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More v The State [1998] PGNC 159; [1998] PNGLR 290 (26 February 1998)

[1998] PNGLR 290

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DALIN MORE

V

THE STATE; AND
CHIEF INSPECTOR JIM ONOPIA; SGT. JOE LUAGE; CONSTABLE DALA MENTAI; AND
CONSTABLE MIAMEL DAGE

MOUNT HAGEN: INJIA J
12 June 1997; 26 February 1998

Facts

A police squad, headed by the second defendants, entered the plaintiff’s village pursuant to a valid search warrant. The warrant entitled the policemen to search houses and recover unlicensed firearms and ammunition. In the process of their search two unidentified policemen assaulted and raped the plaintiff, an adult female.

Section 623 of the Criminal Code Act dealing with civil liability for criminal wrongs provides:

"Except when expressly provided, the prosecution or conviction of a person for an offence does not affect any civil remedy that any person aggrieved by the offence has against the offender".

And Section 1(4) of the Wrongs (Miscellaneous Provisions) Act; provides:

(4) Where functions are conferred on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities for the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

This was an ex parte trial.

Held

1. Whilst the policeman’s title and uniform is no shield against criminal prosecution for criminal offences, the State as their employer cannot be held liable for the crimes, including rape, committed by the policemen in the course of performing their duties. Caind v Doyle [1946] HCA 38; (1946) 72 CLR 409 applied.
   
2. Rape is a form of battery for which the victim is entitled to sue for damages against the offender, as it is an actual affliction of harm of unlawful physical contact with the other’s body.
   
3. The State may be held vicariously liable for civil wrongs, such as torts, committed by its employees or agents such as policemen, in the course of performing their duties provided the wrongful action was committed whilst performing or purporting to perform their functions.
   

Section 1(4) Wrongs (Miscellaneous Provisions) Act. Daniel Waikali v Bram Moea & The State, N1484 (1996) followed.

4. But since the two policemen were never identified and prosecuted for the crime of rape committed and for tort, the plaintiff is not entitled to a remedy. Action dismissed.
   

Papua New Guinea cases cited

Daniel Waikali v Bram Moea & The State N1484 (1996).

Other case cited

Caind v Doyle [1946] HCA 38; (1946) 72 CLR, 409.

Collings v Wilcock [1984] 3 All ER 374.

Counsel

P Kopunye, for the plaintiff.
J Kumura, for the defendants.

26 February 1998

INJIA J. This is an ex-parte trial. Leave for the plaintiff to proceed ex-parte was granted after the defendant’s lawyer failed to attend on the date of trial. Evidence was completed on 24th September 1997 and the plaintiff’s lawyer was directed to file written submissions, which he did on 12 December 1997.

On issue in the trial is both liability and quantum of damages. The plaintiff is an adult female aged 18-20 years at the time of the filing of the writ (31/1/96). She comes from Sirikoge village, Kepai, Chuave in the Simbu Province. In the writ, she claims to have been assaulted and raped in the course of a police search and raid in her village on 27 December 1994. She claims policemen based at Goroka, headed by the second defendant, went on a widespread rampage and destruction of properties, burning down houses, killing animals, etc in the course of which she was assaulted and raped. These policemen had come to stop a tribal fight, which was in progress in the area. She claims compensatory damages and exemplary damages.

The defendants, in their joint defence, filed on 27 August 1996, admit that they entered the area pursuant to a Search Warrant obtained to search the residence of one Tapie Unga and nearby homes to recover unlicensed firearms and ammunition. But they deny committing the rape and destroying properties.

The plaintiff’s evidence consists of the affidavit evidence of the plaintiff sworn on 19 May 1997, Tom Kiom Kupu Peter sworn on 2 May 1997 and Thomas Gotuno sworn on 25 May 1997. Based on these evidences, in particular, the evidence of Tom Peter and the plaintiff, I find on the balance of probabilities, that the raid did take place pursuant to a valid Search Warrant but find that the policemen who executed the Search Warrant, which includes the second defendants, acted beyond the terms of the Search Warrant and therefore acted unlawfully in destroying properties, etc. I also find that an unidentified policeman raped the plaintiff who was then asleep with her boyfriend after beating up and removing her boyfriend. I accept the plaintiff’s evidence that she would not obtain a medical report to confirm her story of rape because Kundiawa Hospital was far away. I make these findings based on the strength of her own evidence and to some extent supported by Tom Peter.

Rape is a criminal offence under s 347 of the Criminal Code Code (Ch. No. 262). Under the ordinary criminal law, the individual policemen concerned would become liable to criminal prosecution. Their policemen title and their police uniforms is no shield against criminal prosecution for criminal offences committed in the course of performing their duties. However, the legal entity of the State, their employer, or principal, cannot be held liable for the criminal offence of rape: Caind v Doyle (1946) 72 CLR 09. The State may however be held vicariously liable in damages for civil wrongs such as torts committed by its employees or agents, such as policemen, committed in the course of performing their duties provided the wrongful action was committed whilst performing or purporting to perform such functions "as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government": Wrongs (Miscellaneous Provisions) Act (Ch. No. 295), s 1(4). Daniel Waikali v Bram Moea & The State N1484 (1996). If a policeman departs from his lawful instructions and goes on a frolic of his own and commits a crime, then the State cannot be held liable for the crime for the reason that it would never form part of the State’s lawful instructions to the policeman concerned to commit a crime in the course of performing their duties. The individual policemen concerned, if identified, would become criminally liable for the crime. If they are not identified, then that is the end of the matter insofar as criminal liability is concerned.

