Sipi v Dauwau [2018] PGNC 103; N7178 (28 March 2018)

N7178

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 57 OF 2015

ALUA SIPI
Plaintiff

V

CONSTABLE NELSON DAUWAU
First Defendant

SERGEANT BENJAMIN BALA
Second Defendant

SENIOR CONSTABLE VICTOR POHONHELAN
Third Defendant

COMMISSIONER OF POLICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2016: 29^th, 30^th March, 18^th May, 1^st, 27^th July, 26^th September
2018: 28^th March

HUMAN RIGHTS – trial on liability – alleged assault by members of Police Force, causing bodily injury – whether bodily assault amounts to breach of human rights.

STATE SERVICES – Police Force – whether members of Reserve Constabulary are members of Police Force – whether the State can be vicariously liable for breaches of human rights committed by a police reservist.

The plaintiff claimed that his human rights were breached when he was physically assaulted by police reservists. He commenced proceedings against the first, second and third defendants, who he claimed were among the police reservists who breached his human rights, and the Commissioner of Police (fourth defendant) and the State (fifth defendant), seeking damages for breach of human rights. He argued that the first, second and third defendants were directly liable and that the Commissioner and the State were vicariously liable for the human rights breaches he suffered. The first defendant did not defend the proceedings. The second and third defendants defended the proceedings and gave evidence, denying that they assaulted the plaintiff. The Commissioner and the State argued that even if it were proven that the first, second or third defendants breached the human rights of the plaintiff, neither the Commissioner nor the State could be vicariously liable as the first, second and third defendants were not members of the Police Force and not employees of the State.

Held:

(1) The plaintiff proved that he was physically assaulted by the first defendant and other unidentified members of the NCDC Reserve Police Unit. He failed to prove that the second or third defendants assaulted him.

(2) The plaintiff proved that his human rights were breached by the first defendant and other unidentified members of the NCDC Reserve Police Unit, viz the right to freedom from inhuman treatment (Constitution, Section 36(1)); right to full protection of the law (Constitution, Section 37(1)); protection against harsh or oppressive acts (Constitution, Section 41(1)). He failed to prove that the second or third defendants breached his human rights.

(3) The plaintiff established a cause of action in breach of human rights against the first defendant. He failed to establish liability against the second or third defendants. He failed to establish vicarious liability against the Commissioner, as the Commissioner did not authorise the actions of those persons who breached his human rights.

(4) The State was vicariously liable for the human rights breaches committed by the first defendant and other unidentified members of the NCDC Reserve Police Unit, because (a) members of the NCDC Reserve Police Unit are members of the Reserve Constabulary Branch of the Police Force and members of the Police Force under the command and control of the Commissioner of Police by virtue of Section 7 and Part V of the Police Act and Section 198 of the Constitution; and (b) the State stands in the position of employer in relation to all members of all disciplined forces who are properly regarded as employees of the State; (c) it was proven that the human rights breaches were committed by the first defendant and other unidentified members of the NCDC Reserve Police Unit in the purported performance of police functions.

(5) The plaintiff established liability against the first and fifth defendants and the proceedings shall continue against them for an assessment of damages. The proceedings against the second, third and fourth defendants were dismissed. Costs followed the event.

Cases cited

The following cases are cited in the judgment:

Application by Kunzi Waso [1996] PNGLR 218
Dalin More v The State (1998) N1736
Desmond Huaimbakie v James Baugen & The State (2004) N2589
Jack Pinda v Sam Inguba (2012) SC1181
Linda Kewakali v The State (2011) SC1091
Philip Nare v The State (2017) SC1584

APPLICATION

This was a trial on liability to determine the plaintiff’s application for enforcement of human rights against five defendants.

Counsel

M Pokia, for the Plaintiff
T Injia & E Korua, for the Second & Third Defendants
E Tagu & T Mileng, for the Fourth & Fifth Defendants

28^th March, 2018

1. CANNINGS J: The plaintiff, Alua Sipi, claims that his human rights were breached when he was physically assaulted by members of the National Capital District Commission (NCDC) Police Reserve Unit on Thursday 29 January 2015. He claims that he went to Pari village that day to visit a friend and that he was assaulted by police reservists and arrested for his suspected involvement in a betel nut smuggling operation. He claims that he was taken to the Tarpot police post at Four Mile where he was charged with unlawful possession of a police uniform and unlawful transportation of betel nut and further assaulted, suffering serious facial injuries.
   
2. The plaintiff commenced proceedings against the first, second and third defendants (Nelson Dauwau, Benjamin Bala and Victor Pohonhelan), who he claimed were among the members of the Reserve Unit who assaulted him. He also sues the Commissioner of Police (fourth defendant) and the State (fifth defendant). He seeks damages for breach of human rights. He argues that the first, second and third defendants are directly liable and that the Commissioner and the State are vicariously liable for the human rights breaches he suffered.
   
3. The first defendant did not defend the proceedings. The second and third defendants defended the proceedings and gave evidence, denying that they assaulted the plaintiff. The Commissioner and the State denied liability.
   
4. There are three issues:
   
   • (1) Has the plaintiff proven that he was physically assaulted by the first, second or third defendants or any other person?
     
   • (2) Has the plaintiff proven that his human rights were breached by the first, second or third defendants or any other person?
     
   • (3) Has the plaintiff established a cause of action in breach of human rights against any of the defendants?
     

1 HAS THE PLAINTIFF PROVEN THAT HE WAS PHYSICALLY ASSAULTED BY THE FIRST, SECOND OR THIRD DEFENDANTS OR ANY OTHER PERSON?

Plaintiff’s evidence

5. The plaintiff gave evidence of what happened at Pari. He went there in his blue Toyota 10-seater Landcruiser with two relatives, Leonard Ottmar and Jonathan Yasi. Leonard Ottmar is a member of the Police Force (the Regular Constabulary) and he was driving the vehicle. The plaintiff went to Pari to see a friend, Vairo Luke, to talk to him about the prospect of buying some land from him. He did not go there to buy betel nut and had no betel nut in the vehicle. He had a short meeting with Mr Luke, then they were leaving the village when they came upon a roadblock set up by villagers at the junction of the village road and the main road. Leonard Ottmar was wearing his police uniform, though he was off duty. Leonard Ottmar was wary of the roadblock as only a week or two before, there had been a confrontation between NCDC police reservists and villagers at Hanuabada village in which two men had been killed. Leonard Otmar took off his police uniform and fled the scene, leaving his police uniform in the vehicle.
   
6. A convoy of police vehicles was then driven into the village. They were focussed on another vehicle which contained a lot of betel nut, apparently smuggled into the village by sea. The police then turned their attention to the plaintiff’s vehicle. They searched it but found no betel nut. The first defendant, Nelson Dauwau, demanded that the plaintiff hand over his car key to him. The plaintiff said that at first he refused but soon relented as the first defendant’s request was made in a forceful and demanding manner and there were other members of the NCDC Reserve Police unit present, making the same demand. He and Jonathan Yasi were driven in a police vehicle to Tarpot police post. The first defendant drove his (the plaintiff’s) vehicle.
   
7. The plaintiff says that at Tarpot police post he was physically assaulted and verbally abused by the first, second and third defendants, suffering facial injuries. He was charged, then taken to Boroko Police Station where he was detained in the Police Lock-up. He got a message to his wife, Helen Sipi, who is a nurse at Port Moresby General Hospital. She came and paid bail for him in the sum of K300.00. They went back to Tarpot police post as his vehicle was impounded there. He observed that there were some items missing. His wife then took him to the Emergency Department at Port Moresby General Hospital, which was very busy so she collected some medicine and took him home and dressed his wounds. He went back the next day to Tarpot police post and had to pay a spot fine of K1,000.00 to retrieve his damaged vehicle. On Monday 2 February 2015 he went to the Dental Clinic at Port Moresby General Hospital for treatment by Dr Yandawai, who referred him to a specialist, Dr Amos.
   
8. The plaintiff maintains that he was entirely innocent. He at no time was impersonating police or involved in betel nut smuggling.
   
