Tolpou v Sapien [2008] PGDC 118; DC922 (22 April 2008)

DC922

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CIR NO: 76 OF 2008

BETWEEN

STANLEY TOLPOU, BILLY TOLPU & FRANKY MAULI
Complainants

AND

MARTIN SAPIEN
Defendant

Aitape: Malcolm Samala
2008: April 15, 22

Case Cited

1. Ronald A.McKenzie v State [1999] PNGLR 526
2. The State v Lokes James Polu [1995] PNGLR 239
3. The State v Songke Mai [1988-89] PNGLR 56

Reference

1. Arrest Act 1977, s14, s 16
2. Constitution, s 37
3. Criminal Law(Compensation) Act 1991

Trial Matter

Defendant pleaded not guilty to unlawful assault of prisoners
Complainants - in persons, matter self prosecuted.
Defendant - in person.

22 April 2008

M. Samala: This is a quasi- criminal proceedings by way of information and summons to a person upon information pursuant to ss 28, 35, 41, 42, 44 & 47 of the District Courts Act, Chpt no: 40 for unlawful assault causing bodily injuries contravening section 6 (3) of the SOA.

2. The Complainants jointly are claiming K5 000.00 in compensation for injuries suffered from severe beating by Defendant a civilian police auxiliary when wanted by police on complaint by Awerah Ltd for theft of its cocoa beans at Raihu River side. Complainants were earlier acquitted by this court on charges of stealing contravening section 48C (1) of the Summary Offences Act after two adjournments for trial, first for plea mention on 22 January 2008 then set for trial on 6 February 2008, prosecution not ready having the matter stood over to 7 February 2008, prosecution failed again and finally dismissed for want of prosecution.

3. Complainants returned to sue for personal bodily injuries they suffered from Defendant a civilian auxiliary. Defendant during first plea mention on 26 March 2008 pleaded not guilty, set for trial hearing on 15 April 2008, completed, and return today for its verdict/decision.

4. Facts

The Complainants alleged in the morning of 14 January 2008 at about Ten O’clock (10:00am) they voluntarily report to Aitape Police Station after they been told by relatives the previous night that community policing members went looking for them and they in fact don’t know the reasons why they were wanted by police.

5. At that morning as soon as they got of the vehicle, immediately Defendant who is a civilian auxiliary approached them and without any explanation or reasons proceeded to assaulting them. Later he was assisted by other civilian auxiliary but that they only slapped them while Defendant acted alone to punch and kick them, as well as badly stamping on their toes and legs with heavy safety boot he was wearing at the time.

6. The assault by Defendant caused them severe neck, head and general body pain, they suffered sore toes and sore legs, prisoner Franky Mauli also suffered right black eye from the blows and punches delivered by defendant that time and that all three were left in the police cell without medical treatment for three (3) days before being released on K50.00 police bail each.

7. Defendant during first plea mention 26 March 2008 pleaded not guilty and denied liability raising in defence he was lawfully executing his duty when effecting arrest on Complainants wanted that time by police for theft of cocoa beans on 14 January 2008.

8. Evidence

In the Complainants case, they each gave sworn statements and further called two independent witnesses namely David Paoli who accompanied them to the police station that morning and witnessed how Complainants were assaulted by the Defendant and Chris Sause, a relative who also was present during Complainants voluntary reporting to police at 10 o’clock (10:00am) on 14 January 2008 and had also observed the assault by defendant.

9. In the defence case, the Defendant elects to give unsworn statement and could not be cross examined but called two independent witnesses, namely Paul Nawe and Eddie Momni, both are employees of Awerah Ltd, Paul a clerical staff while Eddie is a security person looking after Awerah cocoa plantation at Raihu River.

10. In the Complainants evidence, all three complainants gave credible account of assault by defendant, a civilian auxiliary.

11. Complainant Stanley Tolpou testifies that on 14 January 2008 he and two (2) other complainants voluntarily went to report to Aitape Police since they been wanted by them and as he got off the vehicle at the Station he was approached by Defendant whom he knows well and without any explanation or caution proceeded to assault him. He was there punched on his head, neck and kicked, further his legs and toes were badly stamped by Defendant intentionally with a heavy duty boot he was wearing and later was taken by the Defendant and thrown into the police cell.

12. He felt so much pain from the sores of his toes and leg caused by stamping, his neck, head and body caused by kicks and punches defendant delivered when placed in the cell for three days without being allowed bail.

13. The second Complainant Billy Tolpu gave the similar account in his testimony over assault and injuries he suffered at the hands of Defendant. He also stated that he suffered pain from sore toes and legs stamped by defendant and neck, head and body area kicked and punched when kept with his other two wantoks for three days without been charged.

14. Third co-complainant Franky Mauli, testifies he was treated the same, been slapped by other civilian police auxiliary members while Defendant acted alone to project worse assault on him where he was kicked and punched like his other two friends, suffered the worse with black eye injury to his right eye.

15. The pain to his neck and head and sore toes and leg caused by Defendant intentional stamping had made him quite sick for three days when left in the cell without treatment and that’s why he and others are suing for compensation.

16. All Complainants evidence of assault and injuries has not been refuted by the Defendant and not been weaken by cross examination. The complainants witnesses evidence were straight forward corroborating evidence of assault and bodily injuries where witness David Paoli testifies he was going to work at LLG and came to Police Station with the complainants that day 14 January 2008 since they were wanted by police.

17. There at the station, he saw Defendant started assaulting the three complainants and that he was punching them as well as kicking them. After the Complainants were badly beaten, they were then taken into the police cell to be detained that he left the Station to look for close relatives to be informed of their detention.

18. Second witness Chris Sause testifies he is a relative of Complainants so that day 14 January 2008 he accompanied them to the Station.

19. There at the Station, without seeing the police the Defendant an auxiliary police started assaulting them where he saw them being heavily punched, kicked and their toes and legs been stamped on by Defendant with his boot.

20. After the Complainants were beaten and taken into the police cell that he left the Station and returned home to tell relatives to cook food to feed them. It is also true that all their toes have sores from the stamping with body pains from Defendant’s beating.

21. In close of complainants’ case, Defendant did not weaken the strength of the case by cross examination, although raising in defence he was executing his lawful duties as an auxiliary police member, court finds it so difficult to believe him when he offered no genuine reasons in the use of excessive force causing bodily injuries complained of.

22. There was no evidence before court complainant’s resisted arrest, or attempted escape and in the absence of this convincing evidence to sustain his defence, I find the action for assault causing bodily injuries indeed was unreasonable and unlawful in the circumstances of the case, the Defendant’s defence of lawful assault failed and is guilty as charged.

23. Defendant elects to give unsworn evidence and his evidence in chief has been very brief in three (3) paragraphs only. He testifies that on 14 January 2008 he was effecting lawful police arrest after police received complaint of theft of cocoa from Awerah Ltd company where nine (9) suspects been reported for stealing cocoa beans and complainants were part of the group of nine who stole the cocoa.

24. Defendants evidence could not be tested in cross-examination as it’s unsworn. However, if he is helping out in police duties as an auxiliary police member, it is hard to believe him when he failed to call police own witnesses to corroborate his evidence that the assault was lawful.

25. Further, he as well failed giving no details of his duty statement reporting that day disclosing names of COs or NCOs in-charge supervising him and others on duty as all are subject to report to the NCOs in the group in the event of doing arrests and detaining prisoners when not trained policemen.

26. Moreover, he failed to state what arrest procedures under s 14 or s 16 of the Arrest Act he used when he saw the three wanted by police voluntarily reporting and in failing all these common sense facts, I find Defendant had grossly abused his privilege working as an auxiliary police.

27. Evidently, there were no justifiable explanations given in arrest procedures under s 14 or s16 of the Arrest Act applied that qualifies the actions of the Defendant needed in the defence he is claiming. And accordingly, in the whole of the evidence before Court, I am satisfied with the evidence of the Complainants and find that the assault on their persons by defendant causing bodily injuries on 14 January 2008 at Aitape Police Station was unreasonable and unlawful and find Defendant guilty as charged and equally liable to pay criminal compensation for bodily injuries caused to each complainant.

28. The evidence of two defence witnesses is of no help in this case.

29. First witness Paul Nawe his evidence is about the complaint made to police over theft of cocoa from Awerah Ltd and he knows nothing about the assault and injuries suffered by complainants at the hands of Defendant at the Police Station.

30. The second witness Eddie Momni, this witness is the security man responsible for reporting the theft of cocoa in January resulted in the beatings of complainants, and he testifies that in January 2008 he was at work keeping security at Awerah cocoa plantation at Raihu River side.

31. On that day, first, he chased nine guys with wet cocoa beans freshly stolen and harvested from the plantation and there pursued them to Raihu River where they ran with the beans into the river. He caught none, as well stating he is not even sure who they were.

32. On his way pursuing the nine, he met up with a couple namely Tadili Yokou and wife Catherine Yokou, and the couple told him to let them go but they will give the names of those involved.

33. Further he stated, on his return from the river he ran into two other persons with again a Ten Kilograms (10kg) cocoa wet bean bag freshly stolen and gave chase, the two also escaped and from the distance he was not sure who these guys were.

34. Later the couple he me during the chase gave the names of nine men involved in stealing cocoa beans and there, he reported and gave the list to his boss who later submitted the name list to police for charges to be laid.

35. This witness, if his evidence intended to influence court in any way that complainants stole cocoa in January as proof for theft over assault following arrest, that matter is res judicata and I won’t return to it, however, if given consideration, his evidence is also hearsay and not admissible in law when names of alleged thieves were given to him by couple Yokou and the real proof of persons involved in theft can not be tested in evidence as Yokous are not in court and can not be cross examined.

36. The Law

For the benefit of Defendant and others, it needs mention here that the procedural and legal qualification for arrest and detention of persons arrested either by police or citizens through citizens arrest power is well settled in this jurisdiction from the Supreme Court judgments in the case of The State v Songke (supra) and another judgment by three (3) bench judge in the case of Ronald Alexander McKenzie v State (supra) in that the power to arrest and detain another person under the Arrest Act comes with five conditions.

37. They are:-

1. The person arrested must be found committing or has committed a criminal offence for which the prescribed penalty is imprisonment: Arrest Act, s 5.

2. The force used, if any, to make the arrest or to prevent the escape of an arrested person must be reasonable in the circumstances: Arrest Act, s 14 (2).

3. The means or method used to detain a person arrested must be appropriate or reasonable in the circumstances: Arrest Act, s14 (2) & s 16 (2). As to what is reasonable depends on the given facts of each case. Relevant factors include the seriousness of the offence, resistance to arrest and the imminent risk of escape.

4. Detention must only be for the purpose of enabling the person arrested to be conveyed to a policeman, a police station, a Court or a proper place of confinement.

5. The person arrested must not be detained for any period longer than is practically and reasonably necessary for the purposes set out in paragraph (4), supra.

38. Defendant in this case has totally failed those five (5) required conditions with no apparent justification to use force and his case is a clear case of inhumane treatment with cruelty under the guise of authority in its worse sense, thinking he will take cover under police authority telling this court as well, he is doing police work to effect arrest in what he did is all lawful.

39. The protection of the law under the Constitution section 37 applies to all persons, including prisoners and this was well stated by Brown J in the case The State v Lokes James Polu
(supra) in that:-

The correct approach in PNG, as espoused by the Constitution, is that all people, including prisoners, should be treated in a humane way. Society should not allow its disciplined forces to arbitrary use inhumane treatment under the guise of authority.

40. Although, facts in Lokes Case compared with the current case not similar, Defendant here is only a police auxiliary but the beating occurred at the Police Station with excessive use of force that is really unauthorized by his NCO and considering that fact situation, the assault was unlawful and not within his line of duty, for it is personal with reasons known to defendant only.

41. Accordingly, with the reasons alluded to, I find the matter proven beyond all reasonable doubt in that Defendant is guilty and found him guilty as charged causing bodily injuries to Complainants respectively and as well, found Defendant liable to pay criminal compensation to Complainants.

42. For sentencing, the only documents Complainants each did not tender to court for full assessment and award of injuries under section 5 (3) (b) of the Criminal Law (Compensation) Act were the treatment cards or medical certificates and so, this in fact reduces the full award to their joint claim of K5 000.00.

45. Therefore, I find that an amount of K900.00 with a default imprisonment term of eight (8) months be sufficient for Defendant. Accordingly, I order that compensation in the sum of K900.00 and eight (8) months default imprisonment term be sufficient for this court to impose against Defendant as deterrent so that the like offence not to be committed again in future.

47. Sentence

Defendant is convicted and ordered to pay a sum of K300.00 in compensation to each Complainants, a total compensation of K900.00 to be paid within four (4) months indefault be sentenced to eight (8) months IHL at Vanimo CS.

All compensation payment be completed before 22 August 2008.

__________________________________

For Prosecution - Complainants in person
For the Defendant - Defendants in person for themselves