Civil liability for criminal wrongs is governed by s 623 of the Criminal Code, which provides:

"Except when expressly provided, the prosecution or conviction of a person for an offence does not affect any civil remedy that any person aggrieved by the offence has against the offender".

There is nothing in s 347 (rape) or the Criminal Code generally, which expressly prohibits a victim of rape from bringing a civil action following a prosecution or conviction for an offence of rape against the offender. Likewise, this would mean that a successful civil action for a criminal wrong would not affect a subsequent criminal prosecution for the same offence. Further, a criminal prosecution for conviction is not a licence to commence civil proceedings for the same wrong. A civil action for damages may be instituted for the same wrong, which is of a criminal nature. It is on this basis that the plaintiff in this case has commenced this action for damages. But in this case, the policemen involved have never been identified and prosecuted.

At common law, a civil action for damages may be founded on tort or contract. In tort, an action for violation of a person’s body may be founded on the tort of trespass to the person. Trespass to the person may take the form of either assault, which is threatened assault, or battery, which is actual infliction of harm by unlawful physical contact with the person’s body. This action is based on the "fundamental principle, plain and incontestable ... that every persons’ body is inviolate": Collings v Wilcock [1984] 3 All ER 374 at 378. Whilst rape is ordinarily a criminal offence, which is governed by penal statute, it is questionable whether rape is an actionable trespass to the person in the form of battery. Counsel for the plaintiff has not cited any authority in support of the contention he seems to make, which is that it is an actionable as trespass to the person. In my own research I have been unable to find any decided common law cases on this point. There certainly are no Papua New Guinea cases on this point. The absence of any authorities here and abroad might affirm the ordinary position that rape is primarily a crime and not a civil wrong.

However, it would appear to be a natural extension of the tort of trespass in the form of battery to allow an action for damages for rape because rape is a form of violation of the person’s body. Rape by statutory definition is having carnal knowledge of a woman without her consent, or with her consent, if such consent is obtained by force, threats, intimidation, by fear of bodily harm or by means of false or fraudulent representation as to the nature of the act: s. 347, Criminal Code. In the present case, the evidence is that force was applied to the plaintiff and she did not consent to the sexual intercourse. The force applied to her body and the act of sexual intercourse constituted the tort of trespass to the person in the form of battery.

Although actual or threatened assault coupled with rape is an element of rape, rape in the sense of carnal knowledge without consent, or with consent if obtained by force, is not an aggravating circumstance of assault as suggested by Mr Kopunye in his submission and as pleaded in the Writ. Rape is a distinct offence.

Therefore, rape by definition fits the definition of trespass to the person in the form of battery. A victim of rape would have an action for trespass in the form of battery, irrespective of whether there is a criminal prosecution, and if so, irrespective of whether or not the prosecution results in a conviction, because of the different standards of proof in criminal and civil cases. A successful criminal action for rape is no bar to a civil action for the same rape and vice versa.

Taking into consideration all these matters, it is my view that rape is no doubt a form of battery for which the victim against the offender may institute an action for damages. It is a tort as well as a criminal offence. I do not see any reason why the two forms of action, civil action in tort of trespass and criminal prosecution, cannot co-exist compatibly.

On that basis, I accept the plaintiff’s action for damages for rape in this present case.

On the evidence before me, I am satisfied on the balance of probabilities that an unidentified policeman, who does not include the second defendant, raped the plaintiff. On the evidence, I am unable to conclude whether or not the second defendant assisted or aided this unidentified policeman to rape the plaintiff. That leaves the first defendant, the State, to be held vicariously liable in tort for the actions of the unidentified policemen.

Vicarious liability of the State, for the tortious actions of its servants or agents is governed by the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297). The State is subject to all liabilities in "tort" in respect of torts committed by its servants and agents: s 1(1)(a). Proceeding do not lie against the State under s 1(1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would have given rise to a cause of action in tort against the servant or agent involved: s 1(2). Therefore the State is not vicariously liable for criminal wrongs committed by its servants or agents including policemen. It could however be said that where a wrongful act is a crime as well as a tort, the State is still vicariously liable in tort or damages for that wrong.

But then, vicarious liability of the State for the torts committed by its agents or servants is qualified by s 1(4) which provides:

"(4) Where functions are conferred on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities for the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government". (my emphasis).

The evidence in this case is that the two policemen who raped the plaintiff departed from the main group and proceeded to rape the plaintiff after tying up her boyfriend. Although they were lawfully on the premises to conduct a search pursuant to the Search Warrant, it was not part of their lawful instructions to rape the plaintiff or any other woman for that matter. They went on a frolic of their own and committed a serious crime, which was in no way associated with or related to the lawful instructions given to them. Therefore, even if the policeman involved were identified, the State cannot be held vicariously liable by virtue of s 1(4) of the Wrongs (Miscellaneous Provisions) Act. Until the policemen involved in the rape are identified and prosecuted in court for the crime, as well as for the tort, the plaintiff will have to go without a remedy.

For these reasons, I dismiss the plaintiff’s action. I make no order as to costs.

Lawyer for the plaintiff: Kopunye Lawyers.
Lawyer for the defendants: Solicitor General.