N5419
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 11 OF 2012

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BY NAMSON LAMANING

Madang: Cannings J
2013: 14 August, 24 October, 15 November

HUMAN RIGHTS – application for enforcement – right to full protection of the law: Constitution, Section 37(1) – freedom from inhuman treatment: Constitution, Section 36(1) – right to personal liberty: Constitution, Section 42.

The plaintiff claimed that he was assaulted by police officers after he was already in police custody and denied medical treatment and denied access to a lawyer and detained without charge and without being taken before a court for ten days and thereafter unlawfully detained for five months. He claimed that the police breached his human rights and sought damages. A trial was conducted on liability and assessment of damages.

Held:

(1)	The factual allegations of the plaintiff were generally sustained, however the lack of medical or other corroborating evidence militates against a finding of fact that he was badly injured.

(2)	The plaintiff's human rights were infringed in that he was denied: the right to the full protection of the law (Constitution, s 37(1)), the right to freedom from inhuman treatment (Constitution, s 36(1)) and the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family and a lawyer and to be taken before a court without delay (Constitution, ss 42(2)(b), 42(3)(b)).

(3)	As the plaintiff established that his human rights were infringed, an appropriate form of relief is an order under Section 58(2) of the Constitution for damages, comprising two components: reasonable damages and exemplary damages.

(4)	Damages were awarded at the rate of K1,000.00 each for the breaches of his human rights + total exemplary damages of K1,000.00, The Court awarded total damages of K4,000.00 + interest of K1,449.60, being a total judgment sum of K5,449.60.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Application by Benetius Gehasa (2005) N2817
Bobby Selan v The State (2012) N4938
The State v David Wari Kofowei [1987] PNGLR 5
The State v Namson Lamaning (2011) N4467

APPLICATION

This was an application for enforcement of human rights.

Counsel

A Meten, for the plaintiff
S Phannaphen, for the defendant

15th November, 2013

1. CANNINGS J: Namson Lamaning applies for enforcement of his human rights which he claims were infringed by the police in Madang during 2009. He claims that after the police apprehended him on suspicion of his involvement in an armed robbery, they assaulted him, denied him medical treatment, denied him access to a lawyer and detained him without charge and without being taken before a court for ten days and then unlawfully detained him for another five months. He claimed that the police breached his human rights and sought damages. The defendant is the police officers' employer, the State, which disputes the factual allegations and argues that this is a bogus claim that should be dismissed. A trial has been conducted to determine whether the State is liable and if it is what relief should be granted to the plaintiff.

ALLEGATIONS

2. The plaintiff deposes in an affidavit that on 1 May 2009 he was apprehended by police at Madang. He was a suspect in the police investigation of an armed robbery that took place earlier that day. He claims the police beat him badly with an iron bar, then took him to Jomba Police Lock-up and detained him there and did not take him to hospital, thus denying him medical treatment even though it was obvious that he was in great pain and needed treatment. The police denied him access to his family and a lawyer and detained him without charge and did not take him before a court until on 11 May 2009 they took him to Madang District Court. He was then, he claims, unlawfully detained at Jomba Police Lock-up until 5 October 2009 when he was granted bail by the National Court.

FINDINGS OF FACT

3. Mr Phannaphen for the State submitted that the plaintiff's evidence should be rejected as it was uncorroborated and not credible and there was no medical evidence to support what he was claiming.

4. I appreciate Mr Phannaphen's submission. The evidence is not compelling. However, there was no evidence at all adduced by the State, so there is nothing before the Court that contradicts the plaintiff's sworn testimony. I take judicial notice of the fact that the plaintiff gave evidence of a similar nature in the criminal trial relating to the robbery, which resulted in him being convicted of armed robbery and sentenced to eight years imprisonment, which he is now serving (The State v Namson Lamaning (2011) N4467). He has consistently maintained that he was assaulted by the police and denied his rights in the manner he is alleging for the purposes of the present proceedings.

5. The plaintiff's evidence is sufficiently credible despite the lack of corroboration. I find that he has according to the civil standard of proof, on the balance of probabilities, generally proven the factual allegations subject to this qualification: the lack of medical or other corroborating evidence militates against a finding that he was as badly injured as he claims. He was assaulted and injured and was in pain, he was denied medical treatment but he suffered no life-threatening or permanent injuries.

LEGAL ISSUES

6. As I suggested in Application by Benetius Gehasa (2005) N2817 and Bobby Selan v The State (2012) N4938, a human rights enforcement application gives rise to two major issues:

•	Have any rights of the plaintiff been infringed?

•	If yes, what remedy should be granted?

HAVE ANY RIGHTS OF THE PLAINTIFF BEEN INFRINGED?

7. I am persuaded by Mrs Meten's submissions that the evidence shows that the plaintiff's human rights were infringed in three distinct ways. First he was denied the full protection of the law (Constitution, s 37(1)) in that he was assaulted by the police, though he did not resist arrest.

8. Secondly, he was denied the right to freedom from inhuman treatment (Constitution, ss 36(1)) by being denied medical treatment.

9. Thirdly he was denied the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family and a lawyer (Constitution, s 42(2)(b)) and to be taken before a court without delay (Constitution, s 42(3)(b)). He was arrested and detained on Friday 1 May 2009. He should have been taken before a court at the first available practical opportunity, if not over the weekend then at least by Monday 4 May. He was not taken before a court until Monday 11 May. He was unlawfully detained for one week. His detention in the period from 11 May 2009 (when he was remanded in custody by the District Court) to 5 October 2009 (when he was granted bail and released from custody) was not unlawful. He was in that period being lawfully detained by virtue of an order of the District Court.

WHAT REMEDY SHOULD BE GRANTED?

10. I find that the State is vicariously liable for the unlawful conduct of the police officers who committed the human rights breaches against the plaintiff as those breaches were committed in the course of what was an officially sanctioned and legitimate police investigation. The police officers, though they committed unlawful acts, were acting within the scope of their employment (The State v David Wari Kofowei [1987] PNGLR 5, Abel Tomba v The State (1997) SC518).

11. I am satisfied that this is an appropriate case for compensation by way of damages under Section 58(2) (compensation) of the Constitution, which states:

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

12. The award of damages will comprise the two components set out in Section 58(2): "reasonable damages" to compensate the plaintiff for the breaches of his human rights and "exemplary damages" to signify the court's condemnation of the State's disregard for an accused person's human rights.. The applicant claims an award of K3,000.00 for each of the three breaches of his human rights. I think that in view of the state of the evidence and the lack of corroboration and in particular the lack of any medical evidence, the claim is excessive. I award K1,000.00 for each breach. The total amount of reasonable damages is K3,000.00.

13. As for exemplary damages Section 12(1) of the Claims By and Against the State Act 1996 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.

14. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? The answer is yes. The Police Force and the State have failed in their duty to train and educate the police officers who in fact assaulted the plaintiff and then denied him his rights on proper and acceptable methods of policing. The State must be penalised for the wilfully unconstitutional actions of its officers. I award total exemplary damages of K1,000.00.

15. The total award of damages is K3,000.00 (reasonable damages) + K1,000.00 (exemplary damages) = K4,000.00.

INTEREST

16. Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the first breach of human rights, 1 May 2009, to the date of judgment, a period of 4.53 years, by applying the 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.

Thus:

•	K4,000.00 x 0.08 x 4.53 = K1,449.60.

COSTS

17. The plaintiff is a prisoner who has been assisted in this matter by the Public Solicitor. In these circumstances it is appropriate that the parties bear their own costs.

ORDER

(1)	The application for enforcement of human rights is granted.

(2)	The defendant is liable to pay to the plaintiff total damages of K4,000.00 plus interest of K1,449.60, being a total judgment sum of K5,449.60.

(3)	The parties shall bear their own costs.

___________________________________
Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendant