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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1013 of 1996
BETWEEN:
GABRIEL KENZIYE & 56 OTHERS
Plaintiffs
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant
AND:
SAKAWAR KASIENG
Second Defendant
Mount Hagen: Poole, J
2013: 20 May & 15 November
DAMAGES - Police raid on village – destroying houses and property by fire is, prima facie, the crime of Arson and calls for
exemplary damages.
-To take money while threatening violence is robbery and if done by police justifies exemplary damages for breach of Constitutional
rights.
TORTFEASOR - Named as Second Defendant policeman but State claims cannot locate him – Exemplary damages properly payable by State (Joe Kape v The State N4745 followed).
FALSE IMPRISONMENT - Exists from time of illegal detention to time Plaintiff regains personal liberty and is a breach of common Law rights and violation of section 42 of Constitution.
EVIDENCE - Default Judgement, State failure to file any evidence or submissions – Court must be satisfied by admissible evidence that facts pleaded are established on the balance of probability.
EVIDENCE - Weight to be given to evidence must take into account totality of surrounding factual circumstances – Including apparent lack of any control or discipline of police.
Cases cited:
Papua New Guinea Cases
Papua New Guinea Banking Corporation v Tole (2002) SC 694
Coecon v National Fisheries Authority and The State (2002) N2182
Peter Kuriti v The State [1994] PNGLR 262
More & Andale v Henry Tokam & The State (1997) N1645
Joe Kape v The State (2012) N4745
Latham v Henry [1997] PNGLR 435
More v Onopia [1998] PNGLR 290
Kofowei v Siviri [1983] PNGLR 449
Overseas Cases
Waggon Mound (No 2) [1966] UKPC 1; [1967] AC 617
Smith v Leech Brian & Co. Ltd [1962] 2 QB 414-415
Counsel:
Mr. Kopunye, for the Plaintiffs
Ms. Doa, for the First & Second Defendants
15th November, 2013
1. POOLE J: Background: On the 18th October 1996 the Plaintiffs filed a Statement of Claim seeking damages from the First Defendant and the Second Defendants for loss of property and wrongs to their person and their Constitutional rights.
2. The Writ and the Statement of Claim was served; no response whatsoever was made by either Defendant and, after due Notice of Intention was given by Plaintiffs, an Application for Default Judgement was granted on the 6th December 1996, with damages to be assessed.
3. All Plaintiffs filed affidavits of evidence in due form.
4. On 5th December 2000 the Court Ordered this matter to proceed on assessment by way of affidavits to be filed and exchanged within 14 days and parties were ordered to file submissions. The Plaintiffs complied with these Orders. Neither Defendant took any step to do so.
5. On 20th May 2013 the Court was reviewing incomplete matters when this matter came to light. The parties, once again, were invited to file any further material on which they would seek to rely within 14 days. Once again nothing was received from either Defendant.
6. This case is what has become known as a "police raid case" and it is disturbing to note that the State has filed no material whatsoever. The Court has been informed that this is because it has not been able to get any instructions from the police. There is no excuse for this, nor evidence of what attempts, if any, were made to seek evidence from them. Instead of being content to act as a passive pay – master to distribute damages to be paid from badly needed public funds, it should take proper steps to protect these funds by identifying police against whom claims are made, actively defend claims where appropriate and seek appropriate indemnities and contributions from the police concerned when the facts justify this. Especially this is so when simple enquiry would have enabled the State to know that the Second Defendant had been transferred to Vanimo sometime after the events in issue, to have ascertained, from duty rosters of the Banz Police Station what personnel to interview and to take prudent and proper steps to protect the State funds over which it is the State Solicitor's duty to exercise stewardship.
7. To neglect to attend to these steps, as permitted by section 2 of the Wrongs (Miscellaneous Provisions) Act (which spells out that the law relating to indemnity and contribution is enforceable by the State in respect of any liability to which it may be subject in tort because of the liability of its servants and agents), if such failure were made by a lawyer in private practice, would be professional negligence.
8. Despite the absolute absence of evidence, pleadings or submissions from or on behalf of either Defendant, the principles upon which such a case should proceed when Default Judgement has been entered are clear and set out in, for example, the Supreme Court decision in Papua New Guinea Banking Corporation v Tole (2002) SC 694 and, in this court, in Coecon v National Fisheries Authority and The State (2002) N2182. They may be summarized as:
9. The facts which gave rise to this case may be briefly stated as follows:
On the 12th January and the 2nd February 1991, police from Banz, under the command of the Second Defendant, conducted raids and searches
on the persons and property of the Plaintiffs in Kulunga, Tapia (or Buphile) villages in the Kul district, Jimi, in the Western Highlands
Province.
10. The Plaintiffs claim that, during this operation, police personnel burned down houses, destroying them and the contents of them, stole money, raped a number of women, assaulted and wounded a number of people, falsely imprisoned a number of people and, by armed threat, forced a number of people to commit acts of gross sexual indecency and sodomy.
11. Particulars were pleaded in detail as to property, value and events and the Plaintiffs each filed affidavits addressing these particulars. Satisfactory particulars were sworn to relating to most claims.
12. The actions of which the Plaintiffs complain were neither mistaken nor accidental events but purposeful. The results are intended consequences of these actions and the damage, injury or hurt which arose from these actions was clearly foreseeable.
13. In such circumstances, damage which a Plaintiff may sustain through loss of property is a direct result of the Defendant's actions and compensable to the full extent of the loss shown to have been suffered – ie. the contents of a house form part of the claim arising from the Defendants setting fire to the house. (see Waggon Mound (No 2) [1966] UKPC 1; [1967] AC 617 and dictum of Parker LCJ in Smith v Leech Brain & Co Ltd [1962] 2 QB 414-415).
14. Almost all of the Plaintiffs have filed affidavits of evidence and I have considered with care the facts deposed to and whether these are sufficient evidence of the damages claimed for each plaintiff in the Statement of Claim. If no affidavit has been filed, there is no evidence to support that plaintiff's claim and it is not dealt with.
15. The claims which the Plaintiffs make fall under the following heads; property loss, assault, false imprisonment, and breaches of Constitutional rights and freedoms, damages for arson, robbery, rape and indecent assault.
16. Because there are multiple Plaintiffs who have differing claims arising from this police operation, it is necessary to go through the evidence in a way so that each Plaintiff may understand why each of his or her claims are accepted or rejected in relation to each head of claim. This is a rather drawn – out process, but unsophisticated village plaintiffs should be able to see how each of these various heads of claim are resolved.
17. So far as the claims for loss of property and theft are concerned, I have referred to the sworn testimony of those Plaintiffs who have made such claims and state my reasons for accepting or not accepting these. All evidence was sworn by the Plaintiffs and in no case have the Defendants denied or contradicted that evidence. This means that, as I have said, the Court must decide, on the balance of probability, if that evidence is sufficient as to the cause of loss and value of the loss claimed.
18. Such evidence must, of course, be assessed in the light of circumstances which prevail at the time and place in which the events deposed to are said to have occurred. In this case, this was a police operation which, whatever its original planned objective, clearly became an ugly incident. Because of obvious gross neglect or failure of command and control, criminal offences were committed by policemen who had sworn to uphold the law and constitutional rights and freedoms were violated by those whose duty it was to protect them.
19. In such circumstances, when there is clear evidence of men running out of control, I am quite able to accept that the events the plaintiffs swear to did occur. The total lack of any material from either Defendant is as regrettable as it is deplorable.
20. For the sake of convenience I set out the separate claims and evidence relating to PROPERTY CLAIMS.
21. Kombuk Tombu, claims damages for destruction of his house and property to a value of K550.00. His affidavit filed on 3rd August 1999 states he estimates the value of his house at K200.00 and the contents "to be about K350.00." He also swears, in the same affidavit, that he knows the Second Defendant (who, he says, was married "to one of the ladies from Jimi") and it was the Second Defendant and other police who "assaulted me very badly by kicking me with boots." He was then subjected to perverse sexual indignities by the police forcing his nephew to commit oral sex on him at gun point. They then took him back to the village and forced him to lie on the ground and, at gun point, forced three women and a man, Kolip Opo, "to hold my private parts."
22. Following this they forced Kolip Opo, at gun point, to sodomize him.
This statement of events is corroborated by the affidavits of evidence of the nephew, Aimba Tun, the three women (Kombo Aipe, Ipald
Tun & Kelen Korimbo) and by Kolip Opo.
23. In relation to this plaintiff, I find as facts that he did sustain the loss of property sworn to and, despite lack of detailed particulars, I am prepared to accept as reasonable for the time and place of loss, the value placed on the property of K550.00, and award general damages in this sum.
24. So far as the claim for assault and sexual assault and enforced sodomy are concerned, I find as fact, also, that these events were corroborated by five eye witnesses and I am satisfied that there is sufficient evidence in substantiation of the facts pleaded. I shall deal with damages for this later.
25. He swears also that K26.00 was stolen from him by police. Its theft was in circumstances which, in the Criminal Law, amounts to robbery and this is a breach of his Constitutional rights which I shall address later.
26. Apa Opo was a witness to the events concerning Kombuk Tombu and, also, states he was assaulted. I find his evidence credible and accept the fact he was assaulted. It is corroborated by other witnesses and the question of damages will be addressed later.
27. Kolip Opo, in his affidavit filed on 3rd August 1999, also swears to his house (which he valued at K200.00) and contents (which he valued at K280.00) being burnt by police. He swears to the fact that he was "ordered at gun point" to sodomize Kombuk Tombu in public and witnessed the police forcing three named women to sexually assault Kombuk Tombu.
28. The events which he deposes to were publically witnessed and are corroborated by eye-witnesses. I find as fact that he sustained the property loss claimed and I accept the value he places on it. He was also subjected to the indecency and humiliation, which, he deposes, was his "most embarrassing thing that has happened to me" and says "we were subjected to this sort of treatment in public place by Mr Kasieng," the Second Defendant. I shall deal with this aspect of his claim later.
29. Kanz Tumbu, swore an affidavit (also filed on 3rd August 1999) in which he deposes to the loss of a house (valued at K200.00) and contents (valued at K100.00) when burnt by police. He swears he was assaulted "very badly" and had K80.00 stolen by police from his pocket in circumstances which amount to robbery and a breach of Constitutional rights.
30. I make a finding of fact that this is acceptable evidence of the events described, for the reasons I have previously stated. He also swears to witnessing the events concerning the indecent humiliation of Kombuk Tombu. His claim for damages for assault falls for assessment later, but he is awarded K300.00 general damages for loss of property.
31. Opilannga Sengn, is a Plaintiff whose claim is much the same as Kanz Tumbo, and who swore an affidavit of evidence which was filed on 3rd August 1999 too. He says the reason why I am in court is "-----policeman came and burnt my house and assaulted me." He is witness to the events concerned with the degrading and humiliation of Kombuk Tombu, and says he was "very scared the police might do the same thing to me but they came and assaulted me very badly." He estimated the value of the house which the police burnt at K200.00 and of the belongings in the house at K200.00.
32. I find as fact that his evidence is credible as to the value he places on the house and contents destroyed, and to the fact that he was assaulted. I also note that he swears, by way of corroboration "the policemen assaulted Kolip Opo and told him to have sex with Kombuk Tombu. Kolip Opo refused but police put a gun to his head and was forced to do it." Opilannga Sengn asks for damages for assault to be assessed, and I shall deal with that claim later, but he is awarded K400.00 general damages for loss of property.
33. Dunga Walep, another subsistence farmer, swore an Affidavit of evidence that his house was burnt by police. He stated his "house was a new house and it is valued at about K400.00." I accept his evidence both as to loss and to value and he is awarded K400.00 as general damages for loss of property.
34. Tun Wi, also a subsistence farmer, swore a similar affidavit and stated that if he was to hire someone to built his house which was burnt, it would cost K400.00. Neither, he nor Dunga Walep claimed for loss of contents. I accept the evidence of this plaintiff as to the loss and the value ascribed and award him K400 as general damages for loss of property.
35. Aipe Tumbu, a farmer, lived with his dependants in two houses which were destroyed by the police. He says his houses were new and values each at K500.00 and the value of the contents at a total of K300.00. I accept this evidence, also, on the balance of probability, both as to loss and to the value of the property and he is awarded as general damages for loss of property, K1300.00.
36. Kumge Kamp, in his affidavit of evidence, values his house which was burnt down at K400.00 and contents at K500.00. He also says the police "got K850.00 which I had in my pocket." This evidence is neither denied nor contradicted. I accept that, in the circumstances of this incident in which armed police were out of control in a village, as sufficiently probable evidence of the loss of K850.00, and I accept his other evidence of loss of property and the value he places on it and he is awarded K1750.00 as general damages for loss of property.
37. Opo Kamuga, by affidavit, states his house destroyed by fire by the police, was worth K400.00 and the contents K500.00.
38. Kopun Kolip, swears that his house, valued at K300.00 was burnt and, with it, four pigs, two valued at K80.00 each, one at K70.00 and one at K50.00, were also lost.
39. Anton Kolip, had a small trade store burnt. By affidavit he estimates the value of the building as K400.00 and of the contents lost at K260.00.
40. Alu Konzga, in his affidavit, places the same value on his house but values the contents at K400.00.
41. I accept the evidence, on the balance of probability, of these four Plaintiffs, both as to loss and value, and award, as general damages for loss of property, to Opo Kamuga, K900.00, to Kopun Kolip, K580, to Anton Kolip, K660.00 and to Alu Konzga, K400.00.
42. Makma Kondualnga, by his affidavit of evidence, claims his house was worth K200.00 when destroyed and he also lost contents worth K200.00 and he had K400.00 "cash I put in my house."
43. While I find it improbable that a village man would hand over money from his pocket unless he were forced to do so, I do not find it improbable that this plaintiff should have been keeping cash in the amount claimed in his house. I accept that evidence and that of the value of the house and contents and he is awarded K800.00 as general damages for loss of property.
44. Puldye Kadlo, also lost his house and contents and, in his affidavit, estimates the value of the house at K350.00 and the contents at K150.00. I accept that evidence and award general damages for loss of property of K500.00.
45. Winu Kapil Kapald, swears that, when the police came to her village, she was four months pregnant and working in the garden at the back of the house. Police set fire to her house and, when she ran to the house to pick up her possessions, a policeman caught her and raped her. She estimates the value of the house destroyed as K350.00 and the contents at K200.00. I accept that evidence of property loss and value and award her the sum of K550.00 as general damages for loss of property. She also claims damages for rape, and breach of Constitutional rights which I shall assess separately.
46. Par Dilu Kapil, is another woman who was, at the time, in her house with her small daughter whom she was breast feeding. She ran with her child but was caught by two policemen who threatened her life and that of her child. She was raped and says "I am ashamed of these things." Her house and "all of what she owned" was burnt down. She estimates the value of the house at K200.00 and of the lost contents at K250.00 and, as general damages for loss of property award her K450.00. I accept that evidence. She claims damages for rape, and breach of Constitutional rights which I shall assess, also, later.
47. Rosa Du Yas, was, at the time, a young married woman with a child she was breast-feeding. She was cooking in her house when two policemen entered her house and raped her. Following this her house and the contents were burnt by the police. She is evidently better educated than many of the other villagers and she and her husband made a detailed list of possession lost and the estimated value. The total value of possessions lost is estimated as K195.80 and of the two houses K600.00 and I accept that evidence of loss and of value. Her claim for damages for rape and breach of Constitutional rights will be assessed later but she is awarded general damages for loss of property K795.50.
48. Wapi Angelye, estimates the value of his house which was burnt down as being K500.00 but makes no claim for loss of contents. On the balance of probabilities, I accept this evidence and award him general damages for loss of property in the sum of K500.00.
49. Kapal Waibunga, swears that when his house, estimated to be valued at K400.00, was burnt he also lost possessions to a total value of K196.40. He lists the value for each and I accept that evidence and award him K596.40 general damages for loss of property.
50. Kunzts, also, is a Plaintiff who has sworn an affidavit of evidence deposing to the estimated value of what he lost. He says his house was worth K200.00, was destroyed when burned by police and he gives details of the items of clothing he also lost and which he values at K47.00 and I award him K247.00 as general damages for loss of property.
51. Peter Ali Kolumi's, affidavit estimates the value of his house at K450.00 and of the cash (K24.00) and clothing lost when the house was burnt (K99.00). I accept his evidence of loss and value and award him K573.00 general damages for loss of property.
52. Anton Jilu, swore an affidavit which claims K500.00 for the destruction of his house and K437.25 for cash and clothing and possessions lost when the house was burned. I accept the evidence of this plaintiff and award general damages of K937.25 for loss of property.
53. A similar, more detailed, affidavit listing and valuing household items, clothes and cash was sworn by Waibinga Wapia. He states he lost two houses (at K300.00 each) and cash and household items (to a value of K796.50) to a total value of K1396.50. I accept that evidence and award him general damages of K1396.50 for loss of property.
54. Bany Pele, swore an affidavit in general terms claiming a loss of cloths to a value of K61.00. His affidavit does not specify how he lost these items or who caused the loss and I am unable to accept it as sufficient.
55. A similar affidavit, by Kindiamb Ai, claiming loss of clothing worth K29.00 also is not accepted as it does not sufficiently state how the items were destroyed or who was to blame.
56. Pele Wapia, swears that police burnt down his house with the contents belonging to him and his family. I accept that evidence. He says he lost a house worth K300.00, K30.70 in cash and house-hold goods and cloths worth K214.90 – a total of K545.60 and I award that sum as general damages for loss of property.
57. Paias D. Pele, claims a loss of K300.00 as the value of his house and K114.50 as the value of clothing and a guitar which he identified as lost when burned by police. I accept his evidence and award K414.50 to him as general damages for loss of property.
58. There is an affidavit filed by Kulam Waiginga which claims a loss of clothing to a value of K59.00. It fails to sufficiently identify a nexus between the police and his loss and is insufficient to be accepted as evidence.
59. Mrs Kapal Waiginga, similarly, has sworn an affidavit claiming K81.00 for loss of listed clothing. Her statement is confirmed to "they looted my house and took all our properties", and is not sufficient evidence, in that form, to substantiate the loss was a result of actions of the Defendants, as it does not identify the "they" who did the looting and the Court should not guess or assume the identity of the looters.
60. Awi Bol Kolip, swears that on 21st January 1991 his house and contents were destroyed by the police burning the house down. He says the house would cost K300.00 to have someone build and the family property lost was estimated as being of a value of about K500.00. I accept that evidence. But he has a further claim for damages for assault and false imprisonment. The court will consider those aspects later but awards him K800.00 as general damages for loss of property.
61. A group of villagers had formed the Buphile Youth Group which operated a trade store in January 1991. The Chairman, Bol Kawai, swore an affidavit stating that the Second Defendant and other policemen from Banz came to the village, broke into the store and removed all the stock. He says that, because the village was remote, they maintained stock to a value of about K500.00 which was stolen. He also swears that he had counted the cash kept in the trade store and it was K350.00. This also was stolen. I accept that evidence both as to loss and value and award the group K850.00 as general damages for loss of property.
62. Kus Ap, swears that when the police came to his village he was searched at gun-point and they took K200.00 cash he had with him. Although his affidavit is sparing of detail, he deposes to the fact that he was searched at gun-point – and I find that sufficient reason for a man to hand over cash he has on him and accept his evidence of the loss of K200.00 by robbery. This was assault and robbery and a breach of Constitutional rights for which he is entitled to seek aggravated damages. I shall deal with this aspect later, but at present, award him K200.00 as general damages for robbery.
63. A 10 page affidavit by Gaberial Kenziye was filed on 7th July 1999. He states he has "some education" and was the Youth Co-ordinator for the area and, in that capacity, had standing in and respect of the community.
64. Because of his education and his standing the people looked to him for assistance after the police raid and, he states, he "then set about getting the statements of what had happened and talked to them."
65. Much of his lengthy affidavit is hearsay and cannot be accepted as evidence to support the facts pleaded.
66. There is admissible material, however, of events of which he is able to properly depose. Those include:
(a) my clothes were ripped off my body,
(b) I was badly punched and kicked and dragged on the bitumen surface,
(c) I was brought to the Police Station and was beaten badly,
(d) I was hit by a rifle butt in the mouth where I lost a teeth (sic) and cracked another teeth (sic),
(e) I had my personal items taken such as passbooks, reference and certificate,
(f) I was asked to go home and bring compensation of K500 and five pigs to the police,
(g) I was held for two hours in the cell;
(h) I was not party to the events that has taken place at Buphile area in 1991 over the rape of Mrs Raphael Anna but being unjustly assaulted in public and badly beaten for;
(i) the police removed from me PNGBC and BSP Passbooks with K24.00 cash." I accept his evidence and I award him K24.00 damages for loss of property. Damages for assault will be assessed later.
67. Claims for DAMAGES FOR ASSAULT AND ROBBERY, RAPE AND SEXUAL ASSAULT were made by the following Plaintiffs:
68. Ap Opo swears, in his affidavit filed on 3 February 1999, that in January 1991, he was at the village and was one of those forced to witness the humiliation of Kombuk Tombu and Kolip Opo. He says "whilst I was there the police came and assaulted me very badly and removed from me my K26.00 that I had in my pocket."
69. He gives no particulars of the assault but liability has been conceded by the State and no evidence forthcoming from it. The circumstances under which the K26.00 was taken from him amount to robbery and, also, a breach of Constitutional rights.
70. At the least, this Plaintiff suffered a common assault for which, on summary conviction, section 343 of the Code may impose a penalty of a fine of K200.00. In view of the fact that this Plaintiff was assaulted by someone whose duty includes prevention of common assaults, and in the exercise of my discretion I award general damages to Apa Opo in the sum of K200.00 damages for the assault and, for the robbery, the sum of K200.00 as exemplary damages.
71. Kanz Tombo swears he witnessed the assault on Apa Opo and also says he was "assaulted badly" and had K80.00 stolen from him by the police. For the reasons I have just given, I award him, also, K200 as general damages for robbery, a further K200.00 by way of exemplary damages.
72. The Plaintiff Opilamga Sengn, like Apa Opo, was forced to witness the sexual assaults on Kombuk Tombu and Kolip Opo and says he was very scared the police would do the same to him. As it was, he says they assaulted him badly. In the absence of particulars I award him, as general damages for assault, the sum of K200.00 on the basis I have set out above.
73. Kolip Opo's claim for property loss has been dealt with and I have commented in general terms on his evidence.
74. So far as his evidence of common physical assault is concerned I note his explicit statement – "Mr Kasieng from Banz Police Station came to my village and assaulted me." He says, in relation to being sodomized at gun-point, and that he was "subjected to this sort of treatment in a public place by Mr. Kasieng."
75. I shall deal, separately, with the aspects of damages for sexual assault. (The State can seek contribution from the Second Defendant or his retirement funds should he have retired.)
76. Ap Kurunga also witnessed the enforced sexual degradation of Kombuk Tombu and Kolip Opo. He also was the victim of an assault by police, who, also, stole K26.00 from him. He also is awarded K200.00 damages for robbery and further K200.00 exemplary damages for breach of Constitutional rights.
77. Concillor Wolannga, while being illegally detained in circumstances I have referred to before, says "the police burned me with cigarette butts many times." This assault upon someone held prisoner in handcuffs is more serious than a common assault – it is the equivalent of torture of prisoners and deserving the highest condemnation, and will be considered as part of the damages for being unlawfully detained and breach of Constitutional rights. He is awarded K1000.00 damages for false imprisonment, and K2000.00 exemplary damages for breach of Constitutional rights.
78. Alu Konts was with Councillor Wolannga when the police arrived. He also was detained in handcuffs and burned with cigarettes. His damages for this treatment are assessed with the Councillor's, and he is awarded K1000.00 general damages for false imprisonment and K2000.00 damages for breach of Constitutional rights.
79. The Plaintiff, Wapi Kapil, in addition to claiming damages for unlawful wounding and unlawful imprisonment (which shall be dealt with later) also claims damages for assault.
80. He says that, after being wounded by police, he was in the Mt Hagen hospital when "policemen from Banz" took him and others to the Police Station and, he deposes, assaulted "very badly." He says "this was very hard because I was injured and should have been at the hospital."
81. To remove an injured patient from hospital without charge and then assault him is a circumstance of aggravation the court cannot overlook. So far as the assault element of his claim is concerned, this plaintiff is awarded K500.00 general damages for assault.
82. Gabriel Kanziye is another plaintiff who claims damages for assault as well as for false imprisonment. I shall deal with false imprisonment claims separately. In his affidavit sworn on 6th September 1999 he swears he was at the PMV stop in Banz when "police officer Kasieng stopped and assaulted me in front of the public where" his clothes were torn, he was punched and kicked and dragged on the bitumen road, beaten up in the Police Station and, as a result of being hit in the mouth with a rifle butt, had a tooth knocked out.
83. His sworn evidence is not denied or contradicted and I accept it as a true account of the facts of the assault committed by the Second Defendant and by other Banz Police. This was a more serious incident than a simple assault and he is awarded K500.00 damages for assault.
PERVERSE SEXUAL ASSAULTS
84. A number of Plaintiffs also seek damages for having been the victims of perverted sexual assaults in which they were publically humiliated by being stripped naked, forced to simulate intercourse with holes in the ground and to engage in sodomy at gun-point. Those who forced the plaintiffs to perform such acts quite clearly are not fit and proper persons to be trusted with the responsibility of exercising any authority over members of the public and it is the duty of any Senior Officers to ensure that persons who behave in this manner and foul the reputation of the Royal Papua New Guinea Constabulary are prosecuted for criminal conduct and dismissed from the police service.
85. I accept the evidence of three of the Plaintiffs, Ngunts Pel, Kolumnga Bol and Sunga Pele who depose that they were rounded up by armed police in the village. Kolumnga Bol was struck on the head by a gun butt and the others were pushed about at gun-point. They were then forced to strip naked and display their penises before their fellow villagers and then to simulate intercourse by putting their penises into holes in the ground.
86. The Constitution (ss39-48) deals in some detail with testing legislation on the basis of whether it is reasonably justifiable in a society which has a proper regard for the rights and dignity of mankind. While those provisions are not intended to apply to the actions of individuals, I have no hesitation in adapting that phrase and stating that such conduct is a gross violation of the rights and dignity of the plaintiffs. Such conduct, even if the police operation were authorised and carried out under valid law, is clearly harsh and oppressive and unlawful.
87. In its commentary on section 32 of the Constitution, the Constitutional Planning Committee dealt with human rights and stated (at page 6 of chapter 5 of the Report).
"We wish to stress that we have recommended that eight of the most fundamental human rights and freedoms, namely –
The right to life
The right to personal liberty
Freedom from inhuman treatment
The right to protection from arbitrary search and entry to premises
The right to protection of the law
Freedom of conscience, thought and religion, and the right to privacy
Should apply equally to all citizens and non-citizens."
88. At least half of these rights and freedoms have been violated by this conduct sufficiently severely to warrant an award of exemplary damages, as I regard the uncontested and uncontradicted evidence (which the State failed to defend or to make submissions about) as of a nature to satisfy the test under section 12(1) of the Claims Act for awarding exemplary damages. While I am conscious of authorities (including More & Andale v Henry Jokim The State (N1645)) which consider that exemplary damages should be made against individual officers, this is a case similar to Joe Kape v The State (N4745) in which the police who breached the Constitutional rights of these plaintiffs are not identified or, the State says, cannot be found, and the State must be penalised for the grievous conduct of its servants during the course of their duty.
89. Each of the Plaintiffs, Ngunts Pels, Kolumnga Bol and Sunga Pele, is awarded general damages in the sum of K500.00 and each is also awarded exemplary damages of K2000.00 to show the public condemnation of such conduct. (see Latham v Henry [1997] PNGLR (435)).
90. Evidence is also before the Court from Ipald Tun, Kelen Kombe and Kombo Aipe. These three ladies were forced by police from Banz under command of the Second Defendant to participate in the perverted public humiliation of Kombuk Tombi and Kolip Opo. Not only were they forced to witness the sodomy performed at gun point, they were forced to fondle the genitals of Kombuk Tombu. The sworn evidence is "we were subjected to this sort of treatment in public place by Mr Kasieng," and I accept that. It is not contradicted.
91. I award each of these plaintiffs, as exemplary damages for assault the sum of K750.00.
92. Aimba Tun was a young boy in grade 4 at the community school at the time of this incident. He swears that he and his uncle, Kombuk Tombu,were detained by police when on their way to the gardens. This plaintiff swears that police put a gun to his head and forced him to engage in oral sex with Kombuk Tombu. He then was forced to be an onlooker to the enforced sodomy. He, also, says he was subjected to this treatment by the Second Defendant. Having considered this evidence I award Aimba Tun, by way of exemplary damages for assault and for breach of Constitutional rights the sum of K3000.00.
93. The State says it cannot locate the Second Defendant, so these awards of exemplary damages are to be paid by the First Defendant. If it is able, after all, to locate the Second Defendant, it can take whatever action it thinks proper to obtain contribution, as well as appropriate disciplinary action or criminal prosecution.
94. The Plaintiffs Kolip Opo and Kombuk Tombu both claim damages, general and exemplary, for the assaults upon them and the breach of their Constitutional rights and I shall deal with claims for breach of Constitutional rights later.
Rape
95. I find the evidence of the Complaints of rape established on the balance of probability for the purposes of a civil claim for damages in relation to each of the six women plaintiffs referred to above. With one exception, there is no identification of the individuals by whom these Plaintiffs claim they were raped. The evidence would clearly not be sufficient evidence to substantiate a conviction on a charge of rape beyond reasonable doubt, but I am satisfied that the totality of the evidence shows that discipline collapsed on this police operation and this gave rise to police acting illegally and criminally towards these women and to other plaintiffs. On the balance of probability I accept the evidence of these plaintiffs.
96. Rape is a crime of violence which the law regards as among the most serious and in circumstances of aggravation such as gang rapes, and use of weapons and intimidation to obtain submission, can attract very severe penalties: indeed, the maximum penalty under section 347 of the Criminal Code is life imprisonment. Although one of these plaintiffs, Jenny Dilu, identifies the Second Defendant as one of the 5 men who raped her, there is no suggestion that any attempt has been made by police or any other authorities to investigate complaints or charge any person for these serious crimes.
97. In this case all the plaintiffs except Winu Kapil Kapald suffered multiple rapes; Rosa Du Yas and Par Dilu Kapil twice, Jenny Dilu five times (including by the Second Defendant) and Wending Pel seven times.
98. Each of these ladies has had to endure what amounts to battery and assault and, whether the perpetrator is prosecuted or not, is entitled to be awarded general damages (see More v Onopia N113), and the quantum of those damages should reflect the severity of the battery and assault to which she was subjected.
99. Each of them also is entitled to an award of exemplary damages to reflect the public disapproval of the breach of Constitutional Rights they experienced at the hand of agents of the State whose duty was to uphold the law, but such an award should not distinguish between the plaintiffs, since they all suffered the same breach of Constitutional rights.
100. It is not possible to measure humiliation and shame in precise monetary terms. Humiliation and shame are subjective and personal to the victim and the best the Court can do, in these circumstances, is to award general damages and exemplary damages to each for breach of Constitutional rights.
101. Each of them was subject to assaults by the First Defendant, in the person of unnamed police under the Second Defendant's command, and Jenny Dilu by the Second Defendant as well.
102. Each of them has sworn evidence which, on the balance of probability, I accept as credible. Neither has their evidence been contradicted, nor the subject of any submissions by Defence counsel.
103. I have read the sworn evidence of each of them and I find, on the balance of probability, that each account is acceptable evidence of the facts to which they depose.
104. Accordingly I find that:
Winu Kapil Kapald is entitled to
as general damages, K 600.00
as exemplary damages, K 1000.00
Pu Dilu Kapil is entitled to
as general damages, K 1200.00
as exemplary damages, K 1000.00
Rosa Du Yas is entitled to
as general damages, K 1200.00
as exemplary damages, K 1000.00
Jenny Dilu is entitled to
as general damages K 3000.00
as exemplary damages K 1000.00
Wending Pel is entitled to
as general damages K 4200.00
as exemplary damages K 1000.00
105. Kombok Tombu, after having been forced to endure the assault and enforced oral sex to which I have referred, was further humiliated by being exposed to having his private parts indecently dealt with by three of the ladies, whom the police had detained, following which he was forced to undergo sodomy before his fellow villagers.
106. Kolip Opo's sworn evidence is to the same effect – he says he was forced at gun-point to sodomize Kombok Tombu.
107. There is no reasonable doubt, on the evidence, that each of these men were assaulted. There is no reasonable doubt that each of these men had their Constitutional rights grossly violated by persons apparently engaged in an authorised police operation whose actions were in breach of their Constitutional duty (see section 197), as members of the police force, to preserve peace and good order and maintain the law in an objective manner.
108. As damages for assault, each of the plaintiffs, Kolip Opo and Kombuk Tombu, is awarded, by way of general damages, K3000.00 for breach of their Constitutional rights, is awarded exemplary damages of K5000.00.
109. Counsel for the First Defendant State has said that the State was unable to locate the Second Defendant, Sakawar Kasieng, who had command of police on this operation. Once again, I say that if the State wishes to take steps to seek contribution from him, that is a matter for it, but the award of exemplary damages is payable by the First Defendant, State, which can then seek appropriate contributions or otherwise recover this money should it wish to locate him.
110. As part of this incident involving Kolip Opo and Kombok Tombu, three ladies from the village, Kombo Aipe, Ipald Tun and Kelen Korimbo, were forced by armed police to commit indecent acts by fondling Kombok Tombu's private parts or genitals.
111. Each of these plaintiffs have sworn evidence which I accept, on the balance of probability, to be a true statement of the facts. Each deposes to being forced at gun point to play around with Kombo Aipe's private parts. All of them express shame at what they were forced to do and observe, and all of them said that they don't want to think about it, but have to tell the Court what actually happened.
112. In each instance these ladies suffered a breach of their Constitutional rights and, as they were threatened with firearms, an aggravated assault.
113. I find that each of the Plaintiffs, Ipald Tun, Kelen Korimbo and Kombo Aipe is entitled to be paid the sum of K1000.00 as exemplary damages and K750.00 damages for breach of Constitutional rights.
ROBBERY
114. A number of Plaintiffs have sworn evidence that money was stolen from them by police.
115. The Criminal Code defines robbery (section 384) as occurring when a person steals anything and, at the time, uses or threatens to use violence to any person or property. Aggravating elements are, as was the case in these instances, if it is committed by someone who assaulted, or in company with one or more others or who wounds or uses personal violence towards the victim.
116. I have received the evidence in these claims and find, on the balance of probability, that I accept the facts deposed to by the following plaintiffs:
117. Ap Kurunga, who swears he was assaulted by police who "removed my K26.00 which I had." As well as being robbery (which is so serious a crime that the Criminal Code states that the maximum penalty is life imprisonment), this conduct by the police is a clear breach of section 44 of the Constitution which forbids arbitrary search of anyone's person or property, except to the extent authorised by court order, warrant or other lawful authority.
118. I find that Ap Kurunga is entitled
as general damages for robbery K 200.00
as exemplary damages for breach of
Constitutional rights K 200.00
119. Kus Ap also swears he was searched at gunpoint and had K200.00 stolen. He is entitled
as general damages for robbery K 200.00
as exemplary damages for breach of
Constitutional rights K 200.00
120. Kanz Tumbo, too, swears that police assaulted him badly and removed K80.00 he had in his pocket. He, too, is entitled to
as general damages for robbery K 200.00
as exemplary damages for breach of
Constitutional rights K 200.00
121. Ap Opo swears he was assaulted and robbed by the police of K26.00 which he had in his pocket. I accept his evidence to the required civil standard of proof.
He also is awarded the sum of K200.00 as general damages and K200.00 as exemplary damages for robbery.
122. Kumye Kamp simply swears the police "got K850.00 which I had in my pocket." That evidence is sparse but not contradicted. I find it improbable he would make a gift of money and I am satisfied that he also was robbed. He is entitled to
as general damages for robbery K850.00
exemplary damages for breach of
Constitutional rights K200.00
123. Tun Wi also, swears he was searched and robbed of K20.00 and, regardless of the amount, he also is entitled to general damages in the sum of K200.00 for the fact that he was robbed, not for the amount stolen.
He is entitled also to exemplary damages in the sum, of K200.00.
124. Gabriel Kenziye, also, swears he was assaulted and robbed of K24.00 in cash and bank pass books. As with the other Plaintiffs who were robbed, it is the fact of the robbery, not the amount stolen, which is compensable and he, too, is awarded K200.00 general damages for robbery as well as exemplary damages in the sum of K200.00.
FALSE IMPRISONMENT AND BREACH OF CONSTITUTIONAL RIGHTS.
125. A number of Plaintiffs have made claims for damages for false imprisonment and damages for breach of Constitutional rights arising from the false imprisonment they claim they were subjected to.
126. The Tort of false imprisonment (see 4th.ed. Halsbury,Vol 12, para 1158) is actionable without proof of damage. It may be conveniently defined as the act of arresting and or detaining a person without lawful justification and preventing him or her from exercising his or her right of freedom of movement. It continues from the time the right of freedom of movement is unlawfully curtailed until he or she is released or judicially dealt with (see Kofowei v Siviri [1983] PNGLR 449).
127. In addition to a breach of Common Law rights, an unlawful imprisonment is a violation of section 42 of the Constitution which forbids the deprivation of personal liberty except for a number of stated causes – eg; Court Order, quarantine, extradition of illegal immigrants, unsoundness of mind and Contempt of Court. It may also be viewed as a breach of section 37(1) of the Constitution which extends to all the full protection of the law.
128. To assess damages in these differing claims it is necessary to briefly refer to the evidence relating to each plaintiff.
129. Councillor Wolannga's evidence is that police came to him and told him he was a "bad councillor because my men had been misbehaving." They hand-cuffed him for a period of between 6 and 7 hours and burned him "with cigarette butts many times."
130. The evidence is unchallenged and, in the context of other evidence about the conduct of police engaged in this operation, I accept it on the balance of probability.
131. Damages for false imprisonment vary in the reported cases and the quantum may be regarded as generally about K1000.00 per day. Although this plaintiff was only unlawfully detained for 6 to 7 months, he was tormented during this time by police burning him with cigarette butts. I take this into account and award, as general damages for false imprisonment, the sum of K1000.00.
132. His detention is, also, a violation of his right to personal liberty as set forth in section 42(1) of the Constitution a right to all persons. The breach was clear and purposeful and no explanation was offered or, on the face of it, is possible. Such a breach of a fundamental right should not be measured quantatively according to duration - there is one right, and one breach, though the duration of it may be reflected in general damages.
133. Exemplary damages are not invented to be merely punitive, nor to be measured on the same basis as general damages. They are to "make an example" of the wrongful conduct and stand as a mark (or example) of public disapproval of such conduct.
134. In addition to general damages of K1000.00, I award, to this plaintiff's claim, K2000.00 by way of exemplary damages for the breach of his Constitutional right to personal liberty.
135. Wapi Kapil, after being unlawfully wounded as a result of being shot by police, was admitted to hospital in Mt Hagen. While there he was removed by police from Banz, assaulted and detained, without arrest, for 63 days in the Mt Hagen Police Station lock-up until released. He says he was never informed of what charges he had to answer for. The day following his release by the Minj District Court he was again detained by police while waiting for transport back to his village. Again he was detained without charge, this time for eight days.
136. In short, twice, his right of freedom of movement was violated and the total of the time he was unlawfully imprisoned was 71 days. The matter is aggravated by the fact that he was removed from hospital when injured.
137. I accept, on the balance of probability this plaintiff's evidence and I award by way of general damages for false imprisonment, the sum of K35,500.00 and as exemplary damages for breach of Constitutional rights K2000.00.
138. Another plaintiff, Awi Bol Kolip, also has sworn he was assaulted and unlawfully detained. He was visiting Wapi Kapil in hospital when "the policemen from Banz Police Station" arrested him and charged him with assaulting the Second Defendant. After 53 days in prison he pleaded guilty and was fined.
139. Although the length of his detention may be improper, the detention is not, on these facts, unlawful and so his claim for damages for false imprisonment and breach of Constitutional rights is not established.
140. Siwi Konduwalnga, also, seeks damages for false imprisonment and breach of Constitutional rights. He is one of the men who were visiting Wapi Kapil in hospital when the Banz Police came and took them all away. He was assaulted and detained in the Mt Hagen Police lock-up for a total of 43 days, until the Minj District Court discharged him on there being no evidence offered to support a charge of causing damage to a police shot gun.
141. Once again, there is one breach of the Constitutional right, for which I award exemplary damages of K2000.00.
142. To be falsely imprisoned for more than six weeks is no mere technical breach and must have inflicted considerable discomfort and anxiety on this plaintiff. As general damages I award him the sum of K35000.00.
143. Three students, Johannes Wapia, Michael Kumbo and Koluno Molomb, also were visiting Wapi Kapil in hospital when the Banz police came. They also were taken away to the police station and beaten up but, after being locked up for a couple of hours, they were released. Their treatment was, nonetheless a breach of their Constitutional right to liberty of the person and, although to a considerably less degree then other plaintiffs, still amounted to false imprisonment. To each of those three plaintiffs I award, as general damages, the sum of K300.00 and as exemplary damages for break of Constitutional rights, the sum of K2000.00.
144. The plaintiff, Alu Konts, was with Councillor Wolannga when police came to the village. Like him he was detained in hand-cuffs for some 6 to 7 hours without charge and was tormented by being burned by police with cigarette butts. He also is awarded, by way of general damages for false imprisonment, K1000.00, and by way of exemplary damages for breach of Constitutional rights, K2000.00.
ARSON
145. I have dealt with claims for general damages for loss of property. But the Statement of Claim pleads that the loss of property arose when the houses of the plaintiff's were burned down or, in a couple of instances, broken into and looted.
146. To wilfully set fire to a building or structure is, by section 436 of the Criminal Code, arson. It is regarded as one of the most serious crimes and the penalty may be imprisonment for life.
147. There is no suggestion (and indeed it would be hard to imagine there could be) that there was any justification for burning down a family house. Such actions are, plainly, proscribed acts under section 41 of the Constitution as harsh and oppressive and cannot be justifiable in a democratic society which has a proper regard to the rights and dignity of mankind. Arson of a citizen's house is an unlawful act under the Constitution, as well as the Criminal Code.
148. There is no good in saying, "but these were just a few little bush houses and only had a few possessions in them." That may be so, but they were the only houses the plaintiffs had and, in destroying them, the police destroyed all the possessions these citizens had. Such a loss may be small when measured in money, but it is total and absolute to the plaintiffs.
149. It is sufficiently excessive to warrant exemplary damages to plaintiffs who lost a house through the criminal arson of the police and each is awarded, in addition to general damages for loss of property, the sum of K2000.00 as exemplary damages for arson of their property.
150. In summary, for the reasons stated above I find that, with the exception of the instances noted, the plaintiffs have satisfied me that, on the balance of probability, they did suffer the damage to and violations of their property, persons and Constitutional rights complained of, by the wilful and wrongful actions of the Defendants.
151. I order that the plaintiffs be paid damages as detailed in the Schedule to this Judgement.
152. Although there are other individuals mentioned in the pleadings, these plaintiffs are the only ones who have filed affidavits of evidence.
153. The Formal Orders of the Court are:
1. The Defendants shall pay the Plaintiffs named in the schedule attached to these Orders damages in the sums respectively designated to the plaintiffs – such damages to be paid to the trust account of the lawyers for the plaintiffs and, thereafter, distributed to the nominated plaintiffs forthwith;
2. The Judgement sum shall bear interest at the rate of 8% from the date of service of the Writ;
3. The Plaintiffs' costs of and incidental to this action are to be paid by the Defendants, such costs to be taxed if not agreed;
4. The Plaintiffs have liberty to apply on 5 days written notice should they experience any difficulty in obtaining compliance with the provisions of section 14 of the Claims by and against The State Act by the Solicitor – General or the Departmental Head responsible for Finance matters;
4. Time is abridged to the time of Sealing of these Orders by the Registrar, which shall take place forthwith.
_____________________________________
Kopunye Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants
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