PNG Law Reports 1996
[1996] PNGLR 308
N1461
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MAHERA IGNOTE
V
ABRAHAM HUALUPMOMI
AND
THE STATE
Mount Hagen
Akuram AJ
TORTS - Malicious prosecution - Actionable proceedings - Reasonable and probble cause.
TORTS - What is reasonable and probable cause considered - Whether criminal proceedings instituted under Criminal Code Act Ch 262 s 347 on inadequate evidence constitute malicious prosecution.
Facts
The plaintiff is a senior police constable with 21 years service. On the night that he was on duty at the Wabag Police Station, he was alleged to have raped a female detainee at the police detention cell there and was subsequently charged under s 347 of the Criminal Code Act Ch 262 for rape. At the committal hearing, the matter was struck out but proceeded to trial at the National Court by an ex officio indictment. The National Court discharged the plaintiff after the Public Prosecutor presented a nolle prosequi.
Consequently, the plaintiff now brings civil proceedings for malicious prosecution against the defendants.
Held
1.       The tort of malicious prosecution is committed if arrest is procured maliciously and without probable cause.
2.       Malice may be inferred where the defendant has a purpose other than bringing an offender to justice: Herniman v Smith [1938] AC 305 cited.
3.       The decision to initiate proceedings is based on following factors:
(a)      That the defendant must have been instrumental in instigating the proceedings;
(b)      That the proceedings must terminate in favour of the plaintiff; and
(c)      That the proceedings instigated must be done maliciously and without reasonable and probable cause.
4.       The decision to lay a charge by a policeman investigating the crime is an unfettered discretion without direction, interference or orders from any other policeman or officer whether of the same or of a superior rank. Sections 22 and 43(b) of Police Force Regulation does not apply in the decision to lay charges by policemen of persons who break the law.
5.       Malicious prosecution is counter to the policy of freedom to prosecute suspected criminals and thus the requirement that there must be an absence of reasonable and probable cause.
6.       In order to succeed, the plaintiff must prove;
(a)      That the defendant did not believe that the plaintiff was probably guilty of the offence, and
(b)      That a person of ordinary prudence and caution would not conclude, in the light of the facts in which he honestly believed, that the plaintiff was probably guilty.
Cases Cited
Evans v London Hospital College [1981] All ER 715.
Herniman v Smith [1938] AC 305.
Hicks v Faulkner (1881) 8 QB 167.
Counsel
P Dowa, for the plaintiff.
M Pokia, for the defendants.
AKURAM AJ: This is a claim arising from an alleged malicious prosecution by way of writ of summons claiming damages.
The plaintiff claims that on 25 October 1993 the first defendant maliciously and without reasonable and probable cause laid an Information before his Worship Mr. E. Deib, a Magistrate sitting at Wabag District Court against the plaintiff of raping one Besi Alan, contrary to s 347 of the Criminal Code Act Ch. 262 and procurred the said Magistrate to answer the said information.
At the District Court committal hearing, the presiding magistrate struck out the information on the basis of breach of s 37 & 42 of the Constitution in that plaintiff was not interviewed prior to being charged.
However, on 1 August 1994, the plaintiff appeared upon an ex officio indictment before the National Court at Mount Hagen and the trial Court discharged the plaintiff after the Public Prosecutor presented a nolle prosequi under s 527 of the Criminal Code.
As a result, the plaintiff claims he was injured in his reputation and was put to considerable trouble, inconvenience, anxiety and expense and has suffered loss and damage.
The facts giving rising to this claim are that the plaintiff is a senior constable of police attached to Wabag police station. On Monday 7 June 1993, he was on duty from 12.00 midnight to 8.00 am as a non-commissioned officer on shift duty. There were two policemen on duty prior to his arrival, namely Constable Nomi Lawrence Bandy and Constable Ganon Ban who had acknowledge handover/takeover from the 4 pm to 12 mid-night shift. When the plaintiff arrived, there was nobody at the duty office and he waited 30 minutes before those two policemen returned after dropping off constable Kuringin at his Lenki village.
