N9685

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) 6 OF 2021

JULIE SEMA
Plaintiff

V

JONATHAN PARAIA
Defendant

Waigani: Narokobi J
2022: 20th June

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms)–Whether Defendant committed an act of trespass to the Plaintiff-Whether Plaintiff’s actions amount to intimidation and harassment- Whether plaintiff’s human rights were violated – s 36, Freedom from inhuman treatment- s 37(1), Protection of the law – Whether permanent injunctions should be issued- Appropriate orders under ss 58(1), (2), ((4) and (5) of the Constitution.

The Plaintiff claims that the Defendant committed an act of trespass when he attended to her office and intimidated and threatened her to withdraw her affidavit filed in a National Court proceeding. She also claims that the Defendant’s actions and presence when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021, was also to harass and intimidate her to withdraw her affidavit filed in that proceeding. The Plaintiff then says that these actions constituted breach of her rights under s 36(1) and s 37(1) of the Constitution.

Held:
 
(1)	A declaration is made pursuant to the Court’s inherent power under section 57 (1) and section 57 (3) of the Constitution that the conduct and actions of the Defendant when he attended at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021 to speak to the Plaintiff constituted acts of intimidation and harassment and therefore breached the Plaintiff’s rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law under the Constitution. 

(2)	A declaration is made pursuant to section 57 (1) and section 57 (3) of the Constitution that the Defendant’s action and presence when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th  February 2021 at which time Detective Philip Otto spoke to the First Plaintiff, constituted acts of intimidation and harassment of the Plaintiff in an attempt to make her withdraw her affidavit sworn on 9 September 2020 and filed on 10th September 2020 in National Court proceeding WS No. 1334 of 2013, and therefore breached the Plaintiff’s rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law under the Constitution. 

(3)	A declaration is made pursuant to the Court’s inherent power under section 57 (1) and section 57 (3) of the Constitution that the Defendant’s action and conduct in urging or directing the police to detain the Plaintiff in custody, without charge, overnight at the Waigani Police Station when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the Plaintiff, breached the Plaintiff’s rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law under the Constitution.

(4)	Permanent injunction against the Defendant was however refused as the evidence indicated that it was a one-off event. 

Cases Cited

No cases are cited

Statutes Cited

Constitution 

Counsel

D Wood with E Lili, for the Plaintiff
P Harry, for the Defendant

JUDGMENT
20th June, 2022

1.	NAROKOBI J: The Plaintiff has come to court alleging that the Defendant has breached her human rights. The gist of the case is that she had deposed to an affidavit in a separate proceeding, to which the Defendant claimed was false, and he subsequently laid a criminal complaint against her for perjury. The Defendant’s overzealous prosecution of the criminal matter against the Plaintiff is what the Plaintiff is aggrieved about, and she claims breach of her rights under the Constitution, and she also seeks related orders for permanent injunction against the Defendant from approaching her at her residence and place of work.  

The Claim

2.	From the way the Plaintiff alleged she was treated by the Defendant; she is seeking the following orders against him:

1)	Pursuant to the Court’s inherent power under section 57 (1), section 57 (5) and /or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules, a permanent injunction to restrain the Defendant forthwith from approaching, harassing, assaulting or threatening the First Plaintiff and coming within 100 meters of the first Plaintiff. 
2)	Pursuant to the Court’s inherent power under section 57 (1), section 57 (5) and /or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules, a permanent injunction to restrain the Defendant forthwith from attending the residence of the First Plaintiff located at section 192, allotment 17, Ginate Place, Hohola.
3)	Pursuant to the Court’s inherent power under section 57 (1), section 57 (5) and /or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules, a permanent injunction to restrain the Defendant forthwith from attending at the office of the Second Plaintiff at Level 4, Stratos Tower, Stratos Tower, Stratos Avenue, Port Moresby. 
4)	A declaration that pursuant to the Court’s inherent power under section 57 (1), section 57 (5) and /or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules, the Defendant committed an act of trespass when he attended the office of the Second Plaintiff at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021 and by his actions, intimidating and threatening to make the First Defendant withdraw her affidavit sworn on 9th September 2020 and filed on 10 September 2020 in National Court proceeding WS No. 1334 of 2013. 
5)	A declaration that pursuant to the Court’s inherent power under section 57 (1), section 57 (5), section 36 (1) and/or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules, the conduct and actions of the Defendant when he attended at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021 to speak to the First Plaintiff constituted acts of intimidation and harassment. 
6)	A declaration that pursuant to the Court’s inherent power under section 57 (1), section 57 (5), section 36 (1), section 37 (1), section 52 (1) and/or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules,  the Defendant’s action and presence when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the First Plaintiff, constituted acts of intimidation and harassment of the First Defendant in an attempt to make the First Defendant withdraw her affidavit sworn on 9 September 2020 and filed on 10th September 200 in National Court proceeding WS No. 1334 of 2013. 
7)	A declaration that pursuant to the Court’s inherent power under section 57 (1), section 57 (5), section 36 (1), section 37 (1), section 52 (1) and/or section 155 (4) of the Constitution and/or Order 12 Rule 1 of the National Court Rules,  the Defendant’s action and conduct in urging or directing the police to detain the First Plaintiff in custody, without charge, overnight at the Waigani Police Station when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the First Plaintiff, constituted an act of unlawful detention by the Defendant. 
8)	The Defendant pay the Plaintiffs’ costs of and incidental to the proceeding.
9)	Such further orders as the Court deems fit.

3.	Apart from injunctions and declarations, the Plaintiff did not seek any relief for damages in the Originating Summons.

Evidence 

4.	To support the claim, the Plaintiff relied on the following affidavits:

•	Affidavit of Julie Sema sworn on 22 March 2021 and filed on 24 March 2021.
•	Affidavit of Pala Teya, sworn on 28 April 2021 and filed on 28 April 2021.

•	Affidavit of Dennis Sparks sworn on 28 April 2021 and filed on 28 April 2021.
•	Affidavit of Julie Sema sworn on 28 April 2021 and filed on 28 April 2021.
•	Affidavit of Julie Sema sworn on 17 May 2021 and filed on 19 May 2021.
•	Affidavit of Julie Sema sworn on 31 August 2021 and filed on 31 August 2021.

5.	The Defendant on the other hand relied on the following affidavits in response:

•	Jonathan Paraia, sworn 15 April 2021, and filed 15 April 2021.
•	Jonathan Paraia, sworn 29 April 2021, and filed 29 April 2021.
•	Jonathan Paraia, sworn 7 June 2021, and filed 21 June 2021.
•	Paul Harry, sworn 25 August 2021, and filed 31 August 2021.

6.	The Defendant was also cross-examined by the Plaintiff on the affidavit materials that he filed. The Defendant chose not to cross-examine the Plaintiff.

Issues

7.	After hearing the witnesses during trial and the submissions, and hearing and reading the affidavit materials and submissions, I have concluded that the following issues must be determined by me, to decide whether I should grant the orders sought by the Plaintiff. The issues are:

•	Did the Defendant attend the Plaintiff’s place of work at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021, and if he did, what transpired there?
•	Did the Plaintiff attend the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the Plaintiff, and if he did, what transpired there?
•	If the Plaintiff proves the factual allegations as claimed, do they constitute:

•	Trespass;
•	Intimidation and harassment; and
•	Breach of the Plaintiff’s rights under ss 36 (1) and 37 (1) of the Constitution.

•	Taking all the above factors into consideration, what final orders should the court make?

Considerations

8.	Firstly, let me place on record my gratitude to the Counsels involved for the great assistance I received from their exhaustive submissions.

9.	The Plaintiff’s version of the story is this. The Defendant attended to her place of employment at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021 and intimidated and threatened her with criminal prosecution to make her withdraw her affidavit sworn on 9th September 2020 and filed on 10 September 2020 in National Court proceeding WS No. 1334 of 2013.

10.	The Plaintiff than says that the Defendant attended the interview room at the Waigani Police Station later that day about 5.45pm at which time Detective Philip Otto spoke to the Plaintiff. This constituted acts of intimidation and harassment of the First Defendant and was an attempt to make the First Defendant withdraw her affidavit sworn on 9 September 2020 and filed on 10th September 200 in National Court proceeding WS No. 1334 of 2013.

11.	 The Plaintiff also says that at the interview room the Defendant urged or directed the police to detain her in custody, without charge, overnight at the Waigani Police Station. 

12.	The Defendant admits that he did go to the Plaintiff’s office, but that he went there only to identify her to the police. He denies that he was present in the interview room, and that he did not direct or urge the police to detain the Plaintiff overnight.

13.	After considering the evidence and submissions, I have reached the conclusion, that the Defendant had initiated a criminal complaint, for no other reason, than to threaten and harass the Plaintiff into withdrawing her affidavit she filed in a civil case in a National Court proceeding. This is clear from the outcome of the District Court proceedings, when the learned magistrate said quite correctly that if Mr Paraia had any issues with the affidavit filed in a civil proceeding, it was open to him to challenge that affidavit through the civil process. The Defendant used the criminal justice system to advance his civil case. This is a practice that must be discouraged by the courts.

14.	But in my view, there was no trespass to the Plaintiff as the Defendant was allowed access to the building and approached the Plaintiff. There is no law preventing a person from approaching another person in a public space. Although I accept that it was in a private office, the Defendant was allowed access into the office. What is of obvious concern, however, is the interaction that took place.

15.	I accept the Plaintiff’s evidence on the balance of probability that the Defendant had harassed and intimidated the Plaintiff at her office to withdraw, her affidavit. This is apparent from the evidence led by the Plaintiff that the Defendant had no business to go to her office. I reject the Defendant’s evidence that he went there to identify her to the police so they could arrest her. He should have known or ought to have known, that if he had any objections to the Plaintiff’s affidavit, the matter was sub-judice before a court of competent jurisdiction, and he should allow the civil court process to determine the truth or otherwise of that affidavit. As I said earlier, this was confirmed by the learned District Court magistrate when he dismissed the case for this reason.   

16.	I also accept the Plaintiffs evidence that the Defendant was in the interview room and that he urged the police to detain her unlawfully. It is a serious breach of a person’s right to liberty for them to be locked-up without charge. Why do I accept the Plaintiff’s version of events? Firstly, she was not cross-examined to test the truth of what she said. Secondly, I do not see any discernable motive for the Plaintiff to lie. I conclude that it was this same interest that drove the Defendant to approach the Plaintiff at her place of work, continued to Waigani Police station and so he could not resist the opportunity to speak directly to the Plaintiff in the presence of the police to get the Plaintiff to withdraw her affidavit. The Defendant’s version of events would have been believable if he had called Detective Otto to verify his evidence. It was not disputed that Detective Otto was in the interview room.

17.	In my view, the evidence showed that the Defendant had encouraged the police to violate the Plaintiff’s rights. He had behaved in a manner that showed that he believed the Plaintiff was guilty of the offence of perjury and did not allow the civil process to determine the truth or otherwise of the affidavit material filed. This was a denial of the Plaintiff’s rights to full protection under the law under s37(1) of the Constitution.

18.	Having considered the evidence, I am also persuaded that the Defendant’s actions violated the Plaintiff’s rights under s 36(1) of the Constitution. The idea of torture under s 36(1) of the Constitution is to employ a method to inflict punishment for a desired outcome, such as assaulting an accused to get them to confess to a crime. In this case, the Defendant used the fear of criminal prosecution and detention to achieve his desired outcome in a civil proceeding.

19.	The Plaintiff also claims unlawful detention. This in my view is not made out by the facts. Although the Plaintiff was in fact unlawfully detained as she was not charged, the Defendant has no lawful authority to detain the Plaintiff. This is a power of the police. The appropriate authority to press this claim against, would be the police and the State. I also note in passing that this might be a case where the Plaintiff may have a cause of action against the State for malicious prosecution.

20.	What then should be the orders of the court? On this issue, I accept the Defendant’s submissions. What has happened was a one-off event. There is no evidence that it will continue or happen in the future. This is a matter, where I am of the respectful view, that the orders sought by the Plaintiff should have gone on to seek compensation under s 58(2) of the Constitution for the breach of her rights, instead of asking for permanent injunctions as a remedy for the declarations. Whilst it may not seem appropriate to just make declarations of violations of rights without any attendant remedies, I believe that making declarations by a court of competent jurisdiction is a public binding legal statement on the position of the law in terms of the Defendant’s actions and behaviour and places the Defendant on notice of any impending action if he repeats his conduct.  

Orders 

21.	 I will therefore make orders similar in terms to paragraph five, six, seven and eight of the Plaintiff’s Originating Summons. The formal orders of the court are therefore as follows:       

1)	It is declared pursuant to the Court’s inherent power under section 57 (1) and section 57 (3) of the Constitution that the conduct and actions of the Defendant when he attended at Level 4, Stratos Tower, Stratos Avenue, Port Moresby on the afternoon of 24th February 2021 to speak to the Plaintiff constituted acts of intimidation and harassment and therefore breached the Plaintiff’s rights Constitutional rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law. 

2)	It is declared pursuant to section 57 (1) and section 57 (3) of the Constitution that the Defendant’s action and presence when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the First Plaintiff, constituted acts of intimidation and harassment of the Plaintiff in an attempt to make her withdraw her affidavit sworn on 9 September 2020 and filed on 10th September 200 in National Court proceeding WS No. 1334 of 2013, and therefore breached the Plaintiff’s Constitutional rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law. 

3)	 It is declared pursuant to the Court’s inherent power under section 57 (1) and section 57 (3) of the Constitution that the Defendant’s action and conduct in urging or directing the police to detain the Plaintiff in custody, without charge, overnight at the Waigani Police Station when he attended in the interview room at the Waigani Police Station at about 5.45pm on 24th February 2021 at which time Detective Philip Otto spoke to the Plaintiff, breached the Plaintiff’s Constitutional rights to s 36(1) freedom from inhuman treatment and s 37(1) full protection under the law. 

4)	The Defendant pay the Plaintiffs’ costs of and incidental to the proceeding.

5)	Matter is considered determined, and the file is closed.

6)	Time is abridged.

Judgment and Orders accordingly 
________________________________________________________________
Ashurst PNG Lawyers: Lawyers for the Plaintiff 
Harry Lawyers: Lawyers for the Defendant