|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP (HR) NO 171 0F 1997
GERARD PAIN
Plaintiff
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant
Madang: Cannings J
2011: 23 September,
2012: 9 March, 25 June
HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – protection against proscribed acts – freedom of movement
The plaintiff claimed that he was unlawfully assaulted and shot in the back by police officers. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights. A trial was held to determine whether the State, in its capacity as employer of the police officers, was liable for breach of human rights.
Held:
(1) The plaintiff adduced credible evidence. The State did not adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.
(2) A number of the plaintiff's human rights were breached, viz
- freedom from inhuman treatment (Constitution, s 36(1));
- protection of the law (Constitution, s 37(1));
- protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));
- freedom of movement (Constitution, s 52(1)).
(3) The plaintiff established a cause of action for breach of human rights against the State, with damages to be assessed.
Cases cited
The following cases are cited in the judgment:
Eriare Lanyat v The State [1997] PNGLR 253
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113
Yange Langan v The State (1995) N1369
APPLICATION
This was a trial on liability to determine whether the plaintiff's application for enforcement of human rights should be upheld.
Counsel
B Tabai, for the plaintiff
25 June, 2012
1. CANNINGS J: Gerard Pain is applying for enforcement under Section 57(1) of the Constitution of his human rights, which he claims were breached by two police officers who assaulted him and shot him in the back at Wewak in 1993. He has brought evidence to support his allegations. The sole defendant is the State, which is alleged to be vicariously liable as employer of the police officers for the human rights breaches that occurred. The State failed to defend this matter. Nevertheless the plaintiff must prove his case. There are four issues:
1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?
2. I have considered three affidavits by the plaintiff and affidavits by three eyewitnesses, who gave direct evidence of what happened. Indirect evidence, which to some extent corroborates the plaintiff's version of events, is contained in reports by three doctors who treated or examined the plaintiff regarding a gunshot wound. I have also considered the terms of a pro-forma application form for enforcement of human rights, which is the originating process for the purposes of this case, which the plaintiff signed and dated 26 June 1997. The plaintiff has given a lengthy explanation for the four-year delay in filing that application and for the extensive delay in having the matter set for trial. He put the matter in the hands of a Wewak-based law firm in 1993 but they failed to pursue the matter so he filed the application in Madang in 1997. He appeared before the National Court in Madang in 2001 and was advised to consult another lawyer. He gave instructions to the Public Solicitor who in 2005 reached an in-principle agreement with the Solicitor-General to settle the matter out of court. However, at the last minute the Solicitor-General declined to go ahead with the agreement. He then took his case to his current lawyers, Tabai Lawyers, and has waited patiently for the case to be prosecuted.
3. It is now more than 19 years since the incident happened but now is not the time for the court to be overly concerned about that extraordinary lapse of time. It is sufficient to say that I am satisfied that the plaintiff is not responsible for it. The plaintiff's version of events has been the same since he commenced these proceedings. I draw no adverse inference against him due to the inordinate delay. I have considered the possibility that his allegations are bogus, that he has made up this story to extract compensation from the State. However, I consider that that is a remote possibility. Having considered the direct evidence in the plaintiff's affidavits and those of the eyewitnesses, the indirect evidence in the doctors' reports, the circumstances in which the application for enforcement of human rights was filed, the delay in having the matter progressed to trial and the absence of any conflicting evidence (there is no evidence or suggestion that the plaintiff was shot while attempting to escape or that he provoked his being shot), I find that the plaintiff has proven on the balance of probabilities that the gist of his allegations is true. I find that the events he describes actually took place and make the following findings of fact.
4. Between 8.00 and 9.00 pm on 24 May 1993 the plaintiff and two friends were dropped off at the Nuigo bus stop, Wewak, and walked towards the Wirui Catholic Mission. On the way they were attacked by a pack of aggressive dogs so they defended themselves by throwing stones at them. The stones hit the walls of nearby houses. Soon afterwards a police vehicle sped towards them, with its siren on. A shot was fired from that vehicle, so the plaintiff and his friends ran and hid in the nearby kunai grass. The plaintiff then emerged and walked towards the police vehicle, attempting to explain that he and his friends had done nothing wrong. However, he was assaulted with a baton by one of the police officers, identified as Sergeant Timothy Wani. While he was being assaulted another vehicle arrived on the scene and its headlights were trained on him. A police officer, identified as Constable Gregory Andi, emerged from the vehicle, carrying a pistol, which he then held against the plaintiff's back and fired one shot. The plaintiff collapsed, unconscious, and the police took him to Boram Hospital. The bullet was removed from his back 11 days after admission and he was discharged the next day, 12 June 1993.
2 HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?
5. The plaintiff has proven that his human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in four ways.
(a) Freedom from inhuman treatment
6. Every person has the right to be treated humanely, and not to be submitted to torture or to cruel or otherwise inhuman treatment. This right is conferred by Section 36(1) (freedom from inhuman treatment), which states:
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.
7. It is hard not to suspect that the plaintiff has not told the full story of why he was assaulted and shot. It is a little difficult to believe that in throwing stones at some dogs he and his friends would have accidently hit the walls of houses and that that was why the police arrived in two vehicles and behaved aggressively. However, the plaintiff's version of events is not so incredible that it ought to be rejected, and no evidence has been brought to contradict it. I conclude that the police assaulted and shot the plaintiff for no good reason and treated him inhumanely. By placing a pistol on his back and firing a shot, the police submitted him to mental torture, as any person in that position would fear that his life was in immediate danger.
(b) Full protection of the law
8. Section 37(1) (protection of the law) states:
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.
9. Section 37(17) (protection of the law) states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
10. The police failed to afford the plaintiff the full protection of the law. If they had good reason to suspect that he had been involved in unlawful behaviour, they were entitled to arrest and detain him. But having done that they were required to ensure that he was given the full protection of the law. The Constitution, especially Sections 37 and 42, gives clear instructions to the police as to how to deal with a person who is arrested or detained on reasonable suspicion of having committed an offence. None of those constitutional instructions were followed. The plaintiff was not treated with humanity or with respect for the inherent dignity of the human person.
(c) Protection against proscribed acts
11. Section 41 of the Constitution states:
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
12. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
13. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. The plaintiff has discharged that burden in relation to all seven categories of proscribed acts.
(d) Freedom of movement
14. Section 52(1) states:
... no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country, except in consequence of a law that provides for deprivation of personal liberty in accordance with Section 42 (liberty of the person).
15. The police officers interrupted the plaintiff's right to freely move around the town of Wewak when they intercepted him and then assaulted and shot him.
Conclusion as to cause of action
16. The plaintiff has established a cause of action under Section 57(1) of the Constitution for breach of the human rights conferred on him by Sections 36(1), 37(1), 41(1) and 52(1) of the Constitution.
3 HAS THE PLAINTIFF ESTABLISHED LIABILITY AGAINST THE STATE?
17. The State is vicariously liable for human rights breaches committed by police officers within the scope of their police employment or functions unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). The State has failed to discharge that onus. I conclude that the police were on duty when they assaulted and shot the plaintiff. The State is not relieved of liability simply because the police officers acted well outside the scope of legitimate police functions.
4 WHAT ORDERS SHOULD BE MADE?
18. As this trial was confined to the issue of liability, no assessment of damages will be made. Assessment of damages is not a formality. In 2005 the State agreed in principle to pay K150,000.00 but withdrew from the agreement before it was endorsed by the court. The plaintiff is not necessarily entitled to that sum. He still needs to prove his losses (Yange Langan v The State (1995) N1369). This raises the question of how damages should be assessed. There are at least three options available to the court: (1) order a trial on assessment of damages or (2) let the parties resolve the matter or (3) order mediation.
19. Under the ADR Rules the National Court is empowered by Rule 5(2), of its own motion, to order mediation for a resolution of any part of any proceedings provided that at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that: (a) mediation will not result in prejudice to the rights of either party; (b) it is reasonably within the ability and power of both parties to comply with a mediation order; (c) mediation will not entail substantial work for either party; (d) the nature of the relief sought lends itself to mediation; (e) a mediation at Wewak can be set up very soon and this should be convenient to both parties; (f) neither party has expressed opposition to the prospect of mediation; (g) mediation has not yet been attempted and it should be attempted at least once before consideration is given to setting down a trial; (h) neither party loses the right to have the assessment of damages tried in court; and (i) it is in the interests of justice to attempt mediation as a method of resolving disputes such as this. I conclude that option (3) is the most appropriate as it is the option that has the greatest prospect of finally and quickly determining the dispute. I will therefore make an order for mediation.
20. As to costs, the general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
JUDGMENT
21. I direct entry of judgment in the following terms:
(1) The plaintiff's application for enforcement of human rights is upheld.
(2) The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 36(1), 37(1), 37(17), 41(1) and 52(1) of the Constitution, against the defendant.
(3) The question of assessment of damages shall under Rule 5(2) of the ADR Rules, on the court's own motion, be referred for mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.
(4) Costs of the proceedings shall be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
Judgment accordingly.
_____________________________
Tabai Lawyers: Lawyers for the plaintiff
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2012/40.html