N1430

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS PURSUANT TO SECTION 57 OF THE CONSTITUTION;
AND IN THE MATTER OF AN APPLICATION BY KUNZI WASO

Lae: Jalina J
7 May 1996

CONSTITUTIONAL LAW - Constitution s 57 - Enforcement of rights and freedoms - Prisoner - Constitution s 36 - Freedom from inhuman treatment - Protection of the law - Constitution s 37(1) - Harsh or oppressive treatment - Constitution s 41 - Constitution s 46.

DAMAGES - Awards - Breach of human rights provisions of Constitution - Joint tortfeasors - Whether damages should be awarded against employees of the State responsible for breach of constitutional rights.

Facts

The applicant brought proceedings in person for enforcement of constitutional rights under s 57 of the Constitution claiming a breach of s 36, s 37(1), s 41 and s 46. The applicant alleged that the breaches had taken place near the main gate reception area at Buimo Corrective Institution and he identified warders at the prison as having committed the breaches. The evidence indicated an assault on the applicant by warders most of whom did not challenge the applicants evidence of assault.

Held

The applicant having established a breach of rights, damages should be awarded for the severe assaults inflicted on the applicant. A portion of the damages awarded should be paid by the warders involved on the basis that the State, as their employer, had not authorised any breach of rights and that making an award against the individuals involved might reduce the frequency of such conduct by policemen warders and others.

Cases Cited

Papua New Guinea cases cited
Kofowei v Siviri & Ors [1983] PNGLR 449.
Simbago v The East Sepik Provincial Police Commander and The State (Hinchliffe, J unreported Judgment, 25 February, 1994).

Counsel
Applicant in person.
Respondents in person.

7 May 1996

JALINA J: This is an application pursuant to s 57 of the Constitution whereby the applicant claims that his rights guaranteed under the Constitution have been infringed. He has completed and filed two "Application for Enforcement of Human Rights and/or Freedom" forms both of which are dated 30th January 1996. In the first of the two forms he claims breaches of rights and freedom from inhuman treatment and right to the protection of the law whilst in the second form he claims two additional breaches namely protection from acts which are otherwise legal but are harsh or oppressive and freedom of expression. He has not elected which of those two applications he wished to prosecute on. However, to the extent that his second application form contains two additional breaches it would appear to me that his second application has superseded the first application. I therefore propose to deal with the second application on that basis.

The Constitutional provision which the applicant alleges were breached are: s 36 (Freedom from inhuman treatment), s 37(1) (Protection of the law), s 41 (Proscribed Acts) and s 46 (Freedom of Expression).

The breaches are alleged to have been committed near the main gate reception area of the Buimo Corrective Institution and the persons alleged to have committed such breaches are warders Benedict Magiten, Martin Arorai, David Suagu, Boas Bukal and John Bully. The Jail Commander, of Buimo Corrective Institution, Samson Jaro, has also been named in some of the documents that have been filed but in view of evidence before me which show that he was on recreation leave at the time of the alleged breaches of Constitutional rights, I find at the outset that he is not liable.

From the evidence, including statements filed by the applicant and his witnesses, it appears that the applicant was assaulted on 25th and 26th January 1996 respectively. On the 25 January he was assaulted by Warders Benedict Magiten, Martin Arorai, Malai Ndrohas, Deni Tiki and Sergeant Boas Bukal over his refusal to co-operative with them in removing a necklace on which he had his keys. He was surrounded and kicked with work boots and also punched. It appears that the applicant did not receive any injuries during this assault.

The assault on the 26th January appears to have taken place through a misunderstanding of a swear word for female genetalia which the applicant had directed at a fellow prisoner Sarius Yawas on 25th January when Sarius asked the applicant what had happened to him (the applicant) as he was returning to cell No. 5 after being assaulted by the above warders. An officer, Thomas Cain who was with Sergeant Henry Marita at the time heard and asked the applicant if he had used the above swear words to warders. The applicant explained to them and they let him go but it seems that the warders still appear to have felt on the 26 January that the above swear word was directed by the applicant at them; hence the assault that morning. This is clear from what Benedict Magiten is alleged to have shouted to the applicant as he caused the applicant to run and asking him if he ever ate his mother’s vagina because, as will be seen below, there was nothing provocative the applicant did or said that morning that would have prompted the assault.

