Wailapu v Wurr [2020] PGNC 200; N8438 (31 July 2020)

N8438

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 171 OF 2019

PAUL WAILAPU
Plaintiff

V

EMMA WURR
First Defendant

JERMAH KAMBAO
Second Defendant

Waigani: Cannings J
2020: 20^th February, 28^th May, 31^st July

HUMAN RIGHTS – application for enforcement – alleged breach of human rights by lawyers who acted for defendants, opposed to plaintiff, in previous court proceedings –Constitution, s 37 (right to freedom), s 37 (protection of the law).

The plaintiff applied for enforcement of human rights against the defendants, two lawyers in the Office of Public Solicitor, who had represented two clients in a previous trial, in which the plaintiff unsuccessfully made a claim for damages in negligence and breach of human rights against four persons including the defendants’ two clients. The plaintiff’s primary contention in the present trial is that the defendants ambushed his previous trial by withholding an affidavit by one of their clients, a doctor,which contained an apology to the plaintiff for the doctor’s negligent preparation of a post-mortem report, which was relied on by the State in an earlier criminal trial in which the plaintiff was convicted and sentenced for the crime of murder.

Held:

(1) The plaintiff’s claim is properly regarded as an allegation of breach by the defendants of the plaintiff’s right to freedom based on law under s 32 of the Constitution and to the full protection of the law under s 37(1) of the Constitution.

(2) The plaintiff failed to prove his case in that he presented no evidence that the defendants had withheld the sort of affidavit he alleged that they withheld; and there was no evidence that such an affidavit existed or that the doctor allegedly swearing the affidavit had issued any apology to the plaintiff.

(3) The plaintiff failed to establish a cause of action for breach of human rights and the proceedings were entirely dismissed. The parties were ordered to pay their own costs.

Cases cited

No cases are cited.

APPLICATION

This was a trial on liability to determine the plaintiff’s claim for damages for breach of human rights.

Counsel

P Wailapu, the plaintiff, in person
A Aigilo, for the Defendants

31^st July, 2020

1. CANNINGS J: The plaintiff, Paul Wailapu, applies for enforcement of human rights against the defendants, Emma Wurr and Jermah Kambao, two lawyers in the Office of Public Solicitor, who had represented two clients in a previous trial, in which the plaintiff unsuccessfully made a claim for damages in negligence and breach of human rights against four persons including the defendants’ two clients. He claims damages against the defendants and also claims damages against persons who had been the defendants in the previous trial.

2. The plaintiff’s primary contention in the present trial is that the defendants, Ms Wurr and Ms Kambao, ambushed his previous trial by withholding an affidavit by one of their clients, Dr Seth Fose, which contained an apology to the plaintiff for the doctor’s negligent preparation of a post-mortem report, which was relied on by the State in an earlier criminal trial in which the plaintiff was convicted and sentenced for the crime of murder.

A trial has been conducted on the issue of liability.

ISSUES

3. Three issues arise:

1. What human rights is the plaintiff seeking to enforce?
   
2. Has the plaintiff proven any breach of human rights?
   
3. What orders should the Court make?
   

4. Before addressing those issues, it is necessary to set out the factual background.

FACTS

5. The plaintiff is presently serving a 20-year sentence for murder, imposed after a trial at Waigani. He was convicted of the murder of his wife, Odilia Wailapu, at Hohola, outside the Police Forensic unit, in an incident on 11 December 2014.

6. On 2 May 2017 he filed an application for enforcement of human rights, HRA 70 of 2017, claiming that he had been wrongly convicted and wrongly imprisoned. The Court required that he put his claims in the form of a statement of claim, which he did, and the case proceeded to trial on the statement of claim. He named four defendants:

1. Dr Seth Fose – the doctor who conducted the post-mortem examination of the deceased and prepared the post-mortem report and gave evidence at the plaintiff’s criminal trial as to the cause of death.
   
2. Edward Sasingian – the lawyer at the office of Public Solicitor who was the plaintiff’s defence counsel at the criminal trial.
   
3. Lenny Varage – a member of the Police Force – the arresting officer.
   
4. Samson Pantan – a member of the Police Force – the forensic photographer who took photos of the deceased’s body during the post-mortem examination.
   

7. The essence of the plaintiff’s case was that:

• he did not kill his wife;
  
• his wife died as a result of witchcraft committed against her by a known suspect;
  
• each of the four defendants was negligent in the way that they handled the plaintiff’s case and each of them committed the tort of negligence;
  
• each of the four defendants breached the human rights of the plaintiff in that they each breached his right to the full protection of the law under 37(1) of the Constitution;
  
• the negligent acts and omissions that occurred and the breach of human rights committed by each of the defendants, resulted in the plaintiff being convicted of a crime he did not commit and being sentenced to a long term of imprisonment and being denied the opportunity to promotion in the Police Force, as he was at the time of his arrest, 11 December2014, a member of the Police Force holding the rank of Chief Sergeant, with 25 years’ experience.
  

8. I was the trial judge in HRA 70 of 2017. I dismissed the plaintiff’s case, in an oral judgment delivered on 28 December 2018, after finding that the plaintiff had failed to prove a cause of action in negligence or breach of human rights against any of the defendants.

9. In that trial, the present defendants, Ms Wurr and Ms Kambao, represented Dr Fose (first defendant) and Mr Sasingian (third defendant).

10. The plaintiff’s allegation is that during the trial of HRA 70 of 2017, Ms Wurr and Ms Kambao withheld an affidavit of Dr Fose that contained an apology to the plaintiff for mistakes the doctor made in the post-mortem report.

1. WHAT HUMAN RIGHTS IS THE PLAINTIFF SEEKING TO ENFORCE?
   

11. In the human rights enforcement application form, by which the plaintiff commenced the present proceedings, he claims that the defendants, Ms Wurr and Ms Kambao, breached his rights to freedom based on law under s 32 of the Constitution and to the full protection of the law under s 37(1) of the Constitution.

12. Section 32 (right to freedom) states:

(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a) does not injure or interfere with the rights and freedoms of others; and

(b) is not prohibited by law,

and no person—

(c) is obliged to do anything that is not required by law; and

(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

(3) This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.

13. 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.

2. HAS THE PLAINTIFF PROVEN ANY BREACH OF HUMAN RIGHTS?
   

14. If the plaintiff were able to prove that the defendants had deliberately withheld any affidavit of Dr Fose during HRA 70 of 2017, in which Dr Fose apologised to the plaintiff for negligent preparation of the post-mortem report that was used in the plaintiff’s criminal trial, he would be in a strong position to argue that such conduct by the defendants would not only be a breach of their ethical obligations as officers of the Court, to ensure that relevant evidence is brought to the Court’s attention, but would also amount to a breach of the plaintiff’s human rights to freedom based on law and to the full protection of the law.

15. However, that very serious allegation against the defendants is not supported by any credible evidence. The plaintiff has failed to present any evidence (apart from his own belief) that the defendants had withheld the sort of affidavit he alleged that they withheld.

16. The only piece of evidence that the plaintiff presented that could be considered as relevant to the allegation about withholding an affidavit of Dr Fose, is an affidavit by Robert Ovoi, a correctional officer at Bomana correctional institution. Mr Ovoi deposes that on 11 August 2016 he and another correctional officer escorted the plaintiff to Port Moresby General Hospital to see Dr Fose at the Pathology Department. Mr Ovoi deposes that the plaintiff put to Dr Fose that the doctor had failed to conduct a proper DNA or forensic analysis on the dry blood found in the deceased’s scalp. Mr Ovoi deposes that Dr Fose told the plaintiff that DNA tests are only done in Australia as PNG did not have the necessary equipment, and that he would clarify the matter in Court if the matter was appealed.

17. It is noteworthy that Mr Ovoi’s affidavit does not mention any apology of any sort being rendered by Dr Fose to the plaintiff.

18. I find that there is no evidence that any affidavit of Dr Fose, containing an apology to the plaintiff, exists. And there is no evidence that Dr Fose ever issued any apology to the plaintiff.

19. The plaintiff has failed to prove the allegation on which his case is based. He has therefore failed to prove any breach by the defendants of his human rights.

3 WHAT ORDERS SHOULD THE COURT MAKE?

20. The plaintiff has failed to prove his case, so the proceedings must be entirely dismissed. As to costs, it is appropriate that the parties bear their own costs.

ORDER

(1) The proceedings are entirely dismissed.

(2) The parties shall bear their own costs of the entire proceedings.

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

Judgment accordingly.
_______________________________________________________________
Public Solicitor: Lawyer for the Defendants