In the matter of an application for enforcement of human rights by Reuben Micah (2013) N5427

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 November 2013
• Citation: (2013) N5427
• Docket Number: HRA NO 15 & HRC NO 13 OF 2012
• Court: National Court
• Year: 2013
• Judgement Number: N5427

Full Title: HRA NO 15 & HRC NO 13 OF 2012; In the matter of an application for enforcement of human rights by Reuben Micah (2013) N5427

National Court: Cannings J

Judgment Delivered: 22 November 2013

N5427

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 15 & HRC NO 13 OF 2012

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BY REUBEN MICAH

Madang: Cannings J

2013: 14, 15 August, 24 October, 22 November

HUMAN RIGHTS – application for enforcement – Constitution, Section 36, freedom from inhuman treatment – Constitution, Section 37, right to full protection of the law – detainee in correctional institution detained in separate confinement – whether lawful authority for separate confinement – whether conditions of detention breached human rights standards of the Constitution.

HUMAN RIGHTS – application for enforcement – Constitution, Section 53, unjust deprivation of property – police raid of plaintiff’s house and removal of personal items.

The plaintiff claimed that he was, while on remand for a criminal offence, unlawfully detained for 15 days in a detention cell within a correctional institution in a confined and overcrowded space in conditions that were inhumane. He also claimed that while he was in custody, the Police went to his house without a search warrant and removed his sound system and other property. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights, in particular his rights to: full protection of the law under Section 37(1) of the Constitution, freedom from inhuman treatment under Section 36(1) of the Constitution, be treated with humanity and respect under Section 37(17) of the Constitution, and protection from unjust deprivation of property under Section 53 of the Constitution. He sought enforcement of his rights by way of an order for compensation against the State.

Held:

(1) The evidence of the plaintiff was credible and there was no contrary evidence presented by the State. Therefore the court made findings of fact in accordance with the plaintiff’s allegations.

(2) The detention of the plaintiff for 15 days in separate confinement in conditions that were inhuman was unlawful and infringed his human rights, in particular, the rights to the full protection of the law (Constitution, s 37(1)), freedom from inhuman treatment (Constitution, s 36(1) and to be treated with humanity and respect (Constitution, s 37(17)).

(3) The police raid of the plaintiff’s house and the seizure of property were unlawful and infringed his right to protection against unjust deprivation of property (Constitution, s 53).

(4) As the plaintiff established that his human rights had been infringed, an appropriate form of relief was an order under Section 58(2) of the Constitution for damages, comprising two components: reasonable damages and exemplary damages.

(5) The plaintiff was awarded:

(a) in respect of the period of separate confinement: reasonable damages of K200.00 per day + exemplary damages of K100.00 per day = K4,500.00; and

(b) in respect of the unjust deprivation of property: reasonable damages of K9,500.00 + exemplary damages of K2,000.00 = K11,500.00

being total damages of K16,000.00.

(6) Interest was awarded on the total amount of damages calculated at the rate of 8% per annum from the date on which the last human rights breach occurred, 21 August 2008, to the date of judgment, 22 November 2013, a period of 5.25 years = K6,720.00, making the total judgment sum K22,720.00.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Application by Benetius Gehasa (2005) N2817

Bobby Selan v The State (2012) N4938

Danny Pirino v The State (2006) N3111

Hai v Walo (2012) N4564

Kints v The State (2001) N2113

Kombea v Peke [1994] PNGLR 572

Lanyat v The State [1997] PNGLR 253

Suzuke v The State, WS No 951 of 1994, 21.06.96, unreported

The State v David Wari Kofowei [1987] PNGLR 5

The State v William Nanua Kapris & 13 Others (2011) N4232

The State v William Nanua Kapris and 11 Others (2011) N4305

Topo v Kaman (2009) N3773

Yawi v Nenga (2002) N2209

APPLICATION

This was an application by a detainee for enforcement of human rights.

Counsel

A Meten, for the plaintiff

S Phannaphen, for the defendant

22nd November, 2013

1. CANNINGS J: The plaintiff, Reuben Micah, applies for enforcement of his human rights which he claims were breached on two occasions in August 2008 when he was a suspect in the police investigation of the BSP Madang robbery that had taken place the previous month. First, he claims that the Correctional Service detained him in a separate confinement cell, at Buimo Jail, in conditions that were inhumane. Secondly, he claims that members of the Police Force raided his house while he was in custody and confiscated personal property worth K9,500.00. He seeks damages. The defendant is the employer of the persons who allegedly breached the plaintiff’s human rights, the State.

2. A trial has been conducted to determine whether the State is liable and if it is what relief should be granted to the plaintiff. The State concedes liability in respect of the conditions of detention but argues that the award of damages should be less than the amount claimed by the plaintiff. The State does not contest the evidence regarding the Police raid and confiscation of property but contests liability on the ground that what the police did was outside the scope of their employment.

3. The plaintiff commenced two separate proceedings. HRA No 15 of 2012, regarding the confiscated sound equipment, was filed on 22 February 2012. HRC No 13 of 2012, regarding the conditions of detention, was filed on 16 April 2012. The trial of the two proceedings, which were heard together, began on 14 August 2013. The proceedings were consolidated by order of the Court on 15 August 2013. Submissions were received on 24 October 2013.

ALLEGATIONS

Conditions of detention

4. The plaintiff gave evidence that upon his arrival at Buimo Jail on 6 August 2008 the reception clerk in consultation with the two police officers who had escorted him from the District Court to the Jail decided that he should be detained in the “dark cell”. This turned out to be a separate confinement cell, a small and dark cell with little light or ventilation, already containing 16 detainees.

5. It was divided into four cubicles (two detainees in each cubicle, which measured 2-metres x 2-metres) and a corridor (measuring 4-metres x 2-metres, in which was crammed eight detainees). The ceiling throughout the cell was 2 metres high. He became the 17th detainee and remained in the corridor. The smell of body odour and human waste was overpowering. He could not sleep properly because of the crammed conditions. There were many mosquitoes at night and no mosquito nets. The toilets were used as shower spaces. There was no wash basin. He contracted diarrhoea and malaria. He was allowed only 10 minutes “sunlight” every three days. He heard that he was detained in the dark cell as he was regarded as ‘high risk’. He was detained there until 21 August 2008 when he was granted bail.

Confiscated property

6. There was evidence from the plaintiff’s wife and two youths who were living in the plaintiff’s house at Four Mile, Lae, that on 14 August 2008, while the plaintiff was in custody, members of the Police Force based in Lae, including Manu Pulei, Chris Miri and Noel Tumpi, raided the house and removed sound equipment and related items belonging to the plaintiff. The police had no search warrant and no court order authorising their removal of the property. The plaintiff describes the property that was seized and its value in the following terms:

1 x 17-inch flat computer screen K500.00

1 x HP overhead projector K3,900.00

1 x 650-watt computer UPS K200.00

4 x dynamic microphone (K150.00 each) K600.00

1 x horn speakers K700.00

4 x 6-metre microphone cables K100.00

1 x 6-channel recording machine K2,500.00

1 x recording microphone K1,000.00

Total value K9,500.00

FINDINGS OF FACT

Conditions of detention

7. Mr Phannaphen for the State did not contest the evidence regarding the conditions of detention. He conceded that the conditions were as described by the plaintiff. There was no evidence adduced by the State. I find that there was no written separation order made under Section 108(1) of the Correctional Service Act authorising the plaintiff’s detention in the dark cell. I take judicial notice of the fact that the plaintiff gave evidence of a similar nature in the criminal trial relating to the BSP robbery, which resulted in him being convicted of armed robbery and related offences and sentenced to 12 years imprisonment, which he is now serving (The State v William Nanua Kapris & 13 Others (2011) N4232, The State v William Nanua Kapris and 11 Others (2011) N4305). The plaintiff’s evidence is credible and I find that he has, according to the civil standard of...