N7117
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 724 OF 2013

APEL POTE, FOR AND ON BEHALF OF LATE DENISI POTE (DECEASED), IN HIS CAPACITY AS FATHER AND NEXT FRIEND
First Plaintiff

JOHN POTE, NEWMAN POTE, KUIAWI KINIPA, LEPOS YAWIRI, STEVEN TIWA, REBECCA PEAPE, VINCENT WANPIS, 
BENJAMIN IMAMBU, PASTOR JACK PAUL PETER, 
MAS PUALA & WAIMOL LAGARI
Second Plaintiffs

V

CONSTABLE ROBERT MARK SMITH
First Defendant

SENIOR SERGEANT HANSION TOKALI,
POLICE STATION COMMANDER, GORDONS
Second Defendant

ANDY BAWA, METROPOLITAN SUPERINTENDENT
Third Defendant

COMMISSIONER OF POLICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2015: 20 November, 17 December,
2016: 24 February, 30 March,
2018:  22 February

HUMAN RIGHTS – enforcement – trial on liability – five alleged incidents of human rights violations by members of the Police Force – alleged assault and unlawful detention of plaintiffs. 

The plaintiffs alleged that the first defendant and other members of the Police Force were involved in five incidents in which the human rights of some or all plaintiffs were breached: (a) unprovoked assault at a mediation gathering of some plaintiffs by the first defendant and other police; (b) unlawful detention and torture of some plaintiffs over a four-day period immediately after the first incident; (c) murder of the first plaintiff’s son; (d) unprovoked assault at a mourning house of some plaintiffs by the first defendant and other police; (e) unprovoked assault and unlawful detention of one plaintiff by the first defendant and other police. The plaintiffs commenced proceedings by writ of summons against the first defendant and other members of the Police Force alleged to be responsible for the human rights violations that allegedly occurred, and against the State, which was claimed to be vicariously liable for such violations. A trial was conducted to determine whether any of the defendants was liable. The plaintiffs presented affidavit evidence and oral testimony by two plaintiffs. The defendants presented affidavit evidence, denying all the plaintiffs’ claims.

Held:

(1)	The question of liability arising from three of the alleged incidents was dealt with summarily as, in relation to incidents (c) and (d) the claims pleaded in the statement of claim were not supported by evidence, and in relation to incident (e) though evidence was adduced in support of it, nothing was pleaded in the statement of claim. All claims pertaining to those alleged incidents were dismissed.

(2)	Some claims arising from the first two incidents were also dealt with summarily as, in relation to both incidents, it was neither pleaded nor alleged in evidence that the second, third or fourth defendants were involved. The proceedings against the second, third and fourth defendants were wholly dismissed.

(3)	As to the first incident the plaintiffs proved that there was a physical confrontation at the mediation gathering between some of the plaintiffs and the first defendant and other members of the Police Force. However the plaintiffs failed to prove that it was an unprovoked assault of the sort alleged or that any breaches of human rights were committed by the first defendant or any other member of the Police Force. No liability was established in relation to the first incident. 

(4)	As to the second incident, four of the plaintiffs proved that they were detained for four days without being charged or taken before a court and without adequate food and water and that this amounted to a breach of human rights, in particular:

•	right to full protection of the law (Constitution, Section 37(1));
•	right to be treated with humanity and respect for the inherent dignity of the human person  (Constitution, Section 37(17));
•	protection against unlawful deprivation of liberty (Constitution, Section 42).

(5)	The plaintiffs failed to prove that the first defendant was responsible for the human rights violations that they suffered, but proved that such violations were committed by some members of the Police Force in connection with purported performance of police functions, for which the State, the fifth defendant, was vicariously liable. 

(6)	Judgment on liability was entered against the State for human rights breaches committed against some plaintiffs in respect of the second incident. All other claims including the entire proceedings against the first, second, third and fourth defendants were dismissed. 

