[1998] PNGLR 346

PAPUA NEW GUINEA

[national court of justice]

HELEN BIA SAM

v

PAUL HAUROM, HENRY TOKAM & THE STATE

waigani: kapi dcj
19, 23 June and 30 October 1998

Damages – Assessment – Assault – False imprisonment – Exemplary damages – When appropriate against member of Police Force.

Constitutional law – Assessment of damages – breach of s 32, 36 (1), 37 (3) & (4), s 42 & s 52 of the Constitution.

Facts

The plaintiff, a female from the Goilala area but married and living at 14 Mile in Port Moresby brought an action against an identified police officer and the State for assault, unlawful arrest, false imprisonment and breaches of her Constitutional rights.

A default judgment was entered on behalf of the plaintiff who alleged that the police raided her house in the early hours of the morning of 31 July 1993 without a search warrant. In the house at that time were also her husband and father. Here she was assaulted and threatened in various ways and then taken to the 14 Mile police station and the first defendant had sexual intercourse with her twice. She was then detained in the police cells for a number of hours without any charges being laid.

Damages were sought for assault, false imprisonment, breach of constitutional rights and exemplary damages.

Held

1.	The State was liable for the damages of:

a.	assault – K1,000.00

b.	False imprisonment – K1,000.00

c.	Breach of constitutional rights – K5,000.00

2.	Since there was no evidence to show that the State had approved of the actions of the first defendant, exemplary damages of K1,000.00 were awarded against the first defendant personally.

Papua New Guinea cases cited

Andrew Nanevarsh v Paul Ofoi, George Avali, The Police Commissioner and The State, (Unreported) 1996 N1429.
Jashihe Wariholo v Henry Tokam, Commissioner of Police and The State (1997) (Unreported) N1563.
Kamo v PNG [1995] PNGLR 535.
Toglai and Others v PNG [1995] PNGLR 43.

Counsel

P Parkop, for the plaintiff.
H Polume, for the defendants.

30 October 1998

Kapi dcj. In this action the plaintiff claims damages following alleged unlawful assault, unlawful arrest and false imprisonment by the police. She also claims compensation for breach of constitutional rights under the Constitution. 

A default judgement has been entered against the defendants and the matter came before me for assessment of damages.

The plaintiff gave evidence and called her father Bia Maini and her husband Gideon Sam to support her claims. The defendants did not call any evidence. I find the following facts from the evidence that was called before me. The plaintiff comes from Fane Village in the Goilala area, is married with one child and lives at 14 Mile outside Port Moresby. On the early hours of 31st July 1993 while she was sleeping with her husband and father, the first defendant kicked open the door of the house and woke up all the residents. He did not obtain a warrant of search and was armed with a gun. Apparently he was in search of a man by the name of Aia Puni who is believed to be a suspect. This person was not present at the time of the raid and the plaintiff, her husband and father denied that they knew the person. 

The first defendant then assaulted and threatened the plaintiff and forcefully took her and her father Bia Maini to the police vehicle. They were taken to the Goilala Settlement and were forced to run towards the settlement. The plaintiff’s father was left at the settlement and the first defendant then took the plaintiff back to the police vehicle and was taken back to the family house where the first defendant threw all their belongings all around the floor. The plaintiff was later taken to the police station at 14 Mile. She was not charged with any offence at the station. 

At the station, the plaintiff was subjected to abuse and the first defendant had sexual intercourse against her will. She was threatened with gun. The first defendant had sexual intercourse twice. She was later taken to the cell and detained there without laying any charges. She was left in the cell without any food until the following day when a member of CID by the name of Ben Kalup released her without any charges.

Counsel for the plaintiff submits that the plaintiff is entitled to damages for:

(a)	assault;

(b)	false imprisonment;

(c)	breach of constitutional rights; and

(d)	exemplary damages.

Counsel for the defendants does not contest the heads of damages under (a) - (c) but contests the quantum of damages under each category. In respect of damages under (d) she submits that the appropriate damages under this head should be awarded against the first defendant only as there is no evidence to suggest that the second defendant or the third defendant had any encouragement of what the first defendant did. This was simply an action of the first defendant acting on his own.

Assault

The evidence of assault in the evidence relate to physical assault on the plaintiff by the use of the butt of the rifle and threat of gun at the station. There is no evidence of the extent of any injuries received by the plaintiff at the time. There is a doctor-examined evidence of the plaintiff but the plaintiff did not call the doctor nor tender any medical report of the injuries. Therefore, there is no evidence of any physical injury or the extent of any psychological or mental injury caused to the plaintiff. She has stated in the evidence that the experience has caused much fear and she lives in fear of the police. I take this into account in assessing the damages. I assess these damages at K1000.00.

False Imprisonment

In this regard the plaintiff was kept in custody for the most part of the day on the 31st July and all night at the cell until the following morning when a CID member released her. The period of imprisonment was over a 24-hour period. I also take into account that she is a female and during the whole period she made no contact with her husband or relatives. I assess damages at K1000.00.

Breach of Constitutional Rights

In this case the plaintiff alleges breaches of her constitutional rights under s 32, s 36 (1), 2 37 (3) & (4), s 42, s 49 and s 52 of the Constitution. In considering this head of claim, I bear in mind that these are claims under the Constitution and these rights are given special status and protection under our law and any award of damages must reflect their importance. I take a serious view of violation of privacy and the indignation brought to the plaintiff in respect of sexual intercourse against her will. In assessing the damages under this head, I have taken into account awards made in respect of breach of constitutional rights in other cases (Andrew Namvash v Paul Ofoi, George Avali, The Police Commissioner, The State (Unreported judgement of the National Court, dated 7th May 1996, N1429), Jashihe Wariholo v Henry Tokam, Commissioner of Police & The State (Unreported judgement of the National Court dated 27th February 1997, N1563), Kamo v Police [1995] PNGLR 535, Toglai Apa & Others v PNG [1995] PNGLR 43). I assess damages in this case at K5,000.00.

In respect of claim for exemplary damages, I will award such damages against the particular member of the Police Force in the present case. I am not satisfied that there is any evidence that the Commissioner or the State had approved of the conduct in this particular case (see Toglai Apa & Others v Papua New Guinea (supra). I assess the damages at K1,000.00 for exemplary damages against Paul Haurom.

There will be judgement for the plaintiff in the sum of K8,000.00 plus interest at 8% from the date of writ to the date of judgement. The same rate shall apply from the date of judgement until final judgement.

Lawyers for the plaintiff: Powes Parkop.
Lawyers for the defendants: Solicitor General.