Wartoto v Okuafo [2022] PGNC 209; N9663 (12 May 2022)

N9663

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 14 OF 2018

EREMAS WARTOTO
Plaintiff

V

PETER OKUAFO, ACTING SECURITY MANAGER; BOMANA CORRECTIONAL SERVICE
First Defendant

KIDDY H. KEKO, COMMANDER, BOMANA CORRECTIONAL SERVICE
Second Defendant

MICHAEL WAIPO, COMMISSION OF THE CORRECTIONAL SERVICE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Narokobi J
2022: 11^th May

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms)– Whether plaintiff’s human rights were violated – s 36, Freedom from inhuman treatment- s 37, Protection of the law – s 41 – Proscribed acts -compensation under s 58(2) of the Constitution.

The Plaintiff claims that his human rights under the Constitution were violated when he was forcefully removed from Port Moresby General Hospital. At the time of the alleged violations of his rights he was a State Prisoner on medical leave of absence receiving medical attention for his chronic hypertension amongst other medical conditions. The Plaintiff claims his rights under ss 36, 37(1), 37(17) and 41 of the Constitution were violated by the Defendants.

Held:

(1) For an act or omission to amount to torture, pain has to be specifically intended and applied to a person to achieve some other objective which otherwise would not have been achieved. Since this was not the case here, the Plaintiff’s claim for breach of s 36 of the Constitution is dismissed.

(2) Since the Defendants were acting under the exercise of a discretionary power it had under s 101 of the Correctional Services Act 1995, so it could not be said that they were acting under a whim, and therefore did not breach the Plaintiff’s rights under ss 37(1) and (17) of the Constitution (Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87, followed).

(3) The evidence contained in the Doctor’s report was that the Plaintiff had several medical conditions including chronic hypertension. The fact that the Plaintiff was forcefully removed without regard to his underlying medical condition which subsequently led to his impaired vision from the untreated high blood pressure, suggests to me that the actions of the Defendants were harsh and disproportionate to the requirements of the case. Consequently, the Plaintiffs rights under s 41(1) of the Constitution was breached (Morobe Provincial Government v Kameku (2012) SC1164 considered).

(4) On account of the finding of breach of the Plaintiff’s rights under s 41 of the Constitution, he shall be entitled to reasonable compensation under s 58(2) of the Constitution for the breach of his rights.

Cases Cited

Morobe Provincial Government v Kameku (2012) SC1164
Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

Statutes Cited

Constitution
Correctional Services Act 1995

Counsel

P Yange, for the Plaintiff
P Ohuma, for the Defendants

JUDGMENT

12^th May, 2022

1. NAROKOBI, J: The Plaintiff, Eremas Wartoto is a State prisoner and he has filed a writ of summons alleging that the Defendants have breached a number of his rights under the Constitution in the way they treated him. He seeks a number of declarations and for orders that he remain in medical care, and he be paid damages for the way he was treated.
   

Pleadings

2. The Plaintiff alleges that his removal by the Defendants from the medical care, attention and management of the professional medical team at the Buri Kidu Foundation Inc at the Port Moresby General Hospital and the Pacific International Hospital by the Defendants on Wednesday 10 January 2018 without being discharged by his medical doctors and subjecting him to abuse by the media outlet and eventual detention at Bomana Correctional Institution without medical care and attention violated his rights under s 36, 37(1), 37(17) and 41(1) of the Constitution.
   
3. The Plaintiff has sought several declarations and orders, and they can be summarised in the following manner:
   
   • A declaration that he is entitled to rights under ss 36, 37(1), 37(17) and 41(1) of the Constitution.
   • A declaration that his rights under ss 36, 37(1), 37(17) and 41(1) of the Constitution were breached.
   • Interim and permanent injunction for him to remain in medical care until he has been formally discharged.
   • General damages, exemplary damages and special damages as well as interests and costs.
     
4. The Defendants says it is not liable for what happened to the Plaintiff and raise a number of grounds in their Defence. These grounds can be categorised as follows:
   
   • The proceedings are an abuse of process.
   • The Plaintiff is a State prisoner who was convicted and sentenced to 10 years to serve his term in Bomana Correctional Services. He is bound by law to serve his term of imprisonment.
   • Unless his medical condition is very serious, he will be given leave to attend hospital for medication by the Defendants.
   • If a permanent injunctive order is granted, it will be contrary to the Criminal Court Order for sentence imposed against the Plaintiff and will not serve its purpose.
     

Issues

5. The issues that I must determine from the pleadings are:
   
   • Whether the Plaintiff has proven the factual allegations against the state to be entitled to the relief claimed in the statement of claim? and
   • If he has, do those facts as proven amount to violations of those rights and freedoms on a proper interpretation of those rights and freedoms? and
   • What relief should the Plaintiff be entitled to, or at all?
     

Evidence

6. The Plaintiff has relied on five affidavits to support his claim. I will summarise what each deponent deposes to in the table below.
   

Exhibit No	Deponent	Evidence
P1	Dr Simon Melengas, filed 10 May 2019	Dr Melengas is the Chief Ophthalmologist (specialist eye doctor) of Papua New Guinea. On 23 March 2018 he conducted an examination of Mr Eremas Wartoto’s eyes following complaints of gradual loss of vision in both eyes. He says there was a further retinal angiogram done at Pacific International Hospital. Based on these examinations, he says that Mr Wartoto has lost 70% visibility to his right eye, and it is attributed to the lack of anti-hypertensive medication during the eight weeks period.
P2	Dr Jack Amana, filed 10 May 2019	Dr Amana is a cardiologist at the Port Moresby General Hospital. He has been attending to Mr Wartoto since April 2017. He says Mr Wartoto suffers from hypertension and that he was doing well until his removal from the hospital on 10 January 2018. He expressed his dissatisfaction to the Correctional Services in a Memo dated 27 February 2018. In a medical report that he prepared, dated 7 June 2018 he says that Mr Wartoto suffers from persistent high blood pressure which is detrimental to his eyes. He also has anal piles, coronary artery disease, sleep apnea and gastritis. On 5 April 2019 he writes to Mr Yelly Oiufa, Commander at Correctional Services requesting Mr Wartoto to be sent back to the hospital to be treated. He encloses a medical report from Dr Sam Yockopua who reports that he attended to Mr Wartoto on 3 May 2019 and diagnosed him as follows:- he suffers from hypertension, first degree heart block, old myocardial infraction, hypertensive cardiomyopathy and morbid obesity.
P3	Mr Eremas Wartoto filed 10 May 2019	Mr Wartoto says that he was forcefully removed from medical care on 10 January 2018 despite protest from the hospital staff and that his removal done as a media publicity stunt as journalists from the Post Courier were brought along with them to report on the incident. On 27 February 2018 he returned to the hospital after he obtained a court order to that effect. During the period 10 January 2018 to 27 February 2018, when he was forcefully removed from the hospital to Bomana Correctional Services, he suffered the following: He was not taking his hypertensive drugs. His blood pressure went as high as 200/100mmHg. He was not able to read newspapers and see clearly. Swelling lens due to the longstanding untreated high blood pressure. Suffering from permanent loss of vision, up to 70%.
P4	Mr Rolence Haba filed 2 October 2019	Deposes to service of a notice to cross-examine on the office of the Solicitor-General on 26 September 2019 on one Betty Makis.
P5	Mr Eremas Wartoto filed 27 May 2019	He responds to the affidavits of the defendants that he was not in the hospital. He says they are hearsay evidence. He says that he goes for exercise and the canteen to buy food suitable to his medical condition and Correctional Services officers may have come at this time when he was not at his bed. He alleges that one of the deponents was told to sign an affidavit that was not factually correct.

7. The Defendant has relied on 12 affidavits to defend the claim. I will summarise what each deponent deposes to in the table below.
   

Exhibit No	Deponent	Evidence
D1	Priscilla Teko Ohuma, filed 8 April 2019	Refers to related proceedings commenced by the Plaintiff. In one of those proceedings OS (HR) No 4 of 2018, she annexes the affidavit of former superintendent of Bomana Correctional Institution Haraha Kiddy Keko, filed on 26 April 2018. He says that there was public outcry against state prisoners serving time outside of Bomana, and he received messages from unknown sources that says they spotted the plaintiff walking at Ela Beach. That was the reason he was removed from hospital on 10 January 2018 and brought back to Bomana prison. Finally, she says that the interim orders made in OS (HR) No 4 of 2018 needs to be properly settled first.
D2	CS Commissioner, Stephen Pokanis, filed 21 May 2019	Says that his direction to remove the Plaintiff was based on reports that the Plaintiff escaped from the prison on several times. Similar directions were issued for other prisoners as well.
D3	Yelly Oiufa, acting Commander of Bomana Correctional Services filed 21 May 2019	Receives report from Inspector Bill Ema, that he encloses, that a spot inspection on 3 January 2019 reveals that the Plaintiff was not at his sick bed. Also attaches a copy of the Report provided by the Bomana Correctional Institution Operations security Officers (Inspector Peter Okuafo, Sergeant Vagi Kere, Warder Jerry Gombo and Warder Agatha Hudson which reports the following of their inspection to Port Moresby Geneal Hospital on 19 February 2019: On their first inspection at 3pm the Plaintiff was not at his sick bed; Second check at 8.55pm showed that the Plaintiff was not at his sickbed; At 10.55pm they saw the Plaintiff arriving in a vehicle at the hospital carpark and make his way to the hospital As a result of that report he was directed by the Acting Correctional Service Commissioner to remove the Plaintiff and other high profile prisoners from the hospital and have them charged by the police for escaping from lawful custody. In compliance with those directions the Plaintiff was removed from the hospital and brought back to the Correctional Services facility at Bomana.
D4	Inspector Peter Okuafo, filed 21 May 2019	Confirms the matters deposed to in the affidavit of Yelly Oiufa (Exhibit D3). Provides details of the Plaintiff being dropped off, as being the report of warder Agatha Hudson.
D5	Agatha Hudson, female correctional security officer, filed 21 May 2019	Confirms the matters deposed to in the affidavit of Peter Okuafo (Exhibit D4). Says she saw the Plaintiff arrive in an unmarked white station wagon, tinted glass, She approached the Plaintiff and said, “You come ah,” to which he replied, “Yes.” She left him there and went into the hospital.
D6	Joe Balai, a Correctional Services warder, filed 21 May 2019	He was rostered to perform shift duty on 19 February 2019 from 10pm to 6am the next day. On his arrival he checked and dd not see the Plaintiff. Plaintiff only arrives at 10.55pm at the carpark.
D7	Corporal Sapera Kaki, filed 21 May 2019	Deposes to Joe Balai (D6) briefing him of the absence of the Plaintiff prior to him assuming his shift in the hospital from 6am to 6pm.
D8	Inspector Bill Ema, filed 21 May 2019	On 12 January 2019, he was the weekend duty officer. He assigned Sergeant Vagi Kere and Corporal Ivan Tunu and two recruits to go to 3 Mile Hospital and do a spot check on the detainees who were admitted to the hospital. A situation report was provided to him and he reduced to a report to Acting Jail Commander Yelly Oiufa (refer to Exhibit D3 for a brief of the report).
D9	Vagi Kere, a warder attached with the Bomana Correctional Services, filed 21 May 2019	On his first to the hospital on 12 January 2019 he was accompanied by two other officers from Correctional Services. They had instructions from Inspector Bil Ema, the duty officer to do a spot check on the detainees at Port Moresby General Hospital. The Plaintiff was kept in Ward 3D, Cubicle bed 15 as was written on the Ward’s notice board. On that day, the station nurse directed them to bed no 15, but the Plaintiff was not there. On 19 February 2019 he again went to the hospital with other officers – Inspector Peter Okuafo and warder Agatha Husin Aian. A check at 3pm did not show that the Plaintiff was there. They again checked at 8.55pm and again the Plaintiff was not there. At 10.55pm they saw the Plaintiff being dropped off at the carpark, and they left for Bomana.
D10	Correctional Warder Alex Bandi, filed 21 May 2019	He says that on 19 February 2019 he was on duty at the Port Moresby General Hospital from 1400-2200 hours. He did his normal routine checks at this time, and all the detainees were there except for the Plaintiff. The Plaintiff was at bed 15, Ward 3D. At the end of his shift he went back to Bomana.
D11	Inspector Botting Mandu, filed 28 June 2019	The Plaintiff was admitted to the Bomana Correctional Institution on 21 July 2017. After three days he was transferred to the Correctional Services Clinic at Bomana. After that he was admitted to Port Moresby General Hospital on 7 August 2017.
D12	Inspector Alex Spairong, filed 30 August 2019	Accompanied by colleague officers, they checked the Plaintiff and two other detainees on 9 September 2019 (10am) and 11 September 2019 (1pm) but the Plaintiff and the two other detainees were not at the hospital. He then checked the hospital staff and discovered that the Plaintiff was discharged on 11 September 2019. He then asked for the discharge summary, which annexes to his affidavit.

