IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO.: 369 OF 2003

BETWEEN

JAMES SATISH BACHU
PLAINTIFF

AND

THE COMMISSIONER OF PRISONS
FIRST DEFENDANT

THE COMMISSIONER OF POLICE
SECOND DEFENDANT

THE ATTORNEY-GENERAL OF FIJI
THIRD DEFENDANT

Mr. P. Knight - Counsel for the Plaintiff
Mr. S. Sharma with Ms S. Serulagilagi - Counsels for the Defendants

Date of Hearing: 23rd March 2007
Date of Submission: 17th April 2007
Date of Judgment: 27th April 2007

JUDGMENT

Background:

[1] The tort of false imprisonment often raises intriguing issues. This is one such case. The issue is whether a person remanded in custody by a Magistrate in criminal proceedings which are later declared a nullity by the High Court because the statutory sanction of the Director of Public Prosecutions necessary for the charge was not obtained, is entitled to damages for false imprisonment or malicious prosecution.

[2] James Bachu in 2002 was a market vendor and operated a stall at R.B. Patel Centerpoint, Nasinu. He is also the founder and President of Fiji Citizens Freedom Movement. The aim of this movement is protection of human rights and rights guaranteed by the Constitution of Fiji.

[3] On 8th January 2002, he caused a media release to be issued warning people to keep away from the Government Buildings, police stations, prisons and military camps. He said that his organization had received information that some terrorist elements were going to disrupt the government and various departments. He was by this media release trying to warn the public of danger and also trying to let the terrorist elements know that they were aware of the plot. As a result of the media release and a fax received by police he was arrested, his house was searched and some banners and placards seized. He was kept in custody for two days. He was charged under Section 116 of the Penal Code for holding out threats to persons employed in Public Service. He was then taken to Magistrate Court.

[4] The court remanded him in custody and he remained remanded from 10th January to 15th  February. On 15th February 2005 he was set free by the High Court on the grounds that the proceedings were a nullity as the offence for which Bachu was charged required the sanction of the Director of Public Prosecutions. This sanction it held was not obtained.

[5] Mr. Bachu is seeking damages for wrongful confinement for the period of two days while he was in police custody and for the remainder 36 days while he was in remand in prison by order of a Magistrate.

Defence:

[6] The defendants' defence is that the plaintiff’s arrest was lawfully done. They also allege that the sanction of the Director of Public Prosecutions had been obtained even though the DPP had not signed a certificate as evidence of such sanction.

Issues:

[7] The issues which confront the court are:

(a) whether the initial arrest of the plaintiff was lawful;

(b) whether the remand of the plaintiff from 10th January to 15th February 2002 amounted to malicious prosecution;

(c) how much if any damages ought to be awarded to the plaintiff.

WAS THE PLAINTIFF LAWFULLY ARRESTED?

[8] At common law a police officer like an ordinary citizen is liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence: Hill v. Chief Constable of West Yorkshire - (1988) 2 ALL ER 238, 241.

[9] The tort of false imprisonment involves the infliction of bodily restraint which is not expressly or impliedly authorized by law. The plaintiff does not have to prove fault on part of the defendant. It is a tort of strict liability: R. v. Governor of Brookhill Prison - 2000 4 ALL ER 15 at 20 d.

[10] The burden of proof of lawfulness of the arrest is upon the defendant. In Eshugbayi Eleko v. Officer Administering the Government of Nigeria - (1931) AC 662, at p. 670 Lord Atkin stated that “no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice”. Therefore it is for the defendant to justify the arrest. Bullen & Leake on Pleadings & Precedents 15th edition at page 42 paragraph 2-07.1 state “where a claimant makes a claim for false imprisonment, the burden of proof is on the defendant to justify that imprisonment. For the burden of proof is on the defendant to justify the claimant’s arrest or subsequent detention as lawful”.

[11] The plaintiff in the final submissions submitted that he was charged under
Section 116 of the Penal Code which is a misdemeanour. Therefore the police officer should not have arrested the plaintiff without a warrant. The offences for which a police officer may arrest without a warrant are set out in Section 21 of the Criminal Procedure Code Cap 21. The Code in the first schedule provides offences for which an officer may arrest a person without a warrant. The schedule provides that a police officer shall not arrest a person without a warrant for Section 116 offence. Clearly the police were not entitled to arrest the plaintiff without a warrant.

[12] Mr. Sharma submitted that this issue of arrest without warrant was not raised in the pleadings and it is addressed for the first time in the addresses.

[13] The statement of claim was prepared by the plaintiff in person so it may lack some clarity. However in paragraph 10 of his claim the plaintiff asserts he was “wrongfully charged under Section 196 of the Penal Code" and "wrongfully arrested and detained in custody at the Suva Police Station”. While it would have been desirable for the plaintiff to give some particulars of wrongfulness of arrest, it nevertheless did not prevent the defendants if they wished, to seek those particulars. Order 18 Rule 11 of the High Court Rules requires that pleadings provide necessary particulars in certain instances if allegation of misrepresentation, fraud or breach of trust are made. Wrongful arrest and custody are not included in that list.

[14] The defendants' defence in paragraph 6 only addresses the issue of plaintiff being "wrongfully charged". It does not address unlawful arrest and detention. The defence does not deny that the arrest was unlawful and therefore the plaintiff could deem that wrongful arrest was admitted -see Order 18 Rule 12(1).

[15] There is no dispute that the plaintiff was arrested by police on 8th January 2002 sometime after 4.00 p.m. and remained in police custody until 10th 
January 2002 that is for a period of two days. He slept in the police cell for two nights. There was total restraint of his liberty by police for two days until he was taken to court.

[16] The police officer may have had reasonable grounds to arrest the plaintiff. However, that arrest could only be made if a warrant for arrest was first obtained in terms of Section 21 of the Criminal Procedure Code.

[17] Accordingly I find that the plaintiff’s initial arrest and his detention by the police for the period of two days was unlawful.

PERIOD IN REMAND - DID IT AMOUNT TO MALICIOUS PROSECUTION?

[18] Different considerations apply where the opinion or judgment or order of a judicial officer is interposed between the charge and imprisonment or remand. A judicial officer namely a magistrate acts according to his own judgment; he is not the agent of the prosecuting authority or the police. The Commissioner of Police or Prisons cannot be made liable for acts of the magistrate.

[19] The law is clear. If a plaintiff is wrongfully arrested without a warrant and is taken before a court which remands him in custody, the proper remedy for the initial arrest is false imprisonment but there is no liability for the period of confinement subsequent to the remand unless it is for malicious prosecution -Diamond v. Minter 1941 1 KB 656 at 663.

Elements of malicious prosecution:

[20] To succeed in a claim for damages for malicious prosecution the plaintiff must plead and establish that –

1) he was prosecuted by the defendant in that proceedings on a criminal charge were pressed and continued against him;

2) that the proceedings were terminated in his favour;

3) that the proceedings were instituted without reasonable and probable cause;

4) the defendant instituted the proceedings maliciously;

5) that he suffered loss and damages as a result of such action: Alikisio Nainima v. Commissioner of Police & Attorney General - HBC 306 of 1998 Lautoka.

It is for the plaintiff to prove each of the above elements on balance of probability.

[21] The first two elements pose no difficulty.

[22] There is no doubt that charges were pressed against the plaintiff and that the proceedings were terminated by the High Court as the sanction of the Director Public Prosecutions was not obtained. The defendants admit this.

Probable Cause:

[23] It is in respect of element 3 and 4 that the plaintiff runs into difficulty. The evidence shows that the plaintiff had by press releases warned people not to go near certain government buildings and installation. The press release was expressed in very strong terms. In cross examination the plaintiff agreed that his press release included the words “I have given orders to my second in command to carry out planned strategies to finish off each and every terrorist who took part in the overthrow of government and for assisting in the attempted coup of 2000 to abrogate the constitution”.

.[24] Anyone reading this would probably suspect that there was an organized vigilante group who had plans to kill terrorists. This is serious threat. It meant some people were prepared to take law into their own hands. Naturally the police had to track the author of the release. The police did track the plaintiff down and interviewed him.

[25] All the police needed was honest belief in the guilt of the accused based on reasonable ground. In preventing and investigating crime, quick decisions have to be made. At this stage of investigation, the police are not delicately trying to assess whether there is proof beyond doubt. The police need to have a reasonable suspicion that a crime has been committed. Reasonable suspicion can even be based upon evidence which later may be found inadmissible in a court of law.

[26] I find that the police had reasonable and probable cause in laying the charge. The plaintiff has failed to prove this element.

Malice:

[27] The plaintiff in addition to lack of reasonable and proper cause must also show malice. Malice in a malicious prosecution is not used in the sense of hatred or spite but rather prosecution driven by improper or ulterior motives.

[28] The pleadings make no reference to malice or any improper motives. The police after investigating the offence handed the file over to the Director of Public Prosecutions. The magistrate's court records show it was an officer from the Director of Public Prosecutions who prosecuted.

[29] I am of the firm belief that the sanction of the Director of Public Prosecutions was not obtained. The prosecution was unable to show it to the High Court in the bail application. Except for a statement that there was a paper on the file, nothing else was presented. This would be a very material paper and one would have expected the defendants to keep it. It is neither listed in the list of documents nor was it tendered. The failure to get sanction of the Director of Public Prosecutions occurred at the office of the DPP. It was an act of oversight or may be negligence. Negligence cannot be equated with malice.

[30] In the case of Samuela Tuilole v. Attorney General of Fiji - NBC 229 of 2002 the plaintiff had been charged for offence under the Prevention of Fires Act which statute had been repealed. The court struck out the action on the ground that the plaintiff failed to show absence of reasonable and probable ground. In Percy v. Hail - (1996) 4 ALL ER 523 the English Court of Appeal held that in an action for false imprisonment or wrongful arrest, the defendant can rely on the defence of lawful authority even though the bye-law under which he acted is declared invalid.

[31] The plaintiff in a malicious prosecution action has to prove both absence of reasonable and probable cause and malice: Raza v. Ilansinghe - (2000) 1 FLR 160. The plaintiff has failed to show both.

Statutory Provisions - State Proceedings Act - Section 3:

[32] This section was not pleaded nor raised at the pre-trial conference minutes. It was considered in defendant's submission. Section 3(5) of the above Act provides:

“(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process.”

The remand was done by a Magistrate acting in his judicial capacity. The Magistrate was acting within his jurisdiction. This section obviously applies.

[33] Accordingly I conclude the claim for malicious prosecution fails both on basis of common law because the plaintiff has failed to show absence of reasonable and probable cause and also malice. Further Section 3(5) of State Proceedings Act provides the state immunity where the act is of a judicial officer. The plaintiff however has succeeded in showing wrongful imprisonment while being detained by police for which he is entitled to damages.

DAMAGES:

[34] The plaintiff was taken by police from his vegetable stall at Centerpoint. This would have been done in view of other vendors and public and perhaps subject of some gossip by those who witnessed it. He was detained for two days and he remained in a police cell for two nights which must have been an unpleasant if not a shocking experience for him.

[35] However there is no evidence that he was ill-treated by police in any way. He used to earn $500.00 per week whether over a seven day period or a shorter week I am not told. He probably bought vegetables and sold them. I calculate his profit at $50.00 per day that is $100.00 for two days. He also lost placards and a banner all valued at $350.00. So his special damages are $450.00.

[36] The circumstances of false imprisonment can vary enormously from case to case. The awards for exemplary damages are awarded where the defendants behave outrageously and compensatory damages are insufficient to punish the defendants: Josaia Vakaco v. Commissioner of Police & Attorney General - HBC 145 of 1998; Sivarosi Raikali v. Attorney General & Commissioner of Police - (1999) 45 FLR 313.

Exemplary damages:

[37] The primary object of damages is to compensate the plaintiff for injuries caused or harm done. A secondary aspect (incidental) is to punish the defendant. This is achieved by topping up the compensatory damages with what are called exemplary damages or punitive damages.

[37] The starting point for consideration is Rookes v. Barnard (1964) 1 ALL ER 36 - House of Lords decision where Devlin J described three situations which call for award of such damages:

(1) for oppressive, arbitrary or unconstitutional action by the servants of the government as where police assault a suspect.

(2) Where a defendant's conduct is aimed at making a profit for himself e.g. newspapers trying to make a profit belittle a public figure. It would give greater circulation.

(3) Where a statute provides for exemplary damages.

The High Court of Australia in Uren v. John Fairfax & Co. Ltd. (1966) 117 CLR 118 expressed disagreement with the House of Lords and considered that such damages can be extended to other torts in proper cases. It stated that such damages should be as a matter of discretion for the court where is appears that the defendant's conduct in committing the tort showed a contumelious disregard for plaintiff’s rights:

 “damages of that character might be awarded if it appeared that, in the commission of the tort complained of, the conduct of the defendant had been high handed, insolent, vindictive, malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights.”

[38] Regardless of whether one follows the House of Lords or the Australian test, the conduct of the police in this case was neither outrageous nor vindictive nor oppressive nor designed to make a profit. I very much suspect that the public safety was uppermost in the mind of the police when they went to arrest the plaintiff. This case does not warrant a grant of exemplary damages.

[39] I consider a sum of $1,500.00 per day as adequate compensation that is a total of $3,000.00 for false imprisonment.

FINAL ORDERS:

[40] Accordingly I award a sum of $450.00 special damage, $3,000.00 compensatory damages together with costs which I summarily fix in the sum of $2,250.00. There is therefore judgment for plaintiff in the sum of $3,450.00 together with costs in the sum of $2,250.00.

[Jiten Singh]
JUDGE

At Suva
27th April 2007