N4813

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1759 0F 2005

OXY KAIMA
First Plaintiff

RONYA LOKOS
Second Plaintiff

ZARIS KEN
Third Plaintiff

KALEAN UIYONO
Fourth Plaintiff

LAIVI LOKOS
Fifth Plaintiff

V

CASPER POGA
First Defendant

SAM INGUBA, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2012: 21, 28 June, 8 October

HUMAN RIGHTS – enforcement – trial on liability – alleged police raid of residential premises in urban setting – alleged assault of residents by members of Police Force – whether factual allegations have been proven – whether causes of action existed for human rights breaches – vicarious liability.

Five plaintiffs claimed that they were for no good reason physically assaulted and beaten with batons and gun butts by members of the Police Force who raided the first plaintiff's residence and looted the trade store in which he conducted business at his residence. The plaintiffs commenced proceedings under Section 57 of the Constitution seeking enforcement of human rights against the member of the Police Force alleged to have led other policemen in the raid and assaults, the Commissioner of Police and the State. A trial was conducted to determine whether the defendants were liable for the alleged breach of human rights. Two of the plaintiffs adduced affidavit evidence of the incident. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs failed to prove their claims, in that only two of them gave evidence, there was no medical evidence and no corroboration. 

Held:

(1)	Two plaintiffs presented sufficient evidence for the court to be satisfied on the balance of probabilities that an incident occurred in the manner alleged: members of the Police Force led by the first defendant raided the first plaintiff's residence and trade store and assaulted and injured a number of people, including the first and third plaintiffs. 

(2)	A number of the human rights of the first and third plaintiffs were breached by the first defendant and other members of the Police Force, viz:

•	right to the full protection of the law (Constitution, Section 37(1));
•	protection against harsh or oppressive acts (Constitution, Section 41(1));
•	freedom from arbitrary search and entry (Constitution, Section 44); and
•	protection against unjust deprivation of property (Constitution, Section 53(1)).

(3)	The two plaintiffs who gave evidence established causes of action for breach of human rights. The claims of the three plaintiffs in respect of whom no evidence was presented were dismissed.

(4)	The first defendant was directly liable. The State was vicariously liable for the breaches as the first defendant and other members of the Police Force were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.

(5)	Judgment on liability was entered against the first and third defendants in favour of the first and third plaintiffs.

Cases cited

The following cases are cited in the judgment:

Eriare Lanyat v The State [1997] PNGLR 253
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113

APPLICATION

This was a trial on liability to determine the plaintiffs' application for enforcement of human rights. 

Counsel

J Javapro, for the plaintiffs
D K Piam, for the defendants

8th October, 2012 

1. CANNINGS J: Oxy Kaima and four other men are applying for enforcement under Section 57 of the Constitution of their human rights, which they claim were breached by members of the Police Force who raided Mr Kaima's residence and trade store at Kanage Street, Six Mile, National Capital District, on Thursday 19 July 2001. They claim that they were physically assaulted by the police and that their personal properties and in the case of Mr Kaima, his trade store goods, were stolen by the police. They seek damages under Section 58 of the Constitution against three defendants: the member of the Police Force who led the police raid, the Commissioner of Police and the State, which is alleged to be vicariously liable as employer of the police for the human rights breaches that occurred.

2. The first plaintiff, Mr Kaima, and the third plaintiff, Zaris Ken, adduced affidavit evidence of the incident, which they believe was caused by the first defendant being very drunk. The State adduced no evidence but defended the matter by claiming that the entire proceedings should be dismissed as the plaintiffs' evidence was unreliable and uncorroborated. 

3. There are three issues:

(1)	Have the plaintiffs proven the factual allegations?

(2)	Have the plaintiffs established causes of action for breach of human rights?

(3)	Who bears liability?

1	HAVE THE PLAINTIFFS PROVEN THE FACTUAL ALLEGATIONS?

4. Two very different versions of what happened have been presented to the court. The plaintiffs' version is that at 2.00 am on 19 July 2001 the first defendant, Constable Poga, who lived near Mr Kaima's residence, was very drunk and caused a disturbance and had an argument and fought with Mr Kaima's relatives. In retaliation, later that morning, at 8.00 am, Constable Poga returned with two police vehicles containing policemen from Badili Police Station who raided Mr Kaima's residence and trade store, stole property and physically assaulted Mr Kaima and four of his relatives and neighbours: Ronya Lokos, Zaris Ken, Kalean Uiyono and Laivi Lokos. 

5. The defendants' version is that it was the plaintiffs who caused the altercation between them and the police, as is evident from the fact that three of the plaintiffs, Messrs Lokos, Ken and Uiyono, were charged with assault and the next day convicted by the Waigani District Court and sentenced to 12 weeks in custody. 

6. Mr Piam submitted that the defendants' version of events should be accepted but that if the court is unable to make findings of fact in favour of the defendants it should still refuse to accept the plaintiffs' version of events due to deficiencies in the evidence, in that only two of the plaintiffs gave evidence, there was no medical evidence and no corroboration. 

7. I find myself unable to accept the defendants' version of events as it has been put only in the form of submissions and there is no evidence at all to support it. I agree, however, with Mr Piam's submission that it does not follow that the court must therefore accept the plaintiffs' version of events. The plaintiffs must still prove their case. Or more precisely each plaintiff must prove his case. 

8. That creates an insurmountable difficulty for three of the plaintiffs, Ronya Lokos, Kalean Uiyono and Laivi Lokos, as no evidence has been presented by them or on their behalf. I find that the allegations that they were assaulted and injured by the police have not been proven.

9. As for the two plaintiffs who gave evidence I have been provided with no good reason to reject their evidence, which is consistent with the allegations pleaded in the statement of claim. I find that they have proven by sworn testimony on the balance of probabilities that members of the Police Force, most of whom were based at Badili Police Station, staged a raid of the residence of Mr Kaima at Kanage Street, Six Mile, on the morning of 19 July 2001. Mr Kaima, aged in his 50s, was in his trade store at the time. The police entered the store and punched him and beat him with police batons and dragged him out of the store and into a police van, causing him physical injury. The police removed some cash and store goods from the store, and members of the public took advantage of the situation and stole goods from the store. 

10. In the course of the same incident the police entered Mr Kaima's house where the third plaintiff, Zaris Ken, was sleeping. Mr Ken had been involved in the altercation earlier that day with Const Poga. Mr Ken surrendered to the police but they assaulted him by kicking and gun-butting him and beating him with batons. The police forced Mr Ken and other men including Mr Kaima into a police van and drove to Badili Police Station where they assaulted him again. Mr Ken was detained without charge overnight at Boroko Police Lock-up and then taken to Bomana Jail where he was detained for seven days without charge before being released on bail. Mr Ken lost some personal property during the course of the incident including a radio and clothing.

11. To sum up, the first and third plaintiffs have proven the factual allegations on which their claims are based. The factual allegations of the second, fourth and fifth plaintiffs have not been proven and their claims are dismissed. 

2	HAVE THE PLAINTIFFS ESTABLISHED CAUSES OF ACTION FOR BREACH OF HUMAN RIGHTS?

12. The first and third plaintiffs have proven that their human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in four ways:

•	right to the full protection of the law (Constitution, Section 37(1));

•	protection against harsh or oppressive acts (Constitution, Section 41(1));

•	freedom from arbitrary search and entry (Constitution, Section 44); and

•	protection against unjust deprivation of property (Constitution, Section 53(1)).

3	WHO IS LIABLE?

13. Judgment will be entered against the first and the third defendants but not against the second defendant. The first defendant is liable as he is the member of the Police Force who instigated the incident and he was actively involved in the human rights breaches that were committed. The second defendant, the Commissioner of Police, should not be liable as there is no evidence or suggestion that he actively participated in the incident or that he gave any instructions that resulted in the incident. The third defendant, the State, is liable, vicariously, as the human rights breaches were committed by members of the Police Force within the scope of their police employment and the State has not discharged the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). The police were on duty when they raided Mr Kaima's residence. The State is not relieved of liability simply because the police officers acted outside the scope of legitimate police functions. 

CONCLUSION 

14. The first and third plaintiffs have established a cause of action for breach of human rights against the first and third defendants. As to costs, 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

15. The Court will order that:

(1)	The applications by the first and third plaintiffs for enforcement of human rights are upheld.

(2)	The applications by the second, fourth and fifth plaintiffs for enforcement of human rights are refused, and the proceedings in respect of claims by those plaintiffs are dismissed.

(3)	The first and third plaintiffs have each established a cause of action for breach of human rights, in particular the rights in Sections 37, 41(1), 44 and 53 of the Constitution, against the first defendant, Casper Poga, and the third defendant, the State, in respect of personal injury and property losses caused to them by members of the Police Force at Six Mile, National Capital District on 19 July 2001.

(4)	The question of assessment of damages shall be determined at a separate trial, in respect of which there shall be a directions hearing at Waigani on 25 October 2012 at 9.30 am or at such other time set by the court.

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

Judgment accordingly.
_________________________

Public Solicitor: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendant