N7156
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 30 OF 2012

ALLAN HEMBIMI
Plaintiff

V

CONSTABLE KILA KUMA
First Defendant

TOM KULUNGA, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2016: 1st September, 20th October, 24th November, 
2018: 16th March 

NEGLIGENCE – whether members of Police Force responsible for charging a fellow member of Force with a criminal offence liable in negligence in view of acquittal, after trial, of member charged.

HUMAN RIGHTS – whether failure to reinstate a member of the Police Force to his former position following the member’s acquittal of criminal charges constituted a breach of the member’s human rights – Constitution, Section 36 (freedom from inhuman treatment); Section 37 (protection of the law); Section 42 (liberty of the person). 

The plaintiff, a member of the Police Force, was charged with the indictable offence of misappropriation for allegedly misappropriating approximately K50,000.00 in Police pension funds. He was arrested and charged in January 2005, immediately suspended without pay and then was on bail pending his trial, which was conducted in the National Court in April 2008. He was found not guilty. He, with the assistance of the Public Solicitor, sought reinstatement to the Police Force. The Commissioner for Police for unknown reasons declined to reinstate him. He applied to the Public Services Commission (PSC) for review of the Commissioner’s failure to reinstate him. In May 2010 the PSC decided that he should be reinstated. The Commissioner of Police still declined to reinstate him. The plaintiff resigned in August 2010, having been frustrated by the way he had been treated and motivated by a shortage of money. He in June 2012 commenced civil proceedings against the member of the Police Force (first defendant) who charged him, the Commissioner of Police (second defendant) and the State (third defendant). He pleaded two causes of action: negligence and breach of human rights. He argued that the first and second defendants acted negligently in charging him, and that the second defendant breached his human rights under Sections 36, 37(1) and 42 of the Constitution by persistently failing to reinstate him after he was acquitted of the criminal charges. He argued that the State, as employer of the first and second defendants, was vicariously liable for their wrongful conduct. 

Held:

(1)	It was not proven that the first or second defendants acted negligently, so there was no liability for negligence.

(2)	The plaintiff failed to prove any breach of human rights under Sections 36(1) or 42(1) of the Constitution, but proved a breach by the Commissioner of Police of the plaintiff’s right under Section 37(1) of the Constitution to full protection of the law, due to the Commissioner’s persistent and unlawful refusal, after the plaintiff’s acquittal in the National Court, to reinstate him, including the Commissioner’s refusal to comply with the decision of the PSC that the plaintiff be reinstated.  

(3)	The State is vicariously liable for the breach by the Commissioner of the plaintiff’s human rights. The matter will proceed to a trial on assessment of damages. 

Cases cited

The following cases are cited in the judgment:

Ano Pala v Cosmas Bidar (2015) SC1465
Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471
John Tindaka v David Kambu (2012) N4853
Konori v Jant Ltd (2015) N5868
Mathew Nogonda v Martin Lakari (2018) N7138
Rupindi Maku v Steven Maliwolo (2012) SC1171
Steven Kaipa v RD Tuna Canners Ltd (2017) N6650

STATEMENT OF CLAIM

This was a trial on liability for negligence and breach of human rights.

Counsel

E Wurr & J Kambao, for the Plaintiff
E Tagu, for the Defendants

16th March, 2018

1.	CANNINGS J: A trial on liability has been conducted to determine, whether the plaintiff, Allan Hembimi, has established a cause of action in negligence and/or breach of human rights arising from the following facts.

2.	The plaintiff was a member of the Police Force, in its administrative division, holding the position of clerk in the accounts section at Police headquarters in Konedobu, National Capital District. He was in January 2005 arrested, detained and charged with the indictable offence of misappropriation regarding alleged misuse of approximately K50,000.00 in Police pension funds. He was immediately suspended without pay by the Commissioner of Police. He was on the day of his arrest granted bail. He remained on bail for more than three years including during his one-week trial in the National Court at Waigani in April 2008. He was found not guilty. 

3.	Later in 2008, with the assistance of the Public Solicitor, he sought reinstatement to the Police Force. The Commissioner of Police for unknown reasons declined to reinstate him. The plaintiff then applied to the Public Services Commission (PSC) for review of the Commissioner’s decision to not reinstate him. In May 2010 the PSC decided that he should be reinstated and informed the Commissioner of its decision. The Commissioner still declined to reinstate him. 

4.	The plaintiff resigned in August 2010, having been frustrated by the way he had been treated and motivated by a shortage of money. He in June 2012 commenced these proceedings against the member of the Police Force (the first defendant) who arrested and charged him in January 2005, the Commissioner of Police (second defendant) and the State (third defendant). 

PLAINTIFF’S CASE 

5.	The plaintiff pleads two causes of action: 

•	the tort of negligence; and 

•	breach of human rights. 

6.	He argues that the first and second defendants acted negligently in charging him as the case against him was very weak, and that the second defendant breached his human rights by persistently failing to reinstate him to the Force after he was acquitted of the criminal charges. He argues that the State, as employer of the first and second defendants is vicariously liable for their wrongful conduct. 

EVIDENCE

7.	The plaintiff has given evidence of the above events. No evidence has been given by the defendants and no issue has been taken with the factual allegations.  

DEFENCE 

8.	Mr Tagu of the Office of Solicitor-General appeared for the three defendants. He submitted that the plaintiff had failed to establish negligence or a breach of human rights against either the first or second defendants, so the State could not be vicariously liable. 

9.	Mr Tagu submitted, relying on the Supreme Court decision in Rupindi Maku v Steven Maliwolo (2012) SC1171, that under the common law, members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned, including when decisions are made as to who to investigate, who to charge and what to charge them with. The Court held in that case, that to expose members of the Force to the risk of litigation as to the conduct of police operations would impair their ability to discharge the duties of the Police Force under Section 197 of the Constitution to “preserve peace and good order in the country [and] maintain and, as necessary, enforce the law in an impartial and objective manner”.

10.	Mr Tagu further submitted that, the fact that, the plaintiff faced trial but was acquitted does not force the conclusion that the decision to charge him was made negligently. All persons in Papua New Guinea stand equally before the law, a principle highlighted by Manuhu J in Ano Pala v Cosmas Bidar (2015) SC1465. The fact that the plaintiff was a member of the Police Force gave him no special status and did not give rise to a special duty of care of some sort. It was a routine criminal investigation, which did not result in a conviction. That does not mean that civil wrongs were committed. The decision to charge the plaintiff was based on a genuine consideration of the evidence and was made in good faith based on reasonable grounds that he had committed an offence. The apparent delay of three years in dealing with the matter was not the fault of any of the defendants, and in any event the plaintiff had failed to adduce evidence to show that this was an unreasonable period. 

11.	I now consider each of the causes of action that have been pleaded, in turn.

NEGLIGENCE 

12.	Negligence is a tort, a type of civil wrong, emerging from the common law of England and adopted as part of the underlying law of Papua New Guinea. To establish a cause of action in negligence the plaintiff has to prove all elements of the tort: 

(a) the defendant owed a duty of care to the plaintiff; 
(b) the defendant breached that duty (acted negligently); 
(c) the breach of duty caused damage to the plaintiff; and 
(d) the type of damage was not too remote (Steven Kaipa v RD Tuna Canners Ltd (2017) N6650). 

13.	The question of whether, a member of the Police Force owes a duty of care in deciding who to charge and what to charge them with, is a moot point (Mathew Nogonda v Martin Lakari (2018) N7138). I am not convinced that the case referred to by Mr Tagu, Rupindi Maku v Steven Maliwolo (2012) SC1171, supports the proposition that no duty of care at all is imposed on members of the Police Force when they decide who to charge with criminal offences, and what to charge them with. 

14.	However, even if it is presumed that the first and second defendants, who it seems were jointly responsible for the decision to charge the plaintiff, owed him a duty of care, thus satisfying the first element, I am not satisfied as to the second. The actual breach of duty has not been proven. I uphold Mr Tagu’s submission that the fact that the plaintiff was a member of the Police Force gave him no special status and the fact that he was acquitted following trial does not mean that the persons responsible for investigating the matter and/or laying the charge were negligent. There is no evidence to demonstrate that the decision to charge the plaintiff was one made mala fides. If there was such evidence,  it would, in any event, be more appropriate to prosecute the case on the basis of the tort of malicious prosecution, rather than the tort of negligence (Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471, John Tindaka v David Kambu (2012) N4853).   

15.	As the second element of the tort of negligence has not been proven, no cause of action in negligence has been established against the first or second defendants. Therefore the State bears no vicarious liability for alleged negligence. 

BREACH OF HUMAN RIGHTS 

16.	Breach of human rights is a separate and distinct cause of action. It was pleaded in the statement of claim that the first and second defendants breached the plaintiff’s human rights in three respects: 

•	his right to freedom from inhuman treatment under Section 36(1) of the Constitution;

•	his right to the full protection of the law under Section 37(1) of the Constitution;  and 

•	his right to liberty under Section 42 of the Constitution.

Freedom from inhuman treatment 

17.	Section 36(1) (freedom from inhuman treatment) of the Constitution 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.

18.	Section 36(1) confers on all persons in Papua New Guinea the right not to be submitted to three sorts of conduct:

•	torture (whether physical or mental); or
•	treatment that is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person; or 
•	punishment that is cruel, inhuman treatment or inconsistent with respect for the inherent dignity of the human person.

19.	The terms “torture” and “inhuman treatment” are not defined in the Constitution. However, as I pointed out in Konori v Jant Ltd (2015) N5868, these terms have a special and restricted meaning. For a defendant’s conduct to amount to torture or otherwise inhuman treatment of another person, it must be conduct that satisfies at least two criteria:

•	the conduct is committed without the consent of the recipient; and
•	the conduct must be done with the intent and effect of treating the recipient as less than human.

20.	I find no evidence of torture or inhuman treatment in the present case and no cause of action has been established in that regard. 

Full protection of the law

21.	Section 37(1) (protection of the law) of the Constitution 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.

22.	I am satisfied that the plaintiff has proved a breach by the Commissioner of Police of his right to the full protection of the law, due to the Commissioner’s persistent and unlawful refusal, after the plaintiff’s acquittal in the National Court, to reinstate the plaintiff, including the Commissioner’s refusal to comply with a decision of the PSC made two years after the acquittal, that the plaintiff be reinstated.  

23.	The Commissioner was, as highlighted by the PSC in its decision of 10 May 2010, obliged by the Public Service General Orders (which are laws that contained terms and conditions to which the plaintiff’s employment was subject), to reinstate the plaintiff once he was acquitted of the criminal charges. The Commissioner failed to afford the plaintiff the protection of those laws by declining to reinstate him, thereby breaching the plaintiff’s human rights.

24.	The Commissioner exacerbated the breach by failing to implement the PSC’s decision of May 2010 that the plaintiff be reinstated. The failure to implement the decision was in breach of the Public Services (Management) Act, and this amounted to another failure to afford the plaintiff the full protection of the law, thereby further breaching the plaintiff’s human rights. 

Right to liberty 

25.	Section 42(1) (liberty of the person) of the Constitution states:

No person shall be deprived of his personal liberty except—

(a)	in consequence of his unfitness to plead to a criminal charge; or
(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence; or
(e)	for the purpose of bringing him before a court in execution of the order of a court; or
(f)	for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
(g)	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
(h)	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)	his care or treatment or the protection of the community, under an order of a court; or
(ii)	taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

26.	The plaintiff was deprived of his liberty for only a few hours in the date of his arrest and charge in January 2005. He was granted Police bail. Ms Wurr submitted that he was restricted in his movement by the bail conditions and this amounted to a deprivation of liberty. I find this argument unconvincing. There was nothing unusual or harsh in the bail conditions. Any deprivation of liberty that occurred was lawful and reasonable. No breach of human rights has been established in that regard.

CONCLUSION

27.	The plaintiff has established a cause of action in breach of human rights, namely the right to the full protection of the law, against the second defendant, the Commissioner of Police. The third defendant, is vicariously liable for that breach of human rights, which was committed by the Commissioner (an employee of the State), within the course of his employment. The plaintiff has failed to prove all other claims.  

ORDER

(1)	The plaintiff has failed to establish a cause of action in negligence against any of the defendants.

(2)	The plaintiff has established a cause of action in breach of human rights against the second and third defendants, who are liable in damages, and there will be a trial on assessment of damages accordingly.

(3)	The proceedings against the first defendant are dismissed.

(4)	The question of costs of the proceedings will be determined at the end of the trial on assessment of damages. 

Judgment accordingly
_____________________________________________________________ 
Public Solicitor 	: Lawyer for the Plaintiff		
Solicitor-General 	: Lawyer for the Defendants