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Attorney General v Aipia [2022] SBCA 34; SICOA-CAC 15 of 2021 (20 December 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal by the Attorney-General against the orders of Kouhota J. dated 28^th June 2021, in which the learned judge held that the Defendants (Appellants) as Public Officers were vicariously liable on behalf of the State for the wrongful arrest and other torts committed against the Claimant (Respondent). He gave judgment for the Claimant and directed that damages were to be assessed if not agreed. He also gave costs against the Defendants on standard basis.
2. The Appeal raised 11 grounds as follows:
   1. The learned judge erred in law and fact in ruling that as the Defendants / Appellants did not file a sworn statement in support of its defence the facts and evidence of the Claimant was not contested when the learned Judge has been informed by counsel for the Defendants/Appellants at the commencement of the hearing on 15 December 2020 that it would rely on the Police Statements on the 2 separate investigation in 2013 and 2017 compiled in Court Book No 2 filed on 4 December 2019 as evidence given;
      1. The Police Statements were provided by Police officers and Ministry of Fisheries Officers who were named Defendants in Civil Case No 604 of 2017.
      2. The Police Statements were specifically compiled to be tendered as direct evidence in Court, albeit in criminal proceedings in the Magistrates’ Court.
      100. Whilst the Claimant was acquitted of the charge of illegal possession pursuant to s 13A of the Fisheries Act the acquittal and the findings in the criminal trial are not conclusive evidence of civil liability but is rebuttable by the evidence provided in the Police Statements – Hollington v. Hewthorn & Co [1943] 1 K 587.

The 2013 Incident
Wrongful Arrest and False Imprisonment.

2. The learned Judge erred in law and fact in ruling that as the Claimant / Respondent was not lawfully arrested when he boarded the Patrol Boat Lata on 6^th October 2013 that amounted to false imprisonment for 4 days on the Patrol Boat Lata from 6^th to 9^th September 2013 and on 19^th September 2013 at Rove Police Headquarters when the evidence provided in the Police Statements establish that the Respondent willingly boarded the Patrol Boat to facilitate further investigation in Honiara where he was later administered a caution interview and formally charged.
3. The learned Judge erred in law and fact in his application of the requirements for the tort of false imprisonment particularly the requirement of total restraint as illustrated in Bird v. Jones [1845] 7 QB 742.

Unlawful Detention of Chattel

4. The learned judge erred in law and fact in ruling that civil liability for unlawful detention of chattel was established against the Appellants on the basis of his acquittal of the 2013 charge without considering the evidence provided by the Police Statements that the Claimant had willingly surrendered 1,526.28 kg of BDM is his possession in September 2013 (despite the ban against BDM extraction being in place since 1 July 2013) to be transported to Honiara for further investigation.
5. The learned judge erred in law and fact in ruling that unlawful detention was established in that 1,526.28 kg of BDM was not returned to Claimant on his acquittal without taking account the Police Statements that the BDM had been seized in September 2013 and that the Claimant was not acquitted until 1 May 2017 therefore the BDM had to be disposed of pursuant to section 91(1) of the Fisheries Management Act [2015] as they were perishable items.

The 2017 Arrest and False Imprisonment.

6. The learned judge erred in law and fact in ruling that as the Claimant/ Respondent was not lawfully arrested on 12 September 2017 the Claimant and his associates were detained unlawfully on the Patrol Boat Auki on that date and at Rove on 13 September 2017 which amounted to false imprisonment when the evidence in the Police Statements provided by the Claimant in a formal caution interview on 20 September 2017 was that he was not arrested on 12 September 2017 because he and his associate had sought and obtained permission to travel on the Patrol Boat Auki to Honiara to present the result of the trial and error project on BDM Aquaculture to the Ministry of Fisheries and National Caucus.
7. The learned judge erred in law and fact in his application of the requirements for the tort of false imprisonment by not taking into account a valid justification for the presence of the Claimant and his associate on the Patrol Boat Auki on 12 September 2017 and that later they were able to depart of their own free will from Rove Police Station on 13 September 2017 despite the Police not completing their investigation.

Malicious Prosecution

8. The learned judge erred in law and fact in ruling that the Director of Fisheries was activated by malice in the prosecution of the Claimant in 2017 as he knew that the Claimant was authorized to do a pilot project of BDM farming when the Police Statements compiled after the 2017 incident did not support that finding further, there was reasonable suspicion on whether there was genuine experimental farming being conducted rather than illegal harvesting of BDM (during the ban period), and the learned judge did not take into account the policy/operational distinction articulated in cases such as Comeau Sea Foods Ltd v Canada (Minister of Fisheries and Oceans) [1997] 1 SCR 12 that authorization (as opposed to a license) granted by the Minister and the Director of Fisheries is not irrevocable, but may be reviewed for the purpose of implementing Government policy on the sustainable harvest of BDM in Solomon Islands.
9. The learned judge erred in law and fact in his application of the requirements for the tort of malicious prosecution to the facts of the 2017 investigation into the Claimant’s BDM farming activities given the evidence in the Police Statements.

Acting in Good Faith

10. The learned judge erred in law and fact in his finding that the Defendant/Appellant were not acting in good faith therefore not indemnified from tort liability when discharging their duties under section 212(b) of the Police Act and section 84(1) of the Fisheries Management Act when no other inference can be reached after considering the Police Statements compiled from the Joint Police/Ministry of Fishery investigations conducted in 2013 and 2017 into the Claimant’s BDM extraction activities other than a joint operation being carried out on the harvesting of BDM with a public awareness objective of informing people in the Lord Howe atolls of the restrictions imposed by harvesting periods.

Damages

11. The learned judge erred in law and fact in his awarding damages in the amounts claimed by the claimant as liability for their payment have not been established and they do not accord with the principles of nominal, vindicatory or restitutionary damages when applied to the facts of this case.

The Appellants seek the following orders:

1. The Appeal should be allowed.
2. Alternatively, a new civil trial in the High Court to be convened where the evidence in the Police Statements compiled for the 2013 and 2017 criminal investigation be properly admitted for the determination of tort liability despite the Claimant being acquitted in both the 2013 and 2017 criminal proceedings.
3. Costs to be paid by the Respondent.
4. Any further or other orders this Court may deem just.

Background

3. The brief facts of this case are not disputed. The claim was instituted in the High Court as a Category A Claim on the 18 December 2017. The reliefs sought were:
   1. An order that the Claimant has been subjected to wrongful arrest, false imprisonment and malicious prosecution.
   2. Damages for economic or business loss in excess of but say $50,000,000.00.
   3. Damages for wrongful arrest, false imprisonment and malicious prosecution in excess of, but say, $3,000,000.00.
   4. Aggravated Damages in excess of, but say, $2,000,000.00.
   5. Exemplary Damages in excess of, but say, $1,000,000.00.
   6. The Solomon Islands Government be vicariously liable for all the Defendants.
   7. Cost of this action on indemnity basis.
4. In his judgment, the learned judge categorised the undisputed facts under the two heads of criminal investigation that were done in 2013 and 2017. These are summarised herewith.

The 2013 Criminal Case Undisputed Facts.

5. Under this sub-heading, the judge found as follows. That on the 6^th October 2013, the Claimant (“Respondent”) was taken on board the patrol boat MV Lata from his home island at Luaniua Island and kept on board until arrival at Honiara on the 10^th October 2013.
6. On arrival he was taken straight to the Rove Police Headquarters (“Rove PHQ”) before being released later in the afternoon.
7. On the 9^th September 2014, he was kept at Rove PHQ from 5.07 pm until 9 am the next day 10^th September 2014 for questioning before being charged for possession of bech-de-mer (“bdm”) for export, contrary to Section 13A of the Fisheries Act.
8. The Judge found that between the period of October 2013 to November 2014, the Claimant took all necessary steps to have his bdm exported. He found that the Claimant sought to negotiate with the First Defendant (“the Director of Fisheries”) and various stakeholders, and also offered to compound the alleged offences on conditions that he pay a fine at a certain amount so that he could sell his bdm. All these efforts however, were to no avail.
9. The judge also found that the Claimant had insisted on a speedy trial from the beginning but Prosecution continued to delay the trial on the grounds of unavailability of witnesses. The Claimant also insisted on a part hearing and for Prosecution to call those witnesses based in Honiara, but the Prosecution objected to his request.
10. On the 31^st October 2014, the charges were dismissed on grounds of limitation but when these were appealed to the High Court in December 2014, the matter was remitted back to the Magistrates’ Court for determination.
11. Meanwhile the Fisheries Act 1998 was repealed and replaced by the Fisheries Management Act, 2015 on 23^rd April 2015. This new legislation came into force on the 10^th June 2015.
12. About two years later, on the 1^st May 2017, the Claimant was acquitted by the Magistrates’ Court.
13. The learned judge also found that when the Claimant was detained in October 2013, a total of 44 bags of bdm of various high-grade species were confiscated by the Defendants.

The 2017 Criminal Case Undisputed Facts.

14. Under this sub-heading, the judge found as follows. This was the second time the Claimant claimed he was detained unlawfully.
15. On the 12^th September 2017, he was taken on board the Patrol Boat, MV Lata together with an American scientist, Dr. Erik Harberg.
16. The boat arrived at Honiara on the 13^th September 2017 and he and Dr. Harbeg were taken to the Rove PHQ and kept until midnight. At about 12 midnight on the 14^th September 2017, he walked away but his personal belongings were not released by the police.
17. Seven days later on the 21^st September 2017, the Claimant was arrested and charged for illegal harvesting and farming by the Sixth and Seventh Defendants. The Police Prosecution then applied for an order for remand for 14 days but this was refused, and he was released on bail instead by the Magistrates’ Court.
18. On the 22^nd September 2017, the Third Defendant (the Director of Public Prosecutions) took over the carriage and prosecution of the matter.
19. The learned judge found that during the time he was detained, the Claimant’s solicitor reminded the Police Prosecution and the Director of Public Prosecutions (“DPP”) that they did not have sufficient evidence to maintain any charge against the Claimant.
20. On the 18^th October 2017, the Claimant and his co-accused applied to have the charges dismissed on the grounds of insufficiency of evidence; in the case of Dr. Harberg on the grounds set out in section 126 of the Criminal Procedure Code. This provision required the leave of the DPP for any prosecution of an offence committed by a foreigner within Solomon Islands waters.
21. On the 14^th November 2017, the Claimant was acquitted by the Magistrates’ Court.
22. We have carefully set out these findings of fact by the learned judge as they are directly relevant to the issues on appeal, particularly the issue of liability, which had been found by the judge and are now the subject of this appeal.

The Issues in the Court below.

23. There were five issues raised in the court below for determination, which the judge considered. These are:
    1. Whether the criminal prosecution of the Claimant by the Defendants throughout 2013 up to 2017 amounts to malicious prosecution.
    2. Whether the arrest and detention of the Claimant:
       1. on board Patrol Boat MV Lata on 6^th October 2013;
       2. at Rove Police Headquarters on 9^th October 2013;
       100. at Rove on 9^th September 2014;
       4. at Rove on 10^th September 2014;
       5. on board Patrol Boat Lata on 12^th September 2017;
       6. at Rove on 13^th September 2017;
       • amounted to wrongful arrest and false imprisonment.
    3. Whether the Defendants acted in the performance of their duties in good faith.
    4. Whether the Defendants are liable for damages.
    5. Whether the Eighth Defendant is liable for the actions of its officers.
24. The bulk of the appeal grounds can be summed up in the crucial finding and determination by the learned judge at page 4 of his judgment when he said:
    • “The Attorney General had filed a defence on behalf of all the Defendants but no sworn statements in support of the defence were ever filed. The facts and the evidence of the Claimant, therefore, were not contested so the only question is liability.”
25. Appeal grounds 1, 2, 4, 5, 6, 8, 9, and 10 sought to address this issue. It is important therefore that this important issue is addressed first.

The Reliance by the Appellant on the Police Statements.

26. In his submissions on the evidence being relied on, Mr. Banuve, the Solicitor General sought to submit as he did in the court below orally, that they would be relying on the Police Statements filed in support and on behalf of the Respondent. These formed part of the Bundle of Documents that had been tendered in Court by consent.
27. The Respondent on the other hand had filed a sworn statement on 23 June 2020 making reference to those specific documents in support of his claim.
28. Mr. Mathews KC, of Counsel for the Respondent however, objected strenuously to the submission of the learned Solicitor General, arguing that in the court below the Appellant had not filed any sworn statement as directed on two separate occasions^[1] by the Court and therefore the learned judge was entitled to make the finding as he did.
29. The Appellants rely on Rule 13.6 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”) and section 75 of the Evidence Act 2009 to say that the judge erred in his finding that no sworn statements were filed.
30. Rule 13.6 provides:
    • "A sworn statement, including any annexure, which is tendered in court or included in the bundle of agreed documents becomes evidence in the proceedings unless the court has ruled it inadmissible in whole or part – when that part is inadmissible does not become evidence."
31. Mr. Banuve submits that pursuant to rule 13.6, the Appellants can use the police statements that had been included in the Court Book as evidence to support its Defence as set out in its written opening submissions on 11^th December 2020.
32. Mr. Mathews on the other hand objects arguing that the fact that the documents were included in the Court Book and tendered by consent did not mean they were proven. The Court had issued specific orders regarding the reception of evidence and the Appellants had simply not complied with orders to file and serve any sworn statements that they would be relying on. The Appellants also did not file any notice to cross examine the Respondent. They also did not object when the Respondent had applied to have their sworn statement to be read in court.
33. The Respondents relied on the authority of Yeo v. Iromea^[2] in which the need to have sworn statements filed if agreed or directed by the Court, and be afforded the right to cross examine witnesses was emphasised. In Attorney-General v. Suhara^[3], sworn statements contained in the Court Book or read and tendered in Court at trial without objection, are deemed to be proved.
34. Mr. Mathews submits that there has been a misapprehension of the effect of Rule 13.6 of the Rules. He submits, correctly, that there are only two ways in which evidence is given at trial. It is either given orally^[4] being the primary mode, or by sworn statement^[5], if ordered.
35. He submits that where it was ordered by the Court but not complied with, it is not open to the Appellants to rely heavily on police witness statements, which had not been adopted or proven in court. He points out too that there was no request to have the Respondent cross-examined.
36. Rule 13.4 and 13.5 set out how evidence is to be given in the High Court.
    • "13.4 Evidence in the High Court is to be given at trial orally and for any other purpose by sworn statement.
    • 13.5 However, a judge may order that:
      • (a) evidence at trial in a particular case, or particular evidence, be given by sworn statement; or
      • (b) evidence for any other purpose in a particular case, or particular evidence, be given orally."
37. Documents in a Court Book that are not annexed to a sworn statement cannot form part of the sworn statement unless they had been specifically referred to and relied upon in the sworn statement. The sworn statement and its annexures then become evidence and are proved when there are no objections^[6].
38. The mere fact that documents or materials were included in a bundle of documents under Rules 12.2 and 12.3 of the Rules does not make them automatically admissible even if tendered. As set out by this court in Pone v. Anasia Corporation Ltd^[7] it is the “effect of such agreed bundle of documents that is material. Either they are admitted and not disputed or agreed but subject to cross-examination on the contents of these documents that are in dispute.”
39. It is trite to note that while documents may be admitted by consent or agreement, if they are not relevant, they are not admissible.
40. Documents in this case were filed by 4 December 2019. The parties were then ordered by the court to file their sworn statements in Chief by 25 June 2020 with trial fixed for 27 and 28 July 2020, the Appellants however, did not comply. The failure of the Appellants to file sworn statements in support of their case also meant that the Respondent was not able to issue any notice to cross-examine any of the Defendants or Police Officers involved in the incidents alleged.
41. Court directions are not to be ignored. While the Appellants have failed to comply with orders of the court, yet they had sought to rely on Police Statements that had not been tendered in support of the Appellants case. Sworn statements are the prerequisites for trial and necessary for proof of the substance of the allegations or defence to a claim. The Appellant simply cannot ignore Court orders on how the evidence in the trial was to be given.
42. We are satisfied the learned judge for those reasons correctly declined to place emphasis or due weight to the submission of the Appellants when it was not backed up by appropriate sworn statements and or having witnesses called and cross examined. It may be that the Appellant was seeking to rely more on the law on his submissions, but the factual matrix on how the bdm saga had transpired could not be ignored for it could only have been resolved by appropriate evidence adduced in sworn statements or given orally as directed by the Court. None of those modes of eliciting evidence, was adopted by the Appellants, and accordingly the learned judge was entitled to hold that the facts and evidence of the Respondent in the court below was not contested.
43. In order for this Court to intervene it has to be shown that an error of law had been committed by the judge in relation to this finding and determination, that the facts and evidence of the Claimant were not contested. We are not satisfied that had been shown.
44. We now turn to the individual grounds of appeal.
    • GROUND 1 OF THE APPEAL. The learned judge erred in law and fact in ruling that as the Defendants / Appellants did not file a sworn statement in support of its defence the facts and evidence of the Claimant was not contested when the learned Judge has been informed by counsel for the Defendants/Appellants at the commencement of the hearing on 15 December 2020 that it would rely on the Police Statements on the 2 separate investigation in 2013 and 2017 compiled in Court Book No 2 filed on 4 December 2019 as evidence given;
    1. The Police Statements were provided by Police officers and Ministry of Fisheries Officers who were named Defendants in Civil Case No 604 of 2017.
    2. The Police Statements were specifically compiled to be tendered as direct evidence in Court, albeit in criminal proceedings in the Magistrates’ Court.
    100. Whilst the Claimant was acquitted of the charge of illegal possession pursuant to s 13A of the Fisheries Act the acquittal and the findings in the criminal trial are not conclusive evidence of civil liability but is rebuttable by the evidence provided in the Police Statements – Hollington v. Hewthorn & Co [1943] 1 K 587.
45. This appeal ground has been covered from paragraphs 26 – 43 above and should be dismissed on the basis that we find no error of law in the finding by the Judge that the claim of the Respondent in the court below was not contested. He was entitled to make such finding based on the evidence adduced by the Respondent.
    • GROUND 2 OF THE APPEAL. The learned Judge erred in law and fact in ruling that as the Claimant / Respondent was not lawfully arrested when he boarded the Patrol Boat Lata on 6^th October 2013 that amounted to false imprisonment for 4 days on the Patrol Boat Lata from 6^th to 9^th September 2013 and on 19^th September 2013 at Rove Police Headquarters when the evidence provided in the Police Statements establish that the Respondent willingly boarded the Patrol Boat to facilitate further investigation in Honiara where he was later administered a caution interview and formally charged.
46. This appeal ground should also be dismissed. We are satisfied the learned judge correctly addressed this issue in his findings at page 4 as follows.
    • “There is no evidence the officers have reasonable suspicion that the Claimant had committed an offence or going to commit an offence when he was taken on board the Police Patrol Boat Lata. There is also no evidence that the Police had a warrant of arrest to arrest the Claimant.
    • The Claimant in his sworn statement filed on 23^rd June 2020 and tendered as evidence in chief deposed that he was told to board Patrol Boat Lata from his home island on 6^th October 2013. The Claimant deposed that he was never arrested or informed that he was under arrested (sic) nor told the reasons for his arrest.
    • The Police also loaded more than 1500 kg of processed bech-de-mers belonging to the Claimant on the Patrol Boat Lata. The bech-de-mers were worth millions of dollars. In fact, they were sold to a Chinese buyer for $15,000,000.00 afterwards. The evidence shows that the Claimant was concern about his bech-de-mers and wants to ensure the bech-de-mers do not get spoiled and lose their value.
    • In considering the police actions, I am satisfied the Claimant did not voluntary decided to board the Police Patrol Boat Lata to Honiara on 6^th October 2013 but was compelled by circumstances created by the police officers taking his bech-de-mers and loading them on the Patrol Boat Lata. He was compelled but he was never lawfully arrested.”
47. The judge relied on the case of Bird v. Jones^[8] and continued:
    • “In the present case since the Claimant was not lawfully arrested but compel to board the Patrol Boat. He was therefore falsely imprisoned for 4 days on the Patrol Boat Lata from 6^th to 9^th September and 10^th September 2013 at Rove Police Headquarters. In fact, the Claimant was only formally arrested and charged in October 2014. On the materials before the court, I find that the Claimant was never lawfully arrested and therefore his detention on the Patrol Boat Lata and at Rove Police Headquarters on the following dates and times;
    1. on board Patrol Boat MV Lata on 6^th – 9^th October 2013;
    2. at Rove Police Headquarters on 10^th October 2013;
    100. at Rove on 9^th September 2014;
    4. at Rove on 10^th September 2014;
    • were unlawful and that he was falsely imprisoned on those dates and times.”
48. We find no error in his findings there being no evidence to rebut the claim of the Respondent in the court below and accordingly dismiss this ground.
    • GROUND 3 OF THE APPEAL. The learned Judge erred in law and fact in his application of the requirements for the tort of false imprisonment particularly the requirement of total restraint as illustrated in Bird v. Jones (1845) 7 QB 742.
49. The tort of false imprisonment consists of depriving the plaintiff of freedom of movement without lawful justification^[9]. In Collins v. Wilcock^[10], false imprisonment was defined as “the unlawful imposition of restraint on another’s freedom of movement”. The tort is not committed unless movement is restrained in all directions.
50. In the text^[11] "TORT" by C.D. Baker, at page 20, the learned author states:
    • “This tort is committed by one who intentionally and directly places a total restraint upon the liberty of the plaintiff. It is a form of trespass to the person, and is actionable per se.”

He continued at page 21:

• “There must be a total restraint placed upon the plaintiff’s freedom of action.
• ... Despite the fact that false imprisonment is a form of trespass to the person, it does not require a physical act aimed against the person of the plaintiff. Imprisonment by show of authority is sufficient....”

51. In the classic text "CLERK & LINDSELL ON TORTS"^[12] at page 665 para. 14-13, the learned Authors state:
    • "A false imprisonment is complete deprivation of liberty for any time, however short, without lawful cause.”Imprisonment is no other thing but the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in the common gaole; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or mainprise or otherwise."^[13] The prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another."
52. On the requirement of total restraint as set out in Bird v. Jones and the authorities quoted, we are satisfied there is evidence before the judge to make such finding. He was taken from his home, told to board a police patrol boat, a vessel that depicts authority, influence and power to restrain and confine a person of his freedom of movement. Whether he was given any choice to board the boat or not, is not clear on the evidence. What is obvious to the judge however, was that the Respondent was not given any choice and therefore he concluded was compelled to board the patrol boat Lata. In addition, he noted that his bdm were seized and taken on board. When taken together, those combination of factual circumstances are consistent with the finding of the judge of false imprisonment.
53. On arrival at Honiara, he was escorted to the police station, (a place depicting authority, power and confinement) for interview. The interview in this instance took the whole night from 5 pm on 9 September 2014 to 9 am the next day, 10^th September 2014. The only inference that may be drawn from this, is that he was not at liberty to leave and therefore was under restraint during that time.
54. We are equally satisfied the learned judge adequately addressed this issue in his judgment at pages 4 and 5, and find that he was entitled to make such finding based on the factual matrix before him.
55. The Appellants appear to have relied on section 38(1) (b), Part III of the Fisheries Act 1998 and Part 8 of the Fisheries Management Act 2015. However, section 38(1) (b) of Fisheries Act 1998 restricts Fisheries Officers powers to arrest without warrant within "Solomon Islands waters" as defined by section 2 of the Fisheries Act 1998. The evidence before the court was that the Respondent was taken from his home on Luaniua Island and onto MV Lata. He was not taken from within the waters around Lord Howe Islands.
56. We are satisfied this submission cannot be sustained in the light of the clear legislative intent and the surrounding circumstances co-existing at that time.
57. We are satisfied this appeal ground should be dismissed.
    • GROUND 4 OF THE APPEAL. The learned judge erred in law and fact in ruling that civil liability for unlawful detention of chattel was established against the Appellants on the basis of his acquittal of the 2013 charge without considering the evidence provided by the Police Statements that the Claimant had willingly surrendered 1,526.28 kg of BDM in his possession in September 2013 (despite the ban against BDM extraction being in place since 1 July 2013) to be transported to Honiara for further investigation.
58. We also dismiss this appeal ground. We are satisfied the judge was entitled to make such finding based on the evidence that was before him.
59. We reiterate the point that having directed the Attorney-General to file evidence in the manner set out in the rules, the judge cannot go on to ignore the Rules without good reason. There was no good reason here.
60. It was not open to the Appellants to rely on police statements, which had not been proved before the court. The Appellants also elected not to call witnesses to give oral evidence or to have the Respondent cross examined to provide the necessary evidence in support of the Appellant's case. The unequivocal evidence in the court below is that the Respondent had never surrendered his bdm willingly to the Appellants to be disposed of. They were seized instead as the subject of the investigations when he was brought over on the patrol boat, Lata.
61. It is not disputed that any seized property is governed by the law. Under section 104 of the Criminal Procedure Code ("CPC") such property must be brought before the Court and the Respondent was entitled to have his seized property returned to him if he was acquitted of the charges. Whilst the properties were in police custody as well, "reasonable care" for their preservation must be taken^[14].
62. It is not in dispute that the bdm whilst in their custody were disposed of under section 91 of the Fisheries Management Act 2015 ("FMA 2015"). Section 91 however contains elaborate provisions on the process for disposal.

“PART 9
DISPOSAL, RELEASE AND FORFEITURE OF SEIZED ITEMS

91. (1) Subject to subsection (3), any perishable item, including fish and fish products, that has been seized or confiscated pursuant to this Act is subject to disposal by the Director, who may, after consultation with the Director of Public Prosecutions -
(a) sell or authorise its sale;
(b) otherwise dispose of the item at such time and place as the Director determines; or
(c) destroy the item.
(2) The Director shall notify the owner or apparent owner of any perishable item seized at a reasonable time before selling the item in accordance with subsection (1), and such owner or his or her nominee may be present at the sale.
(3) Where the Director cannot ascertain the true ownership of an item at the time of seizure, he or she must make reasonable enquiries to ascertain the true owner, and if he or she has not ascertained the true owner within a reasonable time, taking into account the perishability of the item seized, the Director may sell, dispose of or destroy the item in accordance with subsection (1).
(4) A purchaser for valuable consideration of any item sold under this section shall derive good and unencumbered title in respect of that item.
(5) All items seized pursuant to this Act, and the proceeds from the sale of such items, shall be held in trust by the Director until -
(a) the Director of Public Prosecutions decides not to lay any information or charge in respect
of any alleged offence which relates to the seizure of the item; or
(b) the Court -

• (i) has completed its proceedings in respect of a charge or information laid for an offence which relates to the seizure of the item; and
• (ii) has issued an Order in relation to the proceeds of sale of the item.”

(6) The decision whether or not to lay any information or charge in respect of an alleged offence in relation to any item seized under this Act shall be made as soon as reasonably practicable after the item is seized, taken possession of or detained.
(7) The Director or an authorised officer lawfully exercising any power under this Act is not liable for any spoilage or deterioration in the quality of any fish or other item seized, taken possession of or detained."

63. The first step was for the Director of Fisheries to consult with the Director of Public Prosecutions ("DPP") on how to dispose of the perishable goods. The second step was for the DPP under section 91(5) (a) of the FMA 2015 to inform the owner. Otherwise all items seized were required to be held in trust until the DPP decided whether to lay any charges or not or the Court decides how they are to be disposed of.
64. The undisputed fact found by the Court and agreed upon was that the Respondent did not "willingly" surrender his bdm, instead they were taken from him. There was evidence before the judge that the Respondent had taken all necessary steps to enable him to sell his bdm including offering to compound the offences, but was rejected by the Director of Fisheries.
65. The evidence is clear that since October 2014 to the time he was acquitted in May 2017, he was not informed that his bdm had been disposed of or destroyed. No evidence had been adduced by the Appellants that it had consulted the DPP or that the DPP had informed the Respondent that the Director had disposed of the bdm. In all these, no evidence has been adduced by the Appellant that supports their claim that the Respondent willingly parted with the bdm. To the contrary, the evidence supports the confiscation and seizure of those bdm.
66. We are satisfied the learned judge was entitled to make such finding in his judgment at pages 4 – 5, where he said:
    • "The Claimant in his sworn statement filed on 23^rd June 2020 and tendered as evidence in chief deposed that he was told to board Patrol Boat Lata from his home island on 6^th October 2013. The Claimant deposed that he was never arrested or informed that he was under arrested (sic) nor told the reasons for his arrest.
    • The Police also loaded more than 1,500 kg of processed bech-de-mers belonging to the Claimant on the Patrol Boat Lata. The bech-de-mers were worth millions of dollars. In fact, they were sold to a Chinese buyer for $15,000,000-00 afterwards. The evidence shows that the Claimant was concern about his bech-de-mers and wants to ensure the bech-de-mers do not get spoiled and lose their value.
    • In considering the police actions, I am satisfied the Claimant did not voluntary decided to board the Police Boat Lata to Honiara on 6^th October 2013 but was compelled by circumstances created by the Police Officers taking his bech-de-mers and loading them on the Patrol Boat Lata."

He continued, at paragraph 5 of Page 5 of his judgment:

• "In view of his unlawful arrest and unlawful detention, I also find that any properties taken by the police including the 44 bags of bech-de-mers taken from him were also unlawfully taken and unlawfully detained as there is no evidence or suspicion based on reasonable grounds that the bech-de-mer taken by the Police and Fisheries Officers were harvested during the close season. The criminal prosecution against the Claimant was decided in his favour and was acquitted in the Magistrates' Court but the Police and Fisheries Officers did not return the bech-de-mer of 1,526.28 kilos taken from the Claimant. This is unlawful detention of chattel."

67. We are satisfied this appeal ground should be dismissed.
    • GROUND 5 OF THE APPEAL. The learned judge erred in law and fact in ruling that unlawful detention was established in that 1,526.28 kg of BDM was not returned to Claimant on his acquittal without taking account the Police Statements that the BDM had been seized in September 2013 and that the Claimant was not acquitted until 1 May 2017 therefore the BDM had to be disposed of pursuant to section 91(1) of the Fisheries Management Act [2015] as they were perishable items.
68. Ground 4 and Ground 5 relate to the same issue and therefore can be dealt with together. We are satisfied this ground has been adequately covered under ground 4 of the appeal above and therefore should be dismissed.
    • GROUND 6 OF THE APPEAL. The learned judge erred in law and fact in ruling that as the Claimant/ Respondent was not lawfully arrested on 12 September 2017 the Claimant and his associates were detained unlawfully on the Patrol Boat Auki on that date and at Rove on 13 September 2017 which amounted to false imprisonment when the evidence in the Police Statements provided by the Claimant in a formal caution interview on 20 September 2017 was that he was not arrested on 12 September 2017 because he and his associate had sought and obtained permission to travel on the Patrol Boat Auki to Honiara to present the result of the trial and error project on BDM Aquaculture to the Ministry of Fisheries and National Caucus.
    • GROUND 7 OF THE APPEAL. The learned judge erred in law and fact in his application of the requirements for the tort of false imprisonment by not taking into account a valid justification for the presence of the Claimant and his associate on the Patrol Boat Auki on 12 September 2017 and that later they were able to depart of their own free will from Rove Police Station on 13 September 2017 despite the Police not completing their investigation.
69. We are also satisfied both these grounds of appeal should be dismissed. The overarching purpose of the trip was to apprehend the Respondent for conducting commercial aquaculture (bech-de-mer) farming without a licence contrary to section 13A of the Fisheries Act (Amendment) Regulations 2009.
70. Any suggestions or agreement to accompany the Police on the boat would have occurred after the fact, of his apprehension. That does not detract from the overriding objective of the trip, his apprehension and confiscation of his bdm. If it were merely to investigate and report back, it would have been but an expensive and wasted trip, a fortiori, there would not have been any need for him to have to travel to Honiara to provide any explanation. It is clear from the evidence that once the apprehension was completed, he may have sought to use that as an opportunity to provide any explanation but not as a free man as found by the judge.
71. On the uncontested evidence on his arrival, he was immediately whisked away to Rove Police Headquarters for interview, which continued until midnight. It was only during a break in his interview, and after receiving advice from his lawyer that he was under no obligation to stay unless arrested, that he walked away.
72. We do not need to rehearse the problem that the Appellants have from the outset in asking the Court to rely on police statements in the Court Book from a criminal proceeding in the Magistrates’ Court, which had not been proved in evidence before the court, or the witnesses not called to give oral evidence.
73. In other words, the Appellant is asking the court to make inferences, which is not open to it. In Lever Solomon Ltd v. Attorney-General^[15], this Court said:
    • “[31] Inferences may be distinguished from conjecture or speculation. The fact finder cannot draw an inference unless there are objective facts from which to draw such inferences. If there are not positive proved facts from which such an inference can be made, it is merely speculation or conjecture (Caswell v. Powell Duffryn Associated Collieries Ltd) In the legal sense, an inference is the deduction from the evidence, i.e. proved evidence, and if reasonable may have the validity of legal proof (Jones v. Great Western Railway Company).”
74. In the case of Jones v. Dunkel, HCA 8,^[16] it has been held in cases of a party’s failure to call a witness that when there is an unexplained failure by a party to call evidence, to call a witness or to tender documents or other evidence, the court may draw an inference that the uncalled evidence would not have assisted the party.
75. This is the undeniable reality of the Appellant’s position when contrasted with the overwhelming evidence of the Respondent of being imprisoned or under restraint on those occasions. This burden has not been displaced by the Appellants, who instead asserted that the Respondent had acquiesced by requesting to be on board so that he can report his findings to Cabinet.
76. We are satisfied there is evidence before the judge to support his findings of unlawful detention as held by him at page 5, starting at the bottom of the page, and continuing at page 6, top of the page as follows:
    • "The facts relating to the 2017 arrest are set out in paragraph B 12 – 20 above. The facts are not disputed and I do not need to repeat them. The Claimant in a sworn statement filed on 23^rd May 2020 also deposed that on 12^th September 2017, he was again detained without arrest by the Sixth and Seventh Defendants. He was detention (sic) on Patrol Boat Auki together with an American Scientist, Dr. Erick Harberg and also at Rove on 13^th September 2017. These facts were not disputed. I am satisfied Claimant was never arrested because the evidence was that he was only arrested on 13^th September 2017 by Detective Constable Siriuao on the directions of Mr. Nathaniel Kabagita and Mr. Honiwala.”
77. We are satisfied both of those appeal grounds should be dismissed.
    • GROUND 8 OF THE APPEAL. The learned judge erred in law and fact in ruling that the Director of Fisheries was activated by malice in the prosecution of the Claimant in 2017 as he knew that the Claimant was authorized to do a pilot project of BDM farming when the Police Statements compiled after the 2017 incident did not support that finding further, there was reasonable suspicion on whether there was genuine experimental farming being conducted rather than illegal harvesting of BDM (during the ban period), and the learned judge did not take into account the policy/operational distinction articulated in cases such as Comeau Sea Foods Ltd v Canada (Minister of Fisheries and Oceans) [1997] 1 SCR 12 that authorization (as opposed to a license) granted by the Minister and the Director of Fisheries is not irrevocable, but may be reviewed for the purpose of implementing Government policy on the sustainable harvest of BDM in Solomon Islands.
    • GROUND 9 OF THE APPEAL. The learned judge erred in law and fact in his application of the requirements for the tort of malicious prosecution to the facts of the 2017 investigation into the Claimant’s BDM farming activities given the evidence in the Police Statements.
78. Appeal grounds 8 and 9 deal with the finding of the High Court that the Director of Fisheries (1^st Appellant) was actuated by malice in initiating the detention, arrest and prosecution of the Respondent with regards to the allegations of illegal farming of bdm by the Respondent. The Appellants say that the finding of the learned judge was not supported by evidence. They say the police had reasonable suspicion that the Respondent was not conducting genuine experimental farming and therefore the Judge erred in his application of the requirements to establish malicious prosecution.
79. As a consequence the Respondent was arrested and charged for 2 counts of engaging in commercial aquaculture without a licence or authorization contrary to section 43(1) (h) of the Fisheries Management Act 2015, on 21 September 2017.
80. The brief background on this issue however can be summarised based on the evidence adduced by the Respondent as follows. On the 25^th August 2012, the Ontong Java Development Company applied for approval to do farming of bdm. On 27 June 2014, approval of the application was granted by the Minister. On 23 September 2014, the Chief Fisheries Officer Aquaculture Mr. Meloty promised technical support. On 1^st June 2017, further endorsement was given by the First Appellant. The fact that it was a research project and a pilot study was understood by the First Appellant. His letter reads:
    • "Upon seeing the successful inauguration on the initial operation of the pilot project in the atoll, the ministry will then issue a licence to the project ..."
81. There is evidence that support the view that it was understood by all parties involved that the Respondent was engaged in a pilot sea cucumber farming project.
82. What appears to have triggered the response by the Appellants to apprehend the Respondent came from a series of complaints received from the "Chiefs" citing "the details of Dr. Reginald Aipia's attitude and behaviour will be highlighted during our discussions". One of the Chiefs was Bartholomew Kokolopu (a member of the House of Chiefs) who had made a complaint also about the "attitude" of the Respondent. It appears however, that the complaints were more personal grudges amongst certain members of the House of Chiefs and the Respondent.
83. On 1^st September 2017, the decision was made in a meeting with the Second Appellant (Commissioner of Police) informing the Attorney-General, that the Patrol boat was travelling to Lord Howe to apprehend the Respondent.
    • "1. The Patrol boat will leave on Monday purposely to arrest Dr. Reginald Aipia for operating that illegal sea cucumber (BDM) farm.
    • 2. We will not deal with the BDM illegal harvesting at this stage as the ban now opens today."
84. According to the evidence of the Respondent as adduced from the Police Statements, there was no evidence of any establishments resembling a commercial undertaking. All that was seen by the Fisheries and Police Officers were the presence of a physical fencing and sea cucumber. There was no evidence of any sea cucumber processing facilities, BDM storage facilities, on-shore live storage facilities, or cooking or boiling of sea cucumber, and drying.
85. We do not need to rehearse the findings of the learned judge on this issue, however it is sufficient to note the following.
86. It is not in dispute that no licence was issued. That is clear from the evidence as the Respondent was not undertaking a commercial activity. There is also no dispute that he had been granted endorsement and authorisation. There was also no dispute that the farming undertaken was a pilot project. As such it could hardly be a commercial undertaking.
87. As well it was only in operation for 3 months when the Respondent was again arrested and charged. During that period what they did was erecting nets, transferring sea cucumber inside the enclose areas and setting up parameters.
88. There was overwhelming evidence and not contested, that the Respondent could not be involved in commercial farming of bdm. There was no evidence of any trade, sell or attempt to export that was found.
89. The Respondent's complaints on the other hand about the Chiefs' continuing illegal harvest during the period of ban was completely ignored. Instead he was the one who took the brunt of the investigations and not others.

We are satisfied the judge addressed this at page 7, paragraph 1 of his submissions:

• "In this instance, the Director of Fisheries knew or ought to have known that the Claimant was authorised to do a pilot project of bech-de-mer farming. The authorisation was given by the Acting Minister of Fisheries, Hon. Clay Forau. The Claimant's project was also supported by the Director himself as per his letter to the Claimant's company dated 1^st June 2017. The Director is capable of distinguishing between the commercial farming and pilot project or trial project. He fails to consider this or rather turn a blind eye to this and plan the operation to arrest the Claimant and confiscate his bech-de-mers. It is clear in the operation orders the aim of the trip was to arrest all persons engaged in the illegal harvest of bech-de-mer but only the Claimant was arrested while others were ignored. The only reasonable inference one can draw from the Director's action is, it shows an act of a person actuated by malice and his action was not based on any probable or reasonable cause."

90. We are satisfied both appeal grounds should also be dismissed.
    • GROUND 10 OF THE APPEAL. The learned judge erred in law and fact in his finding that the Defendant/Appellant were not acting in good faith therefore not indemnified from tort liability when discharging their duties under section 212(b) of the Police Act and section 84(1) of the Fisheries Management Act when no other inference can be reached after considering the Police Statements compiled from the Joint Police/Ministry of Fishery investigations conducted in 2013 and 2017 into the Claimant’s BDM extraction activities other than a joint operation being carried out on the harvesting of BDM with a public awareness objective of informing people in the Lord Howe atolls of the restrictions imposed by harvesting periods.
91. Under this ground, the Appellants assert that there is simply no evidence before the judge to impute that the Appellants were not acting in good faith. They rely again on unproven evidence and without calling witnesses to give oral evidence or to be cross examined.
92. While it is not disputed that the Fisheries Act, Police Act and Fisheries Management Act afford the Appellants as servants of the Crown the defence of "good faith" that does not clothe them with complete immunity.
93. The references to good and bad faith are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. When someone is accused of bad faith it is because they have acted unreasonably or on improper grounds. Over and over again it has been stated that powers must be exercised reasonably and in good faith or for legitimate reasons^[17]. In other words, they are to be exercised properly, within the ambit of the powers conferred and not contrary to the law.
94. As pointed out by Mr. Mathews in his submissions, this is a question of fact and the Court will either infer from the evidence or from actual happenings.
95. We are satisfied the judge was entitled to infer from the evidence before him the conclusion that the Appellants were not acting in good faith.
    • "In considering the question of whether the Police and Fisheries Officers were acting in good faith it is necessary to consider a number of factors including whether the Defendants carefully assess the reports received about the Claimant and consider if the reports were made in good faith. There is also a need to consider the facts associate with the harvesting of bech-de-mer on Ontong Java Atolls."

His Lordship continued at the second paragraph...

• "The Attorney-General filed a defence on behalf of the Defendants but filed no sworn statement in support of the defence. The Attorney General, however, submits that the Defendants are not liable to the Claimant. He submits that the Defendants are public officers and were enforcing their statutory duties and as such cannot be held liable as claimed.
• While the Police Officer and Fisheries Offices were protected from liability under the Police Act and The Fisheries Act, I do not think this is absolute there is an exception, based on whether the officers were acting in good faith. In that respect, despite the learned Solicitor General's submission, I think there are qualifications and the Defendants must show they were acting in good faith. No evidence was adduced by the Defendants to prove that they were acting in good faith."

96. We are satisfied this appeal ground should be dismissed.
    • GROUND 11 OF THE APPEAL. The learned judge erred in law and fact in his awarding damages in the amounts claimed by the claimant as liability for their payment have not been established and they do not accord with the principles of nominal, vindicatory or restitutionary damages when applied to the facts of this case.
97. Finally, for the reasons stated in this judgment we are satisfied this appeal ground should also be dismissed. In his findings on this point, the learned judge said:
    • "Exemplary damages carry a punitive element aimed at both retribution and deterrence for the wrongdoer and those who may be considering the same conduct. In Rooks v. Bernard [1964] UKHL 1; [1964] A.C. 1129, Lord Devlin identified three categories where exemplary damages might be awarded, namely; (a) oppressive, (b) arbitrary or (c) unconstitutional actions by servants of the government."

His Lordship continued and quoted a case from Papua New Guinea in the next paragraph:

• In James Koimo v. The State 1995 [PNGLR] 535 Injia J (as he then was), held, 'In situations involving the acts of servants of the State, exemplary damages are awarded at common law where the action is oppressive, arbitrary or unconstitutional. An award of exemplary damages serves to show the disappointment of the court and the indignation of the public at the oppressive action of the servant of the State, require the State to take appropriate remedial action, and adversely affects the reputation of the state.'
• In the present case, all Defendants are Public Officers as such the State is vicariously liable for their actions relating to the wrongful arrest and other torts committed on the Claimant. I give judgment for the Claimant in the amounts claimed. Damages to be assessed if not agreed. Cost against the Defendants on a standard basis."

98. Liability having been established and while awards have been given in the amounts sought, the learned judge had made clear that where this is not agreed they are to be assessed. We find no reason to disturb this determination. The matter should be reverted back to the judge for assessment of damages and the Respondent is to have his costs on the appeal.

Sir John Hansen, Vice-President
Sir Albert Palmer JA.
Vincent Lunabek JA.

^[1] Orders perfected on 11 December 2019 and 28 May 2020.
^[2] [2018] SBCA 6
^[3] [2021] SBCA 19
^[4] Rule 13.4
^[5] See also Rule 13.5
^[6] See Attorney General v. Suhara (ibid).
^[7] [2016]SBCA 15 (14 October 2016)
^[8] QB[1845] 742
^[9] Law of Torts in the South Pacific, Stephen Offei, School of Law, The University of the South Pacific at Page 28, paragraph 2.6.1
^[10] [1984] 3 All ER 374
^[11] Tort, 4^th Edition
^[12] 15^th Edition
^[13] Termes de la Ley, "Imprisonment"; approved in Bird v. Jones [1845] 7 Q.B. 742, and by Duke and Atkin L.JJ. in Meering v. Grahmae-White Aviation Co. [1919] 122 L.T. 44.
^[14] See Regina v. Jackson [2008] SBHC 72; HCSI-CRC 256 of 2007 (11 December 2008); Regina v. Yow [2016] SBHC 107
^[15] [2013] SBCA 11, SICOA-CAC 24 of 2013 (8 November 2013)
^[16] [1959] 101 CLR 298
^[17] See the text on Administrative Law by H.W.R Wade 6^th Edition, pages 442 – 443.