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Kunzie v Squad [2014] PGNC 334; N5701 (31 July 2014)

N5701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 568 0F 2003

BETWEEN:

AQUILA KUNZIE
Plaintiff

AND

NCD POLICE MOBILE SQUAD
First Defendant

COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2014: 28, 30, 31 July

DAMAGES – assessment of damages for breaches of human rights – liability established at trial – Police raid of public market – assault of trader by members of Police Force – confiscation of cash, market goods and destruction of property.

The plaintiff succeeded at a trial in establishing liability against the State, which was held vicariously liable for the unlawful actions of members of a Police squad who raided a public market and assaulted the plaintiff, a licensed trader, and damaged and confiscated his property. The State was held responsible for breaches of three of the plaintiff's human rights: full protection of the law, protection from proscribed acts and protection against unjust deprivation of property. The case returned to Court for an assessment of damages. The plaintiff claimed damages in three categories: (1) assault, K1, 000.00; (2) breach of constitutional (human) rights, K8, 343.20; and (3) special damages, K750.00.

Held:

(1) The claim for damages in respect of assault was refused as the judgment on liability did not determine that the State was liable in respect of such a cause of action. Nothing was awarded.

(2) The claim for damages in respect of breaches of human rights was upheld as liability for three specific human rights breaches had been established at the trial on liability. Damages were assessed as: (a) breach of the right to the full protection of the law, K1, 000.00, (b) breach of the right to protection against harsh and oppressive acts, K2, 000.00, (c) breach of the right to protect against unjust deprivation of property, K6, 343.00, a total of K9, 343.20.

(3) The claim for special damages was vague and unsupported by the evidence. Nothing was awarded.

(4) The total amount of damages awarded was 0 + K9, 343.20 + 0 = K9, 343.20. Interest was awarded on that amount, in the sum of K8, 722.81. The total judgment sum was K9, 343.20 + K8, 722.81= K18, 066.01.

Cases cited

The following cases are cited in the judgment:

Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421
Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420
Aquila Kunzie v NCD Police Mobile Squad, Commissioner of Police & The State (2014) N5584
Gerard Pain v The State (2014) N5604
Lance Kolokol v The State (2009) N3571
Steven Kuefa v George Sunku (2012) N4855

TRIAL

This was a trial on assessment of damages for breaches of human rights.

Counsel

E Wurr, for the plaintiff
A Samol, for the defendant

31st July, 2014

1. CANNINGS J: This is an assessment of damages for human rights breaches committed by members of the Police Force against the plaintiff Aquila Kunzie at Gordon, National Capital District in 2002. The long delay in having the matter dealt with was satisfactorily explained when the matter was brought to trial earlier this year. The delay was not the fault of the plaintiff.

2. The claim was dealt with on its merits, resulting in a judgment in favour of the plaintiff on 2 May 2014 (Aquila Kunzie v NCD Police Mobile Squad, Commissioner of Police & The State (2014) N5584). The Court determined that the State, as employer of the members of the Police Force who were the wrongdoers, was vicariously liable for the human rights breaches.

THE INCIDENT

3. The plaintiff was a licensed trader at Gordon Market. On Friday morning 29 November 2002 members of the NCD Police Mobile Squad raided the market in response to an assault of two women at the market. The Police ordered a number of traders including the plaintiff who had been trading in the area where the assaults took place, to leave the market so that that area could be closed down. The plaintiff and other traders complied with the demands of the Police, which were given at short notice. He moved his gear and goods to a nearby yard that he and other traders used as a storage depot. He locked the gate to the depot but then the Police followed him there and demanded that he provide them with a key. The plaintiff pretended to have no knowledge of the key. This angered some members of the Police who assaulted him and forced him to lie face down on the ground with a gun barrel pressed against his throat.

4. The Police then found the key to the gate on his person, unlocked the gate, went into the yard, dragged his gear and goods (including soft drinks, eggs and cigarettes) out into the public area and allowed members of the public to help themselves to the goods. The Police set fire to his gear including three eskies, a jumbo umbrella, pushcart and confiscated a bag containing K850.00 cash and other personal items.

LIABILITY

5. The Court determined that the plaintiff had established a cause of action against the third defendant, the State, for breach of three human rights:

• right to the full protection of the law (Constitution, s 37(1));
• right to protection against harsh or oppressive acts (Constitution, s 41(1));
• protection against unjust deprivation of property (Constitution, s 53(1)).
  

PLAINTIFF'S CLAIMS

6. The plaintiff claims damages in three categories: (1) assault, K1, 000.00; (2) breach of constitutional (human) rights, K8, 343.20; and (3) special damages, K750.00.

7. Ms Samol, for the State, submitted that nothing should be awarded as, despite establishing liability against the State, the plaintiff had failed to adduce any worthwhile evidence, and in particular, there was no corroboration of his claims.

1. ASSAULT
   

8. The Court has found that the plaintiff was in fact assaulted by the Police. However, it is not appropriate to award him any damages specifically in respect of the assault, as the judgment on liability did not determine that the State was liable in respect of such a cause of action. Nothing is awarded.

2 BREACHES OF HUMAN RIGHTS

9. The claim for damages in respect of the breaches of human rights is upheld as liability for three specific human rights breaches was established at the trial on liability. The plaintiff's evidence is sufficient. His version of events that was presented at the trial on liability is consistent with the story that he first set out in the human rights application that he filed in 2003. That version of events was accepted for the purposes of determining liability. There is no reason to now reopen the findings of fact. No corroboration is required in these circumstances. No evidence has been presented by the defendants.

10. I have assessed damages for breaches of human rights by comparing the facts of this case with other recent cases involving assessment of damages in respect of human rights breaches committed by members of the Police Force: Lance Kolokol v The State (2009) N3571, Steven Kuefa v George Sunku (2012) N4855, Application for Enforcement of Human Rights by Jacob Okimbari (2013) N5420, Application for Enforcement of Human Rights by Batley Isaiah (2013) N5421 and Gerard Pain v The State (2014) N5604.

11. Damages are assessed as:

(a) breach of the right to the full protection of the law, K1,000.00,

(b) breach of the right to protection against harsh and oppressive acts, K2,000.00,

(c) breach of the right to protection against unjust deprivation of property, K6,343.00,

A total of K9, 343.20

3 SPECIAL DAMAGES

The claim for special damages is vague and unsupported by the evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

Assault = 0
Human rights breaches = K9, 343.20
Special damages = 0
Total = K9, 343.20

INTEREST AND COSTS

12. 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 on which the cause of action accrued, 29 November 2002, to the date of judgment, 31 July 2014, a period of 11.67 years, by applying the formula D x I x N = A, where:

• D is the amount of damages;
• I is the interest rate per annum;
• N is the period in numbers of years;
• A is the amount of interest.
  

Thus:

• K9, 343.20 x 0.08 x 11.67 = K8, 722.81.
  

Costs will follow the event.

ORDER

(1) The third defendant is liable to pay to the plaintiff total damages of K9, 343.20 plus interest of K8, 722.81, being a total judgment sum of K18, 066.01.

(2) The third defendant shall pay the plaintiff's costs on a party-party basis which shall if not agreed be taxed.

Judgment accordingly
_____________________________________________________________

Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant