In the High Court of Fiji
at Suva
				       Civil Action No. HBC 155 of 2018
       	                                                          Umesh Mani
						 Plaintiff
                                                                              v
          			                            Commissioner of Police
					            Defendant
                     Counsel:           Mr  Devanesh Sharma for the plaintiff
                      Ms O.Solimailagi with Ms S.Taueki and Ms S. Ali   for   the defendant
         Date of hearing:  17th September,2018 
         Date of Judgment: 4th December, 2018
Judgment
1.	By originating summons filed on  29th May ,2018, the plaintiff seeks  orders that the defendant within 7 days “remove the irrelevant convictions from (his) Police Report dated 30th November, 2017” and the defendant issue a new Police Report to him. 

2.	The plaintiff, in his affidavit in support states that he wrote to the defendant requesting a Police Report,(Report) as he lodged an application with the US Embassy, to migrate. The Police provided a Report. The Report contained his previous convictions, which led to his visa being rejected. The plaintiff states that he was granted a Certificate of Rehabilitation on 18th July,2017. Since  his last conviction was 28 years ago, on 7th May,1990, and he has been granted a Certificate of Rehabilitation, his  “old convictions”  should not have been disclosed in the Police Report . 

3.	Rajesh Krishna, Police Officer, Director Legal at the Fiji Police Force headquarters, in his affidavit in reply states that the  Report was not provided to the person it relates, but to the organization, body, or any other recipient nominated by the plaintiff, the US Embassy. The plaintiff has not provided any evidence to prove that the Report led to his visa being rejected. A Certificate of Rehabilitation is provided to a person after the rehabilitation period has expired and the defendant is satisfied that the person is entitled to the certificate. The plaintiff by making an application to the defendant for a Report to be issued to the US Embassy, consented to the disclosure of all his convictions. The defendant was entitled to disclose the  Report, including all the convictions. 

The determination
4.	The question for determination in this summons  is whether the defendant should not have  disclosed the plaintiff’s prior convictions in the Report issued to the US Embassy, as he was granted a Certificate of Rehabilitation. 

5.	Mr Sharma, counsel  for the plaintiff  drew my attention to sections 20 and 22 of the Rehabilitation of Offenders(Irrelevant Convictions) Act,1997, which prohibits  a “person”  or “official ” from disclosing  any information, where “the rehabilitation period applicable to that conviction has expired ”, unless his consent was obtained. Mr Sharma submitted that the plaintiff’s consent was not obtained for the disclosure.  

6.	Ms Solimailagi, counsel  for the defendant agreed  that the Act makes it an offence to disclose convictions, when the rehabilitation period relating  to the convictions has expired. The plaintiff’s remedy is in a criminal court. She submitted further that the plaintiff, by making the application for the Report, consented to the  disclosure. Consent was a defence to any charge under the Act.  

7.	Mr Sharma, in reply submitted  that the plaintiff was not seeking a quashing or destruction of his records, but a removal of his irrelevant convictions, which are not permitted to be disclosed under the Act when the rehabilitation period relating  to the convictions has expired. He further submitted that a person must expressly give his consent for the disclosure. Consent cannot be implied.
8.	Section 20(1) (b) read with sub-section (2)  provides that a “person” who publishes or discloses any information where “the rehabilitation period applicable to that conviction has expired”,  commits an offence.

9.	Section 23 read with sub-section (2)  provides that an “official” who discloses or communicates any information where “the rehabilitation period applicable to that conviction has expired”,  commits an offence.

10.	 Sections 21 and 25 provides that  it is a defence to prove that the disclosure or publication was done with the consent of the person concerned.

11.	The Rehabilitation of Offenders(Irrelevant Convictions)Act,1997, makes it an offence to disclose prior convictions, where  a person  has been granted a certificate of rehabilitation. 

12.	 In any event,  it is a defence under the Act,  to prove that the disclosure was made with the consent of the person to whom it relates.

13.	I  agree with  Ms Solimailagi that the plaintiff  consented to the disclosure by making the application for the Report. The Report was provided to the US Embassy, as nominated by the plaintiff.

14.	The plaintiff’s summons fails.

15.	Orders 
(a)	The plaintiff’s originating summons  is declined.
(b)	The plaintiff shall pay the defendants costs summarily assessed in  sum of  $1500.

        A.L.B. Brito-Mutunayagam 
JUDGE
 4th December, 2018