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Seru v Prasad [2011] FJHC 391; HBC 209.2008L (29 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 209 of 2008L

BETWEEN:

APENISA SERU
Plaintiff

AND:

SGT SUMESHWAR PRASAD, PC 3225 DANIEL, PC 2605 EYANI, PC APISALOME AND OTHERS
1st Defendants

AND:

THE COMMISSIONER OF POLICE
2nd Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
3rd Defendant

JUDGMENT AFTER TRIAL

Judgment of: Inoke J.

Counsel Appearing: Mr K Tunidau (Plaintiff)
Mr R Green (Defendants)

Solicitors: Kevueli Tunidau Lawyers (Plaintiff)
Attorney General's Chambers

Dates of Hearing: 25, 27 January, 11 - 14 April, 27, 31 May 2011
Date of Judgment: 29 July 2011

INTRODUCTION

[1] This is a claim for compensation for an alleged assault by police officers stationed at the Namaka police station in Nadi. The claim is denied. This is my judgment after eight days of evidence and submissions.

CASE HISTORY

[2] The Writ of Summons and Statement of Claim were filed on 9 October 2008. The Defence was filed on 20 February 2009. The Reply was filed on 15 October 2009. The Summons for directions had been filed earlier on 9 February 2009 and mentioned eight times before the Pre-Trial Conference ("PTC") Minutes were filed on 8 April 2010. Twelve more mentions followed before all pre-trial steps were completed and the matter set down for hearing on 25 to 28 January 2011. The hearing proceeded on 25 and 27 January 2011 then adjourned to 11 to 15 April 2011 to allow the parties to file and exchange further documents. The hearing continued from 11 to 14 April 2011 at the end of which counsel agreed to file written submissions and oral submissions to be heard on 27 May 2011. Counsel for the plaintiff had not filed his written submissions so I adjourned the hearing of oral submissions to 31 May 2011. This is my judgment after hearing submissions.

THE STATEMENT OF CLAIM

[3] Four causes of action were pleaded in the Statement of Claim: (1) trespass to person, assault and battery, (2) common law negligence, (3) breach of statutory duty, and (4) false imprisonment. One of the causes of action which was based on breaches of the 1997 Constitution was struck out and abandoned at the trial.

[4] The plaintiff alleges that the assault consisted of physical beatings, being stripped naked and handcuffed, torture and chilly powder being rubbed on his legs, nose, penis and anus over about three hours. He said he lost consciousness intermittently during the assault and suffered personal injuries.

THE DEFENCE

[5] The claim is defended on the basis that the named police officers were not stationed at the Namaka police station at the time, that the alleged assault never took place and whatever injuries the plaintiff suffered were caused by him falling heavily on his way home when he was drunk on the night before the alleged assault.

PRELIMINARY ISSUES

[6] Before the commencement of the trial, counsel for the defendants raised four preliminary issues. Firstly, he sought an amendment to paragraph 11 of the agreed facts by deleting the words "that the plaintiff was mistakenly identified" and replacing them with "that there was insufficient evidence". The application was opposed. I therefore ruled that in the absence of agreement it became a live issue and therefore paragraph 11 was to be deleted from the agreed facts. The second issue was deletion of the named first defendants, SC Umesh and PC Apisalome, because he submitted there were either no such police officers or were not stationed at Namaka at the time. The amendments were opposed on the ground that they were matters of evidence. I agreed and ruled against the application. If on the evidence it turned out that the named defendant did not participate in the alleged assault or someone else should have been named as a defendant then the appropriate application should be made then. The third issue was the pleading of a cause of action based on breaches of the 1997 Constitution which is now abrogated. Counsel for the plaintiff sought an amendment. I took the view that it did not affect his client's case and at such a late stage no amendment should be allowed and ruled accordingly. The fourth issue was the late discovery of a recent medical report. A copy had not been disclosed to the defendants' counsel. Counsel for the plaintiff indicated that he intended to call the doctor that wrote the report. I ruled that the doctor will not be allowed to be called by him if a copy of the report was not given to the defendants' counsel beforehand and will not allow an adjournment because this case has been outstanding for too long.

THE DOCUMENTARY EVIDENCE

[7] The parties filed an agreed bundle of documents ("ABD") which was tendered as an exhibit (P2) in accordance with the usual practice that the documents are subject to cross examination and due weight at the judge's discretion. Both parties also filed supplementary bundles which were tendered individually (D1, D2 and P1, P3).

THE AGREED FACTS

[8] The agreed facts from the PTC Minutes are as follows. The plaintiff is married with three children. In 2006, he was employed as a bartender at the Trendwest hotel in Denarau Island, Nadi. Between 8.00 am and 9.00 am on 30 August 2006, he was taken from Navakai to Namaka police station by police officers from that station. He was detained and interrogated by the police at the station between 30 and 31 August 2006. The interrogation took place at the station "bure". He was locked in the station cell on the night of 30 August 2006 and for a period of time on 31 August 2006. He was medically examined at the Nadi hospital on 30 August 2006 and given tablets by the doctor. At about 10.00 am on 31 August 2006, the police executed a search warrant at the plaintiff's residence at Navakai in his presence and his sister. Nothing was found after the search. No complainant had confronted the plaintiff regarding the alleged complaint against him whilst in police custody between 30 and 31 August 2006.

THE PLAINTIFF'S EVIDENCE

[9] The plaintiff, Apenisa Seru, gave evidence first. He now lives in Vatukoula and is unemployed. He was employed at the Trendwest hotel in 2006 as a bartender. He had been working there for a year. He was earning $180 - $200 per fortnight on shift work. In August 2006 he was renting a house in Navakai. His landlord was Trevalise Bai. He shared the house with his cousin Vani Salaba and his sister Naomi Legalega. His cousin worked at the Nadi Beach Hotel and his sister was a student at TPAF. On 29 August 2009 he finished work at about 11.00 pm and went with one of his work mates to the After Dark Nite Club. He was wearing his uniform from work, bula shirt and suluvakataga and sandals. He wore a vest over his shirt. At the club he shared four Fiji bitter stubbies with his friend. They were watching sports on the Sky channel. He stayed there from 11.30 pm to 1.00 am the next day, 30 August 2009. He was not really drunk. He went there to relax. They then left the club and waited for transport home. His friend dropped him off at Wailoaloa. There was no transport so he walked to a place opposite Saint Mary's school and went to another friend's home. They talked for about an hour then he went to the main road and caught transport and got off at the Wailoaloa beach road junction and took the short cut to Navakai which was a gravel road. The weather was good. He did not sustain any injuries whilst walking the short cut or at the club. He got home at about 4.00 am. He knocked on the door and called his cousin. She turned on the light and let him in. He ate then went to sleep. He was not drunk when he got home.

[10] He was sleeping on the morning of 30 August 2006 when he was woken up by police at 9 am. Four police officers including the driver came to his home in a police van. He did not know their names at the time. They told him to go to the station for a talk. They did not use the word "arrest". They spoke harshly. He asked why. They did not say why. He did not want to go so they forced him. They got off at the Namaka police station. They took him straight to the "bure". They were swearing at him in Fijian and English. He had never been to the police station before. He had never been investigated before. One of the officers handcuffed his hands in front of him and his legs and told him to take off his clothes. He asked why he was brought there. The police officers swore at him, kicked him on his chest, neck and said bring the chilly; they put it in his eyes, ears, nose and on his private parts and anus. Whilst doing that the police officers told him to tell the truth. He told them he did not know but they kept hitting him and he became unconscious. He had tears in his eyes and blood from his mouth. It was painful. He told the officers that they should kill him because he could not take the pain and suffering. They still beat him and he became unconscious again. After they hit and he was injured they told him that he was in a house break-in. That took place over an hour or two. Three officers assaulted him and four others stood by. All seven officers took part in the assault. He heard their names being called out: Eyavi, Daniel, Umesh and Apisalome. He could not remember the rest of the names. They only stopped after he said they should kill him and he gave them his number and they called his home. They un-cuffed him and told him to dress up. The told him to hurry up and swore at him. He took a while to dress up because of his injuries. They then put him on a chair and took his statement. PC Daniel took his statement in question and answer format.

[11] At this juncture I asked whether the statement was in the documents and was told that it was not. Counsel for the plaintiff informed me that up to then he had been advised that the police file had been lost. Counsel for the defendants then informed me that he only became aware on the day before that the file had been sent to the Director of Public Prosecutions for an opinion on the findings of an internal investigation. I therefore adjourned the trial to 27 January 2011 for counsel to make submissions as to how the trial was to proceed further.

[12] On 27 January 2011, counsel for the plaintiff informed me that he was given the police docket from Namaka police station only the day before. He needed time to consult with his client but wanted to continue. I adjourned the hearing to 11 – 15 April 2011 for continuation.

[13] On 11 April 2011, the plaintiff continued with his evidence. He said the interview was recorded after the beating. He signed the record of interview[1]. He asked the police to take him to the hospital after the beating. They took him about an hour later to the Nadi hospital because they had to wait for transport. The doctor saw him and gave him panadol. After that they took him back to Namaka and questioned him again. They told him that they were sorry. They were mistaken; they had the wrong person. They locked him in the cell till 31 August. On 31 August they took him to his house and did a search between 12 noon and 1 pm; about seven police officers went. His sister and cousin were there. He told them that the police beat him and he was badly hurt. Nothing was found by the police. After the search they went back to Namaka. He was released after that between 2 and 3 pm. They dropped him at Namotomoto village and he walked home from there. He was holding on to his chest when walking home. When he reached home he rested for a while because of the pain. Then he went to the Nadi hospital again. He saw another doctor. The doctor did not examine him but wrote a report for him to have an x-ray done at the Lautoka hospital on the next day.

[14] He went to Lautoka hospital on the next day and had an x-ray done. The specialist told him that he had to be admitted because of his injuries. He was admitted for about a week. The doctor told him that he would not be able to work because of his injuries. He had to be examined every month. He was examined monthly for about a year. He was staying in Vatukoula after he was discharged from the Lautoka hospital. His employment had been terminated and he had not been able to work because of his injuries. His transport costs for the year was about $5,000. He had no receipts. He had no receipts for his medical expenses but they were about $1,000. After discharge from hospital, he still had pain on his left side.

[15] The plaintiff identified police officers Eyavi (or Yavi), Daniel and Sumeshwar.

[16] In cross examination, the plaintiff agreed that there was no medical report which said he could not work any more. He had no pay slips to show. He admitted that he had been at Trendwest for 3 months and not a year as he said earlier. He said he was at a bar on the night of 29 August which closed at 10 pm then he went to the After Dark Nite Club with a friend. He remembered his friend's name: Romeo (that was recorded in his record of interview). He was not drunk when he left the club. They were watching a rugby game on the television. He then walked to Martintar to his friend's place opposite the school and chatted with him then he left and went home. He got into a van and got off at the Wailoaloa junction. He denies being drunk when it was put to him that the inconsistencies in his statement as to where and how he got there were because he was too drunk to remember. He denied being in a de facto relationship with Vani Salaba even though that was what she had told the police in her statement. He said the police came to his home at about 8.30 am and called out. He opened the door. The police did not tell him about the break-in then. He denied that he was suffering chest pains when they took him to the station. He denied that the interview started at 10 am because he was too drunk to be interviewed earlier. But he agreed that the station diary entries were that he was brought to the station at 0905 hours and was interviewed at 1350 hours on 30 August 2006. He agreed that the "bure" was near the married quarters, 30 metres from the main road, can be seen from the Namaka market, opposite CAAF offices and police officers and members of the public were around the area. He shouted to the police officers to kill him but no one heard or came to his rescue. He denies giving his record of interview freely and insisted that he was forced.

[17] The second witness for the plaintiff was Josateki Vale. He is a fisherman. He knew the plaintiff. The plaintiff was renting his house in 2006 with two ladies. He knew one of them as Vani and the other "Tau". On the morning of 31 August 2006, police officers came to his place in a van. They asked for Seru and he showed them the entrance to Seru's place. The police then knocked on his door and Seru came out and they took him with them. He did not know the exact time. Seru walked normally to the van. Shortly after that they came back with Seru. Seru was bending over and massaging the left side of his chest. The police said they were going to search Seru's house. He could hear them shifting things in the house. They then went back with Seru. He saw Seru in the afternoon on the next day. He was sitting on the steps to his house and could see Seru took a few steps then rested and that he was in pain. He then went and helped Seru. Seru told him that he was beaten by police. Vani came back from work in a van and she and Seru left. He did not know where they went to.

[18] In cross examination he said the police came back on the same day that they took Seru but could not remember what day it was. He could not recall how many officers came to the house to search. He remembered only one officer came to him to ask about Seru. He did not know how many officers were in the van.

[19] The third witness for the plaintiff was Naomi Legalega. She is a student. She was staying in Navakai in 2006 with the plaintiff and Vani Salaba. She was at home in August 2006 when the police came home with Seru. She saw him holding his left side of the chest. Seru told her that he was beaten by police in Namaka. She was not at home on the night of 29 and 30 August 2006 because she was at her brothers. She came home at about 6.30 am and the police and Seru came at about 7.30 am. She remembered the time because normally she would go to school at 8 am. She saw him later in the afternoon. He was in a bad condition. He was holding his left ribs and could hardly talk. After she came back from school, Vani told him that Seru had been admitted to Lautoka hospital and they went and visited him there in the men's ward. She was not cross examined.

[20] The fourth witness for the plaintiff was Vani Salaba. In 2006, she was renting Mr Vale's house. She was working at the Club Fiji resort as assistant house keeper. She was at home on the morning of 30 August 2006. Seru came home at about 3 am. He was in good health. She could smell liquor on him but he was not drunk or hurt. She asked him if he wanted to eat but he said no and went to sleep. She then went to work. She was at work when the police came to see her between 10.30 and 11 am. They took her statement and she signed it but she did not read it. She told them that Seru came home at 3 am. Police told her that Seru was at the Namaka station and she went to see him but they told him that they had not finished with him and refused permission. On the next morning she went to Namaka and they told him that Seru had been transferred to the Nadi police station and she went there but was told that he was not there so she went home. She was at home when Seru came home at about 7 pm. He was holding his left side and could not breathe properly. He was hunching over. He said he was beaten by police. He had his medicine and lay down. She saw him at the Lautoka hospital when he was admitted there. She was not in a de facto relationship with him.

[21] In cross examination, she denied saying to police that she was in a de facto relationship with Seru. But she agreed that it was 4 am when Seru got home as she had told police in her statement. She did not agree that what she told police was accurately recorded in her statement which was that when she asked Seru why he was late home he did not say anything and went straight to bed.

[22] The fourth witness for the plaintiff was Dr Joeli Mareko. He is the orthopedic specialist at the Lautoka hospital. He had the original hospital file for the plaintiff. He checked it against the copy in the plaintiff's supplementary documents and found them to be the same. Counsel for the defendants objected to the file copy being admitted through the doctor. He submitted that only the superintendent of the hospital or someone appointed by him had the authority to do it. I did not agree with the objection as the file was an official file and the doctor was employed at the hospital and must be taken to have such authority, if such was needed. The copy of the hospital file was admitted as exhibit P3.

[23] The consultant surgeon at the time was Dr Taoi who passed on in 2007. According to the file, the plaintiff was admitted on 1 September 2006. He suffered trauma to multiple parts of his body; major trauma – chest injury, fractures of ribs from 5th to 9th rib. He was admitted for 6 days and was discharged on 6 September 2006. The medical history according to the file was that he was arrested by police and taken for interrogation and beaten and suffered his injuries then he was brought to the hospital. He complained of severe chest pain and shortage of breath and tenderness on his chest. The history was consistent with the findings. The x-ray showed fractures to ribs 5 to 9. He cannot trace where the x-ray is now because normally x-rays are discarded after 5 years for storage and policy reasons. The medical report in the ABD was done by the surgical registrar, Dr Litidamu, who left Fiji for Nauru at the beginning of this year. Dr Litidamu saw the plaintiff first. The histories are consistent.

[24] In cross examination the doctor agreed that the history was given by the plaintiff and the doctor has no proof as to what happened. There was no follow up report in this case to show whether the fractures were healing or not. Dr Litidamu's report was made on 1 and 9 September 2006 and Dr Taoi's report on 22 August 2008.

THE DEFENDANTS' EVIDENCE

[25] The first witness for the defendants was Kamal Prakash. He owned a retail shop at 64 Cawa Road, Martintar, Nadi. On 30 August 2006 at 5.30 am he went to open his shop. When he got there he saw the outside light was turned off. He could not understand why because he had changed the light bulb recently. He opened the 2 m high padlocked gate and went inside and saw that the five padlocks on the shop door were missing. His shop had been burgled. He called the police. They came and went inside the shop. Things were scattered all over the floor. The police took his statement and dusted for finger prints. There were four police officers. He only knew Dan. Whilst his statement was being taken, a man named Joe, who lived two houses down, came and told him that he saw someone run from the shop last night. He told Joe to talk to the police.

[26] In cross examination he said he only knew the man as Joe. Joe does not live there any more. Joe said someone came to his home drunk but he did not name him.

[27] The second witness for the defendants was PC Apisalome. He joined the police force in December 2005. He was stationed at the Ba police station. He is now at the Water police at Nadi airport. On 30 August 2006 he was still stationed at Ba. He was transferred to Nadi in late October 2007. He was not cross examined.

[28] When the hearing resumed on 13 April 2011, counsel for the defendants wanted a second police medical report by another doctor admitted into evidence. He said the report was somehow left out of the supplementary documents. I refused to accept the report into evidence because the plaintiff's case had been closed, the report had not been put to the plaintiff and his witnesses and the mistake was made by some one in his office.

[29] The third witness for the defendants was Sgt Ashok Kumar. He joined the force in 1980. He was stationed at the Namaka police station from 1997 to 2008. He was the station sargeant then. He was responsible for the smooth running of the station, operational and policing, and the welfare of persons in custody. He was on duty on 30 August 2006. He signed off on that day at 1618 hours. He supervised the cleaning of the station compound and surrounds including the bure. He did not hear anyone shouting for help from the "bure" or saw or heard anyone being assaulted in the "bure" on that day. He would have gone to investigate because he was the senior officer.

[30] In cross examination he said the "bure" was about 30 metres away from the station. He did not check the station diary on that day. The only information that he got was that his officers were conducting an investigation. He had no idea that the plaintiff was at the station. He did not always check who was coming in and out of the station. The purpose of the station diary was to record all movements in and out of the station of officers and suspects. The diary is the accurate record of movements. It is checked by the station officer and sargeant. But he did not check the diary on this day. The cell book register contains names of persons charged and arrested and locked in the cell or if they are drunk. According to the diary, the plaintiff was locked in the cell and at 1623 hours (30 August 2006) DC Daniel released him to relieve himself. The entry did not say that the plaintiff was charged or drunk. He did not normally check the cells. That was the duty of the station keeper or orderly. The cell was in the station and 4 to 5 metres from the reception. One could see the cell from the reception. He was not at the "bure" on that day.

[31] The fourth witness for the defendants was Sgt Sanjay Sen. He joined the force in 1992. He is a confirmed sargeant based at the Academy in Suva. On 30 August 2006, he received a report at about 6.30 am of a shop break-in at 64 Cawa Road, Martintar. He left the station with three other officers, constables Tevita, Daniel and Viliame, to visit the scene. He saw the shop keeper standing outside his shop. The padlocks to the burglar bars and the aluminium door were missing. The shop had been forced open. Whilst he was at the scene, a man named Josese came and told him that Seru came to his house at about 4 am that morning. He said Seru was drunk and smelt of liquor; he had known him for the last 3 years; it was unusual; Seru asked him if he wanted to buy anything; he said no and Seru left. Sgt Sen recorded Josese's statement. He was the investigating officer. He took the statement and briefed the crime officer, Sgt Sumeshwar. He was directed by him to go to Seru's place. He went to Navakai with officers Daniel, Tevita and Viliame. Constable Daniel went and enquired about the suspect's whereabouts. Officer Daniel went into the house and a lady called the suspect. Daniel brought him to the police van. The suspect looked abnormal. He was limping and moving very slowly. He sat between the two officers at the back of the van. They did not speak in the van. They went straight to Namaka police station. The suspect is the plaintiff Seru in this case. He was taken to the "bure". An entry was made in the station diary, entry number 45 – "0905 hours: PC Tevita and party brought in one Apenisa Seru of Navakai for questioning vide crime base" for Wednesday 30 August 2006. He was brought in for questioning from Josese's information. PC Daniel took him to the "bure".

[32] In cross examination he said he filled the investigation diary. He disagreed that he treated the plaintiff as a "culprit" rather than a "suspect". But he admitted that the entry in the investigation diary[2] that the plaintiff was brought into the station at 1005 hrs was incorrect. The correct entry was in the station diary which was 0905 hrs[3]. He said the plaintiff was already limping when he was brought into the station. The plaintiff was released during the interview to be taken to the Nadi hospital. The entry in the station diary[4] was that it was done at 1400 hrs. The reference to "Nadi P/S" should have been "Nadi hospital". Although there was no entry that the plaintiff was taken to the hospital, the diary also recorded[5] that he was brought back to the station at 1615 hrs "after medical check". Sgt Sanjay said he knocked off at 10 am and resumed duty on the next day at 8 am. He asked PC Daniel and the crimes officer and they gave him the plaintiff's record of interview. The record of interview[6] taken on 30 August 2006 did not have the start and conclusion times for the interview. The plaintiff was locked in the cell because he was being charged and he was drunk. The plaintiff was sober on the next day and was interviewed under caution. Sgt Sanjay was sure that the search of the plaintiff's house happened on 31 August and not the day before as he had entered it in the investigation diary. There were other incorrect entries for 30 instead of 31 August. He said the reason the plaintiff was not locked in the cell was there were already two prisoners in the cell and the plaintiff was already drunk and too drunk to be interviewed so he was taken to the "bure" for his own safety.

[33] The fifth witness for the defendants was PC Daniel. He now works at the water police in Nadi airport. He joined the police force in 2004. He served at the Namaka police station and was involved in the investigation of the plaintiff on 30 August 2006. He was informed by Sgt Sanjay that there was a break-in at Martintar on the previous night and was asked to assist; together with Viliame, PC Tevita and crimes officer Sgt Umesh. He went with the others to the scene. It was a high fenced compound. The shop door had been forced open. Sgt Sanjay and PC Viliame spoke to the shopkeeper. A Fijian man later came to the shop and spoke to the shopkeeper who referred him to them. He knew this man as Joe. Joe said he lived about two blocks from the shop and on the night before a man whom he knew as Apenisa Seru and staying at Navakai came to his home in the early hours and asked him if wanted anything such as foodstuff. The police acted on the information and they went to Navakai in the police vehicle. When they got there he was informed by a Fijian girl that Seru was staying there and pointed it out to him. He went to the house and after a while Seru came out. He explained why he was there. He told Seru that they had received information on the shop break-in at Martintar. He cautioned him as he made the arrest. Seru agreed to come to the station and PC Daniel followed him to the vehicle. Seru smelt of liquor, he was limping and not speaking much. The expression on Seru's face was that he was not feeling well. Seru did not respond when he was spoken to in the vehicle on their way to Namaka police station. The crimes officer was informed and PC Daniel was told to conduct the interview. The time was entered into the station diary and Seru was taken to the "bure". The entry was 0905 hrs. He was not locked up in the cell because there were two prisoners already in the cell and Seru was drunk. The cell was only a small cubicle with a bare concrete floor. Seru could not be interviewed straight away because he smelt heavily of liquor, had bloodshot eyes and appeared drunk. He was made to sit on a cushioned bench. PC Daniel was there in the bure with Seru until after 1 pm. When he was ready to interview Seru he went and asked him if he was fit to be interviewed and Seru requested to be taken to hospital. He informed the crimes officer of the request. Station diary entry showed that happened at 1350 hrs Seru was interviewed at the "bure". He disagreed that Seru was being interviewed at the noted time. He says the other entries[7] after that were that Seru was brought from the "bure" to Sgt Sumeshwar then locked in the cell. He was locked in the cell because there was no one to look after him at that time. At 1400 hrs Seru was released from the cell and taken to the Nadi hospital and not the Nadi police station as noted[8] in the station diary. He was brought back at 1615 hrs and locked up in the cell at 1617 hrs according to the diary notes.[9] The interview started after Seru was brought back from the hospital after 4.30 pm. Sgt Sumeshwar was present during the caution interview. No one else other than the three of them was present in the "bure". He did not enter the times in the statement. He made a mistake. No force was used. Seru gave his interview statement freely and signed it and he countersigned. The interview was continued on the next day 31 August 2006 then he suspended it to go and search Seru's house. The station diary entries[10] showed that Seru was released from the cell for an interview at 0905 hrs on 31 August 2006 and relocked in the cell at 1052 hrs. He was then released at 1110 hrs for the search at Navakai.[11] PC Daniel, PCs Eyavi and Avikash went to do the search. According to the station diary they came back to the station at 1159 hrs. PC Daniel could not remember when the interview was concluded but it was after the search. Seru was released from the cell at 1305 hrs by Sgt Sumeshwar as there was insufficient evidence.[12] He made no complaint according to the diary note.[13]

[34] In cross examination, PC Daniel said he is now a detective at the water police stationed at the Nadi airport. He went to the scene of the break-in with Sgt Sanjay, PC Tevita and PC Viliame. They were not the "strike back" team. That team was made up of officers from Nadi and Lautoka police stations. He said the strike back team accompanied them to Navakai but could not remember if they accompanied them to the Namaka police station. He did not conduct any tests to find out the plaintiff's sobriety but just observed that the plaintiff smelt of liquor and had bloodshot eyes and that he was not fit to be interviewed. He was not shaken in his evidence that the plaintiff was not interviewed until after he was brought back from hospital. The diary reference to interview at 1350 hrs on 30 August 2006 was incorrect. When asked about the entries in the cell diary[14] that the plaintiff was "brought in by Sumeshwar after interview" and "had difficulty in walking", PC Daniel explained that the entries were transferred from the station diary to the cell diary and different police officers made the entries in both diaries. He denied that he and the other police officers assaulted the plaintiff when he was in custody. He denied that the plaintiff was interviewed verbally first before the caution interview.

[35] On being questioned by me he explained that the times entered in page 4 of the caution interview 1230 to 1300 hrs were for 31 August 2006. All that happened on 30 August 2006 was he cautioned the plaintiff and put to him the reasons he was being questioned, starting at 1630 hrs. The interview proper, starting at "For the purposes of this interview ... " was conducted on the next day.

[36] The sixth witness for the defendants was Dr Tupou Yaqona. She is the subdivisional medical officer for Nadi. She referred to the plaintiff's medical report of 1 September 2006.[15] She explained that the "subjective" parts of the report like the "history" contained what the patient tells the doctor and the "objective" parts contained the doctor's assessment after examination of the patient. According to the report there were no bruises when examined in Nadi. She agreed that if the patient was continuously assaulted by six persons she would expect to find bruises. The Lautoka hospital file[16] report of the accident and emergency triage form for 1 September 2006 did not mention any bruising either. The report recorded that an x-ray was done and examined by a medical officer. The diagnosis was the plaintiff suffered fractures to the 5th to the 9th ribs on the left side of his chest. No fractures of the spine or abnormalities in his abdominal were found. Rib fractures are caused by blunt injury to the chest such as in a motor vehicle accident or a patient falling over or being hit by an object or object falling on the patient causing a crushing injury. There were no other injuries recorded in the reports. According to the medical literature on the subject, injuries with three or less fractured ribs are not considered serious and do not require hospitalisation. Treatment is by good pain relief. The fractures usually heal in four weeks.

[37] In cross examination the Dr Yaqona agreed that the report also mentioned "hemothorax on the left" which meant that there was collection of blood in the chest but it was "minimal". Such is usually caused by a penetrating injury. Bruising is caused by a blunt force on the skin that does not break the skin but the blood vessels underneath it do and bleeding results in the bruises. In a dark coloured person, the bruises may not be picked up on examination. The injuries are not consistent with the patient being rubbed with chilies.

[38] The seventh witness for the defendants was PC Viliame. He joined the force in 2004. He is now with the water police at Nadi airport. He was on duty on 30 August 2006. He recalled the break-in reported at Martintar of a shop. He visited the scene with senior officers Sanjay, Daniels and Tevita. PC Tevita drove the police vehicle. He noticed that there were two gates, the second gate padlocks had been cut and the door forced open and things scattered all over the shop floor. He spoke to the shop keeper and Sgt Daniel spoke to a Fijian man. He took the shop keeper's statement. He had no contact with the plaintiff after he was brought to the station. His next contact was after lunch when the crimes officer told him to take Seru to the hospital. They went with PC Tevita who was driving. They went straight to the Nadi hospital. PC Tevita filled out the form and referred him to a doctor. They waited for the doctor to examine Seru and then brought him back to the station. He never assaulted Seru whilst he was in custody.

[39] In cross examination, he said he denied that he and the other police officers verbally abused Seru on 30 August 2006. Seru was brought in and left with the crimes officer, Sumeshwar. He said he was sitting next to Seru in the police van and could smell liquor on him. He also noticed that Seru was limping.

[40] The eighth witness for the defendants was PC Tevita Kawa Naodea. He joined the force in 1995. He was stationed at the Namaka police station in 2006. He was on duty on 30 August 2006 as the driver of fleet number 139. He drove to the shop to attend to the break-in there with investigating officer Sanjay and PC Viliame. There were the four police officers and the shopkeeper at the scene. He could not recall where they went after that. He went to Navakai later to the house of the man that the shopkeeper told them about. He drove them back to the station and left them there. Later he drove Seru to the Nadi hospital, after lunch 1 pm, then back to the station. He noticed that Seru walked leaning to his left side.

[41] In cross examination, PC Tevita said he started at 7 am and finished at 3 pm on 30 August 2006. He could not remember the plaintiff's face. He denied abusing or assaulting the plaintiff.

[42] At the close of the defendants' evidence, counsel for the plaintiff applied to have the crimes officer Sumeshwar called on the basis that justice required it. Counsel for the defendants objected on the basis that his case is closed and the witness had not been subpoenaed. I accepted the objection and ruled against the plaintiff's application. I did not think the plaintiff was being prejudiced or was denied a fair opportunity to rebut any evidence pertaining to the proposed witness. Also, it was a two edged sword for the defendants under the Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 principle.

FINDINGS ON THE EVIDENCE

[43] I think what took place between 29 and 31 August 2006 was as follows. The plaintiff after finishing work at 10.30 pm went with one of his workmates to a bar in Nadi town on the night of 29 August 2006 and drank beer. They then went to the After Dark nite club at about 11.30 pm. They drank more beer there till the nite club closed at 1 am on the morning of 30 August 2006. I think they drank more beer than the plaintiff said in his evidence. I also think that the plaintiff was more inebriated than he said in his evidence. They parted ways and the plaintiff walked from the nite club in Namaka to his friend's (Josese's) house in Martintar close to the shop that was broken into in the early hours of that morning.

[44] There was no reason advanced to explain why Josese would make a statement to the police about the plaintiff which would be untrue. In his statement, taken on 30 August 2006, Josese said that the plaintiff came to his house at about 4.00 am on that morning and asked him if he wanted to drink "grog or beer" and to check whether Josese wanted food or drinks. He declined. The plaintiff was carrying a back pack. He had known the plaintiff through church over the last three years but this was his first visit after those years. He told the police that the plaintiff smelled of beer and had a cigarette which he gave to Josese to smoke even though the plaintiff did not smoke. The plaintiff told him that he was going to Sigatoka and his car was waiting at the road in front of the St Mary's school. The plaintiff left within 5 minutes of coming and talking to him. I therefore accept Josese's evidence as accurate and independent and placed the plaintiff at the vicinity of the shop break-in. I also accept that the police acted on the evidence and picked up the plaintiff for questioning and it was reasonable for them to do so.

[45] According to the plaintiff's own evidence, he caught a van from the main road near Josese's house and got off at the junction of Wailoaloa road and walked home from there in the dark. It is quite possible that he, being heavily drunk, may have taken a fall and had not realised that he had broken his ribs until he sobered up.

[46] I find that the information noted in the station diary more accurately records the chronology of events at the Namaka police station than the other records, with some exceptions which I will explain when I come to them. According to the station diary, the plaintiff was picked up from his home and brought to the station at 9.05 am on 30 August 2006 for questioning. I find that he accompanied the officers willingly and was not under arrest. I also find that he was already limping and injured at the time he was picked up. I accept the evidence of PC Daniel that the plaintiff was initially too drunk to be safely interviewed and was kept at the "bure" and not at the cell because the cell was already full and because of the plaintiff's drunken state. The station diary entries[17] showed that at that time there were three prisoners already in the cell.

[47] However, I do not accept, for the following reasons, PC Daniel's evidence that he only cautioned the plaintiff on 30 August after he was brought back from the hospital and that the interview proper did not take place until the next day. He said that the times in the record of interview, which were suspension of the interview at 12.30 hrs for lunch and resumption of the interview after lunch at 1300 hrs, were on the next day, 31 August. According to what he wrote in the record, the interview was suspended for the plaintiff's house to be searched. There were no other lunch breaks taken in between. The note in the station diary was that the plaintiff was released at 0905 hrs on 31 August 2006 from the cell for interview by PC Daniel and relocked in the cell at 1052 hrs then released by PC Daniel at 1110 hrs for search of the plaintiff's house at Navakai. PC Daniel wrote in the record of interview that the interview resumed after the search. Although the record of interview did not say that the plaintiff was given lunch on that day (31 August 2006), the station diary noted[18] that he took lunch at 1223 hrs. There were no other times recorded in the record of interview including the commencement and completion times. The record of interview was simply dated 30/08/2006. The plaintiff was released at 1305 hrs on 31 August 2006 as there was insufficient evidence and left without any complaint. That leads me to the conclusion that the plaintiff was interviewed on the morning of 30 August 2006, he was served lunch at about 1230 hrs (confirmed by the station diary entry) on 30 August 2006, the interview continued thereafter, then the plaintiff requested to be taken to hospital. Between 1352 hrs and 1400 hrs the plaintiff was taken from the "bure" and locked in the cell because there was no one else to look after him and was released from the cell and taken to the Nadi hospital (and not the Nadi police station as noted in the station diary) at 1402 hours.

[48] He was examined by a doctor at the hospital and given medication and returned to the Namaka police station at 1615 hrs and then locked in the cell at 1617 hrs. He was let out of the cell to relieve himself at 1622 hours then relocked in the cell at 1623 hrs by PC Daniel. He was not interviewed any further on 30 August 2006 and remained in the cell overnight. The station diary recorded that on 31 August 2006 at 0325 hrs the plaintiff was given his tablets.

[49] At 0905 hrs on 31 August 2006, PC Daniel released the plaintiff from the cell for interview. The plaintiff was relocked in the cell at 1052 hrs and released at 1110 hours by PC Daniel for search of his house. The interview resumed thereafter but it must have not been for long because only three questions were asked, which were the usual concluding questions of whether the record of interview was given freely without any force, promise or inducement. At 1305 hrs the plaintiff was released from the station as there was insufficient evidence to charge him. He left without complaint at 1306 hrs. The police dropped him off near his home.

[50] According to the medical evidence, which I accept, the plaintiff's injuries could be caused by him having a heavy fall and I am more inclined to accept that he did fall on his way home in the early hours of 30 August 2006 rather than his injuries resulted from assaults by police officers. There was nothing in the medical diagnosis to suggest that the police officers rubbed chilies on his private parts. The alleged assaults took place only a few hours before he was examined by a doctor. I find it difficult to accept that the plaintiff was brutally attacked over many hours, during working hours, on a working day, in a place which was not far from the hearing of members of the public at the market place close by, other police officers at the station and other workers in nearby offices, without someone noticing the plaintiff's screams for the officers to kill him. I also find that the plaintiff's recollection of the facts as he gave them in his statement and at the hearing unclear which suggested that he was very drunk on the morning of 30 August 2006 and could not remember exactly what happened.

[51] The alleged assaults occurred, according to the plaintiff, when he was being interviewed at the "bure" in the morning of 30 August 2006. That would be between 0905 hrs and 1352 hrs when he was brought from Sgt Sumeshwar from the interview to the station to be taken to hospital. I find that only two persons were present with the plaintiff during that time, PC Daniel who conducted the interview and Sgt Sumeshwar who was the accompanying officer. No other police officers were present at the "bure" at any time whilst the plaintiff remained there. Although PC Daniel did not accurately record the time sequences in the plaintiff's record of interview, that is not proof of assault.

[52] I am left with two possible explanations of the plaintiff's injuries – that he fell or somehow injured himself on his way home or, alternatively, that he was assaulted by these two police officers at the Namaka police station later on in the morning of 30 August 2006 over a period of about five hours. I find the first explanation more plausible for the various reasons which I have given above. It is for the plaintiff to prove that he was assaulted by one or all of the police officers. I am not satisfied that he has. Instead I find that he suffered his injuries before he was taken into custody.

[53] I also find that the police acted on reasonable suspicion and they released the plaintiff immediately after concluding that there was insufficient evidence to charge him.

THE LAW AND CONCLUSIONS

[54] Having found that the police did not assault the plaintiff and that he was already injured before he was taken in by the police it is not necessary for me to consider the law in respect of the plaintiff' claims based on assault, negligence and breach of statutory duty fail. Those claims fail on the facts.

[55] The plaintiff's claim for damages for false imprisonment was on the basis that after he surrendered himself to the police at their request, the police thereafter acted without reasonable or probable cause and with malice.

[56] The leading authority is the House of Lords conjoined appeals decision in R v Dep. Gov. of Parkhurst, Ex p. Hague; Weldon v Home Office [1992] 1 AC 147. In the Weldon case, the plaintiff was serving a prison sentence when he was dragged from his cell and assaulted by prison officers. Lord Bridge of Harwich, at p 162, in delivering the leading judgment, defined the tort of false imprisonment as follows:

An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. In Meering v Grahame-White Aviation Co Ltd 919190 122 LT 44, 54, Atkin LJ said: "any restraint within defined bounds which is a restraint in fact may be an imprisonment". Thus, if A imposes on B a restraint within bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restrain imposed on B as lawful.

[57] And on the issue of "bad faith", at p 164, after considering a series of cases, His Lordship said:

This consideration also leads to the conclusion that a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office.

[58] As to whether a lawful imprisonment may become unlawful because the conditions of confinement became intolerable, His Lordship said at p 165 - 6:

I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free. It is impossible, I think, to define with any precision what would amount to intolerable conditions for this purpose. ...

The logical solution to the problem, I believe, is that if the conditions of an other wise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful. I see no real difficulty in saying that the law can provide such a remedy.

Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian's duty of care for which the law should award damages. For this purpose it is quite unnecessary to attempt any definition of the criterion of intolerability. It would be a question of fact and degree in any case which came before the court to determine whether the conditions to which a detainee had been subjected were such as to warrant an award of damages for the discomfort he had suffered.

[59] The plaintiff has been restrained within defined bounds but the confinement cannot be unlawful under any of the principles cited above. The plaintiff's claim for false imprisonment also fails.

COSTS

[60] The plaintiff is unemployed. The State should absorb its own costs. I therefore make no order as to costs.

ORDERS

[61] The orders are as follows:

• (a) The plaintiff's claim is dismissed.
  
• (b) There is no order as to costs.
  

Sosefo Inoke
Judge

^[1] Exhibit P1, Defendant’s Supplementary Documents.
^[2] Exhibit P4, entry 08.
^[3] Exhibit P2, entry 75.
^[4] Exhibit P2, entry 84.
^[5] Exhibit P2, entry 96.
^[6] Exhibit P1
^[7] Entries 81 and 82.
^[8] Entries 84 and 85.
^[9] Entries 96 and 97.
^[10] Entries 56 and 77.
^[11] Entry 78.
^[12] Entry 94.
^[13] Entry 95.
^[14] Exhibit D3.
^[15] ABD 4.
^[16] Exhibit P3.
^[17] Entries 47 and 55 for 30 August 2006.
^[18] Entries 87 and 88 on 31 August 2006.