In the Matter of Enforcement of Human Rights Under S 57 & 58 of the Constitution, Karopo v Provincial Police Commander, New Ireland Province [2003] PGNC 37; N2472 (3 July 2003)

N2472

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP. NOs: 611, 612, 613, 614 & 615 of 1997

IN THE MATTER OF APPLICATIONS FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 & 58 OF THE CONSTITUTION.

AND: IN THE MATTER OF THE APPLICATION BY:

BALE KAROPO, TOWAIRA DARIUS, NELSON AMAR, WESLEY MOKIS AND RAYMOND WIMAT

Applicant/Plaintiffs

AND:

THE PROVINCIAL POLICE COMMANDER, NEW IRELAND PROVINCE
First Respondent/Defendant

AND:

THE STATION COMMANDER – POLICE STATION, LAKURUMAU
Second Respondent/Defendant

AND:

CONSTABLES SALIPEN KANDAKI, PATRICK BINI, ANDRE MONUNA, KUNAK LAHALENG AND ALBERT NALIK
Third Respondent/Defendants

KAVIENG: Lenalia, J.
2002: 7, 28 March, 03rd July 2003

CONSTITUTIONAL LAW – Application for enforcement of human rights – Claims for compensation for alleged breaches of Constitutional rights and freedoms – Wrongful arrest and action by members of the Police Force – Servants of the State – Wrongful actions – Constitutional breaches ss. 36, 37, 57 & 58 of the Constitution.

HUMAN RIGHTS ABUSES – Assaults committed in the course of arrests – No charges laid after being arrested – Gun butts used to assault applicants – Force used unreasonable and quite excessive – The use of excessive force – Arrest Act, Ch. No. 339.

DAMAGES – Awards – Human rights breaches against Constitutional provision – Where tortfeasors can be identified, ought to be ordered to pay damages – This is despite being servants of the State – Award of damages – Constitution s. 58 (3).

HELD – (1) Where tort feasors can be clearly identified, they ought to be ordered to pay compensatory damages or part of it as contribution toward the damages caused.

(2) Exemplary damages ought to be awarded against the tortfeasors as the State cannot feel any effect of such an award as it is more fitting to the circumstances where police or warders brutality has resulted.

(3) Under circumstances of these claims, the Court holds the five policemen solely responsible for the brutal attacks and assaults inflicted upon the five applicants.

(4) Damages Awarded.

CASES CITED:
The following cases are cited.
Application by Waso [1996] PNGLR 218
Kofowei -v- Siviri and Ors [1983] PNGLR 449
Andrew Namuesh -v- Paul Ofoi, George Avali, The Police Commissioner and The State [1996] PNGLR 211
Admiralty Commrs -v- SS Valeria [1922] 2 AC 242
Tom Amaru -v- Commissioner for Correctional Institution [1983] PNGLR 87
James Koimo -v- Independent State N1322
Rooks -v- Barnard [1964] UKHL 1; (1964) AC 1129
Re Heni Pauta and Kenneth Susuve (No.1) [1982] PNGLR 7.

Counsel:
Applicants in person.
No appearance by or for all Respondent/Defendants.

3 July 2003

LENALIA, J . The five Applicant/Plaintiffs applied for enforcement of their constitutional rights pursuant to s. 57 and 58 of the Constitution. The alleged human rights abuses were committed upon the five applicants when members of the Police Force were looking for someone whom police had suspected of committing an offence or offences and in search of the person or persons responsible unlawfully assaulted the five applicants causing injuries to each of the applicant.

The trial was conducted in absence of all respondents and despite service of the process upon the Police in this Province and their lawyers in the past no body turned up. The State was not a party to these proceedings. I shall discuss the State’s liability when discussing the law.

BACKGROUND HISTORY OF CASES

Before proceeding to the evidence of these applications, a background historical narrative should be put to explain why these applications have not been heard quickly. The applicants instituted proceedings jointly on 27th November 1997. On the same date, all their medical reports and their statements in support of their applications were filed. The process was served on the Police Department and the Solicitor General. On 5th May 1998, Mr. Steven Kesno of counsel for the Police Department gave notice of appearance for the Police Department to the Assistant Registrar in Lae specifying their intention to act for the respondents. A day after this, the Principal Legal Officer of that Department gave notice of their appearance.

While the above notices were being served, as early as 17th April that same year, the Acting Solicitor General filed a notice of intention to defend the respondents at the same time requesting for copies of the process be forwarded to them. Even prior to this, there is no mention on the files as to the results of an order made on 10th March 1998 on which His Honour Jalina,J gave orders for the appearance of the five third respondents.

The proceedings seemed to have been left there until 20th July 2001 when after observing the files, I gave orders in presence of the five applicants, that the State ought to be added a party to these proceedings. The orders of 21.7.2001 were not complied with and the State is not a party to these proceedings. On a letter dated 5th April, 2002, the Associate to Her Honour Davani, J. wrote to the Regional Divisional Command of the Police Department in Rabaul notifying them that by the next National Court sittings in July 2002, the matter would be called. A Mr. S. Bonner, currently the Director of Legal Services Police Headquarters wrote to the Public Solicitor through the Department of Attorney General requested a further adjournment as the matter was listed for 21.7.2002 for mention. The matters were adjourned on request.

The matter was further adjourned to the November 2002 circuit. In November 2002, the matter was called, there was no appearance of the defendant/respondents with the result of being further adjourned to the next sitting of the Court in Kavieng in 2003. On 7th March 2003, the matter was called on application by the five Applicant/Plaintiffs. I proceeded to hear the applications ex-parte in absence of the respondent/defendants.

EVIDENCE:

The evidence filed by the five Applicants/Plaintiffs are similar and relate to an incident on 23rd October 1997 on which the five third respondents being servants of the State in the name of the law brutally assaulted the five plaintiffs causing them injuries of varied magnitude. Each Plaintiff filed individual evidence and I shall discuss their evidence in their numerical order as appearing on their files and MP. Numbers.

MP. NO. 611 OF 1997 - BALE KAROPO.

In the case of Applicant/Plaintiff BALE KAROPO (MP. No. 611/97), he says in his affidavit evidence that on 23rd October 1997 between 7 and 8 pm, he was travelling with the other Applicants from Munawai village to Kavieng. At Tamalaka village, they were stopped by a police vehicle. There were about seven policemen in the police vehicle. The policemen were armed and as soon as the Plaintiffs vehicle stopped, a number of shots were fired over the Plaintiffs heads as well as threatening the Plaintiffs that if anyone moved would be shot.

Bale says that the five policemen whom he named them one by one were drunk in execution of their official duties. Evidence by the five Applicants show that the drunken policemen were the five named third Respondents/Defendants.

Sergeant Salipen Kandaki asked Bale if he was one of those whom police had suspected of committing an offence. After asking, the same policeman started to beat Bale with a baton on the body and over his head. The Applicant says, after being beaten up over the head, blood came pouring out all over his body.

The results of the assaults committed upon the Applicant/Plaintiff Bale Karopo was that the next day, that is 24th October 1997, the same sought medical treatment at the Kavieng Medicare Centre. The following findings are noted from the doctor’s report.

Head injuries – there was a 3.0 cms infected wound with large haematoma measuring 5x6x2 cms in the same side of the head.

Left lower limb – very painful and tender swelling on the anterior part of the left mid thigh.

In summary, plaintiff Bale Karopo was noted with head injuries with lacerations and "scalp haematoma" and tender swelling on the front part of his left thigh.

MP. No. 612 OF 1997 - TOWAIRA DARIUS

The statement made by ToWaira Darius shows that he was the only person who had committed a traffic offence that of driving without a licence pursuant to s. 21 of the Motor Traffic Act, Ch. No. 243. It would seem from the facts and evidence presented by each plaintiff that ToWaira Darius was wanted by police for the very minor traffic infringement which did not even require the Police to arrest ToWaira save for issuing a Traffic Infringement Notice.

What happened was while still at Lakurumau Police Station, ToWaira was arrested for driving without a licence. He was man-handled and place in the cells. This took place about between 4 and 5 pm on 23rd October 1997. The ignition keys to the vehicle Reg. No. NAA 886 driven by this Plaintiff was withheld by police. After being placed in the cells for about less than an hour, ToWaira was released.

ToWaira Darious boarded another vehicle on which Plaintiffs Bale Karopo, Nelson Amar and Raymond Wimat were on and as pointed out by evidence of other Plaintiffs, they were stopped at Tamalaka village by police. When Darius realised it was the police vehicle, he got frightened and jumped down. While on the ground, Darius said, Constable Patrick Beni fired one or two shots over their heads.

While this Plaintiff stood wondering what was happening he was bashed up, booted and hit with a baton over his head. Darius says in evidence he fell down unconscious. He could not walk and had to be lifted up to be only thrown into the back of the police vehicle and taken back to Lakurumau Police Station. The Plaintiff identified those responsible for assaulting him and he names them as Constables Patrick Bini, Andrew Munana and Seargent Kandaki Salipen.

On 24th October 1997, Darius also sought medical treatment in Dr. Manase Saot’s Medical Centre in Kavieng. The doctor identified the following injuries.

Head injuries - "occipital swelling with haematoma" measuring some 7 cms in diameter.

Face - there was selling with "contusion" measuring 5cm in

diameter right down to the left cheek.

Left thigh - "contusion with swelling, about 6 cms in diameter in

"the lateral aspect of left thigh".

Right arm - swelling on the right arm.

The doctor concluded that these injuries were consistent with the history of being bashed up by policemen near Lakurumau village.

MP. No. 613 OF 1997 NELSON AMAR

Nelson Amar comes from Madang Province and resides at Munawai village, Kavieng. Supporting affidavit evidence filed by this Plaintiff is much similar to that of the two previous plaintiffs, Bale Karapo and TaWaira Darius and that of Raymond Wimat. The applicant says that as soon as their vehicle became stationary, he was pulled down from inside the cabin and Constable Andrew Munana started assaulting him. Right on the scene, he was assaulted and says he got unconscious, thrown into the police vehicle and taken back to Lakurumau Police Station.

On arrival at Lakurumau, Nelson says, he was once more badly assaulted to the point where his nose was broken. He was on that same night taken to Lemekot Hospital where his lips were stitched and was taken back to the police station at Lakurumau.

This Plaintiff now alleges that he was arrested for no good reasons and despite being brought to Court at Kavieng the next day, the charge which was laid against him was either withdrawn or dismissed, he was badly assaulted and suffered injuries he says was wrong in law thereby breaching his Constitutional rights. The summary of injuries suffered by Nelson were as follows:

injuries to nose - there was laceration and the nose requiring three

stitches.

hip - there was laceration on lower hip measuring 4

cms long, it required 4 stiches.

chin - laceration on the chin, 2 cms long.

head - swelling measuring 5 cms.

back - swelling and "contusion" on a wide area.

bruised and lacerations measuring 7x2 cms.

left knee - bruising and swelling.

It is clear from the above report that Nelson received extensive injuries all over his body.

MP. No. 614 OF 1997 WESLEY MOKIS

Wesley Mokis supporting evidence highlights two incidents of abuse of arrest powers by the five named third respondent/defendants. On the first instance he was at the scene at Lakurumau Police Station when police attempted to arrest ToWaira Darius. It appears from Wesley’s evidence that he was one of those who protested against the arrest of ToWaira Darius. After this incident, Wesley Mokis left to his house.

The second police encounter occurred at Wesley’s house between 7 and 8 pm. He got scared and hid between some nursery palm trees. There and then he was arrested by the five policemen.

As he was being led to the Police Station, Sgt. Kandaki beat him with a baton four (4) times on the right leg. Constable Andrew Munana slapped him across the face and eyes. The same policeman hit Wesley with a gun butt on the nose causing a broken nose. Sgt. Kandaki continued to hit the plaintiff with the baton and they even swore at him by telling him to eat women genitalia.

The Applicant was examined by Dr. Saot at the Kavieng Medical Centre. The same received the following injuries.

head - swelling on the head.

right foot - tender swelling of right foot.

the whole length of the leg from the knee down was tender.

nose - was tender and swollen.

MP. No. 615 OF 1997 RAYMON WIMAT

The last applicant in these proceeding Raymond Wimat comes from Munawai village, Kavieng and he was the driver of the vehicle Reg. No. NAA 806 on which the first three Applicants were in. This Applicant says in evidence, he was the last person to be pulled out from behind the steering wheels to be bashed up.

He witnessed his colleagues being beaten up to the stage of unconsciousness. He too was beaten unconscious. In fact in his evidence Raymond says, he was hit on the head with a gun butt by Constable Andrew Munana. He fell down by his knees and according to him, he still suffers knee problem.

Raymond also sought medical treatment from the same source as his colleagues and the following summary evidences the fact that the applicant was also badly beaten up.

hip - laceration on the upper lip measuring 2 cms.

right shoulder - "contusion" to the right shoulder and bruising.

right knee - swelling with laceration measuring 4x3x1 cms, the

would was infected.

right elbow - swelling with "contusion of ulnar head".

head - swelling with tenderness and "haematoma".

The defence filed on 20th August 2001 which was never argued alleges that Sgt Salipan Kandaki, Constables Andrew Munana and Patrick Bini were then members of the regular Constabulary and Kunak Lakaleng and Albert Nalik were special constables of the Community Axillary Police and all were stationed at Lakurumau.

The defence put up by the five third respondents is that on the date of the incident the arrests of the five applicants was lawful under the Constitution and the Arrest Act, Ch. No. 339. They further say the force applied was reasonable in the circumstances and thus lawful and justified by law. They have generally denied breaches of any Constitutional rights.

LAW

The applications before this Court are for enforcement of Constitutional rights and freedoms pursuant to s. 57 of the Constitution. Every citizen and non-citizen alike is entitled to the full protection of the law and nobody must be subjected to torture physically or mentally and not even to any form of cruel treatment or to be punished inhumanly inconsistent with the respect due for the inherent dignity of the human person, see ss. 36 (1) and 37 (1) of the Constitution. This Court has jurisdiction to enforce those guaranteed rights and freedoms and to make awards pursuant to ss. 57 and 58 of the Constitution.

Everybody has the right to the full protection of law as required by s. 37 (1) of the Constitution which provides:

"37 (1) Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences".

Nobody must also be subjected to inhuman treatment and s. 36 (1) of the Constitution protects against inhuman treatment in the following words:

"36. Freedom from inhuman treatment.

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person".

The five applicants allege breaches of Constitutional rights and they seek enforcement and quite properly they applied to this Court to enforce those rights. All guaranteed rights and freedoms are protected by the Constitution in s. 57 (1) in the following terms:

"57. Enforcement of guaranteed rights and freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section—

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest."

The Constitution provides that no one must be deprived of his personal liberty except under those circumstances defined by s. 42 (1)(a) to (i) and only upon reasonable suspicion of a person having committed or is about to commit an offence can police arrest someone. The above provision reads and I only quote Subsection (1)(a) to (i)

"Rights of All Persons.

42. Liberty of the person.

(1) No person shall be deprived of his personal liberty except—

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian".

It is specifically provided by the Constitution that only in one of those circumstances where and when there is reasonable suspicion that a person has committed or is about to commit on offence can the police arrest him or her. Note here that, the general public or a member of the public has the same obligation to arrest a person without a warrant only on occasion where an offender is committing or has committed an offence and it must only be in a case where the prescribed penalty is imprisonments, (see ss. 4 & /5 of the Arrest Act).

Under the Arrest Act, Ch. No. 339, the policeman can arrest a person without a warrant under three circumstances. On the first instance a policeman or policewomen can arrest a person where they believe on reasonable grounds that an offence is about to be committed. Secondly the police may arrest where, they see an offender is committing the offence and thirdly, the law gives police power to arrest without a warrant after an offence has been committed, s. 3 (a)(b)(c) of the Arrest Act.

Because the Constitution guarantees liberty of all persons except for those persons who are about to commit or are committing or who have in fact committed an offence, they can then bee arrested but the Constitution and the Arrest Act define the manner of effecting an arrest. After a person has been arrested, s. 42 (2) of the Constitution requires that:

"(2) A person who is arrested or detained—

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

(3) A person who is arrested or detained—

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer".

The Arrest Act further defines the method of effecting and specifically provides that where a person is resisting arrest or is refusing to be arrested or is evasive and tries to escape arrest an authorize person may use all reasonable means to make the arrest. An important element of the execution of an arrest is that, the law does not justify the use of greater force than what is reasonable in the circumstances. The wording of s. 14 of the Arrest Act speaks for itself and defines a well and orderly manner of effecting an arrest in the following terms:

"Manner of effecting arrest.

(1) Where an authorized person intends to make an arrest and the person to be arrested—

(a) does not resist the arrest and the authorized person is aware that they speak a common language, the authorized person shall at the time of arrest—

(i) advise the person he is under arrest; and

(ii) advise the person arrested of the reason for his arrest; and

(iii) request the person arrested to accompany him to a police station, to a court or place of confinement, as the case may be; or

(b) does not resist the arrest and the authorized person is aware or ascertains—

(i) that they do not speak a common language; or

(ii) that he is unable to speak to the person arrested because the person arrested suffers from some mental or physical defect, the authorized person

shall indicate by reasonable means to the person arrested that—

(iii) he is under arrest, and

(iv) he is to accompany the authorized person; or

(c) resists the arrest, whether by force or by refusing to move, or seeks to evade arrest, whether by running away or by other means, the authorized person may, subject to Subsection (2), use all reasonable means to make the arrest.

(2) Subsection (1)(c) does not justify the use of greater force than is reasonable in the circumstances".

Quite obviously the above rights were not afforded to the five applicants. I do find therefore that there was in fact breaches of rights guaranteed by the Constitution, s. 36 (1) and 37 (1). The five applicants have been beaten up in a very savage manner for no cause at all except for Darious ToWaira (MP. No. 612 of 1997) who was suspected of driving without a licence. This Court has a constitutional obligation to protect their rights and uphold the Constitution. This obligation comes from and contained in s. 57 of the Constitution.

This Court has a duty to perform and that is to protect and enforce these rights guaranteed by s. 57 of the Constitution. The protection of law and freedom from inhuman treatment enshrined in ss. 36 and 37 of the Constitution were breached. Those rights must be protected: Re Heni Pauta and Kenneth Susuve (No.1) [1982] PNGLR 7.

The evidence presented by the five Applicant/Plaintiffs is quite overwhelming in the sense that each of them was badly bashed up resulting in various injuries caused to them as shown by their medical evidence. There is evidence to show that the policemen responsible for these brutal acts of assaults were drunk and in the name of the law sought to arrest the five applicants.

The law on arrest is abundantly clear. A policeman or a member of the public effecting an arrest ought to do it in accordance with respect and dignity due to a human person as guaranteed by the Constitution. As I now find, the five named Respondent/Defendants were reckless in the performance of their duties. If the Applicants were wanted for any questioning, an orderly arrest would have been effected.

Here was another classical example of police brutality. The five applicants were assaulted by the five third Defendants by them using gun butts and batons and it is quite obvious each applicant suffered physical injuries of varying degree. Each of them sought medication. The action by the five named third respondent/defendants must be seen and taken by this Court as ostensibly without authority.

The evidence is clear that despite being arrested, searched and publicly humiliated, only applicant ToWaira Darious was charged for driving without a licence. His case was eventually dismissed by the District court in Kavieng on 23rd November 1997. The reason for the case being dismissed was there was no evidence to support the charge. For all the rest of the other applicants, no formal charges were laid and as to why they were harassed, arrested and brutally beaten up, in the manner they were treated is not known as none of the respondents turned up for the hearing.

Nobody would question the functions of the Police Force if carried out by the defines and dictates of the Constitution in an impartial and objective manner. The functions of the Police Force, is to preserve peace and good order in the country as required by s. 197 of the Constitution. This section says:

"197. Functions of the Police Force.

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force".

The Acts of Parliament mentioned in the above proviso are the Police Force Act of 1998, the Search Act, Ch. No. 341, the Arrest Act Ch. No. 339 and the Bail Act Ch. No. 340. These Acts a part from the Police Force Act are made to give effect to the general qualifications on qualified rights pursuant to s. 38 of the Constitution.

Given the wide powers under those Acts of Parliament, the onus is on members of the Police Force to enforce the law in an impartial and objective manner. The Constitution protects the rights and liberties of each person be he or she is a citizen or non-citizen. Policemen and their colleague Policewomen are therefore required to carry out their duties within the ambit of the Constitution, the Police Force Act and those Acts dealing with a person’s right to liberty.

There is no dispute about the evidence presented before me. As I find the five named third respondent/defendants must be held liable for their tortuous acts. The issue is should the State or the Police Department be held vicariously liable for the actions of their servants. The State’s liability is set out in s.1 of the Wrongs (Miscellaneous Provisions) Act, Ch. No. 297 as amended to date. This section is put in the following terms:

"1. General liability of the State in tort.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property".

In this jurisdiction, the case of David Wari Kofewei -v- Augustine Siviri & Ors. [1983] PNGLR 44 establishes that, the State can be sued for wrongful actions of its servants. That case was a police raid during which police caused substantial damage to houses and other properties and the Supreme Court there held that the State was liable for the wrongful actions by policemen who conducted the unlawful and unwarranted raid on the group of concerned villages.

There are two misfortunes on the part of the five applicants. First, they engage no lawyer to represent them in court. Secondly, despite an order of this Court made on July 20, 2001 for the plaintiffs to add the name of the Independent State to be a party to these proceedings, such was not effected. That order was made pursuant to Order 5. r.8 of the National Court Rules (1)(a)(b) which provides:

"8. Addition of parties. (8/8)

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings".

As alluded to, my orders of 20th July 2001 were never effected simply meaning that the State nor the Police Department can be held vicariously liable for the wrongful actions of the five (5) third respondent/defendants. This is despite the fact that the names of the Provincial Police Commander and the Station Commander at Lakurumau have been named as First and Second Respondents. The fact is the Police Department has not even been named. Quite apart from this, is the fact that, in these proceedings the persons who executed the brutal attacks and assaults on the five applicants were properly identified. Thus, the five defendants must be solely responsible for their careless actions and their unwarranted behaviour in the way they executed these arrests.

In my findings, I do find that the assault inflicted upon the five applicants were unconstitutional and were unlawful and such actions were far beyond and in breach of s. 36, 37 and 41 of the Constitution (Freedom from inhuman treatment, Protection of law and Proscribed acts). I find further that the actions taken by the five named policemen was harsh and oppressive and were unwarranted and disproportionate to the circumstances of each case of the five applicants. Their actions must be unconstitutional. I find the five respondents liable.

Damages:

In awarding damages, I am inclined to adopt the decision by my learned brother Jalina, J, in the case of the Application by Kunzi Waso [1996] PNGLR 218 where His Honour said that all too often the State is being made to bare the responsibility for officers of the State who cannot execute their duties as required by law and those who seem to be careless in carriage of their duties must bare same responsibility.

General Damages

In general damages, the Plaintiff have claimed for pain suffered and harassment caused to them by the five policemen. They suffered injuries at the hands of members of a disciplinary force in the name of up-holding the law when in fact the five policemen inflicted injuries of various forms upon the five plaintiffs. I shall in my discretion make an award for general damages basing my assessment on the medical evidence presented to the Court by the five applicants. The true issue is what is the pecuniary consideration, which will make good of the sufferers of the attacks inflicted upon the five plaintiffs as far as money can do so for injuries they had suffered. Admiralty Comrs. –v- S.S. Valeria [1922] 2 A.A. 242. This case establishes that damages awarded must be or ought to be as much as possible make good of the person who has suffered.

I note in particular that, although no receipts were produced in evidence for the medical treatment received at the Medical Centre in Kavieng, I am satisfied that the five applicants have paid some money toward medical expenses as is evidenced by their medical reports.

Exemplary Damages

In a kind of claim like this, it is usual to award exemplary damages. Such damages can be awarded as an additional but discretionary relief both at common law and pursuant to s. 58 of the Constitution. It is awarded to punish and deter a tortfeasor from similar conduct in the future. It is seen as an award to compensate the plaintiff for the harm done to him: Rookes -v- Barnard [1964] UKHL 1; [1964] AC 1129.

In this jurisdiction exemplary damages has been awarded against the State in many cases such as David Wari Kefewi -v- The State & Ors [1983] PNGLR 449, Tom Amaiu -v- The Commissioner for Corrective Institution [1983] PNGLR 87, and others. I have a strong view that he State cannot be made a scapegoat to bear exemplary damages unless it is proven by evidence that the State officially sanctioned, directed or approbated such brutal attacks in the circumstances of these cases and in other cases like police raids and so forth: James Koimo -v- Independent State of Papua New Guinea N1322. The State must not be held liable for wrongful actions of protagonists. In any event an award for exemplary damages will not have any punitive nor deterrent effect on the State.

Breach of Constitutional Rights

An award ought to be made for Constitutional breaches pursuant to s. 58 of the Constitution. Such damages may be awarded against the person or persons who committed or responsible for infringement of guaranteed rights and freedoms.

Summary

General Damages - K 250.00

Exemplary Damages - K 500.00

Breach of Constitutional Rights - K1,000.00

K1,750.00

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The Court orders that each respondent/defendants shall pay an amount of K350.00 towards this order and these orders shall be paid forthwith.
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Applicants in person
No lawyer for the three Respondents