IN THE HIGH COURT OF FIJI AT SUVA
APPELLANT JURISDICTION

Action No. HBA 8 of 2008
(Magistrates Court: No.155 of 2005)

BETWEEN:

“THE COMMISSIONER OF POLICE, FIJI POLICE FORCE”
(Names suppressed by Court Order)
Appellants

AND:

“A MOTHER AND HER CHILD”
(Names suppressed by Court Order)
Respondent

Coram: 	Hickie, J

Dates of Hearing: 	13 August 2008

Counsel:	Mr S Raramasi for the Appellants
Mr Ronald Singh the Respondent

Date of Decision: 	27 August 2008

JUDGMENT

A. BACKGROUND

[1]	This is a story about a young mother and her four year old child on a family day out in spring 2003 that they will never forget for the rest of their lives. The day began with the two of them enjoying the Public Service Week Celebrations at the Natabua grounds, Lautoka. The day finished with the mother arrested and held for some 26 hours without charge, during which she underwent the humiliation of an illegal search of her home in the presence of her daughter (during which a police officer displayed such high handedness and disrespect for the sanctity of that environment by “helping himself” to an item of food on the way out), as well as then enduring sleeping overnight on a table without blanket or pillow in a police station whilst her young daughter (who was initially detained with her for some five hours) was eventually allowed to be “dropped off” to a relative. And all of this occurred because some members of the Fiji Police Force took the misguided view they had the right to detain as they wished a suspect for up to 48 hours under the Constitution.

[2]	The case is one which says much about a complete misunderstanding by certain law enforcements officers in this country as to their powers of arrest, detention and search. It is also important to remember that such problems are not isolated to the Fiji Islands. Rather, the misunderstanding (and at times abuse) by law enforcement of their powers is an ongoing problem throughout the world in both democratic and non-democratic countries alike. It requires the executive to provide regular reviews of legislation as well as appropriate levels of funding to the police so that they have the resources and training necessary to continually develop a modern, professional force and for their actions to be overseen by an ever vigilant independent judiciary sitting in open courts ready to stand by their oaths of office to protect the rights of all citizens without fear of favour by handing down judgments upholding the Constitution and, in turn, having their decisions reported through a transparent media.

[3]	Until the return to democratic rule in this country, the Court hopes that the time spent in this judgment will be a useful guide as to what is appropriate when police detain suspects without charge and, in particular, issues which need to be considered when forming a view whether to arrest a suspect whilst in the company of children. 

B. A “BREAK-IN” AT THE LAUTOKA MAGISTRATES COURT REGISTRY

[4]	In October 2002, the Plaintiff commenced work as an Assistant Court Officer attached to the Lautoka Magistrates Court. Amongst other matters, her duties included opening and closing the Registry starting at 7am and finishing at 5.00pm most weekdays. For this purpose, she was provided with keys to the back door of the Court Registry. Other staff also had keys to both and two staff also had keys to the strong room inside the Registry where all exhibits and money was kept.

[5]	On Wednesday, 24 September 2003, the Plaintiff finished work at 5.00 pm. After making sure all doors and windows were locked, she met the watchman (security officer) and they decided to consume a post-work bowl of “grog” together. They finished about 7.30-7.45 pm after which they proceeded to Churchill Park where the “Sugar Festival” was being held. The Plaintiff stayed for about 15 minutes during which she bought some food from a BBQ and then caught a cab home.

[6] 	The following morning, Thursday, 25 September 2003, the Plaintiff arrived at work at approximately 7.15am. She usually opened the office each day. On that morning, as she approached the back door of the registry she noticed that the door was ajar. Not wanting to go inside, she immediately went to the nearby stamp duties office and borrowed the telephone of one of their staff to call her supervisor advising him that the back door of the Registry was open. He advised that she immediately call the police which she did.

[7]	At approximately 7.30am the Police arrived. Upon inspection it was discovered that both the Registry Office as well as strong room had been broken into and also the “imprest” was missing as well as cash, jewellery and marijuana. 

C. AN ARREST AND DETENTION WITHOUT CHARGE

[8]	On Saturday, 27 September 2003, the Plaintiff went with her then four year old daughter to the Public Service Week Celebrations at the Natabua grounds, Lautoka, where a sports day was being held. At approximately, 3.00pm, a police officer approached the Plaintiff as she was later to recount:

“She told me ‘we have to go to the Police Station’. I said ‘what for?’ She said ‘it’s in regards to the break in at the Magistrates Court Office’. She just came, got hold of my hands and said she was taking me to the Police Station.

This was at the Lautoka Police Station.

I was taken to [the] Police Bure behind the Police Station. My daughter was with me all the time. She asked me ‘Ma, are you going to be arrested?’ They call the Bure the “summer house”.

I was there when different Police Officers came in … asking me 2/3 questions and going back. This was around 3 or 4pm.

I asked whether I was going to [be] kept there for long and they said they were waiting for the [the] Investigating Officer. I didn’t get to see the Investigating Officer until 9pm.

I was at Summer House from 3-6, approximately 3 ½ hours … They [then] told me to get into the Police Fleet and for me to direct them to my home.

… We arrived at my house at about 6.30, 6.40. My daughter was with me all along. They told me to open the door. I opened the door, they then went inside the home. They searched my house.

There was no search warrant produced to me on that day. Nothing was found in my home. They didn’t take anything from my home except PC Name Suppressed on his way out, he grabbed the cheese loaf on top of the table. He didn’t ask for cheese loaf.

I then asked the Police officers to drop my daughter off at her grandmother’s place at Natabua … This was around 8pm … then we went back to Lautoka Police Station …

Interview commenced around 9pm … There was no woman PC present. The interview suspended at 10pm until the next morning.

… I asked for my dinner. I told them if they could serve me dinner if I am kept in custody. That’s the practice. Dinner always served at 6pm if in custody.

Investigating Officer was asking me about the incident. He said ‘I am in the soup now, since I am the Investigating Officer. I’ll be able to twist this interview’. He told me to say that my boyfriend did it.

He was very forceful.

(Evidence in Chief of Plaintiff, Magistrates Court at Suva, 31 August 2007, pages 2-4, Record of the Magistartes Court at Suva, pages 151-153)

[9]	Unbeknown to the Plaintiff, her boyfriend was also being held in custody that night. The Plaintiff was, however, not directed to the cells, even though she was then held over night as she later recounted:

“During the interview, I wanted to rest. I told him I didn’t want to go to the cell, but opted to go to [an] NGO’s office and rest there. There’s just a table there. No pillow, no blanket given. I slept on top of the table. I woke up at about 5.30am – 6am … 7-8 breakfast served. At that time I asked to … have my shower but they said no.”

(Evidence in Chief of Plaintiff, Magistrates Court at Suva, 31 August 2007, page 4, Record of the Magistrates Court at Suva, page 153)

[10]	After no dinner, a presumably “rough” night’s sleep on top of a table without pillow or cover, some breakfast and no shower, the interview re-commenced bout 10.15am solely with the Investigating Officer:

“… when interview commenced, there was no one else. He asked me about the break-in and forcing me over and over again that my boyfriend did it.

The Investigating Officer told me that they interviewed the watchman and 	because of evidence used by watchman, reason for taking me in. My interview finished at 12/30 to 12.45pm. I then had my lunch.

I waited till 3 o’clock. I told them that I wanted to have my shower because I was feeling uneasy. I was accompanied … home to have my shower.

… I then returned to Police Station … I was released at 5pm. I was not charged ... I went straight home afterwards.

I was in effective Police custody for 26 hours.

(Evidence in Chief of Plaintiff, Magistrates Court at Suva, 31 August 2007, page 4, Record of the Magistrates Court at Suva, page 153)

[11]	When asked to later recount how she felt at the time, the Plaintiff explained:

“I felt saddened, down [the Record of the Magistrates Court at Suva notes at this point that the Plaintiff became “emotional” when giving such evidence] embarrassed, humiliated because I know most of the Police Officers … I was treated like a common criminal.

They, the Police did not offer any explanation for not charging me. 26 hours in Police custody … Impact on the child traumatic, she still remembers. To this day says ‘Ma what about the day you were taken to Police Station’.

(Evidence in Chief of Plaintiff, Magistrates Court at Suva, 31 August 2007, pages 4-5, Record of the Magistrates Court at Suva, pages 153-154)

D. THE PLAINTIFF COMMENCES LEGAL PROCEEDINGS

[12]	The present legal proceedings began when the mother filed a Writ of Summons in the Magistrates Court at Suva on 17 June 2005 seeking damages for her arrest and the subsequent delay in her detention at the Police Station in Lautoka on 27 September 2003 for some 26 hours without charge until she was released at 5.00pm the following afternoon.

[13]	Judgment in relation to liability was delivered on 25 January 2008 whereby the Magistrate “did not specifically find the Defendants liable as per the Plaintiff’s Amended Statement of Claim in that she found that the Plaintiff was arrested without warrant based upon a reasonable suspicion but then found in favour of the Plaintiff and “the Defendants liable for causing unreasonable delay in the continuous detention of the Plaintiff”.

[14]	A subsequent judgment on the quantum of damages was delivered on 7 March 2008 with the Magistrate awarding the Plaintiff $3,000 and as well as $6,000 for her child.

[15]	On 18 March 2008, the Defendants filed in the Magistrates Court at Suva a Notice of Intention to Appeal.

[16]	On 28 March 2008, the Defendants filed six grounds of Appeal in the Magistrates Court at Suva as follows:

“1. The learned Trial Magistrate erred in law and in fact in awarding damages of $3,000 to the Plaintiff for unreasonable delay in her detention at the Police Station in Lautoka given the effect of Section 27(3) of the 1997 Constitution which provides for maximum detention of 48 hours in respect to a person detained for reasonably suspected of committing a criminal offence. 

2. The learned Trial Magistrate erred in law and in fact in finding that the 	child was unlawful [sic] detained and it follows that the $6,000 awarded for damages was manifestly wrong in law when child was not made a party to the civil proceedings.

3. Alternatively, the learned Trial Magistrate erred in law in awarding $3,000 damages for the child and such amount is excessive in view of the decision in Seniloli .v. Voliti (2000) FJHC 28 and the peculiar factual circumstances of this case does not lend support to such quantum of damages.

4. The learned Trial Magistrate erred in law when it [sic] awards the sum of $1,500 for special damages for humiliation and injury to the feelings of the Plaintiff when it is not supported by law and facts.

5. The learned Trial Magistrate erred in law and in fact when it [sic] failed to consider and apply the relevant case authorities in respect to the assessment for damages in false imprisonment cases.

6. That in view of the above grounds, there is no basis of [sic] awarding $1,500 to the Plaintiff on Solicitor-Client basis.”

[17]	On 12 June 2008, the Appellants (Defendants) filed an Affidavit in Support of their Appeal from AJAY SINGH, 	an Administrative Officer in the Office of the Solicitor-General deposing that:

(a) “That the Applicants [sic] were wrongfully denied to tender documents that were relevant to their case during the trial at the Magistrate Court and this include [sic] the copy of the caution interview of the Respondent … and copy of the search warrant”;

(b) That “I verily believe that in view of the facts of this case and [the] seriousness of the allegation, the documents were relevant both in facts [sic] and law in relation to the defence of the Appellant as well as certain Constitutional issues to be determined”.

E. THE SUBMISSIONS FILED

1. The Appellants’ submissions

[18]	On 14 July 2008, Counsel for the Appellants filed written submissions in support of their Appeal in summary as follows:

(a) In support of the First Ground of Appeal (That the learned Trial Magistrate erred in law and in fact in awarding damages of $3,000 to the Plaintiff for unreasonable delay in her detention) –

(i) That the Respondent was kept in custody for 26 hours which is within the 48 hour time limit prescribe in the Constitution;
(ii) That there was a continuous criminal investigation being completed during the investigation period;
(iii) That the delay was reasonable to allow the Respondent time to rest and not be subjected to a long and tiring interview;
(iv) That during the suspension of the interview, the Appellant conducted a search and confirmed the Respondent’s alibi;
(v) That the Appellants needed to satisfy themselves that the Respondent was not responsible for the crime before she was released from the Police Station;
(vi) That the award of $3,000 was not justifiable and irrelevant;
(vii) That the award “will be a threat to the Police in the cause [sic] of investigation where due process of the law would not be appropriately complied” and “would have a drastic impact in the preservation and link of evidence as required in a judicial proceeding”;
(viii) That to allow the award “to stand then the court will be setting an expensive precedent”.

(b) In support of the Second Ground of Appeal (The learned Trial Magistrate erred in law and in fact in finding that the child was unlawfully detained and the $6,000 awarded for damages was manifestly wrong in law) –

(i) That the child was not a party to the action and no damages were pleaded for her detention;
(ii) That the child was not unlawfully detained “but she was rightfully at the Police Station with her mother”;
(iii) That “the Police have no right to take the child away from her mother and this was done after the Respondent made an arrangement for the child to be with her grandmother”;
(iv) That “the child was not part of the action and should not be awarded with $6000 damages”;
(v) That “awarding damages to someone who is not a party to an action would be staging a wrong precedent and allows another who is not a party of an action to be benefited from something he/she did not plea [sic]”;
(vi) That “awarding damages to the child is unsafe and an abuse of the court process”.

(c) In support of the Third Ground of Appeal (The learned Trial Magistrate erred in law in awarding $6,000 damages for the child which is excessive in view of the decision in Seniloli v Voliti and the peculiar factual circumstances of this case) –

(i) That the present case “us quite different from Seniloli’s case where the Plaintiff as arrested and handcuffed to a post inside the police station”;
(ii) That in this case the child who was then aged four “was at the Police Station with her mother”;
(iii) That the child “was not arrested and mistreated” and “the conduct of the Appellant was not outrages [sic], abuse of power and disregards the child’s right [sic]”;
(iv) That ”in Seniloli’s case the quantum of damages was comparable to the gross misconduct of the police … the award of $1,700 per hour was given to the Plaintiff because he was arrested when he should not have been arrested at all”;
(v) That in the present case, “the child was not arrested and therefore she was not subjected to mistreatment by the Appellant”;
(vi) That the award of “the amount of $6,000 is excessive … and the court should not compare this case with the decision in … Seniloli v. Voliti”.

(d) In support of the Fourth Ground of Appeal (The learned Trial Magistrate erred in law in awarding $1,500 for special damages for humiliation and injury when it is not supported by law and facts) –

(i) That “special damages can be awarded if the Respondent was able to quantify in monetary term the loss incurred”;
(ii) That “the humiliation and injury of feeling of the Respondent can not [sic] be quantified and therefore can not be categorized [sic] as special damages”;
(iii) That “the Respondent did not prove any financial loss … to prove the amount she had lost during [the] period of detention”;
(iv) That the “head of damages that was used in the special damages was wrongfully applied and unsafe to be relied on”.

(e) In support of the Fifth Ground of Appeal (The learned Trial Magistrate erred in law and in fact in failing to consider and apply the relevant case authorities in respect to the assessment for damages in false imprisonment cases) –

(i) That “the court did not properly utilize [sic] the case authority that was submitted in relation to the assessment of damages”;
(ii) That “the assessment of damages in this case is not comparable to the assessment in the case authority that was submitted before the court”;
(iii) That “the award is a novel head of damages … not comparable to case authority”.

(f) In support of the Sixth Ground of Appeal (That there is no basis for awarding 	$1,500 costs to the Plaintiff on a Solicitor-Client basis i.e. indemnity costs) –

(i) That “the amount of cost is excessive however we admit that such cost must be awarded”:
(ii) That “there is no justification to show … how the court reached the amount awarded” other than based upon the Magistrate’s discretion.

2. The Respondent’s submissions

[19]	On 31 July 2008, Counsel for the Respondents filed written submissions in reply in summary as follows:

(a) That “the learned Magistrate was correct to award such damages as this was a clear case of Police contravening the aspirations and the very spirit of the Supreme Law of Fiji”.

(b) That the learned Magistrate specifically found that the Respondent “was not promptly informed of her … rights and not promptly released as per [the] requirements of s 27(1) … of the Constitution”.

(c) That the Appellants’ First Ground of Appeal states that as per the Constitution the Police have powers to detain up to 48 hours. In response it is submitted –

(i) That the “no powers are absolute and that the Police powers are subject to checks and balances”; and
(ii) That “the learned Magistrate found that the detention of the Respondent was unreasonable in the circumstance [sic] and that the delay in the Respondent’s release was due to the Appellants’ incompetence”.

(d) That the Appellants’ Second Ground of Appeal states that damages should not have been awarded to the child as she was not party to the proceedings. In response it is submitted –

(i) That this ground is misconceived and should not be entertained as the Appellants admitted in their pleadings that the Respondent’s child was unlawfully detained; 
(ii) That “the Rules of the Magistrates Court Act (Cap 14) explicitly states by virtue of Order 16 Rule 3(h) as to what would be the effect of admissions”;
(iii) That “it is not open to the Appellant to challenge the findings of the Learned Magistrate on these grounds either in law or in fact”;
(iv) That “the Learned Magistrate was correct in awarding the damages that she did in light of the case authorities submitted by both parties”.

(e) That the Appellants’ Third Ground of Appeal states that the awarding of $3,000 damages for the child was excessive in view of Seniloli v Voliti and the peculiar factual circumstances of this case. In response it is submitted –

(i) That the Respondent and her daughter were out at the Natabua grounds enjoying the Public Service Week Celebrations when she “together with her 4 year old daughter was wrongfully and without reasonable cause arrested and taken to Lautoka Police Station” where they were held for five hours after which “the daughter was released while the Plaintiff continued to be detained without her consent for 26 hours”;
(ii) The above “chain of events … shows the Respondent being taken through a series of embarrassing scenarios in front of her daughter” and according to the Respondent’s evidence “her daughter still remembers the incident and often asks … as to what happened”;
(iii) That in Seniloli v Voliti, Shameem J awarded $1,700 per hour for a child whose arrest and detention was unlawful and applying the same to the present case a sum of $6,000 for the detention of a four year old girl is entirely appropriate.

(f) That the Appellant’s Fourth Ground of Appeal states the Magistrate erred in awarding $1,500 for special damages for humiliation and injury. In response it is submitted –

(i) That the Appellants had “removed and consumed food from the Respondents [sic] house without her consent”; 
(ii) That “the continuing visits by different Police officers and the unprocedural probing and questioning at … Lautoka Police Station was enough to cause her humiliation” and “was all done right before her child’s eyes”; and
(iii) That “it was this injury to feelings that the Learned Magistrate had rightly awarded $1500”.

(g) That the Appellants’ Fifth Ground of Appeal states the Magistrate failed to consider and apply the relevant case authorities in respect to the assessment for damages in false imprisonment cases. In response it is submitted that apart from Seniloli v Voliti, in The Proceedings Commissioner Fiji Human Rights Commission v The Commissioner of Police and others , “the Fiji Court of Appeal considered that an award of $15,000 was a satisfactory award for unlawful detention of an adult”.

F. THE HEARING

[20]	The matter was listed for hearing in the High Court of Fiji at Suva on 13 August 2008 to hear from the respective parties as to whether they wished to add anything further in relation to their submissions.

[21]	Counsel for both parties relied upon their material previously filed set out above.

[22]	In addition, Counsel for the Respondent made the following short oral points that the Appellants were attempting to introduce new pieces of “evidence” at the Appeal through the Affidavit filed in Support from AJAY SINGH, which annexed two documents that had never been accepted into evidence during the trial in the Magistrates Court they being –

(a) the search warrant which had been rejected as no original document was available; and 
(b) the caution interview of the Respondent which had been rejected as the person attempting to tender it was not the person who had conducted the interview, that is, the “maker” of the evidence;

[23]	Counsel for the Appellants submitted in reply:

(a) That the caution interview was not accepted by the Magistrates Court was an error of law;
(b) Similarly, that the search warrant was not accepted by the Magistrates Court was an error of law;
(c) That the Respondent was not detained for over 48 hours and was released after the police had conducted a thorough investigation during which she was given time to rest;
(d) That in the circumstances the period of detention was not unreasonable and the Respondent was treated fairly.

[24]	The matter was then adjourned with the parties advised that judgment would be on notice.

G. MATTERS TO CONSIDER

1. The Appellants’ Affidavit in Support from AJAY SINGH

[25]	 In relation to the Affidavit in Support from AJAY SINGH, an Administrative Officer in the Office of the Solicitor-General, I presume that I am correct in my understanding that this person is not admitted to practice in the Fiji Islands. If I am so correct, then how can this person as a non-lawyer depose to such the matters stating that the Appellants were wrongfully denied from tendering documents (relating to the caution interview and search warrant) during the hearing in the Magistrates Court and that such documents “were relevant both in facts [sic] and law in relation to the defence of the Appellant as well as certain Constitutional issues to be determined”? Surely, these are matters which should have been deposed to by the Solicitor with the conduct of the matter? 

[26]	As I have recently commented elsewhere (see Pacific Agencies (Fiji) Limited v Mark Spurling, Unreported, Court of Appeal Fiji Islands, Civil Appeal No.Misc.10 of 2008S, 22 August 2008, Hickie JA, at paragraph 17):

“One can appreciate that in a fused profession the practitioner with the carriage of a matter will, when appropriate, have the client depose to matters in an affidavit rather than the practitioner themselves (as otherwise they would not be able to appear as Counsel). When, however, there are factual and/or legal issues which are in dispute that are within the particular knowledge of the legal practitioner with the carriage of the matter, then no person other than that practitioner should be deposing to such matters in an affidavit. In such circumstances, another practitioner from the same firm will need to be briefed to appear as counsel or alternatively, a practitioner be briefed from another firm.”

[27]	If an Affidavit had been filed from a qualified practitioner then one would have expected that it would have contained the following:

(a) A history of what occurred at the hearing in the Magistrates Court set out in some detail; and
(b) The basis upon which the two documents annexed (the caution interview and search warrant) had been ruled inadmissible by the Magistrate and how these were relevant to any of the six grounds of Appeal. 

[28]	Further, one would have expected that the Affidavit would then have been 	supported by details in the written submissions from Counsel as to why the Magistrate was wrong at law in rejecting the two documents and, again, how these two documents were relevant to any of the six grounds of Appeal. 

[29]	That the above was not done, one wonders what weight Counsel really expected the Court to give to this oral submission? Indeed, although raised in the Affidavit from the Administrative Officer, it was not formally raised as part of any one of the grounds of Appeal nor does it from any part of Counsel’s written submissions. Accordingly, the Court attributes no weight to the Affidavit and simply notes that the issues of the rejection of the two documents has not formed part of any one of the six grounds of appeal.

2. The Criminal Procedure Code

[30]	The relevant sections of the Criminal Procedure Code (Cap.21) in relation to arrest are:

(a) Arrest – Section 13;
(b) Arrest by police officer without warrant – Section 21;
(c) Disposal of persons arrested by police officer – Section 23; and
(d) Detention of persons arrested without warrant – Section 26.

[31]	In relation to the present matter, Sections 21(a), 23 and 26 are of particular relevance as follows:

“Arrest by police officer without warrant

21. Any police officer may, without an order from a magistrate and without a warrant, arrest-

(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence …”

“Disposal of persons arrested by police officer

23. A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a magistrate or before an officer of or above the rank of sergeant.”

“Detention of persons arrested without warrant

26. When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer of or above the rank of corporal to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate magistrates' court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognizance, with or without sureties, for a reasonable amount to appear before a magistrates' court at a time and place to be named in the recognizance, but where any person is retained in custody he shall be brought before a magistrates' court as soon as practicable:

Provided that an officer of or above the rank of sergeant may release a person arrested on suspicion on a charge of committing any offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.” (My emphasis)

[32]	Section 26 as set out above was a result of it having been earlier “Amended by 37 of 1954 and 11 of 1972 s. 2”. In any event, what needs to be noted is that it has been overtaken by certain sections in the 1997 Constitution.

3. The 1997 Constitution

[33]	The relevant sections of the Constitution (Amendment) Act 1997 in relation to arrest and the present matter are as follows:

“Personal liberty

23.-(1) A person must not be deprived of personal liberty except: …

(e) if the person is reasonably suspected of having committed an offence …”

“Freedom from unreasonable searches and seizure

26.-(1) Every person has the right to be secure against unreasonable search of his or her person or property and against unreasonable seizure of his or her property.

(2) Search or seizure is not permissible otherwise than under the authority of law.”

“Arrested or detained persons

27.-(1) Every person who is arrested or detained has the right:
(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;
(b) to be promptly released if not charged …
(f) to be treated with humanity and with respect for his or her inherent dignity …

(3) Every person who is arrested for a suspected offence has the right:
(a) to be informed promptly in a language that he or she understands that he or she has the right to refrain from making a statement;
(b) to be brought before a court no later than 48 hours after the time of arrest or, if that is not reasonably possible, as soon as possible thereafter; and
(c) to be released from detention on reasonable terms and conditions pending trial, unless the interests of justice otherwise require.”

4. The Magistrate’s findings

[34]	The Magistrate made the following findings in her judgment of 25 January 2008 on liability and re-stated such findings at the beginning of her judgment on the quantum of damages delivered on 7 March 2008:

1. That there was a ground for a reasonable suspicion for a lawful arrest;
2. That the Plaintiff was not accorded her constitutional right as per Section 27(1)(a),(b) and (f), that is, –

(a) That the detention of the Plaintiff was unreasonably delayed for 10 hours;
(b) That the Plaintiff was demoralised and humiliated;
(c) That the Plaintiff was not promptly informed of the reason for the arrest and the nature of the charge that maybe brought;

3. That the search warrant was not properly executed;
4. That the Defendant unlawfully detained the Plaintiff’s child for a period of five hours.

[35] 	The Magistrate found the basis of a reasonable suspicion for a lawful arrest was:

(a) That the Plaintiff had a key to the back door of the work premises;
(b) That when she came to open the door it was ajar with no evidence to suggest it was forced open;
(c) That the strong room was forced open;
(d) That the Plaintiff was the last person to leave the work premises;
(e) That the Plaintiff’s boyfriend/de facto partner was “of a known character” with two previous convictions for “Act with Intent” and “Larceny”;
(f) That the Plaintiff invited the work security for “a grog” the afternoon when the premises were later broken into because she had to wait for her boyfriend;
(g) That the Plaintiff and her boyfriend were placed near the crime scene.

[36]	Although the Magistrate found that there was sufficient ground for a reasonable suspicion to be formed for a lawful arrest by the Police, Her Worship found that what occurred following the Plaintiff’s arrest was not reasonable. In that regard, Her Worship then made three findings adverse to the Defendants as to the detention of the Plaintiff and her child:

(a)	That the detention of the Plaintiff was unreasonably delayed for 10 hours as well as that she not promptly informed of the reason for the arrest and the nature of the charges that maybe brought – The Magistrate found:

(i)	That the Plaintiff was kept in custody for 26 hours;
(ii)	 That the Plaintiff then had to wait from approximately 3.00pm when she first arrived at the Police Station until 10.00pm that evening to be interviewed by the investigating officer who after being told at about 7.50pm as to the Plaintiff’s arrest then had his dinner, showered and said his prayers before making his way to the Police Station;
(iii)	That there was no record as to when the interview concluded but the Plaintiff was detained overnight ;
(iv)	That the interview did not recommence the next morning until 10.15am;
(v)	That according to one of the Defendants’ witnesses, the interview was delayed because he had to go and check on people mentioned by the Plaintiff, one of which was “the watchman” (security officer) who was not interviewed until 9.00 am the day after the Plaintiff’s arrest;
(vi)	That at 3.00pm, the Plaintiff requested a shower and two police escorted her home to do so after which she was escorted back to the Police Station; 
(vii)	That at 5.00pm the Plaintiff was eventually released without charge;
(viii)	That Section 17(b) [sic – presume 17(3)] of the Police Act 1978 states that a Police Officer is bound to act “promptly” which “in the ordinary meaning of the word is at once, directly, quickly, on the dot, on time, speedily swiftly, unhesitatingly” which “was not the case here”;
(ix)	That the actions of the Defendant in delaying the process of interviewing, did not comply with Section 27(1)(a), (b) of the Constitution as the delay must be genuine;
(x)	That one of the reasons for the delay was that one of the Police Officers “did try to force the Plaintiff into implicating her boyfriend” who was also being held without charge that same evening in a Police cell that night unknown to the Plaintiff thus causing the Magistrate to conclude that “although it is denied … it is the Court’s conclusion that he did not have enough evidence to place a charge, [and] in the process of interviewing her tried to force her to say it was the boyfriend that committed the offence” with the Magistrate noting that by June 2005 (two years later) the Police Officer “recommended that the file be closed as the Police had no other leads”; 
(xi)	That the Plaintiff “was not informed promptly in a language that she understands of the reasons of her arrest and the nature of the charge that maybe brought against her. And she was not promptly released. There has been no explanation forwarded by the Defendants to specifically explain these delays.”

(b)	That the Plaintiff was demoralised and humiliated including that the search warrant was not properly executed – The Magistrate found:

(i)	That the plaintiff was required to sleep at the Police Station that evening as she was still in custody;
(ii)	That by her own choice she slept in an NGO Office on top of a table;
(iii)	That she was not provided with any pillow or blanket;
(iv)	That whilst there was a search warrant it was never produced to the Plaintiff at the time or on the day of the search and as such was not properly executed and therefore unlawful;
(v)	That during the search of the Plaintiff’s house, one of the Police Officers “removed from the kitchen a cheese loaf of bread without the consent of the Plaintiff” which was “outside his powers and a shameful act” and “amounts to disrespect for her inherent dignity”.

(c)	That the Defendant unlawfully detained the Plaintiff’s child for a period of five hours – The Magistrate found:

(i)	That according to paragraph 10 of the Statement of Defence, the Defendants admit that the Plaintiff and her daughter were detained for about five hours after which the daughter was released by the Defendants;
(ii)	That “before executing an arrest, the Police Officers ought to have ensured that the child of the Plaintiff was safe at home before arresting and escorting the Plaintiff to the Police Station”;
(iii)	That “it may have been traumatizing [sic] for a child of those tender years to be subjected to such behaviour by the Defendants”.

[37]	Having made these three adverse findings, the Magistrate then made the following judgment in relation to the quantum of damages delivered on 7 March 2008:

(a) The child – Based upon Seniloli v Voliti [2000] FJHC 28 as a guide (where Shameem J awarded $1,700 per hour for a child whose arrest and detention were unlawful), an award of $1,2000 per hour seems appropriate in the present case where “the Court accepts that the circumstances … are not as aggravating” and “the child was not arrested”. Thus the Magistrate awarded a total of $6,000 ($1,200 x 5 hours) for the wrongful detention.

(b) The unreasonable delayed detention of the Plaintiff – 

(i) The Magistrate noted the following cases as a guide
•	Josaia Vakacoko v The Commissioner of Police HBC 145/1998 where Scott 	J awarded $4,000 for six days of wrongful imprisonment;
•	Sivorosi Raikeli v AG HBC 95/1999 where Scott J awarded $26,000 for 11 	months imprisonment;
•	Thompson v Commissioner of Police for Metropolis [1997] 3 WLR 403 which set out four principles for wrongful arrest and imprisonment (and an amount of £500 (UK pounds) for the first hour and £3000 (UK pounds) for 24 hours and then on a progressively reducing scale for each day thereafter).

(ii) The Magistrate accepted “that this is not a case where the Plaintiff was wrongfully imprisoned” rather “this is a case where … the Police did not exercise reasonableness which resulted in the unreasonable delayed detention of the Plaintiff” and “the Constitution prevents or protects each citizen from such unreasonableness.”

(iii) In deciding upon what damages to award, the Magistrate noted:

“Thus the Police are required to act promptly and not other wise. It is fairly easy to blame the lack of resources, which in my view cannot be accepted. If the Police is [sic] prepared to arrest one, then they are duty bound to ensure they act promptly … and not indulge in personal activities which strongly contradicts the requirement for promptness.

I hold that although wrongful imprisonment is not the same as unreasonable delayed detention, these are equally important rights and equally protected rights that are protected by the Constitution.

The Constitutional rights and requirements must be adhered to in order to promote fairness, transparency and certainly prevent abuse of powers by authorities … There’s no need to hold the Plaintiff longer than necessary.

(iv) Thus the Magistrate awarded for the 10 hours of unreasonable delayed detention a total of $3,000.

(c) The humiliation and demoralisation special damages – 

(i)The Magistrate noted that the Defendants claim “that because the Plaintiff was not placed in a cell and freely moved inside the station mitigates the circumstances”. The Magistrate found, however, that just because the Police compromised on procedures was not mitigation:

“How can an arrested person be free to move around? This act left the Plaintiff in a confused and humiliated state. For injury to feelings, it’s not necessary to show violence and physical force being exerted on the Plaintiff.”

(ii) In addition, the Magistrate included under this heading the improper execution of the search warrant noting:

“The removal and consuming of [a] food item from her home by the Defendants without her consent and the continuous visits by different Police officers and the unprocedural probing and questioning … was enough to cause her humiliation. It was done right before her child’s eyes.”

(iii) Thus the Magistrate awarded for injury to feelings a total of $1,500, 

(d) Exemplary damages – The Magistrate noted that as this “was not specifically pleaded therefore I cannot award it”.

(e) Costs – The Magistrate said that in exercising her discretion she awarded $1,500 for Solicitor-client costs.

H. THE FINDINGS OF THE COURT

1. Was there a basis to form a reasonable suspicion for a lawful arrest?

[38]	The Magistrate found, based upon Lord Denning’s judgment in Dallison v Caffrey [1965] 1 QB 348, that there was a sufficient “reasonable suspicion” for the lawful arrest of the Plaintiff. The Respondent has not cross-appealed this finding. 

[39]	I am concerned that one of the factors which was considered in forming that “reasonable suspicion” to arrest the Respondent seems to have been based upon “guilt by association” by having a boyfriend who was “known to the Police”. It reminds one of the famous Australian case of Gai Waterhouse and the Australian Jockey Club (see Waterhouse v Bell (1991) EOC 92-376) where the wife of a “warned off” bookmaker (who had also served weekend detention for perjury) had her application for a trainer’s licence refused on the basis that she was married to such a person of poor character. Needless to say, the New South Wales Anti-Discrimination Board took a different view holding that the sins of the husband could not be passed to the wife simply on the basis of her marital status to him. They found that her application had to be treated on its merits, which it was, and subsequently she became one of Sydney’s leading horse trainers. 

[40]	Whilst I accept that the present case is not the same and the fact that the Plaintiff’s boyfriend/de facto partner was “of a known character” was just one of a number of factors taken into consideration by the Police in forming their “reasonable suspicion” for the lawful arrest of the Plaintiff, both the Police and Courts should always be wary as to what weight guilt by association may have played in forming such a suspicion and whether it is reasonable.

2. The First Ground of Appeal (That the learned Trial Magistrate erred in law and in fact in awarding damages of $3,000 to the Plaintiff for unreasonable delay in her detention)

[41]	The basis of the Appellant challenging this award is that although the Respondent 	was kept in custody for 26 hours it is within the 48 hour time limit prescribed by the Constitution and that during the period of such detention the Appellant conducted a search and confirmed the Respondent’s alibi such that the Appellants needed to satisfy themselves that the Respondent was not responsible for the crime before she was released from the Police Station.

[42]	This ground conveniently misses the point that although finding that the arrest was lawful, the Magistrate then found that what occurred following that arrest was not in that the detention of the Plaintiff was unreasonably delayed for 10 hours. Indeed, the Magistrate took the time in her judgment of 25 January 2008 to “map out” a summary of what occurred over the 26 hours of detention and what was, in her view, an unreasonable or reasonable delay and how she arrived at the conclusion “that there was approximately 10 hours of unreasonably [sic] delay caused by the Defendants”. This has not been addressed by the Appellants.

[43]	In the interests of transparency, the Court has set out in table form below the Magistrate’s findings on this issue:

TIME	ACTION	Reasonable/Unreasonable delay	
3.00pm-6.00pm	Awaiting without any instruction at the Summer House (a bure behind the Police Station)	Unreasonable delay of 3 ½ hrs	
6.30-8.00pm	Search	Reasonable delay of 1 ½ hrs	
8.00pm-10.00pm	Awaiting Investigating Officer	Unreasonable delay of 2hrs	
10.00pm-7.15am	Caution Interview followed by rest	Reasonable delay of 9 ½ hrs	
7.15am-10.00am	Breakfast/alibi check	Reasonable delay of 3 ¼ hrs	
10.15am-12.45pm	Interview resumed and concluded	Reasonable delay of 2 ½ hrs	
12.45pm-5.00pm	Delayed release	Unreasonable delay of 4 ¼ hrs	

[44]	Until the return to parliamentary democracy, (and an attempt is hopefully made at resolving the time-limits set between Section 26 of the Criminal Procedure Code (Cap.21) which requires that a person be brought before a court within twenty-four hours or released and Section 27 (3)(a) of the 1997 Constitution which requires that a person be brought before a court not later than 48 hours), the Court strongly endorses the findings of the Magistrate on this issue:

(a) First, “not later than 48 hours” does not give the police carte blanche for 48 	hours to do as they will, rather this the extreme time limit within which there are	certain inherent safeguards on delay–

“ … the actions of the Defendant in delaying the whole process of interviewing, in my view does not comply with Section 27(1)(a), (b) of the Constitution. They have 48 hours. But it doesn’t empower the Defendants to take their time, if they can help it. The delay in release must be genuine. It goes to accountability.”

(b) Second, a Police Officer must act “promptly” as per Section 17(b) of the Police Act 1978 such that “in the ordinary meaning of the word is at once, directly, quickly, on the dot, on time, speedily swiftly, unhesitatingly”.

