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Mark v Neneo [2019] PGNC 340; N8115 (22 November 2019)

-N8115

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 244 OF 2018

DOROTHY MARK
Plaintiff

V

BEN NENEO, MADANG PROVINCIAL POLICE COMMANDER
Defendant

Madang: Cannings J
2019:13, 26 July, 7, 13 August, 3 September, 22 November

HUMAN RIGHTS –application for orders for police investigation of complaint against member of Parliament for alleged criminal behaviour – alleged breach of rights to full protection of the law, protection against harsh, oppressive acts, natural justice – Constitution, Sections 37, 41, 59.

STATE SERVICES – Police Force – whether Police have duty to investigate complaints of alleged crimes – whether Police can be ordered to investigate complaint of alleged criminal conduct or to arrest or charge a person the subject of a complaint.

The plaintiff, a journalist, complained to Police that a member of Parliament was guilty of offences under the Cybercrime Code Act 2016 arising from publication of material allegedly defamatory of her on social media. The defendant, the Provincial Police Commander, directed the member of the Police Force responsible for dealing with such complaints to advise the plaintiff to consider pursuing her grievance through civil proceedings. The Police took no further action on the complaint. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the defendant in particular, commenced proceedings against the defendant, claiming that he had stopped police from investigating her complaint and by that action, breached her human rights under Sections 37, 41 and 59 of the Constitution to the full protection of the law, protection against harsh or oppressive acts and natural justice. She sought declarations to that effect and an order that the defendant act on her complaint by requiring the member of Parliament to be brought to a police station for questioning in relation to his alleged commission of cyber crime offences, or an order that the defendant provide reasons for not acting on her complaint. The defendant denied all alleged human rights breaches. A trial was conducted.

Held:

(1) As to contentious facts: the plaintiff failed to prove that the defendant had actively prevented an investigation of her complaint or removed the entry of her complaint in the occurrence book. However it was proven that her complaint was not acted on.

(2) Members of the Police Force are under no general enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate. They have a wide discretion in deciding whether to investigate. It would only be in exceptional cases that an enforceable obligation to investigate the complaint would potentially arise.

(3) This complaint was general in nature and on the face of it was not so serious or sufficiently supported by evidence, as to give rise to an enforceable obligation on the part of the Police, including the defendant, to investigate it. The defendant did not deny the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) or act harshly, oppressively or in any other proscribed way (for purposes of Section 41(1) of the Constitution) or act contrary to the principles of natural justice (for purposes of Section 59(1) of the Constitution).

(4) As no breach of human rights was proven, the proceedings were dismissed.

Cases Cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Edward Etepa v Gari Baki (2015) SC1502
Kisi Trokowa v Koive Ipai (2018) N7119
Maku v Maliwolo (2012) SC1171

APPLICATION

This was an application for declarations and orders relating to the failure of Police to investigate a complaint of criminal conduct, prosecuted as an application for enforcement of human rights.

Counsel:

B B Wak, for the Plaintiff
P Henry, for the Defendant

22^nd November, 2019

1. CANNINGS J: The plaintiff, Dorothy Mark, was in 2018 a journalist working for The National newspaper in Madang. On 4 July 2018 she lodged a complaint in writing with the Police that the member for Madang Open, the Honourable Bryan Kramer MP, was guilty of offences under the Cybercrime Code Act 2016 arising from publication of material defamatory of her on social media. The defendant, Inspector Ben Neneo, was the Provincial Police Commander. He directed the member of the Police Force responsible for dealing with such complaints to advise the plaintiff to consider pursuing her grievance through civil proceedings. As a consequence the Police took no further action on the complaint.
   
2. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the defendant in particular, commenced proceedings against the defendant, claiming that he had stopped police from investigating her complaint and by that action, breached her human rights under Sections 37, 41 and 59 of the Constitution to the full protection of the law, protection against harsh or oppressive acts and natural justice.
   
3. She seeks declarations to that effect and an order that the defendantact on her complaint by requiring the member of Parliament to be brought to a police station for questioning in relation to his alleged commission of cybercrime offences, or an order that the defendant provide reasons for not acting on her complaint. The defendant denied the alleged breach of human rights. A trial has been held to determine whether the plaintiff has proven that any of her human rights were breached. The following issues arise:
   
   1. What are the facts?
      
   2. Has the plaintiff proven that the defendant breached her human rights?
      
   3. What orders should the Court make?
      

1 WHAT ARE THE FACTS?

4. The plaintiff lodged the complaint on 4 July 2018. It was addressed to Sergeant Bola Rimur, the officer in charge of the Trans National Crimes Unit at Jomba Police Station, in the following terms:
   

SUBJECT: COMPLAINT AGAINST THE MEMBER FOR MADANG HONOURABLE BRYAN KRAMER FOR CYBERCRIME RELATED OFFENCES

It is indeed my pleasure to write to your office per the subject matter.

The Honourable member for Madang Bryan Kramer has published articles about me on different social networking sites mainly Facebook which he falsely accused me for writing biased stories while benefitting under the former Madang MP’s DSIP funds.

His articles went viral, were shared on various Facebook discussion groups including individual Facebook walls where hundreds of defamatory comments were made against me.

Those comments were INSTIGATED by Mr Kramer’s articles.

The MP’s post painted a bad picture of me towards public and tarnished and injured my reputation and profession too. The damage done cannot be UNDONE.

The action of the MP is unbecoming of a national leader who holds an office that must be served with HONOUR AND DIGNITY.

The actions of the MP prompted me to seek legal help and action thus putting this issue to rest.

I am using my constitutional rights as a citizen of the democratic state of Papua New Guinea guarded by the Constitution of this country to pursue this matter in the court of law.

Yours sincerely

Ms DOROTHY MARK

5. The complaint was accompanied by a bound 200-plus-page document. This contained copies of numerous posts on social media sites many of which were defamatory of the plaintiff. Various persons commented on allegations made against her by Mr Kramer as to her alleged receipt of money from public funds controlled by the previous member for Madang Open.
   
6. The defendant directed Sergeant Rimur to advise the plaintiff to consider pursuing her grievance through civil proceedings. No action was taken on the plaintiff’s complaint. It was shelved.
   
7. The plaintiff contends that the defendant actively prevented any investigation of her complaint and that he scribbled out the entry of her complaint in the occurrence book at Jomba Police Station. I find no credible evidence to support those allegations.
   
8. However the plaintiff has proven that she lodged a complaint of criminal conduct in writing and that it was not acted on. There was no investigation of it and no serious consideration given to arresting or charging the member of Parliament whose conduct she complained about.
   
2. HAS THE PLAINTIFF PROVEN THAT THE DEFENDANT BREACHED HER HUMAN RIGHTS?
   
9. In making an assessment of whether the defendant breached the plaintiff’s human rights, two principles of law must be borne in mind. First, the functions of the Police Force and all members of the Force including the defendant are prescribed by Section 197(1) of the Constitution, which states:
   

The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

10. Secondly, the manner in which the Police discharge those functions is largely a matter for the Police. The courts in Papua New Guinea have followed a traditional “hands off” approach in cases where plaintiffs allege that the Police Force or its members have not properly discharged their constitutional functions.
    
11. I pointed out this approach in my decision in Kisi Trokowa v Koive Ipai (2018) N7119. In that case the plaintiff alleged that his house was destroyed and looted and that he suffered property losses due to the negligent failure of members of the Police Force to respond to his request for police assistance after he reported an ongoing ethnic clash (in which he was not involved) in the area of his house. He commenced proceedings against the commander of the police station at which he reported the matter, the Commissioner of Police and the State, relying on two causes of action: the tort of negligence and breach of human rights. The defendants’ primary defence was that the police do not owe a duty of care to members of the public as far as prevention of crime is concerned and therefore no liability could be established in negligence or for breach of human rights. I decided the case against the plaintiff, relying on Supreme Court authority (Maku v Maliwolo (2012) SC1171 and Edward Etepa v Gari Baki (2015) SC1502) to the effect that members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned. Thus no action in negligence against the defendants could be established.
    
12. In Maku, the Court (Lenalia J, Makail J, Kariko J) held that under the common law, members of the Police Force owe no duty of care to members of the public as far as prevention of crime is concerned, the reason being that deployment of scarce police resources is a matter of discretion for police to consider and that to expose members of the Force to the risk of litigation as to the conduct of police operations would impair their ability to discharge the duties of the Police Force under Section 197 of the Constitution to “preserve peace and good order in the country [and] maintain and, as necessary, enforce the law in an impartial and objective manner”. The Court stated:
    

37. The common law is consistent with Section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. The common law in England prior to Independence is applicable where appropriate in PNG as part of the underlying law pursuant to Schedule 2.2 of the Constitution. In our view, these principles developed in Hill’s case and adopted by the Courts of other common law jurisdictions such as Australia, Fiji, Kiribati, Tonga and very recently, PNG, are sound, appropriate and consistent with the Constitution and we would adopt and apply them in this case.

38. These principles are sound, appropriate and consistent with the Constitution because if the law were to impose or create a specific duty of care on the police in the discharge or performance of their duties, it will result in all manner of litigation against them and the State. It is common knowledge the Police Force has inadequate manpower and resources to maintain law and order in the country. Time and again, police manpower and resources have been stretched to the limit, and in our view, it would be unwise and inappropriate to impose or subject them to specific requirements as to the way they discharge or perform their duties.

39. In the present case, the destruction and looting of the appellants’ property was done by the enemy tribe. The police were not the ones who destroyed and looted the appellants’ property. The allegation that the police owed them a duty of care to protect their lives and property and should have attended and stopped the tribal fight does not exist in law because the police owe no duty of care to the public at large and it is against public policy. As the appellants have failed to establish the existence of a duty of care, there cannot be a breach of that duty by the respondents. It follows the respondents cannot be liable for the damages caused by the enemy tribe.

13. That approach was reaffirmed by a differently constituted Court (Manuhu J, Kariko J, Murray J) in Etapa:
    

10. We are of the opinion that the question of whether the police breached a duty of care to provide law and order is answered by the relevant principles pronounced in Maku’s case. Where two tribes have by their own choice developed a dispute at a polling booth into a fully-blown tribal fight resulting in destruction of property belonging to a third party not involved in the fight, we find no legal basis for a claim for damages by that third party against the police for the inaction or the negligence of police in not providing adequate number of policemen to stop the tribal fight. Not only do the police not owe any duty of care to the public at large but clearly the loss suffered by the appellants was caused by the warring tribes and not the police.

14. I follow those Supreme Court decisions and find that members of the Police Force are under no general enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate. Members of the Police Force have a wide discretion in deciding whether to investigate a complaint.
    
15. It would only be in exceptional cases (where for example the complaint was of a very serious nature and the evidence in support of the complaint was compelling and easily accessible) that an enforceable obligation to investigate the complaint would potentially arise.
    
16. I consider that the plaintiff’s complaint was general in nature and on the face of it was not so serious or sufficiently supported by evidence, as to give rise to an enforceable obligation on the part of the Police, including the defendant, to investigate it.
    
17. Therefore the defendant did not by his actions (including the inaction by Police on the plaintiff’s complaint and the failure to give reasons for not investigating the complaint) deny the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) or act harshly, oppressively or in any other proscribed way (for purposes of Section 41(1) of the Constitution) or act contrary to the principles of natural justice (for purposes of Section 59(1) of the Constitution). The plaintiff has not proven that the defendant breached her human rights.
    

3 WHAT ORDERS SHOULD THE COURT MAKE?

18. As I pointed out in Application by Benetius Gehasa (2005) N2817, an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two issues:
    
    • first, has a right of the applicant actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If the answer to that question is no, the court should not intervene; and
      
    • secondly, if the answer is yes, the court needs to consider the second issue: whether it should grant the remedy sought or make some other order for enforcement of the right under Section 57(3) of the Constitution.
      
19. In this case the answer to the first question is no. Therefore the court will not intervene. The proceedings will be dismissed. The defendant was represented by a publicly-employed lawyer. It is appropriate that the parties bear their own costs.
    

REMARKS

20. The plaintiff’s complaint against the member of Parliament could be pursued by other means, eg civil proceedings for defamation, a private prosecution under Section 616 of the Criminal Code or a complaint of alleged misconduct in office to the Ombudsman Commission under Section 18(1) of the Organic Law on the Duties and Responsibilities of Leadership.
    

ORDER

(1) The proceedings are dismissed.

(2) The parties will bear their own costs.

Ordered accordingly.
_________________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiff
Police Legal Service: Lawyers for the Defendant