James Yali v Ben Neneo, Madang Provincial Police Commander and Hon Peter Charles Yama MP, Governor, Madang (2019) N8124

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 November 2019
• Court: National Court
• Citation: (2019) N8124
• Docket Number: HRA No 262 of 2019
• Year: 2019
• Judgement Number: N8124

Full Title: HRA No 262 of 2019; James Yali v Ben Neneo, Madang Provincial Police Commander and Hon Peter Charles Yama MP, Governor, Madang (2019) N8124

National Court: Cannings J

Judgment Delivered: 23 November 2019

-N8124

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 262 OF 2019

JAMES YALI

Plaintiff

V

BEN NENEO, MADANG PROVINCIAL POLICE COMMANDER

First Defendant

HON PETER CHARLES YAMA MP, GOVERNOR, MADANG

Second Defendant

Madang: Cannings j

2019: 26th September, 8th October, 18th, 23rd November

HUMAN RIGHTS – application for orders re investigation of complaint against election candidate for alleged criminal behaviour – alleged breach of rights to full protection of the law, protection against harsh, oppressive acts etc, freedom of elections, freedom from discrimination – Constitution, Sections 37, 41, 50, 55.

STATE SERVICES – Police Force – whether Police have duty to investigate complaints of alleged criminal conduct – whether Police can be ordered to investigate complaint of alleged criminal conduct or to arrest or charge a person the subject of a complaint.

The plaintiff, a candidate in an election, complained to Police that another candidate (the second defendant, who won the seat) was guilty of offences under the Criminal Code arising from his giving cash to electoral officials during the counting period. The first defendant, the Provincial Police Commander, directed the members of the Police Force responsible for dealing with such matters to not pursue the complaint against the second defendant. However, the two electoral officers who received the cash were charged, convicted and sentenced. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the first defendant in particular in regard to his complaint, commenced proceedings against the defendants, claiming that the first defendant had stopped police from investigating his complaint and by that action, breached his human rights under Sections 37, 41, 50 and 55 of the Constitution to the full protection of the law, protection against harsh or oppressive acts, freedom of elections and freedom from discrimination. He sought declarations to that effect and an order that the first defendant act on his complaint by allowing the police fraud squad to complete an investigation. He also sought compensation. The defendants denied the alleged breach of human rights. A trial was conducted.

Held:

(1) As to contentious facts: the plaintiff proved that the first defendant actively prevented an investigation of his complaint against the second defendant.

(2) Members of the Police Force are under no general, enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate. They have a wide discretion in deciding whether to investigate. However, in exceptional cases (where for example the complaint is of a very serious nature and the evidence in support of the complaint is compelling and easily accessible) an enforceable obligation to investigate the complaint can arise.

(3) This was an exceptional case in view of the action taken against the electoral officers,as the complaint was specific in nature and on the face of it was so serious and sufficiently supported by evidence as to give rise to an enforceable obligation on the part of the Police, including the first defendant, to investigate it and pursue it to its natural conclusion.

(4) The first defendant appeared to have denied the plaintiff the full protection of the law (for purposes of Section 37(1) of the Constitution) and acted harshly, oppressively and in other ways not warranted by the circumstances of the case (for purposes of Section 41(1) of the Constitution).

(5) It was appropriate in these circumstances to require the first defendant or the member of the Police Force presently holding the position of provincial police commander to account to the Court for the inaction that has occurred by notifying the Court as to the steps proposed to be taken in relation to the complaint.

(6) Orders made requiring the person holding office as provincial police commander to file an affidavit and appear in court. The proceedings were adjourned to a specific date.

Cases cited:

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Dorothy Mark v Ben Neneo (2019) N8115

Edward Etepa v Gari Baki (2015) SC1502

Kisi Trokowa v Koive Ipai (2018) N7119

Maku v Maliwolo (2012) SC1171

Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388

APPLICATION

This was an application for declarations and orders relating to the failure of Police to investigate a complaint of criminal conduct, prosecuted as an application for enforcement of human rights.

Counsel:

E Valikvi, for the Plaintiff

T M Ilaisa, for the Defendants

23rd November, 2019

1. CANNINGS J: The plaintiff, James Yali, was in the 2017 general election a candidate for the Madang Provincial seat. On 19 July 2017 he lodged a complaint in writing with the Police that another candidate for the seat, the Honourable Peter Charles Yama MP (the second defendant, who won the seat), was guilty of offences under the Criminal Code arising from his being observed to have given cash to two assistant returning officers, during the counting period. The first defendant, Inspector Ben Neneo, was the Provincial Police Commander and since becoming aware of the complaint has directed in the period from July 2017 to July 2019 that no further action be taken regarding it. As a consequence the Police have not arrested or charged the second defendant.The Police did, however, charge the two assistant returning officers, and they have been convicted and sentenced for offences connected to their receipt of the cash.

2. The plaintiff, being aggrieved by the inaction of the Police and the attitude and actions of the first defendant in particular, commenced human rights proceedings against the defendants, claiming that the first defendant had stopped police from fully investigating his complaint and by that action, breached his human rights under Sections 37, 41, 50 and 55 of the Constitution to the full protection of the law, protection against harsh or oppressive acts etc, freedom of elections and freedom from discrimination.

3. He seeks declarations to that effect and an order that the first defendant (or the person who now holds his position as he is no longer the provincial police commander) act on his complaint by allowing the police fraud squad to complete the investigation. He also seeks compensation. The defendants deny the alleged breach of human rights. A trial has been conducted. The following issues arise:

1. What are the facts?

2. Has the plaintiff proven that the first defendant breached his human rights?

3. What orders should the Court make?

1 WHAT ARE THE FACTS?

4. The plaintiff lodged the complaint on 19July 2017. The complaint led to the arrest and charging of the two assistant returning officers and their conviction. They pleaded guilty to the offence of failure to report a corrupt gratification, under Section 97C(2) of the Criminal Code. They committed the offences in separate incidents on 19 July 2017 in the counting period for the general election.

5. John Tumaing received K50.00 cash from the first defendant, Mr Yama. That was, in the circumstances, properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) of the Criminal Code to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence. Section 97C (duty of person offered gratification) of the Criminal Code states:

(1) A person who is corruptly offered or given a gratification shall report the offer or gift at the earliest opportunity to a commissioned police officer.

(2) A person who, without reasonable excuse, fails to comply with the provisions of Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months, or both.

6. Nixon Kavo received K500.00 cash from Mr Yama. That was in the circumstances properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence.

7. They were each sentenced to nine months imprisonment, fully suspended, on conditions including community work obligations (The State v John Tumaing & Nixon Kavo (2018) N7590).

8. The plaintiff alleges that the first defendant actively prevented any investigation of his complaint, in so far as it was against the second defendant. I find credible evidence to support that allegation.It is clear that the first defendant exercised his discretion as the most senior member of the Police Force in the province to direct that the investigation against the second defendant not be pursued.

2 HAS THE...