REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

LOSS of PROPERTIES
AT SANTO POLICE STATION

14.12.99

6173/9/21

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PUBLIC REPORT ON THE
LOSS OF PROPERTIES AT SANTO POLICE STATION

TABLE OF CONTENTS

1.	JURISDICTION
2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3.	RELEVANT LAWS, REGULATIONS AND RULES
4.	OUTLINE OF EVENTS
5.	RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6.	PRELIMINARY FINDINGS
7.	RECOMMENDATIONS
8.	INDEX OF APPENDICES

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1.	JURISDICTION

1.1	The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. This includes the actions of the Police. I can also look into defects in laws or administrative practices, including the mal-administration and unjust conduct of the Police.

2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1	The purpose of this paper is to provide an opportunity for you to respond to its contents and, if possible, to resolve outstanding issues before this Office issues a public report.

2.2	The scope of this investigation is to establish the facts about the loss of Mr. Peter Dick’s properties that went missing in Police custody and to determine whether or not the Police should consider providing reasonable compensation to him. 

2.3	This Office collects information and documents by informal request, summons, letters, interviews and research.

3.	RELEVANT LAWS, REGULATIONS AND RULES

3.1	CRIMINAL PROCEDURE CODE [CAP 136]

SEARCH OF ARRESTED PERSONS

S. 8 	Where a person is arrested and detained in custody, the police officer making the arrest or, when the arrest is made by a private person the police officer into whose custody he places the person arrested, may search such person and place in safe custody all articles other than necessary wearing apparel, found upon him.

3.2	PRISON ADMINISTRATION ACT [CAP 20]

PRISONERS TO BE SEARCHED ON ADMISSION

S.15	Prisoners on admission shall be searched and all prohibited articles (as hereafter defined) shall be taken from them. Their names, descriptions, and particulars of their sentence or imprisonment shall be recorded in the register book.

PRISONERS PROPERTY TO BE RETURNED ON DISCHARGE

S.16	On the discharge of a prisoner his clothes and other property handed in by him and appearing against his name in the prisoner’s property book shall be returned to him, and entry made accordingly.

4.	OUTLINE OF EVENTS

4.1	On 7 April 1996, Mr. Peter Dick was incarcerated. Mr. Peter was sentenced by the Santo Magistrate Court to two (2) years and six (6) months imprisonment for an offence of damage to property.

Mr. Peter committed this criminal offence while in Santo. He then took refuge in the capital, Port Vila, where he was arrested and was sent back to Santo to stand trial for the said offence. In Santo Mr. Peter was held in Police cell until he was sentenced. Upon the pronouncement of his sentence, Mr. Peter was sent back to Port Vila to serve his prison terms.

Mr. Peter alleged that while he was detained in the Santo Police Station, his properties (personal belongings) were confiscated by the Police. However, most of his personal belongings were returned to him, with the exception of the subsequent items worth an approximate value of VT7,450:

1pair of Adidas shoes worth VT7,000,
1 brown belt worth Vt450, and
1 pair of white socks.

With the intention of claiming reasonable compensation payment from the Police Department for the loss of his personal properties, Mr. Peter took the initiative to send a letter on the matter to the Police in Santo but received no response. Mr. Peter alleged that the CID officer who handled his case was Mr. George Alick.

It was only on 10 July 1996 that Mr. Peter lodged a formal complaint to the Ombudsman Office so as to check on the properties that had not been returned to him.

4.2	Upon receipt of this complaint, the Ombudsman of the Republic of Vanuatu sent on 28 August 1997 a notification letter under section 16(3) of the Ombudsman Act No.14 of 1995 of her intention to embark on an inquiry on the above complaint to the Officer Commanding Police District (Northern), Superintendent Paul Willie Reuben.

In the same letter, the Ombudsman also requested that under section 17 of the Ombudsman Act Superintendent Paul Willie Reuben provide his comments on this matter and furnish her with: the reasons for the police officers not returning the personal items as requested earlier on; the names of the other police officers who might have any knowledge of these items; and an explanation of the Police laws dealing with the confiscation of prisoner’s personal properties during arrest, custody and imprisonment (Refer to Appendix A).

4.3	On 27 April 1998, the OCPD(N), Superintendent Paul Willie Reuben, answered the Ombudsman’s letter in the subsequent terms [Refer to Appendix B]:

'1. The reason for the Police Officers not returning the personal items for this Ex-Prisoner was that Peter Dick and his friends arrested by the Police were taken before the court very late that day on a holding charges and later taken to the Santo Prison House.

In fact the Prisoners properties were to return the next day, but it was a pity that the CID building had been broken into and the items listed were also taken (Stolen).

2. Det. Sergeant A.G.Peter, Det. Corporal Sam Samson and Corporal E. Molisa submitted a statement respectively of their knowledge about these items. [Refer to Appendices C, D,and E]

3. I would draw your attention to CAP 136 Section 8 and 9 and also CAP 20 Section 8 of the Prison Administration involving Police laws dealing with confiscating of Prisoners personal properties during arrest custody and Imprisonment.'

4.4	Upon an analysis of the Superintendent’s response of 16 February 1999, the Ombudsman has drawn the following conclusions that:

(a)	In fact, section 8 of the Criminal Procedure Code allows police to place in safe custody the personal belongings other than necessary clothing;

(b)	Mr. Peter’s property (shoes, belt, and socks) was in the custody of the Police when it was stolen. The Police should have put the goods in safe custody. They did not, so the items were stolen. Thus, it is the responsibility of the Police to compensate Mr. Peter for the loss of his personal property. (In reality, if they don’t voluntarily pay him, it would not be worth going to court for compensation since the costs would be more than the loss).

4.5	On 4 March 1999, the Ombudsman sent a letter to the Police Senior Legal Officer, Superintendent Saling Stephen (Refer to Appendix F), to outline the basis on which the Police could be found liable in law. The Ombudsman asked Superintendent Saling to suggest that the Police compensate Mr. Peter and the Ombudsman offered the mediation services of her Office to assist the Police.

The Ombudsman’s letter requested that the Police provide good grounds for not paying any compensation for the loss of the said properties if the Police believed they could not be held liable. Moreover, the Ombudsman’s letter said that the Ombudsman then would consider proceeding with this inquiry on the basis of maladministration and unjust conduct of the Police.

However, if the Police considered providing reasonable compensation to Mr. Peter, then the Ombudsman would consider this matter resolved.

4.6	In his letter dated 15/05/99 to the Ombudsman, Superintendent Saling explicitly stated that:

'We are advised that the said properties were kept at the CID office in Santo and unfortunately the said office was broken into by an unknown person and amongst others, that were stolen therein.

Owing to the fact that it was an act committed outside our control, we respectfully submit that our clients are not liable to repair the loss.' [Refer to Appendix G]

4.7	On 28 June 1999, the Ombudsman thanked Superintendent Saling for his letter dated 12/05/99 and reiterated this Office’s position on this matter. Under sections 8 and 9 of the Criminal Procedure Code [CAP 136] and section 20 of the Prisons (Administration) Act [CAP 20] empower the police to confiscate properties belonging to any accused person. However, section 16 of the Prisons (Administration) Act [CAP 20] provides that 'on the discharge of a prisoner his clothes and other property handed in by him and appearing against his name in the prisoner’s property book shall be returned to him, and entry be made.'

The Police have a statutory duty to safeguard prisoner’s properties and to return them when the prisoner is ready to leave the prison.

5.	RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1	The preliminary report in this matter was issued on 6 September 1999 to provide the persons or bodies complained about or affected an opportunity to reply to the preliminary findings made against them.

5.2	The preliminary report was issued to the following people: 

-	Mr Peter Bong				 Police Commissioner
-	Superintendent Saling Stephen		 Senior Legal Officer
-	Corporal Sam Samson			CID Officer
-	Corporal E. Molisa			CID Officer
-	Sergeant A.G. Peter			CID Officer
-	CID Officer George Alick			CID Officer
-	Mr. Peter Dick				Complainant / Prisoner

However, the Ombudsman has not yet received any response from anyone of them.

