IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No.06 OF 2009

BETWEEN:

JEAN BAPTISTE PALAUD
Appellant

AND:

THE COMMISSIONER OF POLICE
Cross-Appellant

Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Nevin Dawson
Justice Ronald Young

Counsel: Mr Saling Stephens for the Appellant, Mr Palaud
Ms Viran Trief for the Cross-Appellant, Commissioner of Police 

Date of hearing: 27th April 2009 
Date of Judgment: 30th April 2009

JUDGMENT

In March 1999, the appellant, who was a sergeant of police, was suspended on half pay from the Police Force based on allegations he had participated in a kidnapping and had encouraged an assault. 

Five years and three months later on 15 June 2004, he was reinstated to active duty. 

In the Supreme Court Mr Palaud sued the Police Commissioner alleging his suspension was "without proper care and due diligence" and defamatory. As a result the appellant sought damages including, arrears of pay, stress and suffering, and exemplary damages totalling over 9 million Vatu. 

At trial the Police Commissioner accepted that Mr Palaud was entitled to be paid his full wages for the period of his suspension, 5 years and 3 months. There was a dispute as to the quantum of the wages. Mr Palaud claimed a further VT100, 000 was due the Commissioner said the balance due was only VT9, 978. The Judge awarded Mr Palaud VT9, 978. His appeal against this amount was abandoned.

The Judge rejected Mr Palaud’s cause of action in defamation. The Judge concluded the Police Commissioner was negligent and awarded damages for stress and suffering of VT1, 260,000 and exemplary damages of VT110, 375. This is an appeal by Mr Palaud and cross-appeal by the Commissioner of Police.

Mr Palaud says in support of his appeal:

(a)	 the Judge wrongly assessed the quantum of exemplary damages; 

(b)	the Judge wrongly assessed the quantum of compensatory damages. 

In the cross-appeal the Commissioner of Police alleges-

(a) 	that because part of the hearing was conducted by the Judge in the absence of counsel for the Commissioner of Police and because the Judge pre-determined liability a new trial should be ordered.

(b) 	the Judge wrongly found the cross-appellant was negligent; 

(c) 	the Judge erred in awarding any compensatory or exemplary damages to the appellant.

BACKGROUND

In March 1999, an allegation was made that Mr Palaud had either tied a rope around an old man and dragged him off or he had invited people from a village to assault the old man. The appellant received a notice from the Commissioner of Police on the 18 March 1999 advising him that, pursuant to Section 64(1) (a) of the Police Act [CAP.105], he was stood down from the Police Force on half pay "pending further investigation into the allegation against you".

A few days later the appellant wrote to the Commissioner asking to be reinstated. The Commissioner did not respond. It seems that the Commissioner asked the Public Prosecutor to consider whether to prosecute Mr Palaud on criminal charges of inciting and soliciting an intentional assault. Exactly when this request was made is not clear. However, on 22 August 2003, the Public Prosecutor wrote to the Police Commander of the police district advising him there was insufficient evidence to justify any prosecution of the appellant and suggesting the police instigate an internal disciplinary process.

On 9 October 2004, the Police Commissioner ordered the Police Commander for the appellant’s area to conduct a disciplinary hearing. The appellant was charged with "inactive action" and that he did an act which brought discredit to the Police Force. A hearing was held on 18 December 2003 and adjourned to 23 January 2004. After the appellant had pleaded not guilty to the charges none of the relevant prosecution witnesses, including two police officers, appeared. The prosecuting officer accepted that there was insufficient evidence to prove their case against Mr Palaud and requested the case be dismissed or referred to the Commissioner of Police for a "higher decision". 

The appellant then called evidence from a superior officer who had been at the police station when the incident giving rise to the disciplinary charges was alleged to have occurred. His evidence was that the appellant had done nothing wrong and had done his best to protect the victim. Unsurprisingly the charges were dismissed. 

The hearing officer, Inspector Bule, reported to the Commissioner of Police about the circumstances and result of the hearing 3 days later on 26 January 2004. A further report of the disciplinary hearing was also sent to the Commissioner of Police by the local Police Commander on 10 March 2004. 

However it took until 15 June 2004 for the Commissioner to re-instate Mr Palaud to full duty. In his letter re-instating the appellant the Commissioner said "we are sorry for the great delay in dealing with your case. You would have known well that the delay was due to the Prosecution failure to take quick action or give decision on your case. The worse part was when your case file went missing in the prosecution office in Santo for sometime." 

