Mathew Pok, Elizabeth Pok and 23 Others v The Independent State of Papua New Guinea and Paul van Steven and Kingsley Dole Dole and Luke Ambegini (2007) SC864

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Gavara–Nanu and Davani JJ
• Judgment Date: 22 May 2007
• Court: Supreme Court
• Citation: (2007) SC864
• Docket Number: SCA NO. 04 OF 2002
• Year: 2007
• Judgement Number: SC864

Full Title: SCA NO. 04 OF 2002; Mathew Pok, Elizabeth Pok and 23 Others v The Independent State of Papua New Guinea and Paul van Steven and Kingsley Dole Dole and Luke Ambegini (2007) SC864

Supreme Court: Injia DCJ, Gavara-Nanu and Davani JJ

Judgment Delivered: 22 May 2007

SC864

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 04 OF 2002

BETWEEN:

MATHEW POK, ELIZABETH POK AND 23 OTHERS

Appellants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Respondent

AND:

PAUL VAN STEVEN

Second Respondent

AND:

KINGSLEY DOLE DOLE

Third Respondent

AND:

LUKE AMBEGINI

Fourth Respondent

Waigani: Injia DCJ, Gavara-Nanu and Davani JJ.

2006: 26 April

2007: 22 May

Counsel

A. Manase, for the Appellants

H.D. Kiele, for the Respondents

D E C I S I O N

22 May, 2007

1. BY THE COURT: The appellants appeal against the whole of the judgment of the Mount Hagen National Court handed down on 18 December, 2001 where the court dismissed the whole of the plaintiffs/appellants (‘appellants’) claim with costs for the defendants/respondents (‘respondents’).

1. Background

2. The appellants claim in the National Court is for damages arising out of an alleged police raid upon Kalanga, Bunum, Wo and Sigri villages in Banz, Western highlands Province, on 16th and 17 January, 1995. The raid was allegedly conducted by policemen based at the Mount Hagen Police Station and Koban Plantation where they assaulted villagers, caused destruction to their villages by setting houses on fire, destroying trade stores, vehicles, looted properties and killed domesticated animals which included pigs and cassowaries.

3. But the amended statement of claim only pleads alleged attacks by the respondents upon the appellants on 16 January, 1995. We discuss the significance of this later below.

4. The appellants seek that the National Courts orders be quashed, that the matter be remitted to the National Court for rehearing on liability and for re-assessment of damages. Alternatively, the appellants ask this court to make a finding on liability with damages to be assessed.

2. National Court trial

5. The trial judge has outlined in his written, numbered judgment, the basis of the plaintiffs claim which is that “the claim for damages relate to destruction by members of the Police Force to properties including houses, trade stores, vehicles, pigs, cassowaries, chickens and cattle of (sic) the plaintiffs. They also claim damages for assault, trespass and conversion, distress and frustration, false imprisonment and unlawful custody, loss of profits, exemplary damages, interest and cost.” (see p.2 of decision).

6. The trial judge noted that the respondents did not file any affidavits, only cross-examining the appellants on the contents of eleven of their (plaintiffs) affidavits, which were tendered by consent. The trial judge also considered the respondents Defence which was basically that the respondents’ actions were to protect Koban plantation and its properties together with the lives of its employees because the first plaintiff and his tribesman were advancing towards the plantation to destroy it. (see p. 3 of decision).

7. The respondents Defence filed on 13 September, 1995 is twofold;

1. That the respondents were at Koban plantation but only to protect its properties and employees from attacks by the appellants and their tribesmen.

2. Alternatively, even if the appellants did suffer injuries, that the respondents are justified and excused by law because they were only carrying out their lawful duties in protecting the plantation and its employees.

3. Appeal

8. The Supreme Courts powers on appeal are set out at s.6 and s.16 of the Supreme Court Act (‘SCA’) which reads;

“6. Appeal to be by way of rehearing

(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court –

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b) to draw inferences of fact.

(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.”

“16. Decision, etc., on appeal.

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may –

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgment; or

(c) give such judgment as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.”

9. The appellants assert that the grounds of appeal raise serious errors of fact and law by the trial judge in his observations and conclusions. They submit that this Supreme Court is empowered by s. 6 of the SCA to hear the appeal by way of rehearing, on the evidence given in the National Court. The appellants submit that in accordance with s. 6 of the SCA, this court has all the powers, authority and jurisdiction of a National Court Judge. Considering the effusion of time since the decision in the trial court (18 December, 2001) and the fact that witnesses for both sides may not be available, we will exercise our powers under s. 16 of the SCA to review all the evidence filed before the National Court and make a decision on both liability and quantum.

10. No doubt, this court must review the evidence of the court below to then make a just finding.

11. Before us are 8 lengthy grounds of appeal which we summarize to be that the trial judge had erred on both fact and law when he held;

i. That Joseph Apa Kurie was “voluntarily carrying men who were advancing to Koban plantation”.

ii. That the answers given in the respondent’s cross-examination of the appellants’ witnesses Thomas Rovi, Mathew Pok and Gus Kanspal could not have warranted the court to make a finding that the three witnesses were travelling to Koban.

iii. The appellants’ evidence favoured them because the bulk of their evidence was tendered by consent.

iv. There was no evidence on which the trial judge could rightfully make a finding of “volenti non fit injuria”.

v. That it was unreasonable for the trial judge to conclude the way he did relying on the assumption that because no women and children were injured, that the appellants were in all likelihood, travelling to Koban Plantation to attack the respondents and those therein and that it was reasonable for the respondents to use force to prevent or usurp such an attack.

vi. That the appellants sustained injuries and their properties were destroyed by the respondents because the respondents were pursuing them whilst not undertaking lawful duties;

vii. That the appellants should have been awarded damages because the trial judge had already found that they had suffered injuries.

viii. That generally, the lack of evidence from the respondents was sufficient for the trial judge to make a finding on the balance of probabilities that the respondents were liable for damage to properties and injuries to the appellants.

12. We consider all grounds of appeal together but to be grouped under the subheadings “Liability” and “Quantum”.

13. Mr Manase for the appellants submit that the trial judge’s conclusions were erroneous. The trial judge’s conclusions are based on his review and analysis of evidence before him. He considered the affidavits of plaintiff Thomas Rai, Paul Nombrol, Peter Mek, Thomas Opo, Mek Opiune, Joseph Apa Kuie and Mathew Pok. He found there to be inconsistencies in all appellants evidence and which formed the basis of his findings, on which this appeal is based. This was after all deponents were cross-examined by defendants counsel, Mr Ovia.

14. In this case, although the appellants’ affidavits were all tendered by consent, several deponents were cross-examined. That does not mean their evidence was accepted by the respondents, rather the respondents took issue with their evidence. This situation is in direct contrast with one where the other parties evidence is tendered and not challenged in cross-examination (see Haiveta v. Wingti (No.1) [1994] PNGLR 160, National Court, per Sheehan .J where that court held that evidence not challenged should be taken to have been accepted). But are the answers elicited from the appellants in cross-examination sufficient to warrant the decision now being appealed against?

15. According to the well established principle in Browne v Dunn (1894) 6 R 67, if it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably it is so intrinsically and patently incredible as to be unworthy of examination. And as Lord Hershel said in Browne v Dunn (supra) “it is absolutely essential to the proper conduct of a cause”.

16. Therefore, in order for a party’s claim to be considered credible, the party must in fairness put its case to the other side’s witnesses by way of cross-examination. Was this sufficiently done by counsel for the defendants? We will answer that in our discussion on “Analysis of evidence on liability”.

i. Analysis of evidence on Liability

17. First, the evidence in relation to liability is contained in several affidavits, which we refer to later below. The amended...