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Nayos v Gawi [2008] PGNC 142; N3484 (26 September 2008)

N3484

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1478 OF 2005

BETWEEN:

JOE HESINGKEOC NAYOS
Plaintiff

AND:

ROY GAWI, SENIOR SERGEANT
First Defendant

AND:

MANA HEWA, DETECTIVE FIRST CONSTABLE
Second Defendant

AND:

PETER NESAT, PROVINCIAL POLICE COMMANDER
Third Defendant

AND:

SAM INGUBA, COMMISSIONER FOR POLICE
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Lae: Manuhu, J.
2008: 1, 9, 18 & 26 September

JUDGMENT

PRACTICE AND PROCEDURE – Judgment entered by default – Hearing on assessment of damages – Plaintiff required to lay out the relevant evidence supporting his allegation of malicious prosecution on the basis of which each head of damages will be considered and assessed.

TORT – Malicious prosecution – Plaintiff was charged for murder and was acquitted – Alleged investigating officer had a grudge against him – Some witnesses statements in criminal proceeding not produced – Ruling of trial judge not produced – Evidence insufficient to show malice – Proceeding dismissed.

Cases cited:

Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308)
Yange Lagan and ors v The State (1995) N1369.

Counsel:

E. Mambei, for the plaintiff.
V. Culligan, for the defendants

26 September, 2008.

1. MANUHU, J: Joe Hesingkeoc Nayos was charged for murder in 2003 and later committed that same year to stand trial in the National Court. He was subsequently indicted by the Public Prosecutor in April 2005 and, following a trial, was eventually acquitted by Sakora J. Mr. Nayos sues for malicious prosecution and, following entry of judgment by default, the claim is before me for assessment of damages.

2. While judgment has been entered by default, Mr. Nayos is nonetheless required to lay out the relevant evidence supporting his allegation of malicious prosecution on the basis of which each head of damages will be considered and assessed. See Yange Lagan and ors v The State (1995) N1369.

3. To prove malicious prosecution, among other things, it has to be shown (see Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308) that:

(a) the defendant did not believe that the plaintiff was probably guilty of the offence, and

(b) 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.

4. It is a worthy reminder that it is in the public interest for police, a vital enforcement agency of the State to investigate, charge and prosecute offenders without fear of being sued. The rule of law and democracy will disintegrate and collapse if anyone acquitted is given an easy passage to sue for malicious prosecution. The tort of malicious prosecution is of course available but malice must be shown to the entire satisfaction of the Court for a malicious prosecution suit to succeed.

5. In this case, Mr. Nayos deposed in his affidavit that Mana Hewa was his neighbour. Mr. Hewa had a grudge against him in relation to a piece of land. Mr. Hewa wanted to purchase the land but it was sold to Mr. Nayos. Mr. Nayos has developed the land and has a trade store on it. Mr. Nayos also recalls instances when stones were thrown at his property and Mr. Hewa tried several times to have him in trouble with the law. Mr. Nayos does not say if the stone throwing was by or authorized by Mr. Hewa. Neither does he provide any examples of Mr. Hewa’s alleged attempts to get him into trouble with the law. More importantly, there is no substantive evidence of any grudge held by Mr. Hewa against Mr. Nayos.

6. Mr. Nayos also relies on several affidavits which were used in the application for bail. Vincent Sapu is Mr. Nayos’ second cousin. He simply recounted what he did on 5th April 2003. Steven Yarusa was also charged for the same murder. He stated that he was assaulted and forced by three persons related to the deceased to implicate Mr. Nayos which he did in the presence of Mr. Hewa. He further deposed that Mr. Hewa took him for a ride in his vehicle and couched him to give evidence against Mr. Nayos.

7. Allan Orowang was also charged for murder. He was told by others that Mr. Nayos was angry with Zingagu Geroka so he wanted the youths to rob Mr. Geroka’s store and force him to move out of the premises. He then caught up with Steven Yarusa and they raided Mr. Geroka’s store. In the process, a gun went off which must have killed the deceased. Later that day, Mr. Nayos’ shopkeeper gave them free bottles of beer to drink. Allan Oriong later denied the involvement of Mr. Nayos because apparently that he was not present when Mr. Nayos allegedly mobilized the youths to raid Mr. Geroka’s store.

8. Mr. Nayos also relies on a pre-trial opinion by Theodore Gene on the strength of the evidence which, I presume, was rejected by the Office of the Public Prosecutor. The opinion is an opinion and is inadmissible. I will not rely on it. The Court does not need an opinion from Mr. Gene to form an opinion on the strength of the evidence against Mr. Nayos. The Court is able to form its own opinion on the witness’s statements.

9. Be that as it may, it seems there were two confessional statements implicating Mr. Nayos. Apart from the confessional statements, Mr. Mambei confirms that Mr. Nayos’s record of interview and other witness’s statements have not been produced. The Court must see all the witnesses’ statements and confessional statements that were in the hand up brief. Those materials were the very materials Senior Sergeant Roy Gawi relied upon in his decision to charge Mr. Nayos. In the absence of all the witnesses’ statements, the factual basis for a finding of malice against the Senior Sergeant is missing.

10. The very same materials were presented to the Committal Court which decided to commit Mr. Nayos to stand trial. The Committal Court was satisfied that there was prima facie evidence to warrant the committal of Mr. Nayos. If a court has found prima facie evidence against Mr. Nayos, which evidence is not before this Court, how could I conclude that there was malice? The very same material was also perused and considered by the State Prosecutor who presented the indictment against Mr. Nayos. Why aren’t those materials before this Court, I wonder?

11. The ruling of Sakora J which could be obtained from the transcription division is also not part of the evidence. It would be interesting to have an insight into how Sakora J viewed the evidence and what he said about it. It would be relevant if Sakora J had ruled that Mr. Nayos was maliciously prosecuted.

12. In the circumstances, maybe there was malice on the part of Mr. Hewa but there must have been sufficient evidence to support the laying of a charge of murder, the committal of Mr. Nayos to stand trial in the National Court and the eventual presentation of indictment against Mr. Nayos. Consequently, I am unable to conclude without reservation that Mr. Hewa, or the Senior Sergeant, for that matter, was malicious in the prosecution of Mr. Nayos.

13. Accordingly, the alleged tort of malicious prosecution has not been established to warrant a consideration of the various heads of damages Mr. Nayos claims against the defendants and the State. The proceeding is dismissed with cost.

Orders accordingly.

______________________________________

Rageau Manua & Kikira Lawyers: Lawyer for the Plaintiff
Neville Devete, Acting Solicitor General: Lawyer for the Defendants