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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP (HR) NO 568 0F 2003
AQUILA KUNZIE
Plaintiff
V
NCD POLICE MOBILE SQUAD
First Defendant
COMMISSIONER OF POLICE
Second Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Cannings J
2014: 27, 31 March, 2 May
HUMAN RIGHTS – enforcement – trial on liability – alleged police raid of public market – alleged assault of trader by members of Police Force – alleged confiscation of cash, market goods and destruction of property.
PRACTICE AND PROCEDURE – whether claim should be refused for: failure to comply with notice requirements of Claims By and Against the State Act; being time-barred under Frauds and Limitations Act; failure to identify any member of the Police Force in the originating process, pleadings or evidence – whether factual allegations have been proven – whether causes of action existed for human rights breaches – whether vicarious liability established against the State.
The plaintiff claimed that members of the Police Force raided a public market at which he was a trader and assaulted him, stole his cash, soft drinks and destroyed his eskies. The plaintiff commenced proceedings under Section 57 of the Constitution seeking enforcement of human rights against the members of the Police Mobile Squad who he alleged (without identifying by name any of them) breached his human rights; and also against the Commissioner of Police and the State (which was claimed to be vicariously liable for the human rights breaches committed by its employees). A trial was conducted to determine whether any of the defendants was liable. The plaintiff and his wife gave evidence. The defendants adduced no evidence but defended the matter by arguing that the entire proceedings should be dismissed for: failure to comply with notice requirements of the Claims By and Against the State Act; being time-barred under the Frauds and Limitations Act; failure to identify any member of the Police Force in the originating process, pleadings or evidence.
Held:
(1) The plaintiff gave notice to the State under Section 5 of the Claims By and Against the State Act in accordance with an extension of time granted by the Court. So that defence had no basis. Moreover the issue was not properly before the Court at a trial. It is incumbent on the State, if it wishes to raise such threshold issues, to file a notice of motion seeking dismissal, before a trial on liability is set down.
(2) The proceedings were not time-barred, for two reasons. First, this was a claim for enforcement of human rights under the Constitution. It was not a claim in tort. Therefore the time limitations under the Frauds and Limitations Act did not apply. Secondly, if the six-year time limitation period that applies to actions in tort did apply in this case, there would be no bar to these proceedings, which were commenced on 28 July 2003 and were in respect of a cause of action that accrued on 29 November 2002.
(3) Though it is desirable it is not necessary in proceedings for enforcement of human rights under Section 57 of the Constitution that are based on alleged human rights violations committed by members of the Police Force, to name and identify the particular member of the Police Force in the originating process and the pleadings and in evidence. The strict rules as to identification of members of the Police Force that have been developed by the Courts are restricted in their application to proceedings in which the cause of action is a tort (as distinct from breach of a human right) and it is necessary to have regard to the Wrongs (Miscellaneous Provisions) Act in order to determine whether the State is vicariously liable.
(4) The plaintiff proved the factual allegations.
(5) The plaintiff proved that a number of his human rights were breached by members of the Police Force, the first defendant, viz:
- right to the full protection of the law (Constitution, Section 37(1));
- protection against harsh or oppressive acts (Constitution, Section 41(1));
- protection against unjust deprivation of property (Constitution, Section 53(1)).
(6) The State was vicariously liable for the human rights breaches committed by its employees, the members of the Police Force who committed the human rights breaches, as those members were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.
(7) Judgment on liability was entered against the third defendant.
Cases cited
The following cases are cited in the judgment:
Dalin More v The State (1998) N1736
Eriare Lanyat v The State [1997] PNGLR 253
Lina Kewakali v The State (2011) SC1091
Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807
The State v David Wari Kofowei and Others [1987] PNGLR 5
Vincent Kerry v The State (2007) N3127
Wama Kints v The State (2001) N2113
William Pattits v The State (2006) N3088
APPLICATION
This was a trial on liability to determine the plaintiff's application for enforcement of human rights.
Counsel
E Wurr, for the plaintiff
A Samol, for the third defendant
2nd May, 2014
1. CANNINGS J: The plaintiff Aquila Kunzie is applying for enforcement of his human rights under Section 57 of the Constitution, which he claims were breached by members of the NCD Police Mobile Squad (the first defendant) who raided Gordon Market on 29 November 2002. The plaintiff claims that during the raid the Police were in full combat gear and assaulted him and confiscated his bag that had K850.00 in cash and confiscated his soft drinks and burned three eskies from which he sold soft drinks. The plaintiff is seeking damages under Section 58 of the Constitution against three defendants: the NCD Police Mobile Squad (first defendant), the Commissioner of Police (second defendant) and the State (third defendant) – which is alleged to be vicariously liable as employer of the police for the human rights breaches that occurred. A trial has been conducted to determine the issue of liability.
2. The plaintiff and his wife gave evidence. The State, which was the only defendant legally represented, adduced no evidence but defended the claim by arguing that the entire proceedings should be dismissed for: failure to comply with the notice requirements of the Claims By and Against the State Act; being time-barred under the Frauds and Limitations Act; failure to identify any member of the Police Force in the originating process, pleadings or evidence.
3. There are four issues:
(1) Should the proceedings be summarily dismissed on any of the three grounds raised by the State? If not –
(2) Has the plaintiff proven the factual allegations?
(3) Has the plaintiff proven that his human rights were breached?
(4) Who, if anyone, is liable?
(a) Failure to comply with notice requirements of Claims By and Against the State Act
4. Ms Samol, for the defendant, submitted that the plaintiff failed to comply with Section 5 of the Claims By and Against the State Act as he had not adduced evidence that he complied with the Court's order of 20 December 2011 by which he was given until 22 January 2012 to serve a Section 5 notice; and there is a question-mark over whether, if such a notice was given, it was signed by the plaintiff or his lawyer, the Public Solicitor.
5. I note that the plaintiff did not produce a signed copy of the notice and that there is no affidavit of service. However, I consider that when a case against the State has been set down for trial it is to be presumed that Section 5 has been complied with. If the State wants to raise it as an issue, this should be done by notice of motion. It should not be raised in submissions unless a notice of motion has been filed and served; and preferably it should be heard and determined before trial commences.
6. Besides that I am satisfied on the evidence that the plaintiff gave notice to the State under Section 5 of the Claims By and Against the State Act in accordance with the extension of time granted by the Court. The State's first preliminary argument fails.
(b) Action time-barred under the Frauds and Limitations Act
7. These proceedings are not time-barred, for two reasons. First, this is a claim for enforcement of human rights under the Constitution. It is not a claim in tort. Therefore the time limitations under the Frauds and Limitations Act do not apply.
8. Secondly, if the six-year time limitation period that applies to actions in tort did apply in this case, there would be no bar to these proceedings, which were commenced on 28 July 2003 and were in respect of a cause of action that accrued on 29 November 2002. The State's second preliminary argument fails.
(c) Failure to identify any member of the Police Force in the originating process, pleadings or evidence
9. Ms Samol submitted that if a plaintiff is suing the State on the basis of vicarious liability for a tort committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings; also that member must be identified in the evidence.
10. Ms Samol submitted that none of these requirements were met and that this alone justified dismissal of the entire proceedings. She referred to the recent decision of the Supreme Court in Linda Kewakali v The State (2011) SC1091 in support of those propositions.
11. Kewakali is a fairly recent decision and it is consistent with the approach taken in a number of National Court decisions, which have followed the approach of Injia J as he then was in Dalin More v The State (1998) N1736, a case in which the plaintiff proved that she had been raped by two policemen on Police duty but was denied relief as she did not name them as defendants and could not identify them in her evidence.
12. I always have had difficulty with that approach and I have explained out why, in cases such as William Pattits v The State (2006) N3088, Vincent Kerry v The State (2007) N3127 and Meronas Songkae v Inspector Tony Wagambie Jnr (2012) N4807. I cannot see the justice in refusing relief to an innocent plaintiff who is the victim of Police brutality or some other sort of wrong committed by an employee of the State simply because the plaintiff cannot identify by name the State employee who committed the wrong.
13. I am bound by the Supreme Court's decision in Kewakali but I find that it has no application to the present case. I distinguish it as the plaintiff in that case was bringing a common law claim, based on the law of tort, and the Court's insistence that she be able to identify and name the specific wrongdoers was based on the need to comply with the vicarious liability provisions of the Wrongs (Miscellaneous Provisions) Act.
14. In the present case the causes of action being prosecuted are not torts but breaches of human rights (or Basic Rights). The National Court has a broad power vested in it directly under Sections 57(3) and 58 of the Constitution to make all such orders and declarations as are necessary and appropriate for the purposes of protecting and enforcing human rights and to compensate persons whose human rights have been infringed. The Constitution does not impose the sorts of limitations that have been developed in relation to common law claims.
15. Though it is desirable it is not necessary in proceedings for enforcement of human rights under Section 57 of the Constitution, which are based on alleged human rights violations committed by members of the Police Force, to name and identify the particular member of the Police Force in the originating process and the pleadings and in evidence.
16. The strict rules as to identification of members of the Police Force that have been developed by the Courts are restricted in their application to proceedings in which the cause of action is a tort (as distinct from breach of human rights) and it is necessary to have regard to the Wrongs (Miscellaneous Provisions) Act in order to determine whether the State is vicariously liable.
17. The inability and failure of the plaintiff to name and identify the members of the Police Force who he alleges were actually responsible for breaching his human therefore does not provide a good reason for summarily dismissing his claim. He still has to prove the factual allegations, however, and he still has to prove that his human rights were actually breached.
18. None of the State's preliminary arguments have succeeded, so I now proceed to deal with the plaintiff's claim on its merits.
19. The plaintiff's evidence has been consistent throughout after the incident at Gordon market. The plaintiff's wife also submitted an affidavit in July 2003 further claiming that the members of the Police that raided the market also took away K600.00 cash from her including the packets of cigarettes she was selling. She supported her husband's evidence that their soft drinks were scattered all over from which bystanders were helping themselves and that their eskies, umbrellas and chairs were used to make a bonfire along the road near the market. The defendants have not presented any evidence to rebut these allegations.
20. I accept the plaintiff's evidence that members of the NCD Police Mobile Squad in full combat gear did raid the Gordon market and breach his human rights as he has claimed. The plaintiff therefore has proven the factual allegations upon which his claim is based.
21. The plaintiff has proven that his human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in three ways:
4 WHO, IF ANYONE, IS LIABLE?
22. Judgment will be entered against the third defendant but not against the first or second defendants. The plaintiff has proven that members of the NCD Police Mobile Squad breached his human rights. The third defendant, the State, is liable, vicariously, as the human rights breaches were committed by members of the Police Force within the scope of their police employment and the State has not discharged 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 police were on duty when they raided Gordon market. The State is not relieved of liability simply because the police officers involved could not be identified.
23. The second defendant, the Commissioner of Police, should not be liable as there is no evidence or suggestion that he actively participated in the incident or that he gave any instructions that resulted in the incident.
CONCLUSION
24. The plaintiff has established a cause of action for breach of human rights against the third defendant. 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.
ORDER
(1) The application by the plaintiff for enforcement of his human rights is upheld.
(2) The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 41(1) and 53(1) of the Constitution, against the third defendant, in respect of personal injury and property losses caused to him on 29 November 2002.
(3) The question of assessment of damages shall be determined at a separate trial.
(4) Costs of the proceedings shall be paid by the third defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
Judgment accordingly.
_______________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Third Defendant
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