Sogoi v Negerefa and The State [1996] PGNC 52; N1482 (15 November 1996)

Unreported National Court Decisions

N1482

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 60 OF 1995
BETWEEN
FAMA SOGOI - PLAINTIFF
AND
JOHN NEGEREFA - FIRST DEFENDANT
AND
THE STATE - SECOND DEFENDANT

Mount Hagen

Injia J
26 June 1996
15 November 1996

TORT - Unlawful assault - Victim - Escapee from police custody - Committed by members of the public effecting “citizens’ arrest” - Whether State vicariously liable.

Held

1. ـ C6tizens are under nder a duty to assist police in the investigation of crime and apprehension of alleged criminals or escapech asffect#8220zens arrest” but force used must be reasonable.

>

2.&#12. < &160; ;
h0; Tate is e is not vict vicariously liable for the torts committed by citizens in effecting “citizens’ arrest” except where there ear ece to thatate’s agent or servant vant authoauthorisedrised the the citizen to assist them by effecting “citizens’ arrest”, etc.

Cases Cited

James Koimo v The State N1322 (1995)

Counsel

D O’Connor for the Plaintiff

M Pokia for the Defendants

15 November 1996

INJIA J: The tiff claims damages fors for unlawful assault allegedly committed by the First Defendant who is a former policeman. The as is ad to have been been committed on 8 February 1996 in the course of effecting an arrest rest upon the Plaintiff between Goroka andenganofi in the Eastern Highlands Province. The Plaintiff allege FirstFirst Defendantndant punched and kicked him all over his body and hit him with a wheelspanner on his head which caused his nose and mouth to bleed. He as he sustained injuriejuriethe head, spleen and numeroumerous lacerations and bruises and contusions.

The Defendants dispute both liability and quantum oages. The Plaintiff called oraleevidence. He gaHe gave oral eve supp supported by David Zuka, Emes Kas and Issac Nomuka. The avit of Dr LN Kaupa swpa sworn 7/3/96, [Exhibit “A” (Plaintiff)] was admitted into evidence by consent.

efendcalled John NegerNegerefa, (First Defendant), Const. Fano Kurumo, Senior Constable Martin Ftin Famundi and former police Constable Billy Caukz Onkau. Billy Onks cross-examined ined on his affidavit sworn 30/3/96 which was admitted into evidence by consent. (Exhibit “B” Def.)

A good proportion of the total evidence of events leading up to the alleged instances of unlawful assault is not in dispute. On the undisputed evidencm, I make certain findings of fact. In the course of setting out these undisputed facts, I set out the disputed facts and make findings of fact on them later.

It is not disputed tn therial date, that ihat is 8/2/94, the First Defendant was based at Henganofi Police Station.&ion. He, Const. Onkau and another policeman drove to Goroka to drop of fellow police prosecutor Const. Manbo in a police suzuki van driven by the First Defendant.&#Const. Onkau was seated next to the driver on the front seat. Adropping off Cons Const. nst. Manbo, they drove to Goroka market where they spotted the Plaintiff. They had suspected the Plaintiff as being involved in an armed hold-up and kidnapping oecember 1993 at Bena Bridgeridge. In hold-up, some policemencemen including the First Defendant were held-up and stripped off tuniforms. Upon seeingeeing the Plaintiff, they stopped the vehicle and approached the Plaintiff and asked him to accompany them to the Police Station in the police van for questioning. The Plaintot into the car car voluntarily and they drove to Goroka Police Station. There they checked hi.&#16. From there they drove toPThe PTB yard for refuelling. O way, the Plff asked them them twice why they they were taking him and they told him that he was wanted for questioning in relation to the hold-up at Bena e.&#1ot having receiveceived a satisfactory answer, he got upsetupset and decided to escape. Whilst ehicle was being reng refuelled at the PTB yard and whilst he was not being watched, he dashed for freedom followed in close pursuit by the First Defendant and . Onkau. They chased him to the Gort Goroka Shopping ping centre where they caught up with him.

As to how he was apprehended and placed back in the car, there is different versions from both sides. The Plaintiff say>

&#82>“as I ran away, the men surrounded and held me. John Negerefa pushed me and I fell down. He arrested me, put mthe pthe police vehicl221;

He admitted that when he ran away, members of t of the public also ran after him and one of them caught him and handed hir to irst Defendant bunt but denied that they punched him. #160; He mined that the Fire First Defendant hit him at the stage where he was handed up by members of the public.

