Government ordered to pay damages in Police trespass and unlawful arrest case

In her judgment of January 27, 2015 in Supreme Court Civil Case 71 of 2013 Justice Sey has awarded Claimant Serge Mamelin, Vt600,000 for trespass by the Vanuatu Police on his property at Salili and damages of Vt800,000 for his unlawful arrest and eight hours loss of liberty.

“It is clear from the evidence”, the judgment reads, “that the Police did not have a legitimate reason to enter Mamelin’s land on October 20, 2008 and that they trespassed without lawful justification”.

The background to the case was that Mamelin was at home when members of the Police went onto his property at about 8am following an alleged complaint made by Robert Monvoisin that Mamelin and his agents had entered Monvoisin’s property at Tanoliu and carried out illegal logging there.

At the time of his arrest Mamelin said he was threatened with a firearm, arrested without a warrant and escorted straight to Vila Police Station where he was searched and detained until 4pm during which time he was not given any food or water. When he asked for it he claimed he was told to shut up because he is a criminal, does not need food and if he needs water he could urinate in the toilet bowl and drink it. The treatment he had received he claimed was relevant to the quantum of damages the Court should award him. He also said that after he was released he discovered Vt13,000 cash missing from his belongings.

The Republic argued that in October 2008, Senior Sergeant Ron Tamtam who was the officer in charge of Tactical Response Group (the “TRG”) had received a complaint from Monvoisin. Tamtam then instructed various other officers to go to Mamelin’s house to inform him of the complaint and to invite him to go to the Police Station to answer it. Counsel on behalf of the Republic contended that the Police Officers had lawful authority to enter Mamelin’s premises and arrest him without a warrant because he was suspected of committing a cognisable offence [one that is within the power or jurisdiction of a particular Court to adjudicate] and that Mamelin refused to get into the Police truck. Instead he drove his own truck to the Police Station where he was detained.

In answer to questions put to them in cross examination two of the Police Officers confirmed that they did not have a warrant and that they acted on the orders of their senior officer based on the complaint laid by Monvoisin.

They were not able to produce the original complaint or a copy of the Police Occurrence Book (OB) where the formal complaint had been recorded. One of them said that the report in the OB had to be done by Tamtam, not by him and that the archives where the Police kept all the old OBs is not in a good condition for them to conduct a search for that particular OB.

In her judgment regarding the unlawful arrest and detention claim, Justice Sey says: “It is for Mr. Mamelin to prove the facts upon which he relies for his claims” going on to quote parts of his statements verbatim in Bislama, including Mamelin’s claim that although he was arrested and held in Cell 6 for 8 hours he was released without the Police taking any written statement from him.

The Republic, however, submitted that the reasons for Mamelin’s arrest and detention were not only lawful and done in good faith but also that they (the Police) are indemnified under section 40 of the Police Act.

This reversed the onus of proof.

It is clear, Justice Sey says, that the Defendant has raised justification. As such the burden of proof shifts to it to prove on a balance of probabilities that the actions of the Vanuatu Police Force were justified and based on law.

Provisions in Section 12 of the Criminal Procedures Code (CPC) enable a police officer to arrest a person without warrant. However, as Justice Spear said in Songi George & Ors v The Republic of Vanuatu Civil Case No. 242 of 2012, “the Police have no power to arrest a person just to enable him or her to be questioned. Nor does a mere instruction or direction, even from a Commissioner of police, carry the authority of a warrant to arrest or amount to an accusation that a person has committed a criminal offence.”

In Mamelin’s case the evidence pointed to his arrest having taken place as a result of instructions from Tamtam in order for the Claimant to be held in custody for inquiry and investigation.

Section 13 of the CPC stipulates that when any officer in charge of a police station requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall give instructions to do so in writing and specifically.

There was no evidence of written instructions.

To accuse a person of an offence, the Judgment says, “generally requires the initiation of a formal process for the laying of a complaint or at least a formal accusation being made and recorded. There is [also] no evidence that such a complaint was laid or even that an accusation was made by Monvoisin. The Defendant could not produce the Police OB nor was there evidence from Tamtam to say that he actually gave orders for Mamelin’s arrest. Notably, Mamelin was never charged and prosecuted for any offence.

The arrest and consequent detention of Mamelin were therefore outside the provisions of the legislations and unlawful.

On the issue of trespass Justice Sey referred to Bob v Stettin Bay Lumber Company Ltd in PNG in which the Court declared that five elements must be present for the action to succeed. In Mamelin’s case all five existed.

“It needs to be reiterated,” Justice Sey said, “that the police can only enter your property or home if:

• You have given the officers your permission for them to enter
• They have a warrant or Court Order to enter
• An arrestable offence is being committed or may be committed
• For the preservation of life.

Exceptions are times when the values of public safety, health, and well being outweigh the values secured through strict privacy protections. “The Courts have recognized this and they carve out an exception for police having to secure prior authorization through a warrant in cases of “hot pursuit” or cases where an illegal activity is being done on private property but “in plain view” of the public.”

This, however, was not the case in Mamelin’s arrest.

Regarding the missing Vt13,000 the Republic failed to challenge Mamelin’s claim either by its defence or by way of evidence in sworn statements. The Republic also failed to produce a copy of the detainee’s personal property register, which would have showed that his personal items were removed from him on 20th October 2008 and later signed out by him upon his release. Under cross-examination, it was put to Mamelin that it would be correct to say that the police never saw his Vt13,000. His answer was “They did see it. When I was released they threw my clothes on the floor as if I was a dog.”

The Court accepted the Claimant’s claim for Vt13,000 special damage on the balance of probabilities.

Mamelin had also claimed the sum of Vt2 million for ‘exemplary damages’ and that his Constitutional rights had been breached. Exemplary damages may be awarded where there is some deliberate oppression, where a tort is committed somewhat flagrantly or where warnings against repetition of such conduct have been given. They have generally been regarded as a mark of public censure against excessive misconduct and are not meant to unjustly enrich a party but, rather, are symbolic of the public’s indignation. These factors being not present in Mamelin’s case, that part of his claim was dismissed.

Mamelin was thus awarded a total of Vt1,413,000 with costs awarded against the Republic.