Cases cited

The following cases are cited in the judgment:

Billy Bau v Mathew Bine (2016) N6268
Jeff Joe Lome v Katu Sele (2017 N6854
John Andama Yula v Simon Noma (2014) N5818
Linda Kewakali v The State (2011) SC1091
Ludger Mond v Jeffrey Nape (2003) N2318
Pamenda Ipi Pangu v Mak Korr (2015) N6069
Philip Nare v The State (2017) SC1584
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

STATEMENT OF CLAIM 

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

Counsel:

J N Napu, for the Plaintiffs
T Mileng, for the Defendants

22nd February, 2018

1.   CANNINGS J: The plaintiffs allege that the first defendant, Constable Robert Mark Smith, and other members of the Police Force were involved in five incidents in which the human rights of some or all plaintiffs were breached: 

(a) unprovoked assault of some plaintiffs by the first defendant and other police at a mediation gathering near Gordon Police Station, National Capital District, on Sunday 13 January 2013; 

(b) unlawful detention and torture of some plaintiffs by the first defendant and other police at Gordon Police Station from 13 to 17 January 2013; 

(c) murder of the first plaintiff’s son, Denisi Pote, near Penthouse nightclub, Port Moresby, on 25 February 2013; 

(d) unprovoked assault of some plaintiffs by the first defendant and other police at a mourning house established to mourn the death of the first plaintiff’s son, on or about 28 February 2013; and  

(e) unprovoked assault and unlawful detention of plaintiff Rebecca Peape, by the first defendant and other police, on 28 March 2013. 

2.    The plaintiffs commenced proceedings by writ of summons against the first defendant and four other defendants:

•	second defendant, Senior Sergeant Hansion Tokali, Gordon Police Station Commander, at the time of the incidents;

•	third defendant, Superintendent Andy Bawa, NCD Metropolitan Commander at the time of the incidents;

•	fourth defendant, Toami Kulunga, Commissioner of Police at the time of the alleged incidents; and 

•	fifth defendant, the State.

3.   There are twelve plaintiffs. Apel Pote was designated as first plaintiff. The 11 others were designated as “second plaintiffs”: John Pote, Newman Pote, Kuiawi Kinipa, Lepos Yawiri, Steven Tiwa, Rebecca Peape, Vincent Wanpis, Benjamin Imambu, Pastor Jack Paul Peter, Mas Puala and Waimol Lagari. A trial was conducted to determine whether any of the defendants is liable to any of the plaintiffs in relation to any of the five alleged incidents. 

4. The plaintiffs presented affidavit evidence and oral testimony by two plaintiffs. The defendants presented affidavit evidence and no oral testimony, denying all the plaintiffs’ claims.

SUMMARY DISMISSAL OF SOME CLAIMS 

5.   I have decided that some of the plaintiffs’ claims must be summarily dismissed for various reasons. I start with alleged incidents (c), (d) and (e). 
 
6.   Incident (c) relates to the death of the first plaintiff’s son, Denisi Pote. It is pleaded in the statement of claim that the deceased’s body was found on the roadside near the Penthouse nightclub in the early morning of 25 February 2013 and it is loosely alleged that the deceased was murdered. However, no evidence was adduced in support of the allegation and I dismiss this part of the plaintiffs’ case on the basis of the principle that a pleading without evidence remains an unsubstantiated statement of fact, which is not actionable (Pamenda Ipi Pangu v Mak Korr (2015) N6069). 

7.   Incident (d) regarding the alleged assault of some plaintiffs at the mourning house on 28 February 2013 was pleaded in the statement of claim but as in the case of alleged incident (c) no evidence was adduced in support of it, so this part of the plaintiffs’ case is also dismissed, based on the same principle invoked in incident (c).