The First Defendant supported by Const. Onkau denied any assault on the Plaintifthis stage. They said said the helpedelped them chase after him and tackled him to the bitumen. As a result he sustained bruises and bleeding on his face. Ueeing this, they told memd members of the public not to continue assaulting him. Frome, they (FDefendant annt and Const. Onkau) took him in a police patrol car to Goroka Policeolice Station where he was detained.

It t disputed that the Plaintiff was taken to Goroka Police Station. From there the First Defe Defendant and Const Onkau took the Plaintiff in the Suzuki and headed for Henganofi Police Station. As to what happened between them on the way, there is different versions. The Plaintiff said tn the the way, he was further hit by the First Defendant with a wheelspanner at Bena Bridg60; Further down, he asked them to drop him off at the road road junction leading to his village but they refused and stripped him off his clothes. Again the First dant punchpunched him on his back and stomach with a wheelspanner. The First Defendant and Const. Onakau deny these assaults took place.

As to what happened upon arrival at Henganofi Police Station, there is again dint versions from both sides. Thintiff said the policemeicemen stripped his clothes anes and took him inside the Police Station. There, another Sepik policeman punched him. Also the First Dent puncheunched him on his back and stomach with a wheelspanner. David Zuka said he observed him from a distance when he came out of the police van. He had hithes stripped offd offwas naked and appeared to b to be in pain and bleeding on on his nose. Hethe First Defendant hit hit the Plaintiff with a wheelspan#160; Similar evidence was given by Emes Kas and Issac Noku Nokuka.

The First Defendant admitted he questioned the accused at nofi Police Station about tout the robbery at Bena Bridge and asked the Plaintiff for his police uniform. The Plaintiff did notperatperate with him by remaining silent. The First Defendant s/p>

“I asked him about my police uniform.&#16 said nothing. I faced towards him aaskedasked him “can you speak out or not?&#ot?” I sim on the shoulde told told him to speak up.&#160 He said I do now anything.hing. From there, . Billy Onkau nkau cautioned him, told him of his righd arrested him and locked him up in the cell.”

The First Defendant denied stripping the Plaintiff and hitting him with alspanner.

Const. Kur. Kuromo gave similar evidence. But id the only assault thlt that he saw committed by the First Defendant in his presence was when the First Defendant pushed the Plaintiff on the shoulder to the cell.

Const. Martin Famundo gave similar evidence bute but he denied seeing any assault committed upon the Plaintiff. He adicted the First DefenDefendant by saying he did not see the First Defendant assault the Plaintiff on the shoulder.

As to what happened after the accuse questioned, arrested and locked up at Henganofi Police Stae Station, there is not much dispute. The Plaintiff said, and the defence witnesses conceded, that the Plaintiff had sustained injuries all over his body and that he required medical attention.&#1e was detained at the Police cells for two nights. He was very #160; and his his bods body swollen up and he had to be taken to the hospital. He was admittedr close guae guard at the hospital. He was released after a couple of days.

Ondisputed parts of the evideevidence, it is a question of which version of event I should accept. Much tur the credibility oity of thnesses for both sides and the weight to be given to their eeir evidence.

As to the assaults committed at West Goroka, it is thdence of the Plaintiff against the two policemen. It ; It is a n occurrence ence in the Highlands towns and even in some coastal towns that the public tend to corporate with law enforcemrnt agencies like the police in apprehending remandees or suspected cals who dash for freedom.&#om. is not wrong because all call citizens are duty-bound to assist police in the investigation of crime and apprehending of alleged criminals or prisoner escapees. They have a right to effect what is called “citizens arrest” but they must use reasonable force. If for some rease citizen izen effecting “citizens arrest” usesasonable force, the State is and cannot be held vicariouslyously liable for they are not agents or servants of the State within the mg of those words under the the Wrongs Act Ch 297.

On the evidence, I find that the members of the public chased after the Plaintiff and man-handled him and apprehended him by knocking him to the bitumen. As a resul sustained some some injuries including his clothes being torn or stripped. Const. Negerefa andother ther two policemen may have applied some force ae sta bring the Plaintlaintiff under their control. I pres presume such fto beto be reasonably necessary to contain an explosive and-operating suspect who all all along showed signs of disrespect and challenge to their lawful authority. I find that the Plainhas made up everything else else to put the blame on the First Defendant, who no doubt is an easy target. The First Defendant p a leading role in effecting the Plaintiff’s apprehension because of the former’#8217;s involvement as a victim at the Bendge robbery in which the Plaintiff was alleged by the First Defendant to have been involvedolved.

I also find that the assault at Bena Bridge and the stripping and assault near the road junction leading to his village has also been fabricated.

The condition of the Plaintiff when he arrived at Henganofi Police Station is not disputed. Trst Defendant has admittemitted he slapped the Plaintiff when he refused to answer his questions. That is a voluntary admission which comes from a truthfuness. A slap on the shoulder was intended to make thee the Plaintiff speak. I pay little or no rega thto the denial of thp by Mr Onkau. Perhaps Mr Onkau didn’t see the the slap. But I fiat the slap was unas unnecessary and wrong. On tsis of his admi, I finI find that by slapping the Plaintiffntiff, the First Defendant committed unlawful assault. That is all that taintill be entitled toed to recover damages for.

Just because the First Defendant has mads made this admission does not follow thats likely that he committed all the other ealier assaults complained of by the Plaintiff.

I find the First Defendant to be a truthful witness and accept his evidence. His evidence pported by thby the other defence witnesses.

The Plaintiff’s case is that the First Defendant had a motive for master-minding and effecting the unlawful assault. The First Dant dot deny thny that he w he was a victim of the Bena Bridge armed robbery. However, when the Plai wasf was first picked up aoka market, the First Defendant did not manifest any personal malice towards the Plaintiff.tiff. He ted his duties faithfunthfund did not abuse his authority. The tiff was sims simply aply asked to accompany them to the Police Station for questioning.&#1he Plaintiff complied voluntarily. Tent to the Gthe Goroka Poka Police Station and no threat or assault took place. Then they droveoroka PTB yPTB yard and no threat or assault took place along the way. It was the Plaintiff whoulalculated his innocence acaped. The First Defendant and the two policemen coun could not catch up with with him because he dashed for freedom witwarning when the police were busy attending to refuelling.&ing. The publie the chase and sand spurred everything on him. I am satisfied he was bash bashed up by the public and stripped off his clothes in the process. I am satisfied he sufferedfered all eriouuries at the hand hands of the public. When he arrived at the Henganofi Police Statiotation, he was seen in that condition.

he State cannot be held vicariously liable in law for the athe actions of its ordinary citizens who assist in enforcing the law excepre there is clear evidence ence that the State’s agent or servant authorized the citizen to assist them enforce the law. e present case, there is n is no such evidence. The members of ublic caughcaught the Plaintiff before the two policemen ar, belted him up and handed him over to the two policemen.

On the evidence, I find fond for the Plaintiff against the First Deft to the extent that he slae slapped the Plaintiff on his shoulder in order to force him to answer the questions. The medical r shows some some serious injuries but those injuries would not have been caused by the slap. Drupa’s affidavit rsit rs Dr Mathew’s full medical report on the Plaintiff which states:

“Date Date of Admission 15/02/94

Date of arge 21/02/94

The above was admitted, after alleged eged to have been assaulted by some policemen a week earlier on 06/02/94. He claimed to have been punched over the abdomen especially left side. He later developedry stoolstool associated fever and generalised body pain. On adon young adult, not inot in distress but obviously pale (H), however haemodynamically stabl>

Abdominal examination revealed, moderate tenderness, mss, maximum at left upper quadrant with positive sign of fluids in the abdomen.

The provisional diagnosis of spleenic injury was made, and suspicious of typhoid and malaria were excluded. He wasted conservatively wely with IVI fluids, chloramphenicol and chloroquine course, however ceased when typhoid and malaria were exd.

He improved over the next four days and subsequently discharged on the 6th day.

Today I have examined him, he is normal.

Please do consider the trauma he received, hospitalization, and deal accordingly.

He is expected to live his normal daily life unless insulted again in future.”

The slapping on the shoulder by the First Defendant would not have produced any serious injury or permanent disability. I allow nominal damages in the sum of K300.00.

The Plaintiff claims K18,000.00 for exemplary damages. I consider thiunt to be exbe excessive. I awa0.00 for exemplaragesrages: Sees Koimo v The State N13e N1322 (1995).

In total, I award damages in the sum of K350.00 inclusive of exemplamages cos160; I 0; I order that this judgment be satisfiedsfied by the Second Defendant because the the First Defendant committed the assault whilst purporting to perform his lawful duties: Wrongs Ac297 S. 1 (4).

.

Lawyer for the Plaintiff: DL O’Connor Lawyers

Lawyer for the Defendants: Solicitor General