Considerations

8. As I read through the affidavit materials and consider the submissions of the parties, the material date that is of concern as far as the Plaintiff is concerned is 10 January 2018. What was the rationale for the actions of the Defendants on that date? The Defendants provide ample evidence on subsequent dates they conducted spot checks, that is 3 January 2019 and 19 February 2019, but that does not meet the concern of the Plaintiff as to what did the Defendants do before 10 January 2018 before decision was taken to forcefully remove the Plaintiff from the hospital. That evidence would however be relevant for purposes of any future or further injunctions, but in terms of the issue of the treatment of the Plaintiff on 10 January 2018, it falls short.
   
9. What is however available is the affidavit of the former Acting Chief Superintendent Haraha Kiddy Keko, filed in OS (HR) No 4 of 2018 who provides the reasons why the Plaintiff was removed from the hospital on 10 January 2018. This affidavit was tendered in that proceeding for purposes of issuing an injunction, and it was resolved in favour of the Plaintiff by the court granting the injunction. In order words that affidavit did not persuade the court to refuse the injunction. But it was tendered into evidence, and I take judicial notice of it and the matters deposed to it. Counsel could have simply sought leave of the court to have it tendered and ask the court to take judicial notice of its contents, subject of course to the right of the plaintiff to cross-examine. As I compare what is stated in that affidavit, I am left with the impression that what it deposes to is not illogical, farfetched or conflicts with the evidence from affidavit materials tendered in this proceeding. It does however contain hearsay material, reporting the whereabouts of the Plaintiff.
   
10. I now turn to each of the rights alleged to have been violated, provide an interpretation of those rights and decide what they have been violated.
    
11. Let me first deal with the media attention, which the Plaintiff says was unwarranted. Media freedom is one of the hallmarks of a democratic society. Unless what was published was false and defamatory with some ulterior motives, would amount to some cause of action against the Defendants. In any case the media outlet is not named as a Defendant, so I disregard that aspect of the factual allegation which the Plaintiff says amounts to breach of his human rights.
    
12. The first rights alleged to have been breached is s 36(1) of the Constitution. That provision states:
    

36. Freedom from inhuman treatment.

(1) 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. (Emphasis added)

13. Section 36 of the Constitution finds its genesis in the Universal Declaration of Human Rights (UDHR). Article 5 of UDHR states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This connection between the Constitution and the UDHR is clear from the Constitutional Planning Committee Final Report 1974 at Chapter 8.
    