In March 2005 Mr Palaud instructed counsel to write to the Police Commissioner regarding payment of his half salary, still unpaid, together with a claim for damages for stress and suffering and exemplary damages.

Although the Commissioner had ordered an inquiry into the circumstance of the suspension and disciplinary proceedings, by October 2006 nothing further had happened. A legal officer subsequently sent a memorandum to the Commissioner observing that nothing had happened and the delay in resolving the matter was "causing a psychological effect on the officer". He recommended that the arrears of half pay be paid. 

The appellant’s Supreme Court claim pleaded:

"5.	On or about 18th March 1999, the First Defendant has without proper care and due diligence wrongly suspended the Claimant from official duties on half pay following certain unfounded allegations wrongly labelled against him which were subsequently not proven by a court of law.

6.	During the duration of the suspension, the Claimant faced hardship to maintain his family to the extent that at one stage he had his child expelled from his school because of unpaid school fees.

7.	The Claimant’s personal and professional reputation and character was damaged as he was treated differently by his colleagues and superiors as if he has been convicted of the allegations laid against him. His standing has been discredited in the eyes of the community.

8.	On or about 15th June 2004, that is to say, after a period of 5 years and 3 months, the First Defendant reinstated by the Claimant to active duty after he was cleared of the allegations labelled against him. 

9.	Upon his reinstatement the First and Second Defendants have refused to repay portion of salary which has been withheld during the entire period of the suspension and have failed to provide himself any valid reason for their action.

10.	Due to the matters aforesaid, the Claimant has suffered loss and damage as follows:-

Particular of loss/damage

1.	Arrears of pay since 18/06/99 – 15/06/04
	VT1,501,168	
2.	Stress & suffering experienced by him and his immediate family	
	VT2,500,000	
3.	Defamation
	VT2,500,000	
4.	Exemplary damage
	VT2,500,000
________	
TOTAL CLAIM
	VT9,001,168	

The cross-appeal by the Commissioner challenges the correctness of the Judge’s conclusion as to liability and damages. The appeal by Mr Palaud focuses only on damages. It is appropriate therefore to consider the cross-appeal first. We return therefore to the grounds of the Commissioner’s cross-appeal.

CROSS-APPELLANT NOT PRESENT

The first ground of appeal is that the Supreme Court hearing began before the Commissioner and his counsel were present. On 10 October 2008, parties were advised by the Court that their case would commence on Tuesday 11 November 2008 at 9.30am in the Supreme Court sitting at Santo. Mr Justin Ngwele who was employed by the State Law Office was counsel for the Police Commissioner. He has sworn a sworn statement as to the circumstances whereby this case, in the Supreme Court, started without him and his client. 

Mr Ngwele and the Police Commissioner travelled to Santo on 10 November. They arrived at the Courthouse at 8.50am on the 11th November. After inquiry by Mr Ngwele, the Registrar of the Supreme Court confirmed their case was due to start at 9.30am. The Court list, exhibited to Ngwele’s sworn statement, also confirmed the start time at 9.30AM. Mr Ngwele returned with his client to the Court at 9.20am and was then told by the Registrar that his case had already commenced. 

In his sworn statement Mr Ngwele described what then occurred.

"13.	When I entered the Court room I noticed that the Respondent’s solicitor was conducting the examination in chief of his client, the Respondent.

14.	When he had finished examining his client the learned Judge asked me if I intend in cross examining the Claimant. I then apologized and explained that I was aware the Court ordered the trial down for 9.30AM, and asked whether the Judge had noted and taken into account the list of objections filed in response to the Respondent’s sworn statement and the sworn statements of Tom Laicha and Wilson Garae, both of whom were witnesses for the Respondent.

15.	The Judge said that the trial began a 9.00AM and we were not present. He said that Mr Stephens and he considered the list of objections and he considered the sworn statement of the Police Commissioner. However, having perused the sworn statement he was of the view that the statement of the Police Commissioner admits certain facts which in effect admit liability on the part of the Government.

16.	The Judge continued in stating that the issue whether the Government was liable or not to pay damages is not a contentious issue. The issue at hand was as to how much money the Government would pay the Respondent.

17.	In light of the Judge’s statement, I asked that he record that this assertion was made at the beginning of the trial in the absence of the Commissioner of Police and myself."

When a case before the Court is listed to commence at a particular time a judge should not commence trial earlier unless both parties and their counsel are present and agree. To commence the trial before the listed start time without one party and their counsel being present is wrong and unfair to that party. Ordinarily such an error would require a retrial. 

However in this case it seems Mr Palaud may have done little more than confirm his witness statement before Mr Ngwele entered the Courtroom. The Police Commissioner had a copy of Mr Palaud’s statement. Counsel for the Commissioner was able to fully cross-examine Mr Palaud. There is nothing to suggest that the Judge received some vital evidence unknown to the Commissioner in his absence. 

We emphasize the Judge should not have started the trial before its advertised start time in the Commissioner’s absence. However, the Commissioner cannot identify any specific prejudice arising from the Judge’s action. Given that conclusion we reject this ground of appeal.

PRE-DETERMINATION

Mr Ngwele said that when he arrived in Court he was told by the Judge that he considered the witness statement by the Police Commissioner effectively admitted liability. Thus the Judge said the only issue for the Court was the quantum of damages. Counsel for Mr Palaud confirmed this conversation between Mr Ngwele and the Judge.

The approach by the Judge was inappropriate in two ways. Firstly, it was effectively a pre-determination of the question of liability before the Judge had heard all the relevant evidence.

Secondly, having had the advantage of reading the Commissioner’s witness statement we are clear he did not admit liability. 

The appellant’s allegation was that the Commissioner was negligent in suspending Mr Palaud after the Commissioner received the complaint regarding Mr Palaud’s conduct. The Commissioner’s statement did not accept he was negligent. The sworn statement was essentially a description of the relevant events.

We are satisfied that these errors, in pre-determining liability and in wrongly finding the Police Commissioner admitted liability are sufficient to allow the appeal. 

We turn now to consider whether in any event there was evidence upon which the Judge could have concluded the Police Commissioner acted negligently. 

NEGLIGENCE 

As we have observed Mr Palaud’s claim was that the Police Commissioner was negligent when he suspended him. It is therefore appropriate to consider the statutory context of police discipline. The Police Act provides for a disciplinary process for "subordinate" and "Senior" Officers. Mr Palaud was a subordinate officer. Section 59 of the Act empowers a Senior Officer to conduct a disciplinary hearing involving a subordinate officer. Punishments are provided for upon conviction and include referral to the Commissioner of Police where the punishment available to the Senior Officer conducting the hearing is insufficient (s.61). The officer facing the charges has a right to a proper hearing, to challenge witnesses and to call evidence (s.60). Appeal rights are also given for the subordinate officers (s.63). Subordinate officers who are being investigated or who have been charged with offences may be stood down from duties and face reduced pay (up to ½) (s.64). However, if the subordinate officer is acquitted of the charges he must be paid in full for the period he has been so stood down [s.64 (3) (a)].

The appellant’s pleaded allegation of negligence against the Commissioner was that he "without proper care and due diligence" wrongly suspended the appellant from duty. The Commissioner was faced with an allegation against the appellant that he had committed a serious crime, a kidnapping and inciting an assault. Section 64 of the Police Act anticipates that the Commissioner may "at anytime" suspend a police officer where there is a Section 59(1) inquiry (internal discipline) or a trial or inquiry into any offence (ss.2). 

In this case the appellant was suspended from duty because of an inquiry into an allegation of a criminal offence. There was no evidence before the trial judge on which he could have concluded that the Commissioner exercised his discretion under Section 64 to suspend the officer negligently even assuming a duty of care arises in such circumstances. Although ultimately Mr Palaud was acquitted of the charges that fact by itself added nothing to the claim that Mr Palaud was somehow improperly or negligently suspended in 1999.

Given the allegation that Mr Palaud had committed a serious criminal offence, unless the Commissioner of Police could immediately dismiss the complaint as having no credibility, suspension of the officer under section 64 was virtually inevitable.

Finally, the Judge made no finding as to how the Commissioner was negligent when he suspended Mr Palaud. The Judge appears to have taken into account, in assessing, for example, whether exemplary damages should be paid, that the Police delayed the disciplinary proceedings for up to five years. While the delay was extraordinary it was not part of the appellant’s claim the Commissioner acted negligently in this regard. In any event much of the delay appears to have been when the case was with the Public Prosecutor and not the responsibility of the police.

On the evidence before the Court there was no factual basis on which the Judge could have concluded the Commissioner was negligent when he suspended Mr Palaud. 

Given those conclusions Mr Palaud’s appeal relating to damages need not be considered. 

The appeal is allowed. The Supreme Court Judgement is set aside including the costs order. There will be judgment for the Commissioner with standard costs in the Commissioner’s favour.

DATED at Port-Vila this 30th day of April 2009 

BY THE COURT

Vincent LUNABEK CJ
John von DOUSSA J
Nevin Dawson J
Ronald YOUNG J