Auhava v Pige [2021] PGNC 139; N8912 (5 July 2021)

N8912

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 71 OF 2019

THOMAS AUHAVA
Plaintiff

V

DETECTIVE SERGEANT NEIL PIGE
First Defendant

DETECTIVE FIRST CONSTABLE RICHARD TIRIGA
Second Defendant

COMMISSIONER OF POLICE
Third Defendant

DR SETH FOSE
Fourth Defendant

DR GABRIELLA AK
Fifth Defendant

DR J JOSEPH
Sixth Defendant

JOSEPH LUGANEYA
Seventh Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

Waigani: Cannings J
2021: 21^st May, 8^th June, 5^th July

HUMAN RIGHTS – enforcement – whether police investigation into suspicious death of young man conducted properly – whether human rights of father of deceased breached due to failure of agencies of State to provide justice for the deceased.

The plaintiff was aggrieved by the alleged failure of the police and other State agencies to properly investigate the death of his son, who he believed was murdered. He sought justice for his son by filing an application for enforcement of human rights.

Held:

(1) A person who is affected by the suspicious death of a close relative has a legitimate expectation that justice will be done for the deceased and that the suspected perpetrator will be brought to justice. These are protections of the law, which are incorporated within the rights of all persons in Papua New Guinea under s 37(1) of the Constitution.

(2) In this case, there is insufficient evidence for finding that any of the individual defendants deliberately or negligently failed to do what was required of them in relation to the death of the plaintiff’s son.

(3) However, when all the evidence is considered, there had been a general and institutional failure on the part of the State to afford the plaintiff the full protection of the law as he has been left alone to grieve for his deceased son, without seeing that justice was done for the deceased and without seeing that the alleged perpetrator of the death effectively faced justice. A breach of human rights was established under s 37(1) of the Constitution.

(4) The plaintiff was awarded reasonable damages under s58 of the Constitution in the sum of K10,000.00.

Cases cited

None.

APPLICATION

This was an application for enforcement of human rights.

Counsel

T Auhava, the plaintiff, in person
A Kajoka, for the Defendants

5^th July, 2021

1. CANNINGS J: The plaintiff, Thomas Auhava, claims that his son Emmanuel Thomas Auhava, aged 20, was murdered at Korobosea, National Capital District in the early hours of 1 January 2014. He claims that the police have never done a proper investigation and that evidence has been fabricated by the police and medical staff at Port Moresby General Hospital, the result being that seven years after the death, justice has still not been done for his son, and that the person who murdered his son has escaped justice.

2. The plaintiff on 6 March 2019 filed a human rights enforcement application form. He was initially represented by the Public Solicitor but something happened and the Public Solicitor has withdrawn from the case. The Solicitor-General represents the State and those individuals named as defendants.

3. The Court directed the plaintiff to file and serve a statement of claim, which he did. However, no defence was filed in response. The plaintiff filed a bulky affidavit, which is a broad collection of documents pertaining to his son’s death, which is the evidence on which his claim is based. No evidence was tendered in response. The plaintiff made oral and written submissions at the trial. For the defendants there was no written submission and oral submissions were very brief.

4. Having considered the evidence, I find it proven that the plaintiff’s son was killed on 1 January 2014 at Korobosea. A suspect, “GB”, was identified, arrested and charged. There was a police investigation. It is fairly clear that the plaintiff’s son and GB had a fight. They were both intoxicated. Statements have been made by those present. One version of events is that GB struck the deceased on his head with a blunt object, causing the deceased to collapse and die. Another version (which seems implausible) is that straight after the fight the deceased found some tablets and overdosed on them. Police reported the death to the Coroner who ordered a post-mortem investigation, the report of which was consistent with the first version of events.

5. GB was detained in custody for several months before being granted bail by the National Court. GB faced committal proceedings in the District Court, which in September 2014, refused to commit GB to trial. GB was released, and has not been returned to custody. The presiding magistrate, his Worship, Mr Bidar, was critical of the inadequate police investigation.

6. The plaintiff was aggrieved by the failure of the case in the District Court. He went to another police investigator, and the matter of the alleged inadequate police investigation was inquired into by Internal Affairs. A submission was made by police to the Public Prosecutor to see if an ex officio indictment could be presented. Nothing was done,

7. The plaintiff complained to the Secretary of the Department of Health about deficiencies and alleged fabrication of the post-mortem report. This resulted in an internal investigation by the Medical Standards Division of the Department of Health. The report concluded that some minor errors had been made but with nothing in support of the plaintiff’s contention about fabrication of medical records.

8. The plaintiff complained to the Ombudsman Commission, which did a cursory investigation that yielded no results satisfactory to the plaintiff. The Metropolitan Superintendent of the National Capital District, Inspector Ben Turi, took personal carriage of the matter in 2016 and 2017. Still, nothing tangible resulted. GB was not rearrested.

9. The plaintiff is still, clearly, grieving for his son, and he is still, clearly, aggrieved by the failure of a number of officers in the justice system to do their jobs. He submits that his son’s right to life under s 35 of the Constitution has been taken away.

10. As to what the plaintiff wants the Court to order, it is not entirely clear. Does he want the Court to order that GB be re-arrested? Or order the Public Prosecutor to bring GB to trial in the National Court? Or does the plaintiff want damages? Or all of these remedies? The statement of claim is not well drafted and the plaintiff’s oral and written submissions are emotional and of limited assistance in determining what the plaintiff wants.

11. This case is not well compiled, and it has not been well defended either. What does the court do in this situation? I could throw out the case quickly and easily but I do not think that will be doing justice. I propose to resolve the confusion and dispense justice in this way.

12. A person who is affected by the suspicious death of a close relative has a legitimate expectation that justice will be done for the deceased and that the suspected perpetrator will be brought to justice. These are protections of the law, which are incorporated within the rights of all persons in Papua New Guinea under s 37(1) of the Constitution, which 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.

13. In this case, there is insufficient evidence for finding that any of the individual defendants deliberately or negligently failed to do what was required of them in relation to the death of the plaintiff’s son.

14. However, when all the evidence is considered, there has been general and institutional failure on the part of the State to afford the plaintiff the full protection of the law. Each agency he went to for assistance passed the buck to the next agency, assuming that it would resolve the plaintiff’s grievance. His grievance has never been resolved. He has been left alone to grieve for his deceased’s son, without seeing that justice was done for the deceased and without seeing that the alleged perpetrator of the death effectively faced justice. A breach of human rights has been established under s 37(1) of the Constitution.

15. I invoke Section 58(2) (compensation) of the Constitution, which states:

A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

16. The plaintiff is a person whose rights and freedoms declared and protected by Division III.3 of the Constitution (basic rights) have been infringed. He is entitled to an award of reasonable damages. I award reasonable damages of K10,000.00.

ORDER

(1) It is declared that the plaintiff has established a cause of action in breach of human rights against the State, constituted by a breach of the plaintiff’s right under s 37(1) of the Constitution, to the full protection of the law.

(2) The eighth defendant shall, under Section 58(2) of the Constitution, pay to the plaintiff reasonable damages in the sum of K10,000.00.

Judgment accordingly.
__________________________________________________________________
Solicitor-General: Lawyer for the Defendants