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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 9 OF 2012
IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BY BATLEY ISAIAH
Madang: Cannings J
2013: 14 August, 24 October, 15 November
HUMAN RIGHTS – application for enforcement – right to full protection of the law: Constitution, Section 37(1) – freedom from inhuman treatment: Constitution, Section 36(1) – right to be treated with humanity and respect: Constitution, Section 37(17) – right to personal liberty: Constitution, Section 42
The plaintiff says he was assaulted and shot twice in the foot by police officers after he surrendered and was already in police custody. He claims that the police breached his human rights and he has suffered a permanent leg injury. A trial was conducted on liability and assessment of damages.
Held:
(1) The factual allegations of the plaintiff were sustained.
(2) The plaintiff's human rights were infringed in that he was denied: the right to the full protection of the law (Constitution, s 37(1)), the right to freedom from inhuman treatment (Constitution, s 36(1)), the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family (Constitution, s 42(2)(b)) and the right to be treated with humanity and respect (Constitution, s 37(17)).
(3) As the plaintiff established that his human rights were infringed, an appropriate form of relief is an order under Section 58(2) of the Constitution for damages, comprising two components: reasonable damages and exemplary damages.
(4) Damages were awarded at the rate of K3,000.00 each for the breaches of his human rights + exemplary damages of K1,000.00 for each of the breaches. The Court awarded total damages of K16,000.00 + interest of K6,016.00, being a total judgment sum of K22,016.00.
Cases cited
The following cases are cited in the judgment:
Abel Tomba v The State (1997) SC518
Application by Benetius Gehasa (2005) N2817
Bobby Selan v The State (2012) N4938
The State v David Wari Kofowei [1987] PNGLR 5
APPLICATION
This was an application for enforcement of human rights.
Counsel
A Meten, for the plaintiff
S Phannaphen, for the defendant
15th November, 2013
1. CANNINGS J: Batley Isaiah applies for enforcement of his human rights which he claims were infringed while he was already arrested. He claims the police shot him in his left leg twice when he was already in their custody. He seeks damages. The defendant is the police officers' employer, the State, which does not dispute the factual allegations made by the plaintiff but disputes liability on the ground that responsibility for what was done to the plaintiff should rest with the police officers who shot him.
ALLEGATIONS
2. The plaintiff deposes in an affidavit that he had been a prisoner at Beon Jail. He escaped in January 2009. On 4 March 2009 he was at Yaul settlement near Madang Airport. He was with a friend, Michael Yamali. The police raided the settlement so he and his friend jumped into a canoe and paddled across the harbour to the Gov Stoa settlement near Divine Word University. The police followed them there. They tried again to elude the police but were unsuccessful and surrendered to the police. Several policemen assaulted them. They were loaded into a police vehicle, a Toyota Landcruiser 10-seater. Inside the vehicle was Bagom Fungus, the owner of the canoe.
3. The police drove him and Mr Yamali and Mr Fungus to a secluded location near Yabob Road, behind the headquarters of the MCC Mining Company. The police ordered them out of the vehicle. Mr Fungus was asked to stand under a tree and watch. One of the police officers, Michael Ansini, armed with a rifle told him and Mr Yamali to say their last prayers. He and Mr Yamali begged not to be shot but the police officer aimed the rifle at his (the plaintiff's) feet at close range and fired a shot into his left foot. The police officer then shot Mr Yamali in the right leg. The police officer turned around to the plaintiff and fired another shot into his left foot. The police did not shoot Mr Fungus (who was entirely innocent).
4. The police took them to Modilon General Hospital. Their leg injuries were operated on. The plaintiff spent two weeks in hospital before being returned to Beon Jail. He has presented medical evidence showing that he has suffered a permanent injury to his left foot and now walks with a limp.
5. The plaintiff's evidence is corroborated by affidavit evidence from Mr Yamali and Mr Fungus. Mr Yamali deposes that it was a frightening experience. He spent three months in hospital and his leg was amputated. Mr Fungus says he witnessed what happened. He was detained in custody for thirty minutes after the shooting incident. He was told to clean the blood out of the police vehicle, which he did, and then the police dropped him off in town and told him not to tell anyone what he had witnessed.
FINDINGS OF FACT
6. There was no evidence for the State. I regard the evidence presented by the plaintiff as credible and find that he has proven the factual allegations.
LEGAL ISSUES
7. As I suggested in Application by Benetius Gehasa (2005) N2817 and Bobby Selan v The State (2012) N4938, a human rights enforcement application of this nature gives rise to two major issues:
HAVE ANY RIGHTS OF THE PLAINTIFF BEEN INFRINGED?
8. I am persuaded by Mrs Meten's submissions that the evidence shows that the plaintiff's human rights were infringed in four distinct ways. First he was denied the full protection of the law (Constitution, s 37(1)) in that he was assaulted by the police when he had already surrendered.
9. Secondly, he was denied the right to freedom from inhuman treatment (Constitution, s 36(1)) in that he was taken to a secluded place and arbitrarily shot in his left leg twice, although he had surrendered to Police and was already in Police custody when this happened.
10. Thirdly he was denied the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family (Constitution, s 42(2)(b)).
11. Fourthly, he was denied the right to be treated with humanity and respect (Constitution, s 37(17)) in that he was taken to a secluded place and arbitrarily shot in his left leg twice, although he had surrendered to Police and was already in Police custody when this happened.
WHAT REMEDY SHOULD BE GRANTED?
12. The defendant does not dispute that human rights breaches occurred. However, Mr Phannaphen argued that the State should not be vicariously liable as the police officers involved were acting outside the scope of their employment. He cited an abundance of cases in support of that proposition including The State v David Wari Kofowei [1987] PNGLR 5 and Abel Tomba v The State (1997) SC518.
13. I reject this argument as each of the police involved were carrying out their police duties in pursuing the plaintiff and apprehending him. It is true that they acted unlawfully by assaulting him and shooting him but even when they did that, they were committing those acts incidentally to what was a legitimate police operation: the apprehension of the plaintiff, who was an escaped prisoner. I find the State vicariously liable for the human rights breaches committed by its officers.
14. I am satisfied that this is an appropriate case for compensation by way of damages under Section 58(2) (compensation) of the Constitution, which states:
A person whose rights or freedoms declared or protected by this Division [the human rights set out in Division III.3 of the Constitution] are infringed ... is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
15. The award of damages will comprise the two components set out in Section 58(2): "reasonable damages" to compensate the plaintiff for the breaches of his human rights and "exemplary damages" to signify the court's condemnation of the State's extra-judicial punishment of a detainee. The applicant claims an award of K3,000.00 for each of the four breaches of his human rights. This is a reasonable claim, which I uphold. The sum of K12,000.00 is awarded for reasonable damages.
16. As for exemplary damages Section 12(1) of the Claims By and Against the State Act 1996 states:
No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.
17. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? The answer is yes. The Police Force and the State have failed in their duty to train and educate the police officer who in fact shot the plaintiff on proper and acceptable methods of policing. The State must be penalised for the wilful unconstitutional actions of its officers. I award exemplary damages of K1,000.00 each for each of the human rights breaches that occurred, being a total of K4,000.00.
18. The total award of damages is K12,000.00 (reasonable damages) + K4,000.00 (exemplary damages) = K16,000.00.
INTEREST
19. Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the incident, 4 March 2009, to the date of judgment, a period of 4.7 years, by applying the formula D x I x N = A, where:
Thus:
COSTS
20. The plaintiff is a prisoner who has been assisted in this matter by the Public Solicitor. In these circumstances it is appropriate that the parties bear their own costs.
ORDER
(1) The application for enforcement of human rights is granted.
(2) The defendant is liable to pay to the plaintiff total damages of K16,000.00 plus interest of K6,016.00, being a total judgment sum of K22,016.00.
(3) The parties shall bear their own costs.
___________________________________
Public Solicitor: Lawyer for the plaintiff
Solicitor-General: Lawyer for the defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2013/167.html