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Re: Alleged Death in Police Custody of Jerry Yareng [2024] PGNC 32; N10675 (7 March 2024)

N10675

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 2 OF 2021

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE: ALLEGED DEATH IN POLICE CUSTODY OF JERRY YARENG

Madang: Narokobi J
2023: 16^th May
2024: 7^th March

HUMAN RIGHTS – CONSTITUTION - Inquiry Pursuant to s 57(1) Re Alleged Breach of Human Rights – Jurisdictional Basis Considered – Nature of Inquiry - Circumstances Surrounding Breach of Human Rights Determined.

HUMAN RIGHTS – CONSTITUTION – Ss. 32, 36(1), 37, 41, 42 – Whether rights and freedoms violated on the evidence tendered.

HUMAN RIGHTS – CONSTITUTION – s 36(1) – Freedom from inhuman treatment – definition of torture - whether breaches amount to torture.

HUMAN RIGHTS – CONSTITUTION – Ss. 57 and 58 – Appropriate Orders to Make in Circumstances Where Breach of Human Rights Were Found – Compensatory Damages Awarded.

HUMAN RIGHTS – CONSTITUTION – s 58(4) – Responsible Person - Responsible person considered and determined - Appropriate Orders to Make Against Responsible Person.

The National Court on its own initiative commenced proceeding under Section 57(1) of the Constitution to determine if the rights and freedoms of certain persons were violated by members of the Papua New Guinea Royal Constabulary and other private persons.

Proceeding was commenced upon the court receiving information about the alleged death of a male Papuan New Guinean citizen, Jerry Yareng from Moreng Village, Kotte Local Level Government (LLG), Finschhafen in Morobe Province of Papua New Guinea on or about 3 April 2020 whilst in the custody of the officers of the Royal Papua New Guinea Constabulary (RPNGC) at Madang Province, who were at the time investigating suspects of an armed hold-up of a shop in Saidor, Rai Coast District, Madang Province.

Held

(1) Following the Supreme Court decision in Independent State of Papua New Guinea v Tamate (2021) SC2132 which held that The Independent State of Papua New Guinea v. The Transferees (2015) SC1451 “does not correctly represent the law on this point and is therefore not binding,” the sui moto or own initiative powers of the National Court is vested upon it by s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution.

(2) The court has a duty to implement the National Goals and Directive Principles and Basic Social Obligations under ss 25 and 63 of the Constitution. Interpreting s 57(1) in the way that the Supreme Court did in Independent State of Papua New Guinea v Tamate, will promote the National Goals and Directive Principles and Basic Social Obligations as it will enable persons who would otherwise be unable to access justice to come to court. This will promote integral human development under the first National Goal and equality and participation under the second National Goal. Violation of human rights have the effect of suppressing people, making them live in fear, preventing them from accessing court, and unless direct court intervention is made, citizens will not be able to enforce their rights and freedoms.

(3) There is no definition of torture in the Constitution (Namuesh v Ofoi (1996) N1429), however the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)), Article 1 defines torture which s 36(1) Constitution is premised on. Taking UNCAT as a guide, for an act or omission to amount to torture, pain has to be specifically intended and applied to a person to achieve some other objective which otherwise would not have been achieved (Wartoto v Okuafo (2022) N9663).

(4) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s rights and freedoms were violated under Constitution, s 32(2) (right to freedom) – when they were detained on 1 April 2020 to 4 April 2020 without any lawful basis. This was committed by Mazuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Matzuc Rubiang is included because he was the Provincial Police Commander and he ordered the police raid.

(5) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to freedom from inhuman treatment under Constitution, s 36(1) were violated when they were subjected to treatment that was cruel, inhuman and inconsistent with respect for the inherent dignity of the human person from 1 April 2020 to 4 April 2020 when they were assaulted, tortured and detained without being charged. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang as evidenced by the assaults and torture.

(6) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to the full protection of the law under Constitution, s 37(1) (protection of the law) was violated when they were assaulted for no lawful reason, tortured, and detained without being charged from 1 April 2020 to 4 April 2020. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang. Matzuc Rubiang failed to exercise proper control over his officers and therefore he is also responsible.

(7) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution s 37(17) (protection of the Law) were violated when they were detained without being granted the opportunity to obtain medical treatment. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai and constable Nollah Karish as evidenced by the torture and assaults and not brought to hospital despite the serious injuries sustained at the hands of the police and private citizens.

(8) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to be protected against acts that, though done under valid laws, in particular cases, are harsh or oppressive or not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Constitution, s 41 (1) (proscribed acts) – in their treatment of being assaulted, detained without being charged and tortured was harsh and oppressive and not reasonably justifiable in a democratic society. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang.

(9) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right not to be deprived of one’s liberty except in justifiable circumstances of person's liberty under Constitution, s 42 (liberty of the person) was violated in that the detention from 1 April 2020 to 4 April 2020 where none of the circumstances under s 42(1)(a) to (i) of the Constitution existed to warrant their detention, and this is confirmed when they were released on 4 April 2020 without being charged. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Jerry Yareng died on 3 April 2020.

(10) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to communicate with a friend, family or a lawyer upon arrest or detention as required by Constitution, s 42(2) (liberty of the person) and the right to be informed of this right immediately upon their arrest and detention was violated. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai. After Fahn Martin, Alwin Martin, Patrick Solomon and Jerry Yareng were arrested and detained, they were not informed of their rights under s 42(2) of the Constitution.

(11) Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s right to freedom from arbitrary search and entry under Constitution, s 44 (freedom from arbitrary search and entry) were violated when the police entered Alwin Martin and Fahn Martin’s residence without a search warrant and confiscated Jerry Yareng’s mobile phone and obtained information and photographs, also without any search warrant. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Matzuc Rubiang ordered the raid without obtaining a proper search warrant.

(12) No finding on breach of the right to life under s 35 of the Constitution is made, because both autopsy reports of Jerry Yareng stated the cause of death to be inconclusive. This, however, is not satisfactory given the circumstances of this case. The fact that there was no medical complaint when Jerry Yareng was arrested on 1 April 2020, there was repeated assaults and torture on 1 April 2020 and 2 April 2020, no medical treatment was afforded to them and that he died in police custody suggested that whatever caused Jerry Yareng’s death was exacerbated by the assaults and torture committed upon him.

(13) Persons that have suffered breach of their rights should be compensated under ss 57(3) and 58(3) of the Constitution, and the State should be responsible to pay for the damages under s 58(4) of the Constitution. The award will only go to Fahn Martin, Alwin Martin and Jerry Yareng.

Cases Cited:
Alfred v Kapi (2020) N8467
Amaiu v Commissioner of Corrective Institution and the State [1983] PNGLR 87; N417
Ambi v Rabi and Ors (1980) N279
Basse v Yalamu (2021) N8707
Chapok v Yali (2008) N3474
Kolokol v Amburuapi (2009) N3571
Independent State of Papua New Guinea v Tamate (2021) SC2132
The Independent State of Papua New Guinea v. The Transferees (2015) SC1451
Wartoto v Okuafo (2022) N9663
Namuesh v Ofoi (1996) N1429

Statute Cited:
Claims By and Against the State Act 1996
Commission of Inquiry Act
Constitution

Other Materials Cited:
Constitutional Planning Committee Final Report 1974
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Counsel
Mr Mathew Kik, and Mr Michael Puri, for the Ombudsman Commission
Mr Steven Asivo, for the family of Jerry Yareng

DECISION

7^th March 2024

1. NAROKOBI J: The National Court on its own initiative commenced proceeding under Section 57(1) of the Constitution to determine if the rights and freedoms of certain persons were violated by members of the Papua New Guinea Royal Constabulary (RPNGC) and other private persons.
   
2. This action was commenced upon the court receiving information on the alleged death of a male Papuan New Guinean citizen, Jerry Yareng from Moreng Village, Kotte Local Level Government (LLG), Finschaffen in Morobe Province of Papua New Guinea on or about 3 April 2020 whilst in the custody of the officers of the RPNGC at Madang Province, who were at the time investigating suspects of an armed hold-up of a shop in Saidor, Rai Coast District, Madang Province.
   

Jurisdiction

3. Since the question of whether the National Court has powers to commence own initiative proceedings which have the semblance of an inquiry is a threshold issue, time will be spent to establish the jurisdiction of the court under s 57(1) of the Constitution. This is all the more important given that Supreme Court decisions have given contrary views on the point. In the case of The Independent State of Papua New Guinea v. The Transferees (2015) SC1451, his Honour Justice Gavara-Nanu stated the view of the Supreme Court:

In my respectful opinion an ‘initiative’ of a court under subsection (1) relates to its discretion as to an order or a declaration it may make in the particular circumstances of a case. Such an order or a declaration must be proper and reasonable and made according to law and the court must exercise its discretion judicially: Kumagai Gumi Co. Ltd v. National Provident Fund Board of Trustees (2005) SC776 and Avia Aihi (No.1) (supra). I am of the opinion that a proper exercise of power by a court under s. 57 (1) would involve the making of an order or a declaration only. It does not confer power on a court to commence or initiate a proceeding as was the case here.

4. Subsequent to the above decision, the Supreme Court in Independent State of Papua New Guinea v Tamate (2021) SC2132 held that The Independent State of Papua New Guinea v. The Transferees “does not correctly represent the law on this point and is therefore not binding.” Following The Independent State of Papua New Guinea v Tamate, this court takes the view that the sui moto or own initiative powers of the National Court is vested upon it by s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution. The relevant part reads:
   

Subdivision D. — Enforcement.

57. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. [Emphasis added]

5. The rationale for this provision is well canvassed by the learned Deputy Chief Justice Kandakasi in the case of Independent State of Papua New Guinea v Tamate. There the Deputy Chief Justice stated at paragraph 10:
   

Thereafter, I considered the Constitutional Planning Committee’s (CPC) report. I noted that the Committee recommended the inclusion of this provision after a careful consideration of the experiences of other countries as well as the factors for and against having such a provision. In the Committee’s own words at paragraph 116 of Ch.5, Part 1, p.18 it said:

‘On balance, we have concluded that the human rights provisions should be enforced by the courts. We have recommended not only the Supreme Court, but the National Court and District Court (or Provincial) Courts should be able to decide such cases. Our purpose here is to ensure that the opportunity to raise human rights issues should not be stifled by being confined to the somewhat rarified atmosphere of the highest court of the land – the Supreme Court. People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.’

6. I only add that the court has a duty to implement the National Goals and Directive Principles and Basic Social Obligations under ss 25 and 63 of the Constitution. In my view, interpreting s 57(1) in the way that the Supreme Court did in Independent State of Papua New Guinea v Tamate, will promote the National Goals and Directive Principles and Basic Social Obligations as it will enable persons who would otherwise be unable to access justice to come to court. This will promote integral human development under the first National Goal and equality and participation under the second National Goal. Violation of human rights have the effect of suppressing people, making them live in fear preventing them from accessing the court, and unless direct court intervention is made, citizens will not be able to enforce their rights and freedoms.
   
7. Having said this, I also accept the Ombudsman Commission’s submissions that the rights conferred by the Constitution may not only be enforced under s 57 but they can also be enforced under ss 22, 23 and 155(4) of the Constitution where the Court can make orders and declarations and impose sanctions which it considers appropriate in the circumstances. In my view the Ombudsman Commission is correct in submitting that ss 22 and 23 of the Constitution specifically impose obligations on the National Court to ensure that Basic Rights are enforced. I agree with the Ombudsman Commission that the National Court can:
   
   • make all such orders and declarations as are necessary or appropriate for the purposes of protecting and enforcing the Basic Rights (s 57(3));
     
   • supply any lack of supporting, machinery or procedural laws to ensure that the Basic Rights are not left without effect (s 22);
     
   • if it thinks it proper to do so, may make any order that it things proper for preventing or remedying or remedying a breach of the prohibition, restriction or duty imposed on a person who has breached the Basic Rights of others (s 23(2)); and
     
   • make, in such circumstances as seems to it proper, such orders as are necessary to do justice in the circumstances of the particular case (s 155(4)).
     
8. After having determined the circumstances and whether there were any breaches of the rights and freedoms, I will expound on what kind of powers the National Court has after it has completed its inquiry (for want of a better term) and made its findings.
   

Terms of Reference of the Inquiry

9. I use the term “inquiry” loosely. It is a convenient term for a sui moto proceeding. It does not in any way appropriate the term as it is understood under the Commission of Inquiry Act. The specific terms of the inquiry then, are to determine the following:
   
   • What were the circumstances surrounding the death of Jerry Yareng?
     
   • Were there any rights or freedoms violated concerning the death of Jerry Yareng and the manner in which other suspects were treated?
     
   • If rights and or freedoms were violated, what should have been done or what should be done by relevant authorities regarding the violations?
     
   • Whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under section 57(3) of the Constitution?
     
10. The inquiry related to the circumstances surrounding the apprehension, interrogation and subsequent death of Jerry Yareng and also as to whether there were other persons who were apprehended in relation to the same alleged offence and the manner in which they were interrogated and treated.
    
11. The action initiated by the court wanted to establish whether the following rights were breached:
    
    • the right to freedom based on law under Constitution, s 32(2) (right to freedom);
      
    • the right to life under Constitution, s 35(right to life);
      
    • the right to the full protection of the law under Constitution, s 37(1) (protection of the law);
      
    • the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person under Constitution s 37(17) (protection of the law);
      
    • the right to be protected against acts that, though done under valid laws, in particular cases, are harsh or oppressive or not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Constitution, s 41 (1) (proscribed acts);
      
    • the right not to be deprived except in justifiable circumstances of person's liberty under Constitution, s 42 (liberty of the person); and
      
    • the freedom from arbitrary search and entry under Constitution, s 44 (freedom from arbitrary search and entry).
      
12. A number of persons were summoned by the Court on 27 January 2021 under s 57(3) of the Constitution to appear before it and to assist in the proceeding:
    
    • Provincial Police Commander, Madang Province, acting superintendent Matzuc Rubiang;
    • Police Station Commander, Madang, Inspector Willie Mio;
    • OIC, Internal Investigation Unit, Royal Papua New Guinea Constabulary, Madang – Sargent Alex Solwo.
    • Momase Regional Manager, Ombudsman Commission of Papua New Guinea;
    • Chief Executive Officer, Modilon General Hospital;
    • Mr Steven Asivo on behalf of the family of the deceased Jerry Yareng and the suspects arrested together with Jerry Yareng.
      
13. There were also advertisements that were run in the paper, where persons who feel that their rights and or interests will be affected would appear and be granted an opportunity to be heard.
    
14. Despite the opportunity to participate in the proceeding, only Mr Asivo, a human rights advocate appeared to represent the family of the deceased and the Ombudsman Commission also entered appearance. They continued to assist the court until final submissions, although it must be stated that a number of the persons summoned did actually file affidavits.
    

Evidence

15. During the course of the proceeding, the court had obtained materials and information which have been formally tendered into Court as evidence without objection on 23 March 2023. The following evidence were received by the court:
    

16. I now discuss the evidence tendered before the court before I determine the circumstances surrounding the issues raised in the proceeding.
    
17. On the evidence of the then Madang Provincial Police Commander, acting Superintendent Matzuc Rubiang, on or about 26 March 2020, a group of unidentified criminals allegedly broke into and robbed a Chinese owned store at Saidor Government station in Rai Coast District of Madang Province.
    
18. According to acting Superintendent Mazuc Rubiang, the criminals who robbed the shop were fully armed, and they stole more than K200,000 cash money and escaped to Wasu and Madang. They used factory made firearms, one of which was allegedly stolen from the police. There was a shootout as they made off with the stolen money.
    
19. Acting Superintendent Rubiang says that the owner of the shop in Saidor received serious knife injuries from the armed robbery suspects and had it not been for the quick police intervention, the shop-owner would have lost his life. Police had a helicopter on standby for Covid-19 duties and used the helicopter to ferry the shop-owner to Madang for emergency medical attention, after he was brought by police boat to Basamuk MCC Company Heath Centre. The shop-owner was attended to at the Madang Modilon General Hospital.
    
20. Acting Superintendent Rubiang had accompanied the helicopter to Basamuk to pick the shop-owner. On his return from Basamuk he instructed OIC NCIU First Constable Brian Kapi to contact Rural Police Station Commander at Saidor to locate the suspects.
    
21. Fahn Martin is 27 years old, from Biliau Village, Saidor Local Level Government of Rai Coast District. He recalls that on 1 Apil 2020, the police conducted a dawn raid at about 5.00am at his Biliau village. Police went into Fahn Martin’s house and asked if he was Alwin. He replied that he was not. They did not have a search warrant to enter his house. They threatened to assault his wife when she asked why they entered their premises. The police said it was not her business. They then asked Fahn Martin where Alwin Martin’s house was. He showed them.
    
22. Alwin Martin is 31 years old, from Biliau Village, Saidor Local Level Government, Rai Coast District. He recalls that in the early hours of 1 April 2020, the police came to his house, and knocked on the door and ordered him at gunpoint not to run away or he will be shot. A policeman came and asked for his phone and took his “boom box” and K300 cash money. He was taken to his brother Fahn Martin, and they were ordered to board a police force 23 foot dingy, motored by a 75 horse-power Yamaha outboard motor, that had the police logo on it. When they were in police custody, they were assaulted by policemen identified as Brian Kapi and Rudolf Kaliai, and a civilian of Asian origin named as Luke Pang. He suffered a cracked ankle bone from the beatings.
    
23. Fahn Martin confirms that the police went into Alwin Martin’s house and seized his boom box, phone and K300 cash. Fahn Martin also confirms the involvement of the two policemen identified as Rudolf Kaliai and Brian Kapi amongst the several policemen who came to Biliau village. Brian Kapi’s presence is confirmed because he was directed by the Madang PPC, Mazuc Rubiang to investigate the robbery in Saidor.
    
24. A number of persons also gave statements about the way the police conducted the raid. There is some discrepancy regarding the dates. They refer to the police raid taking place on 9 April 2020. From the evidence of Fahn Martin and Alwin Martin, the correct date would be 1 April 2020. The following persons from Biliau Village gave statements:
    
    • Gab Tamori, Ward 11 Law and Order Chairman;
    • Elizah Bell;
    • Solomon Penei;
    • Milton Asling;
    • Roselyn Guli;
    • Levi Penei;
    • Solomon Penei;
    • Alsing Tambormai
      
25. Their unsworn, but signed statements stated that the police were in uniform, in possession of guns and under influence of alcohol. They physically assaulted the villagers, threatening to shoot them, if no information was provided. No search warrant was ever provided. The ordeal lasted an hour. I have no reason to believe they made up these stories from the totality of the evidence and the conduct of the police involved in this matter, although the evidence was unsworn.
    
26. According to Fahn Martin, they left Biliau with the police at about 7.00am (1 April 2020). When they arrived in Madang, they headed towards the warehouse of a person named Luke Pang. It is located at the beachfront opposite Farmset and Anderson Foodland Shopping Centre in Madang’s Central Business District. In Fahn Martin’s evidence they did not immediately go to the police station. There is no evidence to dispute this.
    
27. At Luke Pang’s warehouse Fahn Martin and Alwin Martin were assaulted by Luke Pang, Brian Kapi, and more than 10 employees of Luke Pang. Luke Pang used a catapult to fire stones at Fahn Martin and Alwin Martin, hitting them with great force as it was from close distance, some five meters causing them much pain. Brian Kapi hit Fahn Martin several times with a folded fist. Rudolf Kaliai stood there watching them assault them.
    
28. After a while, they stopped assaulting them, and forced them to run to a waiting police vehicle, a blue vehicle, registration number plate – KAF-814. From Jeffrey Yareng’s evidence, this was a Toyota Trooper, commonly referred to as a 10-seater. Four policemen with Brian Kapi and Luke Pang got into the vehicle. In the vehicle they were continuously assaulted. Luke Pang was hitting them with a piece of iron rod, about half a meter long. They reached a place called Kerema compound. Fahn Martin said it was 20km from Luke Pang’s warehouse. This is uncertain. At Kerema compound several houses were searched without revealing anything. A total of three police vehicles were involved. By then it was 1.00pm. At about 3.00pm Fahn Martin and Alwin Martin were offered food, but they couldn’t eat the food as their mouth was full of blood.
    
29. Solomon Patrick, a friend of Fahn Martin and Alwin Martin called Alwin Martin on his mobile phone. Alwin Martin told him they were coming to pick him up. Solomon Patrick said he was at the Fish Market (a market in Madang). They went in the police vehicle (KAF-814) and picked Solomon Patrick. When they reached Solomon Patrick, Brian Kapi and the other policemen assaulted him. At that time Jerry Yareng, the deceased also called Alwin Martin. Jerry Yareng did not realise that he was talking to Brian Kapi. He told him that he was at “Machine Gun,” where the former Madang Provincial Administrator resides.
    
30. From Fahn Martin’s evidence when they arrived at Jerry Yareng’s location, Jerry Yareng was seated inside his vehicle. Brian Kapi opened the door and asked him if he was Jerry Yareng, and Jerry Yareng confirmed his identity. He was then directed by Brian Kapi to leave his car and get into the police vehicle, Registration KAF-814, a blue vehicle with police insignia.
    
31. Jeffrey Yareng, 40 years old, is from Moreng Village, Kotte LLG, Finschaffen, Morobe Province, and he is the elder brother of the deceased Jerry Yareng. He is currently employed by the Madang Provincial Administration as a Special Projects officer of Agriculture and Livestock. He says that on Wednesday 1 April 2020, at about 3.00pm, police came and apprehended the late Jerry Yareng at Alamanda Crescent. They came in a blue 10-seater police vehicle with registration number plate: KAF-814. When the police arrived, Jeffrey had gone into the house to fix some drinks for them as it was a hot day. After confirming his identity, they told Jerry Yareng to get into the police vehicle with them and took his car too, removing Jeffrey Yareng’s two daughters, who were seated inside Jerry Yareng’s vehicle. Jeffrey Yareng can recall the faces of the policemen that were in the vehicle that took Jerry Yareng away but does not know their names. He can only recall a person by the name of Nato Jimmy.
    
32. According to Fahn Martin and Alwin Martin’s evidence, after they picked up Jerry Yareng, they took them- Fahn Martin, Alwin Martin, Solomon Patrick and Jerry Yareng to Luke Pang’s warehouse again. They did not go to the police station. From Fahn Martin and Jeffrey Yareng’s evidence, this was about 3.00pm. At Luke Pangs warehouse Jerry Yareng and Solomon Patrick were badly assaulted. Fahn Martin was in the police car, five meters from Jerry Yareng and watched the event unfold. Brian Kapi with a group of policemen beat Jerry Yareng with a “4x4 timber” and a civilian, whose head was tied with a cloth also used a wheel spanner on him, who Fahn Martin says was Luke Pang’s employee. Fahn Martin said he saw Jerry Yareng hit on the knees, legs, head, hands, kneecaps, and ribs on both sides. There were cuts on his legs and heavy bleeding from the body, head and legs as a result of the assault. Solomon Patrick suffered a broken ankle. Luke Pang participated in the assault too, using a timber.
    
33. Fahn Martin says that about 5.30pm (1 April 2020) they were brought from Luke Pang’s warehouse to Jomba police station. They were all in great pain and bleeding. They were all tortured, assaulted and wounded and for Fahn Martin and Alwin Martin, they were humiliated and brutally assaulted for a total of 13 hours from 5.00am to 6.00pm. They stayed in the cells with bodies smelling from the wounds from 1 April 2020 to 4 April 2020. At no time did they receive medical attention.
    
34. In Jeffrey Yareng’s evidence, after the police took Jerry Yareng (at 3.00pm), he waited until 4.00pm and went to Jomba Police station in Madang (1 April 2020). He waited until 5.38pm when the police vehicle registration, KAF-814 arrived with Jerry Yareng inside. From Fahn Martin’s evidence they were returning from Luke Pang’s warehouse after assaulting him there for some two and a half hours (3.00pm to 5.38pm).
    
35. Soon after that at 5.39pm, a policeman drove Jerry Yareng’s vehicle into Jomba Police station and parked it at the back towards the Madang Provincial Government.
    
36. Jerry Yareng, Fahn Martin, Alwin Martin and Solomon Patrick were still in custody on 2 April 2020. Jeffrey Yareng says that on Thursday 2 April 2020 he arrived at the Jomba Police Station and requested a policeman who was on duty, Constable Penga to go through the Cell Book and the Occurrence Book to see if Jerry Yareng’s name was there. His name was not on both books. Constable Penga told him that they had received instructions from their superiors that they were not allowed to arrest and lock-up accused persons at the Jomba lockup or even transfer them to Beon Correctional Services (due to Covid-19). This information was confirmed by Sargent Martin Howley and Sargent Sibolo. He advised Jeffrey Yareng to see the Police Station Commander to release Jerry Yareng. Soon after that Senior Constable Leo Ongan, the cell guard entered the names of Jerry Yareng and his three other co-accused into the Occurrence Book. Jeffrey Yareng then requested to see his brother, Jerry Yareng but was told to come in the afternoon.
    
37. Jeffrey Yareng returned the next day on 2 April 2020 at 6.13pm with five others to the Jomba Police station. They saw Constable Nola Karis opening the Jomba Police cell block and Jerry Yareng was seen coming out from the cell dragging his left leg. Jeffrey Yareng could see from the perimeter fence from the front of the police station that Jerry Yareng was in great pain. He went into the waiting police vehicle, a blue police 10-seater with the registration number KAF-814. Jeffrey Yareng could see in the car three policemen – the driver, Jimmy Nato, Brian Kapi was offside, and a third policeman at the back with Jerry Yareng. Jeffrey Yareng said in his affidavit at paragraph 22:
    

We gave Jerry some biscuits, cold water and coke in a black shopping bag through the window of the police vehicle. Jerry did not turn around to see us. We were told by Brian Kapi that there was no CID, so they were taking Jerry out for questioning. He also told us to get Jerry some pain killers like white flower, yellow wicks, deep heat and wait for them to return at the Jomba Police station.

38. Jeffrey Yareng and those with him were told by Constable Rose Lapan to go and return later as they might bring Jerry Yareng back at 12 midnight. At about 8.00pm, Senior Constable Leo Ongan went and left Jeffrey Yareng at home. Other members of Jeffrey Yareng’s group remained at the station. Jeffrey Yareng was left at a place called Didiman No. 2 Station. At 9.01pm he called Jeffrey Yareng. He put the phone on loudspeaker and his parents could hear him speak. He asked him where he was. He said he was at “Monpi Nambis.” He was with the same policemen who took him for questioning, and they will take him back in the same car. Jeffrey Yareng told his brother that he was waiting at Jomba station with his medication. That was the last conversation he had with him. After speaking to him, he went back to the Jomba Police station. On his way back he saw the same vehicle that took his brother parked at the women’s police quarters. The vehicle drove out again and went to Jomba police station. According to Jeffrey Yareng, Jerry Yareng was brought to the Jomba cell at 9.40pm.
    
39. Fahn Martin was in the cell. He says that Jerry Yareng was brought in again to the cell between 7.00pm and 8.00pm. There is a discrepancy of around one hour between Fahn Martin and Jeffrey Yareng’s version of events. From Fahn Martin’s observations he came back with severe pains in his open wounds. He was still in pain and bleeding on the head. On Friday 3 April 2020, in the morning, in the cell Jerry Yareng started to develop high fever, and went for a wash and came back and stood between Fahn Martin and Alwin Martin, and felt his leg go cold and was having difficulty breathing. Fahn Martin observed that Jerry Yareng was dying. When that happened, other detainees called the police for help. After one hour, the cell guard on duty, policewoman Noila Karish opened the cell gate. According to Alwin Martin, Noila Karish initially told them that the policemen that assaulted and injured them should take them to the hospital. The lifeless body of Jerry Yareng was then taken to the hospital. Soon after Fahn Martin, Alwin Martin and Patrick Solomon were released without being charged on 4 April 2020.
    
40. Jeffrey Yareng states that on Friday 3 April 2020, around 12 noon, he went to give some food and find out about Jerry Yareng’s condition, and he was told by Jomba cell guard, Noila Karish that his brother had died between 7.00am and 7.30am, when he was brought to the hospital. He was brought to the hospital by the cell guard Noila Karish and Kasia Anunga, a policewoman who had driven the vehicle.
    
41. Upon hearing of the tragic news, they aired their grievances and were told by the Jomba Police Station Commander Sergeant Mamba to formally write a complaint letter to the Senior Sergeant Alex Solvo, Officer in Charge of the Internal Investigation Unit of the RPNGC in Madang, because Jerry Yareng had died in police custody. They then left the police station and went to the hospital. At the hospital Jeffrey Yareng stated the following regarding his brother whose body lay on a trolley at the Madang Provincial Hospital mortuary:
    

He had five (5) deep lacerations on his left leg and a deep cut at the back of his head. Blood was seen coming out from his mouth when I pressed his right cheek.

42. Inspector Willie Mio was at the time the acting Madang Police Station Commander. He says that he was the shift commander at the time of the death of the detainee Jerry Yareng. Jerry Yareng was detained with three others in relation to an alleged major robbery at Saidor in the Rai Coast District of Madang Province on 26 March 2020. At the time of the death of Jerry Yareng, the officers on duty were senior constable Leo Ongan and constable Noila Karish. He said he followed all normal process and reported all incidences to the PPC’s office.
    
43. Alex Solwo is the officer in charge of the provincial internal investigation unit of the police in Madang. In his evidence he confirms that he received the complaint from the family regarding the incident. He has enlisted the cooperation of the Ombudsman Commission to investigate the matter under the Memorandum of Agreement between the RPNGC and the Ombudsman Commission of Papua New Guinea (MOA). Mr Richard Pagan the Chief Ombudsman states that the MOA provides is an oversight arrangement between the Ombudsman Commission of Papua New Guinea (OCPNG) and the RPNGC where OCPNG provides oversight over investigation by the police over their own personnel when complaints are received against the police. The Chief Ombudsman says that the programme has been a success with so many good outcomes where rogue police officers have been investigated, arrested, charged and referred for criminal prosecution and or discipled administratively. Importantly, Mr Pagan says they have commenced investigations, but it was delayed due to Covid-19 pandemic.
    
44. There were two autopsy reports done when a coronial inquest was initiated. The first one was done by Dr John Maihua, a legally qualified medical practitioner at the Madang Provincial Hospital, Madang Province. He is specialist in head/neck and a plastic surgeon. He conducted the autopsy 15 April 2020 at 10.30am at the Modilon Hospital Mortuary. The body of the deceased was identified by Jeffrey Yareng, Leslie Yareng and Sargeant Frank Kikoli. In Dr Maihua’s report there was a wound – 5cm x 3cm on the scalp. Analysis of the chest and respiratory system, showed that the left and right lung were both, “severely closed by gross adhesions.” He identified a “faulty omentum.” Dr Maihua also states that the spleen was bruised and saw adnexa. There were five superficial wounds on his left lower leg. In conclusion Dr Maihua said the cause of death was unknown, though there were scalp wounds, and sign of head injury. He also observed that the deceased had severely restrictive lung disease from chronic/long standing lung infection causing adhesion of both lungs to the chest wall. He says that the time of death was 8.00am on 3 April 2020 at Jomba Police station cell block.
    
45. A second autopsy was done by Dr Sammy Thomas on 2 June 2020 at the Madang Provincial hospital. Dr Tomas is a specialist neurosurgeon at the Madang Provincial hospital. In his report dated 2 June 2020, he says that there was evidence of a bruised scalp from a photograph taken on 3 April 2020 but then he says he could not “ascertain any bruises.” Dr Thomas also observed that there was symmetrical collection of blood bilaterally in occipital area but opined that this was normal and most likely from postmortem exsanguination. Dr Thomas also stated that the time of death was 8.00am on 3 April 2020 at the Jomba Police station cell block. Dr Thomas then stated there was no conclusive evidence of the cause of death, but then observed that from the bruised scalp seen on photos taken on 3 April 2020, there was possible traumatic brain injury.
    
46. After the incident, Mr Rubiang, the Madang PPC said the officer in charge of the Criminal Investigation Division in Madang, Inspector Yalamu requested to interrogate three policemen as suspects in relation to the killing of Jerry Yareng. In response, the then PPC obtained approval from his superior ACP Northern, Mr Peter Guiness to put a stop to the investigation as it was “suspicious and biased investigation.” He stopped the matter and had it referred to the coroner. He was surprised to see the matter return as a human rights matter before the National Court in Madang as it was before the coroner.
    
47. In Mr Rubiang’s affidavit, he attached a report from Detective Constable Brian Kiwi Kapi dated 8 April 2020 to him. In that report Mr Kapi alleges that Jerry Yareng was arrested as he and his alleged accomplices were involved in an armed robbery at Saidor. Pictures from his mobile phones showed a rifle. He said in his letter to Mr Rubiang that the deceased cooperated well and provided details of the robbery and other robbery where he leased his rifle to criminals to use. He says that he obtained the rifle which was a police-issued rifle after an incident at Tapo River in Madang where a police vehicle was washed away, and the rifle was lost. Mr Kapi further stated in his report to Mr Rubiang that when they left Jerry Yareng at the police station he was in good health. Interestingly he says they gave the deceased his food and “tiger bum wicks.” This reference to “tiger bum wicks,” was what Jeffrey Yareng referred to, that Brian Kapi requested them to bring to him. There is no mention of how Jerry Yareng provided the information to Brian Kapi (in other words it corroborates Jeffrey Yareng’s evidence) nor was there evidence of a search warrant to obtain the pictures and information from his phone. The dates that Brian Kapi refers to in his report of when Jerry Yareng was apprehended coincides with the evidence of Fahn Martin and Jeffrey Yareng.
    
48. Mr Rubiang also attaches a letter dated 15 June 2020 to the Madang Police Station Commander from Detective Inspector Stephen Yalamu providing a brief of the investigation carried out by Mr Yalamu and the possible charges that were going to be laid on the police officers implicated in the death of Jerry Yareng.
    

Findings of Facts

49. Based on the evidence that were presented to court, I make the following findings. I make these findings on the balance of probability on sworn evidence and unsworn statements. The notice was published in the newspaper and persons involved had notice to attend and give their version of events. Events relating to circumstances surrounding the death of Jerry Yareng were uncontested and corroborated.
    
50. The police conducted an illegal raid on the village of Baliau in Saidor, Rai Coast District in the early hours of 1 April 2020. This investigation was led by Brian Kapi and was approved by the PPC, acting superintendent Matzuc Rubiang because of an armed robbery that had occurred on or about 26 March 2020. The raid was illegal because there was no search warrant obtained before the raid.
    
51. During the raid the police were under the influence of alcohol. The police threatened and assaulted the villagers of Biliau before apprehending Fahn Martin and Alwin Martin and taking them by boat to Madang.
    
52. When the police arrived in Madang, they did not take Fahn Martin and Alwin Martin to the police station to be detained, questioned and charged. Instead, they took them to a civilian premises, a warehouse of a Luke Pang and assaulted and tortured Fahn Martin and Alwin Martin there.
    
53. Present at the warehouse was Luke Pang, Brian Kapi and Rudolf Kaliai. Luke Pang and his employees and Brian Kapi assaulted them. Rudolf Kaliai looked on without doing anything and at some stage also participated in the assault.
    
54. After some time, they were taken to another of their alleged accomplice Patrick Solomon. While they were driven in the vehicle, Luke Pang had a half-meter metal rod and continued to assault Fahn Martin and Alwin Martin in the vehicle. They were driven in a blue Toyota trooper, a 10-seater, registration number plate, KAF-814. A policeman called Jimmy Nato drove the vehicle and Brian Kapi sat offside him. Patrick Solomon was then apprehended after his call to Alwin Martin was intercepted and his whereabouts was determined by the police. He was then detained and assaulted.
    
55. Just before 3.00pm on 1 April 2020, Jerry Yareng called Alwin Martin and Brian Kapi intercepted his call. His location was ascertained, and they drove to Jerry Yareng (same vehicle (KAF-814). Jerry Yareng was with his brother Jeffrey Yareng. Brian Kapi and Jimmy Nato, and other policeman whose names cannot be recalled by the witnesses, apprehended Jerry Yareng and took him, with Fahn Martin, Alwin Martin and Patrick Solomon back to Luke Pang’s warehouse and continued to torture and assault them.
    
56. At about 5.30pm they were brought to Jomba Police station and left in the cells there. Fahn Martin, Alwin Jimmy, Patrick Solomon and Jerry Yareng spent the night of 1 April 2020 until the next day, 2 April 2020. They were detained without being charged and their details at that time was not entered into the Occurrence Book. They were not afforded the right to communicate with a friend, family member, or lawyer while they were interrogated by the police.
    
57. On 2 April 2020 Jerry Yareng was then brought out again from Jomba Police Station cells at about 6.13pm for further questioning. From Jeffrey Yareng’s phone call to him at 9.01pm, revealed he was taken to Luke Pang’s warehouse again. In chilling and sadistic display of behaviour, Brian Kapi informed Jeffrey Yareng to buy his brother, Jerry Yareng painkillers and wait for him to return, and then they left with Jerry Yareng. It was obvious from the totality of the circumstances from 1 April 2020 onwards that while Jerry Yareng was away in the company of Brian Kapi, Jimmy Nato and Luke Pang, he was assaulted and tortured to obtain information.
    
58. Whilst Jerry Yareng was in the company of Brian Kapi and other policemen, they took his mobile phone and obtained information without any search warrant and in clear breach of his right to privacy.
    
59. At no time did Brian Kapi and his men afford the suspects the right to have a lawyer or a friend or family member present when they carried out their questioning of Fahn Martin, Alwin Martin, Patrick Solomon and Jerry Yareng on 1 April 2020 and 2 April 2020.
    
60. When Jerry Yareng was brought back to Jomba police station at about 9.40pm, on 2 April 2020 he was in great pain.
    
61. Jerry Yareng died the next day, 3 April 2020 at 8.00am in the cells at Jomba Police station in Madang. This is from the autopsy report. The cause of death from the two autopsy reports are inconclusive. But I find that Jerry Yareng was assaulted, tortured and the manner of his treatment may have exacerbated any underlying conditions he may have had, because the autopsy done by Dr John Maihua said he had restrictive lung disease from chronic lung infection. He died in police custody and had no medical complaints before he was detained.
    
62. Fahn Martin, Alwin Martin and Patrick Solomon were released on 4 April 2020 without being charged and were never provided medical treatment despite the clear and visible injuries they suffered at the hands of the police and Luke Pang.
    
63. I also find that acting superintendent Matzuc Rubiang had no lawful basis to stop inspector Stephen Yalamu to investigate Brian Kapi, Jimmy Nato, Rudolf Kaliai and Brian Pang for wilful murder, attempted murder, deprivation of liberty and grievous bodily harm.
    

Breach of Human Rights

64. From my findings of facts, I determine the persons whose rights were breached, and I identify the person committing the violation and the rights and freedoms that were violated.
    
65. I use the word torture in the context of s 36 of the Constitution, that is freedom from inhuman treatment. Section 36 comes from the classic definition of torture in the international convention against torture. In Wartoto v Okuafo (2022) N9663 I held that for an act or omission to amount to torture, pain has to be specifically intended and applied to a person to achieve some other objective which otherwise would not have been achieved. There is no definition of torture in the Constitution (Namuesh v Ofoi (1996) N1429). But the definition of torture is further elaborated in the following international instrument, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)). Article 1 of UNCAT states:
    

1. For the purposes of this Convention, the term " torture " means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

66. In my view what Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang did to Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng fell within the classic definition of torture. The held them in custody from 1 April 2020 to 4 April 2020 and assaulted them to obtain information under duress about the robbery that took place in Saidor, Rai Coast on or about 26 March 2020. The fact that Brian Kapi told Jeffrey Yareng to get pain killers for Jerry Yareng before they took him out for questioning on the night of 2 April 2020 was conclusive of their intentions to carry out acts of torture to obtain information about the robbery.
    
67. Alwin Martin, Fahn Martin, Patrick Solomon and Jerry Yareng’s rights and freedoms were violated in the following manner by the following persons:
    
    • the right to freedom based on law under Constitution, s 32(2) (right to freedom) – when they were detained on 1 April 2020 to 4 April 2020 without any lawful basis. This was committed by Mazuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Matzuc Rubiang is included because he was the PPC and he ordered the police raid.
      
    • Freedom from inhuman treatment under Constitution, s 36(1) when they were subjected to treatment that was cruel, inhuman and inconsistent with respect for the inherent dignity of the human person from 1 April 2020 to 4 April 2020 when they were assaulted, tortured and detained without being charged. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang as evidenced by the assaults and torture.
      
    • the right to the full protection of the law under Constitution, s 37(1) (Protection of the law) – when they were assaulted for no lawful reason, tortured, and detained without being charged from 1 April 2020 to 4 April 2020. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang. Matzuc Rubiang failed to exercise proper control over his officers and therefore he is also responsible.
      
    • the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person under Constitution s 37(17) (Protection of the Law) – when they were detained without being granted the opportunity to obtain medical treatment. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai and constable Noila Karish as evidenced by the torture and assaults and not brought to hospital despite the serious injuries suffered.
      
    • the right to be protected against acts that, though done under valid laws, in particular cases, are harsh or oppressive or not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Constitution, s 41 (1) (proscribed acts) – their treatment of being assaulted, detained without being charged and tortured was harsh and oppressive and not reasonably justifiable in a democratic society. This was committed Brian Kapi, Jimmy Nato, Rudolf Kaliai and Luke Pang.
      
    • the right not to be deprived of one’s liberty except in justifiable circumstances of person's liberty under Constitution, s 42 (liberty of the person) – the detention from 1 April 2020 to 4 April 2020 where none of the circumstances under s 42(1)(a) to (i) of the Constitution existed to warrant their detention, and this is confirmed when they were released on 4 April 2020 without being charged. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Jerry Yareng died on 3 April 2020.
      
    • the right to communicate with a friend, family or a lawyer upon arrest or detention as required by Constitution, s 42(2) (liberty of the person) and the right to be informed of this right immediately upon their arrest and detention. This was committed by Brian Kapi, Jimmy Nato, Rudolf Kaliai. After Fahn Martin, Alwin Martin, Patrick Solomon and Jerry Yareng were arrested and detained, they were not informed of their rights under s 42(2) of the Constitution.
      
    • the freedom from arbitrary search and entry under Constitution, s 44 (freedom from arbitrary search and entry) – when the police entered Alwin Martin and Fahn Martin’s residence without a search warrant and confiscated Jerry Yareng’s mobile phone and obtained information and photographs, also without any search warrant. This was committed by Matzuc Rubiang, Brian Kapi, Jimmy Nato, and Rudolf Kaliai. Matzuc Rubiang ordered the raid without obtaining a proper search warrant.
      
68. I cannot make any findings on breach of the right to life under s 35 of the Constitution, because both autopsy reports stated the cause of death to be inconclusive. This however is not satisfactory given the circumstances of this case. In my view, the fact that there was no medical complaints when Jerry Yareng was arrested on 1 April 2020, there was repeated assaults and torture on 1 April 2020 and 2 April 2020, no medical treatment was afforded to them and that he died in police custody suggested that whatever caused Jerry Yareng’s death was exacerbated by the assaults and torture committed upon him.
    

Legal Basis for Remedies

69. This proceeding was commenced under s 57(1) of the Constitution. Section 57(3) provides the following remedies for proceeding initiated under s 57(1) of the Constitution:
    

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

70. In Amaiu v Commissioner of Corrective Institution and the State (1983) N417, a proceeding commenced under s 57(1) of the Constitution, the court relied on s 57(3) to order the close- down of a particular area of the prison and also went on to award damages for breach of human rights.
    
71. Section 57(3) provides the jurisdictional basis for an appropriate order to be made by the National Court when it has made findings of breach of human rights and freedoms.
    
72. Section 58 then provides for compensatory relief for persons whose rights under the Constitution have been violated:
    

58. Compensation.

(1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).

(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

(3) Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

(4) Where the infringement was committed by a governmental body, damages may be awarded either—

(a) subject to Subsection (5), against a person referred to in Subsection (3); or

(b) against the governmental body to which any such person was responsible, or against both, in which last case the court may apportion the damages between them.

(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—

(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and

(b) the action taken was genuinely believed by that person to be required by law,

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.

73. I also refer to s 58(4) of the Constitution. This provision states that damages may be awarded against the governmental body which is responsible for the person committing the breach (Ambi v Rabi and Ors (1980) N279). In this case, the State is the responsible person as the employer of the police. From 1 April 2020 to 4 April 2020, acts of violation of human rights were committed by policemen on duty, investigating an armed robbery using state facilities. The state is responsible for their actions and omissions constituting breach of human rights.
    
74. The powers I have as a national court judge under ss 57 and 58 of the Constitution is further buttressed by the following provisions of the Constitution which I have referred to above, but I state again:
    
    • supply any lack of supporting, machinery or procedural laws to ensure that the Basic Rights are not left without effect (s 22);
      
    • if it thinks it proper to do so, may make any order that it things proper for preventing or remedying or remedying a breach of the prohibition, restriction or duty imposed on a person who has breached the Basic Rights of others (s 23(2)); and
      
    • make, in such circumstances as seems to it proper, such orders as are necessary to do justice in the circumstances of the particular case (s 155(4)).
      
75. I take these provisions into account when making my orders emanating from my findings of facts and the determination of the breach of human rights.
    

Remedy

76. In my view, those that have suffered breach of their rights should be compensated under ss 57(3) and 58(3) of the Constitution, and the State should be responsible to pay for the damages under s 58(4) of the Constitution. The award will only go to Fahn Martin, Alwin Martin and Jerry Yareng. This is because Patrick Solomon did not provide any evidence.
    
77. If Fahn Martin, Alwin Martin and Jerry Yareng’s family wish to make a separate claim against Luke Pang, they are at liberty to pursue such claim as it will include claims under the underlying law. I am of the opinion that a separate cause of action should be mounted against Luke Pang as I am focusing primarily on governmental bodies. But the facts as I have found, speak for themselves.
    
78. I would also order that criminal investigations against any person implicated should continue and the Ombudsman Commission provide oversight over the investigations under their Memorandum of Understanding with the RPNGC.
    
79. I will also order that leave is granted to Fahn Martin, Alwin Martin, Patrick Solomon and the family of Jerry Yareng to give notice to the State under s 5 of the Claims By and Against the State Act 1996, if they wish to make a further underlying law claim against the state for negligence. They have 21 days from today to do that.
    
80. Returning back to the question of damages, I have considered each of the occasion of the breach of human rights. In my view compensation for breaches of human rights should be assessed separately from general damages (Kolokol v Amburuapi (2009) N3571. Due to lack of medical report I will not make any orders for general damages, but I will instead order K7,000 for each instance of the breach of human rights, except for breach of s 36(1) of the Constitution which fell into the classic definition of torture. The amount ranges between K5,000 and K10,000 as the base amount for breach of human rights occasioned by assault, unlawful detention and not affording accused persons the right to communicate with a lawyer of their choice or family member (Chapok v Yali (2008) N3474; Alfred v Kapi (2020) N8467; Basse v Yalamu (2021) N8707).
    
81. I have considered a number of case authorities on s 36(1) (see Basse v Yalamu) and I am of the opinion that this case falls into a more serious category and should have a separate sum of K15,000 awarded. This took place on two instances for Alwin Martin and Fahn Martin on 1 April 2020, resulting in an award of K30,000 each. For Jerry Yareng, there was also two instances, one on 1 April 2020 and the other on 2 April 2020 but I have found that he died in police custody after being tortured so a higher award is necessary resulting in K25,000 for each occasion of the breach. I award K50,000. For the other breaches there was seven instances of the breaches, so an award of K49,000 each is made ie K7,000 x 7 = K49,000.
    
82. Given the extent of the breach, I am of the opinion that an award of exemplary damages under s 58(2) of the Constitution should be made (see Basse v Yalamu). In this case given that the Fahn Martin, Alwin Martin and Jerry Yareng were tortured over a long period of time, I will award K15,000 each for Alwin Martin and Fahn Martin (for comparison see Basse v Yalamu) and K30,000 for Jerry Yareng as he died in police custody. The award of exemplary damages is to demonstrate to the state that two wrongs do not make a right in the performance of its duties.
    
83. The total awarded in reasonable damages and exemplary damages is tabulated as follows under three tables:
    

Table 1 – Jerry Yareng

Table 2 – Alwin Martin

Table 3 – Fahn Martin

Addressing the Terms of Reference of the Inquiry

84. I now consider the questions I set out to answer when I commenced this inquiry and provide my brief response to the questions asked.
    
    • What were the circumstances surrounding the death of Jerry Yareng?
      

Answer: This has been answered in my findings of facts.

• Were there any rights or freedoms violated concerning the death of Jerry Yareng and the manner in which other suspects were treated?
  

Answer: This has been answered in my findings on breach of human rights.

• If rights and or freedoms were violated, what should have been done or what should be done by relevant authorities regarding the violations?
  

Answer: Reasonable damages should be paid and criminal investigations carried out for persons implicated.

• Whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under section 57(3) of the Constitution?
  

Answer: Appropriate orders have been made (see below).

85. The circumstances of the case show a total disregard for the law and the rights of citizens in the way the police carry out their duties. This story would not have seen the light of day, if it were not for the efforts of human rights advocate such as Mr Steven Asivo and independent constitutional institutions like the Ombudsman Commission. This court, established by the people of Papua New Guinea through their duly elected representative, records its appreciation to them.
    

Orders

86. In view of the discussions on the law and the findings of facts and the breach of rights and freedoms, I make the following orders:
    
    1. The State pays Jerry Yareng’s family compensatory damages for breach of human rights in the sum of K129,000.
       
    2. The State pays Alwin Martin compensatory damages for breach of human rights in the sum of K89,000.
       
    3. The State pays Fahn Martin compensatory damages for breach of human rights in the sum of K89,000.
       
    4. The police continue their criminal investigations into the death of Jerry Yareng, and the manner Fahn Martin, Alwin Martin and Patrick Solomon were treated and the Ombudsman Commission provide oversight of this investigation under their memorandum of understanding with the Royal Papua New Guinea Constabulary.
       
    5. Leave is granted to the family of Jerry Yareng, and to Fahn Martin, Alwin Martin and Patrick Solomon to give notice under s 5 of the Claims By and Against the State Act 1996 within 21 days of the orders issued today for any further claims under statute and the underlying law they may wish to claim against the State.
       
    6. If there is a dispute as to who should be entitled to receive the award of Jerry Yarengs’s compensatory damages, then such money is to be paid to the Public Curator.
       

Judgment and orders accordingly.

Counsel to the Commission: Lawyers for the Ombudsman Commission