The plaintiff then read the occurrence book of the previous shifts and discovered no entry was made for the cell check as it is supposed to be done hourly or otherwise regularly. As the duty NCO, the plaintiff says he has to double check both the inside and outside the police station for smooth running of the duties and report to the senior supervisors. He was just doing that when he realised constable Ganon Ban was in possession of cell keys and when the two constables had to go to Aipos police barracks to get constable Siboa Mol, the cell keys were handed to him.
At about 2.25 am on 8 June 1993, the plaintiff went down to the cell building to visit the detainees and talk to them, to receive any complaints and make sure there is no break out, etc.
At the cell building, the plaintiff opened the main outside door and walked into the open space room approaching the cell room containing male detainees. There were no lights and it was very dark so he grabbed hold of an iron bar and several times said in pidgin language - “hey hey, ol wantok, yupela orait ah” in order to wake them up. The male detainees asked him for cigarette saying - “Yu gat sampela givim mipela”. Plaintiff replied saying - “Sorry I don’t smoke and I haven’t any”. He then walked over to the female cell block which was just next to the male cell block.
Besi Alan was sleeping in the female cell block. The lights were not bright and clear but were twinkling and flashing on and off. She was checked from outside and said she was alright. Plaintiff did not open both male and female cell blocks as he was alone and the detainees might escape. He then opened the main door, walked out and closed the door and returned to the duty office where he met constables Siboa Mol, Ganon Ban and Nomi Bandy sitting down telling stories. At 2.30 am sharp, plaintiff made an entry in the occurrence book, handed the cell keys to constable Nomi Bandy and left for the house as he had to rest so that he can catch an early 9.00 am flight from Wapenamanda to Port Moresby to visit his sick wife in Port Moresby General Hospital. Constable Nomi Bandy dropped the plaintiff at his house.
The plaintiff said it took him 4-5 minutes to check the cells and not long enough to have sexual intercourse with the female detainee. He said the timing is not sufficient for a person to commit rape with violence and force. He disagrees with this story of rape and does not know where it came from.
The plaintiff returned from Port Moresby after visiting his sick wife and resumed normal duties. On Thursday 1st July 1993, he was called to Provincial Police Commander’s office where he was told that there is an allegation of rape against him at police cells which occurred on 8 June 1993 at about 3.00 am. He was also told that there will be a disciplinary action taken as the complainant and police agreed not to pursue the matter in open court. He was also advised by 1st defendant and Provincial Police Commander (Fred Sheekiot) to pay compensation to complainant in order to settle the matter outside. However, the plaintiff refused to pay as suggested as the allegation is not true. His refusal prompted the Provincial Police Commander to direct the 1st defendant to arrest the plaintiff on Monday 25 October 1993 between 9.00 am and 10.00 am and charged him and brought him to Court.
On 22 November 1993, District Court struck out the information. On 1 December 1993, the 1st defendant through the office of the Public Prosecutor in Mount Hagen, presented an ex officio indictment. A nolle prosequi was endorsed and National Court on 1 August 1994 acquitted and discharged the plaintiff pursuant to s 527 of the Criminal Code Act, Ch. 262. The State Prosecutor then wrote to Provincial Police Commander Wabag advising of the nolle prosequi (Annexure “C” to plaintiff’s affidavit).
The plaintiff says the alleged offence was not true and had Police carried out proper investigations they would have found out the alleged rape was not true. He therefore believed that the charge was made maliciously and without reasonable and probable cause. It is malicious because of hatred and ill-feelings against the plaintiff. The plaintiff was then charged for a disciplinary offence under s 43(g) of the Police Force Act, Ch. 65. (Annexure “D” of affidavit).
The charge reads:
“On 8th day of June 1993 at Wabag Police cells you were guilty of disgraceful conduct in your official capacity in that you sexually assaulted a female prisoner namely, Besi Alan in Wabag police cell.”
Plaintiff says this is further evidence of malice and without reasonable and probable cause by the first defendant and Mr. Sheekiot (Provincial Police Commander). The plaintiff has been a policemen for 21 years, was never charged with minor or serious disciplinary charge nor was he criminally charged.
On examination in chief on his affidavit, plaintiff said he was suspended from 25/10/93 to 16/12/93 a period of 3 fortnights (6 weeks) without pay. As to the disciplinary charges served on 2/7/95, he was never advised by the Commissioner so I take it that he is not guilty or that no decision has been made.
His reasons for being charged is because of his position as a senior supervisor at Wabag police station, he criticises the officers for not doing their jobs well. The persons he criticise most are the 1st defendant and Provincial Police Commander at the time. Therefore, it could be inferred that he is charged for insubordination. The criticisms came about because numerous cases are not being properly investigated so are lost when reaching the courts.
He admits saying to 1st dependant during interview that he did make a statement saying he raped the female detainee.
He said one of his witness Anna Ganim Henry was interfered with by 1st defendant and so she refused to give evidence on his behalf. This may be true because of Exhibit MFI - 1 tendered by plaintiff’s counsel. This is the statement by Anna Ganim Henry on the events that took place on 8 June 1993, when plaintiff was at Wapenamanda Airport to catch the 9.00 am Air Niugini flight to Port Moresby to visit his sick wife. He could not have made the statement up. The statement is detailed on time, events and people involved so plaintiff could not be said to have made up the statement and told Anna Ganim to sign without knowing what is written.
The second witness for the plaintiff was a detainee in the cells at the time of the alleged rape. He first made a statement to the police on 8 June 1993 saying he heard plaintiff and Besi Alan struggling in the female cells. That plaintiff did not inspect the male cell block but went in there after slowly opening and shutting the main cell door. That he saw plaintiff clearly from lights outside the cell block and told plaintiff he would report him the next day. This was about 2.30 am and the struggle was for about 10 to 20 minutes. This witness is a police informant.
However, he then changed his mind and gave affidavit evidence for the plaintiff and was cross-examined by defence on his affidavit. His evidence is very much the same as that of the plaintiff in so far as the plaintiff went and opened the main cell door, visited and talked to the male detainees who asked him for smoke. Witness blames Sergeant Pakio for misunderstanding the detainees who complained about a person throwing sticks and stones on top of the roof of the cell room making noise and disturbing them. Sergeant Pakio did not get the story right. He went to the female detainee and asked her but she did not understand. Sergeant Pakio left and went to the office, returned and took the female detainee (Besi Allan) into his office and later took the witness to the office and interrogated them which the witness denies.
The witness was also questioned on his affidavit which was filed. This witness made one statement on 8/6/93 to police where he said he heard plaintiff and Besi Alan struggling in the cells. Later the plaintiff came out. This statement he says was given him by 1st defendant before going to Court and he signed it without reading it.
The witness made a second statement (Exhibit “C”) for plaintiff where he denied everything he said in first statement. He gave the same story as stated in his affidavit in this second statement.
The defence then called first defendant as it’s first witness and Anna Gamim as the second witness.
The first witness said, when he came to the office, he was told of a rape incident at the police cells. As the senior investigator, he was tasked to do the investigation. So he went and got victim Besi Allan, took her to hospital and had her checked by the doctor. The doctor found that there was sexual intercourse. He returned to station and got her statement. Then got Maliso Lea (2nd plaintiff witness) who seemed to be the main complainant. He then got statements from the two policemen who were on duty that night. He later interviewed the plaintiff on his return from sick leave and charged him. Later he conducted the record of interview. (This is the stage which plaintiff argued to have his rape charge struck out by the District Court in Wabag). He then interviewed him and after disagreement, plaintiff signed the R.O.I.
The witness tendered the statement of Constable Ray Ban Ganon (Exhibit “D”). This statement said that at about 1.30 am he drove plaintiff to his house. The rape incident took place about 2.30 pm, one hour later. There is no mention of any complaints between 1.30 or 2.30 am till 8.00 am next day. The two policemen also did not check the cells all night.
The witness said he also took statement from Maliso Lea who said detainees asked plaintiff for cigarettes but this is not in Maliso’s first statement (Exhibit “E”) but in the second statement.
The 1st defendant believed the statements of Besi Alan’s (victim) witnesses and from the victim. The witnesses here would be Maliso Lea and 2 policemen who were on duty that night. However, in actual fact, the only reliable stories would come from victim and Maliso Lea and the medical report, which I will deal with further on.
The defendant’s second witness - Anna Ganim Henry. I cannot believe as she said a lot of things which did not make sense to me for a person of her calibre and experience. The main one being that she said she did not tell plaintiff to write a statement which she signed but this cannot be true. The reason is because plaintiff was at the material time on his way to Port Moresby on 8/6/93 and could not have observed who did what at the mentioned times at the police station which she saw. She is not a truthful witness in this case. She later realised after consulting with Provincial Police Commander that she should not sign the affidavit so she refused. That is why she made up a story about not reading it before signing it. She also said she does not know, speak nor understand Engan languge and yet one of her parent is from Wabag and she has spent substantial part of her life in Wabag.
The statement of constable Ganon Ban (Exhibit “D”) agrees with the plaintiff’s evidence on major areas such as the time plaintiff resumed duty, talked to the two Constables, was given the key to the cells, that the Constable drove off again either dropping Constable Kuringin off at Lenki, motorised patrol and, dropping plaintiff off at his house. He did not mention anything about rape during the night till 8.00 am when he signed off. He also said plaintiff had to catch a plane to Port Moresby on 9.00 am flight at Wapenamanda. Finally, he agreed that he did not do any cell checks but plaintiff did and had recorded this in the occurrence book no. 7406/93. This was admitted in the plaintiff’s statement on page 21 paragraph 6 of his statement in response to the disciplinary charge.
My perception of the events chronologically as I understand them from the evidence is as follows:
1.       7 June 1993:
(a)      Victim Besi Alan was arrested in the afternoon for break and enter of her brother’s house and detained with Maliso Lea and other male detainees in the cell.
(b)      11.47 pm. constable Ganon signed in and given the cell keys by Constable Kuringin. Senior Constable Ignote was on sick leave, as understood by Constable Ban Ganon, and so did not turn up for duty.
2.       
(a)      Constables Bani and Ganon drove and dropped Constable Kuringin at Lenki and returned to station.
(b)      At 12.30 am plaintiff arrived at police station and was standing outside.
(c)      Upon arrival at Station, Constables Bani & Ganon saw plaintiff at about 1.00 am as plaintiff had arrived at 12.30 am and waited 30 minutes.
(d)      Plaintiff called all the policemen on duty and briefed them on their duties.
(e)      Constable Ganon gave keys of cell to plaintiff and drove off to Aipos Barracks to pick up Constable Siboa Mol.
(f)      2.2.5 am plaintiff checked the cells by opening main cell door but not the gates of male and female cells.
(g)      At 2.30 am plaintiff made entry in O/B. No. 7406/93.
(h)      Upon their return, Constables Ganon and Bani saw plaintiff standing in car yard. Plaintiff approached them and they talked for about 15 minutes and plaintiff asked them to drop him at his house to rest so he could catch the 9.00 am flight from Wapenamanda for Port Moresby.
(i)       Constables Bani & Ganon were left alone in the Police Station till 8.00 am. They did not conduct any cell checks between 2.30 am and 8.00 am.
(j)      At 8.00 am Sergeant Pakio visited the cells and male detainees complaint of noise on the roof at night. This is also the time when Maliso Lea and Besi Alan say that they complained of rape incident.
(k)      Anna Ganim, saw Sergeant Pakio and Besi Alan talking and coming out from the cell building. They walked passed Anna Ganim and Reserve Constable Helen Hilda and went straight into the duty office.
(l)       At about the same time (8.00 am) when Besi Allan and Sgt. Pakio went past Anna Ganim and Helen Hilda, Ganim overheard Sgt. Pakio saying to Besi to say “it was Constable Ignote that raped me in Enga Language”.
(m)     Whilst still watching, Besi Alan replied and told Sgt. Pakio that “last night nothing happened to her and no one raped her, but the policeman repeatedly forced and told the female, just say senior Constable Ignote raped me.”
3.       At about this time plaintiff was at Wapenamanda Airport waiting for 9.00 am flight to Port Moresby.
4.       
(a)      Besi was taken to CID Office. Matter was reported to Police Station Commander and to Provincial Police Commander Sheekiot who ordered an investigation in the absence of plaintiff. Matter was referred to first defendant to investigate.
(b)      First defendant immediately took Besi to the hospital for medical check which proved positive - that is sperm was found in vagina of Besi confirming sexual intercourse took place.
Note, medical report did not say how long ago sexual intercourse would have taken place but the report said in 1st paragraph, upon instructions of complainant, that it was about 3.00 am.
(c)      First defendant returned and obtained statement from Besi and Maliso Lea and (two) policemen on duty that night.
(d)      First defendant said in oral evidence that the main complainant in this case is Maliso Lea. This was not followed up to check with Besi Alan or with Sgt. Pakio whether Besi complained first or Maliso complained first. After taking evidence, 1st defendant found that he has sufficient evidence to lay a charge on the plaintiff.
5.       
(a)      On Thursday 1/7/93, plaintiff resumed duty and was called by Provincial Police Commander who advised him first that there is an allegation of rape against him and he will be charged on a disciplinary charge. Provincial Police Commander and first defendant is also said to have demanded plaintiff to pay compensation to Besi Allan to settle matter out of Court. But plaintiff refused.
(b)      Plaintiff then went to CID Office and was formally arrested by first defendant and charged.
(c)      The 1st defendant then commenced a record of interview, suspend it and recommenced next day.
(d)      At conclusion of R.O.I., plaintiff refused to sign. When second part of R.O.I. was concluded, plaintiff signed the second part.
6.       
(a)      Then plaintiff appeared in Court, an objection by his lawyer was to the effect that plaintiff was charged before he was interviewed and arrested. The Magistrate in the District Court struck out the charge on grounds of Constitutional breach of Sections 37 & 42, on 22/11/93.
(b)      The 1st defendant then approached the State Prosecutor’s Office in Mount Hagen for further advise and an “ex officio” indictment was preferred on 7th December 1993 and served on plaintiff on 12/1/94.
(c)      On 1/8/94, a Nolle prosequi was filed and plaintiff was discharged from the indictment for rape.
(d)      The State Prosecutor wrote to Provincial Police Commander Enga stating, inter alia, that this does not mean plaintiff cannot be charged on a disciplinary offence internally, on the 3/8/94.
7.       The plaintiff then filed the writ of summons for malicious prosecution on 7th July 1995.
8.       On 18/7/95, about 11 months after acquittal but 11 days after this writ, plaintiff was charged for a serious disciplinary offence of disgraceful conduct contrary to s 43(g) of the Police Force Act, Ch. 65. He was served this on 27/7/95. No decision has been made and advised to the plaintiff at the trial date of this matter.
The tort of malicious prosecution is concerned with protecting the interest in or freedom from unjustifiable litigation. Malicious prosecution presupposes that the proper procedural formalities have not been carried out. This is different from defamation which deals with protection of reputation and false imprisonment which deals with interference of freedom of movement. So malicious prosecution is defined as:
“a tort maliciously and without reasonable and probable cause to initiate against another judicial proceedings which terminate in favour of that other and which result in damage to reputation, person freedom or property”. (See Street on Torts - 9th edn. p 273).
The question is how does one decide to initiate proceedings. The first thing is that the defendant must have been “actually instrumental” in instigating the proceedings. In Evans v London Hospital College [1981], All ER 715 where it was held that a hospital which provided pathology report to the police did not institute proceedings. So if the defendant set the prosecution in motion by charging the plaintiff that will no doubt constitute setting the prosecution in motion. In this regard, there is no doubt that the first defendant in this case had set the prosecution in motion. The defence submitted that the defendant was compelled and was under an obligation to charge the plaintiff, as 1st defendant was in fear of a disciplinary action under s 43 (b) of the Police Force Regulation, Ch 65. I do not think the 1st defendant had ever thought of this provision in mind when he decided to charge the plaintiff. I say this for two reasons: first, this is not the type of situation s 43(b) is talking about because an order or direction from a superior officer to charge someone without sufficient facts is not lawful order. So is s 22 of the Police Force Regulations under the Police Force Act. These provisions are talking mainly about administrative instructions and not quasi - judicial decisions by individual policemen to charge people who break the laws. Secondly, that policemen have an unfettered discretion to charge any person for breaches of the laws of this country of which no superior police officer or another person of high ranking can direct him or her to charge a person alleged to have broken the law. So this argument of the defence has no merit at all.
The next requirement is that the proceedings must terminate in favour of the plaintiff. Even though for example, the plaintiff has been convicted of a lesser offence or has had his conviction quashed on appeal or has been acquitted on a technicality, for example a defect in the indictment, this requirement will still be satisfied. In the present case, the plaintiff was acquitted on a technicality when the State Prosecutor presented a nolle prosequi in the National Court. So it seems that the plaintiff would satisfy this requirement if he proves that the defendant has discontinued the proceedings but not when the proceedings are pending. In this case, the State Prosecutor and not the first defendant has discontinued the proceedings. This again is not the decision made by the first defendant because the decision not to prosecute is that of the Public Prosecutor who has delegated that power to the State Prosecutors who decide not to prosecute. However, the initial decision to lay charge of rape is that of the first defendant. So this requirement is satisfied and I find it to be proved on the evidence produced.
As to the nature of proceedings I only wish to say that the tort is committed if arrest, etc. is procured maliciously and without probable cause. I will return to this later when I discuss the requirement of absence of reasonable and probable cause below.
The tort of malicious prosecution is counter to the policy of freedom to prosecute suspected criminals and to the interest in bringing litigation to a close. This judicial attitude is reflected in the development of the requirement that there must be an absence of reasonable and probable cause. The plaintiff must not only prove malice but also the absence of reasonable and probable cause.
Malice is basically where the defendant has a purpose other than bringing an offender to justice. This is an issue to be decided by the judge as it is an issue of law but absence of reasonable and probable cause is to be decided by the jury and is therefore an issue of fact. The House of Lords has approved the following definition of reasonable and probable cause in the case of Herniman v Smith [1938] AC 305 from an earlier decision of Hicks v Faulkner (1881) 8 QBD 167 at 171 by Haukins, J who said:
“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably had any ordinary prudent cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”.
The House of Lords also held that in order for the plaintiff to succeed, he must prove one of the following:
1.       That the defendant did not believe that the plaintiff was probably guilty of the offence; or
2.       That a person of ordinary prudence and caution would not conclude, in the light of the facts in which he honestly believed, that the plaintiff was probably guilty.
The first ground is basically the evidentiary burden of proof which require the plaintiff to give evidence of fact or facts which either inherently or coupled with other matters proved in evidence which draw an inference that defendant did not believe in the plaintiff’s guilt. In the present case, I am quite satisfied that there is sufficient evidence, viz medical report, statements from Besi Alan and Maliso Lea that sexual intercourse has taken place and rape may have taken place. So the defendant would have believed in the guilt of the plaintiff. Secondly, having heard the statement of Besi Alan, Maliso Lea and the medical report, the first defendant being a policemen of ordinary prudence and caution in his capacity as a crimes investigator, would have concluded that the plaintiff was probably guilty. It is immaterial whether the defendant believed that he would obtain a conviction and imprisonment but merely believed that plaintiff was guilty.
Based on the above findings, I find the claim against the first defendant not proven. I therefore dismiss the claim. I have considered costs and decided that costs be met by each party.
Lawyer for the plaintiff: Paulus Dowa Lawyers.
Lawyer for the defendants: Solicitor General.