Yes. The Bail Act says so in terms, and the Constitution provides a second and better-travelled route. What defeats most claims is not the law — it is a deadline almost nobody knows about.
The provision written for exactly this: section 25
Section 25 of the Bail Act is headed “Civil remedy for wrongful refusal to grant bail”:
(1) A policeman who — (a) wrongfully refuses to grant bail to a person under Section 5; or (b) imposes conditions on bail to a person under Section 18 contrary to the requirements of that section; or (c) wrongfully refuses to approve a guarantor for a person under Section 19, may be liable in damages to that person.
(2) An action may be brought in the National Court, or in a District Court within the limits prescribed by section 21 of the District Courts Act.
(3) In an action under Subsection (1), a court may award exemplary damages.
(4) The provisions of this section are in addition to and not in derogation of the Constitution or any other law dealing with the enforcement of any constitutional right.
Each limb maps onto a duty covered elsewhere in this series. Section 5 requires an officer-in-charge or commissioned officer to consider and grant or refuse bail where it is not practicable to bring a person before a court within a reasonable time. Section 18 limits the conditions that may be imposed. Section 19 says a guarantor may not be refused approval unless there are reasonable grounds to think he will not honour the undertaking.
There is also a documentary hook. Section 16 requires reasons for refusing bail to be given in writing at that time, and recorded — for police, in the register of arrests at the station. Those records are the evidence a section 25 claim is built on. Ask for the written reasons at the counter.
An honest caveat
Section 25 appears to be a rarely used remedy. In searching the accessible PNG reports we could not find a decision applying it, and the police-damages cases that do get reported are run under the Constitution and the Wrongs (Miscellaneous Provisions) Act instead. That is not a reason to ignore section 25 — it is unambiguous and it is on the books — but it does mean a claimant should expect to be arguing it close to first principles, and should plead the constitutional route alongside it.
It sends you to the District Court “within the limits prescribed by Section 21 of the District Courts Act” — currently K10,000 before a Principal Magistrate and K8,000 before a Magistrate. But section 21(4)(d) removes from a District Court’s jurisdiction “an action for illegal arrest, false imprisonment or malicious prosecution.” Whether a section 25 claim pleaded as a statutory claim escapes that exclusion does not appear to have been decided. For anything substantial, the National Court is the safer forum.
The route that is actually used: Constitution sections 57 and 58
Most successful PNG claims of this kind run on the Constitution.
- Section 42(3) — an arrested person “shall, unless he is released, be brought without delay before a court or a judicial officer.”
- Section 42(5) — where complaint is made that a person is unlawfully or unreasonably detained, the National Court “shall inquire into the complaint” and may order release.
- Section 57 — the National or Supreme Court may protect and enforce guaranteed rights, on the application of any person with an interest in their protection.
- Section 58 — a person whose rights are infringed may recover “reasonable damages and, if the court thinks it proper, exemplary damages.”
A human rights enforcement application under section 57 is faster and less formal than an ordinary writ. In Jonathan Paru v The State (2012) N4572 a young man shot in the foot on arrest was held at a police lock-up for seven weeks and three days without charge and without being taken before a court. The National Court declared breaches of sections 36(1), 37(1), 42(2) and 42(3), and ordered his immediate release under section 42(5).
What the courts have awarded
| Case | Conduct | Award |
|---|---|---|
| Lance Kolokol v Amburuapi (2009) N3571 | 17-year-old shot with a rubber bullet then a live round, assaulted, denied medical care, held three days before bail | K55,204 including K10,000 exemplary; K71,986 with interest |
| Bomai Wati v David Gavera (2013) N5363 | Shot in the leg (90% permanent loss of function); 7 years 7 months on remand, then discharged by nolle prosequi without ever being tried; breaches of ss.37(1), 37(3) and 42(3)(b) pleaded | K139,300 for breach of the right to the full protection of the law (K50 per day for 2,786 days), K50,000 trespass to the person, K76,600 exemplary; K380,343 with interest |
| Reuben Micah (2013) N5427 | 15 days in an overcrowded unlit cell; contracted diarrhoea and malaria | K300 per day (K200 compensatory + K100 exemplary) = K4,500 for the detention, plus property claims |
Two rough benchmarks emerge: about K50 a day for very long detention, and up to K300 a day for short detention in aggravated conditions.
Two things that quietly destroy claims
1. The six-month notice
Under section 5 of the Claims By and Against the State Act 1996, no action to enforce a claim against the State lies unless written notice of intention to make a claim is given within six months of the occurrence — to the Departmental Head responsible for justice matters or the Solicitor-General, and to no one else. A complaint made to police officials is not valid notice (William Trnka v The State [2000] PNGLR 294). The period can be extended by the Principal Legal Adviser or the court on sufficient cause being shown, but you must ask.
In Paul Tohian and The State v Tau Liu (1998) SC566 the Supreme Court held the notice is “a condition precedent to issuing a Writ of Summons in all circumstances” — it must be given before proceedings are filed.
2. Not naming the officers
The State is liable for police torts under the Wrongs (Miscellaneous Provisions) Act; the test, from Philip Kunnga v The State (2005) N2864, is that the State is liable for acts within the scope of police employment “unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions.” But exemplary damages have repeatedly been refused where the individual officers were not named as defendants (Eton Pakui v The State (2006) N2977; Kunnga itself), and a claim has failed outright where the pleading did not allege the officers acted in the course and scope of their employment (Jack Pinda v Sam Inguba (2009) N4659).
So: get the names and regimental numbers, and name them.
What to do on the day
Ask for the written reasons for refusal under section 16. Note the station, the time, the officer-in-charge and the names of the officers involved. Keep any medical records. Then get the section 5 notice served inside six months — before anything else.
The figures above are examples from decided cases, not a guide to what any claim is worth. Claims against the State have strict deadlines. Speak to a lawyer or the Office of the Public Solicitor promptly.
The same six-month notice and naming requirements apply to claims over an unlawful arrest — see Can You Sue for a Wrongful Arrest in PNG?