N11068
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 15 OF 2023

PATRICK  LIRI FOR HIMSELF & 86 OTHERS OF GABI VILLAGE, NATIONAL CAPITAL DISTRICT NAMED IN SCHEDULE “A”
TO THE WRIT OF SUMMONS
Plaintiffs

V

DAVID MANNING, COMMISSIONER OF POLICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2024: 1st, 4th July, 4th October, 1st November

HUMAN RIGHTS – enforcement – trial on liability – alleged police raids of village  – alleged assaults by police  – alleged entry into and damage and destruction of plaintiffs’ properties – police officers not identified by name – whether factual allegations proven – whether failure to name police officers affected liability of the State – Wrongs (Miscellaneous Provisions) Act, s 1(1)(a) – whether the State vicariously liable for actions of unidentified police officers. 

The plaintiffs claimed that their village was raided by groups of police officers on three separate occasions on two days. The plaintiffs did not plead or give evidence of the names of the members of the Police Force allegedly involved in the raids. In a statement of claim which named only two defendants, the Commissioner of Police and the State, the plaintiffs pleaded causes of action in tort (negligence) and breaches of human rights (under Constitution, ss 36, 37, 41, 44, 49 and 53) and claimed damages. At the trial the plaintiffs abandoned the negligence claim and the Constitution, s 41 claim.  The defendants filed a defence, denying all relief sought by the plaintiffs, but offered no evidence at the trial. The defendants argued that the plaintiffs: (1) had not proven the factual allegations on which their case was based, (2) had not identified any police officer involved in the alleged raids and not complied with s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act and (3) had not adequately pleaded vicarious liability of the defendants. 

Held:

(1)	The plaintiffs proved the allegations on which their case was based due to each of 87 plaintiffs giving detailed sworn affidavit evidence of what happened and when it happened. Corroborative evidence was desirable but unnecessary in the circumstances given the details provided by the plaintiffs and media coverage given to the incidents (of which the plaintiffs gave evidence) and the absence of any evidence in rebuttal.

(2)	Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act did not apply as the negligence part of the claim was abandoned at the trial, leaving the causes of action being constitutional claims, not claims in tort.

(3)	Vicarious liability of the State was adequately pleaded due to the statement of claim pleading that the unidentified police officers were servants and agents of the State pursuant to the Police Act 1998 who were acting or purporting to act within the scope of their employment. 

(4)	Breaches of human rights were proven to have been committed, on the dates and times and at the place pleaded, by unidentified members of the Police Force, viz breach of the rights to: freedom from inhuman treatment (Constitution, s 36), full protection of the law (Constitution, s 37), freedom from arbitrary search and entry (Constitution, s 44), privacy (Constitution, s 49) and protection from unjust deprivation of property (Constitution, s 53).

(5)	The State was vicariously liable for the breaches of human rights committed by the unidentified members of the Police Force as such breaches, though evidently unauthorised, were committed during the course of police operations and while purporting to act in the course of their duties.

(6)	The case against the Commissioner of Police was dismissed. Liability was established against the State. A trial on assessment of damages was ordered. 

Cases Cited
The following cases are cited in the judgment:
Nare v The State [2017] 1 PNGLR 366
Pokarup v The State (2024) N11028

Counsel
J P Gene, for the Plaintiffs
A Kajoka, for the Defendants

1st November 2024 

1.      CANNINGS J: The plaintiffs claim that their village of Gabi, near Hanuabada in the National Capital District, was raided by police on three separate occasions on two days in April 2020. They claim that the police created fear and terror and issued verbal assaults on them, threatened physical violence, killed pigs, stole bags of betel nut and mustard intended for sale, fired teargas and gunshots indiscriminately, looted trade stores, destroyed market tables, stole market goods and cash and in one instance sexually assaulted one of the plaintiffs and generally damaged and/or destroyed the plaintiffs’ properties. 

