Kama v Rali [2022] PGNC 416; N9968 (12 May 2022)

N9968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 21 OF 2017

BETWEEN
DAWA KAMA & Her FAMILY
Plaintiffs

AND:
WILLIAM RALI as Police Constable 6 Mile Police Station
First Defendant

AND:
FRED BARE, 6 Mile Police Station Commander
Second Defendant

AND:
BRIN KOMBE. NCD Police Operations Commander
Third Defendant

AND:
BENJAMIN TURI, NCD Metropolitan Superintendent
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Narokobi, J
2022: 12^th May

HUMAN RIGHTS: Allegation of breach of human rights – Constitution,

ss 32 and 42 – Whether actions of the defendants amount to breach of

human rights

Counsel:

Plaintiff in Person

Ms P Ohuma, for the Defendants

JUDGMENT
12^th May, 2022

1. NAROKOBI, J: The Plaintiff has filed proceedings seeking damages for breach of her rights under s 32, “Right to freedom,” of the Constitution and s 42, “Liberty of the person,” of the Constitution.
   
2. The background to the claim was that on or about 2 April 2016, the Plaintiff was in a fastfood outlet, KMC. She had her bilum with her, which contained betelnut, money and store goods. She says that the First Defendant came in and picked up her bilum and walked out. She followed him out and pulled her bilum back from the First Defendant. A struggle ensued, and the First Defendant kicked her leg and she fell down unconscious. When he saw that she was unconscious he left. After she regained consciousness, she went and laid a complaint with the police. There were attempts to settle the matter, but no settlement eventuated. After that incident the Plaintiff was arrested and detained on 14 June 2016 but was not charged and released after six hours. She was again arrested on 15 June 2016, but this time she was charged. She was kept in custody until 17 June 2016 until she was bailed out by her relatives. On 21 June 2016 the District Court struck out the charges and she was discharged.
   
3. The issue that I must determine is whether, the Plaintiffs rights under ss 32 and 42 of the Constitution were breached. If they were, then I have to decide whether, the State should be vicariously liable for the actions of the First Defendant.
   
4. I have read the affidavit material tendered by the Plaintiff and the Defendants, but I prefer the evidence of the Plaintiff. The First Defendant says that he was arresting a person who had committed an offence, illegal sale of betelnut, and she resisted arrest, and, in the process, suffered injuries. It is hard to imagine an old lady putting up a fierce resistance to the First Defendant. The only explanation was that she was assaulted. He later arrested her and charged her. What I also find hard to believe the First Defendant’s story was what he did after the incident. When the Plaintiff fell, he did not retain the bilum as evidence for his investigations, nor did he wait and call an ambulance to attend to the Plaintiff or report the incident to his superiors at that point in time. All this reduces the credibility of his evidence. There is evidence that after the Plaintiff was assaulted, she laid a complaint. The Plaintiff was only arrested after she laid a complaint that was on 14 June 2016. She was detained for six hours and then released. After she persisted with her complaint, she was again arrested and detained from 15 June 2022 to 17 June 2022 when she was bailed out. All of this was orchestrated as revenge for her complaint against him.
   
5. From the evidence that is provided I find that the First Defendant engaged in a conduct that did not allow the Plaintiff to live a life based on freedom under the law. She was vilified for lodging a complaint against him. I therefore find that the First Defendant breached the Plaintiffs rights under s 32 of the Constitution.
   
6. In relation to s 42 of the Constitution, I find that there was a breach of that right on 14 June 2016, as she was not charged, and kept in custody for six hours. The subsequent detention on 15 to 16 June 2016 would not amount to breach of that right because she was actually charged. There is no additional claim for malicious prosecution, and so I cannot consider this claim.
   
7. I am satisfied that what the First Defendant did was in the purported course of duty, and I hold the State vicariously liable for the actions of the First Defendant.
   
8. The claim against the other Defendants is dismissed.
   
9. I also order that there shall be a trial on assessment of damages on account of the liability of the First and Fifth Defendants.

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Solicitor-General: Lawyers for the Defendants