Joe Kape Meta, also known as Benedict Wakore v Constable Paul Kumono and Constable Idon Kulunio and the Independent State of Papua New Guinea (2012) N4598

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 29 February 2012
• Court: National Court
• Citation: (2012) N4598
• Docket Number: MP (HR) NO 171 of 1999
• Year: 2012
• Judgement Number: N4598

Full Title: MP (HR) NO 171 of 1999; Joe Kape Meta, also known as Benedict Wakore v Constable Paul Kumono and Constable Idon Kulunio and the Independent State of Papua New Guinea (2012) N4598

National Court: Cannings J

Judgment Delivered: 29 February 2012

N4598

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP (HR) NO 171 0F 1999

JOE KAPE META

ALSO KNOWN AS BENEDICT WAKORE

Plaintiff

V

CONSTABLE PAUL KUMONO

First Defendant

CONSTABLE IDON KULUNIO

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2012: 21, 22, 29 February

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – protection against proscribed acts – right to liberty

The plaintiff claims that he was unlawfully shot in the leg by police officers and as a result his leg was amputated. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights. A trial was held to determine whether the defendants (the police officers involved in the alleged shooting and the State) were liable for breach of human rights.

Held:

(1) The plaintiff adduced credible evidence. The defendants failed to adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(2) A number of the plaintiff’s human rights were breached, viz

· freedom from inhuman treatment (Constitution, s 36(1));

· protection of the law (Constitution, s 37(1));

· protection from proscribed acts, including harsh or oppressive acts (Constitution, s 41(1));

· right to liberty (Constitution, s 42(1)).

(3) The plaintiff established a cause of action for breach of human rights against the State, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153

Eriare Lanyat v The State [1997] PNGLR 253

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329

The State v David Wari Kofowei and Others [1987] PNGLR 5

Wama Kints v The State (2001) N2113

APPLICATION

This was a trial on liability to determine whether the plaintiff’s application for enforcement of human rights should be upheld.

Counsel

B Takin, for the plaintiff

M Kias, for the third defendant

29 February 2012

1. CANNINGS J: Joe Kape Meta is applying for enforcement under Section 57(1) of the Constitution of his human rights, which he claims were breached by two police officers who shot him, which led to his right leg being amputated. He has brought evidence to support his allegations. The defendants (the two police officers he alleges were involved and the State) have adduced no evidence. There are three issues:

1 Has the plaintiff proven the factual allegations?

2 Has the plaintiff established a cause of action for breach of human rights?

3 If yes, which parties bear liability?

1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

2. I have considered two affidavits by the plaintiff, the first of which gives direct evidence of what happened. Indirect evidence, which to some extent corroborates the plaintiff’s version of events, is contained in affidavits by:

· Dr V Golpak, who deposes that he was a doctor at Nonga Base Hospital when the plaintiff was admitted there on 20 December 1997, having been transferred from Kimbe General Hospital, due to gunshot wounds, and that the plaintiff’s right leg had to be amputated above the knee to prevent life threatening complications including infection, venous thrombosis and toxaemia and that he treated the plaintiff until the date of discharge, 25 February 1998;

· Joseph Ngwa, a member of the Ward Development Council of Gaongo Community, who deposes that prior to his being shot by the police in 1997 the plaintiff was a strong and energetic young man in the community but that since he lost his leg, life has been a struggle; and

· Martha Meta, the plaintiff’s wife, who deposes that in 1997 when the plaintiff was shot by the police she had already been married to him for some time and they had two children, and that prior to the shooting and amputation of his right leg he was a strong and energetic man but since then life has been a struggle for them and that they now have four children.

3. I have also considered the terms of a pro-forma application form for enforcement of human rights, which the plaintiff signed and dated 4 May 1998. It appears to have been filed in the National Court at Kimbe but then for some reason the matter was transferred to the Waigani Registry and a file was opened on 9 April 1999. The application form is the originating process for the purposes of this case. It was accompanied by a handwritten statement of facts, which the plaintiff wrote while he was in remand at Lakiemata Jail, near Kimbe. The allegations set out in the form and the statement are consistent with those made in the plaintiff’s two affidavits that have been admitted into evidence. This shows that the plaintiff’s version of events has been the same since he commenced these proceedings. The passing of almost 14 years between the date of commencement and the date of trial is due, it seems, to the file being lost for a considerable time in the Waigani Registry and the need to re-create the file by opening a supplementary file. I draw no adverse inference against the plaintiff due to the inordinate delay.

4. I have considered the possibility that the plaintiff’s allegations are bogus, that he has made up this story to extract compensation from the State. However, I consider that that is a remote possibility. Having considered the direct evidence in the plaintiff’s affidavits, the indirect evidence in the affidavits of the three other deponents, the circumstances in which the application for enforcement of human rights was filed, the delay in having the matter progressed to trial and the absence of any conflicting evidence (there is no evidence or suggestion that the plaintiff was shot while attempting to escape or that he provoked his being shot), I find that the plaintiff has proven on the balance of probabilities that the gist of his allegations is true. I find that the events he describes actually took place and make the following findings of fact.

5. At 3.00 am on 17 December 1997 a group of about six police officers from Kimbe Police Station arrested the plaintiff at Balabolo village on the Kimbe-Hoskins Highway as he was a suspect in an armed robbery investigation. He was ordered into a police vehicle, and did as he was told, not offering any resistance. Some of the police officers had been drinking alcohol. They questioned him about his involvement in a robbery. The vehicle was driven in the direction of Kimbe and on the way some of the police officers assaulted the plaintiff. At Kumbango Plantation (which is about 9 km from Kimbe) the vehicle was stopped. The plaintiff was ordered out. One of the policemen pointed a police-issued firearm at him. The plaintiff got out of the vehicle and was ordered to run. He was scared and reluctant to run. He begged for mercy but was assaulted and in the process he moved three metres away from the policemen. Four shots were then fired by the police in the direction of the plaintiff. The first shot missed. The second shot struck him in the upper right thigh. The third shot struck him on the right foot, causing him to fall into a roadside drain. By then he was in great pain. The final shot was fired at point-blank range into his right thigh, causing him to lose consciousness.

6. The plaintiff was taken to Kimbe General Hospital, it is not clear by whom or when. He regained consciousness the next day, 18 December 1997. Two days later he was transferred to Nonga Base Hospital, where his right leg was amputated and he remained until discharged on 25 February 1998.

2 HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

7. The plaintiff has proven that his human rights, entrenched by various provisions of Division III.3 of the Constitution (Basic Rights),were infringed in four ways.

(a) Freedom from inhuman treatment

8. Every person has the right to be treated humanely, and not to be submitted to torture or to cruel or otherwise inhuman treatment. This right is conferred by Section 36(1) (freedom from inhuman treatment), which states:

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.

9. The police treated the plaintiff inhumanely. By ordering him out of the vehicle and telling him to run, they submitted him to mental torture, as any person in that position would fear that his life was in immediate...