N3920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 353 0F 2005

IN THE MATTER OF AN APPLICATION
FOR ENFORCEMENT OF HUMAN RIGHTS
UNDER SECTIONS 57 & 58 OF THE CONSTITUTION

BY

NAIL LAMON
First Plaintiff

SINCLAIR MAFUK
Second Plaintiff

ANDREW WANGIAK
Third Plaintiff

MUPAPE MAP
Fourth Plaintiff

NAMURE KANAI
Fifth Plaintiff

AGAINST

SENIOR CONSTABLE ZAKANG BUMAI
First Defendant

CONSTABLE HENRY ANGAU
Second Defendant

CONSTABLE SIMON NOKE
Third Defendant

CONSTABLE DANIEL KAPEN
Fourth Defendant

SERGEANT JOHN KUPANG
Fifth Defendant

CONSTABLE MATHEW BAKANI
Sixth Defendant

CONSTABLE JACK MOYAS
Seventh Defendant

COMMISSIONER OF POLICE
Eighth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Madang: Cannings J

2009: 28 September,
2010: 12 February, 12 March

JUDGMENT

DAMAGES – assessment of damages for breach of human rights – Constitution, Sections 57 and 58 – unlawful actions of police – right to freedom – protection from inhuman treatment – right to liberty – freedom from forced labour – freedom from arbitrary search and entry – exemplary damages.

The police entered a village and arrested and detained a number of young men (the plaintiffs) on suspicion of involvement in a murder. The plaintiffs were subject to torture and inhuman treatment by the police and detained for an extended period without charge. In a previous trial they established a cause of action for breach of human rights against the State, the Commissioner of Police and seven police officers, with damages to be assessed. This is the trial on assessment of damages, in which they sought three categories of damages: compensation for breaches of human rights; general damages for pain, suffering, humiliation and shame; and exemplary damages.

Held:

(1)	There are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action.

(2)	In this case, in view of the terms of the application for enforcement of human rights and the sheer number of human rights breaches, it was appropriate to award a global sum of damages, covering compensation and general damages, for each plaintiff, and refer to it as "reasonable damages" as per Section 58(2) of the Constitution.

(3)	In addition it was appropriate to award each plaintiff a sum of "exemplary damages",that term also being used in Section 58(2) of the Constitution.

(4)	In addition it was appropriate to award each plaintiff a sum of interest, even though they did not expressly seek it, as the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, does not stipulate that interest must be expressly sought by a plaintiff.

(5)	The plaintiffs were accordingly awarded the following sums:

Plaintiff No	Plaintiff’s name	Reasonable damages (K)	Exemplary damages (K)	Interest awarded (K)	Judgment sum (K)	
1	Nail Lamon	100,000.00	25,000.00	59,000.00	184,000.00	
2	Sinclair Mafuk	100,000.00	25,000.00	59,000.00	184,000.00	
3	Andrew Wangiak	100,000.00	25,000.00	59,000.00	184,000.00	
4	Mupape Map	70,000.00	17,500.00	41,300.00	128,800.00	
5	Namure Kanai	70,000.00	17,500.00	41,300.00	128,800.00	
	Total	440,000.00	110,000.00	259,600.00	809,600.00	

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Lance Kolokol v The State (2009) N3571
Latham v Henry [1997] PNGLR 435
Losia Mesa v Gari Baki (2009) N3681
Nail Lamon v Senior Constable Zakang Bumai (2008) N3468
Peter Kuriti v The State [1994] PNGLR 262

TRIAL

This was a trial on assessment of damages for breaches of human rights following an earlier trial regarding liability.

Counsel

W Akuani, for the plaintiffs
No appearance for the defendants

12 March, 2010 

1. CANNINGS J: The plaintiffs, five young men from Sawoi and Suang villages in the Rai Coast district of Madang Province, have successfully sued the State and the Commissioner of Police and seven other members of the Police Force for human rights abuses committed against them in April 2004. The police entered Sawoi village at 4.30 one morning, and without lawful authority arrested and detained the plaintiffs on suspicion of their involvement in a murder. The police subjected the plaintiffs to torture and inhuman treatment over a three-week period and unlawfully detained them, before taking them to Madang town, where they were remanded in custody for a month. They were released by order of the District Court, after the police failed to pursue the case.

2. The plaintiffs commenced proceedings in the National Court under Section 57 of the Constitution seeking enforcement of their human rights and they succeeded at a trial held in 2008 in establishing a cause of action for breach of the following human rights against all defendants:

•	right to freedom (Constitution, s 32);
•	protection from inhuman treatment (Constitution, s 36);
•	right to liberty (Constitution, s 42);
•	freedom from forced labour (Constitution, s 43);
•	freedom from arbitrary search and entry (Constitution, s 44).

3. The judgment on that trial has been published as Nail Lamon v Senior Constable Zakang Bumai (2008) N3468. A separate trial has since been held on assessment of damages, in which each plaintiff seeks three categories of damages:

•	compensation for breaches of human rights;
•	general damages for pain, suffering, humiliation and shame; and 
•	exemplary damages.

4. None of the defendants, including the State, have defended this action, despite being given ample opportunity to do so. The judgment on liability was a front-page news story in The Post-Courier of 22 September 2008. Despite the publicity given to the case, as well as the defendants being served with the necessary documents under the National Court Rules, no attempt appears to have been made by the Office of the Solicitor-General or the Legal Services Division of the Police Force to assist the Court in resolving this matter. This is regrettable.

5. The police did not commit the same breaches in relation to all plaintiffs. Some of the plaintiffs suffered more than others. So damages for each plaintiff have to be separately assessed.

6. The first issue to address is: what approach should be taken to assessment of damages? Should each cause of action for each plaintiff be identified and damages awarded for each one? Or is it better to award, for each plaintiff, just one, global, sum of damages or compensation for all causes of action?

7. The next issue is whether it is proper to award each plaintiff three categories of damages? Or should just one or two categories of damages be awarded?

8. Once I resolve those issues I will consider each plaintiff separately and make an assessment of damages for each one.

9. I will then consider the question of interest. It is not a straightforward issue as interest was not expressly sought in the applications filed in September 2005 by which the plaintiffs commenced these proceedings.

1	THE APPROACH TO ASSESSING DAMAGES

10. As I pointed out in Lance Kolokol v The State (2009) N3571 there are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action (subject to the global sum being divided into different categories of damages such as general damages and exemplary damages).

11. I have decided in this case in view of the terms of the applications for enforcement of human rights and the sheer number of causes of action established by each plaintiff, to take the second approach. I will focus initially on the first plaintiff, Nail Lamon. I will summarise how and when his human rights were breached and then make a comparison between what he suffered and what a plaintiff in a recent, somewhat similar, Madang case suffered. Having assessed damages for Nail Lamon, I will then compare his circumstances with those of each other plaintiff and assess damages for each of them.

2	SHOULD EACH PLAINTIFF BE AWARDED THREE CATEGORIES OF DAMAGES?

12. The plaintiffs’ counsel, Mr Akuani, submitted that each plaintiff should be awarded three categories of damages: compensation for breaches of human rights, general damages for pain, suffering, humiliation and shame; and exemplary damages. He points out that that was the approach taken in Kolokol and submits that the same approach should be taken in this case.

13. In Kolokol I took that approach because the three different categories of damages were expressly sought in the statement of claim. That case was commenced by writ of summons, so it made sense to do it that way. In this case, however, the originating process (the document by which the jurisdiction of the National Court was invoked) was neither a writ of summons nor an originating summons. The proceedings were commenced by each plaintiff filling out and filing a pro-forma document headed "APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS AND/OR FREEDOMS PURSUANT TO SECTION 57 CONSTITUTION". Each document used this forms of words to describe the relief being sought:

I hereby make application for the enforcement of my right or freedom as guaranteed by the Constitution and seek orders under Section 58 thereof and any other orders the Court may seek fit to make.

14. No mention was made of seeking separate sums for breach of human rights, general damages and exemplary damages; and while I do not want this sort of case to be hamstrung by procedural or technical matters I think it is appropriate to grant relief to the plaintiffs according to what they actually sought in their applications, ie by referring to Section 58 (compensation) of the Constitution.

15. Section 58(2) relevantly provides:

A person whose rights or freedoms declared or protected by this Division [Division III.3 (basic rights)] are infringed … is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

16. The best way to assess damages is therefore, in respect of each plaintiff, to award a global sum of damages, covering compensation and general damages, and call it "reasonable damages"; and in addition consider awarding each plaintiff a sum of "exemplary damages".

3	ASSESSMENT OF DAMAGES FOR EACH PLAINTIFF

17. I will deal first with Nail Lamon and make an assessment of reasonable damages and exemplary damages. Before doing that, however, I will summarise the findings of fact made at the trial on liability. The following events occurred in 2004.

Monday 5 April

18. At 4.30 to 5.30 am a police squad entered Sawoi village and went to a boy house and arrested a group of young men, including Nail Lamon, Sinclair Mafuk and Namure Kanai. The police officers involved were:

•	Snr Const Zakang Bumai (1st defendant) who was in charge of the squad;
•	Const Henry Angau (2nd defendant);
•	Const Simon Noke (3rd defendant);
•	Const Mathew Bakani (6th defendant); and
•	Const Jack Moyas (7th defendant).

19. The police suspected that the plaintiffs had murdered a local man, Dumeo Gumoi, who had gone missing. His body had not been found. The police were acting on information provided by a local glasman.

20. The police tied the hands of the arrested men with power lines. At 6.00 am, they took them to Saidor station, next to the airstrip. The police verbally abused them, accused them of killing Dumeo Gumoi and beat them with tree branches until they were bleeding.

21. At 7.00 am the police took them to Saidor police station. In the meantime the police had sent word that Mupape Map, the 4th plaintiff, had to go to the police station. By the time Mupape Map got to the police station, Nail Lamon and others were detained there, their hands tied together with power lines.

22. The arrested men were put into two groups. Some, including Nail Lamon and Namure Kanai, were left outside, in the open, all day, under the sun. Others, including Sinclair Mafuk, were beaten and interrogated.

23. Mupape Map was kicked on different parts of his body. His left arm was broken. He was taken to Saidor Health Centre, where a Plaster-of-Paris cast was applied. He was also treated for other superficial injuries to his trunk, caused by being kicked.

24. Namure Kanai had his head pushed into a bucket of water for long periods. The bucket had stones in it and he lost five front teeth and was close to suffocation. He admitted, falsely, to being involved in killing Dumeo Gumoi and told the police he knew how it happened. The police apologised for injuring him and said they wanted to use him as an eye witness. He was later taken to Madang but escaped from the police lock-up.

25. That evening the police took one group to Saidor community hall, where they were detained. Others, including Sinclair Mafuk, were taken to a police officer’s house where they spent the night.

Tuesday 6 April

26. Snr Const Bumai interrogated Nail Lamon and others, threatened them and forced Nail Lamon to say that he had killed Dumeo Gumoi.

27. Const Kapen forced Sinclair Mafuk to say that he had killed Dumeo Gumoi. 

Thursday 8 April

28. Snr Const Zakang sent a message to Suang village for Andrew Wangiak to be brought to Saidor, so a Suang community leader brought him over.

29. Snr Const Zakang beat Andrew Wangiak with a tree branch and accused him of involvement in the murder of Dumeo Gumoi. He poured a bucket of water over him before detaining him in Const Angau’s house.

Friday 9 April

30. Andrew Wangiak was again beaten with tree branches and a cane by the police and told him to admit helping Nail Lamon and others kill Dumeo Gumoi. Andrew Wangiak felt as if he was going to die.

Saturday 10 April

31. Snr Const Bumai tied up Andrew Wangiak, forced him to admit killing Dumeo Gumoi and hung him from a tree (by the hands) from 9.00 am to 4.00 pm. Snr Const Bumai put fire ashes into a bucket of water and forced Andrew Wangiak to drink it, causing him to vomit.

Monday 12 April

32. Snr Const Bumai and other police forced Andrew Wangiak to dig up a grave, looking for the remains of Dumeo Gumoi. But they did not locate the body. Another villager accused Andrew Wangiak, in the presence of the police, of killing Dumeo Gumoi, cutting up his body and hiding parts of it. That villager hit Andrew Wangiak over the head with an iron rod, causing him to bleed. The police joined in by threatening him with firearms. He was forced to admit to killing Dumeo Gumoi.

33. Based on Andrew Wangiak’s admissions, the police arrested Namure Kanai.

34. Mupape Map was discharged from the health centre.

Tuesday 13 April

35. The police beat Andrew Wangiak and Namure Kanai with a cane and interrogated them about where they had hidden Dumeo Gumoi’s body. Andrew Wangiak made up a story that the body was hidden at Silau, so the police took them there, but no body was found. On the way back to Saidor, the police – Const Bakani and Const Moyas – beat them in the vehicle.

36. That night, the police took Andrew Wangiak and Namure Kanai to Const Angau’s house and tied them up with power lines.

37. Const Angau took Sinclair Mafuk to Snr Const Bumai’s house and forced him, first, to drink two pots of water, then, to put the pot over his head. In an attempt to extract an admission to the killing of Dumeo Gumoi, he hit Sinclair Mafuk with a tree branch, until he excreted and urinated.

Wednesday 14 April

38. Andrew Wangiak and Namure Kanai were taken from Saidor to Silau. They were assaulted on the way. At Silau they were forced to dig up another grave, but nothing was found. They were taken back to Saidor in the afternoon. On the way back they were again assaulted.

Thursday 15 April

39. Andrew Wangiak and Namure Kanai were taken from Saidor to Silau, to dig another grave. They again found nothing. They were taken back to Saidor in the afternoon. On the way they were again assaulted.

Monday 19 April

40. The police, led by Snr Const Bumai, took Andrew Wangiak and Mupape Map to Sawoi cemetery where they were forced to weed the grass. They were interrogated in the presence of relatives of Dumeo Gumoi about where they had buried Dumeo Gumoi’s body. They were beaten with timber and cane sticks.

41. That night Andrew Wangiak was tied up and detained at Const Angau’s house.

Wednesday 21 April

42. Police reinforcements arrived from Ileg. At 9.00 pm, they went into the Saidor community hall, which was in darkness, flashed torches into the faces of Nail Lamon and others and pointed guns at their faces.

43. They took Nail Lamon outside and forced him to admit that he killed Dumeo Gumoi, put a mask over his face, then took him to Const Angau’s house, where they punched him and poured hot water on his back, causing his skin to peel.

44. They also took Sinclair Mafuk out of the hall and tried to get him to admit to killing Dumeo Gumoi. The police put cartridges into Sinclair Mafuk’s hands, then put them into a gun and pointed the gun at his head. Sinclair Mafuk refused to make an admission so he was taken to Const Angau’s house where he was beaten physically. He still refused to admit killing Dumeo Gumoi, so he was taken to a tree, and hung from the tree by the neck with his own belt, until the belt broke.

45. They went to Const Angau’s house, pointed a gun at Andrew Wangiak and hit him on the head with a stone and forced him to admit killing Dumeo Gumoi. The police then took Andrew Wangiak outside, to join Nail Lamon, Sinclair Mafuk and Mupape Map (who had been brought there from his house).

46. The Ileg police told Mupape Map he would be killed if he did not admit to killing Dumeo Gumoi. They put a gun to his head and he admitted to the killing.

47. The plaintiffs were each ordered to hold a carved, wooden penis, and forced to put it into their mouths and say "Swit ya!". The police laughed at them.

48. Const Kapen fired a warning shot near Nail Lamon and Andrew Wangiak.

49. Const Kapen became frustrated with Sinclair Mafuk and told him to lie face down on the gravel road, then shot him in the left leg with a pistol. He ordered Nail Lamon to wrap a singlet around Sinclair Mafuk’s leg, which he did. Nail Lamon, Andrew Wangiak and Mupape Map were ordered to carry Sinclair Mafuk to the Saidor Health Centre. Those orders were complied with.

50. Sinclair Mafuk was bleeding heavily.

Thursday 22 April

51. At the hospital, at about 1.00 am, a police officer poked Sinclair Mafuk in the eye with his fingers, while he was awaiting treatment.

52. Two Ileg police officers put lime powder on the faces of Nail Lamon and Andrew Wangiak and ordered them to the back of the police vehicle. The police forced Nail Lamon, at gunpoint, to sodomise Andrew Wangiak; then forced him to put his penis into Andrew Wangiak’s mouth.

53. At about 5.30 am, Nail Lamon and Andrew Wangiak were forced to carry Sinclair Mafuk to Const Angau’s house, where they were interrogated and forced to admit, again, to the killing of Dumeo Gumoi.

54. Later that morning Nail Lamon and Andrew Wangiak were taken to the Saidor community hall, where the other arrested men were still being detained. The police were assaulting those men and forcing them to say that they killed Dumeo Gumoi and putting lime powder on their faces.

55. The police took the arrested men, including Mupape Map (still suffering from a broken arm) to a graveyard. They were forced at gunpoint to dig up a grave. They uncovered the remains of a deceased person, Lensky Wapne. The police assaulted the plaintiffs there too.

56. The police took Nail Lamon and Andrew Wangiak to Damui Creek, where their photos were taken and they were forced to admit that they had put Dumeo Gumoi’s body on a bamboo bed.

57. On the way back to Saidor the police beat some of the arrested men, including Mupape Map, with an axe. Mupape Map had a gun pointed at his head and he was forced to admit knowing Nail Lamon and Sinclair Mafuk.

58. The police used a gas lighter to set fire to Mupape Map’s hair, then did the same thing to Sinclair Mafuk. They then singed their necks with burning firewood.

59. The police set fire to the boy house, which had been raided on April 5.

60. At 1.00 pm the police took the arrested men to the Lagap Wharf, where they were put on a ship, MV Pundok, to Madang.

Friday 23 to Tuesday 27 April

61. The ship arrived at Madang at 12.30 am on Friday the 23rd. The arrested men were taken to the Jomba police lock-up and detained there until Tuesday the 27th.

Tuesday 27 April to Tuesday 25 May

62. On April 27th they were taken to Madang District Court for mention, then remanded in custody at Beon Jail.

63. On 25 May they were discharged from custody by order of the District Court after the police offered no evidence against them.

Breach of Nail Lamon’s human rights

64. His human rights were infringed in the following ways.

The right to freedom: Constitution, Section 32

65. There are two aspects of this right. First, a person has the right to do what he or she wants to do – to be free – provided it does not interfere with others and it is not prohibited by law. Secondly, a person cannot be forced to do anything that the law does not require.

66. The police breached Nail Lamon’s right to freedom by forcing him to do a number of things that, by law, he was not required to do, viz:

•	forcing him to anally penetrate Andrew Wangiak at gunpoint in the presence of others on 22 April;

•	forcing him to have his penis sucked by Andrew Wangiak at gunpoint in the presence of others on 22 April;

•	forcing him to dig up graves on 22 April.

Freedom from inhuman treatment: Constitution, Sections 36(1), 37(1), 37(17)

67. Every person has the right to be treated humanely, not tortured, particularly if he is detained in custody.

68. The police breached Nail Lamon’s right to be treated with humanity in a number of respects, viz:

•	ordering him without notice out of the boy house in which he was sleeping in the early hours, and then tying his hands with power lines, verbally abusing him, accusing him of killing Dumeo Gumoi, beating him with tree branches until he bled, leaving him outside, in the open, all day, under the sun, on 5 April;

•	threatening him on 6 April and forcing him to say that he had killed Dumeo Gumoi;

•	masking his face, forcing him to admit that he killed Dumeo Gumoi, punching him and pouring hot water on his back, on 21 April;

•	forcing him to hold a carved, wooden penis, and put it in his mouth and say "Swit ya!", in the presence of others, so that he could be laughed at by the police on 21 April;

•	firing a warning shot near him on 21 April;

•	forcing him to wrap a singlet around the leg of Sinclair Mafuk, who had been shot by police and carry Sinclair Mafuk to Saidor Health Centre on 21 April;

•	putting lime powder on his face on 22 April;

•	forcing him to anally penetrate Andrew Wangiak at gunpoint in the presence of others on 22 April;

•	forcing him to have his penis sucked by Andrew Wangiak at gunpoint in the presence of others on 22 April;

•	forcing him and Andrew Wangiak on 22 April to carry Sinclair Mafuk to Const Angau’s house, where he was interrogated and forced to admit, again, to the killing of Dumeo Gumoi;

•	assaulting him later that morning on 22 April at Saidor community hall, where the other arrested men were still being detained, and again forcing him to say that he killed Dumeo Gumoi and again putting lime powder on his face;

•	taking him and others to a graveyard on 22 April and forcing him at gunpoint to dig up a grave and uncover the remains of a deceased person, and assaulting him there too.

Right to liberty: Constitution, Section 42

69. Section 42 bolsters the right to freedom based on law, by saying that a person can only be deprived of their liberty in certain situations.

70. For example, Section 42(1) says:

No person shall be deprived of his personal liberty except …

(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence.

71. In the present case, the police officers, arguably, had reasonable grounds on which to suspect that the plaintiffs had committed the offence of murder. So their arrest and detention of the plaintiffs and their use of reasonable force to keep them in custody might have been, to that limited extent, lawful.

72. However, it is what the police did – and did not do – after they arrested Nail Lamon that gave rise to clear human rights breaches. Sections 42(2) and 42(3) spell out the rights of a person who is arrested and detained.

73. The police breached Nail Lamon’s rights under Section 42(2) by:

•	not informing him promptly of the reasons for his arrest and detention and of any charge against him;

•	not permitting him to communicate with his family or friends, and with a lawyer;

•	not giving him any opportunity to give instructions to a lawyer; and

•	not informing him of his constitutional rights.

74. The police breached Nail Lamon’s rights under Section 42(3) by:

•	not bringing him before a court or judicial officer without delay – he was not brought before the District Court until 22 days after his arrest and detention.

Freedom from forced labour: Constitution, Section 43(1)

75. One of the human rights that every person in PNG has is the right not to be required to perform forced labour.

76. The police breached Nail Lamon’s rights not to be subject to forced labour by:

•	giving him a number of orders to dig up graves of deceased persons, on various dates.

Freedom from arbitrary search and entry: Constitution, Section 44

77. Every person has a right not to be subject to the search of his person or property except under a reasonable law, eg the Arrest Act or the Search Act.

78. The police breached Nail Lamon’s right to freedom from arbitrary search and entry by:

•	entering the boy house in which he and others were sleeping in the early hours of 5 April without a search warrant or arrest warrant, and searching him and his property.

Reasonable damages

79. What is a reasonable amount of damages to compensate Nail Lamon for this litany of human rights abuses that he endured? I will start by comparing his situation to that of the plaintiff in another case involving human rights abuses by Madang police, Lance Kolokol v The State (2009) N3571.

80. In Kolokol the plaintiff was walking with friends in the night time near Modilon Road, Madang. When he saw the police, he ran away. He was chased on suspicion of being involved in an armed robbery. He was caught, assaulted and shot in the leg and foot, denied medical treatment, and detained in custody for three days before being taken before a court, which granted him bail. A number of his human rights were breached, viz:

•	protection from inhuman treatment (Constitution, s 36);
•	right to the full protection of the law (Constitution, s 37(1));
•	right to be treated with humanity and with respect for the inherent dignity of the human person (Constitution, s 37(17));

81. The treatment meted out to the plaintiff was horrific. There was no good reason for him to be assaulted and shot. His human rights were breached on four distinct occasions:

•	when he was shot the first time;
•	when he was shot the second time;
•	when he was assaulted;
•	when he was denied medical treatment, for 12 hours throughout Friday night and Saturday morning.

82. On each of those occasions, the three of his human rights outlined above were breached. I allowed K5,000.00 for each occasion. The amount for human rights breaches was K20,000.00. On top of that, I awarded K25,000.00 to compensate the plaintiff for the pain and suffering, inconvenience and partial loss of functionality of his leg. The total award of damages – the equivalent of what I am assessing as "reasonable damages" for Nail Lamon – was K45,000.00.

83. Lance Kolokol suffered a permanent physical injury whereas Nail Lamon has not. However, the human rights breaches were much more extensive in Nail Lamon’s case and continued over a longer period. He endured physical and mental torture to a greater extent than Lance Kolokol. Nail Lamon has given evidence that he feared for his life and there is no reason to doubt that his fear was genuine, and based on reasonable grounds. I consider that he needs to be compensated with at least twice the amount of the damages awarded to Lance Kolokol. Mr Akuani, who was also the counsel in Lance Kolokol’s case, has, in a detailed and systematic submission, sought a total of K95,000.00 for Nail Lamon (K55,000.00 for breach of human rights and K40,000.00 for general damages). I think that is a reasonable and appropriate sum, perhaps a little conservative. I will assess reasonable damages at K100,000.00.

84. Using that as a point of reference I will now assess reasonable damages for the other plaintiffs.

Sinclair Mafuk

85. Though he was not subject to the same degree of humiliation as Nail Lamon (not being forced to perform sexual acts with another detainee at gunpoint in the presence of others), he was actually shot and wounded and was subject to forms of physical torture that Nail Lamon was not subject to. I will assess his reasonable damages as the same as Nail Lamon, K100,000.00.

Andrew Wangiak

86. The treatment he endured was similar to that of Nail Lamon. I award him K100,000.00.

Mupape Map

87. He endured many human rights abuses, but not as many as Nail Lamon. I award him K70,000.00.

Namure Kanai

88. He is in a similar position to Mupape Map. I award him K70,000.00.

Exemplary damages

89. Since the Supreme Court’s decision in Abel Tomba v The State (1997) SC518, the courts have been reluctant to award exemplary damages against the State for abuse of police powers. The question to ask is whether the breach of the law by police officers is a technical breach or whether it involves a significant and unwarranted departure from the proper exercise of police powers eg where a police operation is unauthorised and individual police officers are not named as defendants. If the facts fit into the first category, exemplary damages may be payable by the State. If the facts fit into the second category of cases, exemplary damages are not payable by the State. A plaintiff is expected to seek such redress from the individual police officers who breached the law.

90. The present case did not involve an unauthorised police operation. Individual police officers have been named as defendants. There had been a murder and the police had mobilised and were searching for suspects. Breaches of the law were committed by police but within the scope of a proper police operation. The case falls more within the first category than the second. Therefore I consider that the circumstances of the case do not exclude the awarding of exemplary damages.

91. I must consider Section 12(1) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

92. So the question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? In determining that, I remind myself that the decision whether to award exemplary damages is a matter of discretion. The purposes of an award of exemplary damages are to:

•	punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435, per Doherty J;

•	not unjustly enrich a plaintiff, but symbolise public indignation (Peter Kuriti v The State [1994] PNGLR 262).

93. I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for breaches of human rights by police officers, it is the individual police officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, per Injia J).

94. I query, with respect, however, whether that is a realistic approach to take. What are the chances of the seven police officers named as defendants in this case being able to come up with thousands of Kina each to pay the plaintiffs exemplary damages? What chance will the plaintiffs have of getting any money out of those police officers if they are forced to enforce the judgment against them? I do not feel that it would be fair or just to the plaintiffs to require them to pursue individual police officers for their awards of exemplary damages.

95. I am satisfied that this is a case where the ninth defendant – the State – has obviously failed in its duty to train and educate these police officers on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. An award of exemplary damages will symbolise the indignation, and disgust, of this Court and the People of Madang Province and the People of Papua New Guinea about what the police did to the plaintiffs.

96. The breaches of human rights were sufficiently severe and continuous to warrant an award of exemplary damages. I will award one-quarter the amount in exemplary damages as for breach of constitutional rights. Thus:

•	Nail Lamon K25,000.00;
•	Sinclair Mafuk K25,000.00;
•	Andrew Wangiak K25,000.00;
•	Mupape Map K17,500.00;
•	Namure Kanai K17,500.00.

SUMMARY OF DAMAGES AWARDED

•	Nail Lamon K100,000.00 reasonable damages + K25,000.00 exemplary damages = K125,000.00;

•	Sinclair Mafuk K100,000.00 reasonable damages + K25,000.00 exemplary damages = K125,000.00;

•	Andrew Wangiak K100,000.00 reasonable damages + K25,000.00 exemplary damages = K125,000.00;

•	Mupape Map K70,000.00 reasonable damages + K17,500.00 exemplary damages = K87,500.00;

•	Namure Kanai K70,000.00 reasonable damages + K17,500.00 exemplary damages = K87,500.00.

INTEREST

97. Though the plaintiffs did not expressly seek interest in their applications for enforcement of human rights, that is not a good reason to deny them interest. Indeed it would be unjust to do so. The awarding of interest on damages is a standard practice and the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52, the law that allows the court to award interest, does not stipulate that interest must be expressly sought by a plaintiff (Losia Mesa v Gari Baki (2009) N3681).

98. The relevant provision is Section 1, which states:

Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

99. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

99. I exercise that discretion in the following way:

1 	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.

2 	The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.

3 	Interest should be payable on the whole of the sum of damages for which judgment is given.

4	I will fix the commencement date for the appropriate period as the date on which the cause of action accrued, and I determine that this is the date of the first breach of human rights, when the police unlawfully entered the boy house on 5 April 2004. The end of the period is the date of judgment, 12 March 2010. The appropriate period is 5.9 years.

100. I calculate the amount of interest by applying the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

101. For Nail Lamon, Sinclair Mafuk and Andrew Wangiak, the amount of interest for each is:

•	K125,000.00 x 0.08 x 5.9 = K59,000.00.

102. For Mupape Map and Namure Kanai, the amount of interest for each is:

•	K87,500.00 x 0.08 x 5.9 = K41,300.00.

COSTS

103. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

104. I direct entry of judgment in the following terms:

(1)	reasonable damages under Section 58(2) of the Constitution, payable by the defendants to the plaintiffs, as set out in the Schedule; plus

(2)	exemplary damages under Section 58(2) of the Constitution, payable by the defendants to the plaintiffs, as set out in the Schedule; plus

(3)	interest payable by the defendants to the plaintiffs, as set out in the Schedule;

(4)	being a total judgment sum for each plaintiff, as set out in the Schedule, to be paid within 30 days after the date of entry of this judgment;

(5)	costs of the proceedings shall be paid by the defendants to the plaintiffs on a party-party basis, to be taxed if not agreed.

SCHEDULE

Plaintiff No	Plaintiff’s 
name	Reasonable damages (K)	Exemplary damages (K)	Interest awarded (K)	Judgment sum
 (K)	
1	Nail Lamon	100,000.00	25,000.00	59,000.00	184,000.00	
2	Sinclair Mafuk	100,000.00	25,000.00	59,000.00	184,000.00	
3	Andrew Wangiak	100,000.00	25,000.00	59,000.00	184,000.00	
4	Mupape Map	70,000.00	17,500.00	41,300.00	128,800.00	
5	Namure Kanai	70,000.00	17,500.00	41,300.00	128,800.00	
Total	440,000.00	110,000.00	259,600.00	809,600.00	

Judgment accordingly.

_____________________________
William Akuani Lawyers: Lawyers for the plaintiffs	
Lawyers for the defendants:	Nil