[45]	If the above interpretations were not correct, then Fiji would no doubt have far 	stricter restrictions on the actual time in detention without charge such as now 	operates in all states of Australia. (See for example Part 9 of the Law Enforcement 	(Powers and Responsibilities) Act 2002 (NSW) where the investigation period is initially four hours (s.115) but can be extended by up to 8hrs (s.118), that is, 12 hours in all and also allowances are made for time not to be included the time (s.116) (such as the time taken for police officers connected with the investigation to attend at the place where the person is being detained) or disregarded (s.117) such as a toilet or refreshment break for the suspect.)

[46]	The above has been an evolution over the last three decades in Australia as the courts (and the various parliaments) became increasingly concerned as to detention without charge and disputed alleged “confessions” whilst in police custody. 

[47]	I have referred to some of these matters recently in relation to travel bans placed on certain “suspected” persons from living the Fiji Islands even though they have not been charged (see Singh v Naupoto, unreported, High Court of Fiji, HBC199 of 2008, 4 July 2008, Hickie J); (Paclii: [2008] FJHC 137, http://www.paclii.org/fj/cases/FJHC/2008/137.html). As I explained at paragraph 12 in that case:

“As Gibbs CJ noted in Williams v R (1986) 161 CLR 278 at page 283: ‘Many cases in Australia have established that there is no power to detain a citizen merely for the purpose of questioning him’. In Williams, after being arrested for a couple of matters, an accused was then held in custody for further questioning in relation to other possible offences before being formally taken the following day before a magistrate charged with many other matters. Argument, ensued as to what was meant by the applicable statutory provisions that an accused ‘should be brought before a justice as soon as was practicable’ and that delay was not excused simply because police wished to exhaust their line of questioning. As Mason and Brennan JJ, both also later Chief Justices of the High Court of Australia [and later of the Supreme Court of the Fiji islands], said in the same case at pages 292-297:

“The right to personal liberty is, as Fullagar J. described it, "the most elementary and important of all common law rights" (Trobridge v. Hardy(1955) 94 CLR 147, at p 152). Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" (Commentaries on the Laws of England (Oxford1765), Bk.1, pp.120-121, 130-131). 

… The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR 170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements - a duty which is by no means incompatible with efficient investigation. Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly struck … But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement …”

[48]	Interestingly, Mason and Brennan JJ went on to note in Williams that Australian case law has differed from that of the English Court of Appeal and Lord Denning in Dallison v Caffery [1965] 1 QB 348 at 367] (which the Magistrate in the present case has cited) and indeed Mason and Brennan JJ felt that Lord Denning was incorrect with them concluding:

“… In our respectful opinion, the observations of Lord Denning M.R. in Dallison v. Caffery ought not be followed. They are at odds with the speech of Lord Porter in John Lewis & Co.Ld. v. Tims (1952) AC 676, at p 691:

‘Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence.’”

[49]	In the present case, this is exactly what the Magistrate found that the Appellants did – in an attempt to “bolster up their assurance or the strength of the case by seeking further evidence” against the Respondent and/or her boyfriend while detaining her. Indeed, as the Plaintiff pleaded at paragraph 12 in her Statement of Claim (as well as in unchallenged evidence at the hearing), the Second Defendant commenced the interrogation of her uttering the following words:

“You are in the soup now. Since I am the Investigating Officer, I’ll be able to twist this interview. Just tell us that your boyfriend did it.”

[50]	What occurred as set out above should be condemned in the strongest possible terms. It also highlights again the need for tape recorded police interviews to become a requirement (and to be legislated and funded accordingly as a priority item upon a return to parliamentary democracy). It protects both the Police force from such unsubstantiated allegations of assault and/or false confessions as well as the general public from such illegal behaviour. (See for example, David Dixon, ‘”A Window into the Interviewing Process?” The audio-visual recording of police-interviews with suspect in New South Wales, Australia’, Policing and Society, 16/4, pages 323-348, Dec 2006 as cited in Chapter 3, ‘The Criminal Process’ in Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 4th edn, The Federation Press, Leichhardt, NSW, 2006)

[51]	To reiterate as Samuels J expressed in the Supreme Court of New South Wales some 27 years ago: “Arrest, for the great majority of people, is equivalent to an additional penalty”, Lake v Dobson and Anor; Gault v Dobson & Anor (1981) 5 PS Rev 222. In the present case, the Appellants knew the Respondent from her work in the Lautoka Court Registry. She was not going anywhere. Yes, they were investigating a criminal matter but to quote the Supreme Court of New South Wales (Court of Appeal) again, this time in Fleet v District Court & Ors: 1999 NSWCA 363: 

“Lawfulness of arrest is one thing, appropriateness is another. Nevertheless it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing."

[52]	And as Gleeson CJ said in the High Court of Australia during the hearing of a refusal of an Application for Special Leave to Appeal by the State of New South Wales (see State of New South Wales v Kouumdjiev [2006] HCATrans 007, 3 February 2006, Sydney No S381 of 2005, Gleeson CJ and Heydon J): 

“… The power of arrest is not a punitive power … It is a power to be exercised because you think people might escape due process of law if you do not arrest them … one of the most elementary propositions about arrest is that it is not a power to be exercised to punish people. “

[53]	Apart from the arrest, that the magistrate also found that the Plaintiff “was not informed promptly … of the reasons of her arrest and the nature of the charge that may be brought against her” apart from being a breach of the Constitution is also a fundamental breach of the common law as recognised in Christie v Leachinsky [1949] AC 573 (See Viscount Simon’s propositions regarding police arrest, pages 581-590).

[54]	In addition, the Appellants’ submissions have not addressed the Magistrate’s calculation of $3,000 damages for 10 hours of unlawful detention drawing upon the cases cited 

[55]	For the above reasons, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law and in fact in awarding damages of $3,000 to the Plaintiff for unreasonable delay in her detention and thus the first ground of appeal must fail.

3. The Second Ground of Appeal (That the learned Trial Magistrate erred in law and in fact in finding that the child was unlawfully detained and the $6,000 awarded for damages was manifestly wrong in law)

[56]	The Appellants’ challenge to this award is that not only was the child not a party to the action but that she was not unlawfully detained but simply allowed to remain at the Police Station whilst her mother was being detained.

[57]	The Respondent in Reply have simply noted that Appellants admitted in their pleadings that the Respondent’s child was unlawfully detained and as such this ground is misconceived and should not be entertained. 

[58]	The Court notes that the Magistrate found that in paragraph 10 of the Statement of Defence, the Defendants admitted that the Plaintiff and her daughter were detained for about five hours after which the daughter was released by the Defendants.

[59]	The Court further agrees with the reasoning of the Magistrate that “before executing an arrest, the Police Officers ought to have ensured that the child of the Plaintiff was safe at home before arresting and escorting the Plaintiff to the Police Station” rather than putting a child of such tender years through what may have been traumatising experience.

[60]	Again, the Court is at a loss to understand as to what was the urgency or arresting the Plaintiff (as the Appellants knew the Respondent from her work in the Lautoka Court Registry) unless it was, as the Magistrate found (and noted above), it was an attempt to “bolster up their assurance or the strength of the case by seeking further evidence” against the Respondent and/or her boyfriend while detaining her. 

[61]	For the above reasons, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law and in fact in awarding damages of $6,000 to the child of the Plaintiff for her unlawful detention and thus the second ground of appeal must fail.

4. The Third Ground of Appeal (In the alternative, the learned Trial Magistrate erred in law in awarding $6,000 damages for the child which is excessive in view of the decision in Seniloli v Voliti and the peculiar factual circumstances of this case)

[62]	The Appellants’ submission in support of this ground is that the present case “is quite different from Seniloli’s case” in that the child was not arrested and handcuffed, she was with her mother and therefore the amount awarded is excessive.

