N11361

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 785 OF 2021

BETWEEN:
CHARLES MOREVA 
 Plaintiff   

AND
CYRUS NATIL 
First Defendant

AND
MANU PULEI
Second Defendant

AND
WILLIE KAPAL
Third Defendant

AND
ANTHONY WAGAMBIE JR
Fourth Defendant

AND 
INDEPENDENT STATE OF PAPUA NEWGUINEA
Fifth Defendant

LAE: DOWA J
4 OCTOBER, 2 NOVEMBER 2022; 7 JULY 2025

CIVIL- MALICIOUS PROSECUTION-Plaintiff sues defendants for unlawful arrest, detention and  malicious prosecution- whether police had probable cause that plaintiff committed an offence-onus on plaintiff to establish that defendants had no probable cause to arrest him-principles of malicious prosecution considered-whether Defendants had malicious intent to prosecute plaintiff-onus on plaintiff to establish lack of probable cause and malicious intent on the part of the defendants-Plaintiff failing to prove liability-claim dismissed. 

Cases cited
Yooken Paklin v The State (2001) N2212
Wani v The Provincial Police Commander, Westen Highlands Province and Others (2010) N3900 
Demba Kalo v Comnie Akaya and Others (2007) N3213
 Kipahi v Nambos (2020) N8437
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 

Counsel
C Moreva, the Plaintiff in person
G Kibikibi, for the defendants

DECISION

1.       DOWA J: The Plaintiff claims damages against the Defendants for unlawful arrest, detention and malicious prosecution. 

Facts

2.	The Plaintiff, originally from Simbu Province, is a resident of Lae Morobe Province. He is a former employee of Shorncliffe (PNG) Limited. On 1st October 2016, the Plaintiff was arrested and charged with armed robbery under Sections 386 (1) (2) (a) & (b) of the Criminal Code Act. The Plaintiff was detained and remained in custody until 4th December 2019 when he was acquitted by the National Court and discharged from custody.

3.	The facts giving rise to the criminal charges against the Plaintiff are these. The Plaintiff, employed by Shorncliffe (PNG) Limited as Human Resource Manager, was given a motor vehicle a Toyota Land Cruiser, 10-seater, Registration Number BDT 533 for 24-hour use. It is alleged that the Plaintiff colluded with criminals and gave his company vehicle to the criminals who used it to commit the armed robbery at the Lae International Hotel on 19th September 2016, where K102,217.35 cash and goods were robbed.

4.	 The Plaintiff denied the criminal charges and maintained that the vehicle was taken from him by the criminals who held him and his family under gunpoint. The trial was conducted in November 2019. On 4th December 2019, the National Court ruled upholding a no-case submission and found the Plaintiff not guilty of the charge and acquitted him.

5.	The Plaintiff alleges that he was innocent, but was falsely accused, prosecuted and detained in custody. As a result of the wrongful and malicious actions of the Defendants, he suffered loss and damage. He institutes this proceeding seeking damages for unlawful arrest and detention, and for false and malicious prosecution, loss of liberty, loss of dignity and reputation, loss of job and income and for psychological pain and suffering. 

6.	The Defendants filed a Defence denying liability, pleading that the Defendants had reasonable grounds to believe that the Plaintiff was involved in the alleged crime along with other accomplices and his detention and prosecution were justified. The Defendants stated further that the Plaintiff failed to plead particulars of malice in the statement of claim.

