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Pohiva v Kingdom of Tonga [2002] TOLawRp 52; [2002] Tonga LR 333 (3 December 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 559/98

Pohiva anors

v

Kingdom of Tonga anor

Ford J
27-31 May, 29-31 July, 1 August 2002; 3 December 2002

Tort – false imprisonment – liability of Minister of Police and Kingdom of Tonga
Damages – tort of false imprisonment - assessed

In August 1996, the peoples' representatives in the Legislative Assembly determined to attempt to have Parliament impeach the then Minister of Justice and Attorney-General for attending the Olympic Games in Atlanta, Georgia, in the United States after the Chairman of the House had allegedly declined his application for leave. It was also alleged that he had committed theft in drawing and using the amount of $2615, which he had not been entitled to receive once his leave application had been declined. At noon on 4 September 1996 the motion for impeachment of the Minister was submitted to the office of Parliament by one of the peoples' representatives. A special procedure was prescribed in the Standing Orders of the Legislative Assembly for dealing with impeachment matters. Before any of the formal processing steps could be taken, however, an article appeared in the Taimi 'O Tonga newspaper dated 4 September 1996 under the heading "Impeachment". The article said that: "An impeachment of the Minister of Justice has been submitted by the peoples' representatives" and it then went on to set out the full text of the impeachment notice including full particulars of the allegations of misconduct made against the Minister. The first plaintiff, Mr Pohiva, who was the number one peoples' representative in the Legislative Assembly subsequently admitted to the House that it was he who had passed the impeachment notice of motion on to the newspaper for publication. He told the court that he had taken similar action on previous occasions without any adverse consequences. On 11 September 1996 the Chairman of the Legislative Assembly issued a summons to the three plaintiffs to attend before the House on Thursday 19 September 1996. The second plaintiff, Mr Moala, who was based in Auckland, was the editor and publisher of the "Taimi 'O Tonga" newspaper. The third plaintiff, Mr 'Akau'ola, was the assistant editor and advertising manager of the Taimi 'O Tonga; he was based in Tongatapu. The summons charged the plaintiffs with publishing an article on impeachment which was not correct and was disrespectful to the Legislative Assembly. Parliaments' contempt hearing found the plaintiffs guilty of contempt and voted in favour of imprisonment for 30 days. The Minister of Police received a warrant and passed it on to Police Inspector Tu'ihalamaka to execute. The Central Police Station diary records that at 0105 hours on 20 September 1996 Inspector Tu'ihalamaka arrived at the Central Police Station with the three plaintiffs to be kept in custody for 30 days. The plaintiffs made two unsuccessful applications for habeas corpus. The third application was successful and they were released. The Minister of Police appealed and the Court of Appeal dismissed the appeal. The court found that the charge was defective and referred to an offence which simply did not exist under the Constitution. The plaintiffs commenced action in March 1998 and sought damages for their wrongful imprisonment over the 26 day period between 19 September and 14 October 1996. They each sought awards of general, aggravated and exemplary damages for their detention. Virtually every aspect of the claim was denied in the pleadings and vigorously defended.

Held:

1. The tort of false imprisonment was one of strict liability therefore once the plaintiff established the fact of imprisonment, the onus fell on the defendant to prove that the detention was lawful. The charge that was brought against the plaintiffs was not authorised.

2. It was no defence or justification to a charge of false imprisonment that the party responsible for the detention acted at all times in good faith, genuinely believing that the detention was lawful. Therefore, the court rejected the second defendant's defence based on the notion that, because he had acted in obedience and conformity with the Speaker's warrant, which on the face of it was valid, he was thereby protected from any wrongful imprisonment suit.

3. The court held that the various defences pleaded by the second defendant did not amount to justification of the unlawful detention. The plaintiffs, therefore, succeeded in their claims against the second defendant.

4. The first defendant claimed immunity under s 4(2) of the Crown Proceedings Act however that did not automatically relieve the first defendant from liability in respect of the acts complained about of the second defendant. The plaintiffs succeeded in their claims against both defendants.

5. The court reviewed the evidence and found no evidence of any high-handed or outrageous conduct on the part of the second defendant that would warrant an award of exemplary damages.

6. The plaintiffs established a proper entitlement to compensation. The court was concerned that the amounts claimed bore no relation to the ordinary values of life and money in the Kingdom.

7. The court ordered general and aggravated damages against the first and second defendants jointly and severally. First plaintiff: $20,000; second plaintiff: $17,000; and third plaintiff: $20,000. The plaintiffs were entitled to costs against the defendants to be agreed or taxed.

NOTE:

This judgment was appealed to the Court of Appeal (to be reported in 2003 reports). The appeal was dismissed but a cross appeal was allowed and the damages awarded were increased to $30,000, $27,000, and $30,000 respectively.

Cases considered:

Cowell v Corrective Services Commission [1988] 13 NSWLR 714

Entick v Carrington [1765] EWHC J98; (1765) 19 State Tr 1030

Everett v Griffith [1921] 1 AC 631

Fyfe v Attorney-General [2001] NZAR 498

Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733

Henderson v Preston [1888] UKLawRpKQB 148; (1888) 21 QBD 362

Kirvelk Management and Consulting Services Ltd v The Attorney General of Trinidad and Tobago (Privy Council, 52 of 2001), judgment dated 25 July 2002

Love v Attorney-General (NSW) [1990] HCA 4; [1990] 169 CLR 307

M v Home Office [1993] UKHL 5; [1994] 1 AC 377

Manu & Kingdom of Tonga v Muller [1997] Tonga LR 192 (CA)

Minister of Police v Moala, 'Alkau'ola & Pohiva [1997] Tonga LR 210 (CA)

Moala & anor v Minister of Police (No 1) [1996] Tonga LR 202

Moala & ors v Minister of Police (No 2) [1996] Tonga LR 207

Moala & anors v Minister of Police (No 3) [1996] Tonga LR 211

Morris v Winter [1930] 1 KB 243

Overseas Aviation Engineering (GB) Ltd, In re [1963] Ch 24

R v Governor of Brockhill Prison, ex p Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19

Reg v Dublin Corporation (1878) 2 L.R.Ir 371

Royal Aquarium and Summer and Winter Garden Society Limited v Parkinson [1992] 1 QB 431

Seatrans (Fiji) Ltd v Attorney-General [1986] NZHC 42; [1986] 2 NZLR 240

Shiels v Blakeley [1986] NZLR 262 (CA)

Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 (CA)

Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1998] QB 498

Statutes considered:

Crown Proceedings Act (Cap 13)

Crown Proceedings Act 1947 (UK)

Crown Proceedings Act 1950 (NZ)

Evidence Act (Cap 15)

Magistrates' Court Act (Cap 11)

Police Act (Cap 35)

Prisons Act (Cap 36)

Prisons Act 1952 (NSW)

Counsel for plaintiffs: Dr Harrison QC and Mr Tu'utafaiva
Counsel for first defendant: Solicitor-General and Mr Kefu
Counsel for second defendant: Mr Stanton and Mr Edwards

Judgment

Introduction

Although this hearing concluded back in August, judgment has necessarily been stayed up until now in compliance with clause 73 of the Constitution which frees members of the Legislative Assembly from judgment whilst the House is sitting. The first named plaintiff and the second defendant are both members of the House. The 2002 session of the Legislative Assembly was officially closed by His Majesty on 28 November 2002.

I suspect that the events giving rise to this litigation are already well entrenched in the folklore of the Kingdom. The court was told that they received widespread publicity at the time both internally and internationally and they have already been the subject of litigation in various forms both in this Court and in the Court of Appeal. Six years have now passed, however, since those events took place and it will, therefore, be necessary for me to outline again, albeit as succinctly as I can, the salient background facts.

Background events

The plaintiffs commenced this particular action in March 1998 seeking damages for their wrongful imprisonment and/or detention over a period of 26 days between 19 September and 14 October 1996. They each seek awards of general, aggravated and exemplary damages for their detention. Virtually every aspect of the claim has been denied in the pleadings and vigorously defended.

Towards the end of August 1996, the peoples' representatives in the Legislative Assembly determined to attempt to have Parliament impeach the then Minister of Justice and Attorney-General for attending the Olympic Games in Atlanta, Georgia, in the United States after the Chairman of the House had allegedly declined his application for leave. It was also alleged that he had committed theft in drawing and using the amount of $2615, which he had not been entitled to receive once his leave application had been declined.

At noon on 4 September 1996 the motion for impeachment of the Minister was submitted to the office of Parliament by one of the peoples' representatives. A special procedure is prescribed in the Standing Orders of the Legislative Assembly for dealing with impeachment matters. Before any of the formal processing steps could be taken, however, an article appeared in the Taimi 'O Tonga newspaper dated 4 September 1996 under the heading "Impeachment". The article said that: "An impeachment of the Minister of Justice has been submitted by the peoples' representatives" and it then went on to set out the full text of the impeachment notice including full particulars of the allegations of misconduct made against the Minister.

The first plaintiff, Mr Pohiva, who was the number one peoples' representative in the Legislative Assembly subsequently admitted to the House that it was he who had passed the impeachment notice of motion on to the newspaper for publication. He told the court that he had taken similar action on previous occasions without any adverse consequences.

On 11 September 1996 the Chairman of the Legislative Assembly issued a summons to the three plaintiffs to attend before the House on Thursday 19 September 1996. The second plaintiff, Mr Moala, who is based in Auckland, is the editor and publisher of the "Taimi 'O Tonga" newspaper. The third plaintiff, Mr 'Akau'ola, is the assistant editor and advertising manager of the Taimi 'O Tonga; he resides in Tongatapu. The summons charged the plaintiffs with publishing an article on impeachment which was "not correct and it is disrespectful to the Legislative Assembly".

It is not necessary for me to refer in any detail to the events that then took place at what was described as "Parliaments' contempt hearing" on Thursday 19 September but an "Information Paper" subsequently produced through the Prime Minister's office by the acting secretary to Cabinet recorded the following:

"Although contempt charges are not accompanied by hearings as in a court trial, Parliament allowed the three men full opportunity to answer the allegations, and to have legal counsel. Moala and 'Akau'ola, had a legal counsel, Pohiva did not. The hearing took place the whole of Thursday morning and afternoon, fully attended by the press and the public. After lengthy debate, the House on the evening of 19 September 1996 voted on two matters. The first was "WHETHER THE ACCUSED WERE GUILTY OR NOT GUILTY OF CONTEMPT OF THE HOUSE". The house voted by 19 to 2 that they were GUILTY...

The second and last matter the House voted on, was the PENALTY.

After very lengthy debates, the House ended up with two motions to vote on. These were:

(a) Imprisonment FOR 30 DAYS.

(b) Imprisonment FOR 15 DAYS.

The House voted 10 to 8 in favour of imprisonment for 30 days."

There was some conflict in the plaintiffs' evidence, perhaps understandably because of the time lapse, about the exact sequence of events as they had unfolded during the day and evening of the 19th September 1996. It appears, however, that it was not until sometime after the House rose at 12:22am on the morning of Friday 20 September that the plaintiffs learned of their fate. Mr Pohiva, in his evidence, was extremely critical of the fact that they had not been given the opportunity to address the House in relation to penalty. He said that they learned that they had been found guilty and sentenced to 30 days imprisonment all at the one time.

About the same time, still in the early hours of the morning of 20 September, the plaintiffs were shown a copy of what was referred to subsequently in court proceedings as an order or warrant on Legislative Assembly letterhead addressed to the Minister of Police and signed by the Chairman of the Legislative Assembly. The warrant read:

"20 September 1996.

To the Minister of Police

Nuku'alofa.

The Legislative Assembly ordered to prison:

1. 'Eakalafi Moala

2. Filokalafi'Akau'ola

3.'Akilisi Pohiva

for 30 days commencing 5 o'clock on the afternoon of 19 September 1996 by virtue of the power vested in the Legislative Assembly by clause 70 of the Constitution and the judgment of the House on this day regarding their imprisonment.

They are not to be released until after the expiration of 30 days or otherwise ordered by Parliament for a shorter time. I ask that immediate effect be given to this order.

Fusitu'a

Chairman of the Legislative Assembly."

The Minister of Police, to whom the warrant was addressed, is the second defendant in this proceeding. In his evidence, the Minister said that he had told the Speaker of the House that he would require a warrant before the police would become involved. He recalled being handed the warrant approximately 30 or 40 minutes after the House had risen for the day and he then passed it on to Police Inspector Tu'ihalamaka to execute. The Central Police Station diary records that at 0105 hours on 20 September 1996 Inspector Tu'ihalamaka arrived at the Central Police Station with the three plaintiffs to be kept in custody for 30 days. The diary then records:

"Inspector Tu'ihalamaka conveyed Hon Clive Edwards instructions to keep (the three men) and no misconduct is forwarded (sic) to them but look after them properly."

So began the events giving rise to this claim for false imprisonment or, in the alternative, breach of the plaintiffs' constitutional rights.

Moala and 'Akau'ola made immediate application to the Court for the issue of writs of habeas corpus. They sought an order that they be released from the "unlawful and unjustifiable restraint or detention" imposed upon them.

The application was heard by Lewis J. on 24 September 1996 and refused. His Honour held that Parliament was entitled to absolute privilege over its internal proceedings and, in that sense, it alone was entitled to determine whether the plaintiffs' conduct amounted to contempt in terms of clause 70 of the Constitution -- Moala & anor v Minister of Police (No 1) [1996] Tonga LR 202.

A further application for habeas corpus was then made by all three plaintiffs upon the new ground that Parliament did not have power to detain offenders in prison beyond the period of a session. The 1996 session of the Legislative Assembly had officially closed on 3 October 1996. The application was heard by Lewis J. on 4 October and again habeas corpus was refused -- Moala & ors v Minister of Police (No 2) [1996] Tonga LR 207.

Undeterred, the plaintiffs made a third application for habeas corpus, this time mounting an attack on the basis of Constitutional provisions. That application came before Hampton C.J. on 14 October 1996 and, after an in-depth analysis of the relevant clauses in the Constitution, the Chief Justice upheld the application and ordered the immediate release of the plaintiffs from detention. Towards the end of his judgment, His Honour said:

"The conclusion I have reached, therefore, is that the procedures adopted were unfair. They were not in accordance with the Constitution or with the Legislative Assembly's own Rules made under the Constitution. I have reached the view that the Applicants must succeed in the application which they have made to me." - Moala & anors v Minister of Police (No 3) [1996] Tonga LR 211, at 226.

The plaintiffs were, accordingly, immediately released from detention but that was not the end of the litigation. The Minister of Police then appealed the decision of Hampton C.J. In its decision -- Minister of Police v Moala, 'Alkau'ola & Pohiva [1997] Tonga LR 210, the Court of Appeal dismissed the appeal but acknowledged that the real issue involved was "a constitutional one of great importance".

The Court of Appeal focused on clause 70 of the Constitution which was the provision which the Legislative Assembly had acted under in sentencing the plaintiffs to prison for contempt. The clause reads:

70. If anyone shall speak or act disrespectfully in the presence of the Legislative Assembly it shall be lawful to imprison him for thirty days and whosoever shall publish any libel on the Legislative Assembly, or threaten any member or his property, or rescue any person whose arrest has been ordered by the Legislative Assembly, may be imprisoned for not exceeding thirty days."

The Court of Appeal compared the wording of clause 70 with the wording of the charge set out in the summons served on the plaintiffs. The charge in the summons had alleged that the article published on impeachment was not correct and it is disrespectful to the Legislative Assembly'. The Court of Appeal found that the charge so written was defective in that it did not allege that any one of the plaintiffs had spoken or acted "disrespectfully in the presence of the Legislative Assembly" so as to fall within the first part of clause 70, nor did it allege that any one of the plaintiffs had published a libel on the Legislative Assembly so as to fall within the second part of the clause. The court concluded that the summons was "an amalgam or conflation of two very inaccurate versions of two of the proscriptions contained in clause 70 and it thereby (stated) ... an offence which simply does not exist under the Constitution."

The Court of Appeal also noted in an obiter dictum statement that the Chief Justice had been right in holding that clause 70 entitled the plaintiffs to natural justice.

The law relating to false imprisonment

The law relating to the tort of false imprisonment is well established. It is a form of trespass to the person. As stated by Lord Bridge in Hague v Deputy Governor of Parkhurst Prison [1990] UKHL 8; [1991] 3 All ER 733 (at 743):

"The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it."

It is a tort of strict liability. There is no onus on a plaintiff to prove that the imprisonment was unlawful or malicious. Once the plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful. It may be so, for example, if it is pursuant to an order of the court or the exercise of statutory powers. An action for false imprisonment will succeed or fail depending upon whether the defendant can, as a matter of law, justify the detention or imprisonment.

In the present case, although there has been some skirmishing in the defendants' pleadings and submissions, I have no doubt that the plaintiffs have made out a prima facie case of false imprisonment. Their detention in custody during the period claimed (apart from one matter relating to the actual time spent in detention, which I will refer to later in this judgment) is well documented and was fully covered in evidence. The absence of lawful authority was clearly established in the Court of Appeal decision. The court held that the Constitution, specifically clause 70, simply did not authorise the charge that had been brought against the three men.

The defendants are bound by that finding. Section 99 of the Evidence Act (Cap 15) states:

"Every judgment is conclusive proof in all subsequent proceedings between the same parties or their privies of facts directly in issue in the case actually decided by the court, but not of facts which were only collaterally or incidentally in issue even though the decision of such facts was necessary in order to enable the court to decide the case."

Admittedly, the Kingdom of Tonga was not a party to the Court of Appeal judgment but section 99 refers to "the same parties or their privies". Dr Harrison submitted in this regard that it would be "completely unreal to ignore the fact that the second defendant effectively represented both himself and the first defendant in the habeas corpus litigation." I agree with that submission. The meaning of "parties or their privies" in this context was considered by the New Zealand Court of Appeal in Shiels v Blakeley [1986] NZLR 262. After reviewing the authorities, Somers J., delivering the judgment of the court, said (at 268):

"We conclude that there must be shown such a union or nexus, such a community or mutuality of interest, such an identity between a party to the first proceeding and the person claimed to be estopped in the subsequent proceedings, that to estop the latter will produce a fair and just result having regard to the purposes of the doctrine of estoppel and its effect on the party estopped."

I have no difficulty in concluding that such a relationship exists between the defendants in the present case so that each is bound by the Court of Appeal's findings that clause 70 of the Constitution did not authorise the bringing of the charge set out in the summons. In any event, having now heard all the evidence, I have respectfully reached the same conclusion as the Court of Appeal in relation to this aspect of the case.

The second defendant's defences

I turn now to consider the various defences advanced by the two defendants. It is perhaps appropriate to begin with the second defendant, the Minister of Police. That is how the case was presented.

The second defendant's role in the detention of the plaintiffs was canvassed in detail in evidence and is well documented. In his statement of defence, the Minister of Police pleads that he did not "physically imprison or detain the plaintiffs" and that it was not he but officers of the Ministry of Police/Prisons who executed the warrant. That, however, is not where the matter begins and ends. The legal issues are more challenging.

The reality, as I perceive it from the evidence, is that, as Minister of both Police and Prisons, it was the second defendant who was responsible, in the exercise of his statutory powers and functions, for giving effect to the warrant and supervising the detention of the plaintiffs. The process began when he handed the Speaker's warrant to Inspector Tu'ihalamaka in the early hours on the morning of 20 September and gave the instructions referred to earlier which were recorded in the Central Police Station diary. Various correspondence was produced confirming the supervisory role undertaken by the second defendant in the detention of the plaintiffs. In a letter dated 23 September 1996 addressed to Semisi Tapueluelu and copied to the Police Commander, the second defendant said, in part:

"I therefore order you, Semisi Tapueluelu the Superintendent of Prisons and all Prisons (sic) Officers of the Prisons Department to keep these 3 until the 30 days expire which 30 days should commence from 5 pm of (sic) the 19th day of September 1996."

In his formal "Return on the Writ" of Habeas Corpus dated 14 October 1996, the second defendant specifically acknowledged that each plaintiff was "detained under my control and supervision at His Majesty's prison (Hu'atolitoli, Vaini, Tongatapu) pursuant to section 3 of the Prisons Act."

In Cowell v Corrective Services Commission [1988] 13 NSWLR 714, an issue arose over whether the Governor of the prison or the Corrective Services Commission was liable for the false imprisonment of the plaintiff. The relevant provisions in the NSW Prisons Act 1952 stated that every prisoner was deemed to be in the custody of the Governor of the prison. In a majority decision, the Court of Appeal held that the Commission was liable. Clarke J. said (at 377):

"It seems to me that in the light of the [Commission's] lawful power to exercise control over the prisoner, both directly by order and by directions to a governor, it should be regarded as responsible for detaining the prisoner throughout the term of his sentence."

I respectfully agree with that approach. The Minister in the present case had similar powers of control over the plaintiffs to the Commission in the Cowell case. I am satisfied that at all material times the defendant can properly be regarded as being responsible for the detention of the plaintiffs during the term of their sentence.

That being the reality of the situation it is then up to the Minister to justify the detention. For the reasons already canvassed, he cannot, in this regard, rely upon the "lawfulness" of the Speaker's warrant. But the second defendant claims to be immune from suit on other grounds. In this regard, he relies upon the authority of Henderson v Preston [1888] UKLawRpKQB 148; (1888) 21 QBD 362 and Morris v Winter [1930] 1 KB 243, decisions which his counsel described as "critically relevant to the Minister of Police as he is in conformity with the position taken by the Governor of a jail." These two authorities, so it was submitted, establish that a Governor is protected if he has acted in obedience to and in conformity with a warrant of committal issued by a court having jurisdiction and, which on the face of it, is valid. In both the cited cases, the warrant in question had been issued by a court of competent jurisdiction.

In his response, Dr Harrison stressed that the situation in the present case was quite different in that no court was involved in the issuing of the warrant. Relying on two authorities spanning some 236 years -- Entick v Carrington [1765] EWHC J98; (1765) 19 State Tr 1030 and R v Governor of Brockhill Prison, ex p Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19, the plaintiffs submitted that a belief that the detention was justified by law at the time is not enough. They argued that it is no defence for the second defendant to claim that he was only "acting on orders" given that the detention itself was, or was ordered, without lawful authority.

The Brockhill Prison decision of the House of Lords is one of the most recent authorities relating to the tort of false imprisonment. The applicant in that case, a Miss Evans, had been sentenced to serve various terms of imprisonment for assault causing bodily harm and other offences. The sentences were to be served concurrently, the longest being for 2 years. As she had spent a period in custody immediately after her arrest an issue arose over her correct release date. The Governor of the Prison, following Home Office instructions to governors based on earlier court decisions, calculated the correct date to be 18 November 1996. The applicant contended that the correct date should be 17 September 1996. She sought judicial review of the governor's decision and on 15 November 1996 the Divisional Court held that the correct release date was 17 September and ordered her immediate release.

The applicant then claimed damages for false imprisonment in respect of the 59 additional days which she had spent in custody. Collins J. dismissed her application on the grounds that the prison governor had been entitled to rely on previous court decisions to calculate the release date. The Court of Appeal, by a majority, allowed her appeal. She was awarded £5000 damages. On appeal by the prison governor, the House of Lords affirmed the Court of Appeal decision. The headnote to the report states:

"... The applicant's continued detention after her correctly calculated date of release was unlawful, and in so detaining her the prison governor had acted in excess of the powers conferred on him by Parliament; that the fact that he had complied with the law as the court had at that time declared it to be was not sufficient justification for false imprisonment, which was a tort of strict liability; that, accordingly, the applicant was entitled to damages for false imprisonment and that the sum of £5000 was the appropriate amount for 59 days false imprisonment."

The judgment is significant and has relevance to the present case where the second defendant might well feel aggrieved at the prospect of being held liable for the plaintiffs' false imprisonment, particularly after the plaintiffs' first two habeas corpus applications had been rejected by Lewis J.

In evidence, the second defendant told the court that all he did was to obey the warrant issued by the Speaker and he said that if he had defied the resolution of the House then he could have been impeached personally under clause 75 of the Constitution. Similar considerations arose in the Brockhill Prison case. Lord Slynn noted the governor's unenviable position and (at 27) said:

"if the claim is looked at from the Governor's point of view liability seems unreasonable; what more could he have done? ... Despite sympathy for the Governor's position it seems to me that the result is clear. She [the prisoner] never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. Although in form it is the Governor, it is in reality the State which must compensate her for her unlawful detention."

It is important to bear in mind that the "rulings of the court" referred to in that passage were "rulings" in other cases, not in the case involving Miss Evans. In her case the court order had not specified a release date and it had been left to the Governor to make that calculation. If the sentencing court had fixed the release date and in doing so had made a mistake then the position would have been different and no action for false imprisonment could have been maintained. That is because of the well-recognised general immunity afforded to judges in respect of acts done by them in their judicial capacity. The aggrieved person's only available remedy in that situation would have been an appeal, judicial review or an application for one or other of the prerogative writs.

The point is, however, that the Brockhill Prison case clearly reaffirms the principle that it is no defence or justification to a charge of false imprisonment that the party responsible for the detention acted at all times in good faith, genuinely believing that the detention was lawful. As Lord Browne-Wilkinson expressed it (at 27):

I believe the case can be satisfactorily decided on the grounds that false imprisonment is a tort of strict liability, the consequences of which cannot be escaped even by showing that the defendant acted in accordance with the view of the law which at the time was accepted by the courts as being correct."

After expressing similar sentiments, Lord Hope (at 35) commented:

"... for the Governor to escape liability for any extended period of detention on the basis that he was acting honestly or on reasonable grounds ... would reduce the protection currently provided by the tort of false imprisonment. I can see no justification for limiting the application of the tort in this way."

I find the reasoning of their lordships in the Brockhill Prison case compelling and relevant to many of the issues arising in the present case. I, therefore, reject the second defendant's defence based on the notion that, because he had acted in obedience and conformity with the Speaker's warrant, which on the face of it was valid, he was thereby protected from any wrongful imprisonment suit.

The second defendant placed considerable reliance upon the immunity he claimed to be entitled to under the provisions of section 4(2) of the Crown Proceedings Act (Cap 13). Section 4 follows a similar format to section 2 of the Crown Proceedings Act 1947 (UK) and section 6 of the New Zealand Crown Proceedings Act 1950. Equivalent provisions are also found in the Australian and Canadian legislation. Subsection (2) of the Tonga legislation reads:

"No proceedings shall lie against the Kingdom by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any responsibilities which he has in connection with the execution of judicial process."

The subsection is also relied upon by the first defendant in its defence. That is not surprising given that the language of the subsection is primarily directed at providing an immunity for the Kingdom against liability in respect of judicial functions. The plaintiff submits that the second defendant's reliance for a defence on section 4(2) of the Crown Proceedings Act is misconceived because the section is about the vicarious liability of the Crown in respect of torts and it does not afford the Minister a defence. Dr Harrison also submitted that it was not open to the second defendant to argue that he could not be sued in his personal capacity if he was acting as Minister of Police. I agree with both of those submissions. In relation to the claim against the Minister in his personal capacity, the House of Lords in M v Home Office [1993] UKHL 5; [1994] 1 AC 377 affirmed the principle that actions can be brought against a Minister personally in respect of a tort committed or authorised by him, even though, at all material times, he had been acting in his official capacity.

In relation to the vicarious liability submission, McGechan J. in the High Court of New Zealand decision, Fyfe v Attorney-General [2001] NZAR 498 (at 508) restated the position under section 6(5) of the New Zealand Act which is the equivalent to section 4(2) of the Tonga Crown Proceedings Act:

"Section 6(5) is intended to apply to vicarious liability: the liability of the "Crown" in respect of acts by another person. I do not see section 6(5) as intended to extend to protect an individual against his own personal liability for his own acts ... section 6(5) does not apply to protect a delinquent Crown servant himself or herself."

Although I fail to see how the second defendant can ostensibly rely by way of defence on the immunity afforded the Crown under section 4(2), 1 propose to still deal with the second defendant's submissions under this head because they are relevant to similar submissions advanced by the first defendant under this same provision in support of its defence.

The reliance on section 4(2) of the Crown Proceedings Act seems to be premised on the propositions summed up in the following passage from Mr Stanton's submissions:

"5.36 The second defendant was both acting judicially in sitting as a member of the Legislative Assembly and ultimately as Minister of Police was required to execute judicial process with respect to the warrant issued by the Speaker (sic).

5.37 In the premises it is submitted the Minister had immunity as a judicial officer and in respect of his conduct in the execution process as provided for in section 4(2) of the Crown Proceedings Act."

The issues as to whether the Legislative Assembly was discharging responsibilities of a "judicial nature" and the meaning of the phrase "execution of judicial process" are both matters which I will more appropriately consider in relation to the defences raised by the first defendant. The second defendant appears to go further, however, and submits that the Legislative Assembly is a court and, therefore, both it and the second defendant, as a member of the Legislative Assembly, were entitled to rely on the defences of judicial immunity.

No authorities were cited in support of this particular submission apart from reference to the judgment of Hampton C.J. in the third habeas corpus proceeding where His Honour opined that the fact that clause 11 of the Constitution, which deals with procedural aspects of trials on indictment before "any court", contains an exception for "impeachment", is recognition that the Legislative Assembly "is indeed a court".

The relevant part of clause 11 reads:

11. No one shall be tried or summoned to appear before any court or punished for failing to appear unless he have (sic) first received a written indictment (except in cases of impeachment) ..."

The clause then goes on to provide how witnesses shall be called, heard and questioned at a trial.

With great respect to the learned Chief Justice, I consider that his conclusion involves reading words and nuances into clause 11 which simply are not there. Clause 75 of the Constitution, which sets out the applicable procedure on impeachment, incorporates into the impeachment procedure the Supreme Court procedure for trial on indictment which is prescribed in clause 11. The first paragraph in clause 11 requires a written indictment to be issued before the person can be tried in a court. The exception in the paragraph to "cases of impeachment" is a simple reaffirmation, in my view, that it is not necessary to issue an indictment to a person facing trial in the Legislative Assembly for impeachment under clause 75 of the Constitution. The other procedural provisions in clause 11 relating, for example, to the way in which witnesses are required to give their evidence, are equally applicable to trial on indictment in the Supreme Court and trial on impeachment in the Legislative Assembly.

The three arms of government are established in clause 30 of the Constitution as:

"1st. The King Privy Council and Cabinet (Ministry);

2nd. The Legislative Assembly;

3rd. The Judiciary."

Clause 84 confirms: "The judicial power of the Kingdom shall be vested in the Court of Appeal, the Supreme Court, the Magistrates' Court and the Land Court." Those are the only courts of law recognised in the Constitution. These constitutional provisions are paramount. The jurisdictional divisions are clear. There is no room, in my opinion, for any blurring of the status or jurisdiction of the three bodies of government so clearly defined in the Kingdom's Constitution.

I cannot accept, therefore, the submission that the Legislative Assembly was a "court" and its members "judges" and, in so far as that appears to be the main thrust of the second defendant's reliance on section 4(2) of the Crown Proceedings Act, then the submission fails.

Mr Stanton also relies on the second limb of section 4(2) and submits that the second defendant is immune from suit because all his acts were carried out "in connection with the execution of judicial process". The corollary to that proposition is the somewhat rhetorical pleading in paragraph 30 of the second defendant's statement of defence that the Legislative Assembly was a court of law. For the reasons already mentioned, I cannot accept the submission that the Legislative Assembly was a court of law.

For completeness, I also reaffirm that I do not accept, however interpreted, that section 4(2) of the Crown Proceedings Act can provide a defence to the Minister in his personal capacity. The second defendant's defence, therefore, based upon that statutory provision must, in my view, fail.

The second defendant also sought to rely upon the immunity afforded police officers acting in obedience to a warrant issued under section 32 of the Police Act (Cap 35). Section 32 (1) provides:

"32.(1) Where the defence to any suit instituted against a police officer is that the act complained of was done in obedience to a warrant purporting to be issued by a Magistrate, the court shall, upon production of the warrant containing the signature of the Magistrate and upon proof that the Act complained of was done in obedience to such warrant, enter judgment in favour of such police officer."

(emphasis added)

The second defendant pleaded that, as Minister of Police he is vested with the control of the Tonga Police Force and in that capacity he was the lawful officer to whom the Speaker of the Assembly signed and addressed the warrant and the warrant was then acted upon in good faith. That scenario, so the pleading reads, is a "full answer to the claims of each of the plaintiffs".

I cannot accept that section 32 of the Police Act has any application to the facts of this case. Part IV of the Magistrates' Court Act (Cap 11) deals with the different types of warrants that can be issued by magistrates and the various forms of warrants are then prescribed in the schedules to the Act.

Provision is made for the warrants to be signed and sealed by the issuing magistrate and subsection (2) of section 32 of the Police Act also refers to the "signature of the magistrate" issuing the warrant. The so-called "warrant" in the present case was not a warrant "purporting to be issued by a magistrate". It was a warrant or order issued under the hand of the Speaker of the Legislative Assembly.

Furthermore, I do not accept that the Minister of Police can properly be described as a "police officer" in terms of the Police Act. Mr Stanton referred to various provisions in the Police Act and submitted that a fair reading of the statutory responsibilities and delegation powers confirmed the capacity of the Minister of Police "to act in his own capacity as a member of the Tonga Police Force of which he is its statutory head."

I cannot agree. The role of the Minister of Police is defined in section 23 of the Government Act and in section 3 of the Police Act. His powers are set out in section 8 of the Police Act. Parts III and IV of the Police Act deal with the appointments and powers of police officers. One only has to consider the "powers" provision in section 19(1) of the Act, which prohibits a police officer from, inter alia, engaging in any political organisation or electoral campaign, to see how unrealistic it is to attempt to argue that the Minister of Police is a police officer within the meaning of the definition. I, therefore, reject the defence based on section 32 of the Police Act.

For the reasons mentioned, I hold that the various defences pleaded by the second defendant do not amount to justification of the unlawful detention. The plaintiffs, therefore, succeed in their claims against the second defendant.

The first defendant's defences

I turn now to consider the position of the first defendant.

Apart from denying the plaintiffs' claim, the first defendant pleaded that it could not be liable for the acts of others unless it was so provided for under the Crown Proceedings Act. The Solicitor-General developed this argument in her submissions. She claimed that at all material times the Legislative Assembly was sitting as a court and exercising judicial functions and that the actions of the Speaker of the House and the Minister of Police resulting in the imprisonment were "judicial process". Thus, so the argument ran, the first defendant was immune both at common law and under section 4(2) of the Crown Proceedings Act.

I have already stated my reasons for concluding that the Legislative Assembly was not sitting as a court and so the defence based on common law immunity cannot succeed. In relation to the section 4(2) defence, counsel's submission was that, even if the Legislative Assembly was not a 11court", it was still carrying out "responsibilities of a judicial nature" and, therefore, the first defendant had immunity under the first limb of section 4(2) of the Crown Proceedings Act.

Dr Harrison submitted that, when it dealt with the plaintiffs in the contempt hearing, the Legislative Assembly was neither a court of law or a body discharging responsibilities of a judicial nature. He accepted that it was required to act in accordance with the principles of natural justice but, in his view, that was as far as it went.

There is support in much of the case law for the submissions advanced by the Solicitor-General, namely, that the Legislative Assembly was discharging "responsibilities of a judicial nature" within the meaning of section 4(2) when it was dealing with the plaintiffs.

In Royal Aquarium and Summer and Winter Garden Society Limited v Parkinson [1992] 1 QB 431, Lopes L.J. (at 452) said:

"The word "judicial" has two meanings -- it may refer to the discharge of duties exercisable by a judge or justices in court; or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind, i.e. a mind to determine what is fair and just in respect of the matters under consideration."

Everett v Griffith [1921] 1 AC 631 was concerned with a claim of alleged negligence in relation to the signing of a reception order for the detention of the appellant in an institution for lunatics. The case is noteworthy in that the appellant, Everett, who had been certified as a "lunatic", conducted his own case in person at a nine-day hearing in the House of Lords with a King's Counsel on the other side. He was described by one of their Lordships as a young man of "much acuteness and a good deal of knowledge and ability".

In his speech, Lord Atkinson, in reference to the respondent, Griffith, who was chairman of the Board of Guardians, noted that, although he was not a judge, he "was adjudicating on a vital right and interest of the appellant - his right to liberty." His Lordship went on (at 682) to say:

"Whether a proceeding is a judicial proceeding or merely an administrative proceeding depends much more on what is authorised to be done by the named authority: what is done, and the effect of the act upon the rights and interests of others. I know of no better definition of a judicial act than that given by May C.J. in the Irish case of Reg v Dublin Corporation (1878) 2 L.R.Ir 371, 376:

'The term 'judicial' does not necessarily mean acts of a judge or of a legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, imposing liability and affecting the rights of others.'

Citing further authorities, Lord Atkinson noted (at 686): "... that where a party has jurisdiction to do "a judicial" act no action will lie against him for doing it, unless malice is shown."

Applying Lord Atkinson's terminology, there can be no question, I would have thought, that, when acting under clause 70 of the Constitution, the Legislative Assembly was adjudicating on vital rights and interests of the plaintiffs , namely their liberty. To this extent, following the line of authority referred to, I consider that the Legislative Assembly was, in fact, discharging responsibilities of a judicial nature within the meaning of section 4(2) of the Crown Proceedings Act.

My conclusion in this regard means that the first defendant can rely upon the statutory immunity in the first limb of section 4(2) as a defence to the plaintiffs' claim that, in acting under clause 70 of the Constitution, the Legislative Assembly acted contrary to the principles of natural justice and the constitutional rights of the plaintiffs.

That is not the end of the matter, however. The fact that the first defendant is able to claim immunity under the first limb of section 4(2) in respect of the acts of the Legislative Assembly, does not automatically relieve the first defendant from liability in respect of the acts complained about of the second defendant.

As pleaded, the first defendant seeks immunity in respect of the acts of the second defendant on the basis that they amounted to responsibilities which he had "in connection with the execution of judicial process" in terms of the second limb of section 4(2) of the Crown Proceedings Act. It does not follow, however, that because the warrant which the second defendant acted upon, emanated from the Legislative Assembly, that the second defendant's actions come within the meaning of the phrase "execution of judicial process".

In Everett v Griffith, Lord Atkinson concluded that the making of the detention order by Griffith was an authorised judicial act and, provided he acted honestly in making it, he was protected by judicial immunity. By analogy, as I understand it, the defendants in the present case invite the court to conclude that the warrant issued by the Legislative Assembly was a judicial act and, therefore, the Crown cannot be liable for the unlawful detention which followed.

Although the argument has the appeal of logic, I am not convinced that it is correct. Everett v Griffith was decided long before the enactment of the Crown Proceedings Act. Section 4(2) of the Act makes a clear distinction between acts of a "judicial nature" on the one hand and acts which are encompassed in the phrase "execution of judicial process". The section does not attempt to combine the concepts by simply referring, for example, to "responsibilities of a judicial nature" and any actions following therefrom, but it uses the disjunctive terminology, "responsibilities of a judicial nature" and "execution of judicial process".

The distinction between the wording of the two limbs of section 4(2) is significant. However wide the phrase "acts of a judicial nature" may have been interpreted at the time Everett v Griffith was decided, it is clear that under the wording of section 4(2) it does not now extend to include the processing aspect of a case. Instead, those actions are covered by the second limb of section 4(2) and are encompassed in the phrase, "execution of judicial process".

Todd "Law of Tort in New Zealand" 3rd ed. (2001) states (at 187):

"'Process' is the doing of any step in a civil or criminal proceeding pursuant to an order of the court."

In Seatrans (Fiji) Ltd v Attorney-General [1986] NZHC 42; [1986] 2 NZLR 240 the question arose whether the Crown had immunity under the equivalent of section 4(2) in respect of the negligent failure of the registrar of the High Court to deposit money that had been paid into court in an interest bearing account, as had been ordered by the judge. In response to the allegation that the Crown was protected because the registrar's failure was the "execution of a judicial process", Hillyer J. (at 244) said:

"Again, I do not accept that. It seems to me that there is no judicial element involved, nor was the payment into an interest bearing account an execution. Those terms are appropriate to sitting in judgment, or to such matters as the enforcement against another person of an order made by the court. Here, the only person involved was the registrar himself ..."

In Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, which was a Court of Appeal decision dealing with section 6(5) of the New Zealand Crown Proceedings Act (the equivalent of section 4(2)), Hardie Boys J (at 696) said:

"I have concluded that in the context of section 6(5) 'process' means an order or authority emanating from a judicial officer exercising judicial responsibilities."

Both the Seatrans and Baigent decisions were cited with approval in the recent unreported judgment of the Privy Council in Kirvelk Management and Consulting Services Ltd v The Attorney General of Trinidad and Tobago (Privy Council Appeal, 52 of 2001), judgment dated 25 July 2002. Like Seatrans, the Kirvelk case dealt with a payment into court situation. There the court was concerned with a section in the Trinidad and Tobago States Liability and Proceedings Act in the same terms as section 4 of the Tonga Crown Proceedings Act. The Privy Council held that actions by the assistant registrar in relation to the payment into court were not "responsibilities connected with the execution of judicial process".

In reference to the meaning of "execution" in this context, their Lordships adopted the definition in Halsbury (4th ed.) Vol 17 at para 40, where "execution" is described as "signifying in its widest sense ... the enforcement of or giving effect to the judgments or orders of courts of justice" and the statement by Lord Denning in In re Overseas Aviation Engineering (GB) Ltd [1963] Ch 24 (at 39):

"Execution means, quite simply, the process of enforcing or giving effect to the judgment of the court ..."

Love v Attorney-General (NSW) [1990] HCA 4; [1990] 169 CLR 307 provides a further illustration of the principle involved. The issue before the High Court of Australia was whether the actions of judges of the Supreme Court of NSW, in issuing warrants authorising the use of listening devices, were judicial or administrative in nature.

The court accepted that a judge considering an application for a warrant, "was bound to act judicially, that is in a just and fair manner, with judicial detachment" but it held that that circumstance was not conclusive and the act of issuing such a warrant was an administrative and not a judicial act.

The reasoning of the High Court in that case seems relevant to the situation in the present case. The fact that the court was able to draw a distinction between the acts of a judge in considering an application for a warrant (a judicial act) and the actual issuing of the warrant (an administrative act) makes it a much simpler process, by analogy, to conclude that the acts of the Legislative Assembly in considering the contempt charge under clause 70 of the Constitution, were judicial in nature but the subsequent issuing of the warrant and imprisonment of the plaintiff were administrative acts. They certainly were not, in my view, the execution of "judicial process" within the meaning of section 4(2) of the Crown Proceedings Act. Section 4(2) provides immunity against the execution of judicial process and not against administrative functions.

Paraphrasing what Lord Hope said in the Brockhill Prison case (at 35), the position would have been different if the first defendant had been able to show that the second defendant had been acting throughout "within the four corners of an order which had been made by the court" for the plaintiffs' detention. Lord Hope went on to say:

"The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful."

For the foregoing reasons, I reject the first defendant's defence based on the claimed immunity under the second limb of section 4(2) of the Crown Proceedings Act in respect of the actions of the second defendant. The plaintiffs, therefore, succeed in their claims against both defendants.

The claim for exemplary damages

I turn now to the question of damages beginning with the claim for exemplary damages. Initially, each plaintiff claimed $600,000 general and aggravated damages and $150,000 exemplary damages. During the course of the trial leave was sought and granted to reduce the damages figures claimed by each plaintiff to $200,000 and $75,000 respectively.

An unusual feature of the case was that the second plaintiff, 'Eakalafi Moala did not give evidence. The court was told that he resides in Auckland and that he is banned by the second defendant, as Minister of Police, from entering the Kingdom. Mr Stanton took strong exception to this statement when it was made and the Solicitor-General subsequently produced a letter from immigration officials confirming that Mr Moala had not, in fact, been banned from entering the Kingdom. He does, however, apparently require an entry visa. Dr Harrison referred to an affidavit on the court file from Moala which records previous difficulties he has allegedly encountered upon his trips to Tonga. When he was imprisoned, for example, in September/October 1996, he was charged with breaches of the immigration laws. He said in his affidavit that the main charge against him was that he had made a false declaration on entry into the Kingdom because he had described himself as a "Tongan" when he was a United States citizen. He also speaks about other incidents, including being served with two defamation writs when he returned to Tonga to attend his father's funeral and having received death threats over the telephone in recent times which coincided with the publication in his newspaper of items which reflected on the Royal family.

Mr Stanton submitted that, as there was nothing to prevent Mr Moala from coming to Tonga and giving evidence, his claim must, for the want of "viva voce" evidence, fail. Dr Harrison submitted that there is no rule of law that a plaintiff must give evidence in person. He accepted that if Moala does not appear, he runs a risk of not being able to answer evidence against his case and he also acknowledges that his claim would still need to be proved on the balance of probabilities but, that apart, as counsel put it, there was no rule of law that a plaintiff's case must be ruled out on a jurisdictional basis if he does not appear.

No authority on the point was cited by either counsel. The situation is unusual and is not to be encouraged in any way. Mr Moala has not been cross-examined on the contents of his affidavit but he does exhibit various relevant correspondence and, although he has not been banned, I am prepared to accept that, rightly or wrongly, he is genuinely apprehensive about returning to Tonga. I accept the thrust of Dr Harrison's submission and I propose to treat the second plaintiff's claim accordingly.

The plaintiffs pleaded that the actions of the second defendant, were "high-handed, outrageous, and in violation of their constitutional rights" and, as such, "deserving of punishment by means of an award of exemplary damages." They each seek an award under this head alone of $75,000.

The evidence relating to exemplary damages centered, in the main, around the evidence given by a former Superintendent of Prisons, Mr Semisi Tapueluelu. He was Prison Superintendent during the period that this case is concerned with although he no longer holds that position. The thrust of his evidence was that the Minister had directed him to keep the three prisoners in the maximum security wing of the prison during their confinement. He also gave evidence which, if accepted, could be seen as a pre-determination of guilt of the plaintiffs although, in closing submissions, Dr Harrison disclaimed any suggestion of pre-determination but submitted that the incident went to credibility and showed the existence of "contingency planning".

A considerable amount of the evidence was concentrated on this aspect of the case. I do not propose to review it all in detail but the issue is important and I must deal with it.

The evidence was that it was not until the late evening of Thursday 19 September 1996 that the Legislative Assembly voted and found the plaintiffs guilty of contempt of the House. It was after midnight when they were informed of the decision and sentenced.

Mr Tapueluelu's evidence was that at approximately 7pm on 19 September, during the "twilight hours", he received a message from his driver 'Uluenga, which he said had come over the car C.B. radio from the Minister that three political prisoners were being sentenced by Parliament and the Minister wanted to see him the following day. Mr Tapueluelu said that he made a note in his personal diary of the message but he did not record it in any official diary or document. If true, this message would mean that the Minister had pre-determined that the plaintiffs would be found guilty of contempt.

The Superintendent went on to say that on the following day, which was Friday 20 September, he drove from Hu'atolitoli prison to the Minister's office at the Police Training School at Longolongo and had a meeting with the Minister at about 1645 hours which took approximately 20 minutes. He told the court that during the meeting the Minister told him that the three political prisoners would be sent to Hu'atolitoli and he wanted them kept in the maximum security block.

The witness was asked about his reaction to the proposal. He told the court that his response was to tell the Minister that what he was proposing was unwise and in his view the prisoners should be kept in police station cells. He said that the Minister then agreed and instructed him to go and inspect the police stations. He said that he then drove out to Vaini and inspected the Vaini Police Station, which is situated close to Hu'atolitoli prison.

Mr Tapueluelu was cross-examined intensely by Mr Stanton on every aspect of his evidence and, in particular, in relation to the alleged radio message on the Thursday evening and his meeting with the Minister the following day. Both events were strongly denied by the Minister in evidence.

At the end of the day it is a question of credibility and, after giving very careful consideration to all aspects of Mr Tapueluelu's evidence and observing closely his demeanour, I simply was not persuaded that either event took place. There was no record, for example, in the Guardhouse diary at the Police Training Compound of the Superintendent's motor vehicle having arrived for the so-called meeting. The diary was produced and the evidence was that the officer on duty in the Guardhouse has to record the registration number of every vehicle that enters the Compound. When that was put to Mr Tapueluelu in cross-examination he opined that he may have entered the compound the back way through the Fire Station but I did not find that explanation convincing.

Also significant, in my view, was the fact that there was no entry in the "Minister's diary" for such a meeting. I refer to the exhibit as the "Minister's diary" but, in fact, it was a diary kept by his staff officer at the time, now Superintendent Lolo Koloamatangi. Her duties included general office work and arranging appointments for the Minister. I found her to be a patently truthful witness. Her office was right next to the Minister's. She had no knowledge of any meeting between the Minister and the Prison Superintendent on 20 September and, although she had been in her office at the time of the alleged meeting, she had no recollection of seeing the Superintendent that day.

Even the time of the alleged meeting gave rise to a credibility issue. The witness conceded that no time for the meeting had been mentioned in the car radio message but he was unable to explain satisfactorily why he had turned up for the meeting at the time he did. The evidence was that the Minister was extremely busy on that particular day and it is quite inconceivable, in my view, that he would have arranged a meeting with the Superintendent and not noted the time for the meeting in his diary.

In so far as the alleged radio message on the Thursday evening is concerned, I did not find the former Superintendent's evidence convincing and my doubts in this regard were confirmed in a rather unexpected manner. Mr Tapueluelu completed his evidence on 31 May 2002, apart from some questions, which the court wished to put to him. As it was late in the day and the time allocated for the hearing had expired, it was necessary to adjourn the hearing until 29 July, which was the first available date that suited both the court and counsel. Mr Tapueluelu was recalled and in a question which Mr Stanton asked, arising out of the questions from the Bench, the witness recanted on the firm evidence he had earlier given that the radio message had been received by his driver 'Uluenga and said that it could have been another driver who he proceeded to name. Neither driver was called to support the Superintendent's allegations.

Another claim Mr Tapueluelu made was that the Minister had telephoned him early on the morning of Monday 23 September 1996 and reaffirmed his direction that he wanted the three prisoners sent to maximum security. Again, that conversation was strongly denied by the Minister and I find the allegation totally inconsistent with a letter, in the form of a "Savingram", which the Minister sent to the Superintendent that very same day in which he confirmed the decision of the Legislative Assembly to sentence the men to 30 days imprisonment. The only direction the Minister gave in that letter about how the plaintiffs should be treated is expressed in the following terms:

"The manner in which they should be cared for in custody would be according to the law applicable to everyone kept by the Department. The only difference is that in this case these people are not to do hard labour but light work only during their custody."

I find that direction consistent with the Minister's recorded instructions to Inspector Tu'ihalamaku, the Police Inspector who had originally taken the men into custody, namely, that "no misconduct was to be forwarded to them and they were to be looked after properly".

Against the background, I have reservations about a good deal of Mr Tapueluelu's evidence and I certainly would not be prepared to rely upon it to substantiate a claim for exemplary damages against the Minister. In a similar vein, none of the other evidence sought to be relied upon by the plaintiffs in support of the exemplary damages claim was, in my view, sufficient. In this regard, in particular, reference was made to certain diary entries on Tuesday 17 September but I accept the Minister's explanation in evidence in relation to these entries.

I, therefore, find no evidence of any "high-handed or outrageous" conduct on the part of the second defendant warranting an award of exemplary damages.

General and aggravated damages

Turning to the claim for general and aggravated damages, the relevant principles seem now to be well established. They were rather comprehensively analysed in two recent cases. First, by the English Court of Appeal in Thompson v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1998] QB 498, and more recently, by both the Court of Appeal, (Lord Woolf MR) and the House of Lords in the Brockhill Prison case (supra). The House of Lords upheld the approach outlined by Lord Woolf, which Lord Hope (at 40) described as a guideline "in an area where guidance was almost entirely lacking".

Lord Woolf (at 116) had noted:

"... there can be two elements to an award of damages for false imprisonment; the first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from loss of liberty."

In the Thompson case, Lord Woolf expressed the view that in calculating the proper compensation for loss of liberty the analogy with personal injury cases was closer than cases of defamation and the compensation was for something which is akin to pain and suffering'. In relation to aggravated damages his Lordship noted that a penal element can properly be involved, however, as he put it, "aggravated damages ... are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated."

I accept, as a starting point, these basic principles. I have also considered the suggested guidelines referred to by Lord Woolf in both the Thompson and Brockhill Prison cases but, in my view, their relevance to the situation pertaining in the Kingdom needs to be viewed with a good deal of caution, particularly when it comes to the sums involved.

I have no doubt that the experience endured by the plaintiffs in the present case was traumatic in every sense of the word. They were professional people carrying on their respective occupations and public duties then suddenly, literally overnight, for no lawful reason, they were earmarked as common criminals and incarcerated in the maximum security wing at Hu'atolitoli Prison. I listened carefully as the plaintiffs' evidence unfolded and Messrs Pohiva and 'Akau'ola recounted and relived again the events of 19 September 1996 and the aftermath. Even though almost 6 years had passed since those events took place and the witnesses were able to speak about their ordeal with some detachment, that did not detract in any way from the deep sense of injustice which was still apparent in their demeanour as they slowly and deliberately described their horrendous experience.

I will not recount all the evidence. I do not consider that the plaintiffs overstated their case. They were subjected to a grave injustice. In addition to their confinement with sparse resources and no comforts whatsoever, special restrictions were placed on other aspects of their detention. With some very minor exceptions, they were denied access, for example, to writing materials and visitors. For these reasons, I am satisfied that a proper basis has been established for a penal element in the award of aggravated damages.

Although I am satisfied in every respect that the plaintiffs have established a proper entitlement to compensation, I am troubled over the amounts claimed in this regard. My primary concern is that, even at the amended figure of $200,000 in respect of each plaintiff, the claim bears no relation to the ordinary values of life and money in the Kingdom today.

In Manu & Kingdom of Tonga v Muller [1997] Tonga LR 192, the Court of Appeal considered a case involving an award of damages against the Police for false imprisonment and assault resulting in personal injury. In rejecting the Crown's appeal, the court noted that, the $10,000 award for general damages was a modest amount particularly having regard to the nature of the permanent partial disability the complainant had suffered as a result of the assault. The court, nevertheless, stated (at 194):

"It is important that the Supreme Court, in assessing damages, takes into account levels of ordinary income in Tonga and the value of money and general conditions in the Kingdom."

I agree entirely with that observation. Other cases have come before this court in recent times involving overseas counsel or parties where the amounts claimed by way of relief are inappropriate and unrealistic having regard to the value of money and the general circumstances pertaining in the Kingdom. Perhaps it is all too easy for litigants to be misled by the current exchange rate, which virtually equates the pa'anga with the New Zealand dollar. A more realistic approach, in my view, is the suggestion made by the Court of Appeal to take into account the levels of ordinary income in the Kingdom.

Although no evidence was led on this aspect of the case, the court is able to take judicial notice of the appointments, promotions and the like, of persons holding public office which are all dutifully recorded and published on a regular basis in the Tonga Government Gazette. Likewise, the court is able to have regard, under section 37(l) of the Evidence Act, to the Civil Service List which records the various salary scales in respect of appointments notified in the Gazette. The relevant records show that the highest-paid public official is the Prime Minister, whose basic salary is shown at $32,918. Ministers of the Crown have a basic salary of $28,760 and then the levels decrease down to the lowest scales in the public service which lie somewhere between $2,500 and $3,500 per annum.

In my view, these figures are a reasonably accurate barometer of the real value of money in the Kingdom.

My final observation before fixing the award, relates to the position of the second plaintiff. I accept Dr Harrison's submission that his detention, where it occurred and how it came about have all been amply proved in evidence. The court has not, however, had the opportunity to hear him give evidence, for example, about any special humiliation and injury to feelings he may have endured in relation to the involvement of his immediate family at the time the events took place. Mr Pohiva and Mr 'Akau'ola each gave a graphic account of how the news of the imprisonment was broken to their families and the reactions that followed. That evidence was subjected to cross examination. The court knows nothing about these matters in relation to Mr Moala and it cannot speculate. The result will be reflected in my award.

I should add an additional word about the first plaintiff, Mr Pohiva. He suffered from an asthmatic condition. The second defendant, quite properly, did not dispute that the condition had been exacerbated by the onset of the arrest and detention. I accept that the Minister was concerned over Mr Pohiva's condition and he visited him on the initial evening of his detention and called in a medical doctor. Mr Pohiva was then hospitalised and he was not transferred to Hu'atolitoli Prison until 9 October 1996.

I do not intend to make any distinction in my award, however, on account of the first plaintiff's hospital isation. It is clear from the evidence that he was under a 24-hour police guard and deprived of the same liberties as his colleagues at Hu'atolitoli.

Relief

Against the background, I now set out my decision in relation to the general and aggravated damages claims. No question of special damages arises. My figures for general and aggravated damages are global. Although the statement of claim alleges that the plaintiffs were imprisoned for 26 days, the Speaker's warrant shows that the term of imprisonment was deemed to commence at 5 p.m. on 19 September 1996 and Hampton CJ records in his judgment dated 14 October 1996 that he had just sat "all day" in relation to the habeas corpus applications and he then ordered the prisoners to be released "forthwith" from detention. It would appear, therefore, that the total detention period was, in fact, 25 days.

I make the following awards on account of general and aggravated damages against the first and second defendants jointly and severally:

First plaintiff: $20,000;

Second plaintiff: $17,000;

Third plaintiff: $20,000.

The plaintiffs are entitled to costs against the defendants to be agreed or taxed.