9. The plaintiff’s evidence of what happened at Pari is corroborated by the evidence (affidavit and oral testimony) of Leonard Ottmar, Jonathan Yasi and Vairo Luke. His evidence of what happened at Tarpot police post is corroborated by the evidence of Jonathan Yasi, who says he was present and saw what happened until he (Jonathan Yasi) walked away and left Tarpot as the reserve police were focussing all their attention on the plaintiff. The plaintiff’s evidence of being injured is corroborated by the evidence (affidavit and oral testimony) of his wife, Helen Sipi, and dental surgeon, Dr Andrew Yandawai, who testified that the plaintiff came to the Dental Clinic at Port Moresby General Hospital on 2 February 2015 with facial including jaw injuries, allegedly sustained as a result of being assaulted by a group of NCDC police reservists on 29 January 2015.
   

Defendants’ evidence

10. The first defendant did not defend the proceedings. However the second and third defendants did. They were legally represented. They each gave evidence by affidavit and oral testimony. Both strongly denied the allegation that they physically assaulted the plaintiff. Both testified that he was brought to the Tarpot police post on the afternoon of 29 January 2015. He was wearing a police uniform. He was charged and dealt with according to law. Neither is aware of any physical assaults on him.
    

Findings

11. The questions before the court are not whether the plaintiff was involved in smuggling betel nut or impersonating police but whether he was physically assaulted by police reservists and whether his human rights were breached. There is ample evidence to show that the plaintiff was physically assaulted while he was in custody at Tarpot police post. I find that he has proven according to the civil standard of proof – on the balance of probabilities – that he was assaulted. The medical evidence bears this out, as well as his wife’s evidence.
    
12. As to who assaulted him, it is significant that the first defendant has not defended the case. The first defendant has not given evidence to rebut the allegation that he was the first police reservist to assault the plaintiff and played a major role in inflicting the injuries on the plaintiff. The plaintiff’s evidence was generally credible and corroborated and I find that it has been proven that the first defendant assaulted the plaintiff.
    
13. As to the second and third defendants, I am not in a position to say that their denials should be rejected. I find that the plaintiff has not proven that either of them assaulted him.
    
14. I also find that the first defendant was aided and assisted in his assaults on the plaintiff by other unidentified members of the NCDC Reserve Police Unit at Tarpot police post on 29 January 2015.
    
2. HAS THE PLAINTIFF PROVEN THAT HIS HUMAN RIGHTS WERE BREACHED BY THE FIRST, SECOND OR THIRD DEFENDANTS OR ANY OTHER PERSON?
   
15. I uphold the submission of Mr Pokia, for the plaintiff, that the plaintiff’s human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed by the first defendant and other unidentified members of the NCDC Reserve Police Unit, in three ways:
    
    • the right to freedom from inhuman treatment (Constitution, Section 36(1));
      
    • right to full protection of the law (Constitution, Section 37(1));
      
    • right to protection against harsh or oppressive acts (Constitution, Section 41(1)).
      
16. The plaintiff has not proven that the second or third defendants breached his human rights.
    
3. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION IN BREACH OF HUMAN RIGHTS AGAINST ANY OF THE DEFENDANTS?
   
17. The plaintiff has established a cause of action in breach of human rights against the first defendant. He has failed to establish liability against the second or third defendants (as it was not proven that they assaulted him or did anything unlawful).
    
18. I now address the question of whether the Commissioner and/or the State is vicariously liable for the breaches of human rights committed by the first defendant and other unidentified members of the NCDC Police Reserve
    Unit. Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as members of the Police Force, who are employed by the State) over whom the first person has control or responsibility, if those acts or omissions are committed within the course of employment.
    

Commissioner of Police

19. As a matter of law, the Commissioner is not the employer of any member of the Police Force. The Commissioner will not be liable for the unlawful actions of another member of the Police Force unless the Commissioner authorised those actions. There is no evidence or suggestion that the Commissioner authorised the actions of those persons who breached the plaintiff’s human rights. Therefore the Commissioner is not vicariously liable.
    

The State

20. Mr Tagu and Mr Mileng of the Office of Solicitor-General argued that even if it were proven that the first, second or third defendants or other members of the NCDC Police Reserve Unit breached the human rights of the plaintiff, the State should not be found vicariously liable, for two reasons.
    
21. Firstly, the first, second and third defendants were not members of the Police Force and not employees of the State. They were members of a police reservist unit within, and employed by, the National Capital District Commission (NCDC), which is a separate legal entity, not part of the State, and not a party to the proceedings. In support of this argument, the State presented evidence by Deputy Commissioner of Police, Jim Andrews MBE, DPS, QPM, Chief Inspector Emil Alpha and Senior Inspector Florian Luvi annexing various official documents detailing the establishment of the NCDC Reserve Police Unit including a 2013 memorandum of understanding between the Royal Papua New Guinea Constabulary and the NCDC. This evidence shows the members of the NCDC Reserve Police Unit are salaried employees of the NCDC and that the operations of the Unit are funded by the NCDC and that the primary function of the Unit is to protect the facilities and interests of the NCDC. Senior inspector Luvi also gave evidence that any physical assault committed against the plaintiff was unauthorised and criminal in nature.
    
22. Secondly, it was submitted, on the basis of the Supreme Court’s decision in Linda Kewakali v The State (2011) SC1091, that the State could only be vicariously liable if the plaintiff proved that the primary wrongdoer committed the wrong while on duty and acting within the lawful scope of his duty as a member of the Police Force. If, as in this case, the primary wrongdoer goes so far out of his authorised domain (by committing a criminal offence) as to be acting beyond the lawful scope of his duty, the State should not be held vicariously liable. Other cases supporting this approach include Jack Pinda v Sam Inguba (2012) SC1181, Application by Kunzi Waso [1996] PNGLR 218, Dalin More v The State (1998) N1736 and Desmond Huaimbakie v James Baugen & The State (2004) N2589.
    
23. As for the first argument, I consider that the most significant legal fact to take into account is that members of the NCDC Reserve Police Unit, notwithstanding that they are employees of the NCDC, are members of the Reserve Constabulary Branch of the Police Force. They are members of the Police Force under the command and control of the Commissioner of Police by virtue of Section 7 and Part V of the Police Act and Section 198 of the Constitution. The State, though it might not pay the actual wrongdoers’ wages, stands in the position of employer in relation to all members of all the disciplined forces, who are properly regarded as employees of the State.
    
24. As for the second argument, it must be borne in mind that there is a recent Supreme Court decision, in Philip Nare v The State (2017) SC1584, on the principles of vicarious liability of the State pertaining to unlawful actions of members of the Police Force. The Court (Injia CJ, David J, Ipang J, Higgins J and Neill J) reconsidered many of the principles, including the argument that to prove vicarious liability of the State it must be proven that the member of the Police Force was involved in a lawful police operation. It was clearly indicated that this is not necessary. It is sufficient to prove that the police officer was acting or purporting to act in the course of carrying out police duties and functions.
    
25. I find that the first defendant and the other unidentified members of the NCDC Police Reserve Unit who breached the plaintiff’s human rights on 29 January 2015 were members of the Police Force. Though they were employees of the NCDC, they were also, by virtue of their status as members of a disciplined force, employees of the State. They committed the breaches of human rights in the course of purporting to carry out police duties and functions. The State is therefore vicariously liable.
    

CONCLUSION

26. The plaintiff has established liability against the first and fifth defendants and the proceedings shall continue against them for an assessment of damages. The proceedings against the second, third and fourth defendants will be dismissed. Costs will follow the event.
    

ORDER

(1) The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 36(1), 37(1) and 41(1) of the Constitution, against the first and fifth defendants, in respect of physical assaults upon his person committed by the first defendant and other unidentified members of the NCDC Reserve Police Unit on 29 January 2015 as alleged in the human rights enforcement application form, and the proceedings against the first and fifth defendants shall continue with an assessment of damages.

(2) The plaintiff has failed to establish any liability against the second, third and fourth defendants and the proceedings against them are dismissed.

(3) As to costs: (a) the first and fifth defendants shall pay the plaintiff’s costs of the proceedings, to date, on a party-party basis, which shall, if not agreed, be taxed; (b) the plaintiff shall pay the second and third defendants’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed; and (c) the fourth defendant shall bear his own costs.

Judgment accordingly.
________________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the Second & Third Defendants
Solicitor-General: Lawyer for the Fourth & Fifth Defendants