State v Basa [2011] FJHC 446; HAC138.2010 (18 August 2011)

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1. SAKIUSA BASA
2. RAYMOND JOHNSON
3. VILIAME FATAFEHI
4. ACA KOROI
5. GABRIEL WAQA

Counsel: Mr. Lacanivalu and Ms. S. Puamau for the State
Ms. Samanunu Vaniqi for the 1st Accused

1. This is an application for cost against the State by the 1st Accused Sakiusa Basa.

2. The Accused was indicted together with 4 other persons for one count of
Aggravated Robbery.

3. Fourth Accused Aca Koroi pleaded guilty to the charge. He was convicted and sentenced accordingly.

4. Trial proceeded against other four accused persons, almost at the end of the case for the Prosecution State Counsel filed a nolle prosequi and all were discharged from the case.

5. Being aggrieved with the prosecution the 1st Accused Sakiusa Basa had filed an application for cost.

6. The 1st Accused together with 4 others were produced before the Magistrate of Nasinu on 23rd July 2010, all Accused persons were remanded. State Counsel who appeared in this Court represented the prosecution at the Magistrate's Court, moved to transfer this case to the High Court. Accordingly the case was transferred to the High Court. All Accused persons were remanded by the Magistrate.

7. Initially this case (HAC 138/2010) was mentioned on the 6th August 2010 and the State Counsel moved for 21 days to file information and disclosures. Remand order on the Accused persons were extended.

8. On the 30th August 2010 information was served on the Accused persons. They moved the Court to transfer this case back to Magistrate's Court. But it was refused and the plea was taken. All Accused persons pleaded not guilty and they were further remanded.

9. On the 17th September 2010 the 4th Accused (Aca Koroi) pleaded guilty. The 1st Accused raised an objection on the charge. State undertook to consider the objection. The 1st Accused Sakiusa Basa filed a bail application and the State objected for bail.

10. On the 19th October 2010 Aca Koroi was convicted and the matter was fixed for trial on 28/03/2011 against other accused persons. Bail hearing was also postponed to the next date.

11. On the 4th November 2010 Aca Koroi was sentenced. The State Counsel moved to amend the charges. Further it was agreed to file proposed agreed facts on the next date. State objected for bail application.

12. On the 07th December 2010 when the bail application (HAM 201/10) was taken up for hearing the 1st Accused Sakiusa Basa submitted that his life is in danger, he is treated very badly, like a convicted criminal in the remand prison. State Counsel moved time to look in to the allegations and file a report on the next date.

13. Both the substantive matter and the bail application were mentioned on 19/01/2011. State filed a report. The State Counsel confirms that the 1st Accused Sakiusa Basa was kept in Solitary confinement because of disciplinary reasons. The relevant paragraph of the submission is quoted for easy reference.

"On the 27th of December 2010, the Commissioner of Prisons had paid a visit to the Naboro Maximum Prison and following a church service, he addressed the officers, remandees and convicted prisoners as he would normally do. While going about in his addressing speech, the Applicant kept his head down despite prison officers giving him warning to look up as the Commissioner was giving his speech. Despite these warnings, the Applicant continued to look down and as a result the Commissioner of Prisons directed that he be remanded in solitary confinement. He has been remanded on solitary confinement till today."

"Solitary confinement in Maximum Prison is a form of punishment of convicted prisoners. They are locked up 24hours a day in a dark cell that has no window, source of light or ventilation, other then a letter box typed window on the cell door. All meals are eaten in the dark cell, where the prisoner also goes to the toilet. The toilet bucket is changed at least 3 times a day, the prisoner is allowed out for a shower twice a day, for a total of 5 minutes. So in a 24hour period, the prisoner is in isolation, only allowed out for maximum of 20 minutes a day."

15. Since the State Counsel vehemently objected for bail on the 19/01/2011 the 1st Accused Sakiusa Basa appealed for an early date for trial and withdrew the application for bail. The trial was advanced to 07/02/2011.

