Harrisen v Holloway (No. 2) [1984] VULawRp 5; [1980-1994] Van LR 147 (14 December 1984)

[1980-1994] Van LR 147

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Appeal Case No. 10 of 1984

BETWEEN:

FREDDY HARRISEN
Appellant

AND:

JOHN PATRICK HOLLOWAY
Respondent

FREDDY HARRISEN
Appellant

AND:

THE ATTORNEY GENERAL
Respondent

THE ATTORNEY GENERAL
Appellant

AND:

FREDDY HARRISEN
Respondent

[No. 2]

Coram: Cazendres and Williams JJ

Counsel: Mr P Coombe for Appellant

JUDGMENT

[STATUTES - general application - PRACTICE AND PROCEDURE - the proper defendant in (tortious) suits against the Government - DAMAGES - exemplary damages - general damages]

The facts are briefly, Harrisen was taken from his home by the police about 8.30 am on 14th September 1983, and removed to the police station where he was questioned about a breaking-into the NSK Co-operative in 1981 in the course of which a quantity of money was stolen. Harrisen made a statement admitting involvement and naming his accomplices. The police took him to prison where he was remanded in custody.

Unfortunately he had not been charged with any offence; he was not taken before a magistrate at the first convenient opportunity and appears to have been forgotten by the police. The Prison Authorities are very blame-worthy in not demanding a warrant for his removal to prison and for allowing him to stay there.

On 14th November 1983 Harrisen escaped along with other detainees.

On 26th October a complaint had been laid before a magistrate and on 27th October he issued a remand warrant for Harrisen's detention. It appears that the magistrate did not see Harrisen and we concur in the learned judge's decision that the warrant was irregular and ineffectual and we must conclude that the police and the prison authorities must have been aware of this.

On 22 December 1983 about 4.00 am the police surrounded Harrisen's village. He did not try to elude them, was handcuffed and taken into custody. Next day he appeared before a judicial officer and was granted bail.

The learned judge decided that Harrisen had been wrongfully imprisoned from 16th September 1983 to 14th November 1983. The Attorney General filed an appeal against that decision and asked the Court of Appeal to rule that the said period of imprisonment as from the 28th October 1983 to November 1983 was lawful. The Attorney General wished to contend that as from the time a magistrate's warrant of 27th October 1983 was issued, Harrisen's incarceration in prison became lawful. The learned judge had found that the warrant had been most irregularly issued; in other words it was not a lawful warrant. No evidence was led to show that Harrisen had been brought from the prison, told of the offence and placed before a magistrate. Accordingly we are in no position to find that Harrisen's unlawful period of imprisonment ended on the purported issue of a warrant. There is no evidence that he was returned to prison after being in front of a magistrate on 27th October. Moreover, it was never suggested to Harrisen in cross-examination that prior to his escape he was taken from the prison to the police station and thence before a magistrate; it was not put to him that he was given any opportunity to request bail from the magistrate; it was not put to him that the magistrate read out any offence to him and ordered his detention in prison pending trial.

Accordingly, there is no evidence on which we can hold that the learned judge was in error in deciding that Harrisen was wrongfully imprisoned until his arrest on 14/11/83.

When Harrisen was re-arrested on 22nd December, 1983 following his escape, the police were then in the possession of a warrant issued by a magistrate. Details of the warrant were not given in evidence but Constable Paul Thompson said in evidence that there was a warrant and that he had seen it. Constable Thompson stated that he told Harrisen that he was being arrested because he had escaped. The learned Judge held that although Harrisen's escape from prison had been lawful his arrest on the ground that he had escaped was not unlawful. The Judge's decision was based on the fact that Harrisen was in fact wanted for the break-in for which he had originally been apprehended and therefore even if the warrant for the offence of unlawful escape could not be construed as valid there were still in existence offences for which he could be lawfully arrested.

A number of English authorities were quoted by the learned judge who revealed commendable industry and assiduity. However, we consider that there is no need for us to consider them in any detail having regard to the evidence in the record. In those cases the accused after their arrest for offences which they had not committed were held on charges of the offences which they had actually committed and appeared before a magistrate before whom charges for the correct offences were laid at the first opportunity after arrest.

This may have been the position in Harrisen's case but if it is the position we have not been made aware of it from the evidence nor was the learned judge. The arresting officers did not tell the learned judge what they did with Harrisen after they arrived at the police station on 22.12.83. It is not known whether he was formally charged with any offence at all let alone that of escape or of breaking-in and stealing. Mr Holloway, the Police Commissioner, told the Court that after the plaintiff's arrest he was taken before a police magistrate on the following day. But he did not say and was not asked what the information before the magistrate had alleged in regard to offences. It would be unfair to assume that he was charged before the magistrate for some offence other than that of escape which appeared in the warrant of arrest.

The learned judge was probably and understandably led into error by evidence that Harrisen had appeared in the Supreme Court on charge of unlawful entry and theft and that the prosecution had offered no evidence. Harrisen was acquitted. He seems to have assumed from that evidence that when the accused appeared before a magistrate on 23.12.83, the day following his arrest, it was in answer to the charges of unlawful entry and stealing of which he was later acquitted. If that were his reason for saying that Harrisen had been held for offences he was reasonably suspected of having committed it is, as we say, an understandable but erroneous conclusion of fact.

There is no evidence which we can find in the record to show that although the warrant of arrest referred to an offence of escape which he had never committed the accused was nevertheless lawfully held for serious crimes which he was reasonably suspected of having committed which with he was at once charged.

The magistrate must have issued his warrant, for the arrest which occurred on 22.12.83, on information from the police that he had escaped from lawful custody. That information given to the magistrate would be erroneous thereby causing a warrant to be issued for an offence never committed. Nevertheless, the police would not have been liable for that erroneous information had it been presented to the magistrate in reasonable belief based on reliable and dependable information that it was true. However, the police were, so to speak, their own informants. They purportedly relied on their own knowledge and records to support a contention of escape from lawful custody. An examination of facts at their own disposal should have revealed that Harrisen was not in lawful custody. An attempt had been made during Harrisen's first period of detention to put right that which was wrong by getting some document from a magistrate. They had failed in that attempt to legalise Harrisen's detention.

For the foregoing reasons we uphold Harrisen's appeal that his second arrest and period of detention was unlawful and quash the learned judge's finding to the contrary.

The next issue before Judge Coakley was whether the Government of Vanuatu can be sued for torts committed by police officers in the execution of their duties.

It was maintained by Harrisen's advocate, Mr Coombe, that the English Police Act 1964 being an act of general application applied to Harrisen's case. He pointed out that the Police Regulations 1980 of Vanuatu make no provisions making the Government vicariously liable for the acts of its police officers. He argued that s.48 of the Police Act 1964 (England) makes special provision for the Chief Officer of police to be liable for the torts of his subordinates and for that reason he had made Mr Holloway, the Police Commissioner, the defendant in Harrisen's claim.

The learned judge held that the Police Act 1964 did not apply in Vanuatu. It follows that if the judge is correct then the Police Commissioner, Mr Holloway, was wrongly sued as the defendant.

The plaintiff's appeal includes among its numerous grounds that the learned judge erred in holding that the Police Act 1964 did not apply.

The English police system has always been extremely involved. There is not one police force but many of them each of which is controlled by its own local authority, which appointed, promoted, and dismissed its police officers. However, the control of the local authority, was not absolute. Police officers were appointed to uphold the laws of the country and to maintain the King's peace. A large measure of control remained in the Crown to whom police officers could appeal against decisions of the local authority. Local authorities although responsible for police salaries received grant from the Crown towards those costs. It was held by English Courts that police officers were officers of the Crown and not simply employees of the local authority. It followed that local authorities were not vicariously liable for the torts of police officers who from certain view points were not their employees. The Crown would be vicariously liable as employer were it not for the fact that the Crown could not be sued in tort. The Crown Proceedings Act 1947 which enabled citizens to sue the Crown for torts excluded torts committed by Police Officers.

It was for those reasons that s.48 was introduced into the Police Act, 1964 to enable a citizen to sue for torts committed by the police. However, such actions are not framed against a state department e.g.: Home Secretary; they are brought against the local authority. In the event of the plaintiff's success damages are not paid by the local authority although they are the defendants. The damages come from a fund called the police fund which is maintained by authorities generally.

We have made but a brief reference to the enormous differences between the various police forces in the U.K., and the single force in Vanuatu; the mode of control; payment and so forth. There is little similarity to the system of control exerted directly by the Government of Vanuatu. Moreover, Vanuatu is a republic not affected by specific powers and immunities vested in the British Crown which is not the nominal head of Vanuatu.

For the foregoing reasons we consider that the Police Act 1964 is not an Act of general application nor can s.48 which was enacted for specials reasons associated with the Crown's immunity be applied to Vanuatu.

The learned judge's ruling is accordingly upheld on that issue.

The learned Attorney General has submitted in his appeal that the learned judge had given no reasons for substituting the Government (i.e. A.G.) in the place of the Police Commissioner once he had decided that S.48 of the Police Act 1948 did not apply.

S.48 enables the English local authority to be sued vicariously. Why did the learned magistrate resolve that in Vanuatu the Government should be liable?

There can be no doubt that under the Constitution the English common law rule that a master is vicariously liable for the torts of his servant applies in Vanuatu.

No argument arises as to whether the Government of Vanuatu is the employer of its police force. Therefore unless some immunity is vested in the Government of Vanuatu relieving it from any liability for its torts and that of its servants the Government, in the person of the Attorney General, would be the proper defendant.

In that respect, it is note-worthy that an appearance on behalf of the Police Commissioner was entered by the Attorney General, and the defence was filed by the Attorney General.

At the hearing the Attorney General appeared for the defendant.

The learned judged under o.11 r.2 substituted the Attorney General as Defendant in place of Mr Holloway (Police Commissioner). There can be no doubt in the circumstances that this was the proper course. The substitution makes no difference to the fundamental aspects.

The next issue is as to quantum.

There is a claim for 2 months loss of wages during his wrongful imprisonment at VT.8,500 per fortnight, and income from fishing worth VT.1000 per month. But the statement of claim does not allege that at the time of his arrest the plaintiff was in employment; it does not state where he was employed; not what his employment was. There is no claim for loss of wages after his release from prison e.g. by the space of time taken to get himself re-instated. He may have lost his job if he had one.

When he gave evidence he offered none of the particulars we mentioned. The plaintiff could have simply reached into his imagination and extracted any figures he thought he could get away with. His cross-examination was brief. There has been no complaint from the Attorney General that the judge accepted such evidence which is certainly not the best evidence. Had there been any objection raised by way of submission in the Court below or in the Attorney General's cross-appeal, we may have disallowed that part of the claim. However, since it is not challenged in any way, we allow it to stand.

The claim for general damages was allowed but the amount of VT.1,000,000 was reduced to VT.180,000.

A claim for VT.5,000,000 by way of exemplary damages was disallowed.

In the time available it is not possible to go into this aspect in great detail.

Exemplary damages may perhaps be awarded where there is some deliberate oppression, where a tort is committed somewhat flagrantly, where warnings against repetition of such conduct have been given. Factors of that nature are not apparent in this case.

It appears to us that Harrisen was probably the victim of inefficiency in the police and prisons departments, that there was some lack of supervision by competent police and prison officers responsible for checking that prisoners are not languishing without appearing before magistrates according to law. Maybe some system of checking, re-checking and over looking should be adopted, or if it exists it may need over-hauling. But such a situation whilst regrettable is not attributable to behaviour which demands some form of positive sanction unless it is allowed to continue.

We consider that exemplary damages are not called for.

Regarding the quantum of general damages, Mr Coombe submits that the learned judge did not give full weight to the humiliating mode of arrest.

We take the view that there is some justification for that complaint. The judge had held that Harrisen was properly arrested on the second occasion as an escaped prisoner under a magistrate's warrant and that handcuffs were justified in dealing with an escapee. As we have indicated the second arrest was unlawful in that the warrant had no good foundation in the circumstances of this case. Not only should he not have been arrested, he should not have been arrested at 4.00 am, and handcuffed.

Damages should be enhanced on this ground.

The judge observed that Harrisen was a self-confessed thief and this no doubt affected his award. He referred to statements made to the police by Harrisen to the effect that he had been involved in unlawful entry and theft. But he relied on the evidence of Harrisen in the proceedings that he and others had joined in an unlawful entry and the stealing of money in 1979. It was evidence given by Harrisen which has a bearing on his own reputation and character.

We do not think that the magistrate was entitled to contemplate what the result would have been if Harrisen had been tried for the offence for which he was first apprehended. He may have been acquitted after a full trial. It was not proper to suppose that he may have been languishing in prison except for some quirk of the law.

We consider that the damages were improperly limited on that ground.

Nevertheless, we acknowledge that the learned judge is a resident in Vanuatu. He has been on the bench as magistrate and judge for some years. He is in a good position to assess the amount of damages likely to be appropriate. We do not think that this can be dissected and minutely examined.

Although VT. 180,000 was a sum which we must regard as too low it is not because we think his appreciation of the economic basis for general damages was onerous. We have found it was because he did not allow for the second arrest being unlawful and assumed that Harrisen was lucky to be at liberty. Allowing for those factors we consider that a proper award would have been VT.250,000.

The learned judge's total award is increased to VT.284,840.

The plaintiff is entitled to his costs in the Court below and in this Court, to be taxed in the usual way.

14 December 1984

L. CAZENDRES
APPEAL JUDGE

J.T. WILLIAMS
APPEAL JUDGE