At about 8.30 that morning, as the inmates were having their breakfast, a sergeant called for an inmate by the name of Kunzie and the applicant identified himself to the sergeant. The sergeant took him aside and told him to see him at the main compound gate after breakfast but while he was still having his breakfast he heard his name being called so he left to attend to the call. The gatekeeper opened the gate and told him to go to the reception wing. A warder by the name of Benedict Magiten shouted to the applicant to run towards him. As he was running towards Benedict, Benedict hid behind corrugated iron fence and he hit the applicant on the shoulder with a gas gun as he turned a corner. He felt a sharp pain and Benedict tried to hit him a second time but the applicant managed to escape and as he was running, Benedict chased the applicant from behind yelling to the applicant to run and asking him if he ever ate his mother’s vagina. The applicant continued towards the reception building the gate of which was made of corrugated iron. He could not see what was behind the gate. Then a warder by the name of Martin appeared in front of him armed with a sawn piece of timber. As he stopped to look, he realised that he had no means of escape so he ran towards the gate where Martin was. Martin swung at him and the timber broke into two pieces and with the other piece Martin hit him on his left wrist. He then struggled into the reception building. He was half way in the reception building when the reception clerk David (I think it was David Suagu) kicked him on his stomach causing him to fall backwards whereupon Martin swung the piece of timber again hitting him on the left side of his shoulder. While he was being attacked by David and Martin, other warders rushed in all armed. A reception clerk John hit him on the head with a piece of timber and he felt that he was bleeding. He was then surrounded and attacked indiscriminately by warders with kicks, punches and even with sticks. He covered his face with his hands. He realised that he was loosing a lot of blood from his head injury and collapsed unconscious. He could not remember when he was rushed to Angau Hospital.

After treatment he was taken back to Buimo Corrective Institution and left at the reception to walk to the prison’s compound. As he was walking he was taken aside and seated on a piece of log and warned by one Boas (I think it was Boas Bukal) that he was targeted by warders and the police task force and that if he did anything he would be killed. After that Boas ordered a guard to lock the applicant in the solitary confinement cell. There is no medical report on the applicant’s injuries in spite of a formal request from the National Court, Lae through letter dated 7th February 1996 requesting the Medical Superintendent of Angau Memorial Hospital to produce one in Court on 7th March. There is however an affidavit from one Graham Ben, a Clerk at the National Court Lae dated the 29th January, 1996 deposing to what he saw on the applicant’s person when he visited him at the Buimo Corrective Institution upon direction from Hinchliffe, J. This was three (3) days after the alleged assault. Graham Ben says:

"At Buimo Jail, the prisoner Kunzi was taken from the main compound down to the visitor’s area where myself and other court officer Mr Richard Daniel and Mr Jave Tibong were sitting along with OIC, Tom Ovadu who is in charge of the reception at Buimo Jail.

I observed from the prisoner when he came in to see us that he was not walking well. His left knee was badly injured and he could not stretch it. He had his left hand in a sling and couldn’t move his left shoulder. On the left side of his head I saw a plaster. Mr Richard Daniel then removed the plaster and I saw the cotton which was dressed on top of the cut which was stitched at the hospital. Stiches were hardly seen and I could not count them. He’s right eyebrow was also swollen. There were bruises on his body, one on the left hand muscle, one on the left knee and one on the back of the left knee. At that moment he was in great pain. Lastly I could not see any bleeding on his body."

The above report on the applicant’s physical condition having been made only three (3) days after the alleged assault, plus a medical report is not really necessary to prove whether he was assaulted or not since his physical condition clearly shows that he was assaulted by someone. Except for Warder John Bully, Warders Boas Bukal, Benedict Magiten, Martin Arorai, and David Suagu chose not to cross-examine the applicant which means that the applicant’s evidence/statement regarding the incident remain unchallenged. Furthermore, again apart from Warder John Bully, who cross-examined Jerry Kaukesa, warders, Boas Bukal, Benedict Magiten, Martin and David Suagu chose not to cross-examine Anam Abo, Tom Maino, Martin Akis, Jack Wahem and Dominic Yengi on their respective evidence/statement thus leaving what they said regarding the alleged assaults unchallenged.

