Application for Enforcement of Human Rights, in re Jacob Okimbari [2013] PGNC 166; N5420 (15 November 2013)

N5420

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 15 OF 2013

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BY JACOB OKIMBARI

Madang: Cannings J
2013: 14 August, 24 October, 15 November

HUMAN RIGHTS – application for enforcement – right to full protection of the law Constitution, Section 37(1) – freedom from inhuman treatment: Constitution, Section 36(1) – right to be treated with humanity and respect: Constitution, Section 37(17) – right to personal liberty Constitution, Section 42.

The plaintiff says he was assaulted and shot by police officers after he was already in police custody. He claims that the police breached his human rights and he suffered serious injuries. A trial was conducted on liability and assessment of damages.

Held:

(1) The factual allegations of the plaintiff were sustained.

(2) The plaintiff's human rights were infringed in that he was denied: the right to the full protection of the law (Constitution, s 37(1)), the right to freedom from inhuman treatment (Constitution, s 36(1)), the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family and a lawyer (Constitution, s 42(2)(b)) and the right to be treated with humanity and respect (Constitution, s 37(17)).

(3) As the plaintiff established that his human rights were infringed, an appropriate form of relief is an order under Section 58(2) of the Constitution for damages, comprising two components: reasonable damages and exemplary damages.

(4) Damages were awarded at the rate of K3,000.00 each for the breaches of his human rights + exemplary damages of K1,000.00 for each of the breaches. The Court awarded total damages of K16,000.00 + interest of K6,451.20, being a total judgment sum of K22,451.20.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Application by Benetius Gehasa (2005) N2817
Bobby Selan v The State (2012) N4938
The State v David Wari Kofowei [1987] PNGLR 5
The State v William Nanua Kapris & 13 Others (2011) N4232
The State v William Nanua Kapris and Jacob Peningi Okimbari & Others (2011) N4305

APPLICATION

This was an application for enforcement of human rights.

Counsel

A Meten, for the plaintiff
S Phannaphen, for the defendant

15th November, 2013

1. CANNINGS J: Jacob Okimbari applies for enforcement of his human rights which he claims were infringed while he was already arrested. He claims the police shot him in the leg when he was already in their custody. He seeks damages. The defendant is the police officers' employer, the State, which disputes the factual allegations and argues that this is a bogus claim that should be dismissed. A trial has been conducted to determine whether the State is liable and if it is what relief should be granted to the plaintiff.

ALLEGATIONS

2. The plaintiff deposes in an affidavit that on 2 November 2008 he was at Ramu, Madang Province. He was a suspect in the Police investigation of the BSP Madang robbery that took place in July 2008. At 5.30 pm the police surrounded the house he was in, fired shots into and entered the house and arrested him. They assaulted him, though he did not resist arrest. The police told him to lie on the floor, which he did, then a policeman, Manu Pulei, shot him, first on his left leg and then his right leg.

3. The police took him to Lae and on the way he lost consciousness because of the beatings and the gunshot wounds. They took him to the emergency department at Angau Memorial Hospital. The doctor in charge wanted him to have an x-ray and be admitted into the hospital but the doctor was overruled by the police who instead took him to the Lae Police Cells and locked him up there that night. The next morning, 3 November, the police interrogated him about his involvement in the robbery and when he did not give them the answers that they wanted to hear, they assaulted him. The same thing happened the next day, 4 November. The police interrogated him but did not like his answers, so they beat him, this time with a softball bat. He lost consciousness and was rushed back to the hospital where he stayed one night.

4. On 5 November the police removed him from the hospital without approval from the doctors. They interrogated him and assaulted him again. At 1.00 pm on 5 November 2008 he signed a confessional statement, and that's when the beatings stopped.

FINDINGS OF FACT

5. Mr Phannaphen for the State submitted that the plaintiff's evidence should be rejected as it was uncorroborated and not credible and the medical report annexed to his affidavit is in relation to a different person: Jacob Beningi. I reject Mr Phannaphen's submission.

6. There was no evidence at all adduced by the State, so there is nothing before the Court that contradicts the plaintiff's sworn testimony. I take judicial notice of the fact that the plaintiff gave evidence of a similar nature in the criminal trial relating to the BSP robbery, which resulted in him being convicted of armed robbery and related offences and sentenced to 15 years imprisonment, which he is now serving (The State v William Nanua Kapris & 13 Others (2011) N4232, The State v William Nanua Kapris and Jacob Peningi Okimbari & Others (2011) N4305). He has consistently maintained that he was assaulted and shot by the police in the manner he is now alleging for the purposes of the present proceedings.

7. The plaintiff's evidence is credible and I find that he has according to the civil standard of proof, on the balance of probabilities, proven the factual allegations.

LEGAL ISSUES

8. As I suggested in Application by Benetius Gehasa (2005) N2817 and Bobby Selan v The State (2012) N4938, a human rights enforcement application gives rise to two major issues:

• Have any rights of the plaintiff been infringed?
  
• If yes, what remedy should be granted?
  

HAVE ANY RIGHTS OF THE PLAINTIFF BEEN INFRINGED?

9. I am persuaded by Mrs Meten's submissions that the evidence shows that the plaintiff's human rights were infringed in four distinct ways. First he was denied the full protection of the law (Constitution, s 37(1)) in that he was assaulted by the police, though he did not resist arrest.

10. Secondly, he was on multiple occasions in Lae denied the right to freedom from inhuman treatment (Constitution, s 36(1)) by being removed from Angau Hospital without medical approval and assaulted by police in the course of interrogation.

11. Thirdly he was denied the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family and a lawyer (Constitution, s 42(2)(b)).

12. Fourthly, he was on multiple occasions denied the right to be treated with humanity and respect (Constitution, s 37(17)).

WHAT REMEDY SHOULD BE GRANTED?

13. I find that the State is vicariously liable for the unlawful conduct of the police officers who committed numerous human rights breaches against the plaintiff as those breaches were committed in the course of what was an officially sanctioned and legitimate police investigation. The police officers, though they committed unlawful acts, were acting within the scope of their employment (The State v David Wari Kofowei [1987] PNGLR 5, Abel Tomba v The State (1997) SC518).

14. I am satisfied that this is an appropriate case for compensation by way of damages under Section 58(2) (compensation) of the Constitution, which states:

A person whose rights or freedoms declared or protected by this Division [the human rights set out in Division III.3 of the Constitution] are infringed ... is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

15. The award of damages will comprise the two components set out in Section 58(2): "reasonable damages" to compensate the plaintiff for the breaches of his human rights and "exemplary damages" to signify the court's condemnation of the State's extra-judicial punishment of a detainee. The applicant claims an award of K3,000.00 for each of the four breaches of his human rights. This is a reasonable claim, which I uphold. The sum of K12,000.00 is awarded for reasonable damages.

16. As for exemplary damages Section 12(1) of the Claims By and Against the State Act 1996 states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

17. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? The answer is yes. The Police Force and the State have failed in their duty to train and educate their police officers on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. I award exemplary damages of K1,000.00 each for each of the human rights breaches that occurred, being a total of K4,000.00.

18. The total award of damages is K12,000.00 (reasonable damages) + K4,000.00 (exemplary damages) = K16,000.00.

INTEREST

19. Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the incident, 2 November 2009 to the date of judgment, a period of 4.04 years, by applying the formula D x I x N = A, where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus:

• K16,000.00 x 0.08 x 5.04 = K6,451.20.
  

COSTS

20. The plaintiff is a prisoner who has been assisted in this matter by the Public Solicitor. In these circumstances it is appropriate that the parties bear their own costs.

ORDER

(1) The application for enforcement of human rights is granted.

(2) The defendant is liable to pay to the plaintiff total damages of K16,000.00 plus interest of K6,451.20, being a total judgment sum of K22,451.20.

(3) The parties shall bear their own costs.

____________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant