Yayonga v Haniken [2012] PGNC 156; N4876 (15 October 2012)

N4876

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 650 OF 2011

BETWEEN:

SIMON YAYONGA
Plaintiff

AND:

ANTON HANIKEN, CID MOTOR SQUAD
First Defendant

AND:

JEFFREY SIKIVIL, OIC-CELLS, BOROKO POLICE STATION
Second Defendant

AND:

GARI BAKI, POLICE COMMISSIONER
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kariko, J
2012: 1st & 15th October

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Default judgement - Principles – Exercise of discretion

TORTS - Negligence - Failure by police to charge suspects – Failure by police to prevent suspects escaping from custody – Whether reasonable cause of action disclosed.

Facts

The plaintiff applied for default judgment after the defendants failed to file Defences to an action claiming damages for alleged Police negligence for allowing suspects to escape from Police custody and for not having them charged and taken to court.

Held

1. The court may exercise its discretion against ordering default judgement where the statement of claim does not disclose a reasonable cause of action; Kante Mininga v The State & Others (1996) N1458 followed.
   
2. The police do not owe any duty of care to the public at large and that no such duty of care can be found if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation; Maku v Maliwolo (2012) SC1171 applied.
   
3. There is no duty of care owed by the police to a member of the public for a suspect to be charged, kept in custody and brought to court.
   
4. Pleadings do not disclose a reasonable cause of action.
   
5. Application for default judgement refused.
   

Cases cited:

Papua New Guinea Cases

Urban Giru v Luke Muta (2005) N2877
Kante Mininga v The State & Others (1996) N1458
Grace Lome by her next friend Jack Lome v Allan Kundi Western Highlands Provincial Police Commander (2009) N3791
Maku v Maliwolo (2012) SC1171

Overseas cases

Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Counsel:
Mr T Berem, for the plaintiff
No appearance for the defendants

15th October 2012

1. KARIKO, J: Simon Yayonga claims that he was driving home with his wife in their truck when they were held up by armed criminals at East Boroko. They were forced out of the vehicle, robbed and his pregnant wife was sexually assaulted by the criminals. The vehicle was driven away by these criminals who later overturned the vehicle and damaged it. Mr Yayonga subsequently conducted his own investigations and with helpers apprehended four suspects who he handed over to Senior Constable Anton Haniken. The suspects were detained at the cells at the Boroko Police Station but three of them escaped before they were charged and taken to court.

2. In the circumstances, this proceeding has been filed alleging negligence on the part of Senior Constable Haniken for not charging the suspects and on the part of the OIC- Cells at the Boroko Police Station for the escape of the suspects. Mr Yayonga claims that because the suspects were not charged and tried, he has suffered injustice and seeks damages for the assault on him by the criminals, the mental distress that followed and for the loss of business as his truck was on hire by the NCDC.

3. The Commissioner of Police and the State have also been named as defendants on the basis of vicariously liability.

Default judgement

4. Mr Yayonga has applied for default judgement against the defendants alleging they have defaulted by not filing their defences.

5. The law is clear on the preconditions to be met for entry of default judgement and these include:

• The notice of motion shall be in the proper form with supporting affidavits;
• These documents have been properly served on the defendant;
• The writ of summons has been properly served on the defendant;
• The defendant is in default;
• The default has been proved by evidence; and
• Defendant has been forewarned.

(Urban Giru v Luke Muta (2005) N2877, Cannings J)

6. While I am satisfied that the preconditions have been met by the applicant in the present matter, I still have discretion whether or not to grant default judgment. Cases where the court may exercise its discretion against ordering default judgement include where the statement of claim does not disclose a reasonable cause of action; Kante Mininga v The State & Others (1996) N1458

7. Counsel for the plaintiff has strongly argued that the police owe a duty of care:

(1) to lay charges against suspects and bring them to court particularly where a victim of a crime has apprehended a suspect (civilian arrest); and

(2) to ensure that suspects do not escape from police cells.

8. Mr Berem relied on the decision in Grace Lome by her next friend Jack Lome v Allan Kundi Western Highlands Provincial Police Commander (2009) N3791where damages were awarded in favour of the plaintiff child who had been raped. The background facts of that case are similar to the present case. Suspects were rounded up by the victim's father and relatives and handed over to the police but they were the released from custody. The plaintiff alleged negligence by members of the Police Force for failing to arrest and charge the suspects and prosecuting them.

9. What was before the trial judge in that case was assessment of damages as default judgment had been earlier entered, and it would seem by another judge because his Honour observes:

.... the Defendants had not filed a defence. As a result, default judgment was entered against them. This gives the Court no opportunity to determine whether the Plaintiff is entitled to question or challenge the authority of the police to arrest, charge and prosecute alleged offenders.

10. Because default judgement had been entered, liability was not revisited and the cause of action not questioned. His Honour only considered the issue of damages. In my view Lome's case does not assist the plaintiff in the present case.

11. It appears to me that what is being alleged are general duties of care owed to the public. The Supreme Court earlier this year in Maku v Maliwolo (2012) SC1171 held that the police do not owe any duty of care to the public at large and that no such duty of care can be found if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. In that case the Supreme Court applied Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 which at common law is settled authority for the proposition that:

(1) there is no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal; and

(2) as a matter of public policy the police are ordinarily immune from actions for negligence in respect of their activities in the investigation and suppression of crime.

12. In my view there is no duty of care owed by the police to a member of the public for a suspect to be charged, kept in custody and brought to court. There may be many reasons why a charge is not laid including insufficiency of evidence. A person may be kept in custody for reasons other than being suspected of committing an offence. For example, he may be locked up for his own safety. Detainees escape from police cells even where the lock-ups are considered secure and in this country there is no police cells that are escape-proof. Charging a suspect, detaining that person in custody and bringing him to court are matters of decision-making and exercise of discretion by police in the investigation of crimes. To hold that duties of care as claimed by Mr Yayonga exist would be contrary to the legal principles established by Hill's case and approved in Maku v Maliwolo (supra).

13. I find the pleadings do not disclose a reasonable cause of action, and I not only refuse the entry of default judgement but dismiss the proceeding pursuant to O12 r 40(1)(a) of the National Court Rules for not disclosing a reasonable cause of action.

Orders

14. The orders of the court are:

(1) The plaintiff's application for default judgement is refused.

(2) The proceeding is dismissed for not disclosing a reasonable cause of action.

(3) There is no order as to costs.

(4) The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

___________________________________________________

Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants