Pepena v Malabas [1991] PGNC 8; N960 (8 March 1991)

Unreported National Court Decisions

N960

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 749 OF 1990
PEPENA
V
MALABAS & THE STATE

Mount Hagen

Woods J
11 February 1991
8 March 1991

POLICE - Action for wrongs - Assault and false arrest - imprisonment.

Cases Cited:

Kofowei v Siviri & Os - 1983 PNGLR 449

Counsel:

A Pryke for the Plaintiff

M Tilto for the Defendants

8 March 1991

WOODS J: The Plaintiff is ing damagdamages following his alleged assault by members of the Police force and his subsequent arrest and imprisonment in the at the Mount Hagen Police Station from the 27th April to 29th April 1990. The heads of Damf Damage are:-

1. ;ټ Damagesmages for afor assault and battery

2. &ـ D6magesmages for bfor breaches of Constit s.42

3.; &&#160agesmfor ffor false alse arrest

4.&#160  ;
a0; Ds for ffor falprisopriso

&##160; D60; Damages aor mouiciros prosecution.

The Plae Plaintifintiff staf states that at the time he was Chief of ity aosecu at Bromley and Manton int Hagen. On the evening of Frof Friday 27th April 1990 he had taken twon two pers persons sons suspected of stealing to the Mount Hagen Police Station for charging. Later at about 7.30 pm he returned to the Police Station to see the Constable in Charge of the matter to see what was happening. He states that he was concerned at the poor response from the police on a previous occasion involving the charging of a suspect for stealing. This time he states the police on duty were not co-operative and started abusing him. He states that he was pushed out of the office and surrounded by police. He said he was punched and kicked and when he tried to get away he was thrown into the police vehicle and taken back to the Police Station where he was charged by the first Defendant and placed in the cells. He states he was refused permission to call his family that night and again first thing on the Saturday morning and it was not until later on the Saturday morning he was allowed to contact anyone. He was unable to get bail on the Saturday because there was no proper entries in the Charge book. He finally got bail on the Sunday morning.

On Monday 30th April he appeared before the Mt Hagen District Court on a charge of using insulting words and the Police withdrew the charge. He then attended the Mount Hagen Medical Services Clinic for treatment for the bruises and abrasions he had received on the Friday night.

There were witnesses to confirm that he had a black eye and swollen face whilst in the Police Cells.

The State called the First Defendant as a witness. At the time of the incident he was with the Traffic Section in Mount Hagen but was not one of the Duty Office Staff. It appears he was in and around the Duty Office at the time.

He said he knew the Plaintiff very well and had been friends with him. He said the Plaintiff was under the influence of alcohol when he came to the Police Station and Duty Office. When told the policewoman he wanted to see was not there he became argumentative and would not leave the Duty Office. He then said the Plaintiff went outside on the road where there was apparently an altercation with other police but he did not witness that. He said he never punched the Plaintiff “because he is known to me”. The next thing the constable knew was that the Plaintiff was brought back to the Police Station some time later and he charged him with provoking police. When asked what he was doing in the Duty Office that night he said he had called in to the Police Station with his N.C.O. incharge to see if the Police Station is quiet or needed assistance. This confirms that the Constable was not on duty at the Duty Office and also that there was a Shift Supervisor there in charge of the Shift a Sergeant Treipi who was in the Duty Office at the time the Plaintiff was brought in. The Constable confirms that when the Plaintiff first came to the Police Station earlier in the evening he had no bruises or other signs of being assaulted but when he saw him there later and charged him he had bruises on his face and his face was swollen. He insists that he entered the charge in the charge book that night and clearly explained the charge to him. Further he said he came again the next morning to explain it again although it was not his job, it depends on the duty office.

The State brought no other witnesses which I find rather strange as it does involve a serious incident at the Police Station involving an altercation between Police and a private citizen. I would have expected the Shift Supervisor or one of the N.C.O.’s to have come to give evidence to support the one State witness’s version.

It clearly comes down to whose version of the nights events do I believe. The Constable’s version is very limited as he did not witness the main altercation when the Plaintiff received the bruises etc. There is no other version therefore other than the Plaintiff’s version and in the absence of evidence from other police including the Senior Supervisor and also in view of the withdrawal of all charges on the Monday 30th it clearly can only be left to the Court to accept the Plaintiff’s version.

I therefore find that the Plaintiff was assaulted by Police and falsely imprisoned. I find no evidence of malicious prosecution that being a very serious charge and must be clearly proved. With respect to the breach of section 42 of the Constitution I cannot discount Constable Malabas’ story completely. It is possible that the Plaintiff was suffering sufficiently from his bruises that he did not really understand what was happening. However with respect to the confusion over whether he was properly charged and whether he was unjustly deprived of the opportunity for bail there are other witnesses who confirm that there was some confusion over the proper entries in the charge book so I am satisfied that he was injustly deprived of his opportunity for bail.

The claim for damages appears not to be a personal one against the First Defendant but rather against the Police generally and therefore against the State. The defence of both the 1st Defendant and the State was handled by the State Solicitor.

The law on the responsibility of the State in such a case was covered by the National Court in the case David Kofowei v Siviri & Others in 1983 PNGLR 449. So I do not need to go into the principles involved. Here whilst he clearly claims against the 1st Defendant most of the wrongs done against him were done by other members of the Police Force whom he was unable to identify. However that isn’t necessary, he was clearly assaulted and detained by members of the Police Force supposedly acting in the Course of their duties. The 1st Defendant was merely the one who did some of the formal matters involved with the imprisonment on the Friday night.

DAMAGES

For assault the Plaintiff suffered bruises and lacerations to head and face and shoulder, elbow, knee and foot. He still claims a tenderness in his foot and back. I award the sum of K2,000 for the assault. For the false imprisonment and the breach of his constitutional rights I assess an amount of K600 plus K1000 exemplary damages.

I award the above damages against the State. I assess interest at 8% from the date of issue of the writ to the date of judgment.

Damages for Assault	K2,000.00
Damages for false Imprisonment & breach of Constitutional Rights.	K1,600.00
<	K3,600.00
Interest 8%	K177.53
	K3,777.53

Judgment for K3,777.53

Lawyer for the Plaintiff: Heunningham Priestly

Lawyer for the Defendant: State Solicitor