Eralia v Murray [2002] PNGLR 18 (18 April 2002)

[NATIONAL COURT OF JUSTICE]

PRISCILLA ERALIA; AND
SIPILI ERALIA

V

BEN MURRAY;
CHARLES AISA; AND
LAE CITY AUTHORITY

LAE: INJIA J
18 April 2002

LITTER – Urban Town Authority – Lae Town Authority – Litter Rule – On the Spot Fine Rule - Enforcement by Security Staff – Child dropped egg shell rubbish from egg given by mother inside public Market premises – Detention of mother and child at Market Security Office for 30 to 45 minutes pending payment of Spot fine of K20.00 – Released upon payment of reduced Spot fine of K14.00 – Whether detention unlawful – Whether detention in breach of Constitutional rights and compensable – Constitution, ss 36, 42, 53 and 57:

Facts

These are set out in the judgment.

Counsel

D Poka for the applicants.
C Inkisopo for the respondents.

18 April 2002

INJIA, J.: This is an application filed on 10th March, 1998 under s 57 of the Constitution for breaches of rights guaranteed under Sections 36 (Freedom from inhuman treatment), Section 42 (Liberty of the person), Section 52 (Right to freedom of movement) and Section 53 (Protection from unjust deprivation of property). The applicant seeks compensatory damages totalling some K27,800.00. The application is filed by the mother, the first applicant ("Priscilla"), on her own behalf and on behalf of her son, the second applicant ("Sipili"), who at the material time in 1998 was aged 5 years old. The application is made against the third respondent and its employees, the first respondent ("Ben") and Second Respondent ("Charles") whom the third respondent ("City Authority") engaged to manage the main Urban Lae City public market. The application stems from an incident that occurred on 19 January, 1998 at 10.30am within the precincts of the market, between the applicants and the first and second respondents in which the respondents held the applicants for some time inside the market security office because Sipili dropped some rubbish. They were released after Priscilla paid a spot fine of K14.00. The application is contested by the respondents.

The affidavit evidence for the applicants are as follows:-

1. Kewa Eralia, (father of Sipili) sworn on 11th February, 1998.

2. Jenny Mark (witness) sworn 13 July 1998.

3. Priscilla Eralia (mother of Sipili) sworn on 16th March, 1998.

4. Priscilla Eralia (mother of Sipili) sworn on 23rd, August 1998.

The affidavit evidence filed for the respondents are:

5. Gidix Nasa (City Rules Inspector (Lae City Council) sworn 4 May 1998.

6. Charles Aisa (market security) sworn 10 May 1998.

7. Ben Murray (market supervisor) sworn 11 May 1998.

8. David Male (market security) sworn 18 August 1998.

9. Steven Peters (City Manager) sworn 28 August 2001.

10. Steven Peters (City Manager) sworn 30 August 2001.

After receiving oral submissions from both counsels on the evidence, the Court visited the scene. All principal witnesses, except David Male, were at the scene to show where the events occurred. Parties were then directed to file written submissions which they completed on 5 December 2001.

The undisputed facts as I find on the evidence before me are these. In the morning of 19/1/98, Sipili was observed by Security Officer David Male ("David") dropping some rubbish in the form of eggshells (disputed by Priscilla who says it was peanut shells) inside the market premises. So David told her and the child to accompany him to the security base office to be dealt with by a senior security officer and she complied. Inside the security office, at about 11.30am, Charles Aisa explained the Litter Rules to Priscilla and required her to pay a spot fine of K20.00 but she had only K14.00 which she paid. A receipt was issued showing K7.00 of this money was paid to David as Commission and K7.00 paid to the Lae City Council. After obtaining the receipt, she left the office with her child. This episode between the time Priscilla and Sipili entered the security office and came out took some time. On the 20th December, 1998 the first respondent explained the Litter Rules to Priscilla's husband, Kewa when he came to enquire of the rules.

There is some dispute or uncertainty as to the following areas of facts:-

(1) whether the rubbish shell was egg shell or peanut shells;

(2) whether Sipili was with his mother Priscilla inside the market when Sipili dropped the shells;

(3) whether David told Priscilla to pick up the rubbish four times and she refused to comply on all four occasions; or

(4) whether Priscilla, Sipili, Jenny and her child were sitting inside a bus ready to go home when David told them to come out of the bus and accompany him to the security office;

(5) whether Ben and David threatened to lock up Priscilla and Sipili in the police cell if she did not pay the spot fine of K20.00. Whether the respondents held Priscilla and Sipili under some form of detention in this period;

(6) whether they were kept there for less than 1 hour or for more than 1 hour.

I must confess I have great difficulty in making findings of fact on disputed facts when the contested evidence is not tested on cross-examinations. As a general rule, it is undesirable to resolve disputed facts on documentary evidence which are untested under cross-examination. However, this is one case where the parties felt comfortable, even though some of the deponents were available at the time of trial, to proceed with their cases in this manner. And so in the exercise of my discretion, I will task myself with determining facts based on any anomalies and inconsistencies that I may find on the face of the record of evidence before me.

I find that the only material witness to what happened at the time Sipili was seen dropping of rubbish "shells" is David Male. This is because Sipili was not called to give evidence presumably because he is too young to be called to give evidence. Both Priscilla and Jenny left their two small children unattended at a busy bus-stop next to a busy market place and went to the Rainbow store to do their shopping. The Rainbow store is situated on the other side of the market and there is a public road between the market and the store. When they returned, they picked up their children and boarded the bus but they were told to get down from the bus to resolve the problem of Sipili dropping rubbish. If what they say is true, then that means they did not see Sipili drop the "rubbish shells." So neither Jenny nor Priscilla are witnesses to the dropping of the "rubbish shell."

But in my view, I do not think both Priscilla and Jenny would have left their two small children unattended at a busy public market place. I do not think they are being truthful when they say this. Therefore, I accept David's evidence that what Sipili dropped was an eggshell and not a peanut shell. Also, I accept David's evidence that Sipili was with her mother inside the market place when Sipili dropped the eggshell and he told Priscilla to pick it up because he would have had reason to suspect that the egg was given by her to Sipili to shell and eat.

David's evidence that Priscilla refused four times to pick up the rubbish is not challenged by either Priscilla or Jenny. Therefore, I accept David's evidence. Inside the security office, Priscilla's evidence that she and her child were told to pay the spot fine and if she didn't pay she was threatened to be locked up in the police cell, is not challenged by David or Charles. Therefore I accept her evidence. Also Priscilla's evidence that she was kept against her wishes in a hot room in stressful conditions is not contested by David or Charles. Indeed my own visit to the scene at 2.00p.m. on 5 December 2001 revealed that the room was a small one and with only some 15 minutes inside, the court party including myself were fuming and sweating inside. I accept her evidence that to be kept there for some time, say 30 minutes to an hour, would have been unbearable, and that she had to pay the fine to get out. Had she not paid the fine, I have no doubt that the security guards would have enforced their threat to lock up Priscilla and her child in the police cells until the fine was paid. As to the period she was kept at the security office, I do not think it was more than 1 hour. I accept the respondent's evidence that it was 30 to 45 minutes.

Having resolved the facts, it is necessary to first decide the issue of whether what David and Charles did was lawful. The relevant litter in operation in 1998 are the Litter and Rubbish Dumping Laws, 1996 ("Litter Rule") enacted by the Lae Urban Local-Level Government as empowered by s 44 and 141 of the Organic Law on Provincial Government and Local-Level Governments No. 16 of 1995.

Sections 4 – 8 of the Litter Rule provides:

(4) It is an offence for any person:

(a) By himself or his agent deposit, dump, throw away, or abandon any litter, refuse rubbish or any other things; or

(b) Allow or permit any other person in his or his agents immediate control to deposit, dump, throw away or abandon any litter, refuse, rubbish or other things in any quantity.

(i) In a public place; or

(ii) In any other land within the city whether owned or occupied by any other person unless authorized to do so by the City Manager.

Penalty: A fine not exceeding K100.00 or a term of imprisonment not exceeding 12 months or both.

(5) (a) An Officer or Agent of the Lae City Authority who:

(i) finds a person breaching the provisions of Clause 4 of this Rule; or

(ii) has reasonable cause or believe that a person has just breached the provisions of Clause 4 of this Rule, may order that person to remove and put in a bin or an area provided for depositing or dumping such litter, refuse, rubbish or other things.

(b) A person who refuses or fails to obey an order given under Sub-Clause (1)(i) and (ii) of this Clause is guilty of an offence.

Penalty: A fine not exceeding K100.00 or a term of imprisonment not exceeding 12 months or both.

(6) For the purpose of this Rule, the Driver or Operator of any Vehicle shall be deemed to be the agent of the registered owner of the Vehicle.

(7) POWER OF ARREST

(a) Notwithstanding any other law but subject to the provisions of Arrest Act chapter 339, this Rule applies to and in relation to an arrest for an offence made by or under this Rule.

(b) A policeman, an authorized office or agent of the Authority may, without warrant, arrest a person whom they believe on reasonable grounds:-

(i) is committing; or

(ii) has committed an offence provided for under this Rule.

(c) For the purposes of this clause a 'Policeman' means a member of the Police Force and includes Reserve Constabulary.

(2) FINES

The fines prescribed under this Rule, shall be payable to the Authority.

The Lae Urban Local-Level Government "On the Spot Fine Rule, 1996" ("Spot Fine Rule") applies to spot fines. Section 4 says this law applies to the Litter and Rubbish Dumping Law No. l of 1996.

Section 5 of the Spot Fine Rule says "Notwithstanding the Constitutional provisions relating to the imposition of a fine provides without a Court hearing, it is in the Provincial and National interest for the benefit of the health and welfare of the members of the community for an On The Sport Fine to be imposed as a form of penalty according to the offender's desire."

Section 6 Spot Fine Rule is relevant:

(1) Where it appears to an officer of the Authority, its Agent or a prescribed officer that a person has committed a prescribed offence as set out in the First Schedule against the LCA Rules referred to in Clause (1) of this Rule, the officers of the Authority, its Agent or prescribed officer may serve on the person a notice in the prescribed form to the effect that if he does not desire to have the matter determined by a court, he may pay to an officer specified in the notice within the time specified in the notice, the amount of the penalty prescribed for the offence if dealt with under this clause, as set out in the Second Schedule.

(3) A notice under subclause (1) may be served;

(a) personally; or

(b) by leaving it on or in, or attaching it to, the accuseds known premises.

(3) A person alleged to have committed an offence to which subclause (1) applies has the right to decline to be dealt with under this clause.

(4) For the purposes of subclause (3), a person who fails to pay, within the time specified in the notice or such further time as is allowed in any particular case, the penalty to which a notice under subclause (1) relates shall be deemed to have declined to be dealt with under this clause.

(5) Where the amount of prescribed penalty for an alleged offence is paid in accordance with this clause, no person is liable to any further proceedings for the offence.

(6) Payment, in accordance with this clause, of a penalty in respect of an alleged offence:-

(a) shall not be regarded as an admission of liability for the purposes of; and

(b) does not affect or prejudice, any criminal proceedings other than proceedings for the alleged offence or any civil claim, action or proceeding arising out of the same occurrence.

(3) This rule may:-

(a) prescribe the offences that are prescribed offences of the purposes of this clause by;

(i) setting out the offences; or

(ii) referring to the provisions creating the offences; and

(b) prescribe the amount of, and the method of payment of, the penalty payable under this clause for a prescribed offence.

(2) A penalty prescribed for the purposes of this clause for a prescribed offence shall not exceed;

(a) the maximum amount of penalty that could be imposed for the offence by a court; or

(b) a fine of K500.00, whichever is less.

Mr. Inkisopo for the respondents submits that the Lae City Authority employee, David, took action against both Priscilla and Sipili under Section 4(b) and Section 5 when he witnessed an offence being committed under s 4(b). He submits by giving Sipili an egg to shell and consume at the market place, she allowed Sipili who was under her control to throw away rubbish in a public place. Upon witnessing the offence being committed he took action under s 5(a), to order Priscilla to pick up the rubbish on four occasions but she refused. She was given an opportunity to pick up the rubbish and discard it in the rubbish bin and thereby avoid paying a spot fine. As a result she was taken to the security office where she continued to argue that she should be let off because Sipili was only a small boy and she should not be held responsible. But when "she realized that the securities could not let her off until she had paid her fine, common sense prevailed down on her that she should pay up something and secure her release and that of her son": See Mr. Inkisopo's written submissions at p.4. A spot fine was imposed and until the spot fine was paid, they were authorized to hold her and Sipili in the office and take steps to arrest and detain them to be dealt with under the normal court process. It is submitted the respondents acted lawfully as authorized by these rules and therefore, they cannot be in breach of any Constitutional right of the applicants.

Mr. Poka for the applicants submits that there is no evidence that Priscilla allowed or permitted Sipili to throw the rubbish. In any case, Sipili was only a small child and he is not criminally responsible for his own actions nor is Priscilla responsible for his actions.

Mr. Poka also submits the respondents unlawfully or improperly dealt with Priscilla under the Spot Fine Rule because they did not follow the correct procedure set out in Section 6(1) of that rule. That is, the officers of the City Authority failed to serve on Priscilla a notice in the prescribed form which provided to the effect that if she does not wish to have the matter determined by a court, she may pay the prescribed spot fine. He submits they simply proceeded to impose the spot fine without giving her an option to choose between a spot fine and a formal court hearing and enforced the fine by detention in the security office.

The constitutional validity of the Litter Rule and the Spot Fine Rule is not in issue before me. The two rules are self-explanatory but there appears to be some misunderstanding of the enforcement process of the two rules as evident from the submissions made by both counsels. I wish to re-state the enforcement process under the two rules as I understand them.

Firstly, Section 4 and Section 5 set out two distinct offences. Section 4 deals with disposing of rubbish in a public place or in some private property. Section 5 deals with a person who refuses to obey an order issued by an officer of the Lae City Council to pick up that rubbish and place it in a rubbish bin provided for the purpose.

Secondly, Section 4 deals not only with a person who himself discards rubbish but also any person who permits any other person under his immediate control to discard the rubbish. A parent who causes a child under his care and control to discard rubbish in a public place comes within the meaning of s 4(b). An offence is committed by the parent and not the child.

Thirdly, an authorized officer of the City Council who has witnessed an offence being committed or receives a report of an offence having been committed, has a discretion to either deal with the offender in the manner prescribed by the Litter Rule or the Spot Fine Rule. If the officer decides to deal with the offender under the Litter Rule, then the offender is arrested and taken to a police station without delay, to be detained and processed in a Court. The provision of the Arrest Act applies to apprehension, detention and arrest.

If he decides to deal with the offender under the Spot Fine Rule, then the procedure set out in that rule applies. If an officer deals with him under the Spot Fine Rule, Section 6(1) in using the word "may" gives a discretion to the officer to either give notice orally or in a prescribed form. The prescribed notice, oral or written should set out the relevant particulars of the offence alleged to have been committed, the penalty for the offence, and that person's right to choose between paying the prescribed spot fine or go to Court, and if the offender decides to have the offence dealt with under the Spot Fine Rule and not by a court, the penalty is in terms of the amount of fine imposed and the time allowed within which the spot fine may be paid. Upon being informed of these options or upon service of the prescribed notice, the offender may choose to pay the fine or decline to pay it. In the latter case, the offender will be deemed to have declined to be dealt with under the Spot Fine Rule.

Fourthly, where the person elects to be dealt by a court, either under Clause 6(1) or Clause 6(4), that person may be arrested and charged under Section 7 of the Litter Rule.

In the case before me, there is one flaw in the spot fine procedure set out in the rules. That is, there is no prescribed pre-forma for a formal notice of infringement under Section 6(1) of the Spot Fine Rule. The infringement notice contained in the Second Schedule is not such a notice because it does not contain the particulars I have set out above. An infringement notice is different from a notice issued under Section 7(1), the necessary ingredients of which I have set out above.

In the present case, no such formal notice under Section 6(1) was issued. But there is abundant evidence to show that Priscilla was verbally informed sufficiently of the two offences alleged against her and the penalty for the offence and her right to choose between going to Court and paying a spot fine. Instead of co-operating with the officers, by listening carefully to the advice given as to the law, her right to choose between the two options, and her obligations, and then making her decision promptly, she took issue with the officers and became confrontational and argumentative. By her state of anger and arrogance she completely insulated herself against good sensible advice.

This kind of behaviour is typical of some members of the public today who adopt a carefree attitude, and carelessly or deliberately congest our public places with rubbish. The unsightly scene of our public streets and market places is an indictment of the grossly carefree attitude of our people. Our streets are turning red with betel nut stains, our road signs painted with betel nut stains and grafitti and so on. Our public streets are filled with "illegal" vendors selling all kinds of goods and products such as betel nuts, smokes, peanuts and eggs, to name a few common items. The rubbish from these immediate consumable items keep the supply of litter on our streets and public places steady. Local authorities work tirelessly to clear up our public places and this kind of behaviour does not assist their effort. When they are caught by local authority officers, they are quick to deny responsibility, confront officers aggressively and abuse them. The more educated are quick to assert their Constitutional rights and even lodge claims against the State or local authorities seeking compensatory relief in amounts that are sometimes astronomical and bear little or no proportion to the damage they suffer. For instance, in the present case, in a case where the mother and child were detained for 30 – 45 minutes in a normal operating security office, and she paid a reduced spot fine of K14.00, a claim has been made for K27,800.00. This kind of behaviour of our citizens must change and if they cannot be changed from within themselves, then they must be made to. And this will only come about when local authorities strictly enforce litter laws according to law.

Our people must realize that the enjoyment of their Constitutional rights is not unfettered or unlimited, to the point that the rights of others to live in a healthy environment is ignored and trampled. They must not be so pre-occupied with the enjoyment of their own rights that they forget the Constitutional rights of others. The enjoyment of their Constitutional rights is "subject to respect for the rights and freedoms of others and for the legitimate public interest." This is one of the very fundamental principles of our democracy: see Preamble of the Constitution.

In the present case, I am satisfied that the detention of the plaintiffs for some 30 – 45 minutes inside the security office was caused by Priscilla's own indecisiveness as to whether she ought to pay the spot fine for the two offences under Section 4(b) and Section 5 and her unco-operative and confrontational attitude. Her detention was necessary to allow her to make up her mind, which she eventually did and paid a reduced fine. To the extent that she refused to pay the spot fine or delayed paying the spot fine to secure release from liability to prosecution, it was proper and lawful for the officers to detain her in order for her to be taken to the police station where she would be arrested and detained to be processed later in a Court. The fate of the child Sipili being small and naturally attached to his mother, was dependent on the fate of his mother. His detention was ordinarily consequent upon the detention of his mother and therefore, inseparable from the fate of his mother's case before this Court. In the circumstances, I do not think their detention was unlawful. For these reasons, I dismiss the plaintiff's claim with costs to the respondents.

Lawyer for the respondents: Legal Officer, Lae City Authority.
Lawyer for the applicants: Pryke & Bray Lawyers.