14. There is no definition of torture in the Constitution (Namuesh v Ofoi (1996) N1429). But the definition of torture is further elaborated in the following international instrument, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)). Article One of UNCAT states:
    

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

15. What I gather from this definition is that for an act or omission to amount to torture, pain has to be specifically intended and applied on a person to achieve some other objective which otherwise would not have been achieved.
    
16. In this case, the Plaintiff was serving a prison sentence under a warrant, and the only reason he was in hospital was on account of his ill health. The reason he was removed was based on some report, whether it was well founded or not, that he was using his time in the hospital to escape lawful custody and not stationed in the hospital as he is required to do. I do not see any element of the Defendants and or their servants or agents setting out with the specific intention to inflict pain on the Plaintiff for some objective that would not have otherwise been achieved. I therefore dismiss the claim for breach of s 36 of the Constitution.
    
17. As to the claim on the breach of the right to protection under the law pursuant to s 37(1) and (17) of the Constitution, I have considered the case authorities submitted by Counsel and their submissions, and I am inclined to accept the submissions of the Defendants. In Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87 the court when considering the breach of s 37(1) and (17) stated:
    

This subsection means that every aspect of treatment given to a detainee in B Division must be covered by a law which for practical purposes means a provision contained in the Corrective Institutions Act, Regulations or in the Commissioner’s Orders and Instructions. This constitutional provision means that no aspect or at least no major aspect of a prisoner’s treatment in B Division should be at the whim of the officer-in-charge of that Division or of any warder; the warders must treat a prisoner in accordance with the laws. If they fail to do so, the prisoner can seek redress under s. 57 of the Constitution which gives wide powers to the National Court and the Supreme Court to enforce fundamental rights provisions. Section 37(1) means that if some aspect of the prisoner’s treatment in B Division is not regulated by a law then the section has been breached. It also means that if there is a law on some aspect of prison treatment, and that law is breached by the prison staff, the prisoner can claim that he has not been given the full protection of the law and under ss 57 and 58 can get redress from the courts in the form of damages or an order compelling the warders to do something or ordering them not to do something. As will be seen later, Amaiu claims in this case that s. 111(4) of the Corrective Institution Regulations which prohibits treatment in the nature of solitary confinement has been breached and as such he is entitled to seek redress under the Constitution. (Emphasis added)

18. The Defendants were acting under the exercise of a discretionary power it had under s 101 of the Correctional Services Act 1995. That provision states:
    

101. Absence from a Correctional Institution.

(1) The Commissioner may, by instrument in the prescribed form, authorize a detainee to be absent from a correctional institution.

(2) An instrument under Subsection (1) authorizing the absence of a detainee from a correctional institution shall specify—

(a) the purpose of the absence; and

(b) the duration of the absence; and

(c) the conditions imposed for the security, custody or supervision of the detainee while absent from the correctional institution.

(3) The purposes for which absence may be authorized under Subsection (1) include but are not limited to—

(a) visiting a member of the immediate family of the detainee or of another person who had a long standing close personal relationship with the detainee where that person is dangerously ill; or

(b) attending the funeral of a person referred to in Paragraph (a); or

(c) attending a doctor, dentist, hospital or clinic; or

(d) taking part in an approved programme; or

(e) attending an educational or training institution; or

(f) doing work approved by the Commissioner; or

(g) attending court.

(4) A detainee whilst under an order authorizing absence from a correctional institution remains in the custody of the Commissioner.

(5) A detainee, who fails to comply with a condition imposed in an instrument under Subsection (1), is guilty of an offence.

Penalty: Imprisonment for a term not exceeding two years.

19. The leave of absence in this case appears to be for attending hospital. I note from the Correctional Services Regulation 1995, schedule 7 provides the form for leave of absence. It looks like this:
    

SCHEDULE 7

Act. Sec. 101

Reg., Sec. 135

Correctional Service Act 1995

ABSENCE FROM A CORRECTIONAL INSTITUTION.

Name of Detainee:

No:

The above named detainee is authorised to be absent from

............................................................................................. (name of Institution)

on ........................................................................................ (date)

from ............................................... (time) to ............................................ (time)

for the purpose of:

Whilst absent from .............................................................. (name of institution)

the above named detainee shall be escorted by ....................................................

and under the supervision of ........................................................................ until
returned to the institution named above.

20. There is no actual leave of absence filed in evidence, but the evidence states that the leave of absence was revoked, and the Plaintiff was to be returned to the correctional institution at Bomana. In my view, the warders did not act on their whim but acted on a purported authority they had in law. I will therefore dismiss this claim.
    
21. The next issue relates to whether the Plaintiff’s rights under s 41 of the Constitution was breached. Section 41 of the Constitution states:
    

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done

(2) under a valid law but in the particular case –

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to; the requirements of the particular circumstance or of the particular case; or

(c) is otherwise not; in the particular circumstances, reasonably justifiably in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act.

(3) The burden of showing that subsections (1) (a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(4) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

22. In the case of Morobe Provincial Government v Kameku (2012) SC1164 the Supreme Court found the following to be the requirements of s 41 of the Constitution:
    

25. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

• harsh; or
• oppressive; or
• not warranted by the requirements of the particular circumstances; or
• disproportionate to the requirements of the particular circumstances; or
• not warranted by the requirements of the particular case; or
• disproportionate to the requirements of the particular case; or
• otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
  

23. In my view what the defendants did was lawful, as they acted under s 101 of the Correctional Services Act, but the question is in relation to how they implemented that provision of the law. When they removed the Plaintiff from the hospital, was it done contrary to one of the seven categories of the right in s 41(1) of the Constitution, that is whether their actions were harsh or oppressive and so on.
    
24. The undisputed evidence contained in the Doctor’s report was that the Plaintiff had several medical conditions including chronic hypertension. The fact that he was brought to Bomana without regard to his underlying medical condition, and his need for ongoing medication and treatment, which subsequently led to his impaired vision from the untreated high blood pressure, suggests to me that the actions of the Defendants were harsh and disproportionate to the requirements of the case. It would have been reasonable to expect that before the Plaintiff was removed from the hospital, some consideration was given to his medical condition. From the evidence this appears not to have been done. I therefore find that the Plaintiffs rights under s 41(1) of the Constitution was breached. Their actions in not seeking proper medical clearance was harsh, oppressive and not warranted by the circumstances of the case.
    
25. On account of the finding of breach of the Plaintiff’s rights under s 41 of the Constitution, he shall be entitled to reasonable compensation under s 58(2) of the Constitution for the breach of his rights.
    
26. The Plaintiff also seeks orders to remain in the hospital until he has been discharged. I see from the evidence that he has been discharged on 11 September 2019 (Exhibit D12) so I decline to make this order.
    

Orders

27. Considering my findings on the law and the evidence, I will therefore make the following orders:
    

1. It is declared that the Plaintiff is entitled to the right under s 41(1), “Proscribed acts” of the Constitution.

2. It is declared that the Defendants have violated the right of the Plaintiff under s 41(1) of the Constitution.

3. It is declared that the Plaintiff is entitled to reasonable compensation under s 58(2) of the Constitution for breach of his rights under s 41(1) of the Constitution, and for which a trial on assessment of damages shall ensue to determine an appropriate compensation to be paid by the Defendants.

4. Costs of the proceedings and interest to be determined after trial on assessment of damages.

5. Any remaining injunctions under OS (HR) No 4 of 2018 is hereby dissolved.

6. All other reliefs claimed by the Plaintiff is refused.

7. Matter is adjourned to 13 May 2022 at 930am for directions hearing.

8. Time is abridged.
__________________________________________________________________
Islands Legal Services: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants