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Goiya v Anor [2017] PGNC 36; N6660 (1 March 2017)

N6660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS No. 1330 of 2010


BETWEEN:
THRESA GOIYA - ON BEHALF OF
THE ESTATE OF THE LATE RICHARD GOIYA

First Plaintiff


AND:
CHRIS GOIYA

Second Plaintiff


AND:

SIMON ANOR-MEMBER OF WARD 10
MAROK LOCAL LEVEL GOVERNMENT WARD, AITAPE, SANDAUN PROVINCE

First Defendant


AND:

PAUL VAVENA- POLICE STATION
COMMANDER, AITAPE POLICE STATION

Second Defendant


AND:

CONSTABLE BRIAN MUL

Third Defendant


AND:

RESERVE CONSTABLE STEVEN WEIMI

Fourth Defendant


AND:

RESERVE CONSTABLE LUCAS MARTIN

Fifth Defendant


AND:
TOM KULUNGA, COMMISSIONER OF POLICE
Sixth Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant


Waigani: Injia CJ
2017: 25 February, 1 March


CLAIM FOR DAMAGES - In Tort and for Infringement of Constitutional Rights, Claim arising from police raid in search of weapons and sorcery materials - Plaintiffs Pastor in Local church- Subjected to intimidation, threat, assault, forced to eat raw leg cut off from a cat at gunpoint in the Plaintiffs' presence, forced to swallow materials thought to be used in sorcery, forced to drink blood flowing from facial injuries inflicted in the assault ,and publicly paraded around Aitape Government Station- Trial on issue of liability only - Defence - State denying vicarious liability for criminal actions of the policemen- Judgement entered in favour of the Plaintiffs for damages to be assessed - Constitution, ss 36, 37, 41, 42, 44, 57, 58; Wrongs Act , s 4.


Cases Cited:


Dalin More v The State [1998] PNGLR 290

Meta v Kumono [2012] N4598

Yanopa v Doughty Ltd [2016] N6333


Counsel:


I David, for the Plaintiffs
Mr Mileng, for the Defendants (for a part of the trial)


1st March, 2017


1. INJIA CJ: This is an action for damages for tort and for infringement of Constitutional rights arising from a police search and raid conducted in the course of searching for illegal weapons and sorcery materials, conducted at Morok Village, Aitape, Sandaun Province


2. The trial is confined to the issue of liability.


The Claim & Defence


3. The Plaintiffs originally come from the East Sepik Province. At the material time, they resided at Marok village, Aitape, in the West Sepik Province or the Sandaun Province where the Second Plaintiff worked as a Pastor in a local Church.


4. In 2014 they instituted these proceedings claiming damages for wrongful actions of policemen based at Aitape Police Station allegedly committed during a police raid conducted on 10 February 2005 at the Marok village. The raid was conducted whilst searching for weapons and instruments or items of sorcery. The First Defendant is the Local Councillor for the area. He is alleged to have fetched policemen stationed at Aitape Station and assisted them during the raid. The Second, Third, Fourth and Fifth Defendants (2nd - 3rd Defendants) are policemen based at Aitape Police Station and alleged to have carried out the raid.


5. It is alleged that the policemen entered the village and searched the house in which the First and Second Plaintiffs lived with their families. They kicked and damaged the doors and interior walls during the search and then demolished the house. They threatened the Plaintiffs and their families with guns and assaulted the two Plaintiffs and subjected them to inhuman acts. They were detained at the police cells for 39 days without being told of the reasons for their arrest and without charge. Later they were charged and brought to the District Court and prosecuted maliciously. The State in a statement of agreed facts admits much of these wrongful actions were committed by the policemen but says the State did not and could not authorise these unlawful and criminal acts of its servants and cannot be held vicariously liable for their criminal actions.


6. The Plaintiffs' claim and the factual and legal basis of the claim is contained in the Statement of Claim endorsed on the Writ of Summons: see Amended Writ of Summons filed on 11 March 2014. The Solicitor General filed an Amended Defence on behalf of the 6th and 7th Defendants in which they denied the State was vicariously liable for the wrongful actions of the policemen: see Amended Defence filed on 2 December 2016.


7. The trial was conducted ex parte in respect of the 1st, 2nd, 3rd, 4th and 5th Defendants after they were each served the Writ of Summons and Notice of Trial and they failed to appear at the trial. The trial commenced with the lawyers for the Plaintiffs and the 6th and 7th Defendants in attendance. The Court received several affidavit evidence from the Plaintiffs and adjourned the trial for continuation. When the trial resumed, the Lawyer for the 6th & 7th Defendants failed to attend. The trial proceeded ex parte with leave of the Court in respect of the 6th and 7th Defendants. The Court received further affidavits from the Plaintiffs. The Court noted the Defendants did not file any affidavits. After the close of the Plaintiffs’ case, the trial was adjourned to Saturday 25th February 2017 for submissions. Lawyer for the 6th and 7th Defendants appeared and the Court refused him leave to appear at this late stage of the trial. During submissions, the Court invited the Plaintiffs counsel to address it on the Defendants’ Amended Defence for the Court’s consideration, which he did. After the Plaintiffs completed their submissions, I reserved my ruling on the question of liability which I now deliver.


Evidence


8. The Plaintiffs have produced six (6) affidavits to support their claim as follows:


. Court Exhibit A: Affidavit of Chris Goiya sworn 10th August 2015 and filed 19th August 2015

. Court Exhibit B: Affidavit of Police Officer Andrew Manau sworn on 23rd April 2013 and filed on 29th August 2013

. Court Exhibit C: Affidavit of Pascal Sarere sworn on 15 July 2015 and filed on 29 July 2015

. Court Exhibit D: Affidavit of Richard Goiya sworn and filed on 8 August 2013

. Court Exhibit E: Affidavit of Police Officer Sgt Andrew Manau sworn on 22 December 2016 and filed on 31 January 2017

. Court Exhibit F: Affidavit of Chris Goiya sworn on 20 January 2017 and filed on 31 January 2017.


9. The evidence contained in these affidavits establish the following:


  1. The Plaintiffs originally come from the East Sepik Province. They are members of a local Church by the name of the PNG Revival Center church. The First Plaintiff is the widow of the original First Plaintiff who is the father of the Second Plaintiff. She was granted leave by this Court to represent the estate of her late husband who died after filing these proceedings from causes unrelated to the incidents the subject of these proceedings. The Second Plaintiff is an ordained Pastor of that church.
  2. On 10 February 2005, the 1st to 5th Defendants arrived at Marok Village in an unregistered motor vehicle owned by the Third Defendant, under the guidance of the First Defendant. They parked the vehicle outside the Plaintiffs’ house.
  3. The purpose of the visit was to search for weapons and sorcery materials alleged to be used by the Plaintiffs to conduct sorcery activities. They did not possess a Search Warrant authorising them to search and seize weapons and sorcery materials that may be found in the Plaintiffs' house. They were armed with police issued rifles. They were in a drunken state.
  4. They (1st-5th defendants) went into the Plaintiffs’ house and kicked open the walls of the house.

They entered the house and damaged the interior of the house and left the entire house completely devastated. Then they pulled down the entire house to the ground in order to destroy any concealed sorcery materials.


  1. They fired shots into the air to scare everyone. They put a gun over the head of the Second Plaintiff’s wife and fired a shot leaving her in fear and shock. They shouted at the Plaintiffs family and verbally abused the Plaintiffs and their families.
  2. They accused the Plaintiffs of practicing sorcery. They cut off the leg of a cat in the presence of the Plaintiffs and forced the Second Plaintiff to eat the raw leg of the cat at gunpoint. They also forced him to eat and swallow six bundles of “the ginger (karkar) plants that they said were used to commit the sorcery for proof if he could die from eating the sorcery materials. The Second Plaintiff was hit with a piece of timber across his right leg and head and face. He fell down unconscious with blood pouring out from the side of his head. When he regained consciousness, he was forced to drink his own blood.
  3. They paraded the Plaintiffs at three places- Marok village, around Aitape Government Station- and at the Police Station. They branded the Plaintiffs as sorcerers and humiliated and shamed them in public. Schools and other activities in the area came to a standstill and people came out and watched these events as they unfolded. The policemen used loud hailers and announced that the Plaintiffs were sorcerers, that the people should take care and that any person who witnessed their sorcery activities should come forward to give evidence as witnesses.
  4. The Plaintiffs denied they practiced sorcery. They said the Second Plaintiff was an ordained Pastor of the Revival Centers of PNG. His parents including the First Plaintiff were Christians and the accusation that they were practicing sorcery was false, that they could never do such a thing and serve two Masters – Satan and God- and that they could not compromise their Christian faith.
  5. The Plaintiffs were taken to Aitape Police Station where they were locked up in the cells without being informed of the precise reasons for their arrest and kept there for 39 days without being charged. They were denied their right to speak to a lawyer and a member of their family. They abused them and uttered insulting words at them such as “You kaikai kan yupela olgeta East Sepik Man na Meri”. They further assaulted them with riffle buts and lemon tree branches with thrones and prickles on them. They were denied medical treatment for injuries they sustained in the attack. They were starved of food and drinks.
  6. After 39 days in detention, they were charged with sorcery offences and brought before the Aitape District Court. The District Court found both Plaintiffs guilty. The First Plaintiff was sentenced to 12 months imprisonment. The Second Plaintiff was fined. The Court also ordered the Second Plaintiff to return to his own Province and barred him from entering Marok village for 5 years.

10. The above facts established by the evidence are consistent with the pre-trial position of the parties whereby during the pre-trial conference, the Plaintiffs and the Defendants ( 6th and 7th Defendants) negotiated and settled on a Statement of Agreed and Disputed Facts and Legal Issues which was filed in Court on 10 March 2016 (MFI #3). That Statement is now before the Court and is taken into account as part of the material for the trial.


11. The pertinent facts agreed to by the parties as per the Statement are as follows:


(i) The First Plaintiff, Thresa Goiya, is the widow of the late (original) First Plaintiff and sues on behalf of the estate of the deceased.

(ii) At all material times when the cause of action accrued, the First Defendant was a Local level Government Councillor of Ward 10 of Marok Village, Aitape District in the Sandaun Province. The Second, Third, Fourth and Fifth Defendants were members of the Royal Papua New Guinea Constabulary stationed at Aitape Police Station and “sued in their capacities”.

(iii) The Sixth Defendant, the Commissioner for Police, being the head of Papua New Guinea Royal Constabulary, is vicariously liable for all acts and omissions committed by the Second, Third, Fourth and Fifth Defendants whilst in the course and scope of performing their duties and responsibilities as members of the Police Force.

(iv) On or about 10th February 2005, the First, Second, Third, Fourth and Fifth Defendants whilst armed with Police issued riffles, arrived at Marok Vilage, went into the Plaintiffs’ family house and kicked open the walls of the house in search of weapons and sorcery materials.

(v) The Plaintiffs’ entire house was left in havoc and complete devastation unfit for human habitation, by the actions of the First, Second, Third, Fourth and Fifth Defendants.

(vi) The First, Second, Third, Fourth and Fifth Defendants alleged that the Plaintiffs were practising sorcery. Hence, they forced the Second Plaintiff to eat a raw leg of a cat at gunpoint.

(vii) The Plaintiffs were taken to Aitape Police Station where they were detained in the police cells for 39 days without informing them of the reasons for their detention in a language they understand and without charging them for any offence.

(viii) Whilst in detention for those 39 days, the Second, Third, Fourth and Fifth Defendants assaulted the Plaintiffs with Police issued riffle buds and lemon tree branches with prickles on them.

(ix) Whilst the Plaintiffs were in detention for those 39 days, they were denied food and medical treatments.

(x) On 21 March 2005, the Plaintiffs were charged with an offence of practicing sorcery.

Findings of Fact


12. I make findings of fact in accordance with my findings on the evidence appearing in paragraph (9) above, which embody the facts agreed to between the parties appearing in paragraph (11) above. With regard to the other evidence not agreed to between the parties in the Statement, in particular with regard to the parading of the Plaintiffs around Aitape Government Station, I find that those actions also occurred.


Determination of Legal Issues and Conclusions


13. The factual issues having been resolved, I turn to the legal issues. I deal first with the four issues set out in the Statement and then draw some conclusions from the findings of fact and on the legal issues.


Issue 1: Whether the First, Second, Third, Fourth and Fifth defendants are liable in damages for negligently destroying the plaintiff’s properties and causing bodily injuries to the Plaintiffs?


14. I have no hesitation in finding that the First, Second, Third, Fourth and Fifth Defendants are liable, severally and jointly, for the destruction of property and assault and bodily injuries inflicted on the Plaintiffs. They had no lawful excuse for exceeding and abusing their powers of search, seizure and arrest to perpetrate the wrongful actions. They are personally liable to the Plaintiffs for tort, assault, verbal abuse and intimidation and harassment and destruction of property and all the other inhuman punishment and indignities perpetrated on the Plaintiffs.


Issue 2: Whether the First, Second, Third, Fourth and Fifth Defendants are liable in damages for breaching the Plaintiffs’ Constitutional Rights under Sections 36, 37, 44 and 42 of the Constitution?


15. I am satisfied that the Plaintiffs were denied their right to freedom from inhuman treatment: Constitution, s 36(1). They were submitted to physical and mental torture and inhuman treatment and punishment at the hands of the 2nd - 5th Defendants that had no regard for their inherent dignity and self respect of the Plaintiffs as human persons. The actions of the Defendants in tearing down their house to the ground in their presence; accusing the Plaintiffs of practicing sorcery and forcing the Second Plaintiff to eat the raw leg of a cat (that they cut off in the Plaintiffs' presence) at gunpoint; forcing the Second Plaintiff to drink his own blood flowing from facial injuries they inflicted; forcing the Second Plaintiff to swallow six bundles of ginger they said were used as materials to practice sorcery to establish proof of the power of sorcery; publicly parading the Second Plaintiff and his family members in three locations around Aitape Government Station and making them confess that they are sorcerers; beating them with lemon tree branches with prickles on them; detention without informing them of the reasons for their arrest and without charging them for 39 days; and denying them food and medical treatment whilst in detention; all constitute terrifying actions of cruelty, torture and inhuman treatment that have no respect for the dignity of the Plaintiffs.


16. I am satisfied that the Plaintiffs’ fundamental right to liberty of persons arrested for an offence under Constitution, s 42(2) were infringed in that they were detained without being informed of the precise reasons for detention and detained for 39 days without charging them for an offence. They were also denied their constitutional right to speak to their family members or a lawyer.


17. I am satisfied that the Plaintiffs' right under Constitution, s 44 to freedom from arbitrary search and entry was infringed in that they entered the Plaintiffs’ premises without a Search Warrant and searched and destroyed their house and properties.


Issue 3: Whether the First, Second, Third, Fourth and Fifth Defendants are liable in damages for breaching the Plaintiffs’ Constitutional Right under Section 41 of the Constitution?


18. The Plaintiffs submit that their rights under s 41 of the Constitution were breached for which they are entitled to damages under s 57 and s 58 of the Constitution. Section 41 titled “Proscribed Acts" does not expressly declare those instances of proscribed acts to be a Constitutional right. That provision simply declares unlawful any actions taken under law to be unlawful if they were harsh and oppressive, etc. Nonetheless, I will adopt the decision of Cannings J in Meta v Kumono [2012] N4598, referred to me by the Plaintiffs, to find the Plaintiffs are entitled to remedies under s 57 and s 58 of the Constitution for unlawful acts coming under s 41 of the Constitution. That these actions of the Defendants, even if taken under the Arrest Act and Search Act, were unlawful in that those actions were clearly excessive, harsh, oppressive and disproportionate to the circumstances of the case and that they are not justifiable in a democratic society having regard to the rights and dignity of mankind.


Issue 4: Whether the Seventh Defendant is vicariously liable for the acts and omissions of the Second, Third, Fourth and Fifth Defendants?


19. This issue arises from the Amended Defence of the 6th and 7th Defendants filed on 2 December 2016. In their Amended Defence, they raise two issues: First they say the Plaintiffs’ pleadings in the Statement of Claim endorsed on the Writ fail to plead the statutory provisions that allows the State to be vicariously liable for the wrongful actions of the 2nd - 5th Defendants, namely, s4 of the Wrongs Act. Therefore it is not open to the Plaintiffs to seek to make the 6th and 7th Defendants vicariously liable.


20. On this issue, the Statement of Claim does not expressly plead s 4 of the Wrongs Act. It is implied though in the pleadings that the 6th and 7th Defendants are being sued in their representative capacity to be held answerable for the actions of the 2nd- 5th Defendants. I accept the Plaintiffs' submission that neither the Wrongs Act nor the rules of Court (National Court Rules) require the Plaintiffs to plead s 4 of the Wrongs Act in the Statement of Claim. The rules of Court do require the Defendants to plead s 4 by way of specific pleading as a statutory defence to which the Plaintiff is entitled to file a Reply.


21. Second, they say the State is not vicariously liable for the actions of the 2nd – 5th Defendants because they committed criminal offences which were not authorised by the State.


22. On this issue, this Court has held the view in a number of cases including my own decision in Dalin More v The State [1998] PNGLR 290, that the State cannot be held vicariously liable for the criminal actions of policemen committed in the course of performing their duties. The Plaintiffs refer me to a recent decision of the National Court in Yanopa v Doughty Ltd [2016] N6333 which suggests the State is vicariously for wrongful actions of policemen committed that is “independent, not connected with, the authorised act”. The Plaintiffs submit the State is vicariously liable because Defendants exceeded their powers and committed the breaches in the course of performing their authorised duties; that their actions were connected with the authorised act; and that they did not commit crimes such as murder or rape as was the case in Dalin More.


23. I accept the Plaintiffs’ submission. This is clearly a case where the policemen grossly exceeded and abused their powers of search, seizure and arrest. The tearing down of the house appears to border on a criminal act but when seen in the context of the series of actions, it cannot be strictly labelled as a crime completely unconnected with the authorised actions.


Other issues in the trial


24. The pleadings and evidence raise other causes of action such a denial of a fair and speedy trial by the District Court and malicious prosecution. The evidence shows that the Plaintiffs were eventually charged, tried and convicted and sentenced for sorcery offences. They appealed the decision to the National Court but the appeal did not get far because the Plaintiffs say the Court staff did not progress the appeal to a hearing. The claims in respect of these causes of action were not pursued by the Plaintiffs at the hearing and I make no findings on those matters. Those should be taken as standing dismissed.


25. With regard to other matters not addressed in this judgment, I consider them to be lacking foundation in the pleadings or even if pleaded, either not sufficiently clarified in the pleadings or not supported by the evidence. Those also stand dismissed.


26. The trial is largely an ex parte hearing. However, in order to arrive at a judgement on liability on the merits, the issues raised in the Amended Defence have been considered both in submissions by the Plaintiffs and in my deliberations.


Conclusions


27. My findings of fact and the application of the law to those facts and determination of legal issues inevitably leads to inferences and conclusions to be drawn from them.


28. The kind of inhuman, degrading and indignant actions and punishment dished out to these Plaintiffs is to my knowledge unprecedented anywhere in Papua New Guinea. The real motive and purpose behind this attack is obscure and perhaps may never be known. From the scanty facts that I have found, it is clear to me that the underlying reasons for the attack is ethnicity-based and religion/sorcery-based.


29. With regard to ethnicity, the Plaintiffs come from neighbouring East Sepik Province and no doubt come from a different ethnic group. There appears to have been hatred of the Plaintiffs in the Marok community over the Plaintiffs work in spreading the Christian faith in West Sepik Province. The Plaintiffs' presence and work in Marok was not well received by the Marok and Aitape community. There appears to have developed deep hatred for the family, which led to the Ward Councillor taking the lead to report the matter to police and assisted them in conducting the raid. The policemen were stationed at the Aitape Police Station and appear to come from that area or Province. I infer this fact from their abusive statements that singled out and targeted the "East Sepik" men and women living in the area. The policemen were no doubt incensed by the complaints received from the Marok community represented by the First Defendant and took sides and set out to punish the Plaintiffs. The policemen took the law into their own hands and dished out severe punishment to the Plaintiffs well before the Plaintiffs were brought to a Court of law.


30. With regard to religion/sorcery, the perceptions harboured by the policemen of the Plaintiffs’ practice of sorcery was connected to religion. The Plaintiffs were persecuted for practicing their Christian faith at the hands of policemen who were under community pressure and influence to destroy the Plaintiffs’ work in spreading the gospel of Jesus Christ. It is true that the Plaintiffs were successfully prosecuted and convicted by the District Court at Aitape and this conviction stands against them to this day. But they did not have to be subjected to the cruel and inhuman punishment that was dished out to them and their family members before they were brought to Court.


31. Respect for the choice of one's religion and one's tolerance of the other person's religious belief, whether those belief systems are held by individuals or collectively within ethnic or other social groupings, is a protected fundamental right under the PNG Constitution: Constitution, s 45. The origin of this protection is traced to experiences in the 18th and 19th Century in Europe where the separation of the State from the Church was blurred and the Church assumed the powers and responsibilities of the State (or the Kings assumed powers and responsibilities of the Church) to persecute Christian minorities of diverse Christian faith leading to mass exodus of Christians to the West. History has it that some of the worst forms of human degradation, sufferings and persecutions are religion-based.


32. Belief in sorcery and religious belief both derive their genesis from belief systems that trace their origin to the powers of the supernatural and divine. Disputes over one’s human understanding of divine or supernatural powers has the potential and can lead to some of the worst forms of human atrocities, torture and persecution, both non-physical and physical, known to mankind, committed by human beings against each other. Belief in the Christian God and belief in the powers of sorcery are completely incompatible and cannot co-exist and tensions can quiet easily flare and degenerate into physical confrontations and infliction of physical and mental harm. Belief in sorcery and belief in the Christian faith can never be a justification for committing crimes. It is incumbent on the State, when symptoms of intolerance, tensions and criminal activities first appear, to reign in those responsible and take firm action against those who use religion and sorcery as an excuse to commit crimes, torture and persecution.


33. In the case before me, what the Plaintiffs have gone through are amongst the worst forms of torture and repression and indignities, human degradation and humiliation for practicing their Christian faith that anyone in PNG could go through.


34. For this reason, notwithstanding what I have said of the actions of the Defendants falling short of a crime, I propose to recommend, as part of my judgment on damages, to the Police Commissioner, that the 1st, 2nd, 3rd, 4th and 5th Defendants be investigated and prosecuted for any criminal wrongdoing committed in this police raid and bring them to justice.


Orders


35. For the foregoing reasons, I order that:


(1) Judgement be entered for the Plaintiffs on liability for damages to be assessed.
(2) The trial on assessment of damages shall now follow.
(3) Costs is reserved to be determined at the conclusion of the trial on damages.

_______________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Solicitor General: Lawyer for the Sixth and Seventh Defendants


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