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In the Matter of Enforcement of Human Rights Pursuant to S57 of the Constitution; In the Matter of an Application by David Lolok [1999] PGNC 116; N1952 (30 December 1999)

N1952

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 477/98

IN THE MATTER OF AN APPLICATION
FOR ENFORCEMENT OF HUMAN RIGHTS
PURSUANT TO S 57 OF THE CONSTITUTION

AND:

IN THE MATTER OF AN APPLICATION BY
DAVID LOLOK

Kokopo: Jalina, J.
1999: 15 June and 30 December 1999

Constitutional Law –– Enforcement of rights and freedom – Freedom from inhuman treatment and torture – Constitution s. 36 & s. 57.

Damages – Breaching of human rights – joint tortfeasors - Whether damages should be awarded against employees of State responsible for breach of human rights.

Cases cited:
Kofowei -v- Siviri & ors. [1983] PNGLR 449
In the Application by Kunzi Waso [1996] PNGLR 218

Mr. W. Donald for the Applicant.
Mr. S. Kesno for the Respondents.

Cur. Adv. Vult

30th December 1999

JALINA, J. – This is an application pursuant to s. 57 of the Constitution whereby the applicant claims that his rights guaranteed by the Constitution in particular his right to freedom from inhuman treatment given by s. 36 b (of the Constitution) has been infringed.

In the Human Rights Enforcement form which he completed and filed in this court, he alleges that two on duty traffic policemen namely Constables Haro and Erinuwe were responsible for such breaches. He alleges that at about 10:30 pm he was arrested for allegedly committing an offence and was physically assaulted.

The Respondents have filed a defence which can be summarised as follows:

1. At all material times they were acting in the performance of their official duties as agents, employees and servants of the State.
   
2. The arrest of the Applicant was Constitutional and lawful pursuant to s. 42 (1)(d) of the Constitution and s. 3 (c) of the Arrest Act.
   
3. The manner and procedure of arresting the Applicant at Rabaul was constitutional and lawful pursuant to s. 32 (17) of the Constitution and s. 14 (1) (c) and (2) of the Arrest Act in that the Applicant had sought to evade arrest by resisting therefore all reasonable means including force reasonable in the circumstances was used to effect his arrest.
   
4. They deny that they unlawfully assaulted or verbally abused the Applicant or his wife at Rabaul Police Station after he had been arrested and brought to the station on or about 31 July 1998.
   
5. They deny liability for damages arising from the arrest and detention of the Applicant.
   

The Facts

In summary, the facts of this case are that the Applicant, who had been drinking with some friends outside the premises of his father-in-law, assaulted one Philip Amaito, an off-duty traffic policeman who had gone to visit someone at the area next door. This was at about 9:30 pm on 31st July 1998.

The Applicant and Phillip Amaito give different reasons for the initial assault while the Applicant's wife Jenny Lolok and his father-in-law Kuvil Mesak ToKunai say nothing about what happened immediately prior to the Applicant assaulting Philip Amaito so it is not clear who is telling the truth as to the circumstances leading to that assault.

The Applicant was then asked by Philip Amaito to go to the police station to settle the problem (namely the assault on him by the Applicant) but the Applicant refused to go.

The Applicant was picked up at Hamamas Hotel at about 10:30 pm by on-duty policemen no doubt upon filing of a complaint by Philip Amaito and taken to the police station in Rabaul Town.

At the police station he was questioned and in the process was badly assaulted by policemen. He identified Harry Haro and John and Erinuwe as the policemen who assaulted him.

The Evidence

All evidence from both sides have been by affidavit. The Applicant filed two affidavits and one each from his wife Jenny Lolok and his father-in-law Kuvil Mesak ToKunai. Jenny Lolok says that while she was at the police station she saw her husband being punched, picked up and dumped on the floor and then kicked and punched him for about five minutes. She saw blood coming out of her husband's nose, mouth and ear.

Her husband was not resisting arrest and the assault on him was after he had been charged for assaulting an off-duty policeman. Kuvil Mesak ToKunai says that when his daughter, Jenny Lolok went and brought him to the police station at about 11:30 pm he saw that the Applicant's face was covered in blood. He also saw a cut on the Applicant's left eye as well as bleeding from his nose.

The Applicant also says something similar to his wife Jenny Lolok. He has also produced a medical report from Dr. Yap of an examination he made on him on 4th August 1998 and shows that he (The Applicant) sustained swelling and haematoma to the left eye, bleeding to his left ear, bleeding nose and tender left hand. X-ray revealed no fractures.

The Respondents Harry Haro and John Erinuwe deny assaulting him but say that if they did, they applied reasonable force as the Applicant was resisting arrest.

I have considered the submissions by both counsel in light of the evidence and am of the opinion that the Applicant's version be accepted, that he was severely assaulted at the police station. His evidence is not only supported by his wife but by his father-in-law Kuvil Mesak ToKunai who arrived at the police station later in the night and saw injuries on the Applicant. Those injuries are confirmed by an independent witness namely Dr. Yap who carried out a medical examination on the Applicant. The fact that Dr. Yap found a bleeding left ear and a bleeding nose as well as swelling and haematoma on the left eye four (4) days later suggest that the assault on the Applicant were severe. I cannot find that there was no assault on the basis of a bare denial by the Respondents and further evidence from someone that the Applicant was badly assaulted prior to him being picked up by police and taken to the police station.

With regard to their defence that the assault was lawful in that reasonable force had to be used to restrain the Applicant as he was resisting arrest, there is simply no evidence to support this contention. So there is no legal basis for the assault. The only inference I can draw regarding the motive for the assault is that the Applicant had assaulted a fellow policeman so he was assaulted in revenge.

If the Applicant did assault the off-duty policeman Philip Amaito which the Applicant does not deny, then there was no need for policemen in particular the Respondents to assault him. The Applicant should have been charged and the law allowed to take it's course. I accordingly find that the conduct of the Respondents against the Applicant amounted to a treatment or punishment that was inhuman or was inconsistent with respect for the dignity of the human person within the meaning of s.36 of the Constitution. I find that the Respondents have breached the Applicant's right under that section.

Having found that the Applicant's Constitutional right has been breached, I propose to award damages to the Applicant.

In the Application by Kunzi Waso [1996] PNGLR 218 where the Applicant successfully enforced his rights under s.36 of the Constitution against prison officers at Buimo Corrective Institution who severally assaulted him, I awarded a total of K3,500.00 being K1,000.00 as general damages, K1,000.00 as exemplary damages and K1,500.00 for breach of Constitutional rights. Interest at 8 per cent per annum was also awarded. This case being one involved also with enforcement of the Applicant's rights under s.36 of the Constitution, I award the Applicant herein the same amount namely:

Whilst interest is a discretionary matter, I propose to exercise my discretion in favour of the Applicant and award interest on the K3,500.00 at eight per cent per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, Ch. No. 52 from date of issue of the Application to date of judgment . This works out to 1.4 year from 14 August 1998 to date and interest on the amount I have awarded at 8% is K392.00. The total amount I award with interest added is K3,892.00.

The next question is whether, in view of what the Respondents alleged in their defence that they were performing their official duties as employees, servants or agents of the State, the State should pay the sum awarded. In this regard I adopt what I said in Kunzi Waso's case at p. 224 – 225.

"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 therefore order that Harry Haro and John Erinuwe shall each pay K1,946.00 to the Applicant no later than 30th June 2000.

The Applicant's cost shall be paid by the Respondents and such costs shall be borne equally by them.

If a Respondent herein does not pay the damages and interest by 30th June 2000, then I order that deductions be made from their respective salaries and such deduction be made at K50.00 per fortnight and be paid into a Bank account specified by the Applicant.
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Lawyer for the Applicant: Kubak Lawyers
Lawyer for the Respondents: Police Legal Officer