Nimbituo v Independent State of Papua New Guinea [2018] PGNC 134; N7235 (4 May 2018)

N7235

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 182 OF 2015

BETWEEN:
ROGER BAI NIMBITUO
First Applicant

JEFFERY WOSI
Second Applicant

RONALD WAFIA
Third Applicant

JACOB WAPAI
Fourth Applicant

GILBERT GUARI
Fifth Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani : Cannings J

2016: 13 October,
2017: 20 January,
2018: 2, 4 May

DAMAGES – assessment of damages for breaches of human rights – rights of accused persons to full protection of the law and to be tried within a reasonable time; to be protected against harsh, oppressive acts; to be not unreasonably detained – liability established after trial – five accused detained for long periods awaiting trial – delay in conduct of trial – delay in delivery of verdict.

The five applicants were charged with and faced trial on various indictable offences. There were long delays in commencement and conduct of their trial and delivery of verdict while they remained in custody. They succeeded at an earlier trial in obtaining an order for their conditional release from custody and an order for damages, as the State was found liable for infringements of three human rights: the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3)), the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)) and the right not to be unreasonably detained (Constitution, s 42(5)). The matter returned for a trial on assessment of damages. The applicants claimed total damages of almost K600,000.00. The State argued that they should be awarded nothing.

Held:

(1) In assessing damages for breaches of human rights of persons charged with criminal offences involving unreasonable delay in commencement, duration and/or completion of a trial, it is appropriate to make an assessment of damages in respect of each discrete breach and to assess damages on a yearly basis.

(2) Here there were three discrete breaches of human rights identified: the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3)), the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)) and the right not to be unreasonably detained (Constitution, s 42(5)).

(3) Having regard to the circumstances of Papua New Guinea, a reasonable time within which criminal proceedings would in most cases be expected to be completed is three years after the date of arrest, which should also be the benchmark against which to measure any period of unreasonable detention.

(4) Here, it was convenient to identify the third anniversary of each applicant’s date of arrest and to calculate the period in years from that anniversary to (i) the date of assessment of damages (as no verdict had been returned at the date of assessment) in order to assess damages for breach of the right to full protection of the law (Constitution, ss 37(1), (3)) and the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)), and (ii) the date of their release from custody in order to assess damages for breach of the right not to be unreasonably detained (Constitution, s 42(5)).

(5) It was appropriate to assess damages for each breach of human rights at the rate of K1,000.00 per year for the duration of each breach.

(6) For example, in the case of the first applicant, the period of denial of the full protection of the law (ss 37(1) & (3)) and of the breach of his right not to be subject to harsh or oppressive acts (s 41(1)) was 5.16 years, and he was awarded K5,160.00 for breach of each of those rights. The period of unreasonable detention was 2.99 years and he was awarded K2,990.00 for breach of that right. He was also awarded exemplary damages in the same sum as for breach of his ss 37(1) & (3) and 41(1) rights. His total award of damages was K5,160.00 (ss 37(1) & (3)) + K5,160.00 (s 41(1)) + K2,990.00 (s 42(5)) + K5,160.00 (exemplary damages) = K18,470.00.

(7) Other awards were: second applicant = K21,620.00; third applicant = K20,620.00; fourth applicant = K21,620.00; fifth applicant = 0 (no evidence by or on behalf of this applicant).

(8) The total amount of damages awarded to all applicants was K81,870.00. No interest was awarded and the parties were ordered to pay their own costs.

Cases cited
Papua New Guinea Cases

The following cases are cited in the judgment:

Bomai Wati v David Gavera (2013) N5363
Nimbituo v The State (2015) N6156

Overseas case:

Barrett Richard Jordan v The Queen [2016] 1 SCR 631

This was an assessment of damages for breaches of human rights.

Counsel

E Wurr, for the Applicants
G Akia & A Kajoka, for the Respondent

ASSESSMENT OF DAMAGES

04^th May 2018

1. CANNINGS J: This is an assessment of damages for breaches of human rights. The five applicants were arrested and charged with serious criminal offences on various dates in 2009 and 2010. They were remanded in custody. Their trial in the National Court commenced in August 2012, occupying six sitting days. It was not completed until November 2014, when submissions on verdict were made. However no verdict had been returned by November 2015 when I heard their application for enforcement of human rights. I granted the application and ordered their release from custody (on conditions, similar to those imposed on persons granted bail). They were released on 26 February 2016 after spending between five to six years in custody. I also ordered that the State was liable in damages to each applicant for infringement of three human rights:
   
   • the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3));
     
   • the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)); and
     
   • the right not to be unreasonably detained (Constitution, s 42(5)) (see Nimbituo v The State (2015) N6156).
     
2. As of two days ago, the verdicts have still not been returned, more than eight years after their arrest.
   
3. At the trial on assessment of damages the applicants claimed total damages of almost K600,000.00. The State argued that they should be awarded nothing.
   
4. This case is without precedent in PNG. It is the first time that the National Court has been required to assess damages for accused persons whose rights have been infringed, who are still awaiting verdict. Their human rights case has continued concurrently with their criminal trial. Nothing that has happened in their human rights case has any present bearing on the outcome of the criminal trial. And nothing that happens in the criminal trial affects their human rights case. They might all be found guilty (of impersonation of police, unlawful deprivation of liberty, kidnapping for ransom and/or rape). As Mr Akia, counsel for the State, pointed out, it will be an odd-looking result for the Court to award damages to persons convicted of serious criminal offences. But this is an odd case. I have already determined after a contested trial that their human rights have been breached. They are entitled to damages irrespective of the outcome of their criminal trial.
   

SUBMISSIONS

For the applicants

5. Ms Wurr for the applicants submitted that the same approach to assessment of damages should be taken as in Bomai Wati v David Gavera (2013) N5363, where a man charged with wilful murder was detained for more than seven years without trial. He was eventually released by order of the National Court when the State presented a nolle prosequi. He succeeded in obtaining default judgment against the State for breach of human rights: the right to full protection of the law, in particular to a fair hearing within a reasonable time (Constitution, ss 37(1), (3)) and the right to liberty (Constitution, s 42(5)). Following a trial on assessment of damages I awarded a global sum as general damages for the various human rights breaches at the rate of K50.00 per day for each of the 2,786 days in which one or more breaches occurred: 2,786 days x K50.00 per day = K139,300.00. In addition I awarded the plaintiff exemplary damages at the rate of K10,000.00 per year of unlawful detention: K10,000.00 per year x 7.66 years = K76,600.00. Ms Wurr submitted that I should in the present case assess general damages at the rate of K50.00 per day of unreasonable detention and assess exemplary damages at the rate of K7,000.00 per year.
   
6. For example, for the first applicant, Roger Bai Nimbituo, Ms Wurr contends that he has been unreasonably detained for 1,455 days and therefore should be awarded general damages of 1,455 days X K50.00 = K72,750.00. She contends that the first applicant should be awarded exemplary damages of K7,000.00 x 3.99 years = K27,930.00. She contends that the first applicant should be awarded a total of K100,680.00. Ms Wurr submits that the second to fifth applicants, whose dates of arrest were prior to the date of arrest of the first applicant, should be awarded K118,380.00, K113,330.00, K118,380.00 and K116,420.00 respectively, a total of K567,190.00.
   
7. I do not consider that it would be appropriate to uphold Ms Wurr’s submission as the facts in Wati were very different to those in the present case. In Wati the daily rate of K50.00 was appropriate as the plaintiff was unlawfully, as distinct from unreasonably, detained. Over a period of more than seven years after his initial detention he was never taken before a court. And the criminal case against him was in effect dismissed by presentation of the nolle prosequi. The present case is an instance of unreasonable detention and the case against the applicants has not been dismissed.
   

For the State

8. Mr Akia, for the State, submitted that the applicants should be awarded nothing. Mr Akia asked me to revisit the judgment on liability on the ground that I had granted a remedy (the order for damages) that the applicants did not seek. He further argued that it would be contrary to public policy for the court to award damages to persons who still face the prospect of being convicted of serious criminal offences. Mr Akia suggested that if the court were to award damages to the applicants and they were subsequently convicted, they would have to return the damages to the State.
   
9. I decline to revisit liability. I do not agree that I granted a remedy that the applicants did not seek. Though damages were not expressly sought in the originating process (a human rights enforcement application, Form 124 of the National Court Rules), the issue was squarely raised in submissions at the trial on liability. If the State was aggrieved by the judgment on liability it should have appealed to, or sought review by, the Supreme Court. Or come back to the National Court with a slip rule application. To ask the court to revisit its judgment on liability in the course of an oral submission on damages is not a very productive exercise. I also have difficulty with Mr Akia’s suggestion that if the applicants are convicted, they would be obliged to ‘repay’ to the State any damages that they have been paid. They are being compensated for breaches of human rights that have already been committed against them. With respect, I have found Mr Akia’s submissions, though bold and innovative and thoughtful, ultimately ill-timed and unhelpful. With one exception, the applicants will not be awarded nothing. The exception is in the case of the fifth applicant, Gilbert Guari. Mr Akia pointed out that Gilbert Guari gave no evidence at the trial on assessment of damages. I agree that, for that reason, he should not be awarded any damages. Ms Wurr conceded that point.

APPROACH TO ASSESSMENT

10. I am going to take an approach to assessment that lies somewhere between the competing submissions of counsel. As for a starting point, I take the liberty of quoting myself in Wati:
    

An assessment of damages inevitably involves an exercise of discretion. Though Judges attempt to arrive at an award in as methodical, scientific and objective a manner as possible, ultimately it is a matter of good sense and intuition. Like a Judge imposing a sentence in a criminal case, where you try to fix a sentence that fits the crime, in a human rights case or indeed any civil case involving an award of damages, you try and award a just and appropriate amount. Not too little, as that will not reflect the serious nature of any breach of human rights. And not too much, as the purpose of the exercise is not to penalise the wrongdoer or their employer. Nor is it to be a reward or a windfall gain for the plaintiff.

11. I consider that taking the approach advanced by Mr Akia would not reflect the serious nature of the human rights breaches that have occurred. And taking the approach advanced by Ms Wurr might result in the appearance of accused persons being rewarded or afforded windfall gains, while still awaiting their verdicts.
    
12. In assessing damages for breaches of human rights of persons charged with criminal offences involving unreasonable delay in commencement, duration and/or completion of a trial, I think it is appropriate to make an assessment of damages in respect of each discrete breach of human rights and to assess damages on a yearly basis. I also consider that in view of the exceptional nature of this case, in particular the fact that the applicants still face the prospect of being convicted and sentenced to terms of imprisonment, the yearly amount of damages should be modest.
    
13. Here there were three discrete breaches of human rights identified: the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3)), the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)) and the right not to be unreasonably detained (Constitution, s 42(5)).
    
14. Having regard to the circumstances of Papua New Guinea, a reasonable time within which criminal proceedings would in most cases be expected to be completed is three years after the date of arrest. Ms Wurr contended that two years should be the standard. However, I have decided that three years is more appropriate. This should also be the benchmark against which to measure any period of unreasonable detention. In arriving at the period of three years I have taken into account the recent decision of the Supreme Court of Canada in Barrett Richard Jordan v The Queen [2016] 1 SCR 631, which is one of the most significant cases in Canadian legal history. Canada has a Charter of Rights and Freedoms similar to the Basic Rights in Papua New Guinea’s Constitution. In Canada, just as in PNG, a person charged with a criminal offence, has a right to a fair trial within a reasonable time.
    
15. Mr Jordan appealed against his conviction on a charge of drug trafficking on the ground that he had been prosecuted contrary to his right to be tried within a reasonable time under Section 11 of the Charter of Rights and Freedoms. There had for various reasons been a substantial delay in his prosecution. He was arrested in December 2008, granted bail in February 2009, committed for trial in May 2011, and tried from September 2012 to February 2013. During the trial his application for a permanent stay of prosecution was refused.
    
16. The majority of the Supreme Court held that the lengthy period of 49.5 months between the date of arrest and charge to the date of conclusion of the trial was unreasonable, that the appellant had not been tried within a reasonable time and that his application for a permanent stay of prosecution was wrongly dismissed. The Supreme Court upheld the appeal and quashed the conviction and sentence. In the course of their reasons for decision the majority set new guidelines on what is to be regarded as a reasonable time in which a person is to have their criminal charges determined. The terminology used in Canada to describe such guidelines is a “framework”. The “Jordan framework” is:
    
    • in a case tried in a provincial court without committal proceedings: 18 months (from the laying of a charge to conclusion of the proceedings);
      
    • in other cases (the equivalent of indictable offences in PNG, involving committal proceedings): 30 months (from the laying of a charge to conclusion of the proceedings).
17. If a case goes beyond those periods, a presumption arises that the delay is unreasonable and the Crown bears a heavy onus of satisfying the court that the delay is justifiable and successfully defending an application for a permanent stay of proceedings.
    
18. Getting back to this case, the approach I am going to take is to identify in respect of each applicant the third anniversary of his date of arrest and to calculate the period in years from that anniversary to:
    
    • the date of assessment of damages (as no verdict had been returned at the date of assessment) in order to assess damages for breach of the right to full protection of the law (Constitution, ss 37(1), (3)) and the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)); and
      
    • the date of their release from custody in order to assess damages for breach of the right not to be unreasonably detained (Constitution, s42(5)).
      
19. I consider that it is appropriate to assess damages for each breach of human rights at the rate of K1,000.00 per year for the duration of each breach.
    
20. The dates of arrest and detention for each applicant were identified in the judgment on liability as:
    

1^st applicant, Roger Bai Nimbituo 1 March 2010

2^nd applicant, Jeffrey Wosi 22 May 2009

3^rd applicant, Ronald Wafia 4 September 2009

4^th applicant, Jacob Wapai 22 May 2009

5^th applicant, Gilbert Guari 13 July 2009

21. The date of the judgment on liability was 18 December 2015. The date of the applicants’ actual discharge from custody (subject to conditions) was 26 February 2016.
    
22. In the case of the first applicant, the third anniversary of his date of arrest and detention was on 1 March 2013. The period of breach of his right to the full protection of the law (ss 37(1) & (3)) and of breach of his right not to be subject to harsh or oppressive acts (s 41(1)) is from 1 March 2013 to 2 May 2018 (two days ago, when the matter was mentioned in court and it was confirmed that the verdicts were still outstanding, which I regard as ‘the date of assessment of damages’). That is 5.16 years. He will be awarded K5,160.00 for breach of each of those rights.
    
23. The period of his unreasonable detention is from the third anniversary of the date of his arrest and detention, 1 March 2013, to the date of his release from custody, 26 February 2016. That is, 2.99 years. He will be awarded K2,990.00 for breach of that right.
    
24. As to the claim for exemplary damages, I take into account Section 12(1) of the Claims By and Against the State Act 1996, which states:
    

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

25. I consider that the breaches of human rights incurred by all the applicants are both severe and continuous, so much, so that an award of exemplary damages is warranted. I will award to each applicant a sum of exemplary damages that the applicant is awarded for breach of his right to the full protection of the law (ss 37(1) & (3)) and breach of his right not to be subject to harsh or oppressive acts (s 41(1)). In the case of the first applicant the amount is K5,160.00.
    
26. The first applicant’s total award of damages is K5, 160.00 (ss 37(1) & (3)) + K5,160.00 (s 41(1)) + K2,990.00 (s 42(5)) + K5,160.00 (exemplary damages) = K18,470.00.
    
27. Assessment of damages for all applicants is shown in the following table. It will be observed that because no evidence was adduced on behalf of the fifth applicant, he is awarded nothing.
    

ASSESSMENT OF DAMAGES FOR FIVE APPLICANTS *

(1) Name	Nimbituo	Wosi	Wafia	Wapai	Gilbert	Totals
(2) Date of arrest	1/3/10	22/5/09	4/9/09	22/5/09	13/7/09
(3) + 3 years	1/3/13	22/5/12	4/9/12	22/5/12	13/7/12
(4) Date of release	26/2/16	26/2/16	26/2/16	26/2/16	26/2/16
(5) Date of assessment	2/5/18	2/5/18	2/5/18	2/5/18	2/5/18
(6) Period u/r detained (years)	2.99	3.77	3.45	3.77	3.62
(7) Period u/r hearing (years)	5.16	5.95	5.57	5.95	5.72
(8) Sec 37 Damages (Kina)	5160	5950	5570	5950	0	22630
(9) Sec 41 damages (Kina)	5160	5950	5570	5950	0	22630
(10) Sec 42 damages (Kina)	2990	3770	3450	3770	0	13980
(11) Exemplary damages (Kina)	5160	5950	5570	5950	0	22630
(12) Total damages (Kina)	18470	21620	20160	21620	0	81870

* Notes:

(1) Name of applicant;
(2) Date of arrest (different dates apply);
(3) Date of third anniversary of arrest (different dates apply);
(4) Date of release from custody (same date for each applicant);
(5) Date of assessment of damages (2 May 2018);
(6) Period of unreasonable detention (period from date (3) to date (4));
(7) Period of denial of right to hearing within reasonable time and of breach of right not to be subject to harsh or oppressive action (period from date (3) to date (5));
(8) Section 37 damages = period in (7) x K1,000.00 per year;
(9) Section 41 damages = period in (7) x K1,000.00 per year;
(10) Section 42 damages = period in (6) x K1,000.00 per year;
(11) Exemplary damages = same amount as per (8) and (9); and
(12) Sum of (8) + (9) + (10) + (11).

CONCLUSION

28. The applicants are awarded the total amounts shown in row 12 of the table of assessment of damages. As for interest, this is a matter of discretion under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. I have decided that given the exceptional circumstances of the case it is not an appropriate case for an award of interest. As the applicants have been legally aided by the Public Solicitor and the State is the respondent, the parties will bear their own costs.
    

ORDER

(1) The respondent shall pay to the applicants the following amounts of damages inclusive of reasonable damages and exemplary damages, irrespective of the outcome of the criminal proceedings to which their application for enforcement of human rights relates:

(a)first applicant, K18,470.00;

(b) second applicant: K21,620.00;

(c) third applicant: K20,160.00;

(d) fourth applicant: K21,620.00;

(e) fifth applicant: zero;

being a total judgment sum of K81,870.00.

(2) The respondent is not liable to pay any interest on those amounts of damages.

(3) The parties will bear their own costs of the proceedings.

(4) The proceedings are thereby determined and the file is closed.

Judgment accordingly.
_______________________________________________________________
Public Solicitor: Lawyer for the Applicants
Solicitor-General: Lawyer for the Respondent