2.     The plaintiffs did not plead or give evidence of the names of the members of the Police Force allegedly involved in the raids but identified them as being police officers due to their wearing of police uniforms and coming to the village in police motor vehicles and using teargas and apparently police-issued firearms and holding themselves out as members of the Police Force. 

3.     In a statement of claim which named two defendants, the Commissioner of Police and the State, the plaintiffs pleaded causes of action in tort (negligence) and breaches of human rights (under Constitution, ss 36, 37, 41, 44, 49 and 53) and claimed damages. At the trial the plaintiffs abandoned the negligence claim and the claim under s 41 of the Constitution.

4.     The defendants filed a defence, denying all relief sought by the plaintiffs, but offered no evidence at the trial. The defendants argue that the plaintiffs: 

(1) have not proven the factual allegations on which their case is based, 

(2) have not identified any police officer involved in the alleged raids and not complied with s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act and therefore the claim ought to be summarily dismissed, and 

(3) have not adequately pleaded vicarious liability of the defendants as they did not plead that alleged police officers involved in the alleged incidents were acting within the scope of their employment or purporting to perform police functions.

5.     A trial has been conducted on the question of liability. Four issues arise: 

(1) have the plaintiffs proven  the factual allegations on which their case is based? 

(2) should the proceedings be summarily dismissed due to failure to identify any police officer involved? 

(3) has vicarious liability of the defendants been adequately pleaded?

(4) have the plaintiffs proven a cause of action in breach of human rights? 

1	HAVE THE PLAINTIFFS PROVEN THE PROVEN THE FACTUAL ALLEGATIONS ON WHICH THEIR CASE IS BASED?

6.     In making findings of fact, I have only the plaintiffs’ evidence to go by. They have 87 witnesses who tell the same story. The first raid was on 6 April 2020 at 10.00 am. Police entered the village and targeted betel nut traders. This was during a state of emergency in connection with the Covid-19 pandemic, a time when trade in betel nut was restricted. The second raid was on 29 April 2020 at 10.00 am. The third and biggest raid was on 29 April 2020 at 2.00 pm when a convoy of about 15 police vehicles entered the village. Police fired tear gas and some live ammunition which caused panic and fear amongst the villagers and other people present at the village, some of whom  fled the village. Again the pretext on which the raid was carried out was to enforce the betel nut ban during the state of emergency. This is sworn evidence and it tells a vivid tale of abuse of police powers. 

7.     The police created fear and terror and issued verbal assaults on the plaintiffs, threatened physical violence, killed pigs, confiscated bags of betel nut and mustard intended for sale, fired teargas and gunshots indiscriminately, looted trade stores, destroyed market tables, stole market goods and cash and in one instance sexually assaulted one of the plaintiffs and generally damaged and/or destroyed the plaintiffs’ properties. 

8.     The plaintiffs have not pleaded or given evidence of the names of the members of the Police Force allegedly involved in the raids but have sufficiently identified them as being police officers due to their wearing of police uniforms and coming to the village in police motor vehicles and using teargas and apparently police-issued firearms and holding themselves out as members of the Police Force. 

9.     Corroborative evidence was desirable but unnecessary in the circumstances given the details provided by the plaintiffs and media coverage given to the incidents (of which the plaintiffs gave evidence) and the absence of any evidence in rebuttal. The plaintiffs have proven the allegations on which their case is based, as pleaded in the amended statement of claim filed on 12 March 2024. 

2	SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED DUE TO FAILURE TO IDENTIFY ANY POLICE OFFICER INVOLVED?

10.    Ms Kajoka, for the defendants, submitted that the plaintiffs’ case should be summarily dismissed for lack of proper pleadings. She refers to s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, which now provides (following an amendment to this provision through Act No 12 of 2022):

Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject … in respect of torts committed by its servants and agents, who must be named in the court proceedings. [Emphasis added.] 

11.     The argument is that the plaintiffs are making their claim against the State “in tort” as they have pleaded in paragraphs 23 and 24 of the amended statement of claim a case of negligence on the part of members of the Police Force who are alleged to be servants of the State and involved in the raids on Gabi village. The plaintiffs, however, failed to plead the names of any of those members. The amended statement of claim is defective as it fails to comply with s 1(1)(a) and therefore the proceedings should be summarily dismissed.

12.      It is correct that the amended statement of claim does not name any particular member of the Police Force (other than the Commissioner) as a defendant and does not plead the name of any particular member. In all 87 affidavits admitted into evidence, no name of any member is provided.

13.      I consider that the argument for summary dismissal has been met by the plaintiffs’ decision, conveyed by their counsel Mr Gene during submissions, to abandon the claim of negligence and rest their case on breach of human rights under ss 36, 37, 44, 49 and 53 of the Constitution. 

14.     It was a late notification of a significant change in the plaintiffs’ case and it was not accompanied by any amendment of the amended statement of claim. 

15.     However, I am satisfied that because of the abandonment of the negligence claim, the plaintiffs’ case is no longer based on “tort”, which is a category of civil wrongs developed by the common law and adopted as part of the underlying law of Papua New Guinea under s 20 of the Constitution and the Underlying Law Act 2000. The plaintiffs’ case is based on breaches of human rights under the  Constitution. It is purely a constitutional action, which is conceptually and legally distinct from an action in negligence, which is a tort, and an underlying law action. Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act does not apply to this case (Pokarup v The State (2024) N11028). 

16.     The failure to name any particular member of the Police Force in the proceedings is of no consequence. I follow the decision of the Supreme Court in Nare v The State [2017]  1 PNGLR 366: there is no general requirement in a police raid case of this type to name the members of the Police Force involved in a raid. The amended statement of claim is not defective in the manner contended for by the defendants. I refuse to order summary dismissal of the case. 

3	HAS VICARIOUS LIABILITY OF THE DEFENDANTS BEEN ADEQUATELY PLEADED?

17.     It is reasonably clear from the amended statement of claim and it has been confirmed through submissions that the plaintiffs’ case is that the second defendant, the State, is vicariously liable for the breaches of human rights committed by the members of the Police Force involved in the three raids. The plaintiffs do not contend that the first defendant, the Commissioner of Police, is vicariously liable for those human rights breaches. 

18.      The question is whether vicarious liability of the State has been adequately pleaded. Ms Kajoka submitted that it was not, as there was no pleading that the unidentified members of the Police Force or the Commissioner were acting in the course and scope of their employment. 

19.      The answer to that submission lies in paragraph 31 of the amended statement of claim, which states:

It is alleged that the second defendant is vicariously liable for the acts and omissions of the unidentified police officers and the first defendant in relation to the breach of the plaintiffs’ human rights as demonstrated above.

Particulars of vicarious liability of the second defendant  

(a)	The unidentified police officers and the first defendant, collectively and severally, were acting or purporting to act within the scope of their employment; and 
(b)	The unidentified police officers and the first defendant are servants and/or agents of the second defendant pursuant to the Police Act 1998; and
(c)	The unidentified police officers, collectively and severally, were acting in the course and scope of their employment when conducting the illegal raid on the people of Gabi village, particularly the plaintiffs;
(d)	These raids by the unidentified police officers, despite being illegal, was an authorised act by the first defendant during the SOE period due to the COVID-19 pandemic in an effort to curb the sale and distribution of betel nut and mustard within Port Moresby; and 
(e)	Even if these raids were authorised by the first defendant, the manner in which these various raids were carried out were wrongful, negligent and illegal and were an unauthorised mode of carrying out a raid; and 
(f)	Even if the acts by the unidentified police officers were unauthorised, they were sufficiently connected with the acts with which the first defendant has authorised, which is to seize betel nut and mustard during the COVID-19 pandemic in 2020.

20.     Paragraph 31 introduces the vague allegation that the Commissioner of Police authorised the raids, which was unsupported by any evidence, and I disregard it. However, the gist of the pleading is sufficiently clear: that the members of the Police Force involved in the raids were employees of the second defendant, the State, and that they breached the plaintiffs’ human rights while acting or purporting to act within the scope of their employment.

21.      In Nare v The State [2017] 1 PNGLR 366 a five-Judge Supreme Court bench led by the then Chief Justice Sir Salamo Injia (Injia CJ, David J, Ipang J, Higgins J & Neill J) quashed the notion that the State could avoid being vicariously liable for wrongful conduct of members of the Police Force if they went outside the scope of authorised police operations. The Court held:

The fact is that unlawful conduct by police in the course of a “police raid” renders the State vicariously liable for damages. The “independent discretion” rule has been abolished. 

It follows that the cause of action against the State is established if: 

•	tortuous conduct is perpetrated by 
•	officers of the State, including police 
•	acting or purporting to act in the course of their duties. 

The words “purporting to act” are of considerable significance. 

It is not part of the cause of action that the offending officers be identified or be parties to the cause pleaded against the State.

22.      Nare stands for the proposition that it is sufficient to plead and to prove that the wrongful actions of the police were committed while carrying out or purporting to carry out police functions. Paragraph 31 of the amended statement of claim meets that standard, so vicarious liability of the State has been adequately pleaded. 

4	HAVE THE PLAINTIFFS PROVEN A CAUSE OF ACTION IN BREACH OF HUMAN RIGHTS?

23.      The plaintiffs claim that their human rights under the following provisions of the Constitution were breached by unidentified members of the Police Force: 

s 36 (freedom from inhuman treatment), 
s 37 (protection of the law), 
s 44 (arbitrary search and entry), 
s 49 (right to privacy) and 
s 53 (unjust deprivation of property).

24.     I find all those claims have been proven in that:

•	the plaintiffs, especially mothers and children caught up in the raids, were treated inhumanely, without respect for their inherent dignity, contrary to s 36; 

•	the plaintiffs were denied the full protection of the law under s 37 of the Constitution as the members of the Police Force acted unlawfully and arbitrarily without a court order authorising their entry into the village and search and seizure of betel nut;

•	the plaintiffs’ right to be free from the arbitrary (or unauthorised) entry of their premises under s 44 of the Constitution was infringed as the entry into their homes was unauthorised by law and by any court order;

•	the plaintiffs’ right to privacy under s 49 of the Constitution was also infringed by the arbitrary entry into their homes unauthorised by law and by any court order;

•	as to s 53 of the Constitution, the forceful destruction of the plaintiffs’ properties including betel nut and mustard amounted to taking compulsory possession of their property without just compensation. 

25.     There is evidence in the plaintiffs’ 87 affidavits that the members of the Police Force who conducted the raids arrived in police vehicles and were wearing police uniforms and carried out their activities on the pretext of enforcing a betel nut trade ban under the state of emergency regarding the Covid-19 pandemic. It has been proven that the unidentified members of the Police Force who breached the plaintiffs’ human rights were, in conducting the raids, purporting to act in the course of their duties as law enforcement officers. Vicarious liability for their conduct has been proven against the second defendant, the State.

CONCLUSION

26.     The plaintiffs have succeeded in establishing liability against the second defendant, the State, for human rights breaches committed against them by unidentified members of the Police Force, as pleaded in the amended statement of claim.  The plaintiffs have failed to establish liability against the first defendant, the Commissioner of Police. There will be a trial on assessment of damages. 

ORDER 

(1)	The proceedings against the first defendant are dismissed.

(2)	Liability has been established by the plaintiffs, for damages, against the second defendant for breaches of human rights under Constitution, ss 36 (freedom from inhuman treatment), 37 (protection of the law), 44 (freedom from arbitrary search and entry), 49 (right to privacy) and 53 (protection from unjust deprivation of property), as pleaded in the amended statement of claim filed 12 March 2024.

(3)	Other claims against the second defendant are refused.

(4)	There will be a trial on assessment of damages in relation to the liability established against the second defendant. 

________________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs 	
Solicitor-General: Lawyer for the Defendants