[63]	The Magistrate drew upon Seniloli v Voliti [2000] FJHC 28 as a guide (where an award of $1,700 per hour for a child whose arrest and detention were unlawful), and decided that in the present case anaward of $1,200 per hour seems appropriate 	making a total of $6,000 ($1,200 x 5 hours) for the wrongful detention.

[64]	As the Respondent has submitted the “chain of events” detailed in the Magistrate’s judgment “shows the Respondent being taken through a series of embarrassing scenarios in front of her daughter” and according to the Respondent’s evidence “her daughter still remembers the incident and often asks … as to what happened”. Accordingly, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law in awarding $6,000 damages for the child of the Plaintiff for her unlawful detention and thus the third ground of appeal must fail.

5. The Fourth Ground of Appeal (The learned Trial Magistrate erred in law in awarding $1,500 for special damages for humiliation and injury when it is not supported by law and facts) 

[65]	Under the head of “special damages” in her Statement of Claim, the Plaintiff had pleaded:
(a) Costs of engaging legal representation $1,500.00;
(b) Incidental expenses $2,500.00; 
(c) Total = $2,500.00.

[66]	Despite the claim being for legal costs and incidentals, the Magistrate awarded special damages because of “injury to feelings”, including how the Plaintiff was dealt with and the improper execution of the search warrant (including the “removal and consuming of [a] food item from her home by the Defendants without her consent” which was all “done right before her child’s eyes”.

[67]	The Court notes that the Plaintiff had pleaded special damages of $2,500.00 for “costs of engaging legal representation” and “incidental expenses”. This was not the place to plead recompense for the legal costs of the civil proceedings. That is dealt with AFTER the Court has decided whether to award judgment for the plaintiff 	or the defendant to the action. If, however, the Respondent had engaged a lawyer to attend the Police Station on her behalf or if she had been wrongfully charged then she could include those legal costs as a separate claim as part of any subsequent civil action (see State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; (Austlii: [2005] NSWCA 247, Beazley and Hodgson JJA and Hislop J, http://www.austlii.edu.au/au/cases/nsw/NSWCA/2005/247.html)

[68]	The Court further notes no details of any “incidental expenses” were either particularised in the Statement of Claim or at the hearing. In the absence of such details, they cannot be awarded.

[69]	The Appellants’ submission in support of this ground is that special damages should only be awarded if the Respondent can quantify the loss incurred and that “humiliation and injury of feeling” cannot be so quantified and, as such, the “head of damages” was wrongfully applied. The Court, in part, agrees.

[70]	As Clerk & Lindsell on Torts, 19th edn, Sweet & Maxwell, London, 2006 explains at paragraphs 29-04-29-05, pages 1802-1803:

“The distinction between ‘general’ and ‘special’ damages is important not only for the purpose of the form of an award but also in relation to pleading and proof…. The phrase ‘special damage’ is used to signify that damage which the claimant must prove in certain cases as part of his [or her] cause of action…. the distinction is between ‘general damage’ which the law presumes to flow from the wrong complaint of and which need not be specifically pleaded (though it should be averred that such damage has been suffered) and ‘special damage’ which means

‘the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the [claimant’s] claim to be compensated, for which he [or she] ought to give warning in his [or her] pleadings in order that there may be no surprise at the trial’ (Ratcliff v Evans [1892] 2 QB 524 per Bowen LJ at 528). 

… the traditional practice has been that ‘special damages’ refer to losses that are capable of substantially exact calculation, i.e. pre-trial pecuniary loss.”

[71]	It would appear that despite there being separate claims for special and aggravated damages in the Statement of Claim, in her judgment the Magistrate has confused “special damages” with “aggravated damages”. To cite Clerk & Lindsell on Torts, again, at paragraphs 29-137 to 29-138, pages 1881-1803:

“Where the manner of the commission of the tort was such as to injure the claimant’s proper feelings of dignity and pride, higher damages than would otherwise have been justified may be awarded. Such aggravated damages, as they are known … may appear to incorporate an element of punishment imposed by the court for … bad conduct, but the intention is rather to compensate the claimant for injury to his [her] feelings and the amount payable should reflect this.

Aggravated damages are… quite distinct from exemplary or punitive damages which are awarded to teach the defendant that ‘tort does not pay’ and to deter him [her] and others from similar conduct in the future…. it has to be borne in mind that, except where exemplary damages are permissible, every award of damages, including aggravated damages where appropriate must be justifiable on the basis of compensation. If it is not, the inference will be that an improper element of punishment of the defendant or of simple bounty for the claimant has entered into the assessment and the award will, accordingly, be struck down on appeal ...

Lord Devlin in Rookes v Barnard [1964] AC 1129 laid down that exemplary damages, as distinct from aggravated damages, should only be awarded in two specific categories… unless … expressly authorised by statute … first, cases of ‘oppressive, arbitrary or unconstitutional action by the servants of the government and … cases in which ‘the defendant’s conduct has been calculated … to make a profit … which may well exceed the compensation payable to the [claimant].” 

[72]	As Clerk & Lindsell on Torts goes on to note (at paragraph 29-140, page 1884) “the Privy Council …upheld the view of the High Court of Australia that Rookes … does not apply in that country” and also that that Rookes “was heavily criticised” in the UK Court of Appeal, although it does apply in that country (see Brooome v Cassell and Co Ltd (1972) AC 1027). In addition, “the reception of Rookes in other Commonwealth countries has been mixed” (footnote 11, paragraph 29-140, page1884). Interestingly Clerk & Lindsell also notes (at paragraph 29-141, page 1884) that in relation to the first of Lord Devlin’s categories, that “a search carried out under an illegal general warrant would suffice”. Similarly, “actions against the police for … assault and false imprisonment”.

[73]	Thus “injury to feelings” should have been included by the Magistrate as part of any award of aggravated damages RATHER THAN WRONGLY INCLUDED UNDER THE HEAD OF “SPECIAL DAMAGES”. 

[74]	The Court also notes that at paragraph 22 of the Statement of Claim that the Plaintiff did claim aggravated damages.

[75]	For the above reasons, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law and in awarding damages of $1,500 for humiliation and injury but did err in phrasing them as such as “special damages” rather than “aggravated damages” which were pleaded and she was entitled to award.

[76]	In addition, it is arguable that the improper execution of the search warrant (including the “removal and consuming of [a] food item from her home”) could also have been part of a consideration for an award of exemplary damages if the latter had been specifically pleaded. Indeed, upon a reading of the transcript of the proceedings before the Magistrates’ Court, if the Plaintiff had sought to amend their pleadings to include such a claim before the close of the case, there was a strong basis for it to be entertained (and to have withstood any appeal to this Court), as clearly in accordance with Rookes v Barnard it was a case of “oppressive, arbitrary or unconstitutional action by the servants of the government”. 

[77]	Therefore, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law in holding in relation to “exemplary damages” that as this “was not specifically pleaded therefore I cannot award it”.

6. The Fifth Ground of Appeal (The learned Trial Magistrate erred in law and in fact in failing to consider and apply the relevant case authorities in respect to the assessment for damages in false imprisonment cases) 

[78]	The basis of this ground of appeal is the submission by the Appellants that the Magistrate “did not properly” apply the case authorities in relation to the assessment of damages, that in any event “this case is not comparable to the assessment” and the award made “is a novel head of damages … not comparable to case authority”.

[79]	The Court cannot agree with this submission noting:

(a) Detention without charge following a lawful arrest is an action known to the common law (see Clerk & Lindsell on Torts at paragraph 15-84, page 930 and footnote 56):

“Once at the police station, the common law required that the arrested person be charged without delay and taken before a magistrate as soon as there was sufficient evidence on which to prefer a charge, or released if such evidence was not forthcoming. Save under special statutory authority the police have no power to detain suspects for inquiries or questioning independent of their right of arrest. But the common law was unclear as to the time at which further detention without charge became unlawful (… in Millington v Commissioner of Police for the Metropolis, The Times, May 28, 1983, the claimant was awarded £800 damages for having been held in custody for 41 hours, a period found to be unreasonable.)”

(b) The Magistrate acknowledged “that although wrongful imprisonment is not the same as unreasonable delayed detention, these are equally important rights and equally protected rights that are protected by the Constitution” such that Police “are duty bound to ensure they act promptly … and not indulge in personal activities which strongly contradicts the requirement for promptness” nor “hold the Plaintiff longer than necessary”;

(c) The Magistrate did consider two wrongful imprisonment cases from Fiji of Vakacoko ($4,000 six days of wrongful imprisonment) and Raikeli ($26,000 for 11 months imprisonment); as well as from the England and Wales Thompson [1997] 3 WLR 403 (£500 for the first hour and £3000 for 24 hours and then on a progressively reducing scale for each day thereafter);

(d) The Plaintiff had sought an award of $15,000 for the injury to her liberty (using The Proceedings Commissioner Fiji Human Rights Commission v The Commissioner of Police and others as a guide where $15,000 was awarded for a detention of three and a half hours as well as the Thompson £3000 for 24 hours). The Magistrate, however, awarded general damages to the Plaintiff of $3,000 which was the exact figure requested by the Appellants at paragraph 23 of their submissions dated 29 February 2008:

“Based on the case authorities and the evidence, we pray that the Court award a reasonable and fair general damages of not more than $3,000 for the unlawful detention for the period of 10 hours.”

[80]	For the above reasons, it is the finding of the Court that the learned Trial Magistrate DID NOT err in law and in fact in failing to consider and apply the relevant case authorities in respect to the assessment for damages in false imprisonment cases.

7. The Sixth Ground of Appeal (That there is no basis for awarding $1,500 costs to the Plaintiff on a Solicitor-Client basis i.e. indemnity costs) 

[81]	The Plaintiff claimed indemnity costs of $6,000. The Magistrate awarded $1,500. 	The Appellants claim not only that “the amount … is excessive” but “there is no justification to show … how the court reached the amount awarded” other than based upon the Magistrate’s discretion.

[82]	The Court notes:

(a) In their written submissions in relation to the present Appeal before me, the Appellants have conceded at paragraph 4.6.1 that “we submit that the amount … is excessive however we admit that such cost must be awarded”. That is, the Appellants have not disputed the power of the Magistrate to make such an order, rather, they are just disputing the amount;

(b) The point of indemnity costs is that IT IS WITHIN THE COURT’S DISCRETION to make a costs order upon such a basis. Also, during this Appeal, the Court was not directed to any part of the Magistrates Court Rules which showed that the Learned Magistrate by making such an order had either offended or revealed that she did not have the power to do so;

(c) Recently, sitting as a singly judge in the Court of Appeal, I dealt with an appeal from an order for indemnity costs made against a Solicitor (see Heffernan v Byrne, Court of Appeal of Fiji Islands, Civil Appeal No:ABU0027.2008, 29 May 2008, Hickie JA,) (Paclii: [2008] FJCA 7; http://www.paclii.org/fj/cases/FJCA/2008/7.html) wherein I cited the Court of Appeal of Botswana in Lerumo Mogobe Legal Practitioners v Fencing Center (Pty) Ltd [2000] 1 B.L.R. 128; [2000] BWCA 10, as per Steyn JA at pages 14-15 (with whom Amissah P and Lord Weir JA agreed) where they said on the issue of an appeal in relation to an award of indemnity costs: 

"This court must not be seen to encourage parties to appeal only against costs orders, save when they are clearly wrong."

a.	Further, as noted recently by the Court of Appeal in Raj v Shell Fiji Limited (Unreported, Court of Appeal of Fiji Islands, 9 May 2008, Byrne and Hickie JJA) at paragraph 18:

"… an appellate court … ought not interfere with the exercise of a discretionary order by a trial judge unless it appears that some error has been made in exercising the discretion and that a substantial wrong has occurred: House v The King [1936] 55 CLR 499." 

[83]	For the above reasons, it is the finding of the Court that the learned Trial Magistrate DID NOT err in awarding $1,500 costs to the Plaintiff on a Solicitor-Client basis (i.e. indemnity costs) and that this amount and the decision to award such costs was within the discretion of the Magistrate.

[84]	In summary, the Court has made the following findings as set out fully in the judgment above:

1. That although the Magistrate found (based upon Lord Denning’s judgment in Dallison v Caffrey) that there was a sufficient "reasonable suspicion" for the lawful arrest of the Plaintiff and the Respondent has not cross-appealed this finding, both the Police and Courts should always be wary as to what weight guilt by association may have played in forming such a suspicion and whether it is reasonable.

2. That the learned Trial Magistrate DID NOT err in law and in fact in awarding damages of $3,000 to the Plaintiff for unreasonable delay in her detention and thus the first ground of appeal must fail.

3. That the learned Trial Magistrate DID NOT err in law and in fact in awarding damages of $6,000 to the child of the Plaintiff for her unlawful detention and thus the second ground of appeal must fail.

4. That the learned Trial Magistrate DID NOT err in law in awarding $6,000 damages for the child of the Plaintiff for her unlawful detention and thus the third ground of appeal must fail.

5. That the learned Trial Magistrate DID NOT err in law and in awarding damages of $1,500 for humiliation and injury but did err in phrasing them as such as "special damages" rather than "aggravated damages" which were pleaded and, as such, she was entitled to award $1,500 for "aggravated damages" and the award made in the Magistrates Court will be amended accordingly.

6. That the learned Trial Magistrate DID NOT err in law and in fact in failing to consider and apply the relevant case authorities for damages in false imprisonment cases and thus the fourth ground of appeal must fail.

7. That the learned Trial Magistrate DID NOT err in law in holding in relation to "exemplary damages" that as this "was not specifically pleaded therefore I cannot award it".

8. That the learned Trial Magistrate DID NOT err in awarding $1,500 costs to the Plaintiff on a Solicitor-Client basis (i.e. indemnity costs) and this amount and the decision to award such costs was within the discretion of the Magistrate. Thus, the sixth ground of appeal fails.

[85]	In closing, the Court thanks Counsel for their respective submissions. In addition, hopefully the judgment proves a timely reminder that the concern which the common law has developed over many centuries to protect against the excesses of the State (as partly enshrined in the 1997 Constitution of the Fiji Islands) is to safeguard the freedom of all citizens including members of the Police Force and their families. 

[86] 	The formal Orders of this Court are as follows:

1.	The Appeal is allowed to the limited extent that so far as Ground 5 is concerned, the award of "special damages" by the Learned Magistrate is to be amended to read –

(a) an award of $1,500 for "aggravated damages"; and

(b) the award made in the Magistrates Court for "Special Damages - $1,500.00" is amended to read "Aggravated Damages - $1,500.00".

2. The remaining grounds of Appeal are dismissed.

3.	The destruction of all police files and records and other police intelligence relevant to the arrest and detention of the Respondent as well as the detention of her daughter in relation to this matter;

4. So as to protect the identity of the child who has suffered enough through this ordeal (which will have began five years ago next month), the names of the parties to the proceedings are to be suppressed and instead the case is to be published and reported as "The Commissioner of Police, Fiji Police Force v A Mother and Her Child". 

I will now hear the parties as to costs.

Thomas V. Hickie
Judge

Solicitors:
Office of the Solicitor-General, Suva
Patel Sharma Lawyers, Barristers & Solicitors, Suva