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Wehrenberg v Suluka [2010] FJHC 393; HBC079.2006L (10 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 79 of 2006L

BETWEEN:

FRED WEHRENBERG
Plaintiff

AND:

SEKAIA SULUKA DC1380 CRIME OFFICER RAKIRAKI
1st Defendant

AND:

TAO POLICE OFFICER RAKIRAKI
2nd Defendant

AND:

EPARAMA CPL248 POLICE OFFICER RAKIRAKI
3rd Defendant

AND:

COMMISSIONER OF POLICE SUVA
4th Defendant

AND:

THE ATTORNEY GENERAL AND MINISTER FOR JUSTICE OF THE GOVERNMENT OF FIJI
5th Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Plaintiff in person
Mr. S Turaga

Solicitors: Self Represented Plaintiff
AG's Chambers for the Defendants

Date of Hearing: 8 September 2010
Date of Judgment: 10 September 2010

INTRODUCTION

[1] At the commencement of this trial I asked the parties to address me on why I should not refer this matter for investigation by the Fiji Independent Commission Against Corruption ("FICAC"), in the exercise of my powers under Order 35 rule 3 of the High Court Rules 1988. This was because Mr Wherenberg's Statement of Claim contained serious allegations of illegal activity against the Defendant police officers, other police officers and civilians who are not parties to these proceedings.

[2] I adjourned the hearing to the next morning to give the parties an opportunity to make written and oral submissions. After hearing Mr Wherenberg and Mr Turaga, counsel for the Defendants, I said I would delivery my judgment in writing which I now do.

THE CLAIM

[3] Mr Wherenberg filed his Writ of Summons and Statement of Claim four and a half years ago on 23 March 2006. He has represented himself through out. His claim is for compensation for "Physical and Mental Torture and Cruel, Inhumane and Disproportionately Severe Treatment" and for "Malicious Prosecution" by the police. The first part of the claim relates to Mr Wherenberg's alleged unfair treatment by police including assault on 8 May 2003. The second part also relates to this assault as well as to a charge of common assault dating back to 3 June 1999. He says the 1999 prosecution was malicious. He gave the following particulars of malice in paragraph B5 of his Statement of Claim:

• (a) Prosecuting the Plaintiff despite the full knowledge that he was the innocent victim of approx. 25 members of an international illegal guesthouse racket, who were constantly criminally intimidating and attacking the Plaintiff on his own freehold property at Nananu-i-ra Island since 1990.
  

The Police Prosecution then deliberately used these attackers against the Plaintiff by presenting them as complainants and witnesses in Court to be able:

(i) To make the Plaintiff complainant to follow the gangs ridiculous demands

(ii) To convict the Plaintiff, who is the innocent victim, and then push for deportation.

(b) Prosecuting the Plaintiff for OBSTRUCTION despite the following facts:

• (i) The full knowledge that the Plaintiff has all approvals from the relevant authorities to erect signboard and concrete walls on his freehold property at Nananu-i-ra Island necessary to protect life and property.
  

These approvals were granted because of the life-threatening attacks and the Police refusal to take offenders to justice.

(ii) That the Ra Rural Local Authority, Director of Lands, DPP's Office and Fiji Human Rights Commission advised the Police about the Plaintiffs approvals, prior to prosecution.

(c) Prosecuting the Plaintiff for OBSTRUCTION in order:

• (i) To have the Plaintiffs government approved security measures removed, so that the attackers have unlimited access into his property.
  
• (ii) To make the Plaintiff leave his freehold property, as it would be too dangerous for the Plaintiff to live there without security measures, in particular as the Plaintiff is denied equal protection by the Police Force.
  

(d) Refusing to follow the directive of the DPP's office to withdraw the charge of COMMON ASSAULT against the Plaintiff immediately on 6.10.1999, but insisting to keep the charge against the Plaintiff in the Rakiraki Magistrate's Court system for another 20 months, as a means of intimidation against the Plaintiff.

[4] Mr Wherenberg also alleged in paragraph A7 that the Defendant police officers worked very closely with others including members of the illegal guesthouse racket to intimidate him and his wife and to damage their property.

HEARING OF THE PRELIMINARY POINT

[5] Mr Wherenberg filed written submissions and made oral submissions. He is an avid record keeper. He has tabulated 1,767 "incidents" of criminal activity against him by the Defendant police officers, other police officers, his neighbours and other civilians between 17 November 1990 and 13 July 2004. He also tabulated the cost to repair the damage to his property as a result of these alleged attacks. Basically, Mr Wherenberg says that he feared for his life and that of his wife because he does not trust the police. That was the result of many years of dissatisfaction with lack of police action. When asked whether he had seen the current Commissioner of Police he said there was no point because he had lost confidence and trust. I asked if it would help if I directed that the Commissioner hear his complaints, current and past, he said he welcomed it but it was obvious he had reservations as to the effectiveness of such a meeting. Mr Wherenberg would only be happy if I directed the Human Rights Commission to investigate his complaints because the Commission was one of the institutions that had given him satisfaction in the past.

[6] Mr Wherenberg did not want me to refer his complaints to FICAC. Firstly, because he said some of the police officers that he had complained about are now working there. Secondly, he said he was not willing to give names of private citizens involved in this illegal guesthouse racket for his own protection. He was not even willing to give the names to the Commissioner of Police. He said he had filed affidavits by leave of Finnigan J detailing all his allegations and there was no need for investigation by FICAC.

[7] When asked whether he would be prejudiced if the matter was referred to FICAC, he said he had incurred costs and expenses which would be continuing, and memories of witnesses would have faded. When asked how many witnesses he proposed to call he said himself, his wife and one other person. Neither Mr Wherenberg nor his wife looked in ill health and the other witness too appeared to be in good health.

[8] Mr Turaga submitted that Mr Wherenberg had tainted the police. He submitted that police would not be prejudiced if I referred the matter to FICAC.

[9] In response, Mr Wherenberg again pleaded that I not refer the matter to FICAC because he did not trust its officers, even though the specific allegations in this matter had not been previously raised by him with FICAC. He would rather that I refer it to the Human Rights Commission.

CONSIDERATION OF THE PRELIMINARY POINT

[10] Order 35 rule 3 of the HCR provides:

The judge may, if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.

[11] The provision gives me wide powers. I need to consider the interests of both parties as well as the resources available to the court.

[12] One of the reasons for raising the preliminary point was my concern for Mr Wherenberg's lack of legal representation. However, that did not seem to disadvantage him in presenting his case including argument on the preliminary point.

[13] I took the view that these allegations were better investigated by some other agency such as FICACA which has better resources and all the necessary powers for such a task than this court. Also, Mr Wherenberg's claims may not be fully ventilated because of the nature of judicial process. I gave him, as an example, where he made an allegation against a police officer who was not called to give evidence in rebuttal. In such a case, I could, as a matter of law, accept his evidence as uncontested. The police officer may have been absent for very good reason and could have contested the allegation and might have accepted his version rather than Mr Wherenberg's. That could be unfair for the Defendants. On the other hand, I could reject Mr Wherenberg's evidence because I simply did not believe him, but had the allegation been fully investigated, by FICAC for instance, such evidence would be available to him to convince me otherwise.

[14] I do not think that the police officers or the State would be prejudiced one way or the other. On the other hand, Mr Wherenberg's frustrations with the police are obvious. He wants a civil suit in his favour because he says that in the past the intimidation and harassment of he and his wife only stopped after he obtained some relief from the civil courts.

[15] Having taken all these into consideration, I think I should accede to Mr Wherenberg's request that this court hear his claim. But he must understand that his claim is limited to what he has pleaded in his Statement of Claim. He will be required to limit his evidence to the matters so pleaded and nothing more. The hearing is not to be used as an opportunity for him to re-open past allegations other than the two incidents pleaded, that is to say, paragraphs A7 and B5, of his Statement of Claim.

[16] This trial is therefore adjourned to the Registry to await allocation of another civil judge to hear it this year because of my other court commitments, if the parties so wish, or to be called next year when I become available. The parties and their counsel will be notified in due course.

[17] However, I feel duty bound to still refer the matter to FICAC for investigation if the Director feels appropriate. I am informed by Mr. Turaga that some of the police officers alleged of wrong doing are serving officers. I do not think it is fair on them that these allegations remain unresolved. I am therefore directing that the Deputy Registrar photocopy all affidavits filed in this case including a copy of this judgment and send them to the Director of FICAC with a request that he take whatever action he feels appropriate.

COSTS

[18] As this application arose out of the court's own motion I make no order as to costs.

ORDERS

[19] The trial is adjourned to the Registry awaiting allocation of a civil judge to hear it. The Registry will send the Notice of Adjourned Hearing accordingly.

[20] I direct the Deputy Registrar to photocopy all affidavits filed in this matter and a copy of this Judgment and send them to the Director of the Fiji Independent Commission Against Corruption with a request that he take whatever action he thinks appropriate.

[21] Liberty to apply on 7 days notice.

[22] There is no order as to costs.

Sosefo Inoke
Judge