|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP (HR) NO 554 OF 1999
BRUNO YARA, ANNA YARA, ROSA YARA,
CHEROBIM YARA & RUDOLF YARA
Plaintiffs
V
KAMI YANJUAN
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Cannings J
2016: 29 April, 1 July,
2018: 23 February
HUMAN RIGHTS – enforcement – trial on liability – five alleged incidents of human rights violations by members of the Police Force – alleged unlawful entry and search of plaintiffs’ home – alleged assault and unlawful detention of plaintiffs.
The five 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) forced entry and search of plaintiffs’ home without warrant and destruction of property; (b) unlawful arrest, detention and assault of first son of lead plaintiff; (c); unlawful arrest, detention and assault of second son of lead plaintiff (d) unlawful arrest and detention of lead plaintiff; (e) unlawful arrest, detention and assault of third son of lead plaintiff. The plaintiffs commenced proceedings against the commander of the local police station and the State, which was claimed to be vicariously liable for such violations. A trial was conducted to determine whether either of the defendants was liable. The plaintiffs presented affidavit evidence by four plaintiffs and oral testimony by the lead plaintiff. The defendants presented affidavit evidence by the first defendant, and denied all the plaintiffs’ claims. The defendants argued that the search and entry of the plaintiffs’ home was justified as the police were in immediate pursuit of members of the plaintiffs’ family who were implicated in a bank robbery that had occurred the previous day and the arrest and detention of members of the plaintiffs’ family was authorised by law as all persons arrested and detained were suspected on reasonable grounds to have aided or assisted those persons who directly committed the robbery.
Held:
(1) As to incident (a) the four plaintiffs who gave evidence proved that there was a raid of their home in the early morning, involving forced entry and search of their premises without a warrant and without lawful excuse (the defence that the police were in “immediate pursuit” for purposes of Section 5(5) of the Search Act was rejected), and that this amounted to a breach of human rights, in particular:
- right to full protection of the law (Constitution, Section 37(1));
- protection against harsh and oppressive acts (Constitution, Section 41(1));
- freedom from arbitrary search and entry (Constitution, Section 42).
(2) Incident (b) was dealt with summarily as the son in question was not a plaintiff and did not give evidence. All claims pertaining to that incident were dismissed.
(3) As to incidents (c), (d) and (e), it was not proven that any of the plaintiffs were assaulted by police but it was proven that the persons arrested were detained for extensive periods 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).
(4) The plaintiffs failed to prove that the first defendant was primarily 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 second defendant, was vicariously liable.
(5) Judgment on liability was entered against the State for the human rights breaches committed against some plaintiffs in respect of four of the incidents. All other claims including the entire proceedings against the first defendant were dismissed.
Cases cited
The following cases are cited in the judgment:
Jeff Joe Lome v Katu Sele (2017) N6854
Jonathan Paru v The State (2012) N4572
Linda Kewakali v The State (2011) SC1091
Namuesh v The State [1996] PNGLR 211
Philip Nare v The State (2017) SC1584
Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022
Rex Tomara v Ok Tedi Mining Ltd (2014) N5821
The State v Popo [1987] PNGLR 286
STATEMENT OF CLAIM
This was a trial on liability to determine the plaintiffs’ claims for enforcement of human rights.
Counsel:
O O Dekas, for the Plaintiffs
T Mileng, for the Defendants
23rd February, 2018
1. CANNINGS J: This is an old human rights case concerning events that happened almost 20 years ago at Tabubil, Western Province. It was left un-prosecuted for many years and was almost dismissed for want of prosecution on several occasions. The delay in dealing with it is not due to any neglect on the part of the Court, but to how it was dealt with by the plaintiffs’ previous lawyers. The case has survived and is now dealt with on its merits.
2. The lead plaintiff is Bruno Yara from Turingi, East Sepik Province, who at the time was an employee of the Ok Tedi Mining Company living at Tabubil with his two wives, Anna Yara and Rosa Yara, and three adult sons, Terence Yara, Cherobim Yara and Rudolf Yara. His wives and sons, apart from Terence, are also plaintiffs.
3. They allege that the first defendant, Kami Yanjuan, and other members of the Police Force were involved in five incidents in 1998 in which their human rights were breached. The event that sparked the incidents was an armed robbery of the Papua New Guinea Banking Corporation branch at Tabubil on Wednesday 22 July 1998. The first defendant was at the time the Commander of Tabubil Police Station, holding the rank of Inspector. He and other members of the Police Force suspected that Bruno Yara and his three sons had aided those who directly committed the robbery. Four men the police suspected of directly committing the robbery were, according to the evidence of Mr Yanjuan, shot dead in two incidents in the course of a police operation on 6 and 7 August 1998. Those incidents are not the subject of this case.
