Rodrigues v Republic of Vanuatu [2005] VUSC 152; CC 192 2004 (7 October 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No.192 of 2004

BETWEEN:

HELDER RODRIGUES
Claimant

AND:

THE REPUBLIC OF VANUATU
First Defendant

AND:

PUBLIC PROSECUTOR
Second Defendant

Coram: Chief Justice Vincent LUNABEK

Counsel: Mr Robert Sugden for the Claimant
Mr Kiel Loughman for the Defendants

REASONS FOR JUDGMENT ON QUANTUM
OF DAMAGES

INTRODUCTION

This is a claim for damages for false imprisonment and malicious prosecution made by the Claimant, Mr Rodrigues, against the Government of Vanuatu.

On 15 December 2004, default judgment was entered against the First and Second Defendants. The Court has then to assess the quantum of .damages.

On 7th October 2005, the Court made the ORDERS to the following Effect:-

'ORDER

1. The Claimant is entitled to:-

(a) Damages for false imprisonment against the

First Defendant .................................... VT 350,000

(b) Damages for Malicious prosecution against the

Second Defendant ................................ VT 250,000

(c) Aggravated damages against the First Defendant ... VT 50,000

(d) Special damages (return air fares) ..................... VT 87,424

(e) Accommodation .......................................... VT 47,165

________

VT 734,589

=======

2. Both counsel agree for VT 700,000 for costs and incidentals.

3. The Claimant is awarded a total of: VT734,589 + 700,000 = VT 1,434,589.
   
4. The Defendants to pay the amount of VT 1,434,589 within 30 days from the date of the Orders.
   

Dated at Port-Vila this 7th day of October 2005

...'

SUMMARY OF FACTS

On 28th May 2004 at around 6:30PM the claimant was on the footpath outside Bamboo Royal Restaurant in Port Vila. The police arrested him and took him to the central police station in Port Vila and kept him in the cell of which his personal belongings were all removed from his possession.

He begged to be allowed to call his lawyer or the Australian High commission but was refused by the Police Officers in charge. After few strong requests a representative from Australian High Commission was permitted to speak to him but his lawyer was not allowed to talk to him.

He remained in the cell until the next morning at around 9:00am when he was brought to Court. He was charged for making false customs declaration, contrary to Section 52(1)(e) of the Custom Act No. 15 of 1999. On the 13th July 2004 the charge was withdrawn by the Prosecution. The Claimant then brought proceedings against the Defendants for false imprisonment and malicious Prosecution.

On the 15th December 2004, a judgment was entered against the first and second defendant by default. There is no dispute as to liability. Both parties call evidence in respect to quantum of damages.

EVIDENCE

The Claimant’s evidence came from himself and another witness.

The claimant filed two separate sworn statements on 4th May 2005 and 28th May 2005. He states that his action is brought in relation to his claim against the Defendants for false imprisonment and malicious prosecution. He said that on 28 May 2004 at 6:50pm few policemen at Bamboo Royal Restaurant, Port-Vila arrested him. The Police Officers were on 3 Police vehicles. Some of the Officers approached him with a piece of paper and he couldn’t see clearly what it was. He said he was seized and forced to the truck.

He stated further that his personal belongings were all removed. The Police Officer refuses his demand to speak to his lawyer and any of his friends. After few strong requests a representative from Australian High Commission was permitted to speak to him but his lawyer was not allowed.

Evidence also shows that he was very stressful during the time he spent in police cell. The cell was extremely uncomfortable.

He said that the total cost for retaining the Lawyer in relation to the said charge was 314,000VT. The cost of Airfares from Sydney to Vila and return is at AUD1,1028.40 and 3 nights accommodation of AUD555.000.

In cross-examination the claimant stated that he was arrested by the Police Officers but no force was used. He was not pushed to the truck, nor assaulted. He confirms that he was refused to speak to a lawyer and he was placed into the police cell which is in a very bad condition. He mentioned that he was released by the Court. He returned to Australia and was advised of the withdrawal of the charge while he was still in Australia. However his Counsel advised him to come on his own costs.

The Claimant called Mr. Tony Ryan in the witness box. Mr Ryan stated that he Knows Mr. Helder Rodrigues and had had many business dealings with him over the past years. His evidence shows that his company was responsible to do a declaration for shipment through customs. The claimant advised him later that the invoice had been changed. Customs was made aware of the changes. He confirmed that he did receive a phone call from the claimant that he was arrested and the phone end abruptly.

This witness went to the Police station but was refused to talk to the claimant. He then returned again with Mr Robert Sudgen but both were also refused to see the claimant. Mr. Ryan then informed Marion Pydde who was the counsel representing Australia High Commission in Port Vila who was then allowed in to see and speak to the Claimant.

In cross-examination Tony confirmed his statement but he didn’t see anything such as the arrest. He confirms that the Claimant was put in cell and this was not disputed. His business is not affected by the arrest of the Claimant.

EVIDENCE OF THE DEFENDANT

The Defendant called one witness. Mr. Joshua Bong. His evidence shows that he has served as a member of the force for 26 years. He confirms that he arrested the claimant on Friday 28th May 2004. In his evidence he said that he went by the Taxi with another friend of which their arrested the claimant at Bamboo Royal Restaurant.

He states that there were no people around at that time and that he explained every details of the charge to the claimant and arrested him, which was around 8:00PM - 8:30PM. He took him to the police station and didn’t stop him to seeing a lawyer.

In cross-examination he admitted that there were three other Police Officers with him. He arrested after consulting the Prosecution Office.

His evidence is that, he was acting on behalf of the Customs Department upon the advice and complaint he received from Andrew at Au Bon Marche. He stated there no people at the time of arrest. Moreover he sought advice in order to laid charges against the claimant.

FINDING OF FACTS

The findings of facts clearly show that Colonel Bong did arrest the claimant on Friday the 28th May 2004 with three other Police Officers. The claimant was arrested but there was no force applied against him. The arrest occurred between 7.00PM to 8.00PM o’clock.

The Claimant was kept in the police cell over the night from 28 May 2004 to 9.00AM o’clock the next morning when he appeared in Court.

The environment, condition of the cell was humiliating and caused the Claimant to suffer over the night. Further more the court found that his rights were also affected as he was not allowed to speak to his Lawyer or a friend. There was no good reason as to why the police officers at the police cell refused the claimant to see a lawyer.

The arrest occurred. It was not a forced arrest. The Claimant was placed in a police cell without access to a lawyer. The charge laid against the Claimant was withdrawn by the Public Prosecutor.

There was no evidence of damages of his business reputation. There was evidence of how the Claimant felt of his personal reputation but no actual evidence was shown in respect to the loss of the business reputation in Vanuatu and Australia as a result of his arrest. This was confirmed by the evidence of Mr Ryan that the arrest doesn’t affect his business and his dealing with the said claimant. There was no many people around at the time of arrest. However, the arrest was known by the police in Port-Vila.

Moreover, the Claimant was advised of the withdrawal of the Prosecution case, while he was still in Australia. However, on his counsel’s advice he flew to Vanuatu despite the withdrawal of the charge against him by the Prosecution.

APPLICATION OF THE LAW

1. Damages for false imprisonment
   

The claim under this heading is the result of the false imprisonment against the First Defendant. The Claimant’s by counsel submitted that false imprisonment is not only on a person’s liberty but also on his dignity and reputation and this reflects in the calculation of damages. The loss of time is to be also considered and even to mental suffering, disgrace and humiliation.

Mr Sugden referred the Court to the English Case of Thompson v the Commissioner of Police [1997] EWCA Civ 3083; [1998] QB 498 and submitted it should be considered in assessing the damages under this head as the first consideration. He submitted also that the approach taken in that case is a practical and sensible approach and it gives realistic measures of damages. The Court in that case held that 24 hours of imprisonment should be awarded at approximately 579,000 Vatu. The court in this case must consider the night spent in jail for the said claimant, stressfulness and uncomfortableness inside the cell of which the claimant stayed from 6:30pm to 9:00pm in the next day. He was denied access to see a lawyer of which his rights were infringed.

The Defendant counsel on the other hand submitted that the arrest was not that of forceful nature. He referred the Court to the case of Benard v Minister for Immigration [2001] VUSC 20; Civil Case No. 30 of 1997 in which the Supreme Court awarded damages for unlawful arrest and false imprisonment.

Having considered both submissions in the above head, the English Case of Thompson v. the Commissioner of Police (1998) QB498 must be distinguished from the present case. This case must be assessed on its own facts. The Claimant was arrested late in the afternoon and was kept in cell until 9:00 am o’clock the next day. The evidence further shows that the Claimant was put into the cell and was denied his right to have access to a Lawyer or to consult someone for assistance. Therefore I assess and award a damage under this head of VT350,000.

2. Damages for Malicious prosecution
   

The claim under this head relates to the charge laid against the said claimant. The charge was laid on 28 May 2004 until withdrawn on the 13th July 2004. The claimant’s Counsel submitted that the Thompson case should be considered of how it awarded damages under this head. Further more he submitted that the claimant did suffer humiliating and loss of reputation as a result of bringing a criminal charge against him which was then withdrawn.

The Defendant Counsels submitted that the case should be distinguished from Thompson case as in that case the claimant was-

• subjected to trial,
• deprived of her freedom during trial,
• false evidence was used during trial,
• and claimant sitting and listening to all the false evidence
  

I accept this submission. The English Case of Thompson must be distinguished from this case and I do so in the present case.

In this case, a criminal charge was laid against the Claimant on the basis of wrong information. This brings humiliation and loss of reputation as a result of the criminal charge. The charge was laid on 29 May 2004. On 24 June 2004, the Public Prosecutor wrote to the Claimant and his lawyer advising that the Prosecution will withdraw the charge against the complainant. On 13 July 2004, the Magistrate’s Court withdrew the charge against the Claimant and discharged him of the said offence accordingly.

I assess and award an amount of VT250,000 for this head.

3. Aggravated Damages
   

Having considered the evidence under this head, it is clear that the only aggravating feature is the fact that the Claimant was refused access to a lawyer for the time (one night) he spent in the cell. This affects his rights, reputation and personal feelings.

The Claimant is entitled to an award assessed at VT50,000 on its own facts.

4. Exemplary Damages

The evidence shows that a criminal charge was laid against the Claimant. He was arrested and brought to police cell. He was then brought to the Court the next day in the morning. The facts of this case do not warrant the award of an exemplary damage. Damages sought under this head are refused.

5. Special Damages
   

The Claimant is entitled to the cost of the air fares occasioned by the prosecution being the travel from Sydney to Vila and return for the hearing of 13 July 2005 amounting to AU$1,028.40 and the costs of 3 nights accommodation for the hearing of AU$555,00. The special damage award is totalling VT134,589.

6. Costs

Both counsel agree to a total costs of Vatu 700,000 for the Claimant against the Defendants.

ORDER

1. The Claimant is awarded a total of:

VT734,589 + 700,000 = 1,434,589 VT.

2. The Defendants to pay of the said sum within 30 days from the date of the Order.
   

DATED at Port Vila this 7th day of October 2005

BY THE COURT

Vincent LUNABEK
Chief Justice