N4598

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 171 0F 1999

JOE KAPE META
ALSO KNOWN AS BENEDICT WAKORE
Plaintiff

V

CONSTABLE PAUL KUMONO
First Defendant

CONSTABLE IDON KULUNIO
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2012: 21, 22, 29 February

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – protection against proscribed acts – right to liberty

The plaintiff claims that he was unlawfully shot in the leg by police officers and as a result his leg was amputated. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights. A trial was held to determine whether the defendants (the police officers involved in the alleged shooting and the State) were liable for breach of human rights.

Held:

(1)	The plaintiff adduced credible evidence. The defendants failed to adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(2)	A number of the plaintiff's human rights were breached, viz 

•	freedom from inhuman treatment (Constitution, s 36(1));

•	protection of the law (Constitution, s 37(1));

•	protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));

•	right to liberty (Constitution, s 42(1)).

(3)	The plaintiff established a cause of action for breach of human rights against the State, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153
Eriare Lanyat v The State [1997] PNGLR 253
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329
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 whether the plaintiff's application for enforcement of human rights should be upheld.

Counsel

B Takin, for the plaintiff
M Kias, for the third defendant

29 February 2012

1. CANNINGS J: Joe Kape Meta is applying for enforcement under Section 57(1) of the Constitution of his human rights, which he claims were breached by two police officers who shot him, which led to his right leg being amputated. He has brought evidence to support his allegations. The defendants (the two police officers he alleges were involved and the State) have adduced no evidence. There are three issues:

1	Has the plaintiff proven the factual allegations?

2	Has the plaintiff established a cause of action for breach of human rights?

3	If yes, which parties bear liability?

1	HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

2. I have considered two affidavits by the plaintiff, the first of which gives direct evidence of what happened. Indirect evidence, which to some extent corroborates the plaintiff's version of events, is contained in affidavits by:

•	Dr V Golpak, who deposes that he was a doctor at Nonga Base Hospital when the plaintiff was admitted there on 20 December 1997, having been transferred from Kimbe General Hospital, due to gunshot wounds, and that the plaintiff's right leg had to be amputated above the knee to prevent life threatening complications including infection, venous thrombosis and toxaemia and that he treated the plaintiff until the date of discharge, 25 February 1998;

•	Joseph Ngwa, a member of the Ward Development Council of Gaongo Community, who deposes that prior to his being shot by the police in 1997 the plaintiff was a strong and energetic young man in the community but that since he lost his leg, life has been a struggle; and

•	Martha Meta, the plaintiff's wife, who deposes that in 1997 when the plaintiff was shot by the police she had already been married to him for some time and they had two children, and that prior to the shooting and amputation of his right leg he was a strong and energetic man but since then life has been a struggle for them and that they now have four children.

3. I have also considered the terms of a pro-forma application form for enforcement of human rights, which the plaintiff signed and dated 4 May 1998. It appears to have been filed in the National Court at Kimbe but then for some reason the matter was transferred to the Waigani Registry and a file was opened on 9 April 1999. The application form is the originating process for the purposes of this case. It was accompanied by a handwritten statement of facts, which the plaintiff wrote while he was in remand at Lakiemata Jail, near Kimbe. The allegations set out in the form and the statement are consistent with those made in the plaintiff's two affidavits that have been admitted into evidence. This shows that the plaintiff's version of events has been the same since he commenced these proceedings. The passing of almost 14 years between the date of commencement and the date of trial is due, it seems, to the file being lost for a considerable time in the Waigani Registry and the need to re-create the file by opening a supplementary file. I draw no adverse inference against the plaintiff due to the inordinate delay.

4. I have considered the possibility that the plaintiff's allegations are bogus, that he has made up this story to extract compensation from the State. However, I consider that that is a remote possibility. Having considered the direct evidence in the plaintiff's affidavits, the indirect evidence in the affidavits of the three other deponents, the circumstances in which the application for enforcement of human rights was filed, the delay in having the matter progressed to trial and the absence of any conflicting evidence (there is no evidence or suggestion that the plaintiff was shot while attempting to escape or that he provoked his being shot), I find that the plaintiff has proven on the balance of probabilities that the gist of his allegations is true. I find that the events he describes actually took place and make the following findings of fact.

5. At 3.00 am on 17 December 1997 a group of about six police officers from Kimbe Police Station arrested the plaintiff at Balabolo village on the Kimbe-Hoskins Highway as he was a suspect in an armed robbery investigation. He was ordered into a police vehicle, and did as he was told, not offering any resistance. Some of the police officers had been drinking alcohol. They questioned him about his involvement in a robbery. The vehicle was driven in the direction of Kimbe and on the way some of the police officers assaulted the plaintiff. At Kumbango Plantation (which is about 9 km from Kimbe) the vehicle was stopped. The plaintiff was ordered out. One of the policemen pointed a police-issued firearm at him. The plaintiff got out of the vehicle and was ordered to run. He was scared and reluctant to run. He begged for mercy but was assaulted and in the process he moved three metres away from the policemen. Four shots were then fired by the police in the direction of the plaintiff. The first shot missed. The second shot struck him in the upper right thigh. The third shot struck him on the right foot, causing him to fall into a roadside drain. By then he was in great pain. The final shot was fired at point-blank range into his right thigh, causing him to lose consciousness.

6. The plaintiff was taken to Kimbe General Hospital, it is not clear by whom or when. He regained consciousness the next day, 18 December 1997. Two days later he was transferred to Nonga Base Hospital, where his right leg was amputated and he remained until discharged on 25 February 1998.

2	HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

7. The plaintiff has proven that his human rights, entrenched by various provisions of Division III.3 of the Constitution (Basic Rights),were infringed in four ways.

(a)	Freedom from inhuman treatment

8. Every person has the right to be treated humanely, and not to be submitted to torture or to cruel or otherwise inhuman treatment. This right is conferred by Section 36(1) (freedom from inhuman treatment), which states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

9. The police treated the plaintiff inhumanely. By ordering him out of the vehicle and telling him to run, they submitted him to mental torture, as any person in that position would fear that his life was in immediate danger. By continuing to fire shots at the plaintiff after he begged for mercy and was offering no resistance was cruel and inhuman treatment.

(b)	Full protection of the law

10. Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

11. Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

12. The police failed to afford the plaintiff the full protection of the law. Presuming that they had good reason to suspect that he had been involved in an armed robbery, they were entitled to arrest and detain him. But having done that they were required to ensure that he was given the full protection of the law. The Constitution, especially Sections 37 and 42, gives clear instructions to the police as to how to deal with a person who is arrested or detained on reasonable suspicion of having committed an offence. None of those constitutional instructions were followed. In particular, the plaintiff, having been deprived of his liberty when he was ordered into the police vehicle, was not treated with humanity or with respect for the inherent dignity of the human person.

(c)	Protection against proscribed acts

13. Section 41 of the Constitution states:

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or

(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)	The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

14. In past cases such as Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153 I have adopted the view that the right conferred by Section 41 is not one that falls within the same bundle of human rights or basic rights that are enforceable under Section 57 of the Constitution. It is instead a right enforceable under Sections 23(2) and 155(4) of the Constitution. That appeared to be the majority view of the Supreme Court (Kidu CJ and Kapi DCJ; Amet J dissenting) in SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329. However, that case was decided 27 years ago and in the meantime there has been increasing concern about human rights breaches by members of the disciplined forces, especially the Police Force. I consider that the changed circumstances of the country warrant a departure from the majority view in Raz v Matane. The strong dissenting opinion of Amet J, as he then was, ought now be followed.

15. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

•	harsh; or

•	oppressive; or

•	not warranted by the requirements of the particular circumstances; or

•	disproportionate to the requirements of the particular circumstances; or

•	not warranted by the requirements of the particular case; or

•	disproportionate to the requirements of the particular case; or

•	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

16. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. The plaintiff has discharged that burden in relation to all seven categories of proscribed acts.

(d)	Right to liberty

17. Section 42 bolsters the right to freedom based on law conferred by Section 32 of the Constitution by saying that a person can only be deprived of their liberty in certain situations. 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.

18. In the present case, the police officers, presumably, had reasonable grounds on which to suspect that the plaintiff had committed an offence. So their arrest and detention of the plaintiff and their use of reasonable force to keep him in custody was lawful. However, it is what the police did – and did not do – after they arrested the plaintiff that is more contentious. Sections 42(2) and 42(3) spell out the rights of a person who is arrested or detained.

(2)	A person who is arrested or detained—

(a)	shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)	shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)	shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

(3)	A person who is arrested or detained—

(a)	for the purpose of being brought before a court in the execution of an order of a court; or

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

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.

19. The police breached the plaintiffs' rights under Section 42(2) by:

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

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

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

•	not informing him of his constitutional rights.

20. The police breached the plaintiff's rights under Section 42(3) by:

•	not bringing him before a court or judicial officer without delay.

"Without delay" in Section 42(2) means immediately (Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022).

Conclusion as to cause of action

21. The plaintiff has established a cause of action under Section 57(1) of the Constitution for breach of the human rights conferred on him by Sections 36(1), 37(1), 41(1) and 42(1) of the Constitution.

3	WHICH PARTIES BEAR LIABILITY?

22. I see no merit in a submission by Ms Kias for the State that these proceedings are time-barred. The six-year limitation period referred to in Section 16(1) of the Frauds and Limitations Act 1988, on which the State relies, does not apply to applications for enforcement of human rights under Section 57 of the Constitution. In any event, the proceedings were commenced in May 1998, only five months after the date on which the cause of action accrued. The State could perhaps have moved a motion to have the proceedings dismissed for want of prosecution but no such action has been taken. The fact that the trial did not take place until more than 14 years and three months after the date on which the cause of action accrued is therefore irrelevant to a determination of liability.

23. I will order liability against the third defendant, the State, which is vicariously liable for human rights breaches committed by police officers within the scope of their police employment or functions unless the State discharges 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 State has failed to discharge that onus. I conclude that the police were on duty and carrying out a criminal investigation when they arrested the plaintiff and then proceeded to deal with him as they did. The State is not relieved of liability simply because the police officers acted well outside the scope of legitimate police functions when they shot the plaintiff.

24. As to the first two defendants – the police officers who the plaintiff alleges were primarily responsible for the human rights breaches that occurred – I decline to order that they are liable. Although I am satisfied that they have been given a reasonable opportunity to put their side of the story and decided not to do so, I am not satisfied on the evidence available that they were the policemen actually responsible for what happened. The affidavit evidence is not sufficiently cogent to warrant a finding of liability against them.

COSTS

25. 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

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

(1)	The plaintiff's application for enforcement of human rights is upheld.

(2)	The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 36(1), 37(1), 37(17), 41(1) and 42(1) of the Constitution, against the third defendant, with damages to be assessed. 

(3)	Costs of the proceedings shall be paid by the third defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_________________________________________________________
B T Gobu & Associates Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Third Defendant