Kirino v Independent State of Papua New Guinea [1998] PGLawRp 777; [1998] PNGLR 351 (25 June 1998)

[1998] PNGLR 351

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEVEN KIRINO ON HIS OWN BEHALF AND AS REPRESENTATIVE OF 24 MEMBERS OF THE SUA CLAN AND THEIR FAMILIES OF CHUAVE, SIMBU PROVINCE; AND

DERRY MUROA ON HIS OWN BEHALF AND AS REPRESENTATIVE OF 23 MEMBERS OF THE GAI KIRINO CLAN AND THEIR FAMILIES OF CHUAVE, SIMBU PROVINCE.

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

GOROKA: SAWONG J
25 June 1998

Facts

The plaintiffs sue for and on behalf of themselves and forty five others for an illegal search and raid conducted by the police and soldiers on the plaintiffs’ villages when police and soldiers entered the village, arrested the plaintiffs, burnt down houses and their contents, shot and killed livestock, unlawfully arrested and detained them. The defendant failed to file its defence and a default judgement was entered. On assessment of damages,

Held

1. Plaintiffs are entitled to damages for breaches of constitutional rights but no further and specific damages for specific incidents alleged including rape, attempted rape, assault etc. because the splitting of damages in this way may amount to damages being awarded twice for breach of the same constitutional right. Hence a global sum of K2,000.00 to be awarded to all the plaintiffs as general damages.
   
2. Special damages of K35,079.00 awarded.
   
3. Award of exemplary damages is discriminatory following the award of general damages.
   
4. When the actions of policemen go beyond mere non-compliance with a statutory provision, the individual policeman, if identified, and sued is personally liable to pay exemplary damages. The State is only liable to pay exemplary damages for technical breaches or indiscretions committed in the execution of the policeman’s lawful functions, statutory or otherwise: Abel Tomba v The State (1997) Unreported Supreme Court judgement SC578 adopted and applied.
   
5. In the circumstances of the present case, the actions complained of were not authorized or sanctioned by the State and none of the policemen have neither been identified nor mentioned as parties to the proceedings. Hence exemplary damages refused.
   

Papua New Guinea cases cited

Abel Tomba v The State (1997) Unreported Supreme Court judgement SC578.

David Wari Kofowei v The State [1983] PNGLR 449.

Special Constitutional Reference No. 1 of 1990 [1990] PNGLR 532.

Re Criminal Circuits in Eastern Highlands [1990] PNGLR 82.

Counsel

G Muroa, for the plaintiffs.
R Tuva, for the defendants.

26 June 1998

SAWONG J. This was a trial on assessment of damages. The plaintiffs’ claims are based on an illegal raid conducted by unidentified policeman and soldiers at Namandiri and Suagawa villages in the Elimbari area of Chuave District, in the Simbu Province. The raid was carried out on 22 June 1992.

The plaintiffs bring a representative action on behalf of themselves and 45 others. Their representation has not been challenged by the defendant and accordingly, under O5, r13 of the National Court Rules, any judgement or order of this court is binding on all persons they represent. But it is quite clear that they represent all the plaintiffs whose names are in the proceedings.

Liability is not an issue, as due to the defendant’s default, default judgement was entered against it on 25 October 1995 and entered on 7th November 1995.

The history of the matter is as follows. There was some argument between some young men from the plaintiffs’ villages and the supporters of a candidate in the 1992 General Elections. The argument was over the manner of distributing ballot papers by the said candidate’s supporters, as the said supporters were distributing the said ballot papers at night and were using a private vehicle. The said young men stopped those supporters and the said supporters who had with them a mobile radio, used it and called Chuave Police Station falsely alleging that the said young men had stopped them and destroyed the ballot papers. The unidentified policeman and soldiers numbering about 20 men, armed with firearms entered the said villages and assaulted the plaintiffs, and stole or destroyed their properties.

In support of their claims, each of the plaintiffs has filed affidavits setting out the items or personal properties each of them lost. They have also set out in their respective affidavits, the particular constitutional rights that were infringed. Only 16 of the plaintiffs were cross-examined on their evidence and the rest of the affidavit evidence was tendered into evidence by consent. The cross examination of those witnesses did not destroy in any material particulars the crucial parts of their evidence. All it did was for those plaintiffs to confirm their evidence. The defendant did not file any affidavit evidence in reply nor did it bother to call any other evidence to dispute or contradict the evidence of the plaintiffs. The evidence from the plaintiffs, therefore, stands undisputed and undestroyed. It follows that I accept the evidence of the plaintiffs.

The plaintiffs’ claims fall under several headings and I will deal with each of them in turn. They each claim general damages, damages for infringement of Constitutional rights, special damages, exemplary damages, interest and costs.

(a) General Damages

It is quite plain, on the undisputed evidence, that the plaintiffs are entitled to be awarded general damages. It has been submitted by counsel for the defendant that the plaintiffs have not proved any loss or damages because there is no photographic evidence to support the plaintiffs’ evidence. I reject this argument as misconceived. Photographic evidence is but one of the ways of proving a matter. It is not the only way of proof. The argument that because no photographic evidence was produced, the plaintiffs’ claim must fail is without any merit at all. It is so because there is undisputed evidence before the Court as to what happened, and who lost what.

In these circumstances I accept the evidence by the plaintiffs. I do not accept some of these submissions put on behalf of the plaintiffs. I accept the submission that the plaintiffs are entitled to be compensated for breaches of their various constitutional rights. But I do not accept the submissions that further damages ought to be awarded to those plaintiffs who were assaulted, raped or subjected to attempted rape. The splitting of damages in that way would in my view amount to damage being awarded twice for the breaches of the same constitutional rights.

In the circumstances, I accept the submission put forward by the counsel for the plaintiffs and award a global amount of K2,000.00 each. There shall be an award of K94,000.00.

(b) Special Damages

I accept the figures as provided by the plaintiffs in their evidence. As there is no contradictory evidence, I accept the amount and figures deposed to by the plaintiffs. I also accept the submissions made and award a global figure of K35,079.00 for special damages.

(c) Exemplary Damages

The plaintiffs claim exemplary damages in the total sum of K23,500.00. The submission by the counsel for the plaintiffs was that exemplary damages should be paid to the plaintiffs on the basis that the policemen and soldiers were under a duty to protect the lives and property of the people like the plaintiffs in the present case. It was submitted that the duty did not extend to raiding villages, causing damages to or destroying property or assaulting citizens. It was submitted that an award of exemplary damages would cause the defendant to instill discipline onto its servants and agents. Mr Muroa has referred to many National Court decisions where the court has awarded exemplary damages.

It is quite trite that an award of exemplary damages is a discretionary one.

The issue of exemplary damages has been comprehensively considered in by the Supreme Court in Abel Tomba v The State, (Unreported Supreme Court Judgement SC578 dated 7 April 1997). That decision is binding upon this court. One of the issues considered in that case was "whether whenever there is a claim for exemplary damages arising from an act of a policeman even if the act is so excessive, arbitrary and punishable, which is not sanctioned by the State policy, directives or by a Statute, the State must pay for it" (per Los J, at pp. 14 - 15) and the held that:

1. Exemplary damages follow the award of ordinary (general damages).
   
2. When the actions of a policeman go beyond mere non-compliance with a statutory provision, the individual policeman, if identified, and sued, is personally liable to pay exemplary damages. The State is only liable to pay exemplary damages for (technical) breaches or indiscretions committed in the execution of the policeman’s lawful functions, statutory or otherwise. Los J, gives two good examples of this at pp 19 - 20 as follows:
   

"I consider that Section 18 of the Search Act supports the view that the State cannot be made totally and blindly liable for an act of a policeman. The section says:"

"For the purpose of any civil proceeding, where the making of a search would otherwise be within the scope of a person’s employment, the mere non-compliance by an employee with a provision of this Act does not, of itself take any act of an employee, committed during the course of the search, outside the scope of his employment".

"It is my view that Section 18 envisages that certain acts that go beyond mere breach of any of the provisions of the Search Act the State as the employer cannot be liable beyond liability for general damages. For example a policeman stops a person and searches him knowing very well there exists no reasonable ground that the person may have in possession of stolen goods. He does it with other motives. Application of Section 4(4) of the Act may give a good example. Under Sub-section (4) where a male police officer has to conduct a search upon a female, it is mandatory that an adult female be present. But if a policeman because of time constraint or because no female adult is nearby conducts the search upon the female, he has committed a technical breach. The State has to be vicariously liable for general damages as well as for any punitive damages that may be awarded. On the other hand a policeman sees a female during a search that she needs to be searched but he wants to search her alone deliberately and orders her to take all the clothes of, and he fondles her a bit. This in my view is beyond mere non-compliance with Sub-section 4. The State cannot be vicariously liable for any punitive damages for such an act. Further example may be shown for breach of Section 12. This Section makes it mandatory to register all properties seized by a policeman. After a raid a group of policeman may come back with a number of goods and just as they are just about to register them, a senior officer orders them to conduct another raid immediately. They do so and return with more goods and reach the police station at midnight. They are so tired that they go to sleep. In the morning they return to register the goods but all the goods get mixed up with the goods seized in the subsequent raid. Some get lost. The State must be vicariously liable for the loss of the goods as well as for exemplary damages. However, if the same group of policemen returned to the station and did not register the goods deliberately so that the owners could not get them back, it is my view that the State could only be liable for failing to register thereby causing the properties to be lost. For the purpose of exemplary damages the State cannot be liable. The rationale is that exemplary damage is penal in nature. The State through legislative process has given strict standards and procedures and rules for the policemen to operate under. If they deliberately falter, they have to answer for their fault individually." (My emphasis.)

The principles to be deduced from the above two examples and the case of David Wari Kofowei v State [1983] PNGLR 449, is, per Los, J. at p 21 - 22:

"It is my view therefore that apart from considering whether the circumstances warrant award of exemplary damages and what amount is reasonable, the court also has a discretion to refuse payment on the grounds that the acts complained of were so excessive and beyond all expectations that required under statues, rules, and standards that the State should not be ordered to try. (sic) It is true as the Supreme Court so explicitly said in Kofowei’s case at p. 10 that the State is the embodiment of the people and the power the State exercise belongs to the people. When police exercise powers of search and arrest they do that on behalf of the people. The people must stand ready to support them for any breaches or indiscretions. But, how can the people be "punished" by ordering them to pay exemplary damages when they have done enough through legislative process by passing laws, rules and procedures under which the police must operate yet they deliberately go beyond all expectations to commit wrong? These considerations in my view must come into play when a court is exercising its discretion. If there is evidence that the State is failing to properly train, fund and generally facilitate its servants and performance then it is a relevant consideration whether the State should pay for exemplary damages ....

... Therefore the argument that the State as the embodiment of the people must be penalised for all the acts of the policemen who enjoy assaulting and injuring other people and or destroying their properties cannot be supported."

With regard to relevant matters of policy consideration, Los, J. at p. 23 says:

"There are also policy considerations that the courts must bear in mind when they are exercising their discretionary powers pertaining to award of exemplary damages. As exemplary damage is intended to punish and hence serves as moral retribution and deterrence for oppressive and arbitrary acts, should the four million people suffer for the acts of a handful of policemen? In an abstract way it may be a lesson for the leadership of the Police Force so that they can take a hard look at training and instilling discipline in the membership of the Force. But the State cannot go on spending money on paying damages and exemplary damages which are unplanned expenditures. The State has a more important obligation, which concerns the welfare and interest of the majority of the people - that is a planned expenditure to achieve "equalisation of services in all parts of the country" (National Goal Number 2 paragraph 4 of the Constitution). A multiplicity of demands upon the State to pay exemplary damages arising from unruly behaviour of a few policemen may force the State to make unconstitutional reduction of the budget appropriated by the National Parliament for different areas and functions of the government in the country as were discovered in Special Reference No. 1 of 1990 [1990] PNGLR 532 and in Re: Criminal Circuits in Eastern Highlands [1990] PNGLR 82."

I adopt and apply these principles to the present case. In the present case, it is quite clear that the actions complained of were not authorised or sanctioned by the State. None of the policemen and soldiers have been identified nor named in the proceedings. If they have been, then I would have no hesitation in making an award of exemplary damages against the individual policeman or soldier. As it is, I do not consider the State should be punishable for an act that it did not authorise or sanction. Consequently, I would not award any exemplary damages.

(d) Interest

I award interest at 8 percent per annum on the sum of K94,000.00 from the date of filing of the writ (25.5.95) to the date of judgement (25.6.98), which I calculated to be K23,175.00.

Summary of awards

General Damages K 94,000.00

Special Damages K 35,079.00

Interest K 23,175.00

K152,254.00

Finally I award costs to the plaintiffs, whom are to be taxed, if not agreed.

Lawyers for the plaintiffs: Nonggorr & Associates.
Lawyers for the defendants: State Solicitors.