SC1887
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 91 OF 2018

BETWEEN
ANDY ASUMA trading as ANDY ASUMA TRADING
First Appellant

AND
JOHN MOLU, NICK ASUMA, BENJAMIN MULU, REX LANO, LUKAS KUMUI & MARK TOMBIAGO
Second Appellants

AND
MR. TIONG JUK CHUONG, Operations Manager,
Wawoi Guavi Timber Company Limited
First Respondent

AND
MR WONG KEH YEE, Manager Straits Marine,
Wawoi Guavi Timber Company Limited
Second Respondent

AND
WAWOI GUAVI TIMBER COMPANY LIMITED
Third Respondent

AND
SENIOR SERGEANT JERRY BIAMAGA
Fourth Respondent

AND
FIRST CONSTABLE FRANK JOHE
Fifth Respondent

AND
SECURITY GUARDS GERO BILLY, IDIE UGU, ADIE WAME, IVAN IBALE, GIDION GAIWA & ILE BAIWABA
Sixth Respondents

Waigani:  Hartshorn, Makail & Bona, JJ
2019: 30th April & 18th December

SUPREME COURT – CIVIL APPEALS – Appeal from dismissal of civil action – Enforcement of breaches of human rights – Destruction of property and assault of appellants – Breaches committed by members of police force – Failure to prove tort committed by servants or agents of a company – Principles of vicarious liability considered

EVIDENCE – Proof of liability – Admissibility of evidence – Hearsay evidence, vague and lacked details – Affidavit evidence not tested in cross-examination – Weight to be given to untested evidence   

Facts

The appellants commenced proceedings in the National Court and claimed damages for breaches of human rights under Sections 36, 37, 42, 44 and 53 of the Constitution following a police-led operation targeting the first appellant’s business premises, after allegations that it was the site of an illicit trade in alcohol and drugs.  It resulted in the first appellant being arrested and removed and his premises destroyed.  The appellants alleged also that the second appellants were unlawfully assaulted and detained at the behest and the financial and logistical support of the third respondent company and its management, especially the first and second respondents.  The appellants further alleged that the first, second and third respondents were vicariously liable for the human rights breaches directly committed against them by the members of the police force led by the fourth respondent.

Held:

1.	In a case where the evidence of both parties is conflicting, as in this case and it requires the trial judge’s exercise of judicial discretion in considering and weighing the competing evidence of the parties, this Court’s role in an appeal from such a decision will be not to interfere unless an identifiable error has occurred in the exercise of discretion: Australia Coal and Shale Employees’ Union v. The Commonwealth (1956) 94 CLR 621, adopted by the Supreme Court in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.

2.	An identifiable error may occur where the trial judge acted upon a wrong principle, or gave weight to extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant considerations or made a mistake as to the facts.  Even if there is no identifiable error, the judgment or order may be set aside if it is unreasonable or plainly unfair and such that an error can be inferred: Australia Coal and Shale Employees’ Union v. The Commonwealth (1956) 94 CLR 621, adopted by the Supreme Court in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.

3.	The evidence of the appellants’ witnesses was not only hearsay but was vague and lacked detail in relation to the identification of any of the fourth, fifth or sixth respondents as being involved in the raids, or destruction of the first appellant’s business premises and removal from the area.

4.	Where the evidence is untested and subject to complying with the rules on admissibility, it is open to a trial judge to accept it as the unchallenged evidence of the witness.  However, where the evidence of the opposing party is tested in cross-examination, the trial judge is placed in a better position not only to have heard the oral evidence of the witness but also to have observed the demeanour of the witness in order to form a view on the credibility of the witness’s evidence.  

5.	The trial judge is in a better position than this Court to make a decision as to which of the parties’ witnesses’ evidence should be accepted because not only does he hear the oral evidence of the witnesses but he also observes their demeanour.  He is better able to conclude whether they are credible witnesses and whether their evidence should be accepted.

6.	Overall the evidence shows that the police operation was internally authorised by the police as opposed to the third respondent company requesting or authorising the police to conduct the operation but it falls short of identifying the tortfeasors as servants or agents of the third respondent company.  For these reasons, it was open to the trial judge not to hold the third respondent company vicariously liable for the loss suffered by the appellants.

7.	The appeal is dismissed with costs.

Cases cited:
Papua New Guinea cases

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

Overseas cases

Australia Coal and Shale Employees’ Union v. The Commonwealth (1956) 94 CLR 621

Counsel:

Mr. P. Ame, for Appellants
Mr. A. Mana, for First, Second & Third Respondents
Mr. G. Akia, for Fourth & Fifth Respondents
No appearance, for Sixth Respondents

JUDGMENT

18th December, 2019

1.	BY THE COURT: The appellants commenced proceedings in the National Court and claimed damages for breaches of human rights under Sections 36, 37, 42, 44 and 53 of the Constitution following a police-led operation targeting the first appellant’s business premises, after allegations that it was the site of an illicit trade in alcohol and drugs.  

2.	It resulted in the first appellant being arrested and removed and his premises destroyed.  The second appellants were unlawfully assaulted and detained at the behest and the financial and logistical support of the third respondent company and its management, especially the first and second respondents.  The appellants alleged that the first, second and third respondents were vicariously liable for the human rights breaches directly committed against them by the members of the police force led by the fourth respondent.

Findings by the National Court 

3.	The National Court after analysing the evidence of the parties concluded that the appellants had proved the bulk of the allegations of breaches of human rights under the Constitution being breaches of: 

•	liberty under Section 42,
•	freedom from arbitrary search and entry under Section 44,
•	protection from unjust deprivation of property under Section 53,
•	freedom of inhuman treatment under Section 36, and
•	the full protection of the law under Section 37. 

4.	The Court held however, that the appellants had failed to prove that any of the fourth, fifth or sixth respondents were responsible for infringement of the human rights.  It was the Court’s finding that the evidence proved that the third respondent only provided logistical support at the request of the police and concluded that the appellants had failed to prove that the first, second and third respondents requested or authorised the police operation or the infringement of their human rights and were vicariously liable for the loss.  In summary, the appellants had failed to prove liability.

Grounds of Appeal

5.	The appellants appeal against this decision relying on eighteen grounds.  These grounds are repetitious but the recurring issue in each of them is whether there was evidence to prove that the third respondent company was vicariously liable for the actions and/or omissions of the first, second, fourth, fifth and sixth respondents.  

Parties’ Submissions

6.	The appellants submitted that having held that the policemen and company officials breached their constitutional rights, the trial judge erred when he did not find that the third respondent was liable for the breaches and consequently, damages.  

7.	The first, second and third respondents who were represented at the trial and also in this appeal, submitted that if the Court was to consider the evidence of the appellants, it would conclude that there was no evidence to connect the first, second and third respondents to the police activities, apart from the provision of logistical support.  Significantly, it may be that the third respondent benefited from the police activities but it is unsafe to draw an inference on this fact and hold the third respondent vicariously liable for the actions and/or omissions of the fourth, fifth and sixth respondents.

Principles of Vicarious Liability

8.	A clear statement of principle on vicarious liability may be found at paragraph 568 of Volume 16 of Halsbury Laws of England where it is stated that at common law, given the existence of a relationship between an employer and employee, a duty is to be implied on the part of the employer to indemnify or to reimburse his employee against all liabilities and loss and in respect of all expenses incurred by the employee either in consequence of obedience to his orders or incurred by him in the execution of his authority, or in the reasonable performance of the duties of his employment.  No right of indemnity or reimbursement, however, exists where the liabilities or expenses are incurred by the employee for his own purposes or on his own frolic.

Trial Judge’s Assessment of Evidence

9.	The appellants’ evidence consisted of affidavits from Andy Asuma, Ula Baiwaba, Kaiks Esami, Gasi Waiba, Elvis Kalo and Senior Sergeant Simon Kewa Kur.  The affidavits were tendered with no cross-examination of the deponents.  As for the respondents, three witnesses gave affidavit and oral evidence.  They were First Constable Frank Johe, Constable Greg Nanu and the Operations Manager of the third respondent company Wong Keh Yee.  To test the veracity of their evidence they were cross-examined by the appellants’ counsel.

10.	After analysing the evidence, the National Court held that first, there was insufficient evidence to prove that any of the fourth, fifth or sixth respondents were responsible for breaches of the appellants’ human rights.  Secondly, there was only circumstantial evidence implicating Senior Sergeant Biamaga (led the police raid) and First Constable Frank Johe (was present and participated in the police raid).

11.	Thirdly, the appellants’ evidence of cash being paid by the third respondent company to police and security personnel was vague and unconvincing.  Fourthly, Mr. Wong was a credible witness and that the third respondent company provided only logistical support such as rations and transport at the request of the police.  Finally, the evidence of First Constable Joe in relation to the police operation being internally authorised was accepted as credible.

Consideration of Trial Judge’s Assessment of Evidence

12.	In a case where the evidence of both parties is conflicting, as in this case and it requires the trial judge’s exercise of judicial discretion in considering and weighing the competing evidence of the parties, this Court’s role in an appeal from such a decision will be not to interfere unless an identifiable error has occurred in the exercise of discretion.  An identifiable error may occur where the trial judge acted upon a wrong principle, or gave weight to extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant considerations or made a mistake as to the facts. Even if there is no identifiable error, the judgment or order may be set aside if it is unreasonable or plainly unfair and such that an error can be inferred: see Australia Coal and Shale Employees’ Union v. The Commonwealth (1956) 94 CLR 621, adopted by the Supreme Court in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788.

Evidence of Andy Asuma

13.	In the instant case the evidence of Andy Asuma is not only hearsay but vague and lacks detail in relation to identification of any of the fourth, fifth or sixth respondents as being involved in the raid or destruction of his business premises and his removal from Kamusie.  An example of the evidence failing to meet this admissibility test is that, he heard in March 2011 that a police operation was planned at the request of the third respondent company, which wanted Highlanders removed from the area and that soon after he was removed from his business premises, police moved in and burned down his stores and dwelling houses and nothing was left.  

14.	As to lack of details, he does not depose anywhere in his affidavit that any of the fourth, fifth or sixth respondents destroyed and burnt down his stores and dwelling houses.  In fact he named a police reservist by the name of Judah Misi who was not a defendant in the National Court proceeding as being the person who forced him at gunpoint to go to Kamusie Police Station.  When he arrived there, he was assaulted by a group of policemen.  Again, he does not identify any of the policemen who assaulted him.

 15.	In essence the identity of the perpetrators or tortfeasors and they being servants or agents of the third respondent company is missing in the evidence of Mr Asuma.  This evidence does not advance his cause and puts the trial judge in an impossible position.  The trial judge is unable to make a finding in his favour that the raid on his business premises and the assault was perpetrated by any of the fourth, fifth or sixth respondents.

Evidence of Ula Baiwaba

16.	The evidence of Ula Baiwaba suffers from the same deficiencies found in the evidence of Mr. Asuma.  Moreover, his assertions that a Michael Pitias and agent of the third respondent company paid K700.00 to the policemen was not tested in  cross-examination, as opposed to the evidence of Mr Wong which was.  Where the evidence is untested and subject to complying with the rules on admissibility, it is open to a trial judge to accept it as unchallenged evidence of the witness.  However, where the evidence of the opposing party has been tested in cross-examination, a trial judge is placed in a better position not only by having heard the oral evidence of the witness but also by observing the demeanour of the witness.  He is better able to form a view on the credibility of the witness’s evidence in his search for the truth.  

17.	The evidence of Mr Baiwaba was untested as opposed to the evidence of Mr Wong.  The trial judge preferred the evidence of Mr Wong as he found Mr Wong a credible witness.  The trial judge was in a better position than this Court to make that call because not only did he hear the oral evidence of Mr Wong but he also observed his demeanour.  He was able to conclude that Mr Wong was a credible witness and accepted his evidence that the third respondent company provided only logistical support such as rations and transport at the request of the police for the operation.

Evidence of Kaiks Esami

18.	The affidavit evidence of Kaiks Esami attempts to shift the blame from the local leaders of the area to the third respondent company as being responsible for requesting police to remove the appellants from Kamusie.  However, similar to the evidence of Mr Baiwaba, Mr Esami’s evidence was untested as opposed to the evidence of Mr Wong whose evidence was tested in cross-examination and found to be credible.  Again, the trial judge was in a better position than this Court to make that call.

