Kelly Koi v Constable Mathew Anseni and The Independent State of Papua New Guinea (2014) N5580

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 April 2014
• Docket Number: WS (HR) NO 764 0F 2012
• Court: National Court
• Judgement Number: N5580

Full Title: WS (HR) NO 764 0F 2012; Kelly Koi v Constable Mathew Anseni and The Independent State of Papua New Guinea (2014) N5580

National Court: Cannings J

Judgment Delivered: 24 April 2014

N5580

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 764 0F 2012

KELLY KOI

Plaintiff

V

CONSTABLE MATHEW ANSENI

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Madang: Cannings J

2013: 4 December,

2014: 12 March, 24 April

HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – protection against proscribed acts – freedom of movement – torts – negligence – Police shooting of suspect – liability of Police officer for alleged unlawful shooting – whether the State is vicariously liable for tortuous acts of Police officers and/or breaches of human rights committed by Police officers – whether unlawful actions of Police officer committed within the scope of employment.

The plaintiff claimed that he was unlawfully shot in the leg by the first defendant, a police officer, resulting in an injury requiring a below-knee amputation of his leg. He commenced proceedings against both the first defendant and his employer, the State, claiming damages and compensation for negligence and breach of human rights. A trial was held to determine the question of liability. The first defendant did not defend the matter. The State argued that though the first defendant was its employee it should not be vicariously liable as the first defendant’s actions were manifestly unlawful and committed outside the scope of his employment.

Held:

(1) The plaintiff adduced credible evidence. Neither defendant adduced any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(2) The plaintiff established causes of action in negligence and breach of human rights against the first defendant; in particular:

· 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)).

(3) The plaintiff established the same causes of action against the second defendant, the State, which was vicariously liable for the actions of the first defendant. The first defendant was carrying out police duties in pursuing the plaintiff and apprehending him. Though he acted unlawfully by shooting the plaintiff without lawful justification, he committed that act incidentally to what was a legitimate police operation: the apprehension of the plaintiff, who was an escaped prisoner.

(4) The plaintiff is entitled to damages and/or compensation, which shall be subject to assessment at a separate trial.

Cases cited

The following cases are cited in the judgment:

Application by Kunzi Waso [1996] PNGLR 218

Desmond Huaimbakie v James Baugen & The State (2004) N2589

Eriare Lanyat v The State [1997] PNGLR 253

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958

Kembo Tirima v Angau Memorial Hospital (2005) N2779

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

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

Wama Kints v The State (2001) N2113

STATEMENT OF CLAIM

This was a trial on liability.

Counsel

A Meten, for the plaintiff

S Phannaphen, for the second defendant

24th April, 2014

1. CANNINGS J: Kelly Koi claims that he was unlawfully shot in the leg by the first defendant, a police officer, Constable Mathew Anseni, resulting in a below-knee amputation. He commenced proceedings against both the first defendant and his employer, the State, claiming damages and compensation for negligence and breach of human rights. A trial was held to determine the question of liability. The first defendant did not defend the matter. The State argued that though the first defendant was its employee it should not be vicariously liable as the first defendant’s actions were manifestly unlawful and committed outside the scope of his employment. There are four issues:

1 Has the plaintiff proven the factual allegations?

2 Has the plaintiff established a cause of action against the first defendant?

3 Has the plaintiff established liability against the State?

4 What orders should be made?

1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

2. Three affidavits in support of the plaintiff’s case have been admitted into evidence. They are consistent with the allegations in the statement of claim. No evidence has been tendered by either defendant. The Court has been given no reason to reject the allegations. Mr Phannaphen, counsel for the State, has conceded that they are true. I find therefore that the plaintiff has proven on the balance of probabilities that the allegations are true and I make findings of fact accordingly.

3. At the time he was shot, on the morning of Friday 18 May 2007, near Gov Stoa settlement, Madang, the plaintiff was an escapee, presumably from Beon Jail, near Madang town. He was on the run and there was a joint Correctional Service-Police operation to catch him. I point out that that fact is not expressly made clear in any of the affidavits, but it is something to be necessarily inferred from the evidence. The plaintiff is from the Ambunti area of East Sepik Province and was born in Madang and lived all his life at Gov Stoa.

4. A squad of armed members of the Correctional Service and the Police Force entered Gov Stoa settlement at 8.00 am. A short time later a member of the Correctional Service spotted the plaintiff and apprehended him near the Karkar Compound.

5. The first defendant was a member of the joint operation. He observed that the plaintiff had been apprehended and approached him. He instructed the Correctional Service member to release the plaintiff, which he did, moving a short distance away from the plaintiff. The first defendant then from close range fired a shot from his firearm (which, it is to be inferred from the evidence, was a Police-issued semi-automatic weapon) into the plaintiff’s left leg. This caused heavy bleeding and great pain.

6. The plaintiff was lying on the ground, holding his wounded leg, begging with the first defendant to do nothing else, but the first defendant fired two more shots into the same area of the left leg. Various people from the settlement, including Titus Magap (who swore one of the affidavits admitted into evidence) gathered around to see what was happening. The plaintiff was bleeding heavily and cried for help, but the settlement people were told to leave the area, which they did.

7. The plaintiff was put into a Police vehicle and taken to the nearby Modilon General Hospital. A Hospital security guard assisted him and he was admitted to the Emergency Ward. That all happened on the morning of 18 May 2007.

8. The plaintiff remained in hospital until 2 July 2007 during which time a below-knee amputation was performed on his left leg.

2 HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION AGAINST THE FIRST DEFENDANT?

9. There is no evidence that the plaintiff was attempting to evade capture or to escape. He was in the custody of a member of the Correctional Service who, it must be inferred from the evidence, was armed. There was no need for the first defendant to shoot him. There was no lawful justification or excuse for doing so. The first defendant acted deliberately, intending to wound and disable the plaintiff.

10. The plaintiff claims that by acting in this way the first defendant is guilty of the tort of negligence and breaching his human rights. I cannot see any defence to these claims. I have no hesitation in upholding them.

Negligence

11. The elements of the tort of negligence have been established in that:

· the first defendant owed a duty of care to the plaintiff,

· he breached that duty (ie he acted negligently, below the standard required of a reasonable police officer in his position),

· the breach of duty caused injury to the plaintiff, and

· the type of injury was not too remote (Kembo Tirima v Angau Memorial Hospital (2005) N2779).

Human rights

12. The plaintiff has proven that the first defendant breached his human rights (rights entrenched by various provisions of Division III.3 (basic rights) of the Constitution) in three ways.

(a) Freedom from inhuman treatment

13. 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.

14. The first defendant’s actions were not only unnecessary but amounted to cruel and inhuman treatment.

(b) Full protection of the law

15. Section 37(1) (protection of the law) states:

Every person has the right to the full...