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Lai v Backley [2020] PGNC 374; N8641 (25 November 2020)

N8641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 319 OF 2019

BETWEEN:
LINUS LAI FOR HIMSELF AND HIS IMMEDIATE FAMILY MEMBERS
Plaintiff

AND:
RONNIE BACKLEY & OTHER NAMED POLICE OFFICERS BASED IN MADANG
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Madang: Narokobi J
2020: 6^th October, 25^th November

HUMAN RIGHTS – application for enforcement – freedom from inhuman treatment Constitution, Section 36(1); right to full protection of the law Constitution, Section 37(1); right to personal liberty Constitution, Section 42; freedom from arbitrary search and entry Constitution, Section 44; right to privacy Constitution, Section 49.
The plaintiffs allege that the police illegally entered their premises and verbally and physically assaulted them and shot one of them twice on the left foot and destroyed their household items and properties. They claim that the police infringed their human rights and one of them suffered serious injuries from the gunshot wounds. A trial was conducted on liability.
Held:

(1) The plaintiffs have established that the first and second defendants have infringed their following human rights:

• ➢ Section 36, Freedom from Inhuman Treatment;
• ➢ Section 37(1), Right to Full Protection of the Law;
• ➢ Section 42, Liberty of the Person;
• ➢ Section 44, Freedom from Arbitrary Search and Entry; and
• ➢ Section 49, Right to Privacy.
  

(2) An order for trial to determine appropriate relief under s 58(2) of the Constitution in the form of damages for these infringements is therefore made.

Cases Cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Solmein v Lim (2020) N8450;
Solmein v Lim (2020) N8448
Solmein v Lim (2020) N8449.
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
E Manihambu, for the Defendants


JUDGEMENT

24^th November, 2020

1. NAROKOBI J: This is a trial by way of an application for enforcement of human rights under s 57(1) of the Constitution.
   

Introduction

2. This proceeding was commenced by way of a Human Rights Application filed on 08 October 2019. A statement of claim was subsequently filed on 6 December 2019 pursuant to an order of the court on the 14 October 2019.
   

Background

3. The plaintiffs are a family of six (6):
   
   1. Linus Y Lai – the lead plaintiff, a 65 year old male;
   2. Anne Lai – 56, the wife of Linus Lai;
   3. Rosa Lai – 32, the eldest daughter of Linus Lai and Anne Lai;
   4. Francis Lai- 30, the second son of Linus Lai and Anne Lai;
   5. Daniel Lai – 28, the third son of Linus Lai and Anne Lai; and
   6. Fidelis Lai – the last son of Linus Lai and Anne Lai.
      
4. The first defendants are members of the Papua New Guinea Royal Constabulary and are sued in their official capacity. They are:
   
   1. Ronnie Backley;
   2. Nathan Karry;
   3. Brian Kapi;
   4. Steven Marita;
   5. Jimmy Nator;
   6. Roy Singirok;
   7. Eugene Wanai;
   8. George Kaniel; and
   9. Obert Lim.
      
5. The State is named as the Second Defendant.
   
6. The gist of the claim is that on 1 September 2019 sometimes around 10am and 11am, more than fifteen policemen, including the defendants, who are based in Madang, Madang Province entered their residence at Section 89 Allotment 27, in New Town, Madang, Madang Province in full police uniform, fully armed with police issued firearms and bush knives and severely assaulted all the plaintiffs including shooting one of them twice on the left foot with a firearm.
   
7. The plaintiffs claim that their rights were violated by the first defendants in the execution of their duties as servants and or agents of the second defendant and pleads the application of s 2 of the Claims By and Against the State Act 1996 and s 1 of the Wrongs (Miscellaneous Provisions) Act (Chapter 297) to hold the second defendant vicariously liable.
   
8. The particular human rights provisions of the Constitution alleged to have been infringed or breached are:
   
   1. Section 35, Right to Life;
   2. Section 36, Freedom from Inhuman Treatment;
   3. Section 37(1), Right to Full Protection of the Law;
   4. Section 42, Liberty of the Person;
   5. Section 44, Freedom from Arbitrary Search and Entry; and
   6. Section 49, Right to Privacy.
      

Evidence

9. To prove its case, the plaintiffs tendered the following affidavits which were admitted into evidence:
   
   1. Linus Lai – sworn and filed on 17 October 2019;
   2. Anne Kiwar Lai – sworn 29 June 2020 and filed on 8 July 2020;
   3. Rosa Lai – sworn on 29 June 2020 and filed on 8 July 2020;
   4. Dorothy Dambui – sworn on 29 June 2020 and filed on 8 July 2020;
   5. Daniel Lai – sworn on 29 June 2020 and filed on 8 July 2020;
   6. Linus Lai – sworn on 20 June 2020 and filed on 8 July 2020;
   7. Fidelis Lai – sworn on 29 June 2020 and filed on 8 July 2020;
   8. Linus Lai – sworn and filed on 13 July 2020; and
   9. John Musive – filed on 14 July 2020.
      
10. The defendants did not tender any affidavits in response to support its defence of general denial.
    
11. The evidence tendered as summarized by the plaintiffs in their submissions which I recite here (with some minor modifications) after verification from the affidavits is as follows.
    

Findings of Facts

12. I have considered the affidavit material, and I see no reason why they would not be telling the truth. The evidence is also verified by independent sources, so I accept the evidence as deposed to in their affidavits as consisting the necessary facts of this case. I add that the defendants provided no evidence at all to rebut their version of the facts. I also take judicial notice of the fact that such incidents in Madang is not an unusual occurrence by the police. I refer to the following cases as a few recent examples in Madang of what I am saying:
    
    1. Solmein v Lim (2020) N8450;
    2. Solmein v Lim (2020) N8448; and
    3. Solmein v Lim (2020) N8449.
       
13. After having considered the evidence tendered and the submissions of both counsels, the material facts I find are as follows.
    
14. A group of policemen, numbering more than 15, descended upon Linus Lai and Anne Lai’s house at New Town in Madang, Madang Province on 1 September 2020 between 10am and 11am. They then unlawfully entered their premises. There was no search warrant to enter the premises nor was their entry in hot pursuit of a suspect.
    
15. The first defendants had arrived in police vehicles and were in full police-uniform and had in their possession police-issued firearms. Two of the first defendants were positively identified as Brian Kapi and Nathan Karry.
    
16. Before they entered the premises one shot was fired outside the house.
    
17. The defendants acted in concert with each other with the common purpose to execute a plan that was to attack and maim Fidelis Lai and his family in retaliation from an earlier altercation that morning between Fidelis Lai and one of their colleagues. It was each of the first defendant’s intention to aid and abet each other to verbally and physically assault the plaintiffs and destroy their property.
    
18. The first defendants are all therefore responsible for each other’s actions and or omissions. Although their actions were criminal in nature, they were in the official performance of their duties as employees of the second defendant as evidenced by the use of police vehicles, police uniform and police issued firearms.
    
19. Each plaintiff was violated by the defendants in the following manner.
    
20. Linus Lai was punched several times and whipped with a meter-long bush knife and was verbally assaulted and threatened.
    
21. Anne Lai was punched once on her face by a policeman, sustained cuts on her face and verbally assaulted and threatened.
    
22. Rosa Lai was punched all over her body and thrown into a septic toilet. She was sworn at and had insulting words uttered at her and continuously slapped.
    
23. Fidelis Lai was sworn at, assaulted and his left leg was twice shot at. He fell unconscious and was taken by the police to Modilon Provincial Hospital to be treated. He is still on medication and on crutches.
    
24. Daniel Lai’s hand was hit with great force, numbing it. The particular policeman swung his bush knife at his head causing a deep cut. He fell on the ground heavily bleeding. Whilst on the ground bleeding, he was continuously booted and punched. He was later taken to Modilon Provincial Hospital for treatment.
    
25. Francis Lai had a large piece of brick thrown at him causing him instant pain and shock.
    
26. The property destroyed include - household items, the house walls, banana trees and plants.
    
27. The question now arises as to whether the manner, in which the plaintiffs were treated as now established, amounts to the breach of the rights they claim were breached.
    

Allegation of Breach of Right to Life

28. Section 35 of the Constitution guarantees citizens the right to life, and it states:
    

35. Right to life.

(1) No person shall be deprived of his life intentionally except—

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

(2) Nothing in Subsection (1)(b) relieves any person from any liability at law in respect of the killing of another.

29. Since none of the plaintiffs lost their life, I do not uphold this claim.
    

Allegation of Breach of Freedom from Inhuman Treatment

30. Section 36(1) of the Constitution is in the following terms:
    

“36. Freedom from inhuman treatment.

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

31. From the established facts, I find that the manner in which the plaintiffs were treated that is by being subjected to verbal and physical assault and the destruction of their property and for Fidelis Lai for being shot twice in the left foot amounts to treatment that is cruel and inhuman, and is inconsistent with respect for their inherent dignity as human beings. Consequently, the first defendants have infringed each of the plaintiff’s rights under s 37(1) of the Constitution.
    

Allegation of Breach of the Liberty of the Person

32. Section 42 of the Constitution confers on every person in Papua New Guinea the right to liberty of the person unless if one or more of the reasons in s42(1) are present to restrict that right. The following circumstances must be shown to exist:
    

“(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(ga) for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organization that the Minister responsible for immigration matters, in his absolute discretion, approves; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.”

33. In my view the plaintiffs were kept hostage in their home by the first defendants to exact retaliation on them for an earlier incident involving one of the plaintiffs, Fidelis Lai. The number of policemen involved, firearms present and the vehicles surrounding the property prevented the plaintiffs from freely leaving the premises so that the first defendants could inflict harm on them. None of the exceptions allowing their liberty to be curtailed under s 42(1) existed. This in my view amounts to the first defendants infringing each of the plaintiff’s right to liberty and I so find.
    

Allegation of Breach of the Freedom from Arbitrary Search and Entry

34. Section 44 of the Constitution provides as follows:
    

“44. Freedom from arbitrary search and entry.

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—

(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or...”

35. In this particular case, the evidence shows that none of the circumstances provided for in s 44(1), such as a search warrant under s 44(a)(ii) or a hot pursuit of a suspect existed to permit the entry and search of the plaintiff’s premises and persons. I therefore find that each of the plaintiff’s freedom under s 44 of the Constitution was infringed.
    

Allegation of the Breach of the Right to Privacy

36. Section 49 of the Constitution protects the rights of citizens to privacy in the following terms:
    

“49. Right to privacy.

(1) Every person has a right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by law that complies with Section 38 (general qualifications on qualified rights).”

37. The plaintiffs were enjoying the quietness of their home on the Sunday morning of 1 September 2019. The Constitution guarantees them the right to do so. This quite enjoyment was quite rudely interrupted by a single gunshot to announce the uninvited presence of the police. The first defendants then proceeded to invade the private space of the plaintiffs. The purpose of the invasion of privacy was to inflict vengeance. As if that was not enough, they also destroyed their personal properties. From the established facts, I find that the manner in which the defendants entered the plaintiff’s premises and treated them, invaded each of the plaintiff’s right to privacy. The end result of all this is that the plaintiffs right to privacy was infringed.
    

Allegation of Breach of Right to Full Protection of the Law

38. Section 37(1) of the Constitution is in the following terms:
    

“37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.”

39. The first defendants are policemen. I have found that they have breached the plaintiff’s rights under ss 36, 42, 44 and 49 of the Constitution. It must necessarily follow that they have not afforded the plaintiffs their right to full protection of the law, such that these other aforementioned rights were also violated. I therefore find that the first defendants have infringed each of the plaintiff’s right to full protection of the law under s 37(1) of the Constitution.
    

Who Should be Liable?

40. The plaintiffs have adequately pleaded the facts and made reference to relevant provisions of the law to submit that the second defendant should be vicariously liable for the actions of the first defendants.
    
41. The evidence is that the first defendants were in police uniform, were in possession of police issued firearm and arrived in police vehicles. The plaintiffs rely on s 2 of the Claims By and Against the State Act and s 1 of the Wrongs (Miscellaneous Provisions) Act (Chapter 292) to support this contention.
    
42. I uphold the plaintiff’s submissions, finding that they have proved their case on the balance of probability and hold the second defendant responsible or vicariously liable for the actions of its employees, the first defendants.
    
43. I find the State liable for the illegal actions of the police officers who have violated a number of the plaintiff’s human rights, because those violations were committed purportedly in the course of police work. The fact that the police officers conduct can be considered as unlawful, does not exonerate the State as the police officers were acting in the course of their duties (The State v David Wari Kofowei [1987] PNGLR 5, Abel Tomba v The State (1997) SC518, Application for Enforcement of Human Rights, in re Jacob Okimbari (2013) N5420).
    

Costs

44. The normal rule is that costs follow the event, so I award costs in favour of the plaintiff, to be determined as to whether to award a fixed amount or for costs to be taxed if not agreed to, after the conclusion of determination of assessment of damages.
    

Orders

45. In light of the foregoing, I make the following orders:
    
    1. The application for the enforcement of human rights is granted.
    2. The second defendant is vicariously liable for the first defendant’s infringement of the plaintiff’s rights.
    3. The following rights of the plaintiffs were infringed:
       
       1. Section 36, Freedom from Inhuman Treatment;
       2. Section 37(1), Right to Full Protection of the Law;
       100. Section 42, Liberty of the Person;
       4. Section 44, Freedom from Arbitrary Search and Entry; and
       5. Section 49, Right to Privacy.
          
    4. As the plaintiffs have established that their human rights were infringed, trial shall ensue to determine an appropriate form of relief under Section 58(2) of the Constitution to compensate the plaintiffs.
    5. Costs awarded in favour of the plaintiff to be finalized at the conclusion of trial on assessment of damages.
    6. Matter is adjourned to 7 December 2020 at 9.30am for directions to allocate trial date for assessment of damages.
    7. Time is abridged.

_______________________________________________________________
Lhyrn Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendants