Terry Mapu v Constable John Kariap and Anthony Wagambie Commissioner of Police and The Independent State of Papua New Guinea and Constable Keasu Korua (2019) N7697

• Jurisdiction: Papua New Guinea
• Judge: Tamate, J
• Judgment Date: 14 February 2019
• Court: National Court
• Citation: (2019) N7697
• Docket Number: WS (HR) No. 790 OF 2011
• Year: 2019
• Judgement Number: N7697

Full Title: WS (HR) No. 790 OF 2011; Terry Mapu v Constable John Kariap and Anthony Wagambie Commissioner of Police and The Independent State of Papua New Guinea and Constable Keasu Korua (2019) N7697

National Court: Tamate, J

Judgment Delivered: 14 February 2019

N7697

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) No. 790 OF 2011

TERRY MAPU

Plaintiff

AND

CONSTABLE JOHN KARIAP

First Defendant

AND

ANTHONY WAGAMBIE

COMMISSIONER OF POLICE

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND

CONSTABLE KEASU KORUA

Fourth Defendant

Waigani: Tamate, J

2018: 21st May

2019: 14th February

HUMAN RIGHTS- Enforcement of breach of human rights pursuant to Section 57 and 58 of the Constitution – Whether the rights under Sections 32, 37, 42, 44 and 53 of the Constitution have been breached by Police Officers?

PRACTICE AND PROCEDURE- Trial on liability – Whether State is vicariously liable for tort of negligence committed by Police Officers in the course or scope of their employment pursuant to Section 1(4) of wrongs (Miscellaneous and Provisions) Act.

Facts

Plaintiff instituted writ of summons proceedings against the defendants for enforcement of his human rights pursuant to Section 57 and 58 of the Constitution. He claims that first and fourth defendants breached certain of his rights under Sections 32, 37, 42, 44 and 53 of the Constitution. He alleges the Police Officers concerned acted within the scope of their duties but were negligent in their duties for unlawfully assaulting the victim without any lawful excuse or jurisdiction.

Plaintiff died sometime after filing this proceeding and was substituted by his brother upon an application which this Court granted pursuant to Order 5 Rules 10 and 12 of the National Court Rules.

Held:

(1) Plaintiff has proven by evidence on the balance of probabilities that there was breach of rights of one Barnabas Mapu under Sections 32, 37, 42, 44 and 53 of the Constitution.

(2) State is vicariously liable for the tortuous actions of the first and fourth defendants.

(3) Judgment on liability is entered against the State.

Cases Cited:

Jack v Karani [1992 PNGLR 392

John Pias v Michael Kodi and Ors [2004] N2690

Aire v Togoi [2016] PGNC 235; N6434

Vincent Kerry v The State [2007] N3127

Pinga v Inguba [2012] PGSC13; SC1189

More v The State [1998] PNGLR 290

Philip Nare v The Independent State of Papua New Guinea; SC1584

Lina Kewakali v The State [2011] SC1091

Mali Pyalia & Ors -v- Chief Inspector Leo Kabilo &The State [2003] N2492

State v Kofowei & Ors [1987] PNGLR 5

Dambe v Peri & The State [1991] PGNC31

Lanyat v Wangalo [1996] PGNC 44

Bob Kol v The State [2010] N3912

Counsel:

Ms Sharon Tongamp, for the Plaintiff

Ms Charity Kuson, for the Defendant

JUDGEMENT

14th February, 2019

1. TAMATE, J: This is a trial on liability on a claim for damages by the plaintiff against the defendants. The trial was by affidavit evidence which the parties had filed and relied on. These affidavits were formally tendered in Court during the trial. The plaintiff has filed this proceedings in support of his claim for damages as a result of alleged breaches and violations of his constitutional rights by first and fourth defendants which had resulted in serious grievous bodily injuries sustained by the Plaintiff.

2. Plaintiff claims the defendants were negligent during the course of their employment and within the scope of their duties by unlawfully detaining the plaintiff and assaulting him without any lawful justification.

The Issue for Trial

3. The issue for the trial were:

(i) Whether first and fourth defendants were negligent in the course of their duty when they apprehended the victim and unlawfully assaulted and caused him grievous bodily harm?

(ii) Whether State is vicariously liable for the actions of the first and fourth defendants and their colleagues pursuant to Section 1((4) of Wrongs (Miscellaneous Provisions) Act.

Evidence

4. Plaintiff’s evidence consisted of the following affidavits:

(1) Affidavit of Terry Mapu sworn and filed on 12 April 2017.

(2) Affidavit of Margaret Barnabas sworn and filed on 12 April 2017.

(3) Affidavit of Daniel Kera sworn and filed on 12 April 2017.

5. In brief the evidence in support of the plaintiff’s claim gives an account of the apprehension of the late Barnabas Mapu (BM) while he was at Badili bus stop area with his family on the afternoon of 03rd September, 2009. He was pulled by the collar of his shirt and forced onto the vehicle a hired white land cruiser bearing the registration BCN 517 with three (3) other Policemen. They were all in their police uniforms and armed.

6. Deceased was picked up and driven in this vehicle to Pari road where he was assaulted very badly by the fourth defendant while the others watched and allowed the beatings to continue.

7. A baseball bat was used in assaulting the victim (Barnabas Mapu) with which resulted in victim sustaining a broken hand, fracture of the bone to his left hand and ankle. He also sustained severe swelling to his face, legs and others parts of this body. A chain was also tied around his neck causing pain and bruises to his neck.

8. Victim was in great pain and was ordered to run. He managed to stagger to a house near the side of the road and fell down. He was assisted by settlers who witnessed the beatings and gave him water and assisted him in a vehicle to Kaugere Clinic and later to Port Moresby General Hospital.

9. Prior to going to the hospital victim and the cab driver went and picked up victim’s wife and child at Badili bus stop and went to Kaugere clinic and then to Port Moresby General Hospital. (Affidavit of Margaret Barnabas).

10. Terry Mapu: He substituted his deceased brother in this cause of action by his late brother whose rights were breached. He came to Port Moresby upon hearing of his brother’s injuries and assisted him with his medical treatment and reviews by bringing him to the hospital. He also conducted enquiries about the incident victim was involved and tried to collect information about the police officers who were involved in the unlawful beating of the victim (Barnabas Mapu).

11. Daniel Kera: He is the person who assisted victim’s family with food and money and transported victim to and from the hospital for his reviews and medication. He was a very close friend of victim prior to his death. He also assisted the plaintiff to gather evidence for purposes of commencing civil proceedings against the defendants for damages and compensation for the pain and suffering victim went through.

12. Upon their enquiries Police provided a letter confirming that the fourth defendant was one of the Police Officers who assaulted and injured the victim (Barnabas Mapu). He was arrested, charged and prosecuted for grievous bodily harm of Barnabas Mapu where he was sentenced to three (3) years in hard labour. As a result of this confirmation an application for joinder was made before this Human Rights Court and fourth defendant was included as a party to this proceeding.

Evidence by Defendants

13. Defendants have relied on the affidavit of one Florian Luvi filed on 12 August 2018. His evidence basically talks about the powers of the Police (RPNGC) under Section 197 of the Constitution and directives and authorization for Police Officers to operate on during the course of their duties and functions by virtue of the Constitution, Police Act, Arrest Act, The Royal Papua New Guinea Standing Orders, Police Circulars, and other laws or legislations of Papua New Guinea.

14. He further emphasised that every Police Officer is required to perform his or her duties according to the laws of this country and within the scope.

15. In 1992 and 1994 the then Police Commissioner Henry Tokam issued various circulars: No. 34 of 1992 – Wilful destruction of property by Police; and No. 16 of 1994 – Police Misbehaviour as a result of complaints by public concerning unlawful actions of Police Officers.

16. The defendant (State) confirms that first and fourth defendants were police officers who unlawfully assaulted plaintiff’s late brother Barnabas Mapu. The defendants had acted outside the scope of their duties therefore State should not be liable but the officers themselves should be liable for their own actions. In support of its submission and defence State has relied on the cases of Vincent Kerry v The State...