Commissioner of Police v Garae [2009] VUCA 9; Civil Appeal Case 34 of 2008 (30 April 2009)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No.34 OF 2008

BETWEEN:

THE COMMISSIONER OF POLICE
Appellant

AND:

VANUATU GOVERNMENT
Second Appellant

AND:

ROBERT DINIRO
Third Appellant

AND:

WILSON GARAE
Respondent

Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Nevin Dawson
Justice Ronald Young

Counsel: Ms Florence Williams for the Appellants
Mr Saling Stephens for the Respondent

Date of hearing27th April 2009:
Date of judgment: 30th April 2009

JUDGMENT

1. This is an appeal against the Judgment of the Supreme Court in Luganville dated 21 November 2008. That judgment followed a re-trial of the proceedings following a decision of the Court of Appeal in November 2005. The history of the early proceedings is outlined later in this judgment in the discussion about the assessment of damages.

2. The respondent was the claimant in the Supreme Court. At the relevant time he was a senior inspector in the Vanuatu Police Force, and had served as a Police officer for some 25 years.

3. In September, 2001 he was selected to go on a UN peace mission to Bosnia, Europe. In preparation he was required to undergo briefing, training and preparation for the mission in Port Vila. Arrangements were made for him to stay in the VMF Camp at Cook Barracks.
   
4. On 24th October 2001, at about 4 o’clock in the afternoon, whilst the appellant was at the home of his sister, Monique Stephens, he claims that a group of five uniformed officers from the Vanuatu Mobile Force (VMF) under the orders of Major Robert Diniro (the then acting commander of the VMF), trespassed into the residence of Monique Stevens and arrested him. He says that against his will he was escorted to the VMF Barracks were he was unlawfully confined until the following day when he was released. He says that during the journey back to the Barracks he was seated between two police officers, and that their contact with his body constituted an assault and battery.
   
5. The respondent claimed that there was no lawful basis for his arrest or confinement, and that his confinement amounted to an unlawful imprisonment.
   
6. The respondent further alleged that he reported the matter and made a formal complaint about his arrest to the Commissioner of Police on 16th November, 2001, but no action was taken to resolve the matter according to normal standards of discipline.
   
7. In the judgment under appeal, the trial judge upheld the claims of the respondent and awarded him VT 1,700,000 damages with interest at the rate of 5% from 24th October 2001.
   
8. At trial there was lengthy dispute over the command structure under which the respondent served, and as to the identity of the officers who commanded him. The trial Judge held that Major Robert Diniro was then the Acting Commander of the VMF, and had authority to issue orders in respect of the respondent. That issue is no longer in dispute.
   
9. The trial Judge held that the officers who apprehended the respondent and conveyed him back to Barracks did so pursuant to an order issued by Major Diniro. However that order was not given for any purpose relating to the respondent’s training, but for an improper purpose. The trial Judge held that the order was motivated by a personal issue concerning a relationship which had arisen between Monique Stephens and other member of the VMF. As the Order was issued for an improper purpose, the appellants could not rely on the good faith defence in s.40 of the Police Act [CAP. 40].
   
10. On this appeal, the appellant challenged both the findings of liability and the assessment of damages.
    
11. We consider there is no substance to the grounds of appeal relating to the finding of liability against the appellants.
    
12. Ground 1 alleges that the trial Judge failed to give reasons for his finding that the respondent was confined for reasons of the relationship involving Monique Stephens. The reasons are clear. The trial Judge accepted the evidence of the respondent generally and in particular on this point. On this point the Judge also found supporting evidence in the sworn statements of two of the appellants’ witnesses.
    
13. Ground 2 challenges the finding that the respondent had suffered a battery. In our opinion the evidence is sufficient to support a finding that by placing the respondent between two officers in the truck during the journey back to the Barracks, the officers intended to make contact with the respondent. However the battery was a highly technical one and the harm suffered by the respondent, if any, was trivial. We reflect that view in our discussion about the assessment of damages.
    
14. Ground 3 challenges a finding that the respondent was not drunk when he was apprehended in Monique Stephens’ house. The appellants say the Judge gave insufficient reasons for that finding. In our opinion the reasons are clear. The Judge accepted the evidence of the respondent, who said he had not been drinking. It was open to the Judge to accept the respondent’s evidence on this point, and to reject the somewhat uncertain evidence of the appellants’ witnesses.
    
15. Ground 4 of the notice of appeal alleges that the Judge failed to give reasons for finding that the respondent’s apprehension occurred whilst he was not undergoing training. Although the respondent had been moved to Port Vila for the purposes of training over several days, that does not mean that he was actively engaged in training 24 hours per day. We think that the finding that he was off duty at the time is supported by the evidence.
    
16. Ground 5 challenges the finding that the appellants could not rely on the good faith defence in s.40 of the Police Act. In our opinion the trial Judge was correct in holding that the defence was not open where the order to apprehend the respondent was given not for operational reasons but for an unrelated personal reason.
    
17. The balance of the grounds of appeal concern the assessment of damages and challenge the amount awarded to the respondent.
    
18. The original claim filed on 14 May 2003 was brought against the Vanuatu Government and the Commissioner of Police. The respondent claimed VT 1,500,000 under the following heads:
    

a) unlawful arrest	VT 300,000
b) unlawful imprisonment	VT 300,000
c) anxiety and emotional stress	VT 300,000
d) harm to good reputation	VT 300,000
e) punative damages	VT 300,000

19. The outcome of the first trial held in 2005 was set aside by the Court of Appeal in November 2005 and the matter was sent back for retrial on several issues.

20. Before the retrial the respondent purported to file an amended claim. The amended claim sought to add Robert Diniro as a defendant and to increase the damages sought under heads (a), (b), (c) and (e) to VT 1,000,000 in each case. The claim for harm to good reputation was dropped but new heads of damage were added namely:

Assault and battery	VT 1,000,000
Legal expenses	VT 1,000,000

These changes would have increased the total claim to VT 6,000,000. However, the trial Judge held that as leave had never been obtained to file what amounted to a new claim, the amended claim should be rejected. The trial therefore took place on the original pleadings where Robert Diniro was not a party. He is incorrectly named as party to this appeal.

21. The trial Judge, without further discussion or reasons, said that he awarded damages as originally claimed on the following
Heads of loss-

Battery and assault	VT 300,000
Unlawful arrest	VT 300,000
Wrongful imprisonment	VT 300,000
Anxiety and Stress	VT 300,000

22. The claim for legal expenses was rejected as the costs had been appropriately dealt with by costs orders. For punitive damages the Court awarded VT500, 000 but no reasons for this award were given.

23. It will be noted that "battery and assault" was not one of the heads of loss originally claimed.

24. In our opinion the circumstances under which the respondent left Monique Stephens house and was conveyed back to the barracks do not warrant separate awards for damages under each of the heads allowed even if, strictly speaking, a technical assault and battery occurred. These events were part and parcel of the confinement of the respondent which constituted an unlawful imprisonment.

25. In the absence of better reasons from the trial Judge it seems to us likely that by awarding separate amounts under the several heads of claim that there has been an overlap and doubling up of damages. Whether for this reason or otherwise were consider the total award of damages was manifestly excessive.

26. There was no evidence of illness from anxiety and stress. We do not think this should have attracted a separate award of damages. The respondents’ emotional reaction to his confinement should also be included in a general award for false imprisonment.

27. The confinement did not exceed 18 hours. For much time the respondent was in his normal quarters in the barracks. Although he was confined in the barracks, this was not close confinement.

28. A separate award was made for punitive damages. We do not think this award can be supported against the Commissioner of Police or the Government of Vanuatu. In so far as the order to bring the respondent back to barracks was issued for an improper purpose, this was done by Robert Diniro who was not a party to the original claim, and on the trial Judge’s rejection of the amended claim was not before the Court.

29. However in assessing an overall sum for damages for false imprisonment we consider there should be an allowance for circumstances which aggravated the harm to the respondent. He was a senior officer who suffered the indignity of being brought back to barracks by officers who were his juniors. Then, when he sought to make an official complaint about his treatment, that complaint appears to have been ignored.

30. In our opinion, including an allowance for these aggravating circumstances we consider an overall global sum of VT350, 000 should be awarded for false imprisonment.

31. As the general damages award is made in current money value it is not appropriate to allow interest from the date of the imprisonment. However the assessment now made is substituted for the award made at trial, and will stand on the judgment of the Supreme Court. Interest will therefore run on the judgment from 21st November 2008 at 5% per annum.

The appeal against liability fails, but is allowed against damages. In these circumstances we consider each party should bear their own costs of the appeal.

The formal orders of the Court are:-

(a) Appeal allowed.

(b) The award of damages entered in the Supreme Court on 18 November 2008 is set aside, and an award of VT350, 000 in favour of the respondent (the claimant in the Supreme Court) is substituted. Interest runs on this sum from 18 November 2008 at 5% per annum.

(c) The order for costs of the trial in favour of the respondent made in the Supreme Court on 18 November 2008 remains in place.

(d) No order for costs on this appeal.

DATED at Port-Vila this 30th day of April 2009

BY THE COURT

Vincent LUNABEK CJ
John von DOUSSA J
Ronald YOUNG J
Nevin Dawson J