Kofowei v Siviri [1983] PNGLR 449 (21 December 1983)

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[1983] PNGLR 449 - David Wari Kofowei v Augustine Siviri, Iopave Kero, Joseph Seki, James Nanatsi and The State

POLICE - Action for wrongs - Liability of State - Servants, agents or officers of State - Wrongs (Miscellaneous Provisions) Act (Ch. No. 279), s. 1(1)(a) and (4).

POLICE - Action for wrongs - Assault - Liability for of State - Scope of employment or functions - Apprehension - Restraint - Interrogation - Damages - Quantum.

POLICE - Action for wrongs - False imprisonment - Nature of tort - Detention in breach of Arrest Act - Damages - Quantum - Liability of State - Gross negligence of police officers - Liability of State limited - Arrest Act (Ch. No. 340), s. 29(2)(a).

POLICE - Action for wrongs - Breach of constitutional rights - Detention in breach of Arrest Act - Inhuman treatment - Assaults - Holding in handcuffs - Liability of police force - Damages - Quantum - Constitution, ss 36(1), 58, Sch. 1.2.

STATE SERVICES - Police force - Action for wrongs - Liability of State - Police as servants, agents or officers of State - Wrongs (Miscellaneous Provisions) Act (Ch. No. 279), s. 1(1)(a) and (4).

HUMAN RIGHTS - Breach of constitutional rights - Inhuman treatment - Detention contrary to Arrest Act - Assault by police officers - Holding in handcuffs - Liability of police force - Liability of State - Damages - Quantum - Constitution, ss 36(1) 58, Sch. 1.2.

In July 1979, the plaintiff was apprehended by two police officers in relation to a subsequent charge of being in possession of a handbag reasonably suspected of being stolen contrary to s. 6 of the Summary Offences Act, and taken to the Goroka police station where he was detained and left handcuffed for two days and subjected to treatment over a period of four days including being forced to stand on one leg with his arm raised for long periods, being kicked in the knee, being hit on the back of the neck, being burnt on the lips with a cigarette, being slapped on the face, punched in the chest and being hit with a stick on the penis. At no time was the plaintiff told that he was being arrested or the reason therefor as required by s. 18(1)(c) of the Arrest Act (Ch. No. 339).

(a) three police officers involved for assault and breaches of constitutional rights;

(b) the officer in charge of the police station for breaches of s. 18(1) of the Arrest Act (Ch. No. 339), s. 5 of the Bail Act (Ch. No. 340) and breaches of constitutional rights and false imprisonment and;

(1) The members of the police force of Papua New Guinea are servants or agents of the State for the purposes of s. 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 279).

(2) The members of the police force of Papua New Guinea may be officers of the State in certain circumstances for the purposes of s. 1(4) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 279).

(3) For the purposes of liability under s. 1(1) and s. 1(4) the acts of the police officers must be acts within the scope of their police employment or functions.

(4) In the circumstance the police officers were acting within the scope of their employment or functions in:

(6) Exemplary damages should be awarded in the sum of K1,000 against each of the two police officers who had actually assaulted the plaintiff.

(8) The tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification and preventing him from exercising his right to leave the place of detention and continues from apprehension until being dealt with judicially or being released.

(9) Holding the plaintiff in breach of the provisions of the Arrest Act for three days amounted to false imprisonment.

(10) Damages for breach of the provisions of the Arrest Act should be assessed at K600 and as liberty of the subject is to be viewed as a matter of grave importance exemplary damages should be awarded of K400.

(11) Damages for both breach of the provisions of the Arrest Act and false imprisonment would be inappropriate.

(12) The failure of the officer in charge to take the plaintiff before a court promptly amounted to “gross negligence” in the performance of his duties within s. 29(2)(b) of the Arrest Act and in the exercise of the court’s discretion the contribution of the State to the payment of the damages assessed should be limited to K500.

(13) For the purposes of assessing damages for breaches of constitutional rights in respect of ss 42, 36(1), 37(6) and 37(17) of the Constitution, the actions of all of the police officers from the time of entry into the police station should be taken into account.

(14) As s. 42 of the Constitution and s. 18(1) of the Arrest Act cover the same situations damages for both would be inappropriate.

(15) The treatment inflicted on the plaintiff was inhuman and inconsistent with respect for the inherent dignity of the human person within the meaning of s. 36(1) of the Constitution.

(16) Damages for breaches of constitutional rights should be assessed at K2,500 and exemplary damages of K1,000 awarded.

(17) Pursuant to s. 58 of the Constitution damages for breaches of constitutional rights should be payable by the police force as a governmental body within the meaning of the term “governmental body” in Sch. 1.2.

(18) Interest pursuant to s. 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52) should be allowed at eight per cent.

Aundak Kupil v. The Independent State of Papua New Guinea [1983] P.N.G.L.R. 350, followed.

Aundak Kupil v. The independent State of Papua New Guinea [1983] P.N.G.L.R. 350.

Griffiths v. Haines (Unreported New South Wales Supreme Court judgment dated 20 May 1982).

Photo Production Ltd v. Securicor Transport Ltd [1978] 1 W.L.R. 856; 3 All E.R. 146.

These were proceedings in which the plaintiff sought damages against four police officers and the State as respondeat superior for assault, breach of constitutional rights, breaches of the Arrest Act, breaches of the Bail Act and false imprisonment.

RAMAGE AJ: In this suit the plaintiff seeks general, aggravated and exemplary damages, from the defendants in respect of certain matters that occurred at Goroka in July 1979. At that time all of the first four defendants were members of the Royal Papua New Guinea Constabulary, members of the Criminal Investigation Branch, stationed at Goroka; the fourth defendant a sub-inspector in the Criminal Investigation Branch and the officer-in-charge of Goroka police station at the relevant times. It is alleged that they were employees of the fifth defendant either as servants or officers of the State. The plaintiff’s claim is brought under various different bases as follows:

Against the fifth defendant, hereafter called the State, as respondeat superior.

All defendants were correctly served. The first four defendants did not defend and interlocutory judgment was entered against each. The fifth defendant denied liability and placed in issue everything except the arrest of and taking into custody of the plaintiff by the first defendant on 3 July. The trial thus proceeded on both liability and damages. The first three defendants were present and in the peculiar circumstances of the case were given the opportunity to cross-examine, call evidence, and make submissions. The third defendant cross-examined, the first defendant gave evidence and the third defendant made submissions.

On Tuesday 3 July 1979 at about 11.00 a.m. the plaintiff was apprehended at West Goroka by the first and second defendants in the company of other police.

He was placed in a car and the first and second defendants and two other plain-clothed men, whom he identified as one Ronnie Tauti and one “Tony”, (whose correct name it appears later is Tony Ribi) drove him to the police station. I have used the phrase “apprehended” though his claim refers to “arrested” but this is not to be confused with a statutory apprehension not amounting to arrest such as can be found in other jurisdictions: for example Police Administration Act (N.T.), s. 128 Japaljarri v. Cooke (1982) 64 F.L.R. 314; 19 N.T.R. 19. No such power to apprehend drunks exists in Papua New Guinea. I have no doubt that he was under a state of arrest as he was not free to leave but taken by the arm by the police, placed in the police vehicle and though not held in any way in that vehicle upon arrival at the police station, was immediately handcuffed. However, he was not lawfully “arrested” according to law because the provisions of the Arrest Act were not complied with. His evidence which I accept, is that he was not told why he was being arrested. This is mandatory under s. 14(1)(a)(ii) of the Arrest Act.

After being handcuffed the plaintiff was taken to the C.I.B. office by the second defendant where he was questioned as to his full name and the name of his village. Something was written in the charge book. The plaintiff believes it to be just these particulars. This I am unable to determine as the relevant charge book is missing. (A disgraceful state of affairs for which no excuse or explanation is offered.)

The plaintiff speaks pidgin and there is no suggestion of inability to communicate. The plaintiff’s evidence is that he was not informed at this stage, nor indeed at any stage until he got to court, why he was being detained. On his evidence there is some doubt as to whether even there he was then properly informed. This doubt I am unable to resolve but in any event that fault, if it exists, was not that of the police but the presiding magistrate.

From the office he was taken back to the cells by the second defendant where he remained still in handcuffs until the morning of 5 July.

Immediately upon a person being brought to the police station the officer-in-charge of the station is obliged, under s. 18(1) Arrest Act to:

“... (c) promptly inform the person arrested or cause him to be informed in a language he understands of:

(b) and give instructions to, a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(d) as soon as practicable consider and accordingly grant or refuse bail in accordance with the Bail Act 1977; and

(e) if bail is not granted under paragraph (d) or if for any other reason the person remains in custody at the station — take the person or cause him to be taken, before a court without delay; and ...”

“(a) a person has been arrested for an offence and is held in custody at a police station or in the custody of a policeman; and

it is not practicable to bring the person before the court within a reasonable time, the officer, at the time he forms that opinion, shall consider and accordingly grant or refuse bail to that person in accordance with Section 9.”

Section (9) provides the bail authority must consider certain criteria before refusing bail. The plaintiff’s claim against the fourth defendant was pleaded on the basis that he was under the care, control and the supervision of the fourth defendant. Before me the lawyer for the fifth defendant admitted as a fact that at the relevant time the fourth defendant was the officer-in-charge of the police station. With the consent of the fifth defendant, par. 9 of the statement of claim, was amended to include allegations of breaches of s. 5 and s. 9 of the Bail Act but as I see it these became allegations of breaches of the statute made against the fifth defendant alone and not to be taken into account in the assessment of any damages awarded against the fourth defendant except insofar as they relate to a claim for wrongful imprisonment. There was no evidence before me as to whether there was a court sitting at Goroka on 3 July 1979 or the immediate days following but the interlocutory judgment signed against the fourth defendant included in par. 9, an allegation of breach of s. 18(1)(e) of the Arrest Act, and in par. 10 an allegation of a breach of s. 42(3)(b) of the Constitution. Judgment signed against the fourth defendant admits the breaches. The fifth defendant made no such admission, but did not seek to dispute the allegations by cross-examination, calling witnesses or submissions. I consider that it is highly likely that there would have been a court to which the plaintiff could, and should have been taken during the period.

Each of the first four defendants was subject to what may be described as a code of conduct called standing orders which purported to regulate the performance of his duties as a police officer. I say purport because whilst each police officer is apparently expected to know their contents, the officer called, on this point, Assistant Commissioner Thomas Samai, at the time of hearing, the Director of General Operations Division, had himself only a very hazy notion. Furthermore it was clear from his evidence that such standing orders go out from time to time to the officers-in-charge of the police stations whose duty it is to keep them up to date, in order, and to display new standing orders, but, there is no responsibility vested in any officer to make sure ordinary constables are aware of them. Due to the lack of care shown towards property, access to the standing orders is restricted and they are in practice not displayed on notice boards. Despite this under s. 21(2) of the Police Force Act (Ch. No. 65) all members of the police force are obliged to acquaint themselves with the provisions of the Police Force Act, Regulations and orders and instructions given by the Commissioner. Breach of such orders may or may not create causes of action but this I do not have to decide as no specific claim is made on this basis. However they do provide a yardstick or a standard by which to measure the defendant’s conduct. It is in this light that the plaintiff’s lawyer approached these standing orders.

Standing order 1101, ex. (4), before me was in force in 1977. In respect of use of handcuffs it provides under par. 54.

“The right to handcuff a person in lawful custody depends on the circumstances of a particular case. Such a degree of restraint cannot be justified unless it appears there are good and sufficient reasons therefore.”

“55. In deciding whether there are good and sufficient reasons for hand-cuffing a person in custody, whether at or after the time of his arrest or during escort, the member of the Constabulary concerned shall have regard to the following matters in respect of such a person:

(d) whether the demeanour of the person in custody is violent or is likely to become violent;

(f) any special circumstances which may render hand-cuffing necessary or advisable to prevent the person in custody from injuring himself.”

These instructions are clearly as a matter of common sense directed at the serious offender who is liable to do himself or others harm and/or escape. The offence involving the plaintiff was of being in possession of a handbag reasonably suspected of being stolen contrary to s. 16 of the Summary Offences Act (Ch. No. 264) (for which he was subsequently dealt with by the Local Court).

There is no suggestion on the evidence that he was violent, resisted apprehension in any way or had showed any tendency to escape either then or in the past.

“... all prisoners detained in police custody at whatever hour, will be issued with one blanket”.

Standing order 1101(3) provides for an inspection of the station cells by the duty officer daily and standing order note provides for a daily inspection by the police station commander of the whole police station or if he is away the station sergeant or next most senior police officer. There is no evidence as to whether any inspection was carried out. If carried out nothing was done to help the plaintiff.

The plaintiff remained in handcuffs without a blanket until the morning of 5 July. In my view he being kept handcuffed in the cell for one-and-a-half days and two nights was totally unjustified and offends ordinary standards of decency and fairness. The plaintiff’s further evidence that he was embarrassed and ashamed at having to enlist the services of another detainee in his cell (not handcuffed) to urinate and defecate I accept as I do his evidence that he found it very difficult and uncomfortable to sleep because of the handcuffs and had no blanket provided. The handcuffs were then removed and the plaintiff was taken from his cell by the second defendant to an office of the C.I.B. There he was questioned about the handbag and the clothing he was wearing. When he said he bought them with his own money he was told he was lying and threatened with being taken to court. But he was not then taken to court. Instead he was returned to the cells free of cuffs. Next day he was taken by the second defendant to the Local Court.

The clerk for the District and Local Courts at Goroka gave evidence that a search had failed to locate any file or depositions in respect of the charge brought against the plaintiff (again no explanation or excuse is forthcoming). The plaintiff, like many others who have appeared before the courts, is of little assistance as to what occurred in court though he was clear that neither the police nor the magistrate told him about bail. The only objective evidence is the police prosecutor’s diary entry for Friday 6 July 1979 (tendered without objection) which notes the arresting officer as Taute and that the case was adjourned to 20 July 1979. It makes no mention of bail.

The plaintiff’s evidence is that he was held in the police cells for a further period of time during which he was questioned and assaulted over four days. I accept that he was so held and his evidence here is supported by the evidence of senior constable Tony Ribi who gave evidence in a voire dire hearing in the trial of the plaintiff on a charge of break, enter and steal in the National Court on 16 October 1979 — “that he had seen the plaintiff/accused in the C.I.B. office on four separate days between 3 July 1979 and 20 July 1979 when he was being questioned by other C.I.B. members”. The first defendant also gave evidence at that hearing.

The plaintiff was returned to the cell after his Local Court appearance. Sometime later that day he was taken by first defendant Siviri to the C.I.B. office. He said Taute was present and identified constable Taute as one of the spectators in court during this hearing, a person whom I know from other appearances before me in Goroka Court to be that C.I.B. member. [Taute also gave evidence on the voire dire hearing mentioned above.] The plaintiff said that the first defendant questioned him in the presence of the second defendant and Taute and one other person (who was also identified as one of the spectators in court but whose name was not given). Whilst being questioned he was ordered to take off his shirt and trousers and stand on one leg with his hands outstretched. He was then ordered to expose his penis and walk around the room. I accept that this happened. It was not pleaded by the plaintiff as a specific part of the treatment received, possibly under the mistaken belief that only Taute, who is not a party to these proceedings could be made liable. Its relevance is that it is part of a whole pattern of interrogation that took place over a period of days and was done in the presence of and with the tacit approval of the first and second defendants.

The next morning he was again taken from his cell to the C.I.B. office and questioned by the first defendant. Other C.I.B. members including the second defendant, Taute and Ribi were present. Upon denying his guilt he was again told to take off his shirt and trousers, hold his arms out straight, stand on one foot and not move. Whilst he was so standing he was felled by a blow to his knee by the first defendant. He got up and was told to resume his position. When he endeavoured to sit in a chair, the first defendant hit him with a stick across the back of the neck and later again across the back. The plaintiff was of course alone, but I accept his evidence, particularly since it is corroborated by the first defendant in the said voire dire hearing referred to above. There the first defendant said “He denied everything until I struck him with the cane” and “[I] hit him on the back, twice on the bottom”.

The plaintiff was certain that he was taken out of his cell and “questioned” over four days, both morning and evening. He was fairly clear as to what was done to him but was somewhat vague as to which incidents occurred at what times. He is a villager and after the passing of four years I find his imprecision as to precisely what occurred on which day understandable.

Apart from these two incidents of which there is some certainty as to times, I find it impossible to determine when other incidents of the “treatment” the plaintiff received actually occurred in terms of on which day and at what time. At the same time I am satisfied that there was a consistent pattern of “treatment” over four days. Each occasion, with variation, involving a questioning session with the plaintiff forced to stand on one leg with arms outstretched. During these occasions, some, or all of the first three defendants were present. The statement of claim went on to allege that the plaintiff was:

As to the first and second allegations the plaintiff gave evidence that during one of these questioning sessions, with the plaintiff being forced to stand as described above, the third defendant applied a burning cigarette to his lip. When he tried to shift his face he was slapped across the face by the third defendant. He gave no evidence of being burnt on the neck and I reject this claim. However his evidence of being burnt and slapped is supported by the evidence of the first defendant in the National Court trial. That evidence is that he saw the second and third defendants both slap the plaintiff and saw a cigarette applied to his lips. At one stage in that evidence he said he didn’t know which policeman it was, later he said the third defendant. I take the view that this evidence is admissible, as to particular acts, against only the witness. However it does support the plaintiff’s assertion that there was such an incident.

This is further supported by the evidence of the plaintiff’s father who visited him in the cells after his arrest and noticed a small sore on the plaintiff’s bottom lip where the skin was “taken off”. Under cross-examination by Mr Wohuinangu for the fifth defendant, he said he had been told by the plaintiff “they burned me with fire”. There was further evidence that the plaintiff received treatment for a sore lip at Bihute Corrective Institution aidpost on 19 July 1979 euphemistically noted in the records as “sunburn”. I accept the plaintiff’s evidence that the burning was done by the third defendant in the presence of other police, including the first defendant and that it was still sore on 20 July.

As to the third and fourth allegations the plaintiff’s evidence was that the first defendant in the presence of other police punched him in the chest and on another occasion hit his penis with a stick causing him to cry out with pain. I accept that this occurred.

He went on to give further evidence that at the last questioning session on the fourth day he was so upset that he threatened to kill himself. He grabbed a stick with a pointed end and tried to bring his chin down upon it. He was restrained by Tony. On the said voire dire Tony Ribi gave evidence that the plaintiff during one questioning session was crying and had said — “I didn’t do the thing”. And he went and grabbed a stick saying “you are forcing me, I’d better kill myself” and I grabbed the stick from him. I accept that this occurred though not specifically pleaded as a separate allegation of assault.

I am thus satisfied that in respect of the first three defendants the plaintiff was:

(a) forced by all three defendants to stand on one leg with his arms raised for long periods;

(b) kicked in the knee by the first defendant in the presence of the second defendant and Taute and Ribi;

(d) burnt on the lips by the third defendant in the presence of the first defendant;

The plaintiff’s action is brought against the State, under s. (1) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 279) the Wrongs Act. As pleaded the statement of claim alleges that the first four defendants were acting in the course of their employment as servants or agents of the fifth defendant which would attach liability to the fifth defendant under s. 1(1)(a) of the Wrongs Act.

“s1(1)(a) ... the State is subject to all liabilities in tort to which if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents.”

However as the plaintiff opened his case and as was fully argued thereafter before me orally and in submissions the plaintiff relied alternatively on the proposition that the first four defendants were officers of the State under s. 1(1)(4) of the Wrongs Act.

“s1(1)(4) ... Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been conferred or imposed solely by virtue of instructions lawfully given by the Government.”

At first glance whether one describes a constable of police as servant, agent or officer of the State appears to be a question of semantics. In the leading case of Enever v. The King [1906] HCA 3; (1906) 3 C.L.R. 969 the court described the constable’s position in varying ways. Griffiths C.J said at 975:

“At ... common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown”.

“That he was in a sense an officer of the Government of Tasmania is not open to dispute.”

“In a general sense, no doubt, the constable was the servant of the Government at the time when the trespass complained of was committed.”

Enever concerned an action brought against the State of Tasmania under the Crown Redress Act 1891 (Tas.) (since repealed) for wrongful arrest by a police officer. The court accepted in substance that the arresting constable was a “servant” of the State but rejected the claim after a survey of the ancient duties and powers of peace officers in England and following the control test set out by Erle C.J in Tobin v. The Queen [1864] EngR 21; (1864) 16 C.B. (N.S.) 310 at 351; [1864] EngR 21; 143 E.R. 1148 at 1163:

“When the duty to be performed is imposed by law, and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment”.

Because the police constable was endowed with authority to arrest under the Police Act 1865 (Tas.), the arrest was at the instruction of the legislature and not of the Government. He, when making the arrest was exercising a statutory power which was vested in him personally and which had to be exercised according to his own independent discretion. Griffiths C.J said at 977 of the arresting constable “a constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority ...”

The reasoning in Tobin’s case and in turn Enever (even in part questioned by Griffiths C.J, at 979-980) has been trenchantly criticized (see Hogg P., Liability of the Crown in Australia, New Zealand and the United Kingdom, 1971 at 106; S.C. Churches, Bonafide Police Torts and Crown Immunity, University of Tasmania Law Review, Vol. 6 No. 80, at 294; Report of the Law Reform Commission on proceedings by and against the Crown, Law Reform Commission N.S.W. 1975), particularly the distinction Erle C.J drew between a duty imposed by statute, and a duty created by command of the Queen and its failure to recognize that the development of the law relating to the Crown as a litigant is largely an expression of the development of the concept of the State as distinct from the sovereign. Fundamental to the reasoning of the High Court was the assumption that the legislature and the executive were not merely separate in constitutional theory but distinct in a way which rebutted notions underlying employer vicarious liability. Professor Sawer in Crown Liability in Tort, (1951) 5 Res. Jud. 14 at 17 said of Erle C.J’s reasoning: “This reasoning shows a thoroughly feudal and pluralist conception of Government”. When the executive government was a sort of property of the Crown and Crown servants were in the most literal sense employees of the King, such an attitude might have been appropriate. But in an era when the Crown is merely a convenient symbol for the State, and the method of relating the execution of the laws to the making of these laws and to the control of the public purse, some less naive basis of Government liability needs to be considered.

“These cases seemed to have introduced an unnecessary subtlety and refinement into the law. They seem to be based on the absolute and misleading notion that vicarious liability depends on the existence of the master’s power to control the way in which the work is done; the true theory however is that the relationship of master and servant itself gives rise to liability and the right to control is only one factor in determining whether the relationship exists.”

Despite this criticism Enever was followed in Fisher v. Oldham Corporation [1930] 2 K.B. 364, and cited with approval by the Judicial Committee in Attorney-General for New South Wales v. Perpetual Trustee Company (Ltd) [1955] A.C. 457 and Lee J, in New South Wales in Griffiths v. Haines (Unreported Supreme Court judgment dated 20 May 1982) considered himself bound by Enever and re-affirmed the independent discretion rule as applying in New South Wales. The Judicial Committee in Perpetual Trustee Company Ltd held that an action per quod servitium amisit would not lie to enable the State of New South Wales to recover for the lost services of a police officer. Viscount Simonds delivered the Committee’s judgment, concluding:

“They repeat that in their view there is a fundamental difference between the domestic relations of servant and master (upon which the action per quod depends) and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as servant and master.”

In reaching their decision they relied in part on the decision and reasoning of the High Court of Australia in Commonwealth of Australia v. Quince [1944] HCA 1; (1944) 68 C.L.R. 227 and were of the opinion that the case of a constable is not in principle distinguishable from that of private soldier (P.C. 489). Whether the Australian High Court would now follow Enever and its reasoning may be open to doubt. However in Groves v. Commonwealth of Australia [1934] ArgusLawRp 34; (1982) 40 A.L.R. 193, the High Court whilst confirming that an action per quod would not lie went on to hold that this did not deny the application to the Crown of the rule respondeat superior and of consequential liability for injury done to a serving air force officer.

The question of the so-called independent discretion rule was specifically left open (at 124-125) but a possible view of the court may be inferred from the citing with approval by four of the judges of Fullagar J’s remarks in Attorney-General for New South Wales v. Perpetual Trustee Company (Ltd) [1952] HCA 2; (1952) 85 C.L.R. 237 at 283:

“I begin by thinking that every member of the navy or the army or the air force or the police force is a servant of the Crown in the sense which is required for the application of the rule of respondeat superior.”

“... there was ‘no relation or correspondence whatever’ between the rule respondeat superior and the action per quod”.

Whatever may be the future position in Australia it seems clear that Enever as approved by the judicial committee in Perpetual Trustee Company Ltd was the common law, as it existed in 1975. Leaving aside for one moment the separate argument as to whether it is appropriate to adopt this part of the common law in Papua New Guinea the question arises as to the scope of the independent discretion rule. On one view Enever is only authority that the State will not be liable for damages for wrongful arrest when that arrest has been performed under a statute and Perpetual Trustee Company Ltd is authority only that an action per quod will not lie for the loss to the State of the services of a police officer. There is some precedent for so limiting Enever. In Union Government v. Thorne [1930] App. D. 47 a constable’s negligent driving was held directly attributable to the Crown and Sibiya v. Swart N.O. (1950) South African L.R. 515, a policeman’s assaults on a prisoner under arrest was held not to be an action performed as part of a personal duty exempting the Crown and in M. H. Lowgo v. Minister for Police (1978) South African L.R. 551 A.D. the State was held liable for a negligent fatal shooting, an aspect of the means of arrest though it was strongly affirmed that the State could not be held liable for the decision to arrest, over which it had no control. In Minister for Police v. Gamble (1979) South African L.R. 759 A.D., the State was held liable for wrongful arrest by a police officer. On the other hand in Australia Enever has been followed, and it would appear extended. In Thompson v. Williams (1914) 32 (W.N.) N.S.W. 27 the plaintiff lost his action against the State for wrongful arrest and imprisonment. In Jarvis v. Attorney-General [1957] TASStRp 19; [1957] Tas. S.R. 220 the widow of a drunken man who was killed when a fire consumed his cell was unsuccessful and in Irvin v. Whitrod (No. 2) [1978] Qd.R. 271 a claim against the Crown in negligence for injuries caused when a detective shot another detective accidentally was rejected. In Papua New Guinea, Miles J distinguished Enever as being concerned with an unlawful arrest and pointed out that in the case where a widow sued for the death of her husband falling from a defective police vehicle “the arrest merely provided a link”; Guma Bogil v. State (Unreported judgment of Miles J No. N262 dated 28 November 1980). The position is further complicated by the possibility that a police constable even when on duty may not be performing the independent role under common law but functioning merely at the time as a servant or agent in the employ of the government or department (for example a police driver). The suggestion that a policeman may wear two different hats at different times is implicit in the obiter of Barwick C.J in Ramsay v Pigram [1968] HCA 34; (1968) 118 C.L.R. 271 at 279.

It can be seen from the above that courts appear to have given contradictory answers. It is more complicated when one comes to consider the scope of the rule in Papua New Guinea. Maugham L.J said in Haynes v. Harwood [1935] 1 K.B. 146 at 161:

“... the primary duty of the police is the prevention of crime and the arrest of criminals ...”

Each constable in Papua New Guinea swears an oath (or affirms) under s. 25(2)(b) of the Police Force Act (Ch. No. 65):

“... to seek and cause the peace to be preserved, and will prevent, to the best of my power, all offences against the peace”.

It can be argued, consistently with a restricted interpretation of Enever and Perpetual Trustee Company Ltd, that the whole area of the independent discretion of a constable at common law has been embraced by the Arrest Act, (under s. 31, all duties and responsibilities imposed by common law in relation to arrest are abolished), the Search Act (Ch. No. 341) and the Bail Act. Indeed it may be argued that the whole common law rule has been ousted by s. 31 of the Arrest Act. Neither the plaintiff nor the fifth defendant so argued before me. Whilst it would seem sensible and just to limit the operation of this anomaly to the area of arrest, to do so would be to ignore other functions of a policeman which are not only incidental but concomitant with the power of arrest. Patently the prosecution of crime involves not only investigating before arrest but the taking of statements after arrest. Pratt J had occasion to look at some of the duties of the police in Re Passingan Taru [1982] P.N.G.L.R. 292 and at 293 cited Halsbury’s Laws of England (3rd ed., 1959) Vol. 30, par. 206.

“... it is the duty of the police to obtain all possible information regarding crimes and offences which have been committed ...”

If one accepts the shaky rationale of the “control test” upon which Enever is based there would seem no good reason to limit the discretion rule as up to the moment of arrest and in my opinion if it applies it may cover both the holding of the suspect after the arrest (subject to statutory provisions) and the questioning of the suspect.

The immunity of the independent discretion rule has been criticized by numerous writers not only on the basis of the reasoning which established it, referred to above but for its effect. It is obviously an inversion of the principles of vicarious liability based on considerations of public policy held in the early part of this century. The effect of this criticism has been recommendations by Law Reform Commissions and statutes implemented to overcome it. In 1962 the Royal Commission on Police (1729 par. 195) (Imp.) recommended:

“There is a fresh responsibility which we think should be placed upon a police authority. It should, in our view, be liable for tortious acts, or delicts, committed by a police officer in the course of his duty as a constable, or in the intended execution of such duty.”

This was recognized as necessary because The Crown Proceedings Act 1974 (Imp.) had not, whilst it effectively abolished the Tobin doctrine of control, made the police liable because of the peculiar organization of police in England being funded by a multiplicity of local authorities: In Fisher v. Oldham Corporation [1930] 2 K.B. 364, McCardie J at 371, had found that the police constable was “a servant of the State, a ministerial officer of the central power”, and not a servant of the local corporation that employed him.

The above recommendation was implemented in England by the Police Act 1964. Section 48 established the liability of the chief officer of police in any police area for torts committed under his direction and control on a master/servant basis with the chief officer being indemnified out of a central fund. The doctrine or independent discretion if it still exits thus has no practical effect any more in England. The same approach has been adopted in Canada, (for example, s. 47 of the Police Act, Ontario). In Australia both the Northern Territory (Police Administration Act, s. 163) and Queensland (Police Act, 1978) have provided Crown liability for police torts and in New Zealand (1950) and South Australia (1972) general liability for tortious performance of a statutory duty was imposed. In New South Wales the Law Reform Commission Report of Proceedings By and Against the Crown 1975, at 13.7, in recommending adoption of a similar approach to that of the United Kingdom said:

“There is no justification for the State escaping responsibility for torts of its officers on the ground that the relevant functions of those officers are conferred or imposed not by the authority of the Executive Government but by the authority of Parliament or by the common law. Nor should the State escape liability because the common law or the relevant statute law requires an officer of the State to act on his personal judgment.”

In New South Wales, Lee J himself whilst bound to follow Enever said in Griffiths v. Haines: “anomalies, bred by history, in regard to the availability of common rights to various groups in the community, can easily be seen as law injustices”.

Faced with this criticism the question naturally arises, should this doctrine of Crown or State immunity for police be applied in Papua New Guinea? The lawyers were unable to refer me to any case where it had been applied, nor have my own researches. There seem to have been no judicial pronouncements on the subject except that Miles J mentioned its possible existence in Bogil Guma v. The Independent State of Papua New Guinea (Unreported judgment No. N262 dated 28 November 1980) in saying “the doctrine of Crown or State immunity as exemplified in Enever v. The King may or may not have a place in Papua New Guinea but it does not apply to the facts of this case”.

In Papua New Guinea, unlike Australia and England, there is a written constitution (s. 55) specifically providing that “all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex”. Under Sch. 2.2 the principles and rules of common law and equity in England are adopted and enforced as part of the underlying law, except if, and to the extent that:

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or;

If this anomaly in law is to be accepted as part of the law of Papua New Guinea all citizens will not be equal in that the State will not be liable as it would be if it were a private person of full age and capacity under s. 1(1) of the Wrongs Act. I consider it unlikely that those who framed the Act desired that it should have that effect and this view is supported by a reading of the Legislative Council debates. In introducing the Law Reform Miscellaneous Provisions Bill 1962, identical in these sections to the present Act the then Secretary for Law said of the relevant part (L.C.D. Vol. 6, Pt II, at 516):

“The first is Part II which makes it quite clear that the Administration is liable for its own wrongful acts and those of its servants or agents in the same way as is a private individual.”

Furthermore, if the anomaly is permitted then it appears to me to be inconsistent with some of the provisions of the Claims By and Against the State Act (Ch. No. 30).

“A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such suit may be brought as between other persons.”

I turn now to consider Sch. 2.2(1)(b). Speaking from a limited understanding and acquaintance with Papua New Guinea it is clear that it is a very diverse country with a multitude of languages and customs among its peoples which relies on one uniform police force to enforce law and order. Unlike England, Papua New Guinea has one central police force funded as I understand it from consolidated revenue by annual grant (and thus distinguishable from many of the cases involving police cited in Enever and Perpetual Trustee Company Ltd. The police are not part of the public service as such, under the Constitution, being a separate state service, (s. 188(1)(b)), subject to the control of the National Executive Council through a Minister, (s. 196(1)) though the Minister has no power of command within the police force, (s. 196(2)). The Commissioner of Police is responsible for the superintendance, efficient organization and control of the force in accordance with an Act of Parliament, (s. 198). The Act of Parliament is the Police Force Act, and regulations thereunder. Grafted onto this structure, is an Office of Secretary for Police and a Department of Police created on 13 February 1976, which purports to be vested with the functions vested in the Commissioner of Police. I respectfully agree with the doubts expressed by their Honours Kidu C.J, Kapi and Pratt JJ in Supreme Court Reference No. 1 of 1982, Re Bouraga [1982] P.N.G.L.R. 178 as to the legality of this system. Fortunately, I do not have to decide this question, I merely observe that it was the system operating as from 1976. Under the system as it operated in 1982 and I infer as at 1979 the Public Services Commission supplied personnel to the Police Department. The Supreme Court Reference No. 1 of 1982 confirmed that the police force is subject to the ultimate control of the government but that members of the police force are not bound by the Public Service Act (Ch. No. 67). However, in my view this does not mean that they should not be viewed as on an equal footing with servants of the State, though controlled under another Act. When one comes to examine the Police Force Act and regulations side by side with the Public Service Act and regulations, many of the provisions are identical, for example, s. 115 of the Police Force Act is virtually identical to reg. 23 of the Public Service Regulations. Regulation 21(2) of the Police Force Regulations is virtually identical to s. 2 of the Public Service Act. Regulation 33 of the Police Force Regulations is identical to the Public Service Regulations regs 15 and 16. Furthermore, each Act provides for accidents on duty. Section 75 of the Police Force Act and s. 99 of the Public Service Act are in identical terms. Section 75(4) states:

“This section does not derogate any rights that a member of the Regular Constabulary Branch has under any law relating to compensation to Employees of the State for injuries suffered in the course of their employment, but a member is not entitled to receive benefits under this section and that law at the same time.” (Emphasis added.)

There are many examples which indicate that the draughtsman was imposing identical terms and s. 83 of the Police Force Act provides for recognition of prior “state” service in the calculation of entitlements. Finally, members of the police force and public service are both required to contribute to superannuation under s. 22 and s. 25 of the Public Officer’s Superannuation Act (Ch. No. 66).

There can be no doubt that “public servants” under the Public Service Act are employees of the State for which the State is vicariously liable under the principle of respondeat superior. In view of the many incidents that the police share with those public servants under the Public Service Act, I consider it would be inappropriate to deal with them as something wholly separate and apart.

It would further be both an absurd and an unjust result if the plaintiff has no recourse against the State for things done or not done to him whilst held by the police in custody after arrest but has a remedy for the same things when held by the Corrective Institution Services. Yet, it is clear that damages are recoverable from the State by a detainee: Re Heni Pauta and Kenneth Susuve [1982] P.N.G.L.R. 7; Tom Amaiu v. The Commissioner of Corrective Institutions and the Independent State of Papua New Guinea [1983] P.N.G.L.R. 87.

I also can see no benefit to the community in protecting the police force or individual members in this fashion.

“... it is impossible to find any good reason why the Crown should be vicariously liable when a policeman drives a car negligently but should not be vicariously liable when he makes a wrongful arrest. In both cases it is the community at large which should bear the loss rather than allow the person injured or the policeman who committed the tort”.

Rather than the individual police officers who may have no funds bearing the burden, or their clans, it is appropriate that the State carry such burden.

The Australian Law Reform Commission said of the Australian Police “if a member of the Australian Police acts tortiously against a member of the public it can never be in the interests of the force that a member of the community should go uncompensated because of the anomalous state of the law”. (A.L.R.C. 1; Complaints Against Police 1975, par. 221.)

It is also my understanding that a feature of the traditional Melanesian customary way of compensating for injuries is collective responsibility. In summary I consider that the independent discretion rule is inconsistent with the Constitution and the Claims By and Against the State Act. I further find it inappropriate to the circumstances of Papua New Guinea to adopt this much criticized common law anomaly when it had as at 1975 effectively ceased to be a rule of law in England and in many other jurisdictions.

The plaintiff made an alternative submission that the rule had in fact been abolished by Statute in Papua New Guinea. This submission relied on the proposition that police constables were not “servants” of the State but were “officers of the State” under s. (1)(4) of the Wrongs Act.

“... where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the government”.

Mr O’Brien submitted that this provision was another way of achieving the same effect, viz: to remove the anomaly and rely on the essentially identical wording of s. 6(3) of the Crown Proceedings Act 1950 (N.Z.). There appears to be no decided case in Papua New Guinea on the way in which this section is to be construed but it did arise in the New Zealand case of Ellis v. Frape [1954] N.Z.L.R. 341. In that the case plaintiff sued two police officers, and the Attorney-General for assaults committed at Taranaki police station. The Attorney-General admitted that the first and second defendants were at all material times police officers carrying out statutory functions and that by virtue of s. 6(3) (cited above) the Crown was liable.

“It is important to notice that, until the enactment of the Crown Proceedings Act, 1950, it was not possible to maintain certain causes of action against the Crown, s. 4 of the Crown Suits Amendment Act, 1910, having expressly provided that no claim or demand should be made against the Crown in respect of the causes of action therein enumerated, including assault.... therefore, no action would lie against the Crown in respect of the actions of a Police officer in circumstances such as the present.” (Section 6(3) did make the Crown liable for torts committed by one officer of the Crown as such in the course of his duty.)

The lawyer for the State before me submitted that this did not cover the independent discretion rule and referred me to s. 10(2) of the South Australian Crown Proceedings Act 1972:

“In any proceedings in tort against the Crown no defence based upon an actual or presumed independent discretion on the part of the person whose act or default is alleged to constitute the tort shall be admitted unless a similar defence would be admitted in case of proceedings between subject and subject.”

I certainly agree that this statute abolishes the anomaly in clear and precise terms but I am also of the view that s. 1(4) of the Wrongs Act, though clumsier, achieves the same effect: viz; to make the State liable under certain circumstances.

The State is of course not liable for the tort of its employee unless the police constable as a “servant” was acting in the course of his employment under s. 1(1)(a) or whilst as an officer of the State he is performing or purporting to perform functions conferred on him by a rule of the underlying law or by statute. In my view both require me to be satisfied that the actions were within the scope of their police employment or functions. There is no dispute that the police here were so acting when the plaintiff was apprehended and brought back to the police station. It also seems clear that though perhaps in defiance or ignorance of the instruction regarding handcuffs it cannot be said that restraining him in such a fashion was outside the scope of their employment. The difficulty that arises is in determining whether the conduct of the police during the course of “interrogation” of the plaintiff comes within the ambit of their employment or functions. Pratt J had occasion to look at some of the duties of the police in the case of Re Passingan Taru which I have earlier mentioned.

Leaving aside the issue of whether improper questioning might result in a rejection of any confession at trial, it would seem essential that police must endeavour to question witnesses and suspects if they are to do their job properly and the power or right to question is a necessary adjunct of their other powers.

The lawyer for the State submitted that because the police had not complied with certain of the standing orders admitted before me as Exhibits 4-7 as they were required to do under s. 23(b) of the Police Force Regulations:

“... in due course, and at proper times, comply with and give effect to all laws, regulations and instructions applying to or in relation to or made or issued for his guidance in the performance of his duties”,

therefore it followed that the acts were not expressly or impliedly authorized by the fifth defendant and thus not in the course of and outside the scope of their employment. None of the instructions before me are in fact relevant to the issue. The Assistant Commissioner, Thomas Samai agreed that whilst it was part of the function of the C.I.B. to go out and question people and questioning formed an important part of police investigation in Papua New Guinea he knew of no instruction governing questioning apart from instruction 735 (Exhibit 4) which sets out, in effect the provisions of s. 42(2) of the Constitution.

If, as it appears there are no instructions or standing orders in existence covering interrogation then it is high time there were. It is regrettably not uncommon for confessions by accused in Papua New Guinea being rejected because allegations of assaults on accused are found to be of substance.

Whilst being unable to refer to any breach by the police (apart from those under s. 42(2)) the lawyer for the State referred to many cases in respect of unauthorized acts in the scope of employment and in particular Joseph Rand, Ltd v. Craig [1919] 1 Ch. 1 where the court held that a contractor who employed carters to cart rubbish and dump it at his tip only was not liable for the action of the carters in dumping rubbish, without his knowledge, on the plaintiff’s land. I do not find this case of great assistance as the court found as a fact that the acts “were acts done deliberately of their own choice and to effect a purpose of their own, and in opposition to the express instructions of their employer” (Swinfen Eady M.R. at 9; my emphasis).

Here, there is no evidence that the conduct was specifically prohibited but even if it were so there is abundant authority that prohibition is irrelevant unless it purports to limit the scope of the authority, for example, the employer of a driver who raced a bus in defiance of an express prohibition: Limpus v. London General Omnibus Company [1862] EngR 839; (1862) 1 H. & C. 526; 158 E.R. 993; Ilkiw v. Samuels [1963] 1 W.L.R. 991; where a driver drove his uninsured vehicle on company licence though prohibited: Canadian Pacific Railway Company v. Lockhart [1942] A.C. 591; where a driver drove though forbidden to do so: London County Council v. Cattermoles (Garage) Ltd [1953] EWCA Civ 3; [1953] 1 W.L.R. 997. The position of course may well be different if the employee is doing something which is not part of his functions, for example, Beard v. London General Omnibus Company [1900] UKLawRpKQB 139; [1900] 2 Q.B. 530, (though that case must be approached with caution both because of its age and because it was a ruling on a no case submission) or if the plaintiff is a trespasser: Twine v. Bean’s Express Ltd [1946] 1 K.B. 202.

Mr O’Brien for the plaintiff did not seek to argue that the acts were authorized acts, but rather that they fell within a second category as defined by Salmond on Torts (15th ed.), at 620 as “a wrongful or unauthorized mode of doing some act authorized by the master” which category has been recognized by the courts in Poland v. John Parr & Sons [1927] 1 K.B. 236, 240; Warren v. Henlys Ltd [1948] 2 All E.R. 935 at 937 and Ilkiw v. Samuels.

He went on to submit that whilst the cases might be of assistance the correct approach was that of the Court of Appeal, that is, “it must be a question of fact whether an authorized act by a servant is within the scope of his employment or outside his employment”: Marsh v. Moores [1949] 2 K.B. 208 at 215.

“as is often the case in torts, the principle is easy to state but difficult to apply. All that can be done is to provide illustrations of cases on either side of the line. In a harder line case one may be helped by the onus of proof and if it is conceded that the servant was doing something in his working hours, on his employer’s premises, and that his act had a close connection with the work that he was employed to do, then the onus is on the employers to show that the act was one for which they were not responsible”.

The plaintiff here relies on the fact that these were police officers, on duty, working in their “employers” premises and engaged in the legitimate police business of questioning a suspect, albeit in an unlawful manner.

Of more importance in the circumstances of this case is the question of whether the assaults committed in the course of the “interrogation” were a part of the police investigation or a frolic of their own by the first three defendants. Closely allied to this is the question; was there any independent malice shown by them such as would establish that the acts were not incidental to their employment. The State relied on Daniels v. Whetstone Entertainments and Allendar [1962] 2 Lloyd’s Rep. 1. The defendant in that case had a steward or bouncer whose job it was to keep order in the defendant’s ballroom. An argument ensued; the steward evicted a customer from the ballroom and outside struck him with his fists and kicked him. The Court of Appeal held the first assault, the eviction, to be within the course of employment but after the plaintiff was outside the dance hall, showing no inclination to return, there was a complete break between the steward’s authorized province of operation and subsequent events in that once the plaintiff had left the premises the steward was functus officio. The court took into account, that the steward was ordered by the manager to return, but repudiated that order, in reaching the conclusion that the second assault on the plaintiff was an act of private retaliation not within the steward’s scope of employment. In the course of reaching its decision the Court of Appeal referred to Pettersson v. Royal Oak Hotel Ltd [1948] N.Z.L.R. 136. In that case a barman threw a glass at a patron. It was held that his action was an improper mode of discharging his duty of keeping order. O’Leary C.J, said at 149:

“It is still the fact, however, that he performed the work of keeping order in a manner which was negligent, and, indeed, improper, and, instead of reducing the possibility of disorder, he contributed to it. It cannot be said, therefore, that what he did was an independent act unconnected with his employment; it was a personal act, but it was at the same time an improper mode of doing his work.”

“... even if it was because of resentment alone, the throwing of the glass was nevertheless a wrongful mode of keeping order, and liability is imposed on the employer”.

The distinction to be drawn between the two assaults in Daniels was that at the stage of the second assault the steward’s functions to keep order within the dance hall had totally ceased. No such distinction can be drawn here.

Some argument was addressed to other distinctions said to exist in the law, such as negligent and criminal acts by employees.

The distinction between the doing, by an employee of a deliberate act rather than a negligent act has long ceased to have any real meaning at law. In Photo Production Ltd v. Securicor Transport Ltd [1978] 3 All E.R. 146, the defendant’s night patrolman deliberately lit a small fire which got out of control and a factory was destroyed. The case concerned whether the exemption clause in the contract excluded liability on the part of the defendant. Lord Denning said at 861:

“It seems to me that Securicor should not be able to avoid their liability simply because Musgrove did a deliberate act instead of a negligent one ... Securicor are liable for the wrongful act of their servant in the cause of it, no matter whether the wrong done be carelessness or deliberate wrongdoing:...”

Also a careless act which in no way forms part of the work being performed, may nevertheless be committed in the course of employment, for example, the lorry driver in Century Insurance Company Ltd v. Northern Ireland Road Transport Board [1942] UKHL 2; [1942] A.C. 509, who whilst transferring petrol threw a lighted match down.

Even a deliberate criminal act which in no way furthers an employer’s business has been held to be within the scope of employment. In United Africa Company Ltd v. Saka Owoade [1957] 3 All E.R. 216, a transport contractor was held liable to the owner of the goods for the acts of two men whom he represented as his servants who were convicted of stealing the goods entrusted to them. The judicial committee of Privy Council held that the true inference to be drawn from the facts was that the conversion of the goods was done within the course of the servants’ employment at 144:

“There is, in their Lordships’ opinion no difference in the liability of a master for wrongs whether for fraud or any other wrong committed by a servant in the course of his employment.”

The acts of the first three defendants done to the plaintiff range from unpleasant to brutal and sadistic. Nevertheless they were all part of a process of treatment which was directed at obtaining a confession from the plaintiff and the clearing up of a crime. I consider that the attitude of these three policemen was that expressed by the third defendant in his written submissions. Namely:

“... large amount of goods were gone missing during the time and if I was too soft how can I get something out of this type of person”, and “I was the only junior member in the section during the time and if the senior member such as sergeant Siviri going hard on the suspected person then I do the same”.

I have already referred to the fact that there appear to be no direct instructions concerning interrogation. There also appears to have been no restraint placed on or guidance given to the first three defendants by the fourth defendant or any other senior officer.

I consider the true position to be that the first three defendants believed they had carte blanche to use violence in interrogating and no one disabused them of this notion. Taking all these matters into consideration I find that the first three defendants were acting within the scope of their employment. There is no dispute that the fourth defendant was acting within the scope of his employment.

The plaintiff claims general damages, aggravated damages and exemplary damages for the various acts done to him.

As said above, I am satisfied that the first and third defendants actually assaulted the plaintiff. I am further satisfied that the second defendant was present and to use a criminal law term had a common purpose with the other two to assault the plaintiff; however it is apparent that the more violent of the assaults came from the first and third defendants. I assess general damages for the assault by each of the first three defendants in the sum of K600 each; K1,800.

In respect of exemplary and aggravated damages, it appears to me that Rookes v. Barnard [1964] UKHL 1; [1964] A.C. 1129 and Cassell & Co. v. Broome [1972] UKHL 3; [1972] A.C. 1027 have between them abolished the distinction said to exist between exemplary and aggravated damages at least in the type of case I am here dealing with.

I am satisfied that this is a proper case in which exemplary damages should be awarded in the sum of K1,000 each in respect of the actions of the first and third defendants, as the police have a duty to protect those in custody, not to assault; that is, a total of K2,000. I note in passing that the “Post-Courier” recently reported an appeal brought by a police officer against an award of A$5,000 to an aboriginal he assaulted in his custody, being dismissed by the Northern Territory Supreme Court.

The plaintiff submits that the State as employer should pay the full amount of such damages. I can see no legal reasons why it should not. Indeed, there are good policy reasons why it should. Assistant Professor Goode summed it up well, when he said in “The Imposition of Vicarious Liability to the Torts of Police Officers: Considerations of Policy” [1975] MelbULawRw 3; (1975) 10 M.U.L.R. 47 at 49:

“... It may be that it is the police force as a whole, or its high echelon policy makers, that is responsible for the abuse. A certain practice may be tolerated or encouraged as departmental practice despite illegality, and in such cases at least, it is to the policy maker that any deterrence should be aimed, not to a lower ranked police officer who naturally will succumb to the not inconsiderable pressure of police discipline, and peer group pressure.”

The argument that the individual malefactor escapes scot-free is well answered by the availability of disciplinary charges.

Damages against fourth and fifth defendants for breach of Arrest Act, Bail Act, Wrongful Imprisonment and breaches of Constitutional rights.

The plaintiff’s claim is a statutory claim under s. 26 of the Arrest Act which provides for the award of general and exemplary damages. Whilst there appears at common law to be some disagreement between the courts as to the vicarious liability of an employer for breach of statutory duty by an employer (for example, Harrison v. National Coal Board [1951] A.C. 639; Darling Island Stevedoring and Lighterage Company Ltd v. Long [1957] HCA 26; (1957) 97 C.L.R. 36, s. 29 of the Arrest Act enables the court, exercising its discretion, to order the State to pay full or partial contribution as it determines.

It appears to me that the first three defendants breached the Arrest Act, but no claim is made against them for that, and that the fourth defendant may well have breached s. 18(1)(c) and s. 18(1)(d) referred to above, but no claim is made for that. I am satisfied that the fourth defendant breached the provisions thereof. There is no evidence before me as to whether the fourth defendant did or did not consider bail and I reject that claim.

The plaintiff also sought damages at common law for false imprisonment. This claim is inextricably mixed with the claim under s. 18(1)(e).

The tort of false imprisonment is derived from the action of trespass and consists in the act of arresting or imprisoning any person without lawful justification and preventing him from exercising his right of leaving the place where he is. It may also be committed by continuing a lawful imprisonment longer than is justifiable: Mee v. Cruickshank (1902) 86 L.T. 708. Failure to observe statutory provisions governing the holding of a person arrested even after a lawful arrest will render unlawful his subsequent detention: see Bales v. Parmeter (1935) 35 (S.R.) N.S.W. 182 and Cleland v. The Queen [1982] HCA 67; (1982) 43 A.L.R. 619. Such phrases as “promptly”, “without delay” and “forthwith” have in the main been fairly generously interpreted in favour of the prosecution as can be seen in the House of Lords’ decision in John Lewis & Co. Ltd v. Tims [1952] A.C. 676 which can be used to justify non-compliance for up to some hours. Each case must depend on its own circumstances and I have no hesitation in reaching the view that the holding of the plaintiff in defiance of the provisions of s. 18(1)(e) of the Arrest Act until the morning of 6 July clearly amounted to false imprisonment.

The false imprisonment and the damages that would flow from it are limited to the period between approximately mid-day on 3 July and the morning of 6 July. For any period after that the remedy of the plaintiff is an action for malicious prosecution since it is the judicial order of the court which thereafter restrains him: Austin v. Dowling [1870] UKLawRpCP 53; (1870) L.R. 5 C.P. 534 at 540; Lock v. Ashton [1848] EngR 878; (1848) 12 Q.B. 871; 116 E. R. 1097. No claim is made for malicious prosecution.

On the facts in this case the fourth defendant is liable for the tort of false imprisonment. However, because of the wording of s. 31 of the Arrest Act, referred to earlier, it may be argued that the tort of false imprisonment has been abolished. I am inclined to think that it has not, and while the Arrest Act does provide for certain incidents after arrest, the tort of false imprisonment continues from apprehension until being dealt with judicially or released. Were there no claim under s. 18(1)(e) I would award damages for false imprisonment but in my view it would be inappropriate to award damages for both. Taking into account the length of time before s. 18(1)(e) was complied with I assess general damages for breach of s. 18(1)(e) at K600. Because I view the liberty of the subject as a matter of grave importance I award exemplary damages of K400.

The plaintiff submits that the State should be ordered to contribute the full amount of these damages though his submission accepted that there was an argument for reducing these under s. 29(2)(b), whereby the court has a discretion to assess where the policeman was:

“(i) acting maliciously or with wilful disregard to his professional duties and responsibilities; or

There is nothing before me which would satisfy me of malice or wilful disregard. I have more difficulty with the question of whether the fourth defendant was grossly negligent. Gross negligence is a term usually confined to criminal law and it has been said that there is no difference between it or ordinary negligence, “merely the addition of an interperative epithet”: Wilson v. Brett [1843] EngR 275; (1843) 11 M. & W. 113. However, Charlesworth on Negligence (6th ed., 1977) said of it at 6:

“It is intended to denote a high degree of careless conduct such as where a defendant did not intend a particular consequence to happen but nevertheless he must have been able to foresee its occurrence ...”

In my opinion the fourth defendant’s failure to have the plaintiff taken before a court promptly comes within this category nevertheless I do consider it appropriate that the State should pay some contribution to the fourth defendant but I assess that contribution in the sum of K500.

The plaintiff, pursuant to s. 58 of the Constitution claims damages for the infringements or breaches of his constitutional rights provided for under ss 42, 36(1), 37(6) and 37(17) of the Constitution. Section 42 provides as follows:

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind:

(i) or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community, under an order of a court; or

(ii) for the purpose of taking prompt legal proceedings to obtain an order of a court of a type referred to in Sub-paragraph (i).”

I have awarded damages against the first three defendants for assault. These assaults were committed in the course of the “treatment” the plaintiff received at the hands of the three defendants. In respect of the fourth defendant he committed no assaults but he was responsible for the condition of the plaintiff whilst held in the police station and for such things as his being held in handcuffs, and deprived of a blanket. Furthermore, as officer-in-charge he had a general duty to inspect and make sure that no one was being ill-treated. Whilst the assaults were part of the “treatment”, the treatment was a continuous act commencing with his entry into the police station and including other incidents not specifically pleaded against the first four defendants but referred to above. In my view the actions of the other police involved, of whom Taute and Ribi were named were also clearly part of the “treatment” and I have taken these into account in my assessment of damages in respect of these breaches.

The plaintiff’s claim for damages for breaches of his rights in respect to s. 42 of the Constitution is limited to the fourth and fifth defendants. These provisions of s. 42 are identical to those provided in s. 18(1)(c) and (e) of the Arrest Act which is in accordance with the speech of the Minister for Justice in introducing the first reading of the Act (Arrest Bill 1976). “The Bill reflects both the spirit and terms of the Constitution” (9.9.2. Hansard 1977). Despite the fact that s. 26(4) of that Act clearly provides that it is in addition to and not in derogation of the provisions of the Constitution, I am of the opinion that whilst the plaintiff should in the ordinary course receive damages for breaches of his rights under s. 42, the damages should be the same as those awarded for breaches of the Arrest Act, and it would not be proper to so award them again. I make no award for damages of the breach of s. 42:

Section 36(1): “No person shall be submitted to torture (whether physical or mental) or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person”.

Section 37(1): “Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences”.

Section 37(17): “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

Mr O’Brien submitted that in the absence of any definition in the Constitution that one should apply the ordinary meaning of the words as follows:

Some assistance, can, I believe be gained by looking at how the courts have construed similar phrases elsewhere, particularly the human rights courts. From the celebrated case of The Republic of Ireland v. The United Kingdom [1978] ECHR 1; (1979-80) 2 E.H.R.R. 25, it is clear that the infliction or treatment must be of considerable duration and cause at least intense physical and/or mental suffering for it to amount to torture. In that case various interrogation practices included wall standing, hooding and deprivation of sleep and food. These were held not to amount to torture, though they did amount to inhuman and degrading treatment. In Campbell v. Cosans and United Kingdom [1983] ECHR 3; (1982) 4 E.H.R.R. 293, the same court said “treatment will not be ‘degrading’ unless the person has undergone either in the eyes of others or in his own eyes humiliation or debasement”. It is also clear that numerous assaults can amount to inhuman treatment: Cyprus v. Turkey (1976) 4 E.H.R.R. 482.

In my view the treatment was cruel, it was inhuman and it was inconsistent with respect for the inherent dignity of the plaintiff far beyond the ordinary indignity and pain occasioned by individual assaults.

The plaintiff submitted that the State should be ordered to pay the damages awarded for breaches of constitutional rights pursuant to the Constitution, s. 58.

Section 58(2): “A person whose rights or freedoms declared or protected by this Division are infringed. ... is entitled to reasonable damages, and, if the court thinks it proper, exemplary damages in respect of the infringement.”

Section 58(3): “Subject to Subsections (4) and (5) damages may be awarded against any person who committed or was responsible, for the infringement.”

Section 58(4): “Where the infringement was committed by a governmental body, damages may be awarded either:

(a) subject to Subsection (5) against a person referred to in Subsection (3); or

(b) against the governmental body to which any such person was responsible. ...”

Section 58(5): “Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if:

(a) the action was an action made unlawful only by S. 41(1) (proscribed acts), and;

(b) the action taken was genuinely believed by that person to be required by law

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.”

Under Sch. 1.2 of the Constitution, Ch. 1 “governmental body” is defined to include:

“... (c) an arm, department, agency or instrumentality of the National Government or a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;” ...

The police force is one of the State Services established by s. 188, Ch. VII of the Constitution. It is in turn set up by statute and in my view clearly a governmental body.

In my view it is appropriate that the police force should bear the burden of any award of damages I make in respect of breaches of the plaintiff’s rights under s. 36(1) of the Constitution, and in turn the State. I order the State to pay damages to the plaintiff in the sum of K2,500 general damages plus K1,000 exemplary damages.

Under s. 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52) the court has power to order “interest” at such a rate as it thinks proper on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment. I am of the view that interest should be awarded and I follow Bredmeyer J in Aundak Kupil and Kauke Kensi v. The Independent State of Papua New Guinea [1983] P.N.G.L.R. 350, awarding interest at the rate of eight per cent from the date of the issuing of the writ until the date of trial, that is for the period between 1 May 1981 and 16 May 1983 and calculate accordingly.

I order the fourth defendant to pay damages to the plaintiff for breaches of the provisions of the Arrest Act the sum of K1,000 plus interest of K163.28. I order the fifth defendant to pay the sum of K581.64 by way of contribution. I note that I can see no impediment to the State paying that sum direct to the plaintiff.

I further order the fifth defendant, the State. to pay damages to the plaintiff as follows:

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URL: http://www.paclii.org/pg/cases/PNGLR/1983/449.html

For assault K3,800 plus interest of K620.49	K4,420.49
For infringement of constitutional rights K3,500.00 plus interest of K571.51	K4,071.51

Papua New Guinea Law Reports

Kofowei v Siviri [1983] PNGLR 449 (21 December 1983)

Papua New Guinea Law Reports - 1983