Grace Lome by her next friend Jack Lome v Allan Kundi, Western Highlands Provincial Police Commander and The Independent State of Papua New Guinea (2009) N3791

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 22 September 2009
• Court: National Court
• Citation: (2009) N3791
• Docket Number: WS NO 903 OF 2003
• Year: 2009
• Judgement Number: N3791

Full Title: WS NO 903 OF 2003; Grace Lome by her next friend Jack Lome v Allan Kundi, Western Highlands Provincial Police Commander and The Independent State of Papua New Guinea (2009) N3791

National Court: Makail J

Judgment Delivered: 22nd September 2009

N3791

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 903 OF 2003

BETWEEN

GRACE LOME by her next friend JACK LOME

Plaintiff

AND

ALLAN KUNDI, WESTERN HIGHLANDS PROVINCIAL POLICE COMMANDER

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail J,

2009: 17th June & 22nd September

DAMAGES - Negligence - Default judgment - Assessment of damages - Failure by police to arrest, charge and prosecute perpetrators - Rape of female victim - Minor - Independence and prosecution powers of police - Whether damages established - Remoteness of damages - Appropriate damages - Pain and suffering - Psychological distress or nervous shock - Awards - Constitution - Sections 196, 197 & 198.

Cases cited:

Helen Bia Sam -v- Paul Haurom & The State [1998] PNGLR 346; (1998) N1771

Samuel Era -v- Susan Paru [1994] PNGLR 593; (1994) N1237

The State -v- Kenneth Peter (2002) N2336

The State -v- Kunija Osake (2003) N2380

The State -v- Kaudik [1987] PNGLR 201

The State -v- Penias [1994] PNGLR 48

James Mora Meaoa -v- The State [1996] PNGLR 280

Mewari Patrick Paobi -v- PNG Electricity Commission & Anor (2002) N2511

Susan Indupomaina -v- Talair [1981] PNGLR 559

Make Kawe -v- Thomas Kundip [1986] PNGLR 279

Kokonas Kandapak -v- The State [1980] PNGLR 573

Margaret Darvil -v- MVIT [1980] PNGLR 548; (1980) N259

Yapi Koka -v- MVIT [1995] PNGLR 249

Melinda Baduk -v- PNG [1993] PNGLR 250

Casswell -v- National Parks Board [1987] PNGLR 458

Lewis -v- The State [1980] PNGLR 219

Colbert -v- PNG [1988-89] PNGLR 590

George Kala -v- Joseph Kupo & The State (2009) N3677

Toglai Apa & Bomai Siune & Ors -v- The Police & The State [1995] PNGLR 43

Alex Latham & Kathleen Latham -v- Henry Peni (1990) N1463

Abel Tomba -v- The State (1997) SC 518

James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486

Counsel:

Mr D Gonol, for Plaintiff

No appearances for Defendants

JUDGMENT

22nd September, 2009

1. MAKAIL J: This is an ex-parte trial on assessment of damages, default judgment having been entered against the Defendants on 2nd March 2004. The cause of action itself is quite interesting and I suppose unique in a way because I do not think this Court has decided a case of this nature before. It questions the authority and independence of police prosecution of alleged suspects of criminal offences. That is, when to arrest and charge a person accused of committing a criminal offence and when not to do so.

2. In this case, the Plaintiff, a minor, sues through her father for damages arising from negligence actions by members of the Police Force, in particular, the investigating officer for failing to arrest and charge two suspects for raping her and subsequently prosecuting them. She attacks the police for not diligently and professionally investigating the rape incident and bringing the perpetrators to justice. As the police had not diligently and professionally discharged the duty bestowed on them by the Constitution (sections 196, 197 and 198) and the Arrest Act 1977, the perpetrators were allowed to walk free and she was made to suffer as a victim of rape. Section 197(2) of the Constitution is relevant and reads:

“197. Functions of the Police Force.

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament -

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.” (Emphasis is added).

3. Having said that, it is also important to mention that, the Defendants had not filed a defence. As a result, default judgment was entered against them. This gives the Court no opportunity to determine whether the Plaintiff is entitled to question or challenge the authority of the police to arrest, charge and prosecute alleged offenders. Hence, what has been briefly discussed above becomes a mere academic exercise and as a matter of principle. It follows that, all that is required under the circumstances of this case now is for the Court to assess the damages that flow from the default judgment. Therefore, the primary issue is whether the Plaintiff has established her damages on the balance of probabilities.

4. The Plaintiff, her father and relatives who gave evidence to establish damages in the various Affidavits claimed that the Defendants failed to arrest and charge two persons allegedly involved in the commission of the offence when there was overwhelming evidence to support the charge against these two persons. The evidence are contained in the Affidavits of Jack Lome sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit “P1”), Grace Lome sworn on 30th July 2004 and filed on 10th August 2004 (Exhibit “P2”), Korosen Lome sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit “P3”), and Jennifer Nakandoe sworn on 26th July 2004 and filed on 10th August 2004 (Exhibit “P4”).

5. From the uncontested evidence of the Plaintiff and her witnesses, I make the following finding of facts hereunder; at the material time, the Plaintiff, was a minor and was abducted and raped by two persons, whose identity were known at the time of the alleged rape on the evening of 15th February 2001.

6. The two suspects were identified by the Plaintiff and her relatives. They were Kepo Jimmy and Jacob Pil. On 16th February 2001, the father and the relatives of the Plaintiff made a citizen’s arrest on Kepo. They tied his hands and carried him to Mt Hagen Police Station where he was detained. The Plaintiff and witnesses gave their statements of how the rape incident took place to the police investigating officer to enable the police to arrest and charge him and thereafter, prosecute him. Instead, the police investigating officer released Kepo from custody without the Plaintiff, her father and relatives’ knowledge. When the Plaintiff’s father found out of Kepo’s release, he returned to Mt Hagen Police Station and re-lodged his complaint against Kepo so that police could have him re-arrested. Nothing happened.

7. A year and half later (13th October 2002), the other suspect, Jacob Pil was seen in Mt Hagen town and the Plaintiff’s father and relatives also made a citizen’s arrest on him. He was taken to Mt Hagen Police Station where he was detained. The Plaintiff and witnesses gave their statements of the rape incident to the police investigating officer to enable the police to arrest and charge him and thereafter, prosecute him. Instead, again, the police investigating officer released Jacob from custody without the Plaintiff, her father and relatives’ knowledge. When the Plaintiff’s father found out of Jacob’s release, he also returned to Mt Hagen Police Station and re-lodged his complaint against Jacob so that police could have him re-arrested. Again, nothing happened.

8. The Plaintiff’s father spoke to the First Defendant who was then the Provincial Police Commander of the Western Highlands Province so that he could direct his policemen to re-arrest Kepo and Jacob. Again, nothing happened. The Plaintiff’s father wrote to the then Commissioner of Police, Mr Sam Inguba seeking his assistance but again, nothing happened. All that the Plaintiff’s father wanted from the police is to have these two persons arrested, charged and prosecuted so that justice is done to the Plaintiff, him and family members.

9. The Plaintiff is one of seven children in the family. She was attending Mt Hagen primary school and was doing Grade 6 when she encountered the misfortune. After the rape incident, the Plaintiff showed signs of emotional and psychological stress. She was once a bright child but dropped in her academic grades. She is rest-less, and aggressive towards her parents and life generally. She did not make it to High School. Her parents have spent money on school fees to educate her and had expected her to make it to high school and further on, and eventually obtained a decent job, but all their efforts and expectations are now a vanity.

10. In terms of damages, the Plaintiff claims the following:

1. General damages;

2. Aggravated damages;

3. Special damages;

4. Exemplary damages;

5. Legal costs; and

6. 8% interest.

11. It ought to be restated here that, it is settle law in this jurisdiction that, where default judgment is entered against the Defendants, the Plaintiff still bears the onus of proving the damages. Bearing that in mind, I shall consider each head of damages hereunder:

General damages

12. This case, in my opinion, falls under the category of psychological distress or more appropriately, nervous shock, apart from the general pain and suffering from the physical assault by the two rapists. Thus, I shall consider an award of general damages in two parts. First, for physical pain and suffering, and secondly, for psychological distress or nervous shock....