8.   Incident (e) concerns the alleged assault and unlawful detention of plaintiff Rebecca Peape on 28 March 2013. Evidence including oral testimony by the plaintiff was adduced in support of the allegation but the claim was not pleaded in the statement of claim and for that reason it is dismissed, based on the principle that pleadings “drive” the evidence: evidence without a pleading paving the way for it is inadmissible but if it is admitted, it is ineffectual (Sir Arnold Amet v Peter Charles Yama (2010) SC1064, Ludger Mond v Jeffrey Nape (2003) N2318, John Andama Yula v Simon Noma (2014) N5818). 

9.   All claims pertaining to those incidents are therefore dismissed. That leaves incidents (a) and (b). 

10.   Some plaintiffs, namely Apel Pote, Lepos Yawiri, Steven Tiwa, Vincent Wanpis, Benjamin Imambu, Pastor Jack Paul Peter and Mas Puala, gave no evidence at all in the case, so their claims are entirely dismissed. Though Rebecca Peape gave evidence, it was only in relation to incident (e), which is not supported by the statement of claim. Her claims are also entirely dismissed. 

11.  Other claims arising from incidents (a) and (b) can also be dealt with summarily as, in relation to both incidents, it was neither pleaded nor alleged in evidence that the second, third or fourth defendants was involved. The proceedings against the second, third and fourth defendants are therefore wholly dismissed.

12.   To sum up, I summarily dismiss the following parts of the plaintiffs’ case:

•	all claims relating to alleged incidents (c), (d) and (e);

•	all claims by the plaintiffs Apel Pote, Lepos Yawiri, Steven Tiwa, Vincent Wanpis, Benjamin Imambu, Pastor Jack Paul Peter, Mas Puala and Rebecca Peape;

•	all claims against the second, third and fourth defendants.

13.  The only claims requiring full determination are the claims by four plaintiffs – John Pote, Newman Pote, Kuiawi Kinipa and Waimol Lagari – in relation to incidents (a) and (b), against the first and fifth defendants. 

INCIDENT (a): ALLEGED UNPROVOKED ASSAULT BY FIRST DEFENDANT AT MEDIATION GATHERING, 13 JANUARY 2013

14.  The plaintiffs proved that there was a physical confrontation at the mediation gathering that took place next to Gordon Police Station. There was a fight between the plaintiffs’ group and the first defendant and other members of the Police Force. 

15.   There is competing evidence as to how the fight started. Four plaintiffs gave evidence that the first defendant started it by intruding into the mediation area as the participants were dispersing, as the mediation was unresolved and adjourned for a week. He caused a disturbance. He was drunk and abusive and punched plaintiff John Pote in the face without provocation. 

16.  The first defendant testified that he did not instigate the fight. It was the plaintiffs or people aligned with them who started it. He was punched and then hit with a brick in the face and his jaw was broken. He does not know why. He was not intoxicated. He does not drink alcohol. He is a Seventh-Day Adventist and Church Elder. His evidence was corroborated by the evidence of three persons who were present: two members of the Police Force, the other was one of the wives of the first plaintiff, Apel Pote. These witnesses said that the fight started after the first defendant was struck in the face by members of the plaintiffs’ group and badly injured. The first defendant’s evidence that he is an SDA Church Elder was supported by Warimo Avana, Senior Pastor at the Gordon SDA Church. There is medical evidence to support the first defendant’s evidence that he suffered a broken jaw. 

17.   It is the plaintiffs who bear the onus of proof. I am not satisfied that they have proven their case on the first incident. I find the defendants’ evidence more persuasive. I find that it was the plaintiffs’ group that started the fight by striking the first defendant in the face and breaking his jaw, without provocation.

18.   It is a mystery why the first defendant was struck. It is also a mystery why all persons giving evidence say that they have ‘no idea’ what motivated the assault. I find that difficult to believe. However it is not my job to solve mysteries when both sides have no explanation or are unwilling for whatever reason to share it. All plaintiffs’ claims arising from the first incident are dismissed. 

INCIDENT (b): ALLEGED UNLAWFUL DETENTION AND TORTURE OF PLAINTIFFS, 13-17 JANUARY 2013

19.  Four plaintiffs – John Pote, Newman Pote, Kuiawi Kinipa and Waimol Lagari – gave evidence that straight after the fight with the police, they were rounded up and detained in the Gordon Police-lock up. They testified that they remained in custody from Sunday 13 January 2013 until released by an unknown member of the Police Force on Thursday 17 January 2013. In that period they were assaulted by the police and subject to torture as they were given no food or water and their relatives who came to visit them and give them food were turned away. They were not charged and were not taken before a court.  

20. The defendants did not dispute the allegation that the plaintiffs were detained without charge and without being taken before a court in the period from 13 to 17 January 2013. The allegations that the plaintiffs were assaulted and given no food and water and that their relatives were turned away, were disputed.

21.  I find that the plaintiffs were unlawfully detained for four days as they should have been brought before a court or judicial officer without delay after being arrested or detained, in compliance with their rights as detained persons under Section 42(3) of the Constitution.

22.   I find it unproven that the plaintiffs were assaulted as the plaintiffs have presented no medical evidence to support this allegation. I find it too difficult to believe and reject the contention that they were entirely deprived of food and water for four days. However, the defendants presented no evidence to directly rebut the plaintiffs’ evidence so I find it proven that the plaintiffs were given an inadequate supply of food and water. 

23.   The four plaintiffs have proven that their treatment amounted to a breach of human rights, in particular:

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

•	right to be treated with humanity and respect for the inherent dignity of the human person  (Constitution, Section 37(17)); and

•	protection against unlawful deprivation of liberty (Constitution, Section 42).

24.   I reject the contention that the plaintiffs were submitted to “torture” in the sense that that term is used in Section 36(1) of the Constitution. It has not been proven that the members of the Police Force who breached the plaintiffs’ human rights did so with the intent and effect of treating them as less than human (Billy Bau v Mathew Bine (2016) N6268). 

WHO IS LIABLE?

25.   The plaintiffs have not proven that the first defendant was responsible for the human rights violations that they suffered, but have proven that such violations were committed by some members of the Police Force at Gordon Police Station in connection with purported performance of police functions. The fact that the plaintiffs have not named the actual members who committed the human rights violations as defendants or identified them in the statement of claim or in evidence is of no consequence in light of the recent Supreme Court decision in Philip Nare v The State (2017) SC1584, which overruled an earlier Supreme Court decision on these issues in Linda Kewakali v The State (2011) SC1091. 

26.  I am satisfied that the evidence is sufficient to warrant a finding of vicarious liability against the State, as: 

•	an employer-employee relationship existed between the State and members of the Police Force, 

•	those members of the Police Force were guilty of acts and omissions amounting to breach of the plaintiffs’ human rights; 

•	the human rights breaches were committed in the course of the employees’ employment, in purported performance of police functions (Jeff Joe Lome v Katu Sele (2017 N6854).

CONCLUSION

27.   Judgment on liability will be entered in favour of four plaintiffs against the State for human rights breaches committed against them in relation to the second incident. All other claims are dismissed. As neither side has succeeded fully the parties will bear their own costs. 

ORDER 

(1)	The plaintiffs John Pote, Newman Pote, Kuiawi Kinipa and Waimol Lagari have established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 37(17) and 42(1) of the Constitution, against the fifth defendant, in respect of their unlawful detention and treatment at Gordon Police Lock-up from 13 to 17 January 2013.

(2)	All other claims by the plaintiffs are dismissed including all claims by other plaintiffs and the entire proceedings against the first, second, third and fourth defendants. 

(3)	The question of assessment of damages will, if necessary, be determined at a separate trial.

(4)	The parties will bear their own costs of the proceedings to date. 

Judgment accordingly,
________________________________________________________________
Napu & Company Lawyers:  Lawyers for the Plaintiffs 		
Solicitor General:   Lawyer for the Defendants