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Mike v Tavake [2003] SBHC 78; HCSI-CC 134 of 2003 (6 November 2003)

CC No 134, 2003, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 134 of 2003

TIMO MIKE

-v-

ALLAN TAVAKE, THOMAS TAVAKE AND COMMISSIONER OF POLICE

High Court of Solomon Islands
(Brown PJ)
Civil Case No 134 of 2003

Date of Hearing: 6 November 2003
Date of Judgment: 6 November 2003

Ishmael Kako for the applicant
No appearance of defendants

Criminal Law - felony/tort rule - definition - rationale - application in the Solomon Islands
In Smith -v- Selwyn [1914] UKLawRpKQB 94; (1914) 3 KB 98; (1914 -15) All E R Rep 229

The complainant’s car was stolen during the time after the “troubles”. Police were alleged to have perpetrated the crime and on sold the vehicle. The proceedings were originally brought in the Magistrates Court, claiming conversion but apparent on their face, theft. The proceedings were transferred by order to the High Court. Facts appear from the reasons.

Held: The RSIP or RAMSI should furnish a report before further action may be considered in this cause, otherwise the court risks breaching the felony/tort rule.

Cases cited:

1. Smith [1914] UKLawRpKQB 94; (1914) 3 KB 98; (1914 -15) All E R Rep 229
2. Williams -v- Spautz [1992] HCA 34; (1992) 174 CLR 509; 107 ALR 635 at 544-545; 661

Oral application for return of vehicle

Findings and Reasons

This matter came before me on the 1 August when I directed that RAMSI take over the investigation of the theft of the vehicle presumably by the police. I understand that the vehicle is in RAMSI’s safe custody pending the resolution of their investigations. The complainant Timo Mike, comes to court today seeking the vehicle.

There has been no attendance by the various defendants but nevertheless, since RAMSI have the responsibility for the vehicle and the RSIP the responsibility for prosecuting any offenders arising out of the circumstances of this alleged theft, I do not need to bother myself over the non appearance of these various defendants.

At the time the complainant lodged this action in the Magistrate Court, the RSIP was bereft, and apparently incapable of carrying out its functions. Since RAMSI’s intervention, the proper procedures and application of the substantive law should prevail.

There was no attempt to take notice of the felony/tort rule in the Magistrate Court but that is excusable for as I say, the police were the very criminals alleged to have stolen this vehicle. Consequently the complainant may be said to have cause for instituting proceedings in the civil court for there was every reason to suppose the police would not assist him in his quest to recover his vehicle. The police who stole it had on-sold it. But the vehicle has been seized and is now in RAMSI custody.

I should say, on the evidence of the complainant, that I am satisfied that the vehicle belonged to him before the advent of his troubles.

The felony/tort rule:

(In Smith -v- Selwyn (1))

Phillimore L J said (at 105,233)

“It is a well established rule of law that a plaintiff against whom a felony has been alleged by the defendant cannot make that felony the basis of an action unless the defendant has been prosecuted or some good reason has been given why a prosecution has not taken place”.

The rule is the law in the Solomon Islands. It has been adopted by virtue of the 3rd Schedule to the Constitution. As I have said, good reason for instituting proceedings in the civil court was evidenced by the fact that the miscreants were the police, the very authority responsible for upholding the rights of the person aggrieved in this fashion.

The rationale for this ancient rule was expressed more recently in Australia by Deane J.

“The reason for the rule was said to be that a person injured by felony should be required to “prosecute before he can sue” on the basis that public policy required assistance in the enforcement of the criminal law. Examples of statutory enticement to initiate criminal proceedings range from provisions entitling an informer to seek and keep a pecuniary penalty to provisions enabling a criminal court or other tribunal to award compensation to the victim of a crime”. Williams -v- Spautz (2)

Before proceeding further with this case, since it has effectively remitted to the proper officers for investigation and if necessary prosecution in the criminal courts, I must seek a report from RAMSI as to the current state of the investigation and perhaps, prosecution, for to avoid doing so would clearly lay this Court open to criticism for it would ignore the substantive rule in Smith -v- Selwyn and be contrary to public policy.

Civil proceedings cannot be pursued in lieu of criminal proceedings, without regard to the felony/tort rule.

If RAMSI is satisfied that the vehicle may be released to the owner, this complainant without prejudice to their investigations or prosecutions, then they may do so. Some photographs, a report on condition and whatever else they consider necessary, may suffice, were they to release the vehicle to its owner, yet proceed with the defendant has been prosecuted or some good reason has been given why a prosecution has not taken place.

Of course, since the Attorney has been joined in these proceedings in place of the Commissioner of Police, an application by RAMSI or the Attorney for further direction in these proceedings is available.

I cannot order the RSIP or RAMSI to take steps which would interfere with their investigation by ordering the return of the vehicle at this juncture in the absence of the Attorney. But since the vehicle owner has been without his property for some time it may be sufficient for evidentiary purposes, to take photographs etc and release the vehicle. That is a matter for the Police.

I give liberty to the complainant to approach the court on 7 days notice to relist or for further order.

BROWN PJ