Evidence of Gasi Waiba

19.	In his affidavit, Gasi Waiba deposes that he is a police reservist based at Kamusie.  He took part in the police raid of Mr Asuma’s premises.  He corroborates Mr Asuma’s evidence of being assaulted and forcibly removed from Kamusie.  However, his evidence suffers from the same deficiencies found in the evidence of Mr Asuma and Mr Baiwaba.  He does not say if any of the fourth, fifth or sixth respondents destroyed the first appellant’s business premises and dwelling houses or whether they were involved in the assault of the first appellant.

Evidence of Elvis Kalo

20.	The affidavit evidence of Elvis Kalo, a police reservist based at Sesereme is similar to the evidence of police reservist Gasi Waiba.  He also took part in the police raid.  In addition, it corroborates the evidence of Mr Wong that the third respondent company supplied logistical support including transport to the policemen to conduct the operation.  Again, as his evidence was not tested in cross-examination as opposed to Mr Wong’s evidence, the trial judge preferred Mr Wong’s evidence over his evidence that the operation was purposely to remove Highlanders from the area and secondly, that he was given K700.00 at the beginning of the operation and promised a further K700.00 if the operation was successful.  Again, the trial judge was best placed to make that call.

Evidence of Senior Sergeant Simon Kewa Kur 

21.	The affidavit evidence of Senior Sergeant Simon Kewa Kur attempts to put the blame on a Senior Sergeant named Jerry Biamaga for planning the police operation and not obtaining approval from the police hierarchy.  In other words, it was an unauthorised police operation.  Again, similar to the other appellants’ witnesses, Senior Sergeant Kur’s evidence was not tested in cross-examination while the evidence of First Constable Johe was.  The latter’s evidence was that the police operation was internally authorised.  Given this, the trial judge preferred the latter’s evidence and found that the police operation was internally authorised.   As was the case with the trial judge’s assessment of Mr Wong’s evidence, the trial judge was in a better position than this Court when he heard the oral evidence of this witness.  He also observed his demeanour and was able to form a view that this aspect of his evidence was credible and accepted it.

Conclusion

22.	We conclude that the appellants have failed to establish that the trial judge made identifiable errors in his assessment and treatment of the evidence of the parties in order for us to interfere with the decision.  For instance, it has not been shown that his Honour acted on a wrong principle of law when he preferred the evidence of the respondents’ witnesses Mr Wong and Mr Johe over their witnesses’ evidence.  Further, they have not shown that his Honour gave weight to extraneous or irrelevant matters.  Furthermore, they have not shown that his Honour failed to give weight or sufficient weight to relevant considerations.  On the other hand, the trial judge’s assessment and treatment of the evidence of both parties was consistent with the rules of evidence as outlined above.  

23.	Overall the evidence shows that the police operation was internally authorised by the police as opposed to the third respondent company requesting or authorising the police to conduct the operation but it fell short of identifying the tortfeasors as servants or agents of the third respondent company.  For these reasons, it was open to the trial judge not to hold the third respondent company vicariously liable for the loss suffered by the appellants.

24.	Finally, there may be no identifiable error but as the trial judge had held that the bulk of the allegations of breaches of human rights under the Constitution had been proven, it is open to us to find that the decision to dismiss the claim should be set aside because it is unreasonable or plainly unfair in circumstances where police reservist named Judah Misi, Gasi Waiba, Evlvis Kalo and Senior Sergeant Jerry Biamaga were identified as being tortfeasors such that an error can be inferred.  However, it is also clear to us and we emphasize that the claim for damages for breaches of human rights was made solely against the third respondent company as the requesting or authorising party of the police operation.  On this premise the claim was bound to fail because it was not proved that the tortfeasors were servants or agents of the third respondent company.  

25.	Moreover, the State as the employer of those policemen who have been identified as responsible for the human rights breaches could not be held vicariously liable for their actions and/or omissions because it was not a defendant in the proceedings below.

26.	The appeal is dismissed for these reasons.

Order

27.	The orders are:

1.	The appeal is dismissed.

2.	The appellants shall pay the costs of the appeal, to be taxed, if not agreed.

________________________________________________________________
Ame Lawyers:	Lawyers for Appellants
Corrs Chambers Westgarth Lawyers:	Lawyers for First, Second & Third Respondents
Solicitor General:	Lawyers for Fourth & Fifth Respondents