The applicant (F) claimed damages of $29,000 for being wrongfully assaulted by the police. F, aged 13 years (12 at the time of the incident), was savagely beaten by police officers after being falsely accused of theft. F was detained by the police for 20 hours before being released. F also claimed that he had suffered injuries as a result of the attack. Upon his release, F further claimed that he had been threatened. The police pleaded guilty and accepted that F had been wrongly accused.

Decision

F was awarded damages of $10,000, comprising $5,000 for wrongful confinement and $5,000 for exemplary damages. The court referred to the case of Akau'ola v Fungalei [1991] Tonga LR 22, and issued the following admonition to police officers:

A number of police officers still appear to believe that they have the right to exercise discipline over the public … such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets.

Police officers had to understand that their role in criminal investigation was exactly that – to investigate cases through interviewing witnesses and, through appropriate use of forensic methods, to gather hard factual evidence that would stand up in a court of law.

In December 1995, Tonga acceded to the CRC. The judge further said that though it still had to be properly ratified, the accession indicated a willingness by the nation to be bound by its terms. Article 37 of the convention sets out the obligations of a state concerning the apprehension and detention of a child (defined as a person under the age of 18 years). The opening words of each paragraph of the article are relevant to the present case. They read:

• No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
• No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
• Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
• Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …

In the present case, all of these obligations were flagrantly abused. However, in the assessment of damages, the fact that some Tongans have no regular source of cash income was taken into account with a view to keeping awards of damages in proportion to the value of money and general conditions in the Kingdom.


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