Instead, each of the warders (except John Bully who denies being involved) in their respective affidavits and their submissions give different versions of what happened that day and it also appears from what they say that he was an uncooperative applicant and their submission give different versions of what happened that day and it also appears from what they say that he was an uncooperative inmate and as such it was alright to do what they did. Some of them even appear to paint the picture of the applicant being injured in a gang fight among inmates on 24th January yet neither the applicant nor his witnesses mention anything about the applicant receiving serious injuries during that fight. From the affidavit of Martin Arorai and Boas Bukal regarding a conversation over his refusal to remove a necklace and Martin allegedly seeing the applicant running behind him on 26th January it clearly appears that he was not injured in the gang fight.

On the material before me I am inclined to disbelieve the Warders Boas Bukal, Martin Arorai, Benedict Magiten and David Suagu. I place little weight on what they have said. On the balance of probabilities I find that these warders and others assaulted the applicant and the injuries he received as seen by Graham Ben at the Buimo Corrective Institution on 29th January were sustained by him during such assaults.

From his own evidence as well as the supporting evidence of David Suagu and the fact that John Bully stood by his non-involvement and challenged the applicant and Jerry Kaukesa which demonstrated that he was absent from the Buimo Corrective Institution on the day in question (including 24 and 25 January) as he was on a two week break in the Chimbu Province, I find on the balance of probabilities that he (John Bully) was not involved.

I sympathise with and appreciate the difficult and trying conditions warders work under. They are given the task of trying to contain and reform members of society who ended up in the Corrective Institution because of lack of respect for others. Whatever reason inmates end up in Corrective Institutions for basically start from their lack of love for God and their fellow men. I can also appreciate that when an inmate becomes stubborn and refuses to obey lawful orders and uses insulting words to the effect that they should eat their wives vagina can cause one to lose temper but in this case the warders have gone beyond what was required to instil discipline and obedience. They have gone beyond what was lawful to do and as such their action was unlawful by virtue of s 41 of the Constitution. I accordingly find that the applicant’s rights under s 36 and 37(1) of the Constitution have been breached. I however dismiss his claim for breach of his rights under s 46 (Freedom of expression) as there is no evidence to show that the warders prevented him from exercising that right/freedom.

I am of the view that damages should be awarded and to assist me with the assessment of such damages I refer to Simbago v The East Sepik Provincial Police Commander and The State (Hinchliffe,J Unreported Judgment dated 25 February 1994) which was a case that involved severe assaults by the police on the applicant. The trial judge awarded K1,000.00 in general damages, K1,000.00 in exemplary damages and K1,500.00 for breach of Constitutional rights. In view of the severe assaults in this case I with respect

General Damages	K1,000.00	
Exemplary Damages	K1,000.00	
Breach of Constitutional Rights	K1,500.00	
Total	K3,500.00	

The K3,500.00 shall be paid with interest at 8% per annum from the issuing of the application until today.

In the past the Courts have been ordering the State to bear the financial burden on the principle of vicarious liability. This has resulted in the ordinary tax-payer footing the bills. It has resulted in moneys that could have been used on development projects such as health, and education being used to pay damages. I am therefore going to differ from my brethren. I am of the opinion that when a member of the disciplined forces, be he a soldier, policeman or warder, goes beyond the bounds of the law and ends up breaching someone’s Constitutional rights, then he should be made to personally bear the consequences of his actions. The reason for this is simple. The State does not say to the officers on duty "you go and beat up that person badly, you go and burn houses and kill pigs and chickens and rape women". Not at all. Officers are not only told but expected to go and carry out their duties within the bounds of the law. What happens in the field of operation and how far one should go in carrying it out is in the hands of the individual. I believe that by awarding damages against officers individually will result in not only the amount paid by the State in damages being reduced but may also reduce the frequency of unruly behaviour by policemen and warders and others these days. In Kofowei v Siviri & Ors [1983] PNGLR 449 both general damages and exemplary damages for assault were awarded against each police officer. 

I accordingly order that Benedict Magiten, Martin Arorai, David Suagu and Boas Bukal shall each pay K875.00 plus interest. The interest component shall be assessed by the Assistant Registrar, National Court, Lae and be shared equally.

The applicant’s costs shall be taxed if not agreed and shall also be shared equally.
Finally, I order that the damages together with interest and costs shall be paid through the Assistant Registrar, Lae and shall be made at the rate of K50.00 per fortnight until it is completed. An individual may pay off his share quickly if he so wishes.

Applicant in person.
Respondents in person.