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Dutt v State [2021] FJHC 215; HBM144.2020 (1 April 2021)

In the High Court of Suva
Civil Action No. HBM 144 of 2020


Deshwar Kishore Dutt
Maximum Correctional Centre
Naboro
Applicant
And
The State
Respondent


Counsel: The applicant in person

Ms S.Chand and Ms N. Ali for the respondent
Date of hearing: 1st December, 2020 and 5th January,2021
Date of Judgment: 1st April ,2021


Judgment

  1. This is an application for constitutional redress. The applicant states that his rights were violated on 2nd, 23rd and 29th September 2020 and is continuing. He seeks:
    1. A declaration that escorting him to and from Courts and hospitals in an “unprescribed Prison 5 ton truck” in handcuffs and an “unprescribed heavy leather belt is torture, unconstitutional and utterly unsafe”.
    2. A declaration that the Fiji Corrections Service, in particular the staff and management of Naboro ECU group has and continue to violate his rights under sections 2, 11 and 26 of the Constitution of 2013, by placing the unprescribed heavy leather belt with handcuffs, while escorting him to and from Courts and hospitals contrary to the Fiji Corrections Act;
    1. An injunction that the staff and management of Naboro ECU group promptly cease the application of the belt. whilst escorting him to and from Court to hospital and only use the authorized restraint prescribed in Commissioner Local Order No. 10 para 3(d) iv, as ordered in Deshwar Kishore Dutt v State, HBC 29 of 2018 (29 April, 2019); and,
    1. A declaration that conveying him to CWM hospital, which is full of the public in the “Prison Uniform (Dark Orange)” defames his personal character, as his appeal is still pending
  2. The respondent moved to strike out this application on the ground that it does not disclose a reasonable cause of action and is an abuse of process.
  3. Lord Pearson in Drummoackson v. BritiBritish Medical Association, [1970] 1 All094 at 4 at 1101 as cited in the written submissions of the respondent stated:

.. I think reasonable cause of action’ means a causection with some chance of success, when .. only the allegatlegations in the pleading are considered...(emphasis added)


  1. Gates J(as he then was) in Razak v Fiji Sugar Corporation Ltd, [2005] FJHC 720; HBC208.1998L (23 February 2005) cited the following passage from the judgment of O’Connor J of the High Court of Australia in Burton sident &c.mp;c., of tire of Bairnsdale[1908] HCA 57; , [1908] 7 CLR 76 at p at p.92 :

Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.(emphasis added)

  1. It is necessary for me to consider the matters raised by the applicant to determine if there has been a violation of his constitutional rights, as alleged.
  2. The application to strike out is declined.

The hearing

  1. At the hearing, the applicant said that he is not a high risk prisoner. The charges relating to his escape from Prison were withdrawn. The instruments of restraint permitted are handcuffs, not leather belts. With respect to the colour of uniform, the Constitution requires the dignity of a person to be respected.
  2. Counsel for the respondent submitted that the applicant has not deposed as to any reason as to why being brought to Court and taken to hospital in a 5 tonne Prison truck in handcuffs and leather belt is torture. The mode of transportation and the prison uniform do not violate his rights under the Bill of Rights Chapter of the Constitution. The use of handcuffs as an instrument of restraint is lawful under the Corrections Service Act and the Commissioner’s Local Orders. The leather belt is not an instrument of restraint. It is used to assist in preventing high risk inmates from absconding from Court or other public place. The applicant has been classified as a “high risk” prisoner by the Prison Authorities. He escaped from the premises of the Nadi Court in December 2017.

The determination

  1. The first question to be determined is whether the transportation of the applicant in a Prison 5 ton truck in handcuffs and heavy leather belt violates his constitutional rights.
  2. Section 30 (1) of the Corrections Service Act titled “Transfers from prisons” provides:

Transfers of prisoners shall be undertaken in accordance with the Regulations and Commissioners Orders, and the use of instruments of restraint shall be in compliance with section 42.


