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Gogla v Jonathan [2019] PGNC 19; N7682 (12 February 2019)

N7682
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 829 OF 2000

BETWEEN
ALEX GOGLA representing himself and relatives of SILAS GOGLA
Plaintiff

AND
CONSTABLE GARIAME JONATHAN, SERGEANT SEBASTIAN TINAH, CONSTABLE SUMAKUS KIME, SENIOR INSPECTOR DANIEL TENDE
First Defendants

AND
SIMON KAUBA – PROVINCIAL POLICE COMMANDER
Second Defendant

AND
JOHN WAKON – COMMISSIONER FOR POLICE
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kundiawa, Mount Hagen & Waigani: Makail, J
2008: 14^th April,
2010: 25^th June &
2019: 12^th February

TORT – Negligence – Unlawful shooting – Wounding of a youth – Shooting arose from a looting incident – Issue of whether members of police shot and wounded youth – Whether members of Police acting in course of employment – Proof of – Vicarious liability

Facts

Silas Gogla (now deceased) was allegedly shot and wounded by members of the Police when they dispersed looters from a distressed semi-trailer truck. The defendants denied liability and evidence was led to establish whether members of the Police shot him and whether they were acting in the course of their employment and the State is vicariously liable for their actions and/or omissions.

Held:

1. There was sufficient evidence to establish that one of the members of the Police was armed with a pump action shot-gun and shot Silas Gogla.
   
2. There was also sufficient evidence to establish that members of the Police were acting in the course of their employment when one of them shot and wounded Silas Gogla.
   
3. The State (fourth defendant) was vicariously liable for their actions and/or omissions and will pay damages to the plaintiff.
   
4. Judgment on liability is entered against the defendants with damages to be assessed.
   
5. In relation to damages, parties were directed to settle out of Court and in the event that no settlement is reached, parties shall return to Court for trial on assessment of damages.
   

Cases cited:
Nil

Counsel:

Mr. R. Otto, for Plaintiff
Ms. J. Doa, for Defendants

JUDGMENT ON LIABILITY

12^th February, 2019

1. MAKAIL J: This claim arose out of an alleged unlawful shooting and wounding of a youth by members of the Police based in Kundiawa, Simbu Province on the night of 25^th March 2000.

2. The defendants denied liability and evidence was led by the plaintiff Alex Gogla to establish that members of the Police shot and wounded Silas Gogla whilst in the course of their employment when they dispersed a group of youths from looting cargoes from a distressed semi-trailer truck at Prinorkwa near Wara Simbu.

3. Evidence came from Jeffery Jim and Silas Gogla: affidavit of Jeffery Jim sworn on 18^th April 2008 and filed 21^st April 2008 (exhibit “P1”) and affidavit of Silas Gogla sworn and filed on 23^rd August 2005 (exhibit “P2”) and affidavit in response of Silas Gogla sworn on 18^th April 2008 and filed 21^st April 2008 (exhibit “P3”).

4. Jeffery Jim was on his way to Kundiawa town when he arrived at Prinorkwa. It was between 7:30 pm and 8:30 pm. He saw a group of youths standing at the feeder road leading into the DPI Station. He also saw a person in civil clothes holding a 5 round pump action shot-gun. He was a policeman. This policeman suspected that he was one of the youths who had attacked him and other members of the Police earlier that night and assaulted him. In fear of his life, he fled and as he fled, he heard a gun-shot. It was fired into the air. It was followed by two more gun-shots fired towards the feeder road. The third shot sounded like it struck something and it was then that he heard a person fall into a paddle of water. He heard that person cry out in agony and that was when he realised that this person was hurt. A search was conducted a while later to locate this person but was unsuccessful.

5. Silas Gogla was present at the scene of the distressed truck and saw youths including his brother Alex Gogla unloading cargos from the distressed truck and loading them onto another truck. He walked further down the road and saw a vehicle which he said belonged to the CID in a stationary position on the road. It was a Toyota Ten Seater Trooper and red in colour. He saw two policemen standing near the vehicle, one of them, who was armed with a firearm, was Gariame Jonathan. He walked on and saw another police vehicle also in a stationary position at the junction with a number of policemen near it. There were four of them. When he turned into the feeder road, he saw a group of youths. He walked on and then he heard some people running towards him from his rear saying that policemen were pursuing them. In fear of his life, he ran but it was not long when he heard a gun-shot. Then he heard two more and on the third, he was struck on his back. At the same time, he heard someone fell on the road behind him where a paddle of water was. He heard this person cry out in agony but he did not stop to help him. He ran on and reached his house and called his wife and Pastor Grai to help him. Blood came out of his mouth and he passed out.

6. He was rushed to the hospital and received medical treatment including surgery for his wound. He was released two weeks later and the medical report which was tendered without objection and formed part of his evidence supported his evidence that he was wounded on his back.

7. The defence did not deny that the wound sustained by Silas was from a firearm but said that the shot that came from the firearm was discharged by one of the youths in retaliation to being dispersed by the members of the police. The sole witness for the defence Jonathan Gariame whose affidavit sworn on 4^th June 2004 and filed on 25^th September 2006 was tendered as exhibit “D1” supported this defence. He was on duty at the material time and was one of the members of the Police dispatached to Prinorkwa to stop looters from looting cargoes from the distressed truck. He and Chief Sergeant Tinah were in the CID vehicle. He got struck on his forehead with a stone as he got out of the vehicle. The police used loud hailers to warn people not to loot the distressed truck but they did not take heed and kept on throwing stones at them. Around 9:00 pm, one of the members fired a warning shot into the air. After 5 to 10 minutes later they decided to drive in and chase the youths away and as they drove in, he heard gun-shots fired by the youths. He did not see any of the youths armed with a firearm. One of the youths was shot-dead and his body was found by the police on the road. The police did not fire any other shots. It was Sergeant Philip Dege who drove the deceased youth to the hospital. The deceased youth was Apa Jethro Gogla.

8. This is not a criminal case where the identity of the perpetrator must be established beyond reasonable doubt. Rather, it is a civil case and the onus of proof is on the balance of probabilities. On the evidence of the plaintiff and defendants, there is no dispute that Silas was struck by a shot discharged from a firearm. The primary issue here is whether the shot came from a firearm discharged by a member of the Police. The evidence of the plaintiff pointed to there being one firearm seen that night. It was a 5 round pump-action shot-gun. The person who was in possession of it prior to the shots being discharged was Gariame Jonathan. There were three shots heard. The first one was fired into the air. It appeared to be a warning shot. The other two were fired towards the fleeing youths and one of them, being the third one, struck Silas on his back. This evidence is consistent and logical with the overall evidence of the parties. As will be seen shortly, the consistency and position is maintained through-out cross-examination where the plaintiff maintained that there were three gun-shots heard that night coming from the direction where the members of the police were. Whether it was Gariame Jonathan who discharged the firearm and wounded Silas is not certain and it would be difficult to hold him responsible because there is no evidence from the plaintiff that Gariame Jonathan was seen discharging the firearm. Compounded by this, it was dark and identification of the perpetrator has been made difficult. These factors leave open the inference that it could have been Gariame Jonathan or another member of the Police who shot Silas.

9. As for the defendants, Gariame Jonathan’s evidence is less impressive. He was unable to say if he saw a youth or youths armed with firearms that night, especially at the time when he was struck with a stone on his forehead. In cross-examination he admitted being in civil clothes just like any other CID officers but denied holding a firearm that night. Then he said that he heard gun-shots coming from the directions of youths and only one gun-shot coming from the direction of the police. If that was the case, it does not make sense that Silas sustained a wound on his back especially when he and other youths were facing in the direction of the police. This assertion is speculative and defies logic. The logical and probable explanation for a gun-shot wound on the back is when he had his back turned towards the person discharging the firearm. When Jonathan Gariame’s explanation that despite police warning youths not to loot cargoes from the distressed truck but they did not take heed and they pursued them down the road is taken into account which I do, it makes a lot of sense and is consistent with the plaintiff’s version of events, that it was then at the feeder road that Silas was struck by bullet discharged from the firearm. This was after two more shots were discharged and one of them, being the third, struck Silas as he and Jeffery fled from the police. I am satisfied on the balance of probabilities that an unidentified member of the Police shot Silas Gogla with a pump-action shot-gun.

10. Except for the stone which struck Gariame Jonathan on his forehead, there is no other evidence that showed that lives of other members of the police were in great danger. Other than this, the evidence is sufficient to establish that there was no immediate threat to the safety of the members of the Police and also the cargoes on the distress truck. It was then not a case where the members of the police were acting in self-defence or under an emergency but rather shooting indiscriminately at the fleeing youths. The unidentified member of the police had a duty of care to ensure that no harm was caused to the members of the public and failed in the discharge of that duty when he discharged the firearm in a manner that put lives of the members of the public in danger and in so doing, wounded Silas. In other words, this person was negligent in the discharge of his duty.

11. The final issue is whether the members of the Police were acting in the course of their employment when one of them shot and wounded Silas. From the evidence of both parties, there is no dispute that a semi-trailer truck with cargoes broke down at Prinorkwa. Members of the police based at Kundiawa were advised of the situation and tasked to provide security until help arrived, which they did. While there is dispute as to whether youths looted cargoes from the distressed truck, it is sufficient to find that members of the Police did disperse them and in the process shot and wounded Silas. For these reasons, there is sufficient evidence to establish that the members of the Police were acting in the course of their employment when one of them shot and wounded Silas and the fourth defendant (State) is vicariously liable for their actions and/or omissions and will pay damages.

12. In conclusion, liability has been proven and there will be a judgment on liability for the plaintiff with damages to be assessed.

13. In relation to damages, as this has been a long outstanding claim and in order to fast track the issue of damages, there will be further orders in the form of directions for parties to settle the claim out of Court within a fixed time. Where no settlement is reached, parties will file and serve further affidavits on the question of damages and will return to Court for mention on a date to be fixed upon written request to the Registrar.

14. Costs of the proceedings shall be in the cause.

Order

1. Judgment on liability is entered against the defendants with damages to be assessed.
   
2. In relation to damages, the plaintiff shall forward a settlement offer to the defendants within fourteen (14) days of this judgment.
   
3. The defendants shall consider and respond to the settlement offer by either accepting, or rejecting, or making a counter-offer to the plaintiff within a further fourteen (14) days of the receipt of the settlement offer.
   
4. Where the defendants make a counter-offer, the plaintiff shall accept or reject it within a further fourteen (14) days of the receipt of the courter-offer.
   
5. Where parties are unable to reach a settlement, they shall file and serve further affidavits of witnesses on the question of damages within a further fourteen (14) days of the notice of failed settlement.
   
6. The matter shall return to Court for mention on a date to be fixed upon either party’s request in writing to the Registrar.
   

7. Costs of the proceedings shall be in the cause.

8. Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.
   

________________________________________________________________
Mawa Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants