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Hurrell v Naufahu [2008] TOLawRp 56; [2008] Tonga LR 282 (8 December 2008)

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

CV 775/2004

Hurrell

v

Naufahu anors

Shuster J
25, 26, and 28 September 2008; 8 December 2008

Civil – damages sought – police assault and unlawful imprisonment claim – claim dismissed

Note: this judgment was successfully appealed to the Court of Appeal see [2009] Tonga LR.

The plaintiff claimed damages for alleged assault and unlawful imprisonment while he was detained in police custody in July 2004. He had been arrested for the alleged theft of a motor vehicle and claimed that, apart from visits to the bathroom, he remained handcuffed from the time of his arrest on 6 July 2004 until his release from custody on 10 July 2004. The defendants contended that the handcuffs were removed upon the plaintiff's arrival at the police station and they denied the other allegations made by the plaintiff.

Held:

1. The court accepted the evidence of the first defendant in its entirety including his evidence that the plaintiff was released from custody the same day that he arrived.

2. The handcuff marks on the plaintiff's arms were higher up and on a thicker part of the arm than is usual and it could not be ruled out that they had been made later by the plaintiff himself to bolster his monetary claim.

3. There was no credible evidence that the plaintiff suffered any injury at the hands of the police and his claim for damages was dismissed.

Statutes considered:

Appropriation Act 1988

Crown Proceedings Act (Cap 13)

Police Act 1968

Counsel for the plaintiff : Mr Fifita
Counsel for the defendants : Mr Little

Judgment

This suit is a claim for damages- concerning an allegation of assault and unlawful imprisonment whilst the plaintiff Suluteni Hurrell was detained in police custody in July 2004 at:-

• (1) The central police station, Nuku'alofa then at-

(2) The police station Mua, Tongatapu.

• The first and second defendants were at all material times police officers at the central police station; Nukualofa, Tongatapu.

• The second defendant currently resides overseas and could not be located for the date of this trial.

• The third and the fourth defendants are the Ministry of Police and the Kingdom of Tonga.

Brief Facts

On 6th July 2004 the plaintiff was arrested and taken to the central police station Nuku'alofa, as a suspect in an alleged criminal offence. The police say the plaintiff was arrested for the theft of a motor vehicle which the police say the plaintiff was driving, immediately prior to his arrest.

The plaintiff claims when he was arrested by the police he was placed in handcuffs; he also claims he remained handcuffed throughout his detention until his re1ease from custody on Saturday 10th July 2004. The plaintiff by his suit and his statement of claim claims he was unlawfully imprisoned and assaulted whilst in custody. The plaintiff's statement of claim asserts the plaintiff was detained from-

• 15.00 hrs on 28 January 2003 then

• From Tuesday 06 July 2004 to Saturday 10 July 2004 -when the plaintiff claims he was released

However:

• Police, records and evidence given in court provide a differing time frame- and paints a different story.

Analysis

The plaintiff claims he was unlawfully arrested on 6 July 2004- and locked in a cell overnight at the central police, station, even after the owner of the alleged stolen vehicle told the police he did not wish to press charges against the plaintiff for stealing his motor vehicle.

The plaintiff alleges on 7th July 2004 he was transported from the central police station and further detained at the police station at Mua where he was questioned by the police concerning- the alleged criminal activities of his uncle in the Eastern District.

So in essence- the plaintiff claims he was unnecessarily and unlawfully held in custody until 10th July 2004. He argues he should have appeared (in person) before a Magistrate who should have bailed him. The Plaintiff claims he remained handcuffed from his arrest until his release from custody which he says was on Saturday 10th July 2004. Whilst detained at Mua- the plaintiff claims the handcuffs were deliberately tightened on his wrists by the second defendant.

The plaintiff claims his blood circulation was affected as a result of over tightening of the handcuffs and as a result he suffered injuries which he says are clearly visible to this day.

The plaintiff says the handcuffs were only released when he asked to use the bathroom; and even then they were only unlocked / released from one of his wrists in order to allow him to use the facilities. The plaintiff also claims he was stood on by an officer whilst he was handcuffed.

As a result of the ill treatment he received at the hands of the police, the plaintiff claims he suffered injuries; and as a result he sought medical treatment on his release from custody on the 10th July 2004. In his statement of claim dated 5th November 2004 the plaintiff claims damages for:

[1] Unlawful Imprisonment $3,000

[2] For Assault $4,000

[3] For Injured feelings $500

[4] Aggravated Damages $1,000

[5] Exemplary Damages $5,000

[6] Costs

Such further or other relief as the Court may deem fit. On 24th January 2005 the defendants filed their statement of defence- albeit out of time but with the leave of the Court

Liability

In Tonga- police officers are enlisted into the police force. They are appointed by the Minister of Police- with the approval of the Cabinet- sections 8(1) and 11 of the Police Act of 1968, so police officers are essentially appointed by the Crown and are in fact- servants of the Crown.

Police officers are also paid from public funds by money approved by Parliament (section 5 of the Police Act 1968, and the Schedule of the 1988-89 The Appropriation Act 1988- vote number 9.

Thus Tonga's enlisted police officers fall squarely within the criteria for vicarious liability by the Crown- enunciated in

• Clerk and Lindsell paragraph 2-04 on page 144.

In Tonga the relevant legislation is the Crown Proceedings Act, where section 4 states that:-

'-....the Kingdom of Tonga shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity, it would be subject-

(a) In respect of torts committed by its servants of agents..."

It is clear that all police officers are servants of the Kingdom. I find as a fact the 3rd and 4th defendant's might be held vicariously liable for the torts of any police officer enlisted in the Kingdom who is engaged on public duty, and not on a frolic of his / her own.

The Evidence

Evidence adduced in court under oath, reveals the first and second defendants were uniformed police officers in the Tonga Police Force and they were on duty, out on patrol on the night of the 6th July 2004 in a marked police vehicle.

At a point in time they received a radio message from the control room- circulating details of a stolen motor vehicle:

As the control room message was being recorded by the officers a vehicle matching the description — and bearing the same registration number which was being circulated as stolen- drove past the stationary police officers.

The officers- acting in accordance with their duty to prevent crime, to detect and prosecute offenders — took up the chase. The suspect vehicle was stopped and a police investigation commenced. PC Sili testified the suspect driving the stolen car- who he positively identified as the plaintiff, tried to escape or to evade arrest- by running away; however the officer said the plaintiff was caught, and he was detained at the scene.

When questioned about his identity at the scene PC Makafalani testified the plaintiff produced as personal identification a Master Card which the officer stated bore a Palangi's name. The officer was not happy with the name given by the plaintiff as identification- or as regards the plaintiff's true identity consequently the plaintiff (the suspect) was arrested on suspicion of theft of a vehicle and taken to central police station- under arrest.

Another officer told the court the plaintiff was not handcuffed at the time of his arrest-he also testified it was a lawful arrest- and he testified the plaintiff was not handcuffed during his detention at the CPS.

Medical Evidence
A medical doctor examined the plaintiff' wrists at the hospital on 10th July 2004- this medical report is important evidence, because it was properly admitted into evidence and agreed by consent of the parties. The report is a true record of the doctor's hospital notes pertaining to the plaintiff in this case.

The doctor's report is crucial; it's important because his report is a contemporaneous note and is a true record of the doctor's findings of his examination of the plaintiff concerning facts in issue in this case —well over four years ago. In my view the doctor is an impartial witness in this case- because he can have no axe to grind. His evidence is in my view the best evidence of the state of injury (if any) to the plaintiff's wrists on 10th July 2004; and because the doctor's report is dated the 10th July 2004 and is timed at 6.l5pm about the time when the plaintiff claims he was released from police custody.

It is unfortunate that we have seen no photographic evidence of the alleged injuries to the plaintiff's wrists taken on (or around) 10th July 2004 had photographs been taken of the alleged injuries (and by any party) then they would have been able to greatly assist the court in its ultimate determination of the facts.

MEDICAL REPORT

Date 10/7/4 Timefirst seen 6.1 5pm

Type of cases:-

Alleged Handcuffs being left on hands for 2/7

Examination andfindings

Circumferential blistering- around L wrist

Semi- circumferential blistering around wrist (x2) over anterior aspect

Opinion-

Finding- consistent with history

The medical report- admitted by consent is very brief- it's clinical and is clearly to the point. It evidences

minor injuries- which the doctor details as "blistering."

There is no evidence contained in the doctor's report of any further treatment prescribed for the plaintiff. There is no evidence of the doctor prescribing painkillers or; of the doctor referring the plaintiff to his own doctor for treatment or; to the doctor suggesting the plaintiff should attend later for outpatient treatment at the hospital. There is also no evidence to show that any wounds were treated or dressed.

Accordingly on the evidence I have to conclude the medical report shows clearly these were superficial injuries, and as such I find as a fact they were minor injuries which did not concern the doctor. I come to this conclusion because the evidence reveals the doctor did not prescribe (1) further treatment or (2) indicate he prescribed painkillers to the plaintiff.

Further there is no indication contained in the report the plaintiff told the doctor that he had been stood on whilst he was handcuffed, and, there is no indication in the medical report that the doctor looked at anything other than the plaintiff's wrists.

It is also clear to me- the figures 2/7 are a reference to handcuffs being on the wrists for two-out of seven days and that fact could only be ascertained from the plaintiff himself. There is no evidence contained in the doctor's medical report of cuts to the bone, weeping, wounds or serious injury; as said in evidence and on oath by witnesses for the plaintiff.

Testimentary Evidence

Police Officer Inspector Soane Naufahu denied any of the allegations made by the plaintiff in this case; in my view the officer came over as a credible witness. He explained the non attendance in court of the second defendant PC Sione Inu who has re-located to New Zealand. The officer told me the former officer cannot and has not been located. I accept the Crown has tried their best to trace the second defendant, but they have failed to locate him.

Inspector Naufahu testified he ordered PC Inu to take the plaintiff to a room near the entrance and to take the handcuffs off on their arrival at the police station, when the plaintiff had been transported from CPS. The officer told the court the plaintiff was never ill treated or hurt within his sight or his hearing- and he testified the plaintiff made no complaint of any ill treatment to him.

Inspector Naufahu also testified that the plaintiff was released from custody on the same day the plaintiff was brought to Mua that was the 7th July 2004. Cell records also confirm that testimony and assertion which is at variance to the plaintiffs version.

Accordingly based upon what I heard in court, evidence under oath, I accept the officer's evidence as truthful. I accept his evidence in its entirety including his evidence that the plaintiff was released from Mua the same day he arrived, and which I find as a fact was on the 7th July 2004.

The Plaintiff's Evidence

The most interesting evidence given in this case is perhaps the evidence of the plaintiff- himself. The plaintiff came over as follows: - I found the plaintiff was evasive, he often delayed answering or, he did not directly answer questions which were properly put to him. He admitted in cross examination that he had lied, to the court and he had exaggerated things, effectively as he said to get more money. That admission by itself is extremely damming for the plaintiff- as it goes to his credibility.

There are other examples which also go against the plaintiff-for example, the doctor recorded in his official record that the p1aintiff told him he was in handcuffs for 2/7 days- whereas the plaintiff said on oath- and in my court- in his examination in chief- and further certified in his statement of claim that he had been in handcuffs throughout the period from 6th -10th July 2004.

Other sworn evidence also contradicts the plaintiff's claim of the time frame when the plaintiff claims he was in custody in handcuffs. I completely discount the evidence of the Plaintiff's witness Mea Toa who testified that there was exposed flesh with brown liquid running from the plaintiff's wrists. In my view, the witness also attempted to bolster the plaintiff's case. Interestingly the plaintiff himself made no mention in his testimony of any liquid coming from his wrists.

The court has a duty to find evidence to prove which version is correct and it's clearly very hard to accept evidence from someone who admits he is clearly out to inflate a monetary claim against the government- is that itself not an attempt fraud? Did he perjure himself?

Closing Speeches

In his written closing submission the defendant's counsel- says the plaintiff finally conceded in cross examination that he had told lies to the court in order to get more money from the Government — and he finally admitted he said he had been handcuffed for two days and not five days. They say the court must ask itself the question- if the plaintiff lied to the court in order to exaggerate his claim then can his injuries be believed at all. In other words is he a credible witness?

I accept the plaintiff did have some marks on both his wrists these were marks which were visible at the date of trial, and they were marks which appeared to be marks made perhaps by handcuffs, but, can it be said these marks was caused by these two officers in July 2004 when he was in custody, or were they perhaps made later by the plaintiff himself to bolster his monetary claim as he admitted in cross examination?

The current marks on his wrists are some distance up his arms from his wrists, and at the thicker point on the arm. In my experience as a former police officer and chief police officer with over ten years practical police experience, handcuffs have a natural tendency to rest on the thinnest part of an arm, which is usually just around the wrist.

The marks I saw on the plaintiff's arms were higher up and on a much thicker part of the arm, as if someone had pulled the handcuffs back up; and into the thicker part of the arm and settled the handcuffs into the flesh- perhaps for cause or effect. I then go back, to look at the medical evidence before me in this trial- EVIDENCE WHICH WAS- admitted by consent. The doctor's report only indicated blistering on the plaintiff's wrists seen on the 10th July which is three days after the plaintiff's release from custody on the defendant's version of events.

The marks I saw in open court on the plaintiffs arms at the date of trial four + years (and three months) later were quite marked. However- there was no expert evidence adduced by the plaintiff at trial- to indicate the marks we saw on his wrists in open court were made by POLICE handcuffs in July 2004 and made by these defendants.

As I stated before, there is also no photographic evidence showing the condition of the plaintiff's wrists adduced from the 10th July 2004. Neither was there any further medical evidence produced showing follow up treatment- or any prescriptions or evidence of the use of ointments.

In essence I have been just left to guess what really happened in this case; and as a result it now boils down to the question of who is the reliable and or truthful witness. Who told the truth and who lied?

Findings of Fact

• I heard no evidence that the plaintiff was ever in police custody and handcuffed in 2003 as asserted in the statement of claim.

• I find as a fact the plaintiff was lawfully arrested by officers on the 6th July 2004 and at the time of his arrest he was in possession of a vehicle which had recently been reported stolen.

• I find as a fact the plaintiff produced a document in an attempt to provide a false identity, the item produced was a MasterCard in the name of a palangi- one Peter Simpson

• I find as a fact the plaintiff was transported by police to the central police station under arrest

• I find as a fact the plaintiff was lawfully arrested to enable the police to carry out an investigation into the alleged theft of a motor vehicle

• I find as a fact his arrest was in accordance with normal police practice- and the law.

• I find as a fact because the plaintiff had been lawfully arrested by police officers, it follows he attended the central police station involuntarily- and as such the plaintiff was not free to leave the police station until his formal release by the officer in charge of CPS- or by a court order.

• I find as a fact the plaintiff was informed of his legal rights by the officer in charge of central police station.

• Upon hearing the evidence- I find as a fact the plaintiff was not handcuffed when he was transported to CPS or while he was at CPS- this finding is based upon the officer's testimony which I believe is credible.

• I find as a fact the plaintiff spent his first night lawfully under arrest at CPS while the police investigated a crime.

• I find as a fact that at a point in time on the 6th July 2004 the complainant Siaosi Mafi communicated with officers at central police station and told officers he did not wish to press charges against the plaintiff.

• However it would still be fair to say, that it is up to the police to decide on the laying of criminal charges- and as such they were still entitled to continue to detain the plaintiff pending the result of their full criminal investigation.

• In essence I find there was no credible evidence adduced to show the plaintiff was handcuffed at CPS or that he suffered injuries whilst detained at CPS.

• I find as a fact the following day the 7th July the plaintiff was transferred to Mua police station.

• I find as a fact the plaintiff was placed in handcuffs when he was transported from CPS to Mua police station by vehicle, because the officer said so in evidence.

• I find as a fact that the evidence shows that the handcuffs were removed from the plaintiff when he arrived at Mua police station.

• I find as a fact upon hearing all the evidence and studying the police station logs that the plaintiff was released from custody at Mua on the 7th July 2004.

• I find as a fact that the plaintiff was not in custody on all the dates alleged in his statement of claim i.e. from the 6th-l0th July 2004.

• In essence I find that there was no credible evidence adduced to show the plaintiff was handcuffed during the time he was lawfully detained at CPS and at Mua.

• Upon hearing all the evidence and considering the credibility of the witnesses I can find no credible evidence that the plaintiff suffered any injuries at the hands of the police from the 6th or 7th July 2004 when I find he was released from custody.

Accordingly I find for the Defendants in this case. It is very clear to me that the plaintiff in this case deliberately told lies to this court in an effort to bolster his monetary claim, and that he was not a credible witness.

To protect all parties against future spurious claims such as this claim, I strongly suggest the Police Authorities as a matter of urgency put in place Rules and

Procedures for the Detention and Treatment of suspects in criminal cases and police investigations.

They might care to consider establishing computerized custody records as used in the United Kingdom and elsewhere. Computerized records are easy to establish. They might also consider voluntarily adopting the Judges Rules which have been adopted in most Common Law Jurisdictions; in order to protect all parties from allegations such as this. I have included the Rules adopted in Fiji for the police authority's consideration as an addendum.

ADDENDUM

Police Rules and or Police Policy

In most common law jurisdictions there are laws governing the arrest- treatment- and the detention of suspects. There are rules in place for the questioning of witnesses / suspects. It is a cardinal principle that every person coming into the custody or control of the police must be protected against abuse and or ill treatment. The Judges Rules were adopted in England in 1912 to protect suspects detained in police custody. They were replaced in 1984 by the Police and Criminal Evidence Act.

The Judges rules have developed over many years and are still in use in most Commonwealth Jurisdictions or they have been superseded by modern legislation. Fiji adopted the use of the UK Commonwealth Judges Rules in 1994 in their entirety. Perhaps the Judges Rules ought to be considered by the Authorities suitably modified here in Tonga in order to protect witnesses and suspects from allegations as per this and many other cases.

The use and or application of the Judges Rules were considered in Tonga- in the case of Rex v Pailate and others in Criminal Case 120-1988 by Martin CJ. The learned Chief Justice said the judges rules were in conflict with the Evidence Act but that case concerned the admissibility of evidence in a voir dire- and turned on the use of a judge's discretion to exclude evidence.

The Rules were in put into place by judges themselves in England in 1912 they were modified in 1964 and were designed to protect (1) witness (2) and police officer(s) alike. The rules are observed by Judges in most common law jurisdictions and are collectively known as "The Judges Rules." I set out these rules in detail to assist the parties and other police officers involved in the investigation of crimes.

Judges Rules

THESE RULES do not affect the basic principles:-

[a] That all citizens have a duty to help a police officer to discover and apprehend offenders

[b] That police, officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station

[c] That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation, or the administration of justice by his doing so.

[d] That when a police officer who is making inquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence he should without delay cause that person to be charged or informed that he may be prosecuted for the offence.

[e] That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been made voluntary, in the sense that it has not been obtained from him by fear of prejudice, or hope, or advantage, exercised or held out by a person in authority, or by oppression.

The Principle set out in paragraph [e] above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal (or in civil) proceedings.

The Rules

Rule 1. When a police officer is trying to discover whether or by whom an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.

Rule 2. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person, or cause him to be cautioned, before putting to him any questions, or further questions, relating to that offence.

The caution shall be in the following manner:-

"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence."

When after being cautioned a person is being questioned or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons who were present.

Rule 3. [a] When a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms:-

"Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence."

[b] It is only in exceptional cases that questioning relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted.

Such questions may be put when they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public, or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused shall be cautioned in these terms:-

"I wish to put some questions to you about the offence with which you have been charged [Or about the offence for which you might be prosecuted] You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence."

Any questions put and answers given relating to the offence must be contemporaneously recorded, in full, and the record signed by that person, or if he refuses by the interrogating officer and a witness.

[c] When such person is being questioned or elects to make a statement, a record shall be kept of the time and the place in which any questioning or statement began and ended, and record the persons present.

Rule 4. All written statements made after caution SHALL be taken in the following manner.

[a] If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say. If he says that he cannot write or says that he wants someone to write it for him, the police officer may offer to write the statement for him. If he accepts the offer the police officer shall before starting, ask the person making the statement to sign, or make his mark in the following manner.

"I ... wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

[b] Any person writing his own statement shall be allowed to do so without any prompting, as distinct from indicating to him what matters, are material.

[c] The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, the following:-

"I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

[d] Whenever a police officer writes the statement he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters, he shall not prompt him.

[e] When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement.

"I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will."

[f] If the person who has made the statement refuses to read it, or to write the above mentioned Certificate at the end of it, or to sign it, the most Senior Police Officer present [In the station] shall record on the statement itself and in the presence of the person making it what happened. If the person making the statement cannot read or refuses to read it, the officer who has taken it down shall read it over to him, and ask him whether he would like to correct alter or add anything and put his signature or make his mark at the end. The most senior police officer shall then certify on the statement itself what he has done.

Rule 5. If at any time after a person has been charged with, or informed that he may be prosecuted for an offence a police officer wishes to bring to the notice of that person any written statement made by another person who in respect of the same offence has been charged, or informed that he may be prosecuted, he shall hand that person a true copy of such written statement, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something he shall at once be cautioned or further cautioned as prescribed in Rule 3[a].

Rule 6. Persons other than police officers charged with the duty of investigating offences or in charging offender's shall so far as may be practicable, comply with these rules.