  1. Section 38 states that No prisoner may be subjected, by way of punishment, to -

(b) the use of instruments of restraint.(emphasis added)


  1. Section 42 titled “Use of instruments of restraint” states:
    1. The use of chains and irons to restrain prisoners is not permissible in any circumstances.
    2. No instrument of restraint may be used as a punishment
    3. Handcuffs may only be used as a precaution against escape during the transfer of a prisoner, or upon the order of the officer in charge if other means of controlling a prisoner have failed.
    4. A strait jacket ..
    5. The use of any other instrument of restraint must be authorized by regulations, and where instruments are used under the authority of this Act, the following requirements shall apply to their use –
      1. They must not be applied in such a way as to cause unnecessary pain to the prisoner;
      2. They must be applied in a manner which preserves the dignity of the prisoner as far as is practicable; and
      1. they must not be applied for any longer than is necessary.(emphasis added)
  2. The Commissioner’s Local Orders No.010 titled “PROCEDURES FOR TRANSFER AND TRANSPORTATION OF PRISONERS” provides that escorting officers shall escort high security prisoners with “hand cuffs and two officers”. The other relevant Orders read:

4.6 All prisoners shall be handcuffed when-

(a) attending court cases;

(b) transporting to/from hospital;

(c) transporting to/from police stations;

(d) the officer in charge or delegate believes that it is necessary to prevent an

escape or injury to any person; or

(e) unless directed otherwise by the officer in charge or his or her delegate.
4.7 Consideration should be given to the following when determining restraint –

(a) security rating;

(b) health of prisoner;

(c) age of prisoner;
(d) area to be visited eg. Court, hospital, funerals, home visits, police stations.

.4.8 The escorting officer must be ensure that the handcuffs do not restrict the prisoner’s blood circulation but remain secure at all times. .(emphasis added)


  1. Section 42 allows the use of handcuffs. It prohibits the use of chains and irons and instruments of restraint. Other instruments must not be applied in a way as to cause unnecessary pain for longer than is necessary and preserve “the dignity of the prisoner as far as is practicable”. (emphasis added)
  2. The applicant relied on the statement made by Tuilevuka J in Deshwar Kishore Dutt v State,(supra) that “it seems rather excessive to have to put him on leg cuffs as well as hand cuffs and a heavy leather belt around him when transporting him to Court”. (emphasis added)
  3. In my view, it is clear from the language used that the statement was made obiter. The final orders do not refer to leather belts and provides that “Prison Officers are to desist from transporting (him) in leg cuffs or shackles. As a “high risk” prisoner, he is to be handcuffed and escorted by two officers”. (emphasis added)
  4. The applicant also submitted Rule 47(1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) prohibits the use of chains, irons or other instruments of restraint which are inherently degrading or painful.
  5. Rule 47(2) (a) allows the use of “other instruments of restraint” when authorised by law either as a precaution against escape during a transfer, provided that the instrument of restraint be removed when a prisoner appears before a judicial officer”, as observed in Deshwari Kishore Dutt v State,(supra)
  6. In my view, a w, a leather belt is not an instrument which is inherently degrading, painful nor an instrument of torture, as alleged. I note that the applicant has not file a supporting affidavit and deposed to that effect, as submitted by counsel for the respondent.
  7. In my judgment, in the instant case a leather belt was necessary, as the applicant is a high risk prisoner who had escaped from Prison custody as Temo J found in State v Deshwar Kishore Dutt, (Crim Case no: HAC 243/2014 S).
  8. In my view, as Singh J stated in In the Matter of an Application for Constitutional Redress by Josefa Nata, Civil Action No. 35 of 2005(4th May,2006) a person lawfully convicted has to accept prison discipline. “Prison Regulations are there to regulate administrative matters and also address need for security”. He further stated that prison authorities must be allowed a wide discretion to provide security to the public from escapees and orderly function of the prison.
  9. Tuilevuka J in Deshwar Kishore Dutt v State,(supra) stated that he does “not believe that such business should be open to judicial scrutiny”.
  10. In my view, transportation in a Prison 5 ton truck in the prison uniform does not constitute a violation of the rights enshrined in sections 11 and 26 of the Constitution.
  11. The applicant’s application for declarations that his constitutional rights have been violated for escorting him to and from Courts and hospitals in a Prison 5 ton truck”, handcuffs and unprescribed heavy leather belt and an injunction that the staff and management of Naboro ECU cease the application of the belt is declined.
  12. The applicant seeks a declaration that conveying him to CWM hospital defames his personal character, as his appeal is still pending
  13. The respondent points out that the orange uniform is a standard uniform given to all inmates and necessary to distinguish inmates from the general public, in the event an inmate absconds from custody, which the applicant has done.
  14. In my judgment, the application is misconceived. An applicant cannot claim that he has been defamed in an application for constitutional redress.
  15. Orders
    1. I decline the applicant’s application for declarations that his constitutional rights have been violated.
    2. I decline the application for an injunction.
    1. I decline the applicant’s application for a declaration that conveying him to CWM hospital in the Prison Uniform defames his personal character.
    1. I make no order as to costs.

A.L.B. Brito-Mutunayagam

JUDGE

1st April,2021


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