Kandapen v Romabe, Commissioner for Police [1995] PGNC 20; N1336 (14 June 1995)

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WS 606 OF 1994
THERESA KANDAPEN - Plaintiff
v
DONALDSON ROMABE - First Defendant
COMMISSIONER FOR POLICE - Second Defendant
THE STATE - Third Defendant

LIABILITY OF STATE FOR ACTIONS OF ITS SERVANTS - police shot and killed deceased - in course of duty - damages - dependency claim - exemplary damages - State sanctioned murder.

WOODS J: This is a dependency claim for the death of Mathew Liu who was shot by a member of the police force near Laiagam in the Enga Province on the 9th February 1993. The deceased was admitted to hospital but died some days later on the 13th February from the injuries received. The Plaintiff is the widow of the deceased and she is claiming for herself and the children of the marriage between herself and the deceased and also for the mother of the deceased. The claim is against the first defendant who it is alleged was the police officer who actually shot the deceased, and the Police Commissioner as the Person responsible for the operation of the Police, and the State being the employer of the first defendant. It is alleged that the first defendant shot the deceased while he was acting in the course of his duty as a police officer.

It is alleged that the deceased was travelling with one Peter Wanis on the road from Laiagam to Porgera on the 9th February when Peter was ordered over by the police and when the vehicle stopped the police came and shot the deceased and Peter Wanis. The State and the other defendants have failed to defend this claim properly and judgement was signed against the State and the other defendants. This case has now come before me for the assessment of damages. The State has appeared on this assessment and has not sought to set aside the default judgement but has negotiated with the lawyer for the plaintiff on the general damages on the dependency claim and agreement has been reached on those damages which are to include the loss of income dependency both past and future, and also to cover the estate claim and interest and costs.

The figure agreed for damages as above is K38,998.66 which is to be distributed at follows:

Plaintiff	K23,923.19
Mother Ling Nambu	K1,053.24
Balance to be invested by the Registrar for the children as follows:
Lawrence	K4,741.67	Until he attains the age of 18 years estimated to occur on 1st June 2000
Cathy	K2,563.63	Until she attains the age of 18 years estimated to occur on 1st June 2002
Betty	K3,108.98	Until she attains the age of 18 years estimated to occur on 1st June 2004
Bruceley	K3,608.05	Until he attains the age of 18 years estimated to occur on 1st June 2005

There is also a claim for exemplary damages and there has been no agreement on that so submissions were presented to me. The Plaintiff is referring to the cases of Dambe v Peri & The State [1991] and the Helen Jack v Marius & The State [1992] PNGLR 391 where exemplary damages were awarded where police had killed people in the course of their duty. In those cases an award of K30,000 was awarded as exemplary damages. This is another case where there appears to have been a cold blooded shooting for no reason. The State has sought to bring no explanation as to why these men were ordered to stop and then shot, there is no evidence that they were breaking the law nor that they were wanted felons.

In recent cases of what is popularly called police raids on villages this court has declined to award exemplary damages against the State for what appeared to have been action in the independent discretion of the police concerned. In those cases this court has been reluctant to find that the People as embodied in the Preamble to the Constitution as the State can be punitively responsible for assault and destruction conduct which appeared to be conduct in the independent discretion of the individual police concerned. However here we have a cold blooded shooting by police acting on duty and no challenge by the State to the fact that the policeman was acting in the course of his duty and had good reason to stop the deceased nor that the deceased failed to obey the police officer’s order or request and we have a family that has lost its father. In such circumstances this court will follow the lead given in the Dambe and Helen Jack cases referred to above and award a further K20,000 damages against the defendants.

I also feel that this matter requires further action. This case involves what can only now be described as a cold blooded murder committed by the first defendant the police officer Donaldson Romabe, both he and the State having declined to challenge the liability and having provided no background story explaining the action. Yet there is no evidence that the first defendant has been charged or even disciplined. Instead it has been intimated to the Court that he is still a serving police officer. That is a scandalous state of affairs and brings discredit on the police force and the operation of the State services. Does it mean he is still walking the streets in a uniform committing murder under the sanction of the State and the State is left to pay the costs. This demands an explanation from the Commissioner of Police at the least, however this file will be send to the Public Prosecutor for consideration of appropriate action and also to the Ombudsman for an investigation if nothing is done to protect the people of this country against State sanctioned murderers in uniform.

I order judgement against the first and third defendants in the sum of K58,998.66.

National Court of Papua New Guinea

Kandapen v Romabe, Commissioner for Police [1995] PGNC 20; N1336 (14 June 1995)