4. The five incidents in which the plaintiffs allege that their human rights were breached by police are:
(a) forced entry and search of the plaintiffs’ home without warrant and destruction of property at 2.30 am on Thursday 23 July;
(b) unlawful arrest, detention and assault of Terence Yara, from 7.00 pm on Friday 24 July to Tuesday 18 August;
(c) unlawful arrest, detention and assault of Cherobim Yara, from 10.00 pm on Friday 24 July to Tuesday 18 August;
(d) unlawful arrest and detention of Bruno Yara, from Sunday 9 August to Tuesday 18 August; and
(e) unlawful arrest, detention and assault of Rudolf Yara from Tuesday 11 August to Tuesday 18 August.
5. The plaintiffs commenced proceedings in 1999 by filing an application for enforcement of human rights under Section 57 of the Constitution. The proceedings remained un-prosecuted in that form until 2011 when the Court gave directions for the plaintiffs to put their claims in the form of a statement of claim so that the case could continue on pleadings. The statement of claim pleads causes of action in breach of human rights committed by the first defendant and other members of the Police Force, who are un-named and have not been joined as defendants. The second defendant is the State. The plaintiffs claim that the State is vicariously liable for the human rights breaches committed by the first defendant and other members of the Police Force and seek damages.
6. A trial was conducted to determine whether either of the defendants is liable to any of the plaintiffs in relation to any of the five alleged incidents.
7. The plaintiffs presented affidavit evidence by four plaintiffs and oral testimony by the lead plaintiff. The defendants presented affidavit evidence by the first defendant, and denied all the plaintiffs’ claims.
INCIDENT (a): FORCED ENTRY AND SEARCH OF THE PLAINTIFFS’ HOME, THURSDAY 23 JULY 1998, 2.30 AM
8. The defendants do not dispute that there was a police raid on the plaintiffs’ home in Tabubil at the time alleged, that the police forced entry into the house and conducted a thorough search of the premises and that they did not have a search warrant or other express authority to do so. I accept those concessions and find as a fact that a police raid occurred in the manner alleged in that there was a forced and surprise entry into a private residence in the early hours of the morning while the plaintiffs were asleep and that the police conducted a thorough search of the premises.
9. The defendants deny damaging any of the plaintiffs’ property. On that issue, I uphold the defendants’ argument and dismiss that part of the plaintiffs’ case as there is insufficient evidence of loss or damage to property.
10. As to the manner in which the search was conducted I accept the plaintiffs’ evidence that it was not conducted in an orderly and respectful manner, but in a rough and rowdy manner in that the police shouted at the plaintiffs and treated them with disdain, though I find insufficient evidence of any physical assault on any of the plaintiffs or other persons present in the house.
11. Those are my findings of fact. The legal question of whether what happened amounted to a breach of human rights must now be tested according to Section 44 (freedom from arbitrary search and entry) of the Constitution, which states:
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—
(a) that makes reasonable provision for a search or entry—
(i) under an order made by a court; or
(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
(v) for the purpose of inspecting or taking copies of documents relating to—
(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
(B) the affairs of a company in accordance with a law relating to companies; or
(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
(b) that complies with Section 38 (general qualifications on qualified rights).
12. Section 44 of the Constitution confers three rights on every person in Papua New Guinea:
13. There are two exceptions to the availability of those rights. The first is expressly provided for by Section 44: where the search is conducted in accordance with a law regulating or restricting the exercise of that right that complies with Sections 44(a) or (b). An example of a law falling into this category is the Search Act Chapter No 341. The second exception is where a search of a person or their property is conducted or their premises are entered in accordance with the consent of the person concerned (Rex Tomara v Ok Tedi Mining Ltd (2014) N5821).
14. In the present case the plaintiffs’ persons and properties were searched and their premises were entered by members of the Police Force. The plaintiffs did not consent to that conduct so the question is whether the actions of the police were justified by a law that complies with Sections 44(a) or (b). The defendants rely on Section 5(5) of the Search Act, which states:
Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may, or persons authorized by him may, search any building or place in which he believes on reasonable grounds that the person being pursued—
(a) is concealed; or
(b) has, in the course of his pursuit, concealed or deposited anything.
15. The first defendant has given sufficient evidence of his belief based on reasonable grounds that Bruno Yara and his sons had committed an indictable offence due to intelligence that he possessed implicating them in the armed robbery. The question then is whether the police were in “immediate pursuit” of the plaintiffs. I answer that question in the negative. “Immediate pursuit” means immediate, physical pursuit, or “hot pursuit”, where there is no opportunity or time to take any other course of action otherwise the opportunity for apprehension of a person or seizure of property will be lost (The State v Popo [1987] PNGLR 286, Namuesh v The State [1996] PNGLR 211).
16. Here, the robbery took place at 1.00 pm on Wednesday 22 July. The raid took place 13 and a half hours later. That was ample time within which to make a genuine attempt to obtain a warrant. From the evidence it must be inferred that no attempt was made. The forced entry of the plaintiffs’ premises and the search of their persons and properties was not justified by law and was unlawful.
17. Having regard to the manner in which the raid was conducted, I find that the plaintiffs who have given evidence of what happened – Bruno, Anna, Cherobim and Rudolf Yara – have proven a breach of their human rights, in particular:
18. I reject all claims by or on behalf of plaintiff Rosa Yara as she did not give evidence.
INCIDENT (b): ARREST, DETENTION AND ASSAULT OF TERENCE YARA
19. The alleged arbitrary arrest, detention and assault of Terence Yara is pleaded in the statement of claim and there is evidence of those events. However Terence Yara is not a plaintiff and has not given evidence. All claims made on his behalf are refused.
INCIDENTS (c), (d) & (e): ARREST, DETENTION AND ASSAULT OF CHEROBIM YARA, BRUNO YARA & RUDOLF YARA
20. The defendants do not dispute the factual allegations that these three plaintiffs were arrested and detained for their alleged involvement in assisting the persons who directly committed the bank robbery and that they were not charged and not taken before a court during the period of their detention. The allegation that Cherobim Yara and Rudolf Yara were beaten badly by police while they were in custody is refuted. The defendants argue that the plaintiffs’ arrest and detention were justified as they were suspected on reasonable grounds of having been involved in the bank robbery.
21. I accept that reasonable grounds existed justifying their arrest and detention. However the existence of such grounds did not relieve the police of their obligations under Section 42(3) of the Constitution. Once a person is deprived of their liberty, even if the deprivation is lawful, the deprivation of liberty will only remain lawful if all the rights of a detained person conferred by the Constitution are administered to him. In this case it is clear that two of the most important of those rights – those conferred by Section 42(3) – were breached. Section 42(3) states:
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.
22. Section 42(3) confers two rights on a person who is arrested and detained. First, he must be brought before a court “without delay”, ie immediately. Secondly he is not to be detained in custody any longer except by a court order (Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022, Jonathan Paru v The State (2012) N4572).
23. In this case the three plaintiffs were deprived of their liberty, lawfully, on reasonable suspicion of having committed offences. Those who detained them were obliged to take them before a court without delay and to ensure that they were not further held in custody except by the order of a court or judicial officer. Both those obligations were breached and the detention of the plaintiffs became unlawful on the date of breach of those obligations. What were the dates?
24. Cherobim Yara was arrested and detained at 10.00 pm on Friday 24 July. He should have been brought before a court by Monday 27 July. He was not, so his detention became unlawful on 27 July. He was unlawfully detained from 27 July to his release on 18 August.
25. Bruno Yara was arrested and detained on Sunday 9 August. He should have been brought before a court by Monday 10 August. He was not, so his detention became unlawful on 10 August. He was unlawfully detained from 10 August to his release on 18 August.
26. Rudolf Yara was arrested and detained on Tuesday 11 August. He should have been brought before a court by Wednesday 12 August. He was not, so his detention became unlawful on 12 August. He was unlawfully detained from 12 August to his release on 18 August.
27. I find it unproven that Cherobim Yara and Rudolf Yara were assaulted as the plaintiffs have presented no medical evidence to support these allegations. However, I accept their evidence and find it proven that they and their father were given an inadequate supply of food and water for the period of their detention. The three have proven that their treatment amounted to a breach of human rights, in particular:
WHO IS LIABLE?
28. The plaintiffs have not proven that the first defendant was exclusively responsible for all the human rights violations that they suffered, but have proven that such violations were committed by some members of the Police Force at Tabubil 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.
29. I am satisfied that the evidence is sufficient to warrant a finding of vicarious liability against the State, as:
CONCLUSION
30. Judgment on liability will be entered in favour of four plaintiffs in relation to incident (a) and in favour of Cherobim Yara, Bruno Yara and Rudolf Yara in relation to incidents (c), (d) and (e) respectively. All other claims are dismissed. As neither side has succeeded fully the parties will bear their own costs.
ORDER
(1) Four plaintiffs, Bruno Yara, Anna Yara, Cherobim Yara and Rudolf Yara, have established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 42(1) and 44 of the Constitution, against the second defendant, in respect of the unlawful entry and search of their premises, property and persons at Tabubil on 23 July 1998.
(2) Plaintiff Cherobim Yara has established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 37(17) and 42 of the Constitution, against the second defendant, in respect of his unlawful detention and treatment at Tabubil Police Lock-up from 27 July to 18 August 1998.
(3) Plaintiff Bruno Yara has established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 37(17) and 42 of the Constitution, against the second defendant, in respect of his unlawful detention and treatment at Tabubil Police Lock-up from 10 to 18 August 1998.
(4) Plaintiff Rudolf Yara has established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 37(17) and 42 of the Constitution, against the second defendant, in respect of his unlawful detention and treatment at Tabubil Police Lock-up from 12 to 18 August 1998.
(5) All other claims by the plaintiffs are dismissed including all claims by or on behalf of Rosa Yara and Terence Yara, and the entire proceedings against the first defendant.
(6) The question of assessment of damages will, if necessary, be determined at a separate trial.
(7) The parties will bear their own costs of the proceedings to date.
Judgment accordingly,
________________________________________________________________
Murray & Associates Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2018/48.html