Roger Bai Nimbituo v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 04 May 2018
• Court: National Court
• Judgement Number: N7235

Full : HRA No 182 of 2015; Roger Bai Nimbituo and Jeffery Wosi and Ronald Wafia and Jacob Wapai and Gilbert Guari v The Independent State of Papua New Guinea (2018) N7235

National Court: Cannings J

Judgment Delivered: 4 May 2018

N7235

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 182 OF 2015

BETWEEN:

ROGER BAI NIMBITUO

First Applicant

JEFFERY WOSI

Second Applicant

RONALD WAFIA

Third Applicant

JACOB WAPAI

Fourth Applicant

GILBERT GUARI

Fifth Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani : Cannings J

2016: 13 October,

2017: 20 January,

2018: 2, 4 May

DAMAGES – assessment of damages for breaches of human rights – rights of accused persons to full protection of the law and to be tried within a reasonable time; to be protected against harsh, oppressive acts; to be not unreasonably detained – liability established after trial – five accused detained for long periods awaiting trial – delay in conduct of trial – delay in delivery of verdict.

The five applicants were charged with and faced trial on various indictable offences. There were long delays in commencement and conduct of their trial and delivery of verdict while they remained in custody. They succeeded at an earlier trial in obtaining an order for their conditional release from custody and an order for damages, as the State was found liable for infringements of three human rights: the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3)), the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)) and the right not to be unreasonably detained (Constitution, s 42(5)). The matter returned for a trial on assessment of damages. The applicants claimed total damages of almost K600,000.00. The State argued that they should be awarded nothing.

Held:

(1) In assessing damages for breaches of human rights of persons charged with criminal offences involving unreasonable delay in commencement, duration and/or completion of a trial, it is appropriate to make an assessment of damages in respect of each discrete breach and to assess damages on a yearly basis.

(2) Here there were three discrete breaches of human rights identified: the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3)), the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)) and the right not to be unreasonably detained (Constitution, s 42(5)).

(3) Having regard to the circumstances of Papua New Guinea, a reasonable time within which criminal proceedings would in most cases be expected to be completed is three years after the date of arrest, which should also be the benchmark against which to measure any period of unreasonable detention.

(4) Here, it was convenient to identify the third anniversary of each applicant’s date of arrest and to calculate the period in years from that anniversary to (i) the date of assessment of damages (as no verdict had been returned at the date of assessment) in order to assess damages for breach of the right to full protection of the law (Constitution, ss 37(1), (3)) and the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)), and (ii) the date of their release from custody in order to assess damages for breach of the right not to be unreasonably detained (Constitution, s 42(5)).

(5) It was appropriate to assess damages for each breach of human rights at the rate of K1,000.00 per year for the duration of each breach.

(6) For example, in the case of the first applicant, the period of denial of the full protection of the law (ss 37(1) & (3)) and of the breach of his right not to be subject to harsh or oppressive acts (s 41(1)) was 5.16 years, and he was awarded K5,160.00 for breach of each of those rights. The period of unreasonable detention was 2.99 years and he was awarded K2,990.00 for breach of that right. He was also awarded exemplary damages in the same sum as for breach of his ss 37(1) & (3) and 41(1) rights. His total award of damages was K5,160.00 (ss 37(1) & (3)) + K5,160.00 (s 41(1)) + K2,990.00 (s 42(5)) + K5,160.00 (exemplary damages) = K18,470.00.

(7) Other awards were: second applicant = K21,620.00; third applicant = K20,620.00; fourth applicant = K21,620.00; fifth applicant = 0 (no evidence by or on behalf of this applicant).

(8) The total amount of damages awarded to all applicants was K81,870.00. No interest was awarded and the parties were ordered to pay their own costs.

Cases cited

Papua New Guinea Cases

The following cases are cited in the judgment:

Bomai Wati v David Gavera (2013) N5363

Nimbituo v The State (2015) N6156

Overseas case:

Barrett Richard Jordan v The Queen [2016] 1 SCR 631

This was an assessment of damages for breaches of human rights.

Counsel

E Wurr, for the Applicants

G Akia & A Kajoka, for the Respondent

ASSESSMENT OF DAMAGES

04th May 2018

1. CANNINGS J: This is an assessment of damages for breaches of human rights. The five applicants were arrested and charged with serious criminal offences on various dates in 2009 and 2010. They were remanded in custody. Their trial in the National Court commenced in August 2012, occupying six sitting days. It was not completed until November 2014, when submissions on verdict were made. However no verdict had been returned by November 2015 when I heard their application for enforcement of human rights. I granted the application and ordered their release from custody (on conditions, similar to those imposed on persons granted bail). They were released on 26 February 2016 after spending between five to six years in custody. I also ordered that the State was liable in damages to each applicant for infringement of three human rights:

· the full protection of the law, in particular the right to a hearing within a reasonable time (Constitution, ss 37(1), (3));

· the right not to be subject to harsh or oppressive acts (Constitution, s 41(1)); and

· the right not to be unreasonably detained (Constitution, s 42(5)) (see Nimbituo v The State (2015) N6156).

2. As of two days ago, the verdicts have still not been returned, more than eight years after their arrest.

3. At the trial on assessment of damages the applicants claimed total damages of almost K600,000.00. The State argued that they should be awarded nothing.

4. This case is without precedent in PNG. It is the first time that the National Court has been required to assess damages for accused persons whose rights have been infringed, who are still awaiting verdict. Their human rights case has continued concurrently with their criminal trial. Nothing that has happened in their human rights case has any present bearing on the outcome of the criminal trial. And nothing that happens in the criminal trial affects their human rights case. They might all be found guilty (of impersonation of police, unlawful deprivation of liberty, kidnapping for ransom and/or rape). As Mr Akia, counsel for the State, pointed out, it will be an odd-looking result for the Court to award damages to persons convicted of serious criminal offences. But this is an odd case. I have already determined after a contested trial that their human rights have been breached. They are entitled to damages irrespective of the outcome of their criminal trial.

SUBMISSIONS

For the applicants

5. Ms Wurr for the applicants submitted that the same approach to assessment of damages should be taken as in Bomai Wati v David Gavera (2013) N5363, where a man charged with wilful murder was detained for more than seven years without trial. He was eventually released by order of the National Court when the State presented a nolle prosequi. He succeeded in obtaining default judgment against the State for breach of human rights: the right to full protection of the law, in particular to a fair hearing within a reasonable time (Constitution, ss 37(1), (3)) and the right to liberty (Constitution, s 42(5)). Following a trial on assessment of damages I awarded a global sum as general damages for the various human rights breaches at the rate of K50.00 per day for each of the 2,786 days in which one or more breaches occurred: 2,786 days x K50.00 per day = K139,300.00. In addition I awarded the plaintiff exemplary damages at the rate of K10,000.00 per year of unlawful detention: K10,000.00 per year x 7.66 years = K76,600.00. Ms Wurr submitted that I should in the present case assess general damages at the rate of K50.00 per day of unreasonable detention and assess exemplary damages at the rate of K7,000.00 per year.

6. For example, for the first applicant, Roger Bai Nimbituo, Ms Wurr contends that he has been unreasonably detained for 1,455 days and therefore should be awarded general damages of 1,455 days X K50.00 = K72,750.00. She contends that the first applicant should be awarded exemplary damages of K7,000.00 x 3.99 years = K27,930.00. She contends that the first applicant should be awarded a total of K100,680.00. Ms Wurr submits that the second to fifth applicants, whose dates of arrest were prior to the date of...