Pauta and Susuve v Commissioner for Corrective Institutions [1982] PGNC 9; N337 (1 April 1982)

Unreported National Court Decisions

N337

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 8 OF 1982.
IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR UNDER SECTION 51 OF THE CONSTITUTION CONCERNING HENI PAUTA AND KENNETH SUSUVE
AND IN THE MATTER OF THE COMMISSIONER FOR CORRECTIVE INSTITUTIONS, HIS SERVANTS AND AGENTS
(NO. 2)

Waigani

Kidu CJ
1 April 1982

KIDU CJ: This is an Application for compensation under Section 58(2) of the Constitution. It provides as follows:

“A person whose rights or freedom declared or protected by these Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment) on the use of emergency powers in relation to internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.”

It seems that some copies of the Constitution have the closing bracket after “internment” first appearing and not the second. The closing bracket should appear after the work “internment” second appearing. This is borne out by the amendment to what is now Section 58(2) introduced in the National Constituent Assembly on 31st July, 1975. The motion, by the then Minister for Justice, reads:

“I move:

That the following amendment be made:

Omit ‘infringed is’ in subsection (2) and replace with “infringed - including any infringement caused by a derogation of the restrictions specified in Part 1.X - Division 5- Internment - on the use of emergency powers in relation to internment - is” This makes it clear that a person may go to obtain damages or compensation for interference with his rights if the interferences are not allowed by emergency powers, particularly the interment provisions”.

The importance of where the closing bracket is placed is that if it is after the words “internment” first appearing in Section 58(2), it could be argued that the provision applies only in cases where infringement of rights occur during the use of emergency powers.

I am satisfied, Counsel both agreed, that the closing bracket should be after the word ‘internment’ second occurring in Section 56(2). The effect of this view is that all persons have the right to apply for compensation for breach of guaranteed rights any time and not only during the use of emergency powers.

The background to these applications is to be found in my judgment dated 19th February 1982N337.html#_edn823" title="">[dcccxxiii]¹.

Both Mr. Bruce for the Applicants and Mr. Gunson for the Respondent submit that Constitution Section 58(2) is mandatory on the award of “reasonable damages” but only discretionary on the award of “exemplary damages”. This is so because it say inter-alia as follows:

“A person whose rights or freedoms declared or protected by this Division are infringed ... is entitled to reasonable damages and, if the Court thinks it proper, exemplary damages in respect of the infringement.” (My underlining)

I have no quarell with these submissions and I proceed on this basis.

These applications are made, for the first time, under Constitution 58(2). I have, therefore, no precedents here to guide me except some general principles which I will allude to in due course if necessary.

I will deal with the Applications under the two heads -i.e. general damages and exemplary damages.

1. GENERAL DAMAGES

On 19th February, 1982 I found that the applicants’ rights guaranteed by Constitution Sections 376(17), 37(17), 37(18) and 37(19) had been breached by officers of the Correctional Services. I caused orders to be issued directing the Commissioner his servants and Agents to refrain from doing certain things and to do certain things. Under this head of damages, the Applicants ask for damages first for pain and suffering in relation to the assaults inflicted upon them at the Bomana Corrective Institution on the 1st and 2nd December, 1981 and secondly, for their confinement in “B” Division for the period 1st December, 1981 to 19th February, 1982.

They also seek damages for mental trauma and anguish “not only for the period of the assaults, but also for the period of confinement in “B” Division.”

I do not intend to repeat the findings of fact I made on 19th February, 1982. There are, as I have already stated, contained in my unreported National Court Judgment No. N368. Reference will be made, however, to pertinent parts of that judgment if necessary.

All claims for pain and suffering and traumatic experience are not able to be calculated in precise money terms. Miles J in Brian John Lewis v. The Independent State of Papua New GuineaN337.html#_edn824" title="">[dcccxxiv]² described such awards aptly. His Honour said at p. 24:

“An Award for pain and suffering is different from an award for economic loss. It is in the category of a ‘value jud’ as referred to by Windeyer J. in Edward v. NobleNoble (1971) 45 ALJR 682 at (page 689)”

So under this head of damages I must make a value judgment - a very difficult exercise indeed. What monetary value does one put on pain and suffering and mental trauma and anguish? The best one can do is to look at the facts, especially the type of injuries sustained by the Applicants, because from these one can reasonably come to a monetary figure to compensate the Applicants.

The injuries suffered were supreficial. They were inflicted on 1st and 2nd December, 1981. When I saw both Applicants on 15th February, 1982 there were hardly any visible signs of these injuries. The scar under the left eye of Pauta was barely discernable.

The witness Mrs. Peri Kivung first saw Pauta in early December 1981. There was nothing wrong with him. When she next saw him, on 18th December 1981, he had a black mark under his eye and long healing scars on his back, both his arms, his chest, stomach and around back of his legs. On the 19th of January this year, the third time she saw Pauta, his healing injuries had disappeared except for a few scars on his back and the black mark under his left eye.

I conclude from this evidence that Pauta must have experienced pain and suffering for, at the most, a month.

Mrs. Kivung first saw Susuve on 19th January this year. She noticed scars on his back, a black right eye and marks around his legs below the knee and marks on his arms.

The conclusion would be the same - Susuve must have experienced pain and suffering for, at the most, a month.

As to traumatic experience, it poses a more difficult aspect of this case to assess. It can be reasonably said, however that for some time between 1st December 1981 and the time the Applicants were seen by Mrs. Kivung, they must have experienced mental anguish.

However, after the 3rd of December, 1981 they had been treated well. Pauta said in cross-examination:

“Q. you went to hospital on 3 on 3/12/81, had any trouble with warders?

A. No.

Q.;ټ&##160;; They have been good to you?

A.  < 1es. Y8221#8221;

Su

Susuve said on croamina

8220;60;&##160;; Since ynce you weou went tont to Boma Bomana anna and youd you say you were beaten, any trouble with Warders?

A. ټ N60; No.

Q. &&160;; Y60; You’ve been left alone?

A. &##160;; Y60.&#8s.&#8/p>

The determination of a monetary value of pain and suffering and traumatic experience is difficult indeed. Mr. Bruce submits that K500 would be a reasonable figure.

Mr. Gunson says K300 would be more appropriate. I consider one thing to be clear and that is that the award of damages for pain and suffering traumatic experience in this particular case, on the facts, would be lower than a case where a person had suffered for a longer period.

I award K250 to each applicant as “reasonable damages.”

2. EXEMPLARY DAMAGES

These are discretionary in nature. However, I have no difficulty in stating that my view is that such damages should be awarded in this case. My reason’s are simple. The Constitution of Papua New Guinea guarantees that those who are detained by the authorities must not be “submitted to torture (whether physical or mental), to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person” (Section 36(1) Constitution they must be “treated with humanity and with respect for the inherent dignity of the human person” (Section 37(17) of the Constitution); that those who are only accused must be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons” (Section 37(18) Constitution) and that those who are under the Voting age who are in custody for alleged offences” shall be separated from other persons in custody and be accorded treatment appropriate to their age” (Constitution Section 37(19). Of all the rights and freedoms guaranteed by the Constitution of Papua New Guinea, the ones relating to those who are detained by the authorities require, in my opinion, the most protection. I hold no qualms about this - a person deprived of his ordinary rights and freedoms is restricted, by virtue of being confined, from communicating with the outside world. It rests with authorities such as the Courts to ensure that they are protected and their rights respected. Constitutional guarantees are of no effect if judicial officers and other authorities do not do their duty.

Days have gone when people can say that those incacerated lose their liberties and freedoms once the prison doors have closed behind them. The Constitution has has made sure that such attitudes do not obtain in Papua New Guinea.

In this case there have been flagrant abuses of the two Applicants contrary to the Constitutional Protections afforded to them. Those officers of the Correctional Services who subjected the two Applicants to torture acted in clear violations of the dictates of the Constitution of Papua New Guinea. Their actions were oppressive, arbitrary and unconstitutional. One would have thought that if anyone is required to observe and respect what the Constitution says, it would be those who are employed by the State like officers of the Correctional Services.

It is the duty and responsibility of the Commissioner of Correctional Services and his men to ensure that Constitutional rights of those detained are observed. It is the Constitutional duty of the Executive arm of the Government to ensure that breached of these rights do not occur. The National Court and the Supreme Court have the duty to enforce and protect these rights if breached as in this case.

I order that each Applicant be paid K1,000.00 by way of exemplary damages by the Respondent.

ORDER: That the Respondent pay to each Applicant the sum of K1,250.00 damages.

Solicitor for Applicants: The Public Solicitor

Counsel: Mr. C. Bruce & Mrs. P. Kivung

Solicitor for Respondent:

Counsel: Mr. R. Gunson.

<23">N337.html#_ednref823" title="">[dcccxxiii]^{Unreported National Court Judgment N. 368 of 19th February, 1982.}

N337.html#_ednref824" title="">[dcccxxiv]^{Unreported Supreme Court Judgment No. SC178 of 29 August, 1980.}