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Sogoi v Negerefa and The State [1996] PGNC 52; N1482 (15 November 1996)

Unreported National Court Decisions

N1482

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 60 OF 1995
BETWEEN
FAMA SOGOI - PLAINTIFF
AND
JOHN NEGEREFA - FIRST DEFENDANT
AND
THE STATE - SECOND DEFENDANT

Mount Hagen

Injia J
26 June 1996
15 November 1996

TORT - Unlawful assault - Victim - Escapee from police custody - Committed by members of the public effecting “citizens’ arrest” - Whether State vicariously liable.

Held

1. Citizens are under a duty to assist police in the investigation of crime and apprehension of alleged criminals or escapees such as by effecting “citizens arrest” but force used must be reasonable.

2. The State is not vicariously liable for the torts committed by citizens in effecting “citizens’ arrest” except where there is clear evidence to show that a State’s agent or servant authorised the citizen to assist them by effecting “citizens’ arrest”, etc.

Cases Cited

James Koimo v The State N1322 (1995)

Counsel

D O’Connor for the Plaintiff

M Pokia for the Defendants

15 November 1996

INJIA J: The Plaintiff claims damages for unlawful assault allegedly committed by the First Defendant who is a former policeman. The assault is alleged to have been committed on 8 February 1996 in the course of effecting an arrest upon the Plaintiff between Goroka and at Henganofi in the Eastern Highlands Province. The Plaintiff alleges the First Defendant punched and kicked him all over his body and hit him with a wheelspanner on his head which caused his nose and mouth to bleed. He alleges he sustained injuries to the head, spleen and numerous lacerations and bruises and contusions.

The Defendants dispute both liability and quantum of damages. The Plaintiff called oral evidence. He gave oral evidence supported by David Zuka, Emes Kas and Issac Nomuka. The affidavit of Dr LN Kaupa sworn 7/3/96, [Exhibit “A” (Plaintiff)] was admitted into evidence by consent.

The Defendants called John Negerefa, (First Defendant), Const. Fano Kurumo, Senior Constable Martin Famundi and former police Constable Billy Caukz Onkau. Billy Onkau was cross-examined on his affidavit sworn 30/3/96 which was admitted into evidence by consent. (Exhibit “B” Def.)

A good proportion of the total evidence of events leading up to the alleged instances of unlawful assault is not in dispute. On the undisputed evidence, I make certain findings of fact. In the course of setting out these undisputed facts, I set out the disputed facts and make findings of fact on them later.

It is not disputed that on the material date, that is 8/2/94, the First Defendant was based at Henganofi Police Station. He, Const. Onkau and another policeman drove to Goroka to drop of fellow police prosecutor Const. Manbo in a police suzuki van driven by the First Defendant. Const. Onkau was seated next to the driver on the front seat. After dropping off Const. Manbo, they drove to Goroka market where they spotted the Plaintiff. They had suspected the Plaintiff as being involved in an armed hold-up and kidnapping on 7 December 1993 at Bena Bridge. In that hold-up, some policemen including the First Defendant were held-up and stripped off their uniforms. Upon seeing the Plaintiff, they stopped the vehicle and approached the Plaintiff and asked him to accompany them to the Police Station in the police van for questioning. The Plaintiff got into the car voluntarily and they drove to Goroka Police Station. There they checked his bag. From there they drove to the PTB yard for refuelling. On the way, the Plaintiff asked them twice why they were taking him and they told him that he was wanted for questioning in relation to the hold-up at Bena Bridge. Not having received a satisfactory answer, he got upset and decided to escape. Whilst the vehicle was being refuelled at the PTB yard and whilst he was not being watched, he dashed for freedom followed in close pursuit by the First Defendant and Const. Onkau. They chased him to the West Goroka Shopping centre where they caught up with him.

As to how he was apprehended and placed back in the car, there is different versions from both sides. The Plaintiff says:

“as I ran away, the men surrounded and held me. John Negerefa pushed me and I fell down. He arrested me, put me in the police vehicle.”

He admitted that when he ran away, members of the public also ran after him and one of them caught him and handed him over to the First Defendant but denied that they punched him. He maintained that the First Defendant hit him at the stage where he was handed up by members of the public.

The First Defendant supported by Const. Onkau denied any assault on the Plaintiff at this stage. They said the crowd helped them chase after him and tackled him to the bitumen. As a result he sustained bruises and bleeding on his face. Upon seeing this, they told members of the public not to continue assaulting him. From there, they (First Defendant and Const. Onkau) took him in a police patrol car to Goroka Police Station where he was detained.

It is not disputed that the Plaintiff was taken to Goroka Police Station. From there the First Defendant and Const Onkau took the Plaintiff in the Suzuki and headed for Henganofi Police Station. As to what happened between them on the way, there is different versions. The Plaintiff said that on the way, he was further hit by the First Defendant with a wheelspanner at Bena Bridge. Further down, he asked them to drop him off at the road junction leading to his village but they refused and stripped him off his clothes. Again the First Defendant punched him on his back and stomach with a wheelspanner. The First Defendant and Const. Onakau deny these assaults took place.

As to what happened upon arrival at Henganofi Police Station, there is again different versions from both sides. The Plaintiff said the policemen stripped his clothes and took him inside the Police Station. There, another Sepik policeman punched him. Also the First Defendant punched him on his back and stomach with a wheelspanner. David Zuka said he observed him from a distance when he came out of the police van. He had his clothes stripped off and was naked and appeared to be in pain and bleeding on on his nose. He saw the First Defendant hit the Plaintiff with a wheelspanner. Similar evidence was given by Emes Kas and Issac Nokuka.

The First Defendant admitted he questioned the accused at Henganofi Police Station about the robbery at Bena Bridge and asked the Plaintiff for his police uniform. The Plaintiff did not co-operate with him by remaining silent. The First Defendant said:

“I asked him about my police uniform. He said nothing. I faced towards him and I asked him “can you speak out or not?” I slap him on the shoulder and told him to speak up. He said I do not know anything. From there, Const. Billy Onkau cautioned him, told him of his rights and arrested him and locked him up in the cell.”

The First Defendant denied stripping the Plaintiff and hitting him with a wheelspanner.

Const. Kuromo gave similar evidence. But he said the only assault that he saw committed by the First Defendant in his presence was when the First Defendant pushed the Plaintiff on the shoulder to the cell.

Const. Martin Famundi also gave similar evidence but he denied seeing any assault committed upon the Plaintiff. He contradicted the First Defendant by saying he did not see the First Defendant assault the Plaintiff on the shoulder.

As to what happened after the accused was questioned, arrested and locked up at Henganofi Police Station, there is not much dispute. The Plaintiff said, and the defence witnesses conceded, that the Plaintiff had sustained injuries all over his body and that he required medical attention. He was detained at the Police cells for two nights. He was very sick and his body swollen up and he had to be taken to the hospital. He was admitted under close guard at the hospital. He was released after a couple of days.

On the disputed parts of the evidence, it is a question of which version of event I should accept. Much turns on the credibility of the witnesses for both sides and the weight to be given to their evidence.

As to the assaults committed at West Goroka, it is the evidence of the Plaintiff against the two policemen. It is a common occurrence in the Highlands towns and even in some coastal towns that the public tend to corporate with law enforcemrnt agencies like the police in apprehending remandees or suspected criminals who dash for freedom. That is not wrong because all citizens are duty-bound to assist police in the investigation of crime and apprehending of alleged criminals or prisoner escapees. They have a right to effect what is called “citizens arrest” but they must use reasonable force. If for some reason the citizen effecting “citizens arrest” uses unreasonable force, the State is and cannot be held vicariously liable for they are not agents or servants of the State within the meaning of those words under the Wrongs Act Ch 297.

On the evidence, I find that the members of the public chased after the Plaintiff and man-handled him and apprehended him by knocking him to the bitumen. As a result, he sustained some injuries including his clothes being torn or stripped. Const. Negerefa and the other two policemen may have applied some force at some stage to bring the Plaintiff under their control. I presume such force to be reasonably necessary to contain an explosive and unco-operating suspect who all along showed signs of disrespect and challenge to their lawful authority. I find that the Plaintiff has made up everything else to put the blame on the First Defendant, who no doubt is an easy target. The First Defendant played a leading role in effecting the Plaintiff’s apprehension because of the former’s involvement as a victim at the Bena Bridge robbery in which the Plaintiff was alleged by the First Defendant to have been involved.

I also find that the assault at Bena Bridge and the stripping and assault near the road junction leading to his village has also been fabricated.

The condition of the Plaintiff when he arrived at Henganofi Police Station is not disputed. The First Defendant has admitted he slapped the Plaintiff when he refused to answer his questions. That is a voluntary admission which comes from a truthful witness. A slap on the shoulder was intended to make the Plaintiff speak. I pay little or no regard to the denial of the slap by Mr Onkau. Perhaps Mr Onkau didn’t see the slap. But I find that the slap was unnecessary and wrong. On the basis of his admission, I find that by slapping the Plaintiff, the First Defendant committed unlawful assault. That is all that the Plaintiff will be entitled to recover damages for.

Just because the First Defendant has made this admission does not follow that it is likely that he committed all the other ealier assaults complained of by the Plaintiff.

I find the First Defendant to be a truthful witness and accept his evidence. His evidence is supported by the other defence witnesses.

The Plaintiff’s case is that the First Defendant had a motive for master-minding and effecting the unlawful assault. The First Defendant does not deny that he was a victim of the Bena Bridge armed robbery. However, when the Plaintiff was first picked up at Goroka market, the First Defendant did not manifest any personal malice towards the Plaintiff. He executed his duties faithfully and did not abuse his authority. The Plaintiff was simply asked to accompany them to the Police Station for questioning. The Plaintiff complied voluntarily. They went to the Goroka Police Station and no threat or assault took place. Then they drove to Goroka PTB yard and no threat or assault took place along the way. It was the Plaintiff who calculated his innocence and escaped. The First Defendant and the other two policemen could not catch up with him because he dashed for freedom without warning when the police were busy attending to refuelling. The public gave the chase and spurred everything on him. I am satisfied that he was bashed up by the public and stripped off his clothes in the process. I am satisfied that he suffered all the serious injuries at the hands of the public. When he arrived at the Henganofi Police Station, he was seen in that condition.

The State cannot be held vicariously liable in law for the actions of its ordinary citizens who assist in enforcing the law except where there is clear evidence that the State’s agent or servant authorized the citizen to assist them enforce the law. In the present case, there is no such evidence. The members of the public caught the Plaintiff before the two policemen arrived, belted him up and handed him over to the two policemen.

On the evidence, I find for the Plaintiff against the First Defendant to the extent that he slapped the Plaintiff on his shoulder in order to force him to answer the questions. The medical report shows some serious injuries but those injuries would not have been caused by the slap. Dr L Kaupa’s affidavit answers Dr Mathew’s full medical report on the Plaintiff which states:

“Date of Admission 15/02/94

Date of Discharge 21/02/94

The above was admitted, after alleged to have been assaulted by some policemen a week earlier on 06/02/94. He claimed to have been punched over the abdomen especially left side. He later developed watery stool associated fever and generalised body pain. On admission young adult, not in distress but obviously pale (H), however haemodynamically stable.

Abdominal examination revealed, moderate tenderness, maximum at left upper quadrant with positive sign of fluids in the abdomen.

The provisional diagnosis of spleenic injury was made, and suspicious of typhoid and malaria were excluded. He was treated conservatively with IVI fluids, chloramphenicol and chloroquine course, however ceased when typhoid and malaria were excluded.

He improved over the next four days and subsequently discharged on the 6th day.

Today I have examined him, he is normal.

Please do consider the trauma he received, hospitalization, and deal accordingly.

He is expected to live his normal daily life unless insulted again in future.”

The slapping on the shoulder by the First Defendant would not have produced any serious injury or permanent disability. I allow nominal damages in the sum of K300.00.

The Plaintiff claims K18,000.00 for exemplary damages. I consider this amount to be excessive. I award K50.00 for exemplary damages: See James Koimo v The State N1322 (1995).

In total, I award damages in the sum of K350.00 inclusive of exemplary damages plus costs. I order that this judgment be satisfied by the Second Defendant because the First Defendant committed the assault whilst purporting to perform his lawful duties: Wrongs Act Ch 297 S. 1 (4).

Lawyer for the Plaintiff: DL O’Connor Lawyers

Lawyer for the Defendants: Solicitor General