Joe Kape Meta, also known as Benedict Wakore v Constable Paul Kumono and Constable Idon Kulunio and the Independent State of Papua New Guinea (2012) N4598

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 29 February 2012
• Citation: (2012) N4598
• Docket Number: MP (HR) NO 171 of 1999
• Year: 2012

Full Title: MP (HR) NO 171 of 1999; Joe Kape Meta, also known as Benedict Wakore v Constable Paul Kumono and Constable Idon Kulunio and the Independent State of Papua New Guinea (2012) N4598

National Court: Cannings J

Judgment Delivered: 29 February 2012

HUMAN RIGHTS—enforcement—protection from inhuman treatment—right to full protection of the law—protection against proscribed acts—right to liberty

The plaintiff claims that he was unlawfully shot in the leg by police officers and as a result his leg was amputated. He commenced proceedings under s57 of the Constitution seeking enforcement of his human rights. A trial was held to determine whether the defendants (the police officers involved in the alleged shooting and the State) were liable for breach of human rights.

Held:

(1) The plaintiff adduced credible evidence. The defendants failed to adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.

(2) A number of the plaintiff’s human rights were breached, viz

• freedom from inhuman treatment (Constitution, s36(1));

• protection of the law (Constitution, s37(1));

• protection from proscribed acts, including harsh or oppressive acts (Constitution, s41(1));

• right to liberty (Constitution, s42(1)).

(3) The plaintiff established a cause of action for breach of human rights against the State, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

Re Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153; Eriare Lanyat v George Wagulo [1997] PNGLR 253; Benedict Petrus v Telikom PNG Ltd (2008) N3373; Re Conditions of Detention at Bialla Police Lock-Up, WNBP (2006) N3022; Joseph Lemuel Raz v Paulias Matane [1985] PNGLR 329; The Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5; Wama Kints v The State (2001) N2113

APPLICATION

This was a trial on liability to determine whether the plaintiff’s application for enforcement of human rights should be upheld.

1. CANNINGS J: Joe Kape Meta is applying for enforcement under s57(1) of the Constitution of his human rights, which he claims were breached by two police officers who shot him, which led to his right leg being amputated. He has brought evidence to support his allegations. The defendants (the two police officers he alleges were involved and the State) have adduced no evidence. There are three issues:

1 Has the plaintiff proven the factual allegations?

2 Has the plaintiff established a cause of action for breach of human rights?

3 If yes, which parties bear liability?

1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

2. I have considered two affidavits by the plaintiff, the first of which gives direct evidence of what happened. Indirect evidence, which to some extent corroborates the plaintiff’s version of events, is contained in affidavits by:

• Dr V Golpak, who deposes that he was a doctor at Nonga Base Hospital when the plaintiff was admitted there on 20 December 1997, having been transferred from Kimbe General Hospital, due to gunshot wounds, and that the plaintiff’s right leg had to be amputated above the knee to prevent life threatening complications including infection, venous thrombosis and toxaemia and that he treated the plaintiff until the date of discharge, 25 February 1998;

• Joseph Ngwa, a member of the Ward Development Council of Gaongo Community, who deposes that prior to his being shot by the police in 1997 the plaintiff was a strong and energetic young man in the community but that since he lost his leg, life has been a struggle; and

• Martha Meta, the plaintiff’s wife, who deposes that in 1997 when the plaintiff was shot by the police she had already been married to him for some time and they had two children, and that prior to the shooting and amputation of his right leg he was a strong and energetic man but since then life has been a struggle for them and that they now have four children.

3. I have also considered the terms of a pro-forma application form for enforcement of human rights, which the plaintiff signed and dated 4 May 1998. It appears to have been filed in the National Court at Kimbe but then for some reason the matter was transferred to the Waigani Registry and a file was opened on 9 April 1999. The application form is the originating process for the purposes of this case. It...