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Harrisen v Holloway (No. 1) [1984] VULawRp 13; [1980-1994] Van LR 106 (22 August 1984)

[1980-1994] Van LR 106

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 62 of 1984

BETWEEN:

F. HARRISEN
Plaintiff

AND:

J.P. HOLLOWAY
as the Commissioner of Police
Defendant

[No. 1]

Coram: Judge Coakley

Counsel: Mr P Coombe for plaintiff

JUDGMENT

[TORT - wrongful imprisonment - DAMAGES - assessment - exemplary and compensatory damages]

This action brought by the Plaintiff against the Commissioner of Police relates to his apprehension and subsequent confinement at the Police Station and in No. 1 Prison on two occasions between September and December of last year.

The Commissioner has been called a nominal Def. and Mr Coombe, learned counsel for the Plaintiff, contends that he is the right party to be sued by virtue of section 48 of the Police Act 1964 (U.K.). This provides that the Chief Officer of Police is made a joint tort-feasor for the wrongful act committed by constables under his control. Furthermore, Mr Coombe said that the English Act was a statute of general application and applied in Vanuatu under Article 93(2) of the Constitution. He did not state how the Act came to be applied in Vanuatu whether by joint decision or order made by the former President Commissioners or by some other means. Even if the Act had applied prior to Independence, once the Police Regulation No. 7 of 1980 came into operation on 12th May 1980, the application of the English Act thereafter would have been incompatible with the independent status of Vanuatu. In my view, therefore, the Police Act of 1964 cannot be applied in this country (see Commonwealth and Colonial Law by Roberts Wray at pp. 141142).

Section 1(3) of the Law Officers Regulation No. 25 of 1980 provides that the Attorney General shall represent Vanuatu in all civil proceedings in the courts. Vanuatu means the Republic of Vanuatu - Interpretation Act 1981 - and this would include the Government of Vanuatu consisting of its Ministries and departments. "One person is said to represent another when he takes his place. Thus, an agent represents his principal, an heir his ancestor, an executor his testator and an administrator the intestate whose estate he administers." Jowitt's Dictionary of English Law at p. 1528.

As it is in the public interest that the case should be determined on its substantial merits, and the learned Attorney who appears for the Def. has taken no objection to the point, I would grant leave to amend under O.17 r.11 to substitute the name of the Attorney - General as defendant.

One other introductory matter concerns the position of the Commissioner of Police in relation to the prison service. By section 76 of the Police Regulation each officer in charge of police in a district is the superintendent of the prisons in that district for the purposes of the New Hebrides Joint Native Prisons Administration J.R. no. of 1945; the Commissioner of Police has the title of Chief Superintendent of Prisons of the prison service.

There is little dispute over the facts. On the morning of 14th Sept. 1983, which was a Wednesday, between the hours of 8-9am, Det. Insp. Laban and Det. Cpl. Malatou went to Erakor Village where the Plaintiff was living. He came out of his house and he says that the Police Officer greeted him but said nothing else. The version given by D/Insp. Laban in his affidavit and the testimony given by his colleague is much more creditable; that is, that the Plaintiff was told of the enquiries they were making and they wanted him to accompany them so he could be questioned.

On arriving at the Police Station the Plaintiff was brought into the CID office by the same two Officers, and after some questioning he then made a statement which reads:

"I remembered in 1981, I don't know the exact date and day. But it was not a week-end. I went with Manuel Wayane, Abock Kali, John Norman and Kalotip Robert and stole in NSK Co-operative. Maybe it was about mid-night, I'm not sure when we went. Four of us were on guard outside, while Abock went in and took the money. I can't state exactly how Abock went through because that night, I stood a bit far and didn't see the place Abock went through.
Anyway when Abock came out, we went and shared the money on the side of the road, near to Manuel's house. At that time, I think I took somewhere round 18,000VT cash notes only. I'm not sure how much the other four had because after I took my share, I left and didn't asked how much each one had.
I can clearly remember at that time, we only took money. We didn't take anything else apart from money. The theft was planned by Manuel and Abock. They just found me and told me to follow them. The money which I stole, I have used it all on drinks and other food. I never tell any of my family about this thing (theft) nor share the stolen money between them. The second theft in 1982, I wasn't with them. That's all I could say."

After making this statement, the Plaintiff was then placed in a cell at the Police Station; the Plaintiff said that this was at about 9am; D/Insp Laban (para 13 of his affidavit) put the time as about 11.00 hours. He remained locked up until around 4pm when he was transferred and detained at No. 1 Prison. Although no evidence was given about what occurred next day, the committal record which has been put in as evidence shows that the Plaintiff made a further statement which is dated 15th Sept '83. The second statement reads:

"I would like to add on to my first statement again. It is true, there were five of us who planned to go and steal in NSK Co-operative in 1981. There are Manuel Wayane, Abock, John Norman, Kalotip Robert and I. We were the ones who planned to go and steal in NSK. But at night, only Manuel Wayane, Abock and I went and stole in NSK. That same night still after we shared the money, I came back to the house. Then I gave 2,000 FNH note to Kalotip Robert and 3,000 FNH notes to John Norman. That's because there were five of us who planned together and we thought if we didn't give them (John Norman and Kalotip) some money, then they would say it out.
That's my statement. It is true, I gave half the money which we stole in NSK to the other two. Then I told them that it was their share from the stolen money in the store (NSK). I can remember that on the next day, I told Abock that I gave half the stolen money from NSK to John Norman and Xalotip Albert. That's all I would like to state."

It would appear that the Plaintiff would have been brought from No. 1 Prison to the CID office so that the second statement could be recorded, and it is reasonable to assume that he was thereafter returned to prison where he remained until 14th Nov. 1983.

The first step in the institution of criminal proceedings was not taken until towards the end of October by the preferment of a complaint and draft information pursuant to sections 143 and 144 of the Criminal Procedure Code Act 1981 (hereinafter referred to as "the Code"). The complaint is dated 27th Oct. 1983 and on the next day it appears that the Prosecutor applied to a Judicial Officer for a remand warrant in respect of the P1's detention in prison.

A copy of the warrant was in the possession of the Def. but the original document has not been produced, nor has any explanation been given for its absence. Even if the duplicate had been admissible in evidence I would have held that the circumstances surrounding the apparent issuance of the warrant were so irregular that even if it could be shown that the original warrant was at the material time held by the officer in charge of No. 1 Prison, this would not have made the P1's detention there lawful. I say this because sections 60-70 of the Code lay down a procedure which must be followed on applications for bail or remand in custody, and it is implicit that an accused person must be produced before the Judicial Officer so that not only can he be heard but he must also be informed of his rights. I am satisfied that the Plaintiff was never so produced when the remand warrant was apparently issued on 28th Oct. 1983.

The next event occurred on 14th Nov. 1983 when the Plaintiff escaped from No. 1 Prison; he was at liberty until 22nd Dec. 1983. The Def. said that the Police at first tried to arrange for the voluntary surrender of the Plaintiff and two other escapes but when this turned out to be unsuccessful, a pre-dawn operation was mounted on the last-mentioned date which effectively terminated the P1's liberty. He was dealt with in a similar manner as on the previous occasion; that is, he was locked up in a cell until late in the afternoon and then transferred to No. 1 prison where he spent the night. However, next morning he was produced before a judicial officer and released on bail. The subsequent history in relation to the criminal proceedings is that the Plaintiff attended court on 16th January 1984 when a preliminary enquiry was held resulting in him being committed for trial to the Supreme Court. He was subsequently arraigned to face charges of unlawful entry and theft, which were dealt with on 4th April 1984, but before any plea was taken the Prosecutor stated that he was withdrawing the charges because Police investigations revealed that the incident complained of had occurred in 1979 and not 1981. Mr Coombe, who appeared as counsel for the Plaintiff in the criminal proceedings, then submitted that in view of sections 152 and 153 of the Penal Code there should be a formal verdict of not guilty against the Plaintiff and his two co-accused. The following order was thereupon made by the Supreme Court. "Accused discharged and acquitted of the charges on the record."

It is pleaded that the P1's loss of liberty commenced from the moment the two Police Officers asked him to accompany them to the Police station on 14th Sept. 1984 on the ground that he was arrested at this point of time and there was no reasonable cause for his arrest. I find on the evidence that the Plaintiff went voluntarily to the Police Station, and that he was not formally arrested until placed in a cell at the Police Station; moreover, there were grounds for his arrest as the Police had reasonable and probable cause that he had committed an offence or offences. According to paragraph 14 of D/Insp. Laban's affidavit his arrest took place at about 11 am, and it was effected without a judicial warrant. Section 12 (1) of the Code empowers any police officer to arrest without a warrant any person he suspects upon reasonable grounds of having committed a cognisable offence; both the offence of unlawful entry and theft fall into this category.

What should have happened next was that the officer in charge of the police station should have complied with section 18 of the Code, which reads:

"18 (1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within twenty-four hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.

(2) The officer in charge of the police station may release a person arrested on suspicion of committing any offence, when after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with a prosecution for the offence."

In practice, the Public Prosecutor, who is responsible under Article 53 of the Constitution for the prosecution (Sic) of all criminal proceedings, should have been notified when the Plaintiff was not released from custody, as well as the Commissioner of Police under section 19 of the Code.

In these circumstances it is clear that there was a failure on the part of the Police and Public Prosecutor to comply with the due process of the law. That failure was compounded by the officer in charge of No. 1 Prison permitting the Plaintiff to be detained there, virtually incommunicable, and, as the Plaintiff said, waiting to know when he was going to appear in court. Another provision of the law was ignored because section 37 (3) of the Code requires that a person held in custody must be brought before a Magistrates Court at the expiration of fourteen days. There can be no question that the P1's detention as from 16th Sept. 1983 was unlawful; by this date he should have been produced before a Judicial Officer as 48 hours had elapsed since his apprehension (R v. Holmes ex parte Sherman (1981) 2 All ER 612). His confinement remained unlawful until he escaped on 14th Nov 1983; the defence of justification is not available.

The Plaintiff also claims damages for the second occasion when he was apprehended which was on the morning of 22nd Dec. 1983. He was undoubtedly arrested on this occasion as soon as he emerged from his house. Police Constable Thompson was the arresting officer and he said in evidence, "Freddie came out; I held him and told him that he was under arrest as he had escaped." That is clearly what P/C Thompson believed to be the case, but as is now known, the Plaintiff had not been held in lawful custody. However, I do not consider that the arrest was in the particular circumstances unlawful for this reason. The criminal charges against the Plaintiff were for cognisable offences for which a Police Officer could arrest without warrant. Those charges were still pending and the Plaintiff was, in fact, being arrested so that he could be brought before a court to answer them. Although P/C Thompson told the Plaintiff that he was under arrest for an offence which he had not committed, he acted honestly and reasonably, and the Plaintiff suffered no actionable wrong (Dallison v. Caffery (1964) 2 All ER 610; Blundell v Attorney General (1968) NZLR 341; Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94) The Plaintiff's subsequent production before a judicial officer the following day was, in my opinion, a sufficient compliance with the provisions of section 18 of the Code. It would, I think, be completely illogical to hold that the confinement of the Plaintiff in No. 1 Prison for less than 24 hours without a remand warrant was unlawful when it would not have been had he been held in a cell at the Police Station.

It is obviously more convenient administratively to place persons in a prison where board and lodging are readily available instead of confining them to the restrictive conditions of a Police station.

That really disposes of what may be termed "the second occasion" save for the severe criticism by Mr Coombe when he likened the joint action by Police and V.M.F. as comparable to Gestapo methods, His complaint is that, having secured an acquittal for his client in the criminal proceedings, he now puts him forward as an innocent and blameless character who was aroused from his bed in the early hours of the morning to be confronted by a troop of uniformed men armed with truncheons. It seems that the claim for exemplary and aggravated damages is largely founded on this incident. But the reality of the situation is quite different to what Mr Coombe has described as the outrageous conduct of the Def. The Plaintiff is, indeed, a fortunate man because instead of being at liberty at the present time, he might still have been languishing in prison today under due process of the law were it not for a change in the law which has turned out to his advantage. The P1's acquittal came about in this way. That charges brought against him were laid under sections 143 (1) and 125 (a) of the Penal Code on the basis that the alleged offences had been committed in November 1981. The Penal Code Act No. 17 of 1981, to give it the full title, had come into operation on 7th August 1981, by Order No. 110 of 1981. The transitional provisions set out in section 153 of the Penal Code enabled the prosecution of offences under the Native Criminal Code Joint Regulation No. 12 of 1962 to be brought for a period of 18 months; in other words, no proceedings could be commenced as and from 6th February 1983 under the old criminal Code, which was effectively repealed by Section 152 of the Penal Code.

That the Plaintiff participated in a crime is undisputable because, apart from the two statements he made to the Police which might have been subject to challenge on the ground of their voluntariness, he did in his evidence-in-chief volunteer this piece of evidence in these proceedings, "In 1979 I was involved in incident at Erakor Co-op Store with three friends. Four of us had planned this but it was Manuel's idea. I don't know how store was entered as I was on guard on other side of road but it was Avock who entered store."

Reverting to the pre-dawn operation of 22nd December 1983 I can find no cause of action in the P1's claim for damages resulting from this incident. The Police, having given the Plaintiff the opportunity of surrendering himself voluntarily, were taking no chances and using no half-measures. By going to Erakor Village at the time they did, they were making sure they would capture their man; there was no ill-treatment and the use of handcuffs was, in view of what had transpired before, a proper precautionary measure for the arresting officer to take. I dismiss the P1's claim relating to the period 22nd/23rd December 1983.

The Plaintiff is entitled to damages for his unlawful detention from 16th September to 14th November 1983. In the statement of claim, the amount claimed is as follows:

(a) special damages of VT 36,000.
(b) general damages of VT 1,000,000.
(c) aggravated and exemplary damages of VT 5,000,000.

It might be mentioned that the Plaintiff was given leave to amend the claim for special damages by reducing the amount by one-third, the reason being that in paragraph 5 it was originally pleaded that he had been wrongfully and unlawfully imprisoned until 14th December 1983. However, no application was made to reduce the amount claimed for either general damages or aggravated and exemplary damages.

Special damages do not raise any real difficulty except for this observation. This head of damage was totally overlooked when the Plaintiff gave his evidence on the first day of the hearing, and on the next day Mr Coombe asked the Court's leave to recall his client to rectify this omission. The evidence then given by the Plaintiff was scanty and somewhat wanting. Who his employer was, where he worked, what job he was doing remains a mystery. What I find surprising is that on the day before 14th September 1983 the Plaintiff said that on returning from working in his garden, he was told by a member of his family that the Police had been to his house looking for him. On the next day D/Insp. Laban in paragraph 4 of his affidavit states that he arrived at Erakor Village about 0900 hours when he saw the Plaintiff outside his house. Yet the Plaintiff has said on oath that he was in gainful employment at the time. His evidence stands uncontradicted and I must therefore accept it, but if it should be shown to be otherwise there are certain consequences which the Plaintiff could face. There is a slight adjustment to be made in view of my finding that the time when the illegality commenced to run was 16th September 1983. The special damages will be allowed at VT 34,840.

I shall next deal with the claim for aggravated and exemplary damages of VT5,000,000. McGregor on Damages (14th Edn) has the commentary on the subject, which is headed "The general ban on exemplary damages. 1 at p. 22:

"The primary object of an award of damages is to compensate the plaintiff for the harm done to him; a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which are variously called exemplary damage, punitive damages, vindictive damages, even retributory damages, and come into play whenever the defendant's conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like. Whether a modern legal system should recognise exemplary damages at all has been much debated, but it is thought that, all in all, the case for dispensing with them is made out. The central argument against them is that they are anomalous in the civil sphere, confusing the civil and criminal functions of the law; in particular, it is anomalous that money exacted from a defendant by way of punishment should come as a windfall to a plaintiff rather than go to the state. On the other side, a major justification of exemplary damages is that their existence provides a suitable means for the punishment of minor criminal acts which are in practice ignored by police too caught up in the pursuit of serious crime."

The argument advanced by Mr. Coombe was that the Government of Vanuatu should be punished or penalised because of the wrongful acts of its servants; he added for good measure that no apology had been made by the Commissioner of Police to the Plaintiff, though that point is without merit as the Commissioner has been wrong-suited.

Salmond on Torts (16th Edn) at pp. 548-9 and Mc Gregor (supra) at pp. 229-232 limit the award of exemplary damages to three categories of cases:

1. Oppressive Conduct by government servants
2. Conduct calculated to result in profit.
3. Express authorisation by statute.

Only the first category has any application to the facts of this case. In Cassel & Co Ltd. v. Broome [1972] UKHL 3; (1972) 1 All ER 801 Lord Kilbrandon in his speech at p. 877 said, "A second example - Lord Devlin's first category - is in the sphere of public authority. While, as some of your Lordships have pointed out, the illustration may have been too narrowly drawn, the rationale is clear and is the same. An example might be, an outrageous excess of official authority without any aggravating circumstances (cf. Huckle v Money) resulting in the wrongful imprisonment of a person of bad character. False imprisonment is primarily actionable as an injury to reputation. If the plaintiff has none to lose, the amount of his compensatory damages may be inadequate to deter, in the public interest, flagrant injustices of this character." That the standing which a person has in the community is a relevant consideration is borne out by the words of Lawrence, L.J. in Walter v. Alltools (1944) 61 LTR 39 at p.40 C.A. "A false imprisonment does not merely affect a man's liberty; it also affects his reputation." There is, however, no evidence that the Plaintiff has suffered injury to his reputation as a result of his wrongful confinement. Another authority I need quote under this head of damage is Rookes v. Barnard [1964] UKHL 1; [1964] 1 All ER 367 from two pages of Lord Devlin' speech appearing at p. 408 and p. 410 respectively. The first reads, "These authorities clearly justified the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves as a valuable purpose in retraining the arbitrary and outrageous use of executive power." Then the second passage, "The first category is oppressive, arbitrary or unconstitutional action by the servant of the government. I should not extend this category - I say this with particular reference to the facts of this case - to oppressive action by private corporations or individuals. Here one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might be said to be using it oppressively. If he use his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service."

Although the P1's action is founded on the tort of false imprisonment, the foundation of his claim for exemplary damages is based on the Constitution for infringement of his fundamental rights. Mr Coombe referred to Article 5 thereof which guarantees, inter alia, the liberty of the individual security of the person and protection of the law. I do not think that the failure by the servants of the government to comply with the law amounted to oppressive or arbitrary action on their part; they were clearly negligent in failing to carry out their duty in a proper manner, but there is nothing to show that they acted in bad faith or with malice towards the Plaintiff The only ground, therefore, on which damages could be awarded under this head relate to breach of the P1's constitutional rights.

Article 6 of the Constitution, whereby a person who claims that his fundamental rights have been infringed can apply for relief to a bench of three judges, restricts the monetary factor of such relief to the payment of compensation. Although the facts in this case differ considerably from those in Jamakana v. Attorney-General and Another, [1983] SILR 127, which was an action for breaches of the P1's fundamental rights and freedoms under the Constitution of the Solomon Islands, I respectfully concur with this passage by Daly, C.J. at p. 13 ".... in my judgment the award in this case should be limited to an award within the compensatory principle and exclude exemplary damages" for the reasons which he gives for this conclusion. In conclusion, I consider that the P1's claim for aggravated and exemplary damages must be dismissed, not only because it would be contrary to public policy to reward a self-confessed criminal with a windfall which I regard as totally undeserved, but also because general damages are in the particular circumstances of this case adequate compensation for his false imprisonment.

What, then, should be the quantum of general damages? Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds [1979] 3 All ER 129, which was an appeal to the Privy Council, was an action for damages and compensation for assault, battery and fale imprisonment. The respondent, a retired Police Officer of unblemished character, had been detained in prison from 11th June-10th August 1969 by an order made under Emergency Powers Regulations and it was subsequently held that such detention was invalid. The trial judge, in awarding damages of $5000, made this comment, "I am unable to find any similar case decided in the region or elsewhere. This might have assisted me on the question of quantum." On appeal to the Court of Appeal, the award was increased to $18,000, part thereof being awarded as exemplary damages. On further appeal, the Privy Council held that where exemplary damages were awarded, the amount of such damages was not required to be specified separately from the amount of compensatory damages awarded. The equivalent value in this country's currency of the award in Reynolds case is difficult to assess because the original trial was held in 1976 and all that can be said on the point is that the purchasing power of the East Caribbean dollar is well below that of the United States dollar.

Migotti v. Colvill [1879] UKLawRpCP 45; (1879) 4 CPD 233 is a very old case but it is helpful in providing a yardstick in assessing general damages because, just as in the instant case, there was, at first, a lawful detention. The action was against the governor of Middlesex House of Correction for improperly and unlawfully refusing to discharge the plaintiff from custody and set him at liberty; he had been sentenced to consecutive terms of imprisonment and he claimed damages for having been kept in prison for one day longer than the term for which he was sentenced to be imprisoned. The question of damages was left by the trial judge to the jury who assessed them at twenty shillings. It is impossible to place a precise value on that sum in today's terms but no doubt it was a substantial award to compensate the plaintiff for mental anguish, injury to feelings, loss of consortium and all that flows from deprivation of liberty.

The parties, and possibly another tribunal, will wish to know on what basis I have assessed general damages. It is not an actuarial calculation but it is on a multiplier within the range between 20-25 on the sum awarded in Migotti's case which takes into account the falling rate in the value of the pound sterling over the last century.

The conversion rate into local currency presents no problem and I have taken the period of unlawful imprisonment at sixty days. The sum which I consider to be adequate compensation is 180,000VT.

There will be judgment entered for the Plaintiff in the sum of 34,840VT for special damages and 180,000VT for general damages, making a total in all of 214,840VT.

I shall hear counsel on the question of costs.

22 August 1984

M.J.R COAKLEY
JUDGE