N5427
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

HRA NO 15 & HRC NO 13 OF 2012

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BY REUBEN MICAH

Madang: Cannings J
2013: 14, 15 August, 24 October, 22 November

HUMAN RIGHTS – application for enforcement – Constitution, Section 36, freedom from inhuman treatment – Constitution, Section 37, right to full protection of the law – detainee in correctional institution detained in separate confinement – whether lawful authority for separate confinement – whether conditions of detention breached human rights standards of the Constitution.

HUMAN RIGHTS – application for enforcement – Constitution, Section 53, unjust deprivation of property – police raid of plaintiff's house and removal of personal items.

The plaintiff claimed that he was, while on remand for a criminal offence, unlawfully detained for 15 days in a detention cell within a correctional institution in a confined and overcrowded space in conditions that were inhumane. He also claimed that while he was in custody, the Police went to his house without a search warrant and removed his sound system and other property. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights, in particular his rights to: full protection of the law under Section 37(1) of the Constitution, freedom from inhuman treatment under Section 36(1) of the Constitution, be treated with humanity and respect under Section 37(17) of the Constitution, and protection from unjust deprivation of property under Section 53 of the Constitution. He sought enforcement of his rights by way of an order for compensation against the State.

Held:

(1)	The evidence of the plaintiff was credible and there was no contrary evidence presented by the State. Therefore the court made findings of fact in accordance with the plaintiff's allegations.

(2)	The detention of the plaintiff for 15 days in separate confinement in conditions that were inhuman was unlawful and infringed his human rights, in particular, the rights to the full protection of the law (Constitution, s 37(1)), freedom from inhuman treatment (Constitution, s 36(1) and to be treated with humanity and respect (Constitution, s 37(17)).

(3)	The police raid of the plaintiff's house and the seizure of property were unlawful and infringed his right to protection against unjust deprivation of property (Constitution, s 53).

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

(5)	The plaintiff was awarded:

(a)	in respect of the period of separate confinement: reasonable damages of K200.00 per day + exemplary damages of K100.00 per day = K4,500.00; and

(b)	in respect of the unjust deprivation of property: reasonable damages of K9,500.00 + exemplary damages of K2,000.00 = K11,500.00 being total damages of K16,000.00.

(6)	Interest was awarded on the total amount of damages calculated at the rate of 8% per annum from the date on which the last human rights breach occurred, 21 August 2008, to the date of judgment, 22 November 2013, a period of 5.25 years = K6,720.00, making the total judgment sum K22,720.00.

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
Danny Pirino v The State (2006) N3111
Hai v Walo (2012) N4564
Kints v The State (2001) N2113
Kombea v Peke [1994] PNGLR 572
Lanyat v The State [1997] PNGLR 253
Suzuke v The State, WS No 951 of 1994, 21.06.96, unreported
The State v David Wari Kofowei [1987] PNGLR 5
The State v William Nanua Kapris & 13 Others (2011) N4232
The State v William Nanua Kapris and 11 Others (2011) N4305
Topo v Kaman (2009) N3773
Yawi v Nenga (2002) N2209

APPLICATION

This was an application by a detainee for enforcement of human rights.

Counsel

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

22nd November, 2013 

1. CANNINGS J: The plaintiff, Reuben Micah, applies for enforcement of his human rights which he claims were breached on two occasions in August 2008 when he was a suspect in the police investigation of the BSP Madang robbery that had taken place the previous month. First, he claims that the Correctional Service detained him in a separate confinement cell, at Buimo Jail, in conditions that were inhumane. Secondly, he claims that members of the Police Force raided his house while he was in custody and confiscated personal property worth K9,500.00. He seeks damages. The defendant is the employer of the persons who allegedly breached the plaintiff's human rights, the State.

2. A trial has been conducted to determine whether the State is liable and if it is what relief should be granted to the plaintiff. The State concedes liability in respect of the conditions of detention but argues that the award of damages should be less than the amount claimed by the plaintiff. The State does not contest the evidence regarding the Police raid and confiscation of property but contests liability on the ground that what the police did was outside the scope of their employment.

3. The plaintiff commenced two separate proceedings. HRA No 15 of 2012, regarding the confiscated sound equipment, was filed on 22 February 2012. HRC No 13 of 2012, regarding the conditions of detention, was filed on 16 April 2012. The trial of the two proceedings, which were heard together, began on 14 August 2013. The proceedings were consolidated by order of the Court on 15 August 2013. Submissions were received on 24 October 2013.

ALLEGATIONS

Conditions of detention

4. The plaintiff gave evidence that upon his arrival at Buimo Jail on 6 August 2008 the reception clerk in consultation with the two police officers who had escorted him from the District Court to the Jail decided that he should be detained in the "dark cell". This turned out to be a separate confinement cell, a small and dark cell with little light or ventilation, already containing 16 detainees. 

5. It was divided into four cubicles (two detainees in each cubicle, which measured 2-metres x 2-metres) and a corridor (measuring 4-metres x 2-metres, in which was crammed eight detainees). The ceiling throughout the cell was 2 metres high. He became the 17th detainee and remained in the corridor. The smell of body odour and human waste was overpowering. He could not sleep properly because of the crammed conditions. There were many mosquitoes at night and no mosquito nets. The toilets were used as shower spaces. There was no wash basin. He contracted diarrhoea and malaria. He was allowed only 10 minutes "sunlight" every three days. He heard that he was detained in the dark cell as he was regarded as 'high risk'. He was detained there until 21 August 2008 when he was granted bail.

Confiscated property

6. There was evidence from the plaintiff's wife and two youths who were living in the plaintiff's house at Four Mile, Lae, that on 14 August 2008, while the plaintiff was in custody, members of the Police Force based in Lae, including Manu Pulei, Chris Miri and Noel Tumpi, raided the house and removed sound equipment and related items belonging to the plaintiff. The police had no search warrant and no court order authorising their removal of the property. The plaintiff describes the property that was seized and its value in the following terms:

1 x 17-inch flat computer screen K500.00
1 x HP overhead projector K3,900.00
1 x 650-watt computer UPS K200.00
4 x dynamic microphone (K150.00 each) K600.00
1 x horn speakers K700.00
4 x 6-metre microphone cables K100.00
1 x 6-channel recording machine K2,500.00
1 x recording microphone K1,000.00

Total value K9,500.00

FINDINGS OF FACT

Conditions of detention

7. Mr Phannaphen for the State did not contest the evidence regarding the conditions of detention. He conceded that the conditions were as described by the plaintiff. There was no evidence adduced by the State. I find that there was no written separation order made under Section 108(1) of the Correctional Service Act authorising the plaintiff's detention in the dark cell. I take judicial notice of the fact that the plaintiff gave evidence of a similar nature in the criminal trial relating to the BSP robbery, which resulted in him being convicted of armed robbery and related offences and sentenced to 12 years imprisonment, which he is now serving (The State v William Nanua Kapris & 13 Others (2011) N4232, The State v William Nanua Kapris and 11 Others (2011) N4305). The plaintiff's evidence is credible and I find that he has, according to the civil standard of proof, on the balance of probabilities, proven the factual allegations, namely:

•	that from 6 to 21 August 2008 he was detained in the dark cell at Buimo Jail in inhumane conditions.

Confiscated property

8. Mr Phannaphen did not contest the evidence regarding the Police raid of the plaintiff's house and the confiscation of property, though he emphasised that the State did not concede that it was liable for any human rights breaches that the Court finds were committed by the police officers involved. The evidence of the plaintiff's witnesses is credible. I find that the plaintiff has, according to the civil standard of proof, on the balance of probabilities, proven the factual allegations, namely:

•	that on 14 August 2008 members of the Police Force raided his house in Lae and without a search warrant or other lawful authority confiscated his sound equipment worth K9,500.00.

LEGAL ISSUES

9. 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?

Conditions of detention

10. I find that the plaintiff's rights were infringed in two distinct ways. First he was denied the full protection of the law (Constitution, s 37(1)) in that he was detained in separate confinement for no good and identifiable reason and in the absence of a written separation order under Section 108(1) (separation of one detainee from other detainees) of the Correctional Service Act. I continue to be concerned when I see cases such as this one that detainees are held in oppressive conditions in detention cells for no good reason and without adhering to the requirements of the Correctional Service Act. There must be a good and justifiable reason, the order of separate confinement must be in writing and the period of separate confinement is strictly limited in the first instance to 28 days (Danny Pirino v The State (2006) N3111).

11. Secondly, he was denied the rights to freedom from inhuman treatment and the right to be treated with humanity and respect for the inherent dignity of the human person (Constitution, ss 36(1) and 37(17)) in that he was kept in a confined and overcrowded space in unhygienic and smelly conditions for long periods and denied fresh air and exercise.

Confiscated property

12. I find that members of the Police Force compulsorily acquired the plaintiff's sound equipment and failed to pay "just compensation", thereby breaching the plaintiff's right to protection from unjust deprivation of property under Section 53(1) of the Constitution.

WHAT REMEDY SHOULD BE GRANTED?

Conditions of detention

13. The State concedes that it is liable for the breaches of human rights under Sections 37(1), 36(1) and 37(17) of the Constitution. However, Mr Phannaphen submitted that the total amount of compensatory damages should be no more than K2,000.00 and that nothing should be awarded for exemplary damages. In support of the proposed amount, he relied on the precedents provided by these cases: Yawi v Nenga (2002) N2209, Topo v Kaman (2009) N3773 and Hai v Walo (2012) N4564. Mr Phannaphen urged the court to award a global sum and not to allocate a certain amount of damages for each day of unlawful detention as was done in Kombea v Peke [1994] PNGLR 572 and Selan v The State (2012) N4938.

14. I am not persuaded by Mr Phannaphen's submissions not to take the approach that I took in Selan's case, where the amount of damages was calculated on an amount-per-day basis: K200.00 reasonable (compensatory) damages per day + K100.00 exemplary damages per day. The facts of that case were very similar to the present case. 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.

15. The award of damages will comprise the two components set out in Section 58(2): "reasonable damages" to compensate the plaintiff for the distress, anxiety and loss of human dignity he suffered during the period of his unconstitutional detention and "exemplary damages" to signify the court's disapproval of the State's infringement of human rights. I award damages at the rate of K200.00 per day of unconstitutional detention + exemplary damages of K100.00 per day, ie K300.00 per day. The plaintiff's human rights were infringed for 15 consecutive days. The total damages awarded is: K300.00 per day x 15 days = K4,500.00.

Confiscated property

16. Mr Phannaphen submitted that the State should not be liable for the unlawful confiscation of the plaintiff's sound equipment as the breach of human rights that was involved was committed by members of the Police Force who were acting without lawful authority and totally outside the proper scope of their employment. He relied on a number of cases in support of that proposition including Suzuke v The State, WS No 951 of 1994, 21.06.96, unreported, Lanyat v The State [1997] PNGLR 253 and Kints v The State (2001) N2113.

17. I distinguish the facts of the present case from the facts in those cases and find that the State is vicariously liable for the unlawful conduct of the police officers who confiscated the plaintiff's sound equipment. I infer from the evidence and find that the police acted 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). I award reasonable damages commensurate with the value of the confiscated property: K9,500.00 plus exemplary damages of K2,000.00. The total damages awarded in respect of the sound equipment is K11,500.00.

Summary of damages awarded

Conditions of detention 	K4,500.00
Confiscated property	K11,500.00
Total				K16,000.00

INTEREST

18. Interest will be awarded at the rate of 8 per cent per annum on the total 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 on which the last human rights breach occurred, 21 August 2008, to the date of judgment, 22 November 2013, a period of 5.25 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:

•	K16,000.00 x 0.08 x 5.25 = K6,720.00.

COSTS

19. 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 K16,000.00 plus interest of K6,720.00, being a total judgment sum of K22,720.00.

(3)	The parties shall bear their own costs.

____________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant