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Prasad v Attorney-General of Fiji [1994] FJHC 91; Hbc0017d.93s (10 August 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 17 OF 1993

BETWEEN:

DHARMENDRA PRASAD
(f/n Bhagwat Prasad)
of 7 Miles, Nasinu, Fiji, Welder
Plaintiff

AND

THE ATTORNEY-GENERAL OF FIJI AND
THE COMMISSIONER OF PRISONS
Defendants

V. Maharaj: For the Plaintiff
D. Singh: For the Defendants

Dates of Hearing: 30th March, 21st April, 5th May 16th June and 28th July 1994
Date of Interlocutory Judgment: 10th August 1994

INTERLOCUTORY JUDGMENT

In this case the Plaintiff claims $250,000.00 General and Special damages and costs from the Defendants for false imprisonment.

The Statement of Claim annexed to the Writ alleges that on the 17th of April, 1990 the Plaintiff was convicted of the criminal offence of fraudulent conversion contrary to Section 279(1)(c)(i) of the Penal Code by the Suva Magistrate's Court and sentenced to imprisonment for a period of six months suspended for two years.

On the 18th of July, 1991, during the operational period of the suspended sentence the Plaintiff was convicted of a total of nine counts of varying criminal offences such as larceny, forgery, uttering forged documents and obtaining money by false pretences by the Suva Magistrate's Court and sentenced to imprisonment for a period of twelve months.

On the 22nd of July, 1991 the Plaintiff was brought back to the Suva Magistrate's Court whereupon the Learned Magistrate activated the six months suspended sentence imposed on the Plaintiff on the 17th of April, 1990 and imposed a six months custodial sentence consecutive to the 12th months sentence that was being served by the Plaintiff at the time making the total term of custodial sentence 18th months effective from the 18th of July 1991.

The Plaintiff contends that by virtue of the provision of Section 63 of the Prisons Act Cap. 86 the Plaintiff was entitled to his statutory remission for a period of six months representing 1/3 of his total prison term and therefore ought to have been released from prison on the 17th of July, 1992.

The Plaintiff alleges that in breach of his statutory and constitutional rights to be released from the prison on the 17th of July, 1992 the Defendants continued to detain the Plaintiff in prison until the 18th of January 1993 when the Plaintiff was given immediate release from prison pursuant to the order of the Suva Magistrate's Court.

The Plaintiff contends that he was wrongfully imprisoned and deprived of his liberty for a period of six months from the 18th of July 1992 until his release and that the Defendants are liable to the Plaintiff in respect of such wrongful imprisonment.

The Plaintiff further alleges that the Defendants' unlawful actions deprived the Plaintiff of his personal liberty of freedom of movement guaranteed under the Constitution of Fiji.

As a result the Plaintiff claims to have suffered shock, mental anguish, great anxiety, distress and loss and damage.

The amended Defence of the Defendants admits the facts referred to in the first three paragraphs in this judgment but denies that the Plaintiff was entitled to have been released from prison on the 17th of July 1992 although it admits that the Plaintiff was released from prison on the 18th of January 1993. The Defendants deny that the Plaintiff was wrongfully imprisoned and that they are liable for damages to him.

They rely on Section 15(3)(c) of the Constitution of the Sovereign Democratic Republic of Fiji which says that although freedom of movement is protected for every person this does not apply to any restrictions on movement imposed by order of a Court on any person having been found guilty of a criminal offence.

The Second Defendant admits that he detained the Plaintiff from the 18th of July 1991 in pursuance of Commitment Warrant No. 2800 of 1991 which provided for the detention of the Plaintiff by the Second Defendant for a period of one year's imprisonment concurrent to other counts.

The Defendants admit that the Plaintiff was further sentenced by the Suva Magistrate's Court on 22nd of July 1991 and that Commitment Warrant 2843 of 1991 permitted the Second Defendant to detain the Plaintiff for a period of one year's imprisonment. Commitment Warrant 2844 of 1991 provided for the detention of the Plaintiff by the Second Defendant for a period of six months imprisonment consecutive to any term being served by activating a suspended term of imprisonment previously imposed.

Upon the Plaintiff being received into the custody of the Second Defendant on or about 22nd of July 1991 the Second Defendant through his servants and agents applied the provisions of Regulation 139(5) of the Prisons Regulations which states inter alia that where a convicted criminal prisoner is sentenced to several terms of imprisonment on several warrants at the same time his several sentences on all the warrants shall be consecutive unless otherwise ordered by the Court and the aggregate term shall run from the date of the first warrant.

The Second Defendant thereupon determined that the total aggregate sentence of the Plaintiff for the purpose of Regulation 139 was two years six months from the 18th of July 1991 whereupon the Second Defendant applied Section 63(1) of the Prisons Act to the Plaintiff and determined that the earliest release date of the Plaintiff with full remission would be 17th of March 1993.

At all times the Second Defendant states that he acted pursuant to and in obedience of the three Commitment Warrants previously mentioned.

Accordingly the Defendants plead that they will rely upon the provisions of Section 65 of the Magistrate's Court Act Cap. 14 and Section 25 of the Prisons Act as a complete defence to the Plaintiff's claim.

Section 65(1) of the Magistrate's Court Act provides protection for any Magistrate or other person acting judicially from civil suit for any act done or ordered to be done by him in the discharge of his judicial duty provided that at the time in good faith he believed himself to have jurisdiction to do or order the act complained of.

Section 25 of the Prisons Act states that no officer of the Prisons Service is liable for any act done by him under the authority of a warrant purporting to be issued by a Judge or a Magistrate.

The Defendants have raised a preliminary point of law which, if upheld, would result in the Plaintiff's claim being dismissed at this stage. The point of law as it appears from the Defence and the submissions I have received is that no claim lies against the Second Defendant because at all times he acted on the authority of the various warrants I have mentioned. In this regard the Second Defendant also relies on the decision of the English Court of Appeal in Henderson v. Preston [1888] UKLawRpKQB 148; (1888) 21 Q.B.D. 362 where it was held that where the governor of a prison acted within the four corners of a warrant he was immune from an action for false imprisonment. Henderson v. Preston was followed by Horridge J. in Morris v. Winter (1930) 1 K.B. 243.

All Defendants but particularly the First Defendant also rely on Section 3(5) of the State Proceedings Act Cap.24 which states:

"No proceedings shall lie against the Crown 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 connexion with the execution of judicial process."

The Defendants appear to concede in their submissions that the Warrant of Commitment No. 2800/91 dated the 18th of July 1991 should have been cancelled by the presiding Magistrate but argue nevertheless that although this may have caused the Plaintiff to be wrongfully detained for a period of six months, neither the First Defendant nor the Second Defendant is under any civil liability to him for the reasons I have stated.

In my judgment the defence of the Second Defendant must succeed. In Henderson v. Preston Lindley, L.J. said at p.366 of the report:

"All that one has to do is to read the warrant. What is a governor of a gaol who receives such a warrant to do except to obey it? It is perfectly valid and correct, and is authorized by the Act of Parliament, and issued by persons who have jurisdiction to issue it. It appears to me that the governor by obeying that warrant has simply done his duty, and the warrant protects him and is an answer to the action."

In my judgment a combination of Section 25 of the Prisons Act and Section 65 of the Magistrate's Court Act and the two cases of Henderson v. Preston and Morris v. Winter must result in the defence of the Second-named Defendant succeeding on this preliminary point and I rule accordingly.

This leaves the question of whether the Plaintiff has any cause of action against the First-named Defendant the Attorney-General of Fiji. The answer to this involves a consideration of Chapter 1, Section 2, and Chapter 2, Sections 6(1), (2), (3)(c), 15(3)(c) and 19(1) of the Constitution of Fiji of the 25th of July 1990 and whether Section 3(5) of the State Proceedings Act (formerly the Crown Proceedings Act) is inconsistent with those sections of the Constitution.

Section 6(1)(c) of the Constitution reads:

"No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say -

(c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law."

Sub-section 6 reads:

"Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person, or from any other person or authority on whose behalf that other person was acting."

Section 15(1) reads:

"No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Fiji, the right to reside in any part of Fiji, the right to enter Fiji, the right to leave Fiji and immunity from expulsion from Fiji."

Sub-section (2) reads:

"Any restriction on a person's freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section."

Sub-section 3(c) so far as material reads:

"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(c) for imposing restrictions , by order of a court, on the movement or residence within Fiji of any person ............. found guilty of a criminal offence.........."

Section 19 is headed "Enforcement of protective provisions" and sub-section (1) reads:

"If any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person may apply to the High court for redress."

Under sub-section (2) the High Court has original jurisdiction to hear any application for relief under sub-section (1).

I begin with the statement that as a general rule Constitutional Codes enshrining Fundamental Freedoms are to be given a liberal interpretation. In Attorney-General for New South Wales v. Brewery Employees Union of New South Wales [1908] HCA 94; (1908) 6 C.L.R. 469 at pp 611-612 Higgins J. said:

"........ although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be. Story pointed this out well (Commentaries, 2nd ed., sec. 455)- "While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget, that it is an instrument of government that we are to construe." In the United States Marshall C.J. in his famous judgment in M'Culloch v. Maryland [1819] USSC 5; 4 Wheat., 316, at p.407 recognized the same truth:- "In considering this question, then, we must never forget, that it is a Constitution we are expounding.""

Subsequently in Edwards v. Attorney-General for Canada [1929] UKPC 86; (1930) A.C. 124 the Board of the Privy Council had to consider the meaning of the word "persons" in section 24 of the British North America Act (1867) the object of which was to grant a Constitution to Canada. Speaking for the Board at p.136 Lord Sankey L.C. said:

"Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs."

In Minister of Home Affairs v. Fisher [1979] UKPC 21; (1979) 3 All E.R. 21 the Privy Council had to consider the interpretation of Section 11 of the Constitution of Bermuda and it held inter alia that a Constitutional instrument was a document sui generis, to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation.

At p. 26(d) Lord Wilberforce speaking for the Board said:

"A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language."

Earlier Lord Wilberforce referred to the heading of Chapter 1 which is similar to the heading of Chapter 2 of the Constitution of Fiji and reads "PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL".

He remarked that Chapter 1 in the Bermuda Constitution like that of other constitutions of most Caribbean territories was influenced by the United Nations Universal Declaration of Human Rights 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms. He said:

"These antecedents, and the form of Chapter 1 itself, call for a generous interpretation avoiding what has been called `the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to."

Reading the Constitution of Fiji it is at least arguable in my judgment that those persons responsible for the drafting of the Constitution had in mind both these antecedents.

In similar vein is another decision of the Privy Council Hinds v. The Queen (1976) 1 All E.R. 353 in which the Privy Council was considering the constitutionality of the Gun Court Act of Jamaica.

Lord Diplock delivered the judgment of the Board and said at p.359:

"A written constitution, like any other written instrument affecting legal rights or obligations, falls to be construed in the light of its subject-matter and of the surrounding circumstances with reference to which it was made."

He then compared the Constitutions of Canada and Australia which provide for a federal structure with those of former colonies of England which had been granted independence and continued at letter (e):

"Nevertheless all these constitutions have two things in common which have an important bearing on their interpretation. They differ fundamentally in their nature from ordinary legislation passed by the parliament of a sovereign state. They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future. All of them were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom. As to their subject-matter, the peoples for whom new constitutions were being provided were already living under a system of public law in which the local institutions through which governments was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new constitutions, particularly in the case of unitary states, were evolutionary not revolutionary. They provided for continuity of government through successor institutions, legislative, executive and judicial, of which the members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced."

Whilst some people in Fiji might disagree with some of the things Lord Diplock said in this passage there can be little dispute among lawyers about the first two sentences in this passage. Then at p.360 letter (g) His Lordship said this:

"The more recent constitutions on the Westminster model, unlike their earlier prototypes, include a chapter dealing with fundamental rights and freedoms. The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the constitution for this purpose, impose a fetter on the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers."

I consider this passage most relevant to the instant case for reasons I shall state later. Counsel for the Plaintiff has referred me to a number of Canadian authorities which I have found helpful in that the Canadian Constitution like that of Fiji contains a Charter of Rights and Freedoms. The decisions themselves add very little to what the Privy Council has said in the cases I have mentioned but it is useful to quote from some of these decisions. The first, Hunter v. Southam Inc 14 C.C.C. where Dickson J. (as he then was) delivering the judgment of the Court said at p.105:

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like a last will and testament lest it become one"."

In Regina v. Therens 18 D.L.R. (4th) 655 at p.675 speaking of the Canadian Charter of Rights and Freedoms Le Dain J. said:

"It is also clear that the Charter must be regarded, because of its constitutional character, as a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection."

I have quoted from these authorities at some length so as to emphasise the different factors which apply to the interpretation of a constitution as distinct from ordinary legislation.

I come now to the State Proceedings Act on which the Attorney-General relies in opposing the Plaintiff's claim to have a right of action against the State represented by the Attorney-General. It is submitted that Section 3(5) of the State Proceedings Act is not inconsistent with either Section 6(1)(6) or 16(3)(c) of the 1990 Constitution and that it operates without effect on these provisions and the Constitution. The argument runs thus:

The Plaintiff was detained by an order of a Court. Section 15(3)(c) of the Constitution permits such detention and therefore the Plaintiff's detention was not unlawful under Section 6(6) of the Constitution and was further authorised by law under Section 6(1) of the Constitution. It is then submitted that the protection of the right to personal liberty in Section 6 of the Constitution and the protection of freedom of movement given by Section 15 of the Constitution are not absolute. They are subject to limitations and qualifications as contained within those provisions. I was referred to the decisions of Scott J. in Feeders (Fiji) Limited v. The Attorney-General Civil Action No. 340 of 1991, judgment 2nd November 1993 in which His Lordship supported the views of Ashton-Lewis J. in Sakeasi Butadroka v. The Attorney-General C.A. 208/93 and held that the Fundamental Freedoms set out in the 1990 Constitution are not absolute but are "tempered generally" not only by the qualifying clauses contained within Chapter 2 itself but also by other qualifications contained in other Chapters of the Constitution including Chapter XIV.

Whilst I am prepared to accept the comments of my brother Judges as a statement of general principle I must remind myself that Ashton-Lewis J. was dealing with the internal proceedings of the Parliament and Fundamental Freedoms only and Scott J. was dealing with the immunity of the State from civil suit as a result of actions taken by the Fiji Military Forces during the coups of 1987. Both cases are therefore distinguishable from the instant on their facts.

Apart from the earlier cases I have mentioned dealing with the interpretation of Westminster-type Constitutions the Plaintiff relies heavily on another decision of the Privy Council, Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) (1979) A.C. 385. In that case a particularly strong Board of the Privy Council consisting of Lord Diplock, Lord Hailsham of St. Marylebone, Lord Salmon, Lord Russell of Killowen and Lord Keith of Kinkel had to consider an appeal from the Court of Appeal in Trinidad and Tobago involving the interpretation of Section 6 of the Constitution of Trinidad and Tobago which, so far as relevant, is generally identical with Section 19 (1) and (2) of the Fiji Constitution.

The Appellant Maharaj was a barrister who had been imprisoned for contempt by a judge. He eventually appealed to the Privy Council which by majority held that he had a public law right for compensation against the Government of Trinidad and Tobago under Section 6 of that country's Constitution. Once again the judgment of the Board was delivered by Lord Diplock but on this occasion there was a strong dissenting opinion delivered by Lord Hailsham.

The majority of the Privy Council granted the appeal because they said that the Appellant had been denied natural justice since he had not been given an opportunity by the trial judge to answer the charge against him. Thus there had been a contravention of the Appellant's rights under the Constitution by depriving him of his liberty without due process of law to which he was entitled to redress under Section 6 of the Constitution.

There is a striking similarity between Section 6(1) and (3) of the Trinidad and Tobago Constitution and that of Section 19(1) and (3) of the Fiji Constitution. I have previously quoted Sub-sections (1) and (2) of Section 19. It is desirable here also to quote Sub-section (3):

"If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of this Chapter, the person presiding in that court may, and shall, if any party to the proceedings so requests, refer the question to the High Court unless, in his judgment, which shall be final, the raising of the question is merely frivolous or vexatious."

For the purposes of comparison Section 6(1) and (3) of the Trinidad and Tobago Constitution is as follows:

"6(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section of this Constitution has been, is being, or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

(3) If in any proceedings in any court other than the High Court or the Court of Appeal any question arises as to the contravention of any of the provisions of the said foregoing sections or section the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless in his opinion the raising of the question is merely frivolous or vexatious."

The majority of the Privy Council held:

"That Section 6 of the Trinidad Constitution was intended to create a new remedy for the contravention of constitutional rights without reference to existing remedies; that the word "redress" in its context bore its ordinary meaning of reparation or compensation, including monetary compensation; and that although the claim was not a claim in private law for damages for tort, but was a claim in public law for compensation, that compensation should be measured in terms of the deprivation of liberty, including consequential loss of earnings and recompense for the inconvenience and distress suffered during detention."

At p.398 Lord Diplock stated that the right to "apply to the High court for redress" conferred by Section 6(1) was expressed to be "without prejudice to any other action with respect to the same matter which is lawfully available" and continued, "The clear intention is to create a new remedy whether there was already some other existing remedy or not". He therefore held that the Appellant's rights were not based on any vicarious liability in the State to pay him compensation but rather on a new remedy available under public law.

He also said at p.399 that under the Trinidad Constitution the fundamental human right is not to a legal system that is infallible but to one that is fair. He added that only if the Appellant could establish an error amounting to a failure to observe one of the fundamental rules of natural justice could he recover against the State. In the view of the majority this could only occur very rarely.

Counsel for the Defendant naturally relies on the dissenting opinion of Lord Hailsham who remarked that the decision of the majority drew a distinction between a mere judicial error and deprivation of due process and that the former would not, and the latter would attract a right of compensation, even though in each case the consequences were as grave. He then stated at p.410:

"But I doubt whether the distinction, important as it may be intellectually, would be of much comfort to those convicted as a result of judicial error as distinct from deprivation of due process or would be understood as reasonable by many members of the public, when it was discovered that the victim was entitled to no compensation, as distinct from the victim of a contravention of section 1 of the Constitution who would be fully compensated."

Earlier at p.407 he had stated that he found it surprising that a section giving a totally new cause of action against the state should begin with the somewhat anodyne expression "for the removal of doubts it is hereby declared".

I remark here that Section 19 of the Fiji Constitution does not begin with the prefatory words of Section 6 of the Trinidad Constitution. Furthermore it is to be noted that Lord Hailsham accepts the validity of the distinction between judicial error and a deprivation of due process and concedes that it may be important intellectually.

Bearing in mind the liberal interpretation which the authorities show should be given to a Constitution like that of Fiji I am of the opinion that the majority judgment of the Privy Council is to be preferred to that of Lord Hailsham.

During argument I suggested to counsel for the Plaintiff that a distinction could be drawn between the deprivation of rights suffered by Mr. Maharaj in Trinidad and those suffered by the Plaintiff in this case but counsel replied that by clear implication the Plaintiff here had been denied natural justice just as much if not more than the Appellant Maharaj. I agree. His time for appealing against the decision to imprison him for an extra six months had long since expired. Section 310(1) of the Criminal Code requires an appeal to be presented to the Magistrate's Court within twenty-eight days of the date of the decision appealed against although either the Magistrate's Court or the High Court may at any time, for good cause, enlarge the limitation period.

In any event what would the Plaintiff have achieved even if his appeal had been successful, as I feel confident in believing it would have been? If he had appealed within the twenty-eight days or shortly afterwards one would have expected him to have been released from prison soon after judgment in his appeal had been given. The question then would arise whether he was entitled to any compensation? Counsel for the Attorney-General argued that at best all the Plaintiff would be entitled to in those circumstances would be an ex-gratia payment from the State which, hopefully, would compensate him. But suppose for the sake of argument when the Plaintiff's application for compensation came before the Attorney-General, the Attorney-General was not in a bounteous mood? Suppose that the Attorney-General, of course with the approval of his cabinet, offered the Plaintiff a sum of money which the Plaintiff considered was unreasonable? Would the Plaintiff in those circumstances either have to reject the offer as being in his view unreasonable, or, with as much grace as he could muster, grudgingly accept the offer and retire figuratively licking his wounds?

I think not. If the Constitution of Fiji is at such pains to state the rights and freedoms of the individual including in Section 6(1) his right to personal liberty and freedom from unlawful arrest or detention, I cannot bring myself to believe that the Plaintiff has no right in law to recover compensation from the State. Nor do I believe that his right is only that of receiving ex-gratia compensation from the State.

Having served the original term of imprisonment imposed on him, on the day that term expired the Plaintiff had as a matter of law purged any debt he owed then to society. That he should then be obliged to suffer an additional punishment which I have every reason to believe was never the intention of the Magistrate who imposed it I fail to see why the Plaintiff should be deprived of redress under Section 19(1) of the Constitution.

Subject therefore only to the remaining question whether Section 3(5) of the State Proceedings Act bars any action by the Plaintiff against the State, in my judgment the Plaintiff has a right of action for damages.

The Plaintiff submits that Section 3(5) is ultra vires the Sections of the Constitution referred to previously. In my judgment in so far as Section 3(5) may refer to any public law liability in the State I would hold that it is unconstitutional although it seems open to the construction that it deals only with vicarious liability and private law rights.

For these reasons I hold that the Plaintiff has a cause of action against the State for damages to be assessed. I rule accordingly and order that the costs of these proceedings be in the cause.

JOHN E. BYRNE
JUDGE

Authorities and legislation referred to in judgment:

(1) Criminal Procedure Code, Sections 308, 310.
(2) Magistrates' Courts Act, Cap. 14, Section 65.
(3) Prisons Act, Cap. 86, Section 25.
(4) Henderson v. Preston [1888] UKLawRpKQB 148; (1888) 21 Q.B.D. 362.
(5) Morris v. Winter (1930) 1 K.B. 243.
(6) Constitution of Fiji Chapter 1, Section 2 and Chapter 2, Sections 6(1), (2), (3)(c), 15((3)(c), 19(1).
(7) State Proceedings Act Cap. 24, Section 3(5).
(8) Attorney-General for New South Wales v. Brewery Employees Union of New South Wales [1908] HCA 94; (1908) 6 C.L.R. 469.
(9) Edwards v. Attorney-General for Canada [1929] UKPC 86; (1930) A.C. 124.
(10) Minister of Home Affairs v. Fisher [1979] UKPC 21; (1979) 3 All E.R. 21.
(11) Hinds v. The Queen (1976) 1 All E.R. 353.
(12) Hunter v. Southam Inc. 14 C.C.C.
(13) Regina v. Therens 18 D.L.R. (4th) 655.
(14) Feeders (Fiji) Limited v. The Attorney-General Civil Appeal No. 340 of 1991.
(15) Sakeasi Butadroka v. The Attorney-General C.A. 208/93.
(16) Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) (1979) A.C. 385.

Additional authorities referred to in argument:

(1) Graham v. Attorney-General (1990) LRC 384.
(2) Heyden's case (1584).
(3) Attorney-General for Trinidad and Tobago v. McLeod (1984) 1 All E.R. 694.
(4) Butler v. R. (1939) 3 All E.R. 148.
(5) British Coal Corporation v. The King (1935) A.C. 500.
(6) Attorney-General for Ontario v. Attorney-General for Canada (1947) A.C. 127
(7) Liversidge v. Anderson [1941] UKHL 1; 1942 A.C. 206.
(8) Bates v. Lord Helsham of St. Marylebone (1972) 1 W.L.R. 1373.
(9) Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40.
(10) Westcoast Hotel Co. v. Parrish [1937] USSC 73; 300 U.S. 379 (1937).
(11) Stone v. R. (1939) 3 All E.R. 148.
(12) Brij Lal v. R. Criminal App. No. 91/83.
(13) M. v. Home Office [1993] UKHL 5; (1993) 3 W.L.R. 433.
(14) Ram Prasad Gosai v. Nadi Drainage Board No. 86 of 1979.
(15) Sundarjee Brothers Ltd. v. Geoffery John Coulter F.C.A. Civ. App. 65/86.
(16) LSUC v. Skapenjer 9 D.L.R. (4th) 161.
(17) Miller v. T.C.N. Channel Nine Pty Ltd. 161 CLR (1986) 556.
(18) Australian Capital Television Pty Ltd. v. The Commonwealth [1992] HCA 45; 177 CLR 106.
(19) Nationwide News Pty Ltd. v. Wills [1992] HCA 46; 177 CLR 1.
(20) Wati v. A. Hussain & Co. Ltd. & Another C.A. No. 275 (1985).
(21) Edward Shiu Narayan v. Commissioner of Prisons and Attorney-General Civil Action 812/82.
(22) The Role of a Final Appeal Court in the Democracy: The House of Lords Today: 28 Mod. L. Rev. 509 (1965).

HBC0017D.93S