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Wehrenberg v Commissioner of Police [2005] FJHC 660; HBC0223.2003L (13 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0223 OF 2003L

BETWEEN:

FRED WEHRENBERG and WALBURGA WEHRENBERG
Plaintiffs

AND:

COMMISSIONER OF POLICE
1st Defendant

AND:

ATTORNEY GENERAL & MINISTER FOR JUSTICE
2nd Defendant

Plaintiffs in Person
Counsel for the 1st & 2nd Defendants: Ms. A. Ali
Mr. U. Ratubuli for the Human Rights Commission: As Amicus Curiae

Date of Hearing: 12 April 2005
Date of Judgment: 13 May 2005

INTERIM JUDGMENT

The 1^st plaintiff, Fred Wehrenberg, commenced proceeds in this matter by Notice of Motion filed on the 1^st July 2003. When that Notice of Motion came before Byrne J. on the 17^th October 2003, he amended it to be an Originating Summons.

The Originating Summons seeks declaration and orders.

By a Notice of Motion filed on the 3^rd November 2004, the plaintiff sought to add his wife, Walburga Wehrenberg as a plaintiff. The court made orders in accordance with the terms of this Motion on the 5^th November 2004. These orders were made by consent.

The Proceedings Commissioner of the Human Rights Commission appeared as amicus at the hearing of the Summons.

The plaintiffs rely upon an affidavit sworn by Fred Wehrenberg and filed on the 1^st July 2003 together with the further affidavit sworn by Fred Wehrenberg on the 21^st November 2003.

The defendants rely on an affidavit of Detective Sergeant Sekaia Suluka sworn on the 5^th November 2003.

The declarations now sought by the plaintiffs are:

1. A declaration that the 1^st defendant and his senior officers have engaged in unfair discrimination by denying the plaintiff equal protection under section 38 of the 1997 Constitution.
   
2. A declaration that the 1^st defendant and his senior officers breached paragraph 1 – 3 of the Agreement reached in Reconciliation Meeting on the 26^th March 2002 between him, the plaintiff, and the Fiji Human Rights Commission.
   
3. An order for damages for distress, anguish and pain, loss of the pleasures of amenities of life, time and finances.
   

The proceedings have been pursued by the plaintiffs with the approval of the Human Rights Proceedings Commissioner pursuant to section 36(4) of the Human Rights Commission Act 1999.

The plaintiffs are New Zealand nationals, who prior to the 14^th July 2005 were permanent residents on Nananu-i-Ra for about 16 years.

The plaintiffs from about 1997 have been reporting to the police and other relevant government authorities the activities of various landowners on Nananu-i-Ra using their residential properties for commercial purposes.

The complaints by the plaintiffs resulted in them being the victims of numerous attacks of various kinds allegedly at the hand of or at the instigation of the owners of the residential properties allegedly being illegally operated for commercial purposes.

It would appear from the material annexed to the affidavits that the Central Board of Health and other departments considered the allegations of the illegal operators seriously. It also appears from the material annexed to the affidavits that the police did not treat the matter with the same seriousness. The investigations carried out appear to have ignored material of a public nature such as Internet advertisements and advertisements in Air Pacific publications. Various occupants of the houses appear to have been interviewed at certain times however Mr. Wehrenberg’s evidence is that there had been tip-offs prior to these interviews taking place.

This apparently unsatisfactory investigative process appears again to be highlighted with respect to the investigation of the alleged arson attack on the plaintiffs’ home. Detective Sergeant Sekaia Suluka annexes to his affidavit (SS-3) a memorandum dated 29 July 2002 from the Office of the Director of Public Prosecutions to the Director, Criminal Investigations Department. This memorandum concludes that upon the investigation and the material resulting from it, there is insufficient evidence to amount to a prima facie case against Jone Nasemila. It is significant that Detective Sekaia Suluka fails to attach to his affidavit a letter from the Director of Public Prosecutions dated 16 August 2002 to Divisional Crime Officer (Western) attention ASP Ravi Narayan. This letter says in part, that Assistant Commissioners Bulamainaivalu and Driver had both recommended a further investigation into the attack.

No reply was forthcoming on behalf of the defendants with respect to this further letter, which is annexed to the 1^st plaintiff’s affidavit.

The situation between the plaintiffs and the other residents of Nananu-i-Ra was significantly exacerbated by police officers disseminating incorrect advice as to the plaintiffs’ title boundary. This incorrect advice was furnished notwithstanding information from the Department of Lands & Survey. It is not part of the role of a police officer to advise the community with respect to issues such as the boundaries of a landowner’s title or the rights that might be associated with a public reserve. The giving of this advice resulted in signs placed by the plaintiffs, to avoid conflict, being removed. It is clear that these actions by the police severely prejudiced the plaintiffs. Again, the situation was not assisted by the refusal of the relevant officers to execute the agreement reached in the meeting facilitated by the Human Rights Commission.

The Commission drafted a settlement agreement which the Fiji Police Force refused to execute notwithstanding that it reflected the agreement reached at the conciliation meeting held on the 26^th March 2002.

There can be no doubt that the plaintiffs were seen by the relevant police officers as a menace and an annoyance. They made a very large number of complaints to the Rakiraki Police Station. These complaints were of a minor nature in part but on another occasions were of a serious nature including assaults to both plaintiffs and damage to their property. Annexure SS-1 to the affidavit filed on behalf of the defendants highlights the way in which the complaints were treated. The majority of the complaints bear a notation under the heading classification of “Trivial”. Without attempting to repeat the contents of Annexure SS-1, the complaints treated as trivial include a complaint of the 28^th December 1994, that one John Macredie threatened his wife with a knife. The classification of this report is “trivial”. “Report attended. Suspect is of unsound mind. Suspect warned as both staying together.” Even if, the complaints were in part trivial, that does not absolve members of the Police Force from the obligations cast upon them under the Police Act (Cap. 85) and the Constitution of the Fiji Islands. One cannot help wondering what the result would have been if some of the earlier complaints had been treated in a proper manner and if, police officers, had refrained from giving advice as to title boundaries and the like.

Annexure 201 to the affidavit of Fred Wehrenberg of the 21^st November 2003 is not answered by the defendants. I am therefore left to conclude that the complaints set out in that annexure after the 4^th December 2002 are acknowledged as being correct.

As I have said earlier, the defendants did not bother to answer any of the material contained in Fred Wehrenberg’s affidavit of the 21^st November 2003 and I am therefore obliged to conclude that the defendants accept what is therein set forth.

Whilst a complete analysis of all the allegations made by the plaintiffs and the responses by the Rakiraki Police could be carried out. It seems that little would be served by such an analysis as it is clear from the affidavits that the police officers have treated the plaintiffs with contempt. As is stated earlier, the plaintiffs would have been most annoying members of the public but the police are not entitled to discriminate against annoying people nor are they entitled to take the law into their own hands and given incorrect advice to members of the community.

The material before the court leads to the conclusion that police offices have discriminated against the plaintiffs and that the consequences of this discrimination has made life very difficult for the plaintiffs to the point where they have sold their property on Nananu-I-Ra. Similarly, it is apparent from the material filed that police officers have breached the agreement reached at the conciliation meeting on the 26^th March 2002. The attitude of the police officers is highlighted by their refusal to execute it.

No order that the court makes can adequately compensate the plaintiffs for the loss they have suffered. Some of that loss is quite obviously due to their susceptibility to be seen as victims and as a result of their desire to be informers and complainants.

In the exercise of the court’s discretion, I propose not to make the declarations and orders sought at this time. There is a need for this litigation to be brought to an end nd there is a need for the plaintiffs to be appropriately compensated for the humiliation they have suffered due to the manner in which they have been treated by members of the police force and in particular those stationed at Rakiraki. I propose therefore that the defendants make a public apology to the plaintiffs highlighting the incorrect advice that was given and the failure to investigate complaints by the plaintiffs from time to time over the years. The content of the apology and the manner of its publication are to be approved by the court. A draft apology and proposal for publication are to be filed within 28 days.

Whilst the plaintiffs have conducted this litigation on their own, costs have been incurred by them and whilst I have declined to make the declarations and orders sought at this time, I consider it appropriate the defendants pay the plaintiffs’ costs, which I assess in the sum of Four Thousand Dollars ($4,000.00). This award is made pursuant to Order 62 Rule 11 of the High Court Rules. The costs are to be paid within 28 days.

The matter is adjourned to 9.00am on 17 June 2005 to monitor compliance by the defendants and to determine such further orders, if any, as are necessary.

JOHN CONNORS
JUDGE

At Lautoka
13 May 2005