custody, at the time of the search, his wife was present.

[6] The plaintiff asserted that he had no previous convictions in Tonga and suggested his reputation had been affected by being charged with this offence and later prosecuted. This prosecution was as I have noted only part of a wider and more serious prosecution which included robbery which would be far more likely to have affected his reputation, if it were damaged at all. It transpired, also under cross-examination from Mr Kefu that the plaintiff had been deported from the United States and had a conviction there for armed robbery. I considered that the plaintiff was legally "street-wise". When he had been asked by an interviewing officer where he had acquired the Suzuki engine, he declined to answer this question as was his legal right.

[7] However, I accept and, indeed it was conceded by the plaintiff at trial that the Yamaha engine and the compressor were stolen. The plaintiff, at trial, claimed to have obtained these innocently in the market. To the extent the plaintiff did not tell the police officer who interviewed him where he had obtained the suzuki engine from, he was, in part, the author of his own misfortune. I note that the plaintiff suggested he did inform some unknown police man where he had got the Suzuki from subsequently, but I have no evidence if that were so, that this was communicated to any charging officer before prosecution was commenced. From the evidence I heard from the first defendant, it appears that when he conducted the search he already knew that there had been a number of complaints of stolen engines and a stolen compressor. That seems to have been his principal motivating reason for seizing these items. I do not find his actions malicious. He seems both to have been acting under direction of a senior officer in effecting a search and as a consequence, he became aware of a number of items being present which were of the kind he knew had been reported stolen.

[8] Mr Fifita, in written submissions, to me filed after the hearing contended that the plaintiff had been improperly questioned by the wrong officer under s 153(1) of the Act, and that the hour he was questioned meant that his questioning was unfair. Having considered section 153, I do not think that it has any application to the present circumstances. Section 153 of the Criminal Offences Act, under which the defendant was charged, does not apply to good located, as here, inside a residence pursuant to the execution of a search warrant. Section 153 applies to an entirely different situation. It relates to stopping and detaining persons carrying articles suspected of being stolen, and is not extended beyond this. Mr Fifita did not, at trial, cross-examine any officer as to why the plaintiff was charged under this section. I cannot conclude on the evidence I heard that the charging process was anything more than a misconceived and probably incompetent appreciation of the scope and application of the section. I do not find that the questioning or conduct of the police in charging was malicious for the reasons I have given.

[9] I also find that, although the first information was dismissed, the method used was one recognized in Tonga and not dissimilar it seems from the procedure used in other jurisdictions of dismissing a prosecution without prejudice to further proceedings being instituted. It seems the second defendant, who was the officer in charge of prosecutions, had asked for the information to be dismissed with authority to recharge because witnesses had not appeared. He had not been involved in any of the earlier police action. These witnesses were the owners of the Yamaha and the compressor who were required for the prosecution to circumstantially justify or provide a foundation for the prosecution of the charge involving the Suzuki which was also suspected of being stolen. The plaintiff did not require these witnesses, who I was informed the defendants had summonsed to appear at this hearing, to give evidence. It seems to have been accepted that they were stolen although - the plaintiff claimed to have purchased them at the market.

[10] I consider the fact that other items were stolen and located in the possession of the accused provided a basis for the police to bona fide prosecute, albeit that they mistakenly proceeded to do on a basis which could never have succeeded in law. No doubt had the matter proceeded to a hearing, the merits of prosecuting a charge under section 153 would have been tested but neither prosecution got that far.

[11] The second defendant stated that he had told a junior officer to summons the witnesses to the Yamaha and compressor to court but contrary to his expectation this had not occurred. The fact that it had not happened it seems on several occasions should have meant that the second defendant took steps to action this default and ensure that the witnesses did appear. The second defendant admitted he should have taken steps to rectify the non-appearance, and could only give as an excuse his pressure of work. I accept this. I did not find the second defendant to be other than candid. Indeed, Mr Kefu also accepted that whilst the police may have been incompetent in ensuring the attendance of witnesses, this did not mean that the prosecution was continued maliciously.

[12] I agree. I detected nothing in the evidence of either officer to suggest any collateral or sinister objective for their actions either instituting or proceeding with the prosecution, or that their actions were in any way activated by a malicious motive. The plaintiff was before the court in any event on a far more serious charge. It was only recently that the case against him on the indictment for robbery was dismissed, also.

[13] Although I consider there was a high degree of incompetence shown in instituting and conducting this prosecution, I agree with Mr Kefu's submission that incompetence does not establish malicious action. In Tu'ivai v Kingdom of Tonga [2009] Tonga LR 104 the Court of Appeal quoting from A v State of NSW [2007] HCA 10; (2007) 230 CLR 500, at 531 observed;

"what is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law- an illegitimate or oblique motive. The improper purpose must be the sole or dominant purpose actuating the prosecutor."

[14] Mr Kefu also submitted that, in any event, the first proceeding or charge had been laid by Police Constable Fahina on direction from his senior officer CIP Vaihu conveyed through the first defendant to PC Fahina, and not the first defendant. On the evidence, this is unclear. According to Constable Fahina he was instructed by officer Lavaki to charge the plaintiff, who had said this was on the instructions of the officer in charge of the operation CIP Vaihu, who had retired from service. The defence pleadings seem to admit in para 7, however, that the first defendant was responsible for charging the plaintiff on the first occasion although the officer was not asked about this directly perhaps because of this concession. I would on the evidence I heard and because also of the concession have found that the first defendant was responsible for the charge. No maliciousness, however, was in my view established by the plaintiff, of this officer or any other in this process.

[15] Accordingly, I find that the plaintiff has not established his case on the balance of probability against the defendants. I can well understand that the plaintiff was frustrated by the actions of the police which for reasons I have outlined demonstrated a high level of incompetence. However, as Mr Kefu submitted, without proof on balance of an improper, sinister or oblique motive, the plaintiff cannot succeed in his action.

[16] I also note that, although the plaintiff claimed and called several witnesses to establish that he used the Suzuki for the purpose of powering a boat he hired to sea cucumber fisherman and derived a sum ranging from $1000 to $1500 for this, there was no documentary support for this. There seemed some supporting evidence of his receiving a lesser sum per week but there was no evidence of what his net gain was after running expenses. It seems he had only been operating this business, which appeared to be an adjunct to his principal employment, for at most a couple of months before the engine was seized. I considered that he had used the Suzuki to derive income but the extent of this was inflated and the net loss unclear.

[17] I would not have found his claim for damages for loss of reputation established because this was only one of a number of matters that police had proceeded against him for, and the robbery charge was far more serious.

[18] His claim for outstanding legal fees was not substantiated by any fee notes.

[19] Accordingly, I give judgment for the defendants together with an order that the plaintiff pay costs to the defendants, to be assessed by the Registrar.

JUDGE

Dated: 6 November 2012.