6.	PRELIMINARY FINDINGS

6.1	Finding 1:	The CID officers in Santo Police Station had breached their duty of caring for Mr. Peter’s property which they should have returned to him upon his discharge from prison. The Police’s breach of duty may amount to negligence.

The report clearly indicated that the CID officers in Santo Police Station, particularly Sergeant A.G. Peter, Corporal Sam Samson, and Corporal E. Molisa, acknowledged the break-in that was conducive to the loss of Mr. Peter Dick’s property. Because of such incident, the CID police in Santo could not return the said property to Mr. Peter upon his discharge from prison.

In fact, they (CID officers) have a statutory obligation to keep and return the prisoner’s personal effects. Hence, failure to do so would amount to a breach of their statutory duty.

In this case the duty of care existed between the police and Mr. Peter Dick. At the time when the police officers took Mr. Peter’s possessions, a duty existed for the police to take care of those belongings until the time they are supposed to return them to Mr. Peter. A failure to do so would definitely amount to a breach of duty.

The prisoner’s possessions were kept in the police CID building where the Police have a duty to safeguard important items, including physical evidence, exhibits to be used in criminal prosecutions, and weapons. It is reasonable, therefore, to expect that the Police would take steps to ensure that they would keep the property that is under their care and control safe from loss or damage.

The police officers’ failure to secure the property over which they had control and the duty of care indicated that the police officers had failed to exercise their duty properly. At common law, this failure could amount to negligence.

6.2	Finding 2:	As a result of the Police’s breach of duty to secure and return property upon his discharge from prison, Mr. Peter suffered damage, which was reasonably foreseeable.

Mr. Peter Dick suffered damage when he lost his personal properties as a consequence of the police’s failure to take adequate measures to secure the property.

Indeed, the damage is not so remote as to free the Police from liability for the loss. Given the sensitivity and crucial importance of items commonly under the Police’s care and control, it is reasonable to expect that the Police would foresee the danger of losing those items if the items were not properly safeguarded. It is also reasonable to expect that the Police would take comparable steps to protect personal property that they have a duty to secure by statute and under common law.

7.	RECOMMENDATIONS

7.1	Recommendation No.1: 	The Police Force should compensate Mr Peter Dick accordingly for the loss under police custody of his property valued at 7450 Vatu.

7.2	Recommendation No.2:	The Police Force should ensure that the prisoners’ property under their care and control, as well as all court exhibits to be used in criminal prosecutions, are always kept in safe custody, so as to avoid any future loss or damage. 

7.3	Recommendation No.3:	Access to the room in which the prisoners’ property and exhibits are kept, should be limited to one officer who should be designated each shift so as to ensure accountability in the event of improper or illegal appropriation of certain items.

7.4	Recommendation No.4: 	Two or more officers should do the recording of the prisoners’ properties in the Register Book, where a superior will check the recording of the officers that make the first entry.

8.	CONCLUSION

8.1	To comply with Article 63(2) of the Constitution and Section 22 of the Ombudsman Act, the Ombudsman requests the Prime Minister and the Minister of Internal Affairs and the Police Commissioner to consider these recommendations and to put them into effect.

8.2	The Office of the Ombudsman must be notified of the decision and proposed steps to implement these recommendations within thirty (30) days of the date of this report.

Dated the 14th day of December 1999.

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8.	INDEX OF APPENDICES

A	Ombudsman’s letter date 28/08/97 requesting information from OCPD(N), Supt. Paul Willie Reuben, regarding the lost property.

B	Letter of Superintendent Paul Willie Reuben providing the reasons for not returning Mr. Peter’s personal items.

C	Statement of Sergeant A.G. Peter

D	Statement of Corporal Sam Samson.

E	Statement of Corporal E. Molisa

F	Ombudsman’s letter requesting the Police Department to compensate Mr. Peter.

G	Letter of Superintendent Saling Stephen dismissing police liability to repair the loss.

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