16. The 1st Accused in the meantime had written to the Office of the Director of Public Prosecution (ODPP) that there is no evidence against him therefore they should consider entering a nolle prosequi against him. A copy of the said letter dated 22/11/2010 was submitted to the Court on 19/01/2011. In the said letter he had analyzed the evidence against him and suggested that there is no sufficient evidence against him. Further he had objected to the evidence of Henry Kalidole.

17. This case was mentioned on the 2nd February 2011 for a Pre-Trial Conference. On that day, agreed facts were filed.

18. Trial proper was taken up on the 7th February 2011. The State Counsel confidently submitted to the Court and Assessors that they have sufficient evidence against all 4 Accused persons.

19. Due to get proper picture of the case, this court, summarizes the evidence led in Court against Accused persons. State Counsel called Henry Kalidole as the 1st witness for the Prosecution. He said he was given immunity by DPP. His wife was working at Punjas, under the virtual complainant Patrick Chandra. His wife and the virtual complainant had an affair. Henry had told this to his neighbour and friend 1st Accused Sakiusa Basa and requested him to beat the virtual complainant. On the relevant date both of them with others had gone to Narere. There he dropped all and returned to his place. Thereafter this witness had gone there at 3am and picked them and dropped them back. This witness was arrested on the 17/07/2010 and statement was recorded after two days. It should be mentioned that the Prosecutor did not lead much if not any relevant evidence from this witness for an example what is the connection between Narere and the virtual complainant. To the contrary most of the details were brought out by the defence Counsel.

20. It is observed by this Court that the agreed facts were filed on 02/02/2011. In that it was mentioned that the Prosecution is going to lead the evidence of Henry Kalidole. The DPP had given the immunity on the 03/02/2011. (Marked as P1) It can be safely presumed that the immunity was given after due consultation and considerations.

22. State Counsel called Detective Constable 3408 Tino. He said that he is the Investigating Officer in the case. It is noted that the Prosecutor did not reveal anything from the witness. It is the Defence Counsel who brought out many details relevant to this case. According to the Investigating Officer the 1st Accused had not made any confession or admission of the offence. The 1st Accused also taken up a defence of alibi. Further this witness says that they recovered a jacket and a phone from the 1st Accused of which he had explained how he got the possession of those. He told that, it was given to him by Aca Koroi which was verified by the police.

23. It should be mentioned that the State Counsel had moved for an adjournment after the examination in chief of the 1st witness Henry Kalidole to consult his superiors and the DPP. He came back and informed the court that he is proceeding with the trial. Thereafter at least on 3 occasions he got the case adjourned to get instructions from his superiors. On the 2nd day he was assisted by a senior Prosecutor, who was present in Court.

24. On the 2nd day, the Prosecutor informed Court that he intent to enter nolle prosequi against 2nd, 3rd and 4th persons. The 1st Accused through his Counsel informed the Court that there is no case against him therefore delaying in discharging him will violate his rights. Therefore he will be moving for cost. But the prosecutors brushed out the application.

25. When the Prosecutor informed the Court that he is going to proceed with the trial the 1st Accused was further remanded. This Court was informed, subsequently that he was kept in solitary confinement on that night also.

26. On the 3rd day the State Counsel and his Senior Counsel appeared in Court and filed nolle prosequi against the 1st Accused.

27. The 1st Accused moved Court that he was unfairly treated by the ODPP and he is moving for cost.

28. Both parties were given time to make their submissions. Defence Counsel filed 5 written submissions and State filed 4 written submissions. Both Counsels made their oral submissions also.

It is noted by this Court that the State had changed their stance from one submission to another. On the 10th instant, the Court requested assistance from both Counsels to address the issue of jurisdiction. They were given time till 12th. The Counsel for the Legal Aid Commission filed it on time but the State filed it only on 16th August after 1pm. In the last Submission State had completely changed their position and submitted a different argument.

29. In the interest of justice this Court take notice of two other cases, when the proceedings were continuing in the Court in this case for cost on 5th March 2011 the 1st Accused and another were arrested and produced for another case (HAC 77/2011). That case was mentioned before this Court on 18/03/2011. The 1st Accused was remanded in that case also. The State moved for 1 week to file information and disclosures. State was given more than 2 weeks time and the case was mentioned on 5th April 2011. State Counsel informed the Court that they have enough materials to prefer a charge and moved for further time. Court reluctantly granted time till 25th May 2011. On the 25th May 2011 the State filed nolle prosequi against the Accused Sakiusa Basa. In the 2nd case the Accused Sakiusa Basa was remanded from 5th March 2011 to 25th May 2011. (nearly 2 months and 20 days).

30. In addition to the case mentioned in the above paragraph the 1st Accused Sakiusa Basa was arrested and produced in another case at the Magistrate's Court in Nasinu (Criminal Case No. 720/11) on the 11th of July 2011 and he was remanded. That case was also referred to the High Court under the Case No. HAC 213/11. Initially this case was called on the 25th July 2011 and the State moved time to file information and disclosures. The Accused raised an objection and stated to Court that he was falsely implicated in this case too. Court granted time till 2nd August 2011. On the 2nd of August the State moved further time to verify certain matters from the police. Court granted a final date till 8th of August 2011. And the matter was taken up on the 8th August 2011 and the State filed a nolle prosequi. In this case the 1st Accused was in remand in custody nearly a month.

31. Section 150 of the Criminal Procedure Decree deals with the application of Cost.

"1. A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty imposed.

2. A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines.

3. An order shall not be made under sub-section (2) unless the judge or magistrate considers that the prosecutor, either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter.

4. A judge or magistrate may make any other order as to costs as may be required in the circumstances to-

(a) defray the costs incurred by any party as a result of an adjournment sought by another party;

(b) recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) penalize a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

5. The costs awarded under this section may be awarded in addition to any compensation awarded by the court under this Decree or the Sentencing and Penalties Decree 2009.

6. Payment of costs by the accused shall be enforceable in the same manner as a fine.

7. In this section "private prosecutor" means any prosecutor other than a "public prosecutor".

32. The applicant submits that article 9 of the International Covenant on Civil and Political Rights (ICCPR) is applicable because his basic rights were infringed.

"1.Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

33. The Prosecution did not object for invoking article 9 of the ICCPR. On perusal of the list of signatories of the said convention, it was found Republic of Fiji had not signed and ratified. But the recent Decree on HIV under section 3 (1) (c) states as follows:

"When interpreting or applying any provision of this Decree, and when exercising any prescribed power, duty or function, all persons and courts should as far as possible-

(c) apply, to the fullest extent possible within Fiji subject to written laws and available resources, the principles, rights and obligations of ICCPR, ICESCR, CEDAW, CRC and CRPD, in the administration of health facilities and the provision of health services to all persons living with or affected by HIV/AIDS."

34. According to the above section it clearly shows that the Republic of Fiji had accepted the ICCPR. Therefore it can be presumed that the 1st Accused is entitled for the rights enshrined in the said convention.

35. State submits that the Accused was dealt under Section 119 of the Prison regulations.

"So far as is practicable civil or unconvicted criminal prisoners shall be segregated from convicted criminal prisoners."

36. Unlike the Criminal Procedure Code, the Criminal Procedure Decree has specific provisions namely Section 150 (supra) for ordering cost.

37. The question before the Court is whether the Court has jurisdiction to consider an application for cost after the State files a nolle prosequi.

38. The State is empowered to file a nolle prosequi under Section 49 of the Criminal Procedure Decree (CPD).

"1. In any criminal case and at any stage of the case before conviction or judgment, the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption may enter a nolle prosequi, either by counsel instructed by him or her stating in court or by informing the court in writing that the State intends that the proceedings shall not continue.

2. Upon the entry of a nolle prosequi under sub-section (1), the accused person shall be –

(a) at once discharged in respect of the charge for which the nolle prosequi is entered; and

(b) if the accused person has been committed to prison he or she shall be released; or

3. The discharge of an accused person in accordance with this section shall not operate as a bar to any subsequent proceedings against the accused person on the basis of the same facts.

4. If the accused is before the court when a nolle prosequi is entered in accordance with this section, the Chief Registrar or the Clerk of such court shall cause notice in writing of the entry of such nolle prosequi to be given to the officer in charge of the prison in which the accused is detained.

5. If the accused person has been committed for trial, a copy of the notice given under sub-section (4) shall also be given to the magistrate by whom the accused person was committed, and the magistrate shall cause a similar notice in writing to be given to –

(a) any witnesses bound over to prosecute and give evidence, and to their sureties (if any); and

40. When the nolle prosequi is filed and the Court discharges the Accused person, does the Court become functus officio?

41. In Fosse v DPP (1989) 16 NZWLR 540 at 546 Smart J looked at the question of when a cost application can be made.

"Three questions arise. The first question is whether the administrative "proceedings" can be said to be still on foot for consequential purposes when no application for costs has been made and no date has been sought to seek costs.

The answer to this question must be in the negative. Administrative 'proceedings cannot still be on foot even for consequential purposes when there is no outstanding application and no date has been sought on which to seek costs. Once may never be done.

The second question is whether the power to make an order for costs then in and by the order to discharge means that a substantive application for costs can be made on a date subsequent to the order or process of discharge. I do not think that there is such a power because under (the Act) the power is limited to the process of discharge – "when making an order discharging a defendant".

The third question, is what is the purpose of allowing the order for costs to be made by other than the order discharging the defendant...However, whenever the order is made it must form part of the process of discharging a defendant. Such process is not complete if there is an outstanding application for costs. If there is no application and no date has been sought on which to make an application there is nothing on foot and the process of discharge must be regarded as complete."

42. Considering the rationale of the case of Fosse, discussed above the case is not concluded, it is open for administrative matters which includes the application of cost.

43. Reading section 150 (2) and (3) in conjunction with section 49 (2) (a) this Court has jurisdiction to entertain a cost application after the nolle prosequi is entered.

44. The 1st Accused submits that, he was unnecessarily and unlawfully detained for more than 7 months in the prison. Further more than 2 months he was detained in solitary confinement which is illegal detention for a remandee.

45. The State submits that placement under solitary confinement falls within the jurisdiction of the commissioner. Office of the Director of Public Prosecution and Commissioner of Prisons are two different entities. Therefore the ODPP cannot be held responsible. If there is a violation it should be taken up in Civil Court against the Attorney General and the Commissioner of Prisons.

46. The 1st Accused who is represented by a Counsel from Legal Aid Commission submits that the Administration of Justice Decree prohibits the 1st Accused to proceed against the State.

47. 1st Accused submits that the Prosecutor had instituted and proceeded the action negligently and/or unreasonably. State Counsel submits that he had not acted negligently or unreasonably.

48. Instituting an action is absolutely within the powers of the DPP. It is presumed that the power is exercised fairly and adhering to the rules of Natural Justice. When information (indictment) is preferred the ODPP acts as a judge. She studies all materials including the defence version placed before her and decides whether there is enough material to prefer a charge. This does not mean that she expects conviction in every case.

49. In this case it is noted that the 1st Accused had appealed to the ODPP that there is no evidence against him. But ODPP preferred the charge. Is it reasonable or unreasonable? This Court does not make a finding because; it is within the prerogative powers of the ODPP.

50. Continuation of the trial beyond a point caused severe inconvenience and made the 1st Accused spent another day or two in the solitary confinement in the prison. Was the next argument forwarded by the 1st Accused Sakiusa Basa.

51. State submits there is no negligence and they were prudent in continuing with the trial.

52. It is observed by the Court that the State Counsel who conducted this prosecution had appeared before the Magistrate's Court on the 23rd July 2010. It can be presumed that the State Counsel and the ODPP had proper instruction in this file since that date.

53. In Archbold Criminal Pleading, Evidence and Practice (Sweet & Maxwell, 2011 at paragraph 6-43 and 6-44), in reference to Ridehalgh v. Horsefield [1994] Ch. 205, CA (Civ. Div), the terms improper, unreasonable behavior and negligent was defined.

According to the text, "improper" covered but was not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. Ultimately, it was behavior that would be regarded as improper according to the consensus of professional, and judicial, opinion, whether or not such behavior violated a Code of Conduct or not.

"Unreasonable behavior" was defined as conduct which was vexatious, designed primarily to harass the other side rather than advance the resolution of the case and it made no difference that the conduct was the product of excessive zeal and not improper motive. The acid test was whether the conduct permitted a reasonable explanation.

"Negligent" was to be understood in an untechnical way to denote failure to act with the competence reasonably expected of ordinary members of the profession.

54. In Blackstone Criminal Practice (Blackstone Press Limited, 1995), the following is recorded at paragraph D26.46:

"An order to pay costs may be made against a legal representative (as distinct from a party) by virtue of the inherent jurisdiction of the Crown Court (in the case of a solicitor) or under the Prosecution of Offences Act 1985, s. 19A (in respect of a solicitor or a barrister).

The Crown Court, as part of the Supreme Court, has inherent jurisdiction to order that a solicitor pay personally any costs thrown away by his or her staff's improper act or omission (see para. 8.1 of Practice Direction (Crime: Costs) [1991] 1 WLR 498). Such an order may not be made unless reasonable notice is given to the solicitor and he has a reasonable opportunity of being heard in reply (para. 8.2). In Holden and Co. v. Crown Prosecution Service [1990] 2 QB 261, it was held that mistake, error of judgment or mere negligence was not sufficient to trigger off such an order. The court's jurisdiction arose only where there was a serious dereliction of the solicitor's duty to the court. The primary object of such an order was to reimburse a litigant for costs incurred because of the solicitor's default, but there were also punitive and deterrent elements in the order."

55. In Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678, the Privy Council, looking at the issue of award of costs against legal practitioners in Australia and New Zealand, overturned an award of costs made against a firm of solicitors after the trial judge found the case was hopeless and should not have been maintained.

The power of the court to make an order of costs against a practitioner arose from the inherent jurisdiction of the court, and was one that should be exercised in the public interest. The Court has a duty to ensure that its officers achieve and maintain an appropriate level of competence and not abuse the court process. The Court's duty is founded upon the public interest principle that the procedures of the Court to which litigants are subject is to be conducted by its officers as economically and efficiently as possible.

56. State submits that the State Counsel had acted as a soldier in the battle field and conducted a reasonable prosecution.

57. The Defence submits that the State Counsel moved for adjournment every now and then and took advice from his superiors at the office. Further he had not act diligently and reasonable which resulted in the prosecution and an extra night detention confinement in the Solitary confinement.

58. Considering all materials before this Court, it appears that the 1st Accused Sakiusa Basa being a remandee subject to some ill treatment in the prison. This Court does not wish to make a ruling on that issue but refer the matter to Hon. Attorney General to look into the matter and make his own finding. If he thinks the right of the Accused is violated and he was not treated properly he may consider of paying an appropriate compensation. Since that is within the absolute prerogative powers of the Hon. Attorney General this Court makes no order on that regard. In the same time if the 1st Accused wish, he can pursue in the Civil Court.

59. Regarding the conduct of Prosecution in the Court, this Court after considering all materials discussed above make findings that the prosecutor did not act professionally, which resulted the 1st Accused Sakiusa Basa to spend an additional night in the Solitary confinement.

60. The Office of the Director of Public Prosecution is common to all citizens. The Accused also expects justice and reasonableness from that high office. When the prosecutor informed the Court that he is entering a nolle prosequi against 2nd, 3rd and 4th Accused persons the 1st Accused would have had an unbearable pain in his mind. Further as he submitted he had felt that he is persecuted. None of the citizen of this country should feel that he/she is subject to persecution.

61. State submits that if the cost is awarded it must be a reasonable and actual cost.

62. The Counsel for the 1st Accused submits that the 1st Accused be paid of $18,700 and the breakdown is given as follows:

Special Damages Accused loss of earnings during time in remand $130 @wk x 28wks	$3640.00
Transport costs of 2 Defence witnesses	10.00

Lost daily wage of witness who had to apply for leaveto attend Court	50.00	$3,700.00
General Damages
Pain and Suffering	$5,000.00
Punitive damages	5,000.00
Breach of human rights	5,000.00	$15,000.00
TOTAL CLAIM		$18,700.00

63. Section 150 of the Criminal Procedure Decree deals with costs and compensation. 150 (2) states as follows:

"A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines".

"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".

65. In Thompson v Commissioner of Police for the Metropolis (1977) 3 WLR 403 where the English Court of Appeal suggested the following principles as guidelines in wrongful arrest and imprisonment cases

"1. The total award should not exceed what is fair compensation for the injury the Plaintiff has suffered.

66. In Raikali v AG (unreported Civil Action No. HBC 95/99, Scott J awarded $11,000 for a man who was imprisoned in jail for 11 months more than he should have been, the only aggravating features of the detention being the length of the wrongful detention.

"An award of damages arising from false imprisonment has as its primary purpose compensation for the loss of the Plaintiff's liberty and its consequences such as indignity, mental suffering, disgrace, humiliation and loss of reputation or social status. In addition, there may be recovery for any resultant physical injury, illness or discomfort as where the imprisonment has had deleterious effect on the Plaintiff's health...

Awards of damages under these heads are termed compensatory and will be liable to aggravation or mitigation depending on the whole circumstances of the case. In addition to such awards there may in special circumstances be an award of exemplary damages, the purpose of which is to punish the Defendant for inflicting the harm on the Plaintiff."

67. In X v Attorney General (1996(2 NZLR 623, where Justice Williams said at p.630:

"As to the law, in the pithy phrase employed by the learned authors of Hewston and Buckley: Salmond and Hewston on the Law of Torts 19th ed. (1987) p.594. "Aggravated damages are given for conduct which shocks the plaintiff: exemplary damages for conduct which shocks the jury"."

"As to punitive or exemplary damages, ...it is enough to note that such damages are only awarded to punish the defendants because of the outrageous or contumelious way in which they have conducted themselves in committing the tort for which they are sued (Donsellar v. Donsellar [1982] NZCA 13; (1982) 1 NZLR 97... As Auckland City Council v. Blundell [1986] NZCA 86; (1986) 1 NZLR 732 at p. 732 and p. 739 makes clear, exemplary damages must be "fairly and reasonable commensurate with the gravity of the conduct thus condemned".

69. In Seniloli v Voliti (unreported) HBA 0033/99 Her Ladyship Justice Shameem went on to deliver her ruling, that indeed punitive damages where appropriate given the facts of the case and said as follows:

"Having considered the evidence of the conduct of the police officers in this case, I am of the view that the breaches of the plaintiff's rights under the Juveniles Act, the Judges Rules, the Constitution and the Convention on the Rights of the Child, justify an award for aggravated damages. Furthermore, I consider that this was not a case of an honest error or judgment by the police. This was a case of a member of the public, which caused distress and humiliation to the plaintiff. I am therefore of the view that the outrageous and contumelious conduct of the defendant, justified an additional award of punitive or exemplary damages.

The question remaining is as to whether the amount awarded was unrealistically high. The court of Appeal in Marika Lawanisavi v. Kapieni ABU 49/98 emphasized the need to consider local, social and economic conditions when approaching quantum of damages. Scott J in Sivorosi Raikali v. A-G (supra) considered $1,700 per hour, to be a generous award for false imprisonment in Fiji. However, he was considering an award for an adult who had lawfully served 12 years imprisonment, but who had been unlawfully detained for 11 months longer than he should have. Nor was that award one for aggravated damages.

I consider an award of $1,700 per hour for a child whose arrest and detention were unlawful and who should never have been arrested at all, entirely appropriate. The award of $10,000 by the learned magistrate seems to be higher than is appropriate given Fiji's social and economic conditions. I therefore allow the appeal against the award for aggravated damages to the extent that I reduce the award to $6,800.

However, I consider the amount of $5,000 as punitive damages entirely appropriate in the circumstances of the case. It adequately reflects the outrageous conduct of the defendant, and is not an unrealistic amount in Fiji's conditions."

70. Justice Byrne in Kasim v Commissioner of Police (unreported) HBC 471/99 discussed about General Damages. In that case the Plaintiff was detained at the Nadi Airport because his name was wrongly placed on the 'watch list' of persons who have pending criminal cases with the police to be stopped from leaving the country.

"Although the Plaintiff claims general damages, in my judgment his proper claim is for aggravated damages. In Gary Mark Lackersteen v. Melvin Lawrance Jones and Others (1988) NTSC 60 Asche C.J described the difference between aggravated and exemplary damages after reviewing various authorities on the subject. He said "The basis for aggravated damages lies in compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings". He went on, "There can not be any implication that a person of bad reputation cannot be humiliated and insulted". In the instant case the Plaintiff did not have a bad reputation although he had committed some criminal offences for which he had been duly punished.

While I accept that an apology can go some way to mitigating damages and that the Plaintiff was at all times treated courteously by the Defendants nevertheless I am satisfied that he was humiliated and his feelings hurt by the actions of the Defendants. If there was some excuse for their actions on the first occasion there certainly was none for what they did on the second occasion. Where liberty of the subject is concerned the Police and for that matter the Immigration Department cannot be too careful. It was the duty of both Departments, particularly the Police, to keep their records up to date and this was not done. To me it indicates an attitude of indifference which it is hoped will not occur again."

"On the question of exemplary damages which are punitive in nature because their function is to punish or mark the disapproval of the Court, it is relevant to consider certain parts of the 1998 Constitution. The preamble of the Constitution contains this penultimate paragraph:

"REAFFIRMING our recognition of the rights and Fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family..."

This is no mere empty form of words. It is an affirmation or declaration of faith, no more nor less than the sentence which begins the Creed in the Roman Catholic liturgy: "Credo in unum Deum" – "I believe in one God" – the fundamental basis not only of the Roman Catholic but also of most other religions.

Thus human rights and the fundamental freedoms enshrined in Section 23 (personal liberty), 26 (freedom from unreasonable searches and seizure) 27 (rights of detained persons), and 34 (freedom of movement), for example, are to be all times protected and respected by those persons having the authority and duty to do so. There can be no half-way house.

The officers of the First and Second Defendants did not accord the Plaintiff the rights guaranteed by these Sections and for this I am satisfied they must pay him exemplary damages which I assess at $5,000.00."

73. In this case it is noted that the 1st Accused Sakiusa Basa had suffered in the hands of the State authorities. Considering section 150 (4), especially under section 150 (4) (d) of the Criminal Procedure Decree this Court decides to award cost to compensate the 1st Accused.

74. Upon consideration of foregoing facts this Court concludes that the State is liable to the 1st Accused Sakiusa Basa in exemplary damages, which the Court assess at $5000.

75. Further this Court also considers the actual loss of the 1st Accused Sakiusa Basa. He submits his loss of earnings, expenditure in summoning his witnesses. This Court estimate at $120.00.

76. This Court order the Prosecution to pay the cost of $5120 to the 1st Accused Sakiusa Basa.

78. This Court further orders the Registrar to forward a copy of this ruling and a copy of the report filed by the State to Hon. Attorney General for his consideration and appropriate action.

Solicitors
Office of the Legal Aid Commission for Applicant
Office of the Director of Public Prosecution for the State

High Court of Fiji

State v Basa [2011] FJHC 446; HAC138.2010 (18 August 2011)