Yali v Neneo [2019] PGNC 357; N8124 (23 November 2019)

-N8124

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 262 OF 2019

JAMES YALI
Plaintiff

V

BEN NENEO, MADANG PROVINCIAL POLICE COMMANDER
First Defendant

HON PETER CHARLES YAMA MP, GOVERNOR, MADANG
Second Defendant

Madang: Cannings j
2019:26^th September, 8^th October, 18^th, 23^rd November

HUMAN RIGHTS – application for orders re investigation of complaint against election candidate for alleged criminal behaviour – alleged breach of rights to full protection of the law, protection against harsh, oppressive acts etc, freedom of elections, freedom from discrimination – Constitution, Sections 37, 41, 50, 55.

STATE SERVICES – Police Force – whether Police have duty to investigate complaints of alleged criminal conduct – whether Police can be ordered to investigate complaint of alleged criminal conduct or to arrest or charge a person the subject of a complaint.

The plaintiff, a candidate in an election, complained to Police that another candidate (the second defendant, who won the seat) was guilty of offences under the Criminal Code arising from his giving cash to electoral officials during the counting period. The first defendant, the Provincial Police Commander, directed the members of the Police Force responsible for dealing with such matters to not pursue the complaint against the second defendant. However, the two electoral officers who received the cash were charged, convicted and sentenced. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the first defendant in particular in regard to his complaint, commenced proceedings against the defendants, claiming that the first defendant had stopped police from investigating his complaint and by that action, breached his human rights under Sections 37, 41, 50 and 55 of the Constitution to the full protection of the law, protection against harsh or oppressive acts, freedom of elections and freedom from discrimination. He sought declarations to that effect and an order that the first defendant act on his complaint by allowing the police fraud squad to complete an investigation. He also sought compensation. The defendants denied the alleged breach of human rights. A trial was conducted.

Held:

(1) As to contentious facts: the plaintiff proved that the first defendant actively prevented an investigation of his complaint against the second defendant.

(2) Members of the Police Force are under no general, enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate. They have a wide discretion in deciding whether to investigate. However, in exceptional cases (where for example the complaint is of a very serious nature and the evidence in support of the complaint is compelling and easily accessible) an enforceable obligation to investigate the complaint can arise.

(3) This was an exceptional case in view of the action taken against the electoral officers,as the complaint was specific in nature and on the face of it was so serious and sufficiently supported by evidence as to give rise to an enforceable obligation on the part of the Police, including the first defendant, to investigate it and pursue it to its natural conclusion.

(4) The first defendant appeared to have denied the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) and acted harshly, oppressively and in other ways not warranted by the circumstances of the case (for purposes of Section 41(1) of the Constitution).

(5) It was appropriate in these circumstances to require the first defendant or the member of the Police Force presently holding the position of provincial police commander to account to the Court for the inaction that has occurred by notifying the Court as to the steps proposed to be taken in relation to the complaint.
(6) Orders made requiring the person holding office as provincial police commander to file an affidavit and appear in court. The proceedings were adjourned to a specific date.

Cases cited:

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Dorothy Mark v Ben Neneo (2019) N8115
Edward Etepa v Gari Baki (2015) SC1502
Kisi Trokowa v Koive Ipai (2018) N7119
Maku v Maliwolo (2012) SC1171
Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388

APPLICATION

This was an application for declarations and orders relating to the failure of Police to investigate a complaint of criminal conduct, prosecuted as an application for enforcement of human rights.

Counsel:

E Valikvi, for the Plaintiff
T M Ilaisa, for the Defendants

23^rd November, 2019

1. CANNINGS J: The plaintiff, James Yali, was in the 2017 general election a candidate for the Madang Provincial seat. On 19 July 2017 he lodged a complaint in writing with the Police that another candidate for the seat, the Honourable Peter Charles Yama MP (the second defendant, who won the seat), was guilty of offences under the Criminal Code arising from his being observed to have given cash to two assistant returning officers, during the counting period. The first defendant, Inspector Ben Neneo, was the Provincial Police Commander and since becoming aware of the complaint has directed in the period from July 2017 to July 2019 that no further action be taken regarding it. As a consequence the Police have not arrested or charged the second defendant.The Police did, however, charge the two assistant returning officers, and they have been convicted and sentenced for offences connected to their receipt of the cash.
   
2. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the first defendant in particular, commenced human rights proceedings against the defendants, claiming that the first defendant had stopped police from fully investigating his complaint and by that action, breached his human rights under Sections 37, 41, 50 and 55 of the Constitution to the full protection of the law, protection against harsh or oppressive acts etc, freedom of elections and freedom from discrimination.
   
3. He seeks declarations to that effect and an order that the first defendant (or the person who now holds his position as he is no longer the provincial police commander) act on his complaint by allowing the police fraud squad to complete the investigation. He also seeks compensation. The defendants deny the alleged breach of human rights. A trial has been conducted. The following issues arise:
   
   1. What are the facts?
      
   2. Has the plaintiff proven that the first defendant breached his human rights?
      
   3. What orders should the Court make?
      

1 WHAT ARE THE FACTS?

4. The plaintiff lodged the complaint on 19July 2017. The complaint led to the arrest and charging of the two assistant returning officers and their conviction. They pleaded guilty to the offence of failure to report a corrupt gratification, under Section 97C(2) of the Criminal Code. They committed the offences in separate incidents on 19 July 2017 in the counting period for the general election.
   
5. John Tumaing received K50.00 cash from the first defendant, Mr Yama. That was, in the circumstances, properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) of the Criminal Code to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence. Section 97C (duty of person offered gratification) of the Criminal Code states:
   

(1) A person who is corruptly offered or given a gratification shall report the offer or gift at the earliest opportunity to a commissioned police officer.

(2) A person who, without reasonable excuse, fails to comply with the provisions of Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months, or both.

6. Nixon Kavo received K500.00 cash from Mr Yama. That was in the circumstances properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence.
   
7. They were each sentenced to nine months imprisonment, fully suspended, on conditions including community work obligations (The State v John Tumaing & Nixon Kavo (2018) N7590).
   
8. The plaintiff alleges that the first defendant actively prevented any investigation of his complaint, in so far as it was against the second defendant. I find credible evidence to support that allegation.It is clear that the first defendant exercised his discretion as the most senior member of the Police Force in the province to direct that the investigation against the second defendant not be pursued.
   
2. HAS THE PLAINTIFF PROVEN THAT THE FIRST DEFENDANT BREACHED HIS HUMAN RIGHTS?
   
9. In making an assessment of whether the first defendant breached the plaintiff’s human rights, three principles of law must be borne in mind. First, the functions of the Police Force and all members of the Force including the defendant are prescribed by Section 197(1) of the Constitution, which states:
   

The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

10. Secondly, the manner in which the Police discharge those functions is largely a matter for the Police. The Courts in Papua New Guinea have followed a traditional “hands off” approach in cases where plaintiffs allege that the Police Force or its members have not properly discharged their constitutional functions. I pointed out this approach in my decision in Kisi Trokowa v Koive Ipai (2018) N7119. In that case the plaintiff alleged that his house was destroyed and looted and that he suffered property losses due to the negligent failure of members of the Police Force to respond to his request for police assistance after he reported an ongoing ethnic clash (in which he was not involved) in the area of his house. He commenced proceedings against the commander of the police station at which he reported the matter, the Commissioner of Police and the State, relying on two causes of action: the tort of negligence and breach of human rights. The defendants’ primary defence was that the police do not owe a duty of care to members of the public as far as prevention of crime is concerned and therefore no liability could be established in negligence or for breach of human rights. I decided the case against the plaintiff, relying on Supreme Court authority (Maku v Maliwolo (2012) SC1171 and Edward Etepa v Gari Baki (2015) SC1502) to the effect that members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned. Thus no action in negligence against the defendants could be established.
    
11. Thirdly, ultimate authority and power to decide whether to investigate any complaint of criminality and what and who to investigate and who to charge and what charges should be laid, if any, vest in the Commissioner of Police. This point was explained by the Supreme Court in Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388, in these terms:
    

... as the Supreme Court emphasised in SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178 there is a sharp distinction between political responsibility (which lies with the Minister) and operational responsibility (which lies with the Commissioner). The ultimate power of command and the primary responsibility for operational control of the Police Force fall within the domain of the Commissioner of Police.

That principle was followed by the National Court in Aigilo v Morauta (2001) N2102 and Marape & O’Neill v Paraka (2014) N5740. It has been reinforced by the Supreme Court decisions in Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785 (“the ECP case”) and very recently in Marape v O’Neill & Paraka (2014) SC1378. The Commissioner is entitled to exercise that power and responsibility exclusively. He is not subject to direction or control by any person or authority including the Minister or the National Executive Council. These are the dictates of Section 198 of the Constitution, which states:

There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament.

As the Police Force is a disciplined force each member of the Force holds a particular rank and has seniority in accordance with a hierarchy of ranks established by law (see Police Act 1998, Section 37 (seniority) and Police Regulation 1998, Sections 4, 5, 6). The Commissioner is at the peak of the hierarchy. Each member is obliged to obey lawful orders including and especially any such orders given by the Commissioner. This obligation is imposed by Section 208(1) (protection of members of disciplined forces) of the Constitution, which states:

Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders, and accordingly an Organic Law shall make special provision for relieving a member of such a force from responsibility for the consequences of—

(a) carrying out a lawful order; or

(b) carrying out an order which he honestly, and on reasonable grounds believed to be a lawful order, in which case the onus of establishing his belief and the reasonable grounds on which it was based, shall be upon him.

The Organic Law on the Relief of Members of Disciplined Forces from the Responsibility for the Consequences of Carrying Out a Lawful Order has been made to implement Section 208.

In discharging the constitutional functions of preserving peace and good order and maintaining and enforcing the law, it is necessary for members of the Police Force to engage in criminal investigations and to lay and prosecute charges in respect of criminal offences. The process of criminal investigation and prosecution necessarily involves the exercise of powers of arrest and search and seizure, including applying to a Court for, and obtaining from a Court, warrants of arrest under the Arrest Act. Whenever a member of the Police Force exercises any of these powers he or she is, always, ultimately answerable to the Commissioner of Police.

This is because of the command and control structure that necessarily exists in any disciplined force, subject to any special command and control structure that the Commissioner puts in place as part of exercising responsibility for the superintendence, efficient organisation and control of the Force.

12. I follow those Supreme Court decisions and find that what the first defendant did, by deciding that the complaint against the second defendant should not be pursued, despite not taking any action to stop the investigation regarding the two assistant returning officers, was on the face of it a lawful exercise of discretion by the most senior member of the Police Force in the province.I also find, as I did in the recent case of Dorothy Mark v Ben Neneo (2019) N8115, that members of the Police Force are under no general enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate a complaint. Members of the Police Force have a wide discretion in deciding whether to investigate a complaint.
    
13. It is only in exceptional cases (where for example the complaint was of a very serious nature and the evidence in support of the complaint was compelling and easily accessible) that an enforceable obligation to investigate the complaint would potentially arise.
    
14. This is an exceptional case. The plaintiff’s complaint was specific in nature and on the face of it was so serious and sufficiently supported by evidence, as to give rise to an enforceable obligation on the part of the Police, including the first defendant, to investigate it. I consider that the first defendant has by his actions (including his failure to give reasons for not investigating the complaint) appeared to deny the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) and acted harshly, oppressively and in other proscribed ways (for purposes of Section 41(1) of the Constitution), giving rise to an apparent breach of human rights.
    

3 WHAT ORDERS SHOULD THE COURT MAKE?

15. As I pointed out in Application by Benetius Gehasa (2005) N2817 an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two issues:
    
    • first, has a right of the applicant actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If the answer is no, the court should not intervene; and
      
    • secondly, if the answer is yes, the court needs to consider the second issue: whether it should grant the remedy sought or make some other order for enforcement of the right.
      
16. In this case the answer to the first question is yes. I will therefore make orders under Section 57(3) of the Constitution to remedy the apparent breach of human rights that has occurred. I will not make many of the orders sought by the plaintiff. In particular I will not order the first defendant or any member of the Police Force to arrest or charge the first defendant. But I will make an order that will make the first defendant, or more particularly the person now in his position (as the first defendant is no longer in the position of Provincial Police Commander), accountable for the inaction that has occurred.
    

REMARKS

17. I note that the plaintiff’s complaint against the member of Parliament could be pursued by other means, eg a private prosecution under Section 616 of the Criminal Code or a complaint of alleged misconduct in office made to the Ombudsman Commission under Section 18(1) of the Organic Law on the Duties and Responsibilities of Leadership. The fact that he has not pursued those avenues of agitating his grievance does not disqualify him from relief.
    

ORDER

(1) It is declared that the first defendant has by his actions (including the inaction by Police on the plaintiff’s complaint, the subject of these proceedings, and the failure to give reasons for not investigating the complaint) appeared to deny the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) and acted act harshly, oppressively and in other proscribed ways (for purposes of Section 41(1) of the Constitution).

(2) The member of the Police Force currently holding office in a substantive or acting capacity as Provincial Police Commander, Madang Province, shall by 2 December 2019, prepare and file in these proceedings an affidavit deposing to the steps he proposes to take, if any, and/or directions he proposes to give to officers under his command or control, if any, in relation to the complaint of the plaintiff made on 19 July 2017 in relation to allegations of criminal offences allegedly committed by the first defendant in the counting period for the 2017 general election, which became the subject of convictions entered against two assistant returning officers in the decision of the National Court at Madang on 3 October 2018 in The State v John Tumaing & Nixon Kavo (2018) N7590.

(3) The member of the Police Force currently holding office in a substantive or acting capacity as Provincial Police Commander, Madang Province, shall appear in these proceedings at Madang on 5 December 2019 at 9.00 am, and shall be assisted by a lawyer of his choice, and confirm the filing of his affidavit.

(4) These proceedings will continue on at Madang on 5 December 2019 at 9.00 am, when the parties will have the opportunity to make further submissions as to the future course of these proceedings.

Ordered accordingly.
______________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Defendants