Andrew Namuesh v Paul Ofoi, George Avali, The Police Commissioner and The Independent State of Papua New Guinea [1996] PNGLR 211

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 07 May 1996
• Court: National Court
• Citation: [1996] PNGLR 211
• Year: 1996
• Judgement Number: N1429

Full Title: Andrew Namuesh v Paul Ofoi, George Avali, The Police Commissioner and The Independent State of Papua New Guinea [1996] PNGLR 211

National Court: Jalina J

Judgment Delivered: 7 May 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANDREW NAMUESH

V

PAUL OFOI;

GEORGE AVALI;

THE POLICE COMMISSIONER;

AND THE STATE

Lae

Jalina J

12-13 March 1996

20 March 1996

7 May 1996

CONSTITUTIONAL LAW — Constitution s 57 — Enforcement of rights and freedoms — Entry into premises by armed police — Constitution s 36 — Freedom from inhuman treatment — Whether breach of s 36 when guns not pointed at victims and victims not assaulted — Freedom from arbitrary search and seizure — Constitution s 44 — No search warrant obtained by police — Police not in immediate pursuit — Search Act, s 5.

Facts

The applicant was in his house in the early evening with his wife and children when he heard people entering the premises. On investigation he found three police officers two of whom carried guns which were slung on their shoulders. There was no pointing of guns or manhandling of the applicant and his family but the applicant believed that threatening words were spoken about another person and the applicant and his family were put in fear.

Held

The conduct of the police officers did not amount to conduct falling within the provisions of s 36 of the Constitution and accordingly there had been no breach of that right. There had been a breach of s 44 of the Constitution in that the police had no search warrant and were not acting within the exceptions for a search warrant contained in s 5 of the Search Act as there was no evidence of an "immediate pursuit" under that provision.

Cases Cited

Amaiu v The Commissioner of Corrective Institution and The State [1983] PNGLR 87

Kofowei v Siviri & Ors [1983] PNGLR 449

State v Popo [1990] PNGLR 57

State v Quati & Ors [1990] PNGLR 57

Counsel

Applicant in person

R Saranduo for first, second and third respondents

M Titus for fourth respondent

7 May 1996

JALINA J: This is an application pursuant to s 57 of the Constitution for alleged breaches of Constitutional rights by members of the police force. The specific constitutional provisions the applicant alleges were breached are Section 36, and 44 when police were looking for someone who was alleged to have committed an offence.

At about 7.30 pm on Sunday 11 June 1995 when the applicant was sitting in his house at Section 104 Allotment 2, Cormmorant Street, Lae, with his wife and children he heard sound of people wearing boots walking into his premises. He switched on the security lights, opened the door and went out with his wife and children. He walked down the steps and three policemen including the first and second defendants walked to his residence and stood near him. The first defendant on his left and the second defendant and another policeman in front of him. They were in police uniform. The second defendant and his other collegue had a gun each. Evidence from those policemen as well as evidence elicited from the applicant and his wife during cross-examination show that those guns were just slung up on the policemens' shoulders.

The policemen did not point the guns at the applicant and his wife and children and neither did they assault or manhandle them let alone push them around whilst on the premises. The second defendant is alleged to have said twice in a loud voice, "where is Christopher?", inspite of the applicant's earlier reply that Christopher was not there but had gone to Morobe Patrol Post. While the applicant was explaining as to the whereabouts of Christopher, the first defendant is alleged to have threatened the applicant with words to the effect "Find some money and bail him. If I find him I will put him in the cells". He also says (and this is confirmed in the affidavit of his wife and his daughter Koncie Namuesh) that they were very frightened and now they become frightened and hide everytime they see the police. The first defendant has admitted in cross-examination that they did not have a search warrant when they entered the applicant's premises.

I will now consider each Constitutional provision the policemen are alleged to have breached.

Breach of s 36 of the Constitution.

I will only refer to Sub-section (1) which is the relevant provision for present...