N5580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 764 0F 2012

KELLY KOI
Plaintiff

V

CONSTABLE MATHEW ANSENI
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2013: 4 December,
2014: 12 March, 24 April

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – protection against proscribed acts – freedom of movement – torts – negligence – Police shooting of suspect – liability of Police officer for alleged unlawful shooting – whether the State is vicariously liable for tortuous acts of Police officers and/or breaches of human rights committed by Police officers – whether unlawful actions of Police officer committed within the scope of employment.

The plaintiff claimed that he was unlawfully shot in the leg by the first defendant, a police officer, resulting in an injury requiring a below-knee amputation of his leg. He commenced proceedings against both the first defendant and his employer, the State, claiming damages and compensation for negligence and breach of human rights. A trial was held to determine the question of liability. The first defendant did not defend the matter. The State argued that though the first defendant was its employee it should not be vicariously liable as the first defendant's actions were manifestly unlawful and committed outside the scope of his employment.

Held:

(1)	The plaintiff adduced credible evidence. Neither defendant adduced any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(2)	The plaintiff established causes of action in negligence and breach of human rights against the first defendant; in particular:

•	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)).

(3)	The plaintiff established the same causes of action against the second defendant, the State, which was vicariously liable for the actions of the first defendant. The first defendant was carrying out police duties in pursuing the plaintiff and apprehending him. Though he acted unlawfully by shooting the plaintiff without lawful justification, he committed that act incidentally to what was a legitimate police operation: the apprehension of the plaintiff, who was an escaped prisoner.

(4)	The plaintiff is entitled to damages and/or compensation, which shall be subject to assessment at a separate trial.

Cases cited

The following cases are cited in the judgment:

Application by Kunzi Waso [1996] PNGLR 218
Desmond Huaimbakie v James Baugen & The State (2004) N2589
Eriare Lanyat v The State [1997] PNGLR 253
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958
Kembo Tirima v Angau Memorial Hospital (2005) N2779
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

STATEMENT OF CLAIM

This was a trial on liability.

Counsel

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

24th April, 2014

1. CANNINGS J: Kelly Koi claims that he was unlawfully shot in the leg by the first defendant, a police officer, Constable Mathew Anseni, resulting in a below-knee amputation. He commenced proceedings against both the first defendant and his employer, the State, claiming damages and compensation for negligence and breach of human rights. A trial was held to determine the question of liability. The first defendant did not defend the matter. The State argued that though the first defendant was its employee it should not be vicariously liable as the first defendant's actions were manifestly unlawful and committed outside the scope of his employment. There are four issues:

1	Has the plaintiff proven the factual allegations?

2	Has the plaintiff established a cause of action against the first defendant?

3	Has the plaintiff established liability against the State?

4	What orders should be made?

1	HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

2. Three affidavits in support of the plaintiff's case have been admitted into evidence. They are consistent with the allegations in the statement of claim. No evidence has been tendered by either defendant. The Court has been given no reason to reject the allegations. Mr Phannaphen, counsel for the State, has conceded that they are true. I find therefore that the plaintiff has proven on the balance of probabilities that the allegations are true and I make findings of fact accordingly.

3. At the time he was shot, on the morning of Friday 18 May 2007, near Gov Stoa settlement, Madang, the plaintiff was an escapee, presumably from Beon Jail, near Madang town. He was on the run and there was a joint Correctional Service-Police operation to catch him. I point out that that fact is not expressly made clear in any of the affidavits, but it is something to be necessarily inferred from the evidence. The plaintiff is from the Ambunti area of East Sepik Province and was born in Madang and lived all his life at Gov Stoa.

4. A squad of armed members of the Correctional Service and the Police Force entered Gov Stoa settlement at 8.00 am. A short time later a member of the Correctional Service spotted the plaintiff and apprehended him near the Karkar Compound.

5. The first defendant was a member of the joint operation. He observed that the plaintiff had been apprehended and approached him. He instructed the Correctional Service member to release the plaintiff, which he did, moving a short distance away from the plaintiff. The first defendant then from close range fired a shot from his firearm (which, it is to be inferred from the evidence, was a Police-issued semi-automatic weapon) into the plaintiff's left leg. This caused heavy bleeding and great pain.

6. The plaintiff was lying on the ground, holding his wounded leg, begging with the first defendant to do nothing else, but the first defendant fired two more shots into the same area of the left leg. Various people from the settlement, including Titus Magap (who swore one of the affidavits admitted into evidence) gathered around to see what was happening. The plaintiff was bleeding heavily and cried for help, but the settlement people were told to leave the area, which they did.

7. The plaintiff was put into a Police vehicle and taken to the nearby Modilon General Hospital. A Hospital security guard assisted him and he was admitted to the Emergency Ward. That all happened on the morning of 18 May 2007.

8. The plaintiff remained in hospital until 2 July 2007 during which time a below-knee amputation was performed on his left leg.

2	HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION AGAINST THE FIRST DEFENDANT?

9. There is no evidence that the plaintiff was attempting to evade capture or to escape. He was in the custody of a member of the Correctional Service who, it must be inferred from the evidence, was armed. There was no need for the first defendant to shoot him. There was no lawful justification or excuse for doing so. The first defendant acted deliberately, intending to wound and disable the plaintiff.

10. The plaintiff claims that by acting in this way the first defendant is guilty of the tort of negligence and breaching his human rights. I cannot see any defence to these claims. I have no hesitation in upholding them.

Negligence

11. The elements of the tort of negligence have been established in that:

•	the first defendant owed a duty of care to the plaintiff,
•	he breached that duty (ie he acted negligently, below the standard required of a reasonable police officer in his position),
•	the breach of duty caused injury to the plaintiff, and
•	the type of injury was not too remote (Kembo Tirima v Angau Memorial Hospital (2005) N2779).

Human rights

12. The plaintiff has proven that the first defendant breached his human rights (rights entrenched by various provisions of Division III.3 (basic rights) of the Constitution) in three ways.

(a)	Freedom from inhuman treatment

13. 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.

14. The first defendant's actions were not only unnecessary but amounted to cruel and inhuman treatment.

(b)	Full protection of the law

15. 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.

16. 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.

17. The first defendant failed to afford the plaintiff the full protection of the law. As a member of the Police Force, the first defendant should have known that he was duty bound – whatever the plaintiff had done to make him a target of this combined security operation – to ensure that the plaintiff was apprehended, detained and then dealt with according to law. He did not do that. 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. Furthermore, the plaintiff was not treated with humanity or with respect for the inherent dignity of the human person.

(c)	Protection against proscribed acts

18. It was pleaded in paragraph 18 of the statement of claim that "the actions of the first defendant ... are not reasonably justified in a democratic society such as Papua New Guinea" and that this amounts to a breach of a right in Section 39 of the Constitution. This is poor pleading as Section 39 does not create a right, it amplifies what is meant by the phrase 'not reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind', which is used in other provisions of the Constitution.

19. However, the pleading is not so bad that the allegation that is sought to be made ought to be rejected entirely. The allegation that what the first defendant did is not reasonably justified in a democratic society such as Papua New Guinea, is clear enough. It can properly be regarded as an allegation of a breach of the plaintiff's human rights under Section 41 of the Constitution, which 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.

20. 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:

•	harsh; or
•	oppressive; or
•	not warranted by the requirements of the particular circumstances; or
•	disproportionate to the requirements of the particular circumstances; or
•	not warranted by the requirements of the particular case; or
•	disproportionate to the requirements of the particular case; or
•	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

21. 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.

Conclusion as to causes of action

22. The plaintiff has established causes of action in negligence and breach of human rights against the first defendant.

3	HAS THE PLAINTIFF ESTABLISHED LIABILITY AGAINST THE STATE?

23. The State is vicariously liable for torts and 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 first defendant was on duty and engaged in a properly authorised joint Correctional Service-Police Force operation when he committed the tort of negligence and breached the plaintiff's human rights.

24. Mr Phannaphen referred me to a number of National Court decisions to support the State's argument that when an employee of the State such as the first defendant goes well beyond his legitimate functions and does something obviously unlawful, he should not be regarded as acting within the scope of his employment. In these circumstances it is argued that the State should not be liable. Responsibility for the unlawful actions should be sheeted home to the individual officer. The State (representing the People) should not be made to pay for the stupidity, ignorance, crimes or illegalities of individual officers. This sort of reasoning is exemplified by the judgment of Jalina J in Application by Kunzi Waso [1996] PNGLR 218. His Honour stated at p 224:

In the past the Courts have been ordering the State to bear the financial burden on the principle of vicarious liability. This has resulted in the ordinary tax-payer footing the bills. It has resulted in moneys that could have been used on development projects such as health and education being used to pay damages. I am therefore going to differ from my brethren. I am of the opinion that when a member of the disciplined forces, be he a soldier, policeman or warder goes beyond the bounds of the law and ends up breaching someone's constitutional rights, then he should be made to personally bear the consequences of his actions. The reason for this is simple. The State does not say to the officers on duty "you go and beat up that person badly, you go and burn houses and kill pigs and chickens and rape women". Not at all. Officers are not only told but expected to go and carry out their duties within the bounds of the law. What happens in the field of operation and how far one should go in carrying it out is in the hands of the individual. I believe that by awarding damages against officers individually will result in not only the amount paid by the State in damages being reduced but may also reduce the frequency of unruly behaviour by policemen and warders and others.

25. Similar sentiments have been expressed in other National Court decisions, most notably by Kandakasi J in Desmond Huaimbakie v James Baugen & The State (2004) N2589. These are National Court decisions and I am not bound to follow them; although, of course, they are persuasive authority.

26. If these decisions stand for the proposition that as soon as it can be established that a police officer, such as the first defendant, has done something obviously unlawful, it follows that he has acted outside the scope of his employment, therefore excusing the State from liability, I respectfully decline to follow them. I have a different view entirely.

27. Each case must be judged on its merits. The question always remains: was this officer acting within the scope of his employment? Was he on Police duty? Was it an authorised operation? If the answer to all these questions is yes, the State must, as a matter of logic, and most importantly justice, be liable.

28. It is the State which is responsible for recruiting and training Police officers. It is the State and in particular the Commissioner of Police and the upper echelons of the Force whose duty it is to educate the members of the Force on human rights. Police officers must understand that they have no right to shoot people who are unarmed and already in safe custody. If the State and the Commissioner of Police continue to be unable to get this message across to the members of the Force then they will continue to fail in their duty to the People. And for this institutional failure, the State must pay. It must as a matter of justice be liable.

29. The other thing I am concerned about, if the approach favoured in Waso and Huaimbakie is applied strictly, is that innocent plaintiffs who have managed to prosecute their cases through the National Court and perhaps the Supreme Court, will, if they succeed in proving that their human rights have been violated by a rogue police officer, be rewarded with a judgment – perhaps running into hundreds of thousands of Kina – against an individual who in all likelihood will have been dismissed from the Force, be unemployed and in no position to pay anything. A Pyrrhic victory for the plaintiff. Meanwhile, the State gets off scot-free. It's created the mess. The State allowed that rogue officer to be trained in the art of Police brutality. But it has no responsibility. That is not justice. That is why I want no part in developing the law in that direction.

30. In this case I find that the first defendant committed negligence and breaches of human rights in the course of his employment. Therefore the plaintiff has established vicarious liability against the first defendant's employer, the State.

4	WHAT ORDERS SHOULD BE MADE?

31. It will be declared that the plaintiff has established liability against the first defendant and also against the second defendant. The proceedings will continue to an assessment of damages and compensation. I have considered ordering mediation of that issue but I think it can be more expeditiously resolved at a trial. There are unfortunately many precedents for assessment of damages in cases where young men have had a leg amputated due to being shot by the Police.

32. 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

(1)	The plaintiff has established a cause of action in negligence and breach of human rights, in particular the rights in Sections 36(1), 37(1), 37(17) and 41(1) of the Constitution, against both defendants.

(2)	The plaintiff is accordingly entitled to damages and/or compensation, which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(3)	Costs of the proceedings shall be paid by the defendants to the plaintiff on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
___________________________________________________________

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