Kirino v The State [1998] PGNC 55; N1816 (25 June 1998)

Unreported National Court Decisions

N1816

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 408 OF 1995
BETWEEN
MR STEVEN KIRINO ON HIS OWN BEHALF AND AS REPRESENTATIVE OF 24 MEMBERS OF THE SUA CLAN AND THEIR FAMILIES OF CHUAVE, SIMBU PROVINCE; AND
DR. DERRY MUROA ON HIS OWN BEHALF AND AS REPRESENTATIVE OF 23 MEMBERS OF THE GAI KIRINO CLAN AND THEIR FAMILIES OF CHUAVE, SIMBU PROVINCE
PLAINTIFFS
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

Goroka

Sawong J
25 June 1998

DAMAGES - GENERAL Damages - Police raid on village - Seizure and destruction of property - Measure of damages

CONSTITUTIONAL LAW - Damages for breaches of Constitutional rights by Police and soldiers - Constitution s. 32, 36, 37, 44, 49 and 53 - enforcement of Constitutional rights - Whether damages for breaches of Constitutional rights should be awarded in addition to general damages for the same acts -

EXEMPLARY DAMAGE - discretionary - not awarded.

Facts

The plaintiffs sue for and on behalf of themselves and forty five others for a 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 live stock, unlawfully arrested and detained them. The dant failed to file itle its defence and a default judgement for damages to be assessed was entered against it.

Couns>

G

G. Muroa, forplaintiffs

R. Tuva, for the Defendants

26 June 1998

SAWONG J: This was a trial oessme daof damages. The plaintiffs c is based ased oned on illegal raid conducted by unidentified policeman and soldiers at Nami and Suagawa villages in the Elimbari area of Chuave District, in the Simbu Province.&#160 The raidcarried out on 22 n 22 June 1992.

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

Liability is not an issue, as due to the defendants default, default judgement was entered against it on 25 Octo995 and entered on 7th Nove November 1995.

The history of the matter is as follows. Ther some argument betweentween some young men from the plaintiffs villages and the supporters of a candidate in the 1992 General Elections. The argument was over tnner of distributing ballot papers by the said candidates stes supporters, as the said supporters were distributing the said ballot papers at night and were using a private vehicle. The said men stopped thos 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 estroyed the ballot papers.pers. The unidentified policeman and soldiers numbering about 20 men, armed with firearms entered the said villages and assaulted the plaintiffs, stole or destroyed their properties.

In support of their claims, each of thintiffs have filed affidaviidavits setting out the items or personal properties each of them lost. They have also set in their respective affidavits, the particular constitutional rights that were infringed. Only 16 of thentiff were cere cross examin their evidence and the rest of the affidavit evidence was tendered into evidence by conseconsent. ross examination of thitnehitnesses did not destroy in any material particulars the crhe crucial parts of their evidence. All i was for those plaintlaintio confirm their evidence. The defendid not file file file any affidavit evidence in reply nor did it bother to call any other ece to dispute or contradict the evidof t of the plainplaintiffs. Thdence from the plaintiffntiffs, therefore, stand undisputed and undestroyed. It follows that I t the evhe evidence of the plaintiffs.

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

(A) GENERAL DAMAGES

It is quite plain, on the undis evidence, that the plaintiaintiffs are entitled to be awarded general damages. It has been subd by counseounsel for the defendant that the plaintiffs have not proved any loss or damages because there are no photographic evidence to support the plaintiffsence. I reject this argument asomisconceived. P60; Photographidence is b is but one of the ways of prooving a matter. It is ne only way of proofproof. The ant that because no phno photographic evidence was produced, the plaintiffs claim must is wi any merit at allt all. It is so becthere is undisundisputed evidence before the Cour Court as to what happened, and who lost what.

In this circumstances I accept the evidence by the plaintiff. I do not accept some of these submissions put on behalf of the plaintiff. I accept the suion that that the plaintiffs are entitled to be compensated for breaches of their various ctutional rights. But I do not acceptsubmissbmissions ions that further damages ought to be awarded to those plaintiffs who were assaulted, raped or attempted to 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 counsr the Plaintiffs and award ward a global amount of K2000.00 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 thee no contradictory eory evi, I accept the amount and figures deposed to by the pthe plaintiffs. I also accept the submissions made and award a globaure of K35,079.00 for special damages.

(C) EXEMPLXEMPLARY DAMAGES

The Plaintiffs claim exemplary damages in the sum 3,500.00. T60; The submission b coun counsel for the 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. as sued that thet the duty 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 instil discipline onto its servants and agents. Mr Muroa has referred to many National Court decisions where the court has awarded exem damages.

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

The issue of eary damages has been compreomprehensively considered in by the Supreme Court in Abel Tomba v The State, (Unreported Supreme Court Judgement SC 578 dated 7 April 1997). That decision is binding tpon this court. One of the issonsidered ined in that was “whether whenever there is a claim for exemplxemplary damages arising from an act of policeman even if the act is so exve, aary and punishablshable, which is not sanctioned by the Stae State policy, directives or by a Statute, the State must pay for it” (per Los J, at pp. 14 - 15).

1. &ـ E6emplaemplary damy damages follows award of ordinary (general damages).

2. ҈& W60; acen actions ions of a policeman goes beyond mere non-compliance of a tory sion,individdividual pual policeoliceman, if identified, and sued, is personally liable to pay exemplary damages. Tate is only liable to payo pay exemplary damages for (technical) breaches or indiscretions committed in the execution of the policeman’s lawful functions,utory or otherwise. Los J, give good examples ples ofes of this at P. 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. Theion says:

“#8220;For the purpose of any civil proceeding, where the making of a search would otherwise be within thee of a person’s employment, the mere non-compliance by an employee with a prov provision of this Act does not, of itself take any act of employee, committed during the course of the search, outside the soope 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 Searc the State as the employer cannot be liable beyond liabilitbility for general damages. For exam policeman stops aops a person and searches him knowing very well there exists no reasonable ground that the person may have in possession of stolen goods.&#160does it with other motives. Appion of Section 4(on 4(4n 4(4) of the Act may give a good example. Under Sub-sec. (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 policemcauseime cime constraint or because no female adult is nearby conducts the search upon the the female, he has committed a techniceach. The State has to be vicaryously liable for general damages as well as for any pany 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 is beyond&#1nd mere non-compliwith Sub-s.ub-s. 4. The Stannot be vicariouslyously liable for any punitive damages for such an act. Furthemple e shown foach oach of Section 12. This Section makes i60; it mandatory tisregisregister 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 arey are just about to register them, a senior of orders them to conduct anot another raid immediately. They do d return with more more goods and reach the police station at midnight. They are so tired that go y go to sleep. In the morniny return to r to register the goods but all the goods ixed up with the goods seiz seized in the subsequent raid. Some get lost.; The State tate must be vicariously liable for the loss ofgoods as well as for exemplxemplary damages. However, if the same grf p of policemen returned to the station and did not registe goods deliberately so thao that the owners could not get them back, it is my view that the State could only be liable for failing tister thereby causing the pthe properties to be lost. For the purpose of exemplary damages the State cannot be liable. The rale is that exemplxemplary damage is penal in nature. The Stateugh legislative pive process has given strict standards andedures and rules for the policeman to operate under. If they deliber falter, thr, the, they have to answer for their fault indilly.” (my emphasiphasis.)

The principles to be deduced from the above two examples and the case of David Waii Kofv- State [1983] PNGLR 4GLR 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 statutes, rules, and standards that the State should not be ordered to try. (sic) It is true asSupreme CourtCourt so explicitly said in Kofewei’s case at p. 10 that the State is the embodiment of the people and the power the State exercise belongs t people. When police exercise p of s of search and arnd arrest they do that on behalf of the people. The people must stand rea y to support them for any breaches or indiscretions. But, how he people be &#82 “punished” by ordering them t exemplary damages when they have done enough through legislative process by passing laws, aws, rules and procedures under which the e must operate yet they dely deliberately go beyond all expectations to commit wrong? These conations in my view view must come into play when a court is exercising its discretion. If there idence that the Sthe State is failing to properly train, fud generally facilitate its servants and performance then iten it is a relevant consideration whether the State should pay for exemplamages .....

....... .... 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 supported21;

3.&p>3. &ـ P6licy licy Considonsiderations &#Los, J. at p. 23 says:

“Thre also policy considerations that the courts must bear in mind when they are exercising thng their discretionary powers pertaining to award of exem damages. As exemplarmplary dams ints 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 tmbersf the Force. But the State cann on spen spen spending money on paying damages and exed exemplary damages which are unplanned expenditures. The State has more tant obnt 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 1 of 1990 (1990) PNGLR and in Re: Crimiircuits in Eastern Hirn Highlands (1990) PNGLR 82.”

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

(d) Interest

I award ward interest at 8 percent per annum on th of K94,000.00 from the date of filing of the Writ (25.5.95) to the date of judgement (25.6(25.6.98) which I calculated to be K23,175/p>

General Damages	K94,000.00
Special Damages	K35,079.00
Interest	K23,175.00
	K152,254.00

Finally I award costs to the plaintiffs, which are to be taxed, it not agreed.

Lawyers for the Plaintiffs: Nonggomp; Associates

LawyeLawyers for the Defendants: State Solicitors