Trial and evidence

7.	The trial was conducted by tender of respective Affidavits by consent without cross-examination. The Plaintiff relies on the following affidavits:

a.	Affidavit of Charles Moreva filed 28th June 2022
b.	Affidavit of Esther Moreva filed 11th July 2022
c.	Affidavit of Donny Wambun filed 11th July 2022
d.	Affidavit of Jack Kolwai Nengai filed 30th June 2022

8.	This is the summary of the Plaintiff’s evidence. Plaintiff was apprehended on 30th September 2016 by the Lae Central Police. On 1st October 2016 he was charged with the crime of stealing with violence and armed robbery under Section 386 (1) (2) of the Criminal Code Act. He was detained and remained in custody until his acquittal and discharge on 4th December 2019. The allegations against him were that he conspired with criminals to rob Lae International Hotel and colluded with the criminals by making available his company vehicle, a Toyota Land Cruser,10-Seater, Reg No. BDT 533.The robbery at Lae International Hotel took place on Monday 19th September 2016 and the Plaintiff’s company vehicle was used in the robbery. The Plaintiff denied the allegations. He deposed in his affidavit that he was wrongfully accused. He explained to the police that he was held at gunpoint by the criminals at China Town Betelnut Market and took his vehicle on the afternoon of Sunday 18th September 2016. At his request, the criminals drove him and his wife, Esther Moreva and child to their home at D7 Circle, Tent city. The criminals dropped them off and took the vehicle away. Two criminals were stationed at the gate of his home, warning them not to report to police or they would be killed and have their vehicle burnt. Next day, 19th September 2016, the Plaintiff and his family remained indoors whole day due to the threats issued by the criminals. Around 2pm that afternoon, the two criminals fled when an ESS security vehicle came at the scene on high speed and made a U turn which scared them. Around 7 or 8 pm that evening the Plaintiff sent a text message to his Boss at Shorncliffe reporting the stolen vehicle. Shorncliffe then sent Security Manager, Donny Wambun, who came to their home and rescued them. He then went to the Lae Central Police Station and reported the vehicle theft to the Police.
  
9.	On 30th September 2016, the Plaintiff was questioned about his involvement with the criminals. Plaintiff denied any involvement with the criminals. Plaintiff deposed that on 1st October 2016, the second Defendant in the company of other policemen threatened his wife, Esther Moreva, to tell them the truth about the Plaintiff’s involvement with the criminals. Plaintiff deposed, under threat and duress, his wife, Esther Moreva,made a statement incriminating him.   Despite the denials and explanations given, the Police proceeded to charge him on the evening of 1st October 2016.

10.	 Plaintiff deposed further that the fourth Defendant published his arrest and the laying of the criminal charge in the news papers which were defamatory and as a result he suffered shame and ridicule and lost his reputation. 

Defendants’ Evidence

11.	The Defendants rely on the following affidavits:

a.	Affidavit of Cyrus Natil filed 27th June 2022
b.	Affidavit of Manu Pulei filed 27th June 2022

12.	This is the summary of the Defendants’ evidence. On the morning of 19th September 2016, an armed robbery took place at Lae International Hotel between the hours of 8.00am and 10.00am. The criminals held up staff at Lae International Hotel and made off with K 102,217.35 cash and other property. The getaway vehicle used in the robbery was a Toyota Land Cruiser, 10-Seater, Brown Colour, Registration No. BDT 034. It was established that the vehicle was owned by Shorncliffe (PNG) Limited with Reg No. BDT 533 and given to the Plaintiff on a 24-hour use as Human Resources Manager. 

13.	First Defendant deposed that on the afternoon of 20th September 2016, the Plaintiff and his wife came to the Lae Central Police Station and reported that criminals held them up at gunpoint at 13A Market, China Town and took them to D7 Circle, Tenth City and held them hostage until 19th September 2016 at 6.00pm when they were released. However, after checking their alibis and with further investigation it was discovered that the Plaintiff willingly gave away the vehicle to the criminals at their home at D7 Circle, Tenth City. This was confirmed by his wife, Esther Moreva, in a statement she signed on 1st October 2016. First Defendant deposed further that the Plaintiff has also confessed giving away the vehicle to the criminals who promised him cash returns from the robbery, although the confession was not in writing.

14.	The Defendants then arrested and charged the Plaintiff for one count of armed robbery under Section 386 (1) (2) (a) (b) of the Criminal Code Act because he aided the commission of the crime and was caught under Section 7 of the Criminal Code Act. 

15.	First Defendant deposed that some months later five other accomplices involved in the robbery were arrested and charged with the Plaintiff. Four of the accused were acquitted and two were convicted.   One of the convicts, Jonathan Kalsup, provided a confessional statement that the Shorncliffe vehicle was willingly given to them by the Plaintiff in return for cash promised from the robbery proceeds.

16.	The Defendants deposed that according to their investigations; the Plaintiff’s company vehicle was used for the robbery. After the robbery the vehicle was abandoned at Lima Wong Park, Vocco Point and the criminals used a boat belonging to one Rose Bay of East Taraka and escaped to Bukawa.

Submissions of Parties

17.	The Plaintiff submitted that the Defendants are liable:

a. 	For falsely accusing him of aiding criminals to commit the crime of armed robbery 
   	  b.  	wrongfully arresting him without a Record of Interview
   	  c.	illegally detaining him for a crime, he did not commit.
     	 d.  	Maliciously prosecuting him without probable cause
	 e. 	For publishing defamatory matters against him. 

18.	 Plaintiff submitted further that certain documentary evidence be disregarded on grounds that they contain objectionable, hearsay and irrelevant information.

19.	 Counsel for Defendant submitted they are not liable because:

a.	the arrest and laying of criminal charge was not unlawful, and that the Plaintiff has failed to plead particulars of breach of Section 18(iii) of the Arrest Act. 
b.	the Plaintiff was lawfully arrested in accordance with Section 3 of the Arrest Act as they believed on reasonable grounds that the Plaintiff has committed an offence.
c.	The Plaintiff was detained in accordance with the law after he was arrested, and charged with a crime and committed to stand trial by the Committal Court.
d.	The Defendants believed on reasonable grounds that the Plaintiff willingly gave his work vehicle for the commission of robbery in return for money 
e.	The Plaintiff has not pleaded particulars of malice
f.	The Plaintiff has not proven the elements of malice
g.	There was no defamation. The publication of the arrest and charge were done in good faith for the public interest under Sections 8-12 of the Defamation Act.

20.	The Defendants, like the Plaintiff, also submitted that certain parts of the Plaintiff’s affidavit evidence be disregarded on grounds that they contain objectionable, hearsay and irrelevant information and submissions of law.

Issues

21.	 The issues for consideration are:

a.	How should the Court deal with the respective Parties’ evidence.
b.	Whether the Plaintiffs arrest and detention was wrongful
c.	Whether the Plaintiff was maliciously prosecuted
d.	Whether the publication of the allegations against the Plaintiff defamatory

Burden of proof.

22.	The Defendants have denied liability in the proceedings.  Plaintiff has the burden of proof. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

a. How should the Court deal with the respective Parties’ evidence.

23.	At the trial both parties have agreed to tender their respective affidavits without objections and cross examination. In the submissions parties are objecting to certain parts of the witness statements in the affidavits as well as documents annexed to the affidavits. The Court notes that parts of their evidentiary statements and documents are relevant, and others may be not. Some may be objectionable but were not raised at the beginning of trial when they were tendered. Be that as it may, the Court is mindful of the parties’ respective submissions and will apply common sense and logic where facts are disputed.  As for documentary evidence, the Court shall give whatever weight it deems appropriate, as the law allows, to arrive at a just conclusion.

b. Whether the Plaintiffs arrest and detention was wrongful 

24.	The Plaintiff submits that his arrest and detention was unlawful without a Record of Interview and based on the fabricated statements of Esther Moreva and Daniel Samiak contrary to Section 18(1) (c) (iii) (A) & (B) of the Arrest Act and in breach of Section 42 of the Constitution.   

25.	Sections 3 and 18 of the Arrest Act are relevant and they read.

3.	ARREST WITHOUT WARRANT BY A POLICEMAN.
[5]A policeman may, without warrant, arrest a person whom he believes on reasonable grounds–
(a) is about to commit; or
(b) is committing; or
(c) has committed,
an offence.”

18. DUTIES OF OFFICER-IN-CHARGE OF STATION.
(1) Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall–
(a) immediately release the person if he considers that–
(i) the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or
(ii) there are good reasons why the arrested person should not be proceeded against for an offence; or
(iii) proceedings can be effectively taken by way of summons against the arrested person; and
(b) if he does not release the person under Paragraph (a)–take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested–
(i) has committed an offence–the nature of that offence; or
(ii) has been arrested for some other reason–that reason; and
(c) promptly inform the person arrested or cause him to be informed in language he understands of–
(i) the reason for his arrest; and
(ii) details of the charges against him; and
(iii) his right, immediately and in private–
(A) to communicate with a member of his family or a personal friend; and
(B) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; ......”

26.	The law on unlawful arrest was discussed in the case of Wani v The Provincial Police Commander, Westen Highlands Province and Others (2010) N3900 by his Honour, Makail J at paragraphs 11-12 and 15 of the judgment:

11. In order to succeed in an action for unlawful arrest, the plaintiff must prove that police breached the Arrest Act, Ch 339. Once the plaintiff is able to establish breaches of the Arrest Act, Ch 339, it follows that the plaintiff’s personal liberty guaranteed by section 42(3) of the Constitution is also breached. This in turn means that the actions or conduct of the policemen in arresting the plaintiff are unlawful and the policemen must be held liable for damages that may arise.

12. So, where is the breach? What did the policemen do that was unlawful, in light of section 3 of the Arrest Act, Ch 339? Did they act without reasonable belief to arrest the plaintiff or had no reasonable belief that the plaintiff had committed an offence? I find no evidence from the plaintiff and his witnesses establishing that the policemen who apprehended and arrested him breached the Arrest Act, Ch 339, that is, they did not have a reasonable belief that he committed an offence. In my view, the undisputed evidence established that police acted on a complaint by Steamships Hardware and arrested the plaintiff for allegedly breaking into and stealing goods from Steamships Hardware building in Mt Hagen town. In my opinion, that established a reasonable belief that the plaintiff had committed an offence and I see nothing wrong with that belief and the actions of the policemen.

........
15. In order to succeed in an action for unlawful detention, the plaintiff must establish that his detention was without lawful justification. It may arise where a person is not charged with an offence upon being detained or where the person is prevented from leaving the place where he is: see Jack Topo’s case (supra) and David Wari Kofowei -v- Augustine Sirivi & The State [1983] PNGLR 449.”

27.	In the present case, there is undisputed evidence that an armed robbery took place at Lae International Hotel on 19th September 2016 where the Hotel was robbed of more than K 100,000 in cash and other property. The robbery was cleverly planned and carried out. It involved prior arrangements of motor vehicle and motorboat getaways. The motor vehicle used in the robbery belonged to the Plaintiff’s company, Shorncliffe (PNG) Limited. The vehicle was in the possession of the Plaintiff on a 24hour use as part of his employment entitlement when it was used by the criminals in the robbery. 

28.	Although the Plaintiff reported to Police that the vehicle was stolen from him by the criminals who held him up at gunpoint, he remained a person of interest. He was invited to the Police Station about 11 days after the robbery for an interview. After further investigation and obtaining statements from Esther Moreva and Daniel Samiak, the first and second Defendants were of the view that the Plaintiff willingly gave away the vehicle to the criminals to use it for the robbery. Both Esther Moreva and Daniel Samiak gave detailed statements which implicated the Plaintiff giving his company vehicle willingly to the criminals.

29.	Plaintiff argued that the statements by Esther Moreva and Daniel Kamiak were fabricated. In the case of Esther Moreva, she was threatened and coerced by the Defendants to make up a story implicating the Plaintiff. As for Daniel Kamiak, he was accused of lying because of long unresolved conflicts Plaintiff had with him. 

30.	 Plaintiff submitted that the Court should reject the statements of Esther Morea and Jonathan Kalsup attached to the affidavit of the first defendant, Cyrus Natil. Ironically, the Plaintiff has also annexed to his own affidavit filed 22nd June 2022, (Exhibit P1), the same incriminating