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Sukul v Attorney General of Fiji [2002] FJHC 280; HBC296.1996 (28 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 296 OF 1996

BETWEEN:

SALENDRA NATH SUKUL (f/n Tota Ram Singh)
of Muslim League Estate, Samabula, Suva in Fiji
Plaintiff

AND:

THE ATTORNEY-GENERAL OF FIJI
First Defendant

AND:

COMMISSIONER OF POLICE
Second Defendant

AND:

PRADEEP SINGH (f/n not known to the
Plaintiff)
Third Defendant

Ms Prem Narayan and H.K. Nagin for the Plaintiff
S. Kumar for the Defendants

Dates of Hearing andSubmissions: 10th, 12th, 13th April, 4th, 5th, 6th December 2000, 13th, 14^th, August, 11th September and 24th October 2001

Date of Judgment: 28th February 2002

JUDGMENT

In this action the Plaintiff claims damages both general and exemplary for injuries which he claims he received on the night of the 30th of August 1995 when he was forcibly removed from his home at the Fiji Muslim League property at Samabula and assaulted by two Police Officers, one of whom is the Third Defendant.

The Writ was issued on the 25th of June 1996. The Statement of Claim alleges that the Plaintiff is a mechanic, at the time of the Writ was issued being aged 33 and at the time trial began on the 10th of April 2000 37 years.

Paragraph 4 of the Statement of Claim reads as follows:

"At the Samabula Police Station the Third Defendant deliberately and unlawfully cut the Plaintiff’s tongue with a penknife."

Before the trial began on the 10th of April 2000 I allowed the Plaintiff to amend this paragraph to read:

"On the way to the Samabula Police Station the Third Defendant deliberately and unlawfully cut the Plaintiff’s tongue with a penknife."

On the last day of the trial on the 14th of August 2001 while the Defendants were still giving evidence and when the hearing resumed I refused the Plaintiff leave to make a further amendment to paragraph 4 proposing to delete all the words after "deliberately" with a view to substituting the following:

"caused an injury to the Plaintiff’s tongue."

The reasons why the Plaintiff requested these amendments to paragraph 4 will be apparent later. The reason why I refused the last amendment was because it had come well after the close of the Plaintiff’s case and on the last day of the hearing. I now summarise the evidence of the parties.

The Plaintiff stated that late in the afternoon of the 30th of August 1995 he attended a farewell party for a friend who was migrating overseas from Fiji. The Plaintiff drank approximately three stubbies of beer. He then walked up a track to his house and passed the house of his uncle, Baswa Nand whose dog started barking. The Plaintiff picked up a stick on the path and began shouting and swearing at the dog. He then went into his house where he had some dinner and then went to sleep. At approximately 9.00 p.m. he said he got a shock. A Policeman pulled him out of his bed and asked him "What did you damage at Baswa’s place?" The Plaintiff replied, "Nothing". He then said that the Policeman hit him after he pulled him out of the bed and again on the porch of his house. He dragged the Plaintiff half way to the porch and the Plaintiff walked the remainder.

He said two Police Officers came into his bedroom. They hit him with their fists in the back on the right shoulder and in the back itself. The Police told him they were going to take him to the Samabula Police Station. His wife gave him a shirt which he put on over his shorts. He identified the Third Defendant as one of the Police. After they had walked half way to the Police Station the Police put him into a van which was parked on Ratu Mara Road. On the way they beat him again. The Plaintiff said that the Third Defendant hit him for approximately two minutes outside Baswa Nand’s house. They also kicked him.

After they placed him in the van which he said was parked under a mango tree the Third Defendant said to him, "Today I’ll fix you up. You have been a headache to my friend," meaning Baswa. At this point the Third Defendant went back to Baswa Nand’s house and returned to the van about eight minutes later bringing with him the items which he said the Plaintiff had damaged, namely a bucket and a cooking pot. This time Baswa Nand was with him. The van drove off until near an Ice Cream Factory when the Plaintiff said Baswa swore at him obscenely in Hindi. The Third Defendant also used an obscene term "mother fucker" about the Plaintiff’s mother. The Plaintiff replied in kind.

At this stage the Third Defendant became angry and told the driver to stop the van behind a bus stop. He then said to him, "I’m going to fix you up".

The driver then got out and came to the back of the van where the Plaintiff was sitting. He said the Third Defendant then told the driver to hold him and said, I’m going to cut off his tongue". The driver then held the Plaintiff’s hands from the side and Baswa held his leg. The Third Defendant then gripped the Plaintiff’s neck and put his knee on his stomach. The Plaintiff shouted out loudly. The Third Defendant then pressed the Plaintiff’s neck forcing his tongue out. Pradeep Singh had a knife in his right hand which the Plaintiff saw when he tried to free himself.

While his tongue was hanging out he was hit by something and says that the Third Defendant cut his tongue with a penknife which caused him to cry out in pain. The Plaintiff said his tongue was hanging out bleeding and all his shirt was blood-stained. They then arrived at the Police Station where the Plaintiff saw his uncle Baswa give some money to the Police. He said "I’ll give you the remainder later".

The Police then locked the Plaintiff in a cell. Blood was till coming from his tongue and he was swallowing blood. The Plaintiff asked the Police to take him to the hospital but they refused until early the following morning. The Plaintiff said he had been left in the cell from 10.30 p.m. until 2.00 a.m.

The Plaintiff said the Police ordered him to tell the doctor that the Plaintiff had fallen down and injured himself.

He was seen by a doctor at the hospital. He told the doctor a Police Officer had beaten him up. The doctor then stitched his tongue after which the Plaintiff and the Police then returned to the Police Station.

Later that morning the Plaintiff was charged with damaging property and released from custody. The Plaintiff went straight to the Office of the Ombudsman and made a complaint about the treatment by the Police. He later consulted a private doctor who treated him.

The Plaintiff then showed the Court a scar approximately 2½ centimetres long across the lower third of his tongue.

In cross-examination the Plaintiff denied he was drunk at the relevant time. He said that he had gone bare-foot to the Police van although Police evidence later was that he was wearing scuffs. He said that the track to the main road was fairly dark, lit only by a little moonlight.

He said that he did not get on well with Baswa Nand and that day was drizzling rain when they walked down the track to the Police van. He denied slipping or falling on the track. He also denied telling the doctor at the hospital that a Police Officer had punched him although the doctor had stated this in his report. He later agreed that at the time he was under the influence of alcohol. He had had much beer and his breath was smelling. He was asked at what exact place his tongue was cut and he said on the driveway that led to Arya Samaj School. There was a bus shelter there at the time.

The Plaintiff said that Pradeep Singh had a shining penknife about two inches long in his hand with which he cut his tongue from the left side of his mouth. Here the Plaintiff demonstrated the way his tongue was cut.

The Plaintiff’s wife then gave evidence. She said that when the Police arrived at their house they said "Open the door or we’ll break it down". She saw a Policeman punch her husband and drag him outside the house. They then beat and kicked him again on his lower back. She wanted to come with her husband but the Police told her to go home which she did. She saw him the next morning about 11.30 a.m. when he was in a very bad condition. He could not speak and when he tried to, blood came out of his mouth. She had to feed him for about a month as one would feed a small baby by spoon. She also said that her husband was bare-footed when he was taken from the house. She said she was too frightened to complain to the Police about the way they were assaulting her husband.

The next witness for the Plaintiff was Marika Siliwala a casual labourer who resided at the Muslim League Estate in Samabula. On the night of the 30th of August 1995 as he was walking to his house he saw the Plaintiff with some Police Officers. He asked the Plaintiff was there anything wrong? The Plaintiff replied that they were taking him to the Police Station. He said the Plaintiff was wearing trousers and a shirt but the witness could not see any sign of injuries to the Plaintiff’s body or mouth but he seemed frightened. He said he was walking freely to the van without anybody holding him. He told me that the first time he was asked to give evidence since the 30th of August 1995 was in the week before the trial.

The next witness for the Plaintiff was Doctor Mynit Maw who on the 30th of August 1995 was on duty in the Accident and Emergency Department of the Colonial War Memorial Hospital. He said that he examined the Plaintiff at the hospital at about 12.30 a.m. on the 31st of August 1995 and observed the Plaintiff had an injury on his tongue, left cheek and right arm. He said he had been punched by Police Officers at about 11.00 p.m. the previous night. This was the first thing the Plaintiff told him. He had a lacerated wound on his tongue, that is a wound whose edges were not clear cut. It was a fresh wound and was bleeding slowly. He then said that the Plaintiff had actually two wounds one on the upper surface and the other on the lower surface of the tongue. He repaired both with a sutury needle. The Plaintiff was not in shock but had some blood stains on his clothes. He diagnosed the Plaintiff as having suffered a blunt injury, that is caused by a blunt object applied to a hard surface. It was not caused by a sharp-edged weapon. He said the Plaintiff was under the influence of alcohol.

The next witness called by the Plaintiff was Dr. John Charles Fatiaki who examined the Plaintiff for the purpose of giving evidence on the 15th and 29th of November 2000. He said the Plaintiff had a healed scar going right through his tongue in an area corresponding to the original injury and about two centimetres long. There was no restriction of any movement nor did the scar tissue hold down the tongue and restrict speech. In Doctor Fatiaki’s opinion the original injury appeared to have been caused by a sharp instrument. He said that the injury could have been self-inflicted or inflicted by someone else. The first hypothesis would be entirely unlikely in a normal sane individual as the tongue is a particularly sensitive organ. He then said that he believed the Plaintiff’s injury had been caused by a sharp object, namely the Plaintiff’s teeth. He said that if the Plaintiff had been hit on the tongue by a sharp or blunt object one would expect to see contusions. He said the tongue is soft and so one would expect to see bruising and a crush-type injury rather than a laceration transversely through both sides of the tongue.

In cross-examination he said that if a person’s neck was pushed back a person would involuntarily push his tongue out to enable him to breathe. This would be a normal reflex action. He said the over-riding thing was a hand on the neck which caused the Plaintiff to struggle for breath and his tongue would remain out.

The Plaintiff’s case closed at this point after which the Defendants made a no case submission which I rejected in a Ruling given on the 6th of December 2000. I held that the way in which it then appeared the Plaintiff’s injury to his tongue was caused was simply a variation, modification or development of what had been pleaded and was nothing separate and distinct so as to constitute such a radical departure from the case as pleaded as to dismiss the Plaintiff’s claim at that stage. I did not put the Defendants to their election not to call evidence if I rejected their submission, considering the question to be discretionary.

The trial resumed on the 13th of August 2001. Mr. Kumar in a very brief opening of the defence case said that the defence would call evidence to show that the Plaintiff injured himself somehow or other on the 30th of August.

The first witness for the defence was the Third Defendant who said that the Plaintiff’s claim was pure invention and he denied ever cutting the Plaintiff’s tongue with a knife. He said that accompanied by two other Constables he went to the Plaintiff’s house after Baswa Nand had run into the Samabula Police Station breathing heavily. He seemed to be very frightened. He told Constable Singh that a drunken man had entered his house and was damaging property. He then went with the three Policemen to Baswa Nand’s house along the track previously mentioned. He said this was quite slippery due to rain. It was made of soapstone and soil. When they arrived at the Plaintiff’s house the Plaintiff’s wife initially refused to let them in but later did so.

The Plaintiff then came out from the bedroom without a shirt and asked his wife to give a pair of ‘flip-flops’ which the Plaintiff then put on. He smelt heavily of liquor and was staggering. It was difficult for the Plaintiff’s wife to wake him.

They proceeded down the same track. The Plaintiff’s unstable condition made it hard for him to go down the path; even the Police Officers had difficulty. The Plaintiff fell a few times. There was no light on the track and the Police had no torches. He fell at least three times and rolled down a few times. Constable Singh denied punching the Plaintiff. He did not see any injuries on him because it was dark. He denied cutting the Plaintiff’s tongue and said he did not have a penknife with him because Police do not carry these. They eventually drove in the van to the Police Station and in the light there Constable Singh saw a blood stain on the Plaintiff’s shirt. Singh asked him what had happened and the Plaintiff replied that he had cut his tongue when he fell coming down the track.

The Duty Officer also asked him how he had received the injury and he repeated that it had happened when he fell. The Police later took the Plaintiff to the Colonial War Memorial Hospital and the next day charged him with damaging property and bailed him.

Later the Police Commissioner directed an investigation into allegations made in the Daily Post newspaper by the Plaintiff about ill-treatment by the Police and particularly that the Police had cut his tongue. The investigating officer found there was insufficient evidence to lay charges against Constable Singh. Constable Singh said the reason why the Police took the Plaintiff to the Police Station was first for his own safety and secondly because Constable Singh feared the Plaintiff might commit further damage after he became sober or even while he was intoxicated.

Baswa Nand then gave evidence which generally corroborated that of Constable Singh. He denied giving Singh any money and said that he did not possess a penknife. He said he heard the Plaintiff shouting at his dog and using an obscenity. He said there was bad blood between himself and the Plaintiff. He described him as a trouble-maker.

When the trial resumed on the 14th of August counsel for the Plaintiff applied to amend paragraph 4 of the Statement of Claim in the manner I have indicated at the beginning of this Judgment. I refused the application considering that it was made too late.

The next witness for the defence was Isari Prasad, a Bailiff who had been living at the Muslim League Estate for 38 years. When he heard the Plaintiff shouting he saw two Policemen and Baswa Nand going up the hill towards Baswa’s house. Later he saw them bringing the Plaintiff down the track towards the main road and saw the Plaintiff fall down 4 to 5 times. He said that the Plaintiff fell on the steps which had ben cut into the soapstone and the roots of a breadfruit tree on the path. The steps were both blunt and sharp.

The fourth witness for the defence was Detective Constable Samuela Seru who was working the afternoon shift from 3.00 p.m. to 11.00 p.m. at the Samabula Police Station on the 30th of August. He remembered the Plaintiff being brought into the Police Station by the Third Defendant. He was under the influence of liquor and was wearing a blood-stained shirt which was unbuttoned. The Plaintiff said that he had received his injuries while being brought to the Police Station by Constable Singh.

The next witness for the defence was a former Police Officer Livai Vuli who said that he was an Assistant Superintendent and was in-charge of the Samabula Police Station on the 30th of August. He finished his shift but the next morning arrived between 7.00 a.m. and 8.00 a.m. He saw the Plaintiff standing in a cell staring at him. He ascertained that the Plaintiff had been put into the cell the previous night because he was a little drunk but had made no complaint about ill-treatment.

The last witness called by the defence was Ambika Prasad a retired Police Officer now living at Sigatoka. In 1995 he was attached to the Internal Affairs Department of the Police Force in Suva. In August 1995 the Department received a complaint from the Plaintiff that a Police Officer had cut his tongue with a penknife. Mr. Prasad was assigned to investigate the complaint.

Mr. Prasad spoke to the complainant and saw a rough cut which had been stitched on his tongue. He gave the Plaintiff a form to complete so that the investigation could proceed. The Plaintiff returned the form on the 5th of September the day on which the Daily Post newspaper had carried a report about the Plaintiff’s allegations. He inspected the track and then called at the Plaintiff’s home. He asked the Plaintiff to accompany him to Ratu Sukuna House where he would question him. On the way he showed Mr. Prasad where he said a Policeman had cut his tongue. This was between a bus shelter and the wall cut from the hill. He said that the Police had laid him flat on the ground, someone had stepped on his knees and a Policeman had cut his tongue with a penknife. In cross-examination he said that he could not find any evidence to support the Plaintiff’s claim that his tongue had been cut in a Police vehicle. He said it was in the bus shelter and not in a vehicle.

I was impressed by this witness.

Conclusion:

The onus is always on a Plaintiff to prove his case on a balance of probabilities. In my judgment there are too many inconsistencies in the Plaintiff’s evidence. At the beginning he was adamant that his tongue had been cut by a Policeman using a penknife. As the evidence emerged the Plaintiff amended his Statement of Claim in the way mentioned at the beginning of this Judgment and later tried to amend it again towards the end of the defence case. I am left in sufficient doubt as to how the Plaintiff’s tongue was cut so as not to be satisfied that the Plaintiff has proved his case on a balance of probabilities. In my view the evidence of the last witness for the defence, Ambika Prasad is sufficient to dispose of the Plaintiff’s claim. I sympathise with Mr. Nagin who came into the case after the Plaintiff’s counsel Ms Narayan had resigned from the office of Sherani & Co. In a brief submission of the 23rd of October 2001 Mr. Nagin says that whether the Plaintiff’s tongue was cut with a penknife or some other way it was due to the actions of the Police while the Plaintiff was in their custody. I accept that but that does not prove that the injury was caused deliberately by the Police. To succeed on liability the Plaintiff has to satisfy the Court that his injury was caused by the deliberate action of the Police while he was in their custody. On the evidence I consider it open to find that the injury was caused when the Plaintiff fell on the track going down to the main road and in one or more of these falls bit his own tongue. The result is that I dismiss the Plaintiff’s claim and order him to pay the Defendants’ costs which are to be taxed if not agreed.

JOHN E. BYRNE
JUDGE