Can You Sue for a Wrongful Arrest in PNG?

An unlawful arrest is not something you simply have to absorb. PNG provides two routes to a remedy: a statutory claim under the Arrest Act (Chapter 339), and enforcement of your constitutional rights. They can be pursued together.

The statutory claim: section 26

Section 26(1) is broad. A person who:

• exercises a power to make an arrest to which the Act applies in breach of the Act; or
• exercises any other power conferred by the Act in breach of it; or
• performs a duty imposed by the Act in breach of it; or
• fails or refuses to perform a duty imposed by the Act,

may be liable in damages to the person aggrieved by that breach.

Notice how much that covers. It is not limited to the arrest itself. Failing to tell you the reason for your arrest, to let you contact a lawyer or family in private, to enter your name in the register of arrests, to consider bail as soon as practicable, or to bring you before a court without delay — each is a breach of a duty imposed by the Act, and each can found a claim.

The constitutional route

Section 26(4) makes clear that the statutory remedy is in addition to and not in derogation of the Constitution or any other law dealing with the enforcement of a constitutional right.

That matters, because the constitutional route is powerful. Section 42 protects liberty of the person; section 37 requires that people in custody be treated with humanity and respect for their inherent dignity; section 36 prohibits cruel or inhuman treatment absolutely.

Enforcement runs through section 57, under which the Supreme Court or National Court may protect or enforce a Basic Right — and may do so on its own initiative, without a formal application drafted by a lawyer. Detainees can and do write directly to the National Court. Section 58 then provides for compensation against the person responsible and, where the infringement was by a governmental body, against the State. See Your Basic Rights under the Constitution.

The Act shifts the burden of proof to them

Section 28 makes these claims realistic, and it is not widely known. Where, in a civil proceeding, it appears that one party had another in custody after an arrest:

• if that party was not a policeman, he bears the onus of proving he handed the person to a policeman or took them to a police station as soon as was practicable;
• if that party was a policeman, he bears the onus of proving he took the person without delay to a police station or before a court;
• and where a party was the officer-in-charge of a station at which another was held, he bears the onus of proving he took that person, or caused them to be taken, before a court without delay.

Ordinarily a plaintiff proves their case. Under section 28 the person who held you must prove they complied — a significant advantage, provided you can establish the basic facts of custody and timing.

What decides these cases: evidence

Claims fail far more often on evidence than on law. Build the record early:

• Times and dates — of the arrest, arrival at the station, each request you made, and release or first court appearance.
• Names, ranks and the station, and the vehicle or unit if you can identify it.
• The register of arrests — section 18 requires the entry. Its presence, absence or contents can be decisive.
• Medical evidence — seek treatment promptly, ask for a written report, photograph injuries.
• Witnesses, including other detainees.

Suing the State, and the policeman’s indemnity

Section 29 sets up an unusual arrangement. A policeman sued under section 26(1) shall not join the State as a defendant. Instead he is fully indemnified by the State where he held a bona fide belief he was carrying out his duties, was not acting maliciously or with wilful disregard of them, and was not grossly negligent. Where he was malicious or grossly negligent, the court determines what contribution the State pays.

Section 27 adds that mere non-compliance with the Act does not, by itself, take an employee’s conduct during an arrest outside the scope of employment — which keeps vicarious liability in play.

If the wrong person was arrested

Section 25 protects the arresting person from criminal liability where a warrant was issued and the arrest was made under Part IV, in good faith and on reasonable grounds, but the person arrested is not the one named. Note the limit: criminal liability only.