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Namuesh v Ofoi, Avali, The Police Commissioner and The State [1996] PNGLR 211 (7 May 1996)

PNG Law Reports 1996

[1996] PNGLR 211 - Andrew Namuesh v Paul Ofoi, George Avali, The Police Commissioner and The State

[1996] PNGLR 211

N1429

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANDREW NAMUESH

V

PAUL OFOI;

GEORGE AVALI;

THE POLICE COMMISSIONER;

AND THE STATE

Lae

Jalina J

12-13 March 1996

20 March 1996

7 May 1996

CONSTITUTIONAL LAW - Constitution s 57 - Enforcement of rights and freedoms - Entry into premises by armed police - Constitution s 36 - Freedom from inhuman treatment - Whether breach of s 36 when guns not pointed at victims and victims not assaulted - Freedom from arbitrary search and seizure - Constitution s 44 - No search warrant obtained by police - Police not in immediate pursuit – Search Act, s 5.

Facts

The applicant was in his house in the early evening with his wife and children when he heard people entering the premises. On investigation he found three police officers two of whom carried guns which were slung on their shoulders. There was no pointing of guns or manhandling of the applicant and his family but the applicant believed that threatening words were spoken about another person and the applicant and his family were put in fear.

Held

The conduct of the police officers did not amount to conduct falling within the provisions of s 36 of the Constitution and accordingly there had been no breach of that right. There had been a breach of s 44 of the Constitution in that the police had no search warrant and were not acting within the exceptions for a search warrant contained in s 5 of the Search Act as there was no evidence of an “immediate pursuit” under that provision.

Cases Cited

Amaiu v The Commissioner of Corrective Institution and The State [1983] PNGLR 87

Kofowei v Siviri & Ors [1983] PNGLR 449

State v Popo [1990] PNGLR 57

State v Quati & Ors [1990] PNGLR 57

Counsel

Applicant in person

R Saranduo for first, second and third respondents

M Titus for fourth respondent

7 May 1996

JALINA J: This is an application pursuant to s 57 of the Constitution for alleged breaches of Constitutional rights by members of the police force. The specific constitutional provisions the applicant alleges were breached are Section 36, and 44 when police were looking for someone who was alleged to have committed an offence.

At about 7.30 pm on Sunday 11 June 1995 when the applicant was sitting in his house at Section 104 Allotment 2, Cormmorant Street, Lae, with his wife and children he heard sound of people wearing boots walking into his premises. He switched on the security lights, opened the door and went out with his wife and children. He walked down the steps and three policemen including the first and second defendants walked to his residence and stood near him. The first defendant on his left and the second defendant and another policeman in front of him. They were in police uniform. The second defendant and his other collegue had a gun each. Evidence from those policemen as well as evidence elicited from the applicant and his wife during cross-examination show that those guns were just slung up on the policemens’ shoulders.

The policemen did not point the guns at the applicant and his wife and children and neither did they assault or manhandle them let alone push them around whilst on the premises. The second defendant is alleged to have said twice in a loud voice, “where is Christopher?”, inspite of the applicant’s earlier reply that Christopher was not there but had gone to Morobe Patrol Post. While the applicant was explaining as to the whereabouts of Christopher, the first defendant is alleged to have threatened the applicant with words to the effect “Find some money and bail him. If I find him I will put him in the cells”. He also says (and this is confirmed in the affidavit of his wife and his daughter Koncie Namuesh) that they were very frightened and now they become frightened and hide everytime they see the police. The first defendant has admitted in cross-examination that they did not have a search warrant when they entered the applicant’s premises.

I will now consider each Constitutional provision the policemen are alleged to have breached.

Breach of s 36 of the Constitution.

I will only refer to Sub-section (1) which is the relevant provision for present purposes.

“36.    Freedom from inhuman treatment

(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 inhuman dignity of the human person”.

The Constitution does not define “physical torture”, or “mental torture” nor does it define “inhuman treatment”.

The applicant submits that the policemen’s entry of his premises with guns and the manner in which they spoke resulting in his children becoming frightened every time they see the police amounts to physical and mental torture.

Messers R. Saranduo and Titus jointly submit that the mere carrying of the guns and the words used (even if they were used in a loud manner) resulting in the applicant’s children being frightened did not amount to cruel or inhuman treatment physically or mentally. Mr Titus relied on the following definitions which Mr O’Brien put to the Court in Kofowei v Siviri [1983] PNGLR 449 at p 473 to torture, cruel inhuman and dignity.

“Torture - The infliction of severe pain as a punishment or means of coercion.

Cruel - Feeling pleasure in another’s suffering, causing pain or suffering.

Inhuman - Brutal, lacking normal human qualities of kindness.

Dignity - Indicating that one deserves respect.”

The trial judge (Ramage, AJ) did not accept nor did he reject the submission from Mr O’Brien in Kofowei v Siviri (supra) but went on to consider how other human rights, courts particularly the Irish Courts have construed similar phrases. In relying on the case of The Republic of Ireland v The United Kingdom (1979 - 80) [1978] ECHR 1; 2 EHRR 25 his Honour said at p. 473.

“... 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 EHRR 293 the same court said “treatment will not be ‘degrading’ unless the person has undergone either in the eyes of others or in his eyes humiliation or debasement.”

In my view what the policemen did was not such as to amount to physical or mental torture nor was it cruel or inhuman and without regard to the inherent dignity of the human person. They did not assault, let alone, push around the applicant or any other members of his family. They did not even point their guns at him or any members of his family. I do not consider that merely speaking with a raised voice is sufficient to amount to humiliation or debasement even in the applicant’s own eyes or in the eyes of the members of his family that night. What happened in the case before me is nowhere near what happened in cases like Amaiu v The Commissioner of Corrective Institutions and State [1983] PNGLR 87, Kofowei v Siviri (supra) and State v Quati & Ors [1990] PNGLR 57.

In the absence of medical evidence I am not prepared to find that the applicant’s children being frightened every time they see the police amounts to mental torture.

I accordingly dismiss the claim for breach of s 36 of the Constitution.

Breach of s 44 of the Constitution.

Section 44 provides:

“No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law....”

The law that regulates or restricts such rights is the Search Act Ch 339. The defendants have admitted through evidence given during cross-examination of the first defendant Paul Ofoi, that they did not have a search warrant at the time they entered the applicant’s premises. No explanation has been given for their failure to obtain a search warrant.

Circumstances in which searches can be made without a search warrant are set out in s 5 of the Search Act. To the extent that the policemen herein were in search of a person namely Christopher Waibo Mual who was suspected of having committed an indictable offence, the provision that may be relevant in s 5 is sub-section (5) which provides:

“(5)    Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he may, or persons authorised by him may, search any building or place in which he believes on reasonable grounds that the person being pursued:

(a)      is concealed; or

(b)      has, in the course of his pursuit, concealed or deposited anything”

Were the policemen in an “immediate pursuit” on the night in question? In State v Popo [1987] PNGLR 286 Amet, J (as he then was) in rejecting evidence obtained during a police raid/search without a search warrant and under circumstances in which the police were not in immediate physical pursuit of the accused, held, inter alia, that:

“(1)    For purposes of s 5(5) of the Search Act, the words “immediate pursuit” are to be taken as meaning immediate, physical pursuit, analogous to the motion of “hot pursuit”, where there is no opportunity or time to take any other course of action otherwise the opportunity for apprehension, seizure of property, prevention of concealment of property or prevention of escape will be lost.

(2)      If investigation, follow-up or pursuit of a suspect however meritorious, is not “immediate” then a search warrant is required under s 6(1).

(3)      Where a search is carried out without first obtaining a search warrant where such a search is not in “immediate pursuit” the search is unlawful and any evidence obtained thereby is unlawfully obtained and may be rejected.

(4)      Non-compliance with the strict requirements of the provisions of the Search Act is in effect a breach of s 44 and 49 of the Constitution which guaranteed respectively the right to freedom from arbitrary search and entry and the right to privacy.”

There is therefore no doubt in my mind that the policemens’ entry into the applicant’s premises on the night in question was not in “immediate pursuit” or “hot pursuit” of one Christopher Waibo Muial and as such their entry without a search warrant was in breach of the provisions of the Search Act. I consequently find that they were in breach of the applicant’s rights guaranteed by s 44 of the Constitution when they entered his premises on the night of 11th June 1995.

I accordingly find the defendants liable. I am inclined to award general damages for fear created in the applicant’s wife and children, exemplary damages as well as damages for breach of Constitutional rights pursuant to s 58 of the Constitution.

The damages I assess and award are as follows:

I order that the State pays the sum of K2,600.00 plus interest at the rate of 8% annum from the issuing of the application to today. I have made the order for the State to pay the damages as this is a technical breach. My decision would have been different had they assaulted the applicant and his family or damaged property whilst in or on the premises.

I further order that the State pays the applicant’s costs to be taxed if not agreed.

Applicant in person

Lawyer for the first, second and Third defendants: Police Legal Officer

Lawyer for the fourth defendant: Solicitor General