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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Case HBC NO.: 60 OF 2014
BETWEEN : SENITKI DUGU of Lot 8, Veta Place, Newtown, Special Constable
1ST PLAINTIFF
AND : SAMISONI NARIA of Kelland Street, Narere
2ND PLAINTFF
AND : PPO SOLOMONE TUINASAU, Prison Officer, Nasinu
1ST DEFENDANT
AND : SGT WAISALE WAQALEVU, Prison Officer, Nasinu
2ND DEFENDANT
AND : PENI ROKODIVA, Prison Officer, Nasinu
3RD DEFENDANT
AND : MALAKAI CAKAU, Prison Officer, Nasinu
4TH DEFENDANT
AND : MOSESE MATAITOGA aka SESE, Prison Officer, Nasinu
5TH DEFENDANT
AND : TOMASI WAQAVUKI, Prison Officer, Nasinu
6TH DEFENDANT
AND : THE COMMISSIONER OF FIJI PRISONS & CORRECTIONS, Fiji Corrections Services Headquarters, Suva
7TH DEFENDANT
AND : THE ATTORNEY GENERAL OF FIJI
8TH DEFENDANT
Counsel : Ms. N. Raikaci for the Plaintiffs
Ms. R. Pranjivani for the Defendants
Date of Hearing : 16th, 17th, 18th and 19th January, 2017
Date of Judgment : 31st March, 2017
JUDGMENT
INTRODUCTION
1. This action is filed by the Plaintiffs for seeking damages for the alleged assault by the Defendants. At the hearing only the
1st Plaintiff gave evidence and 2nd Plaintiff neither gave evidence nor called any witnesses for himself. The 1st Plaintiff and 6 other witnesses gave evidence for him. Apart from the 1st Plaintiff there were two eyewitnesses, two market vendors who gave evidence for his behalf. The other four witnesses that gave evidence
for him were two Police officers and two Doctors. One Doctor, who gave evidence, had not examined the Plaintiffs at all. The Defendants
had called five witnesses to give evidence on behalf of the Defendants. After the alleged assault the Plaintiffs were handed over
to the Police Station by the Defendants for prosecution against them. A Medical Examination Form was given to the 1st Plaintiff by the Police and it indicates some injuries. No x-ray was taken at or around the time of alleged assault though it was
also recommended. The 1st Plaintiff was an amateur boxer who was about to represent Fiji when this incident happened, and he was also a rugby player who represented
Police in Rugby. Defendants did not deny the arrest of the Plaintiff. According to them the injuries suffered were due to drunkard
behavior of the 1st Plaintiff due to the use of ‘minimum force’. According to the Defendants the 1st Plaintiff along with 2nd Plaintiff had sworn on them and had also made some vulgar gestures at them.
FACTS
2. In its Statement of Claim, the Plaintiffs allege that on 23 October 2010 between the hours of 5.00pm and 6.00pm, the Plaintiffs
were seated and waiting for a taxi in front of Means Product at Valelevu in Nasinu and that whilst sitting there, they were confronted
by the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants who accused them of being drunk and disorderly.
3. At the hearing the 1st Plaintiff never mentioned anything about waiting for a taxi, but also admitted drinking rum with 2nd Plaintiff and also another person.
4. The Plaintiffs claim that in the course of this confrontation, the Plaintiffs were allegedly assaulted by the 6 Defendants in that they were punched with fists, kicked with boots and beaten on the head with a 4x2 piece of timber and that they were verbally abused and humiliated in front of onlookers.
5. That due to the alleged assault by the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants, the Plaintiffs suffered injuries. The particulars of injuries are as follows for the 1st Plaintiff:
a) Bilateral ecchymosis – left/right periorbital region;
b) Teeth (incisor) unstable;
c) Extraction of tooth;
d) Bruised left cheek bone and left scalp;
e) Reduced range of movement of jaws;
f) Soiling of clothes; and
g) Discharge of block bloods clots with excrement.
6. The Defendants have denied all allegations of assault but admitted that, on 23 October, 2010, the Plaintiffs swore at the Defendants who were travelling to Nasinu Corrections facility. The 2nd and 4th Defendants confronted the Plaintiffs. The Plaintiffs were drinking in a public place and proceeded to ‘arrest’ the Plaintiffs.
7. The 1st Plaintiff called 7witnesses, Mr. Senitiki Dugu (PW1), ASP Kasiano (PW2), PC 4670 Aminiasi Toga (PW3), Viniana Lolovuca (PW4), Aqela (PW5), Dr. Isikeli Litidamu (PW6) and Dr. Osea Volavola (PW 7).
8. The 2nd Plaintiff did not give evidence or called any evidence on behalf of himself throughout the proceedings and no evidence was tendered by him.
9. The Plaintiffs are Police officers and in 2010 they were in the Ready Action Unit for the Southern Division in Valelevu and lived in the Police Barracks. He described the events that happened shortly before the alleged assault. He admitted drinking rum with 2nd Plaintiff and another person who brought the rum bottle. The Plaintiff said he did not drink on the side of the main road where they were allegedly assaulted, but went to a side to drink. The Plaintiffs were not wearing uniforms at that time.
10. According to the Plaintiff he did not know why the Defendants who were all dressed in their uniforms as Prison Officers, assaulted them.
11. The Plaintiff said that though he was an amateur boxer who was training to represent Fiji in a major competition, he did not
retaliate to the assault as he respected the uniform of the Prison Officers.
12. They were assaulted by a group of Prison Officers and they were identified by their name tags and they assaulted him all over
my body, specifically head, nose, cheeks, and shoulders. After the assault the Prison Officers lifted both the Plaintiffs and threw
us in the back of the truck they were travelling.
13. According to 1st Plaintiff while the Plaintiffs were at the back of the truck, they were further assaulted on legs and hands with a 4x2 piece of
wood that was on the vehicle. They were taken to Valelevu Police Station which was about 100m away from where alleged assault happened.
14. In the Police station none of them were tested with breathalyzer or any other test to measure their intoxication. Instead they
were kept in the Police cell and later given Medical Examination Forms for the report of the injuries sustained.
15. The complaint against Plaintiffs was drinking at public place and insulting Prison Officers (see P23).
16. The PW2 is ASP Kasiano and he was then Operation Commander of the Ready Action Unit in 2010. He said that on 22 October 2010, he received a call in the evening informing him that 2 officers were locked up in Valelevu Police Station and proceeded to that Police station. According to him they were ‘badly injured’ and he had ordered them to be taken for medical examination as soon as possible. He was also told that there was no transport available to take them to medical treatment, but instead of arranging some transport for the ‘badly injured’ he had proceeded to his work.
17. The other Police Officer who was called as a witness was a Police Constable who was attached to the Valelevu Police was on duty
at the Valelevu Police Station from 3pm to 11pm on 22.10.2010 and he recalled the incident where the Plaintiffs were brought to
the Police station by some Prison Officers. They had indicated that they had assaulted them as they had sworn at them. He had seen
visible injuries to the Plaintiffs such as cut lips, and swollen faces.
18. The PW4 is Viniana Lolovuca who was a market vendor at the Valelevu Market in 2010. The market was opposite the place of alleged
assault.He had seen the Plaintiffs before the incident and he had seen the Prison Officers punching the Plaintiffs. According to
her the Plaintiffs were quiet when she passed them and did not hear anything they uttered. Though they had seen the assault, they
had not seen them drinking.
19. The PW5 is Aqela who was also a market vendor and his evidence is also similar to the PW4 as to the main points, stated earlier and I do not wish to repeat them. The only difference was that he had seen the incident from a distance, on the other side of the road.
20. The PW6 is Dr. Isikeli Litidamu who is a General Practitioner at Suva Private Hospital who had examined the 1st Plaintiff, after about 3 years from the incident (see P14), on 26 February 2013 for the first time. On the first occasion he was
complained of chronic body aches, dizziness, memory loss, nose bleeds and joint pains. He had asked for a possible cause of the
symptoms and the 1st Plaintiff relayed his history of being assaulted in 2010. According to him the symptoms were secondary to trauma received. He knew
about the Plaintiff’s history as a boxer and said that the trauma could be a result of boxing.
21. The PW7 is Dr. Osea Volavola who is currently the Acting Head of Emergency Department at the Colonial War Memorial Hospital and
he had not examined the Plaintiffs and all his evidence was from the Medical Examination Forms submitted marked as P 2 at the hearing.
He said that x-ray unit of the hospital worked even in the night and he could not explain why x-ray was not taken. He said that
P2 was incomplete.
22. The Defendants had 5 witnesses, Mr. Peni Rokodiva (2nd Defendant), Mr. Sitiveni Raitamata Tuninasau, Mr. Tomasi Waqavuki (6th Defendant), Mr. Waisale Waqalevu (2nd Defendant) and Mr. Solomoni Tuninasau (1st Defendant).
23. The 2nd Defendant gave evidence as the senior officer present at the time of the alleged assault and said that he is now a retired Corrections Officer. In 2010, he was an Assistant Superintendent at the Nasinu Corrections Facility (Prison). After a parade, he and 6 other officers got into a twin cab and made their way towards Nasinu Corrections Facility he was informed by Waisale (2nd Defendant) to stop the vehicle as the Plaintiffs were swearing at them. Hence he had ordered the vehicle to be turned back and it returned to the place where swearing took place. It was stopped by the side of the road. He said that there were Plaintiffs and another person and they were also having a half empty rum bottle. When one of the officers approached the Plaintiffs became aggressive and held the collar of the officer and at that point he ordered the others to ‘arrest’ the Plaintiffs. He said when PPO Malaki Cakau’s neck was held by the Plaintiffs and they pushed him aggressively and a ‘scuffle broke out’. He blames the Plaintiffs for the said incident and further said that they were not aware that the Plaintiffs were Police officers. He was not informed about this fact till they took them to the nearby Police Station, which was only 100 m away.
24. According to him the 6 other officers in the twin cab were Tomasi Waquvuki, Waisale Waqalevu and Solomoni Tuninasau, 4th Defendant, Apimeleki Tukai and 5th Defendant.
25. The next witness called for the Defendants was not at present at the incident of the alleged assault, but the investigation officer of the incident. He said that according to the report prepared by them the Plaintiffs were drunk and had sworn at Prison Officers.
26. Sixth Defendant gave evidence, and on 22 October 2010 he was the driver of the vehicle where other officers were travelling after a parade. He had heard the swearing but was unable to identify who did it. He said that he was asked to park the vehicle where the Plaintiffs and he did it.
27. Second Defendant, Waisale Waqalevu gave evidence and said on 22 October 2010 at 6.10pm he could recall him along with 6 other Prison Officers returning from Suva to Nasinu Prison in a twin cab. He was sitting at the back of the twin cab with the 4th Defendant Malakai Cakau. He said that he heard the Plaintiffs swearing and also making obscene gesture at Prison officers, and he had informed the senior person and went to the place where the Plaintiffs were and asked why they swore at Prison officers. He said 4th Defendant also came with him and they smelt the liquor when went near to the Plaintiffs. They were drunk and Plaintiffs advanced towards them and tried to punch them, and this resulted in a scuffle and the other Prison Officers got off the vehicle to help arrest the two men, they were apprehended put in the back of the twin cab and taken to Valelevu Police Station, which was about 100m away. Till then he was not aware that the two men were police officers.
28. First Defendant, Mr. Solomoni Tuninasau gave evidence and he is presently retired from service. He recalled on 22 October 2010
he was returned from the parade with other Prison Officers in a twin cab. He was inside the cab and heard the swearing.
ANALYSIS
29. The 1st Plaintiff in his evidence said that he and 2nd Plaintiff were assaulted by the Prison officers, and he was unaware of any reason for assaulting. The 2nd Plaintiff opted not to give evidence or called for evidence on his behalf, to prove any injury to him on the alleged assault. On
the balance of probability the 2nd Plaintiff had not proved any injury to him. Hence, the claim of the 2nd Plaintiff is not proved on the balance of probability and it is dismissed.
30. 1st Plaintiff gave evidence and according to him he was not intoxicated, though he had about three nips of rum less than one minute. If he was not intoxicated and was confronted by Prison Guards, he should have revealed that he was a Police officer and there would not have been any sort of confrontation.
31. The Defendants who were at the scene said that they work very closely with the Police and they came to know that the two persons they arrested belonged to the Police only when they were taken to the Police Station, which was about 100m away.
32. The 1st Plaintiff’s evidence that he was unaware of the reasons for alleged assault cannot be true. His evidence, that he was not drunk at that time cannot be accepted in the analysis of evidence on the test of probability. If he was not drunk he would have retaliated, and or revealed to the Defendants that they were Police officers.
33. The Police Station was only about 100m away and there is no reason for the 1st Plaintiff to be assaulted by Prison officers for unknown reason. So 1st Plaintiff’s evidence cannot be relied upon.
34. Though the Plaintiffs were locked up in the Police Station no test of their intoxication was done or ordered.
35. From the analysis of evidence, on the balance of probability it is proved that the Plaintiffs were drinking rum shortly before the alleged assault and they had not revealed that they were Police officers to the Defendants. The Defendants became aware that they had arrested two Police officers when they took them to the Police. So, the Plaintiffs had acted in a manner that was unusual to a Police officer would act under similar circumstances. This proves on the balance of probability that the 1st Plaintiff at that time acted irrationally in a strange manner and this may relate to a fairly high level of intoxication. That may have been the reason to keep them in Police Cell.
36. The senior Police officer who was in charge of the unit to which the 1st Plaintiff was attached gave evidence. He held the rank of ASP in the Police and he said that as soon as he received the information of the arrest of the 1st Plaintiff he had visited the Police station. He had seen the 1st Plaintiff and had seen them locked in the Police Cell in the Police Station, and had spoken to the 1st Plaintiff but did not smell liquor. He had ordered that the 1st Plaintiff to be issued with ‘Medical Examination Form’ and ordered to be taken to hospital. He was also informed that there was no transport available in the station to take the two Plaintiffs to the hospital. According to his evidence 1st Plaintiff was badly injured.
37. As a senior Police officer, he would have had grave concern as 1st Plaintiff was under arrest at that time. He would have inquired the possible charges against the 1st Plaintiff. If there was no smell of liquor why were they kept inside the Police Cell, would have been the first thing that he would have inquired. Why he let them inside the Police Cell and why he did not ask them to conduct breathalyzer test immediately to ascertain the level of intoxication? This inaction of the said ASP indicate that he had not acted as an independent and impartial person to ascertain the truth of the alleged complain against his subordinate officer. His evidence cannot be considered as an impartial witness. He should have examined the books to find out reason for their arrest and, or probable charges against them. Why a breathalyzer test was not conducted as soon as possible for an allegation of intoxication 100m away from Police, speaks for itself.
38. According to the evidence of said senior Police officer, he had seen that the 1st Plaintiff was ‘badly injured’ while he was inside the Police Cell. He had neither ordered prosecution of the alleged assailants, nor taken the Plaintiffs to the hospital or arranged any transport to take them to the hospital. If the 1st Plaintiff was ‘badly injured’ priority should for their treatment, but strangely when he was informed that there was no transport available, he had proceeded to his work place. This again shows that 1st Plaintiff’s injuries cannot be described as ‘badly injured’, or serious in nature. So his own behavior at that time was contrary to his own evidence that Plaintiffs were ‘badly injured’. So his evidence cannot be relied upon, as an impartial senior Police Officer.
39. Even the Medical Examination Form marked P2 does not indicate any serious injury and in the Prognosis or Recommendation part stated ‘Soft tissue injuries will heal over time’. In the Summary and Conclusion of the said form it stated that ‘Soft tissue injuries secondary to Physical Assault’. So, on the balance of probability it is proved that there were Soft Tissue injuries and this could be secondary to an assault and there was no evidence of 1st Plaintiff being ‘badly injured’. It was not proved that all the injuries in document marked P2 were due to the said assault. There is no proof that injuries other than ‘soft tissue injuries’ were due to an ‘assault’.
40. The two market vendors said that they had seen the assault. They had not seen the 1st Plaintiff drinking before the incident though one of them went even pass where they had a bottle of rum and a glass. The market vendor who had just passed the place where the 1st Plaintiff was drinking with two others had not heard the alleged swearing but had heard what the Prison Officers had uttered. Even the market vendor who was on the other side of the road had not seen or heard any swearing by any person at that time. This again shows that the two market vendors cannot be considered as impartial witnesses and for some reason they attempted to conceal the obvious facts. So, not much evidential value could be attached to their evidence, in the analysis. In the analysis their evidence did not pass test of probability, too.
42. The evidence of the Defendants who were at the scene was that they were attacked by the Plaintiffs first. This cannot be ruled out considering that the state of mind of the Plaintiffs at that time. If they could utter such swearing at some Prison Officers who were travelling in a twin cab, they could have easily started a fight if they were confronted or agitated by the Defendants. On the evidence before me, there is no proof on balance of probability as to who started the fight.
43. The Defence position that they tried to arrest and used the minimum force, cannot be accepted. The Plaintiffs were unarmed and there was no evidence of them being a threat to a group of Prison officers.
44. So, on the balance of probability it is proved that the 1st Plaintiff suffered ‘soft tissue injuries’ from the said confrontation with the Prison officers. The Defendants have exceeded minimum force required to arrest 1st Plaintiff and had cased ‘soft tissue injuries’. Next issue is what were the injuries caused.
46. The 1st Plaintiff’s medical report taken in 2015 was marked as P24 and 2013 report was marked P14. They were regarding the chronic pains and the Doctor who gave evidence said that those complaints can be due to injuries in boxing. So on the balance of probability there is no proof that the said reports were result of alleged assault.
47. The x-ray reports marked as P3 and P4, were also issued on 14.11.2011 nearly one year after the alleged assault happened on 22.10.2010. This also indicates that the 1st Plaintiff was attempting to produce evidence that are unrelating to the incident for exaggeration. The injuries due to his sporting activities including boxing and rugby cannot be the basis for the present claim. The Doctor admitted that injuries in his reports (p14, p25) can be caused by boxing.
48. Since the Plaintiff was unable to prove on the balance of probability specific injuries from the assault of the Defendants, considering the injuries to the soft tissues I would award a general damage of $5,000. I do not award any damages for special damages as there was no proof of such a need for special damages (see document marked P2).
FINAL ORDERS
Dated at Suva this 31st day of March, 2017
......................................
Justice Deepthi Amaratunga
High Court, Suva
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URL: http://www.paclii.org/fj/cases/FJHC/2017/255.html