Vincent Kerry v The Independent State of Papua New Guinea (2007) N3127

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 January 2007
• Court: National Court
• Citation: (2007) N3127
• Docket Number: WS NO 1644 OF 2001
• Year: 2007
• Judgement Number: N3127

Full Title: WS NO 1644 OF 2001; Vincent Kerry v The Independent State of Papua New Guinea (2007) N3127

National Court: Cannings J

Judgment Delivered: 26 January 2007

N3127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1644 OF 2001

VINCENT KERRY

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Kimbe: Cannings J

2005: 14, 15 October

2007: 26 January

JUDGMENT

POLICE – actions for wrongs – liability of the State – police as servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – whether actions of police officers committed within the scope of police functions and responsibilities – whether tortious acts of police beyond scope of police authority – vicarious liability.

EVIDENCE – conflicting evidence – alleged tortfeasors’ denial of involvement in alleged incident – identification evidence of plaintiff in civil case – countervailing alibi-style evidence of alleged tortfeasors – circumstantial evidence – inferences to be drawn – standard of proof in civil trial.

The plaintiff says he was assaulted and shot three times by police officers, who suspected him of involvement in the murder of another police officer. He claims that after they shot him the police dumped him at the local hospital, leaving him to die. He was given medical treatment and his right leg was amputated, just above the knee. He brought proceedings against the State, which he claimed was vicariously liable for the conduct of the police officers who assaulted and shot him. The trial concerned the issue of liability.

Held:

(1) In a civil case corroboration of a plaintiff’s evidence as to how he was injured is desirable but not necessary, provided that the plaintiff satisfies the court on the balance of probabilities that his version of events is truthful.

(2) The effect of gaps in the plaintiff’s evidence will vary according to the strength of countervailing evidence presented by the defendant.

(3) A statement of claim should state clearly the cause of action relied on and plead the elements of the cause of action. However, the court should be reluctant to dismiss a claim by an individual citizen against the State due to deficient pleadings. Provided that the general nature of the claim has been pleaded and the State is not unduly prejudiced, the court should proceed to deal with the claim.

(4) In a claim against the State it is not necessary that the servant or agent of the State who is alleged to have committed the tort or other civil wrong (the tortfeasor) to be named as a party in the proceedings; it being more important to identify that person in the pleadings or the evidence.

(5) The State is liable for the tortious acts or omissions of police officers committed within the scope of their police functions.

(6) In the present case, though there were gaps in the plaintiff’s evidence, the evidence on behalf of the State was not strong, the medical evidence was consistent with the plaintiff’s version of events and the court was not presented with any viable alternative version of events.

(7) It was reasonable to be inferred that the police picked him up as he was a suspect in the death of another police officer, they interrogated him and shot him during the process of interrogation.

(8) There were deficiencies in the pleadings but the interests of justice required that the case be allowed to proceed.

(9) A particular police officer committed the tort of negligence and injured the plaintiff in the course of performing police functions. The State was therefore vicariously liable to the plaintiff.

Cases cited;

Re Fisherman’s Island [1979] PNGLR 202

The State v Jimmy Bellam (1979) N192

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 (L)

Wong v Lam (1980) N268

In re James Eki Mopio [1981] PNGLR 416

David Kofowei v Augustine Siviri and Others [1983] PNGLR 449

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

Acting Public Prosecutor v Richard Saronduo [1988-89] PNGLR 17

Junior Steven Gawi and Toliman Jiki Viru v The State [1990] PNGLR 88

Edward Ramu Diro v Ombudsman Commission [1991] PNGLR 153

Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96

Eriare Lanyat and Another v The State [1997] PNGLR 253]

The State v Ambros Soru (1997) N1622

Dalin More v The State & Others (1998) N1736

Justin Wayne Tkatchenko v Dessy Magaru (1999) N1956

Robert Lak v Dessy Magaru [1999] PNGLR 572

Wama Kints v The State (2001) N2113

Paulus Kei v Tony Hasu and The State (2004) N2743

Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779

The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805

Linda Stanley v The State (2005) N2865

William Pattits v The State WS No 27 of 1999, 29.09.05

Luke Deukari v Danny Kuglam and The State WS No 615 of 1994, 29.09.06

Otto Benal Magiten v Rural Development Bank Ltd WS No 938 of 1999, 20.10.06

Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06

Counsel

B Takin, for the plaintiff

N Tame and R Inua, for the defendants

26 January, 2007

1. CANNINGS J: Introduction: This case is about the alleged shooting of a person by police officers. The plaintiff says the police shot him in the leg and he had to have his leg amputated. The defendant is the police officers’ employer, the State.

2. The defendant denies that police officers shot the plaintiff. It is not disputed that his leg was amputated but everything else about how he was injured is denied. This judgment addresses the issue of liability.

PARTIES

3. When the writ was filed, and during the trial, there were two other defendants: Tom Wapipi, Provincial Police Commander, West New Britain, and John Wakon, Commissioner of Police. Mr Wapipi died and Mr Wakon ceased to be Commissioner of Police after the writ was filed. I have determined under Order 5, Rule 9 of the National Court Rules that they cease to be parties. As well as being inappropriate to have as defendants a deceased person and a person no longer holding the office referred to on the writ, there was no evidence that they or their legal representatives were served with the writ or any other notice of these proceedings.

4. The trial will proceed with the State as the sole defendant.

BACKGROUND

5. In July 2001 a police officer, Senior Sergeant Henry Wartovo, was shot dead in Kimbe, West New Britain Province, while on duty. A police operation was mounted during the days after his death aimed at apprehending who was responsible. During that period the plaintiff, Vincent Kerry, was shot, taken to hospital and had his leg amputated. The plaintiff says the police shot him as they suspected he was involved in the murder of Senior Sergeant Wartovo. The police say that they had nothing to do with the shooting of the plaintiff.

6. The police later charged the plaintiff and a number of other persons with the wilful murder of Senior Sergeant Wartovo.

7. On 13 November 2001, B T Gobu & Associates Lawyers of Port Moresby filed a writ of summons on behalf of the plaintiff. The statement of claim endorsed on the writ claims that on 7 July 2001, the Kimbe police picked up the plaintiff and another person, Kenneth Miamba, at Dagi Bridge near Kimbe, tied their hands together, ordered them to run to a police vehicle, put them in the vehicle and drove to Aling, near Kimbe. The police assaulted the plaintiff, hitting him on his back with a stick, shooting off his left thumb and shooting him in the right leg. The police took the plaintiff to Kimbe General Hospital and left him unattended before he was operated on by a surgeon who had no choice but to amputate his leg, causing him permanent disability. It is claimed that the police actions were unlawful as they acted without reasonable justification in a democratic society having a proper respect for the rights and dignity of mankind. The plaintiff seeks damages.

8. In February 2005, the plaintiff was acquitted in the National Court of the wilful murder of Senior Sergeant Wartovo (The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805, Cannings J).

GLOSSARY

9. The following glossary lists the names of individuals and places and defines medical terms referred to in the evidence.

Individuals

B T Gobu & Associates – the plaintiff’s lawyers

Betty Rangit – wife of First Const Felix Rangit

Catherine Ombul – wife of Sgt Thomas Ombul

Dr Sammy Thomas – the doctor who operated on the plaintiff

Felix Rangit – First Constable; defence witness No 1; the police officer who allegedly shot the plaintiff

Henry Wartovo – Chief Sergeant; now deceased; murdered on 4 July 2001 in Kimbe

Hilary Sirinjui – Senior Constable attached to Rabaul Police; defence witness No 3

John Wakon – the Commissioner of Police at the time of filing of the writ

Kenneth Miambinaka – aka Kenneth Miamba – the person the police allegedly picked up and assaulted, together with the plaintiff

Kito Aso – a co-accused of the plaintiff in the criminal trial concerning the death of Chief Sergeant Wartovo

Konge Orim – First Constable attached to Rabaul Police

Mr B Takin – counsel for the plaintiff

Mr N Tame – counsel for the defendant

Mr R Inua – junior counsel for the defendant

Paul Paraka Lawyers – the defendant’s lawyers

Steven Kaumu – a co-accused of the plaintiff in the criminal trial concerning the death of Chief Sergeant Wartovo

Thomas Ombul – Sergeant; defence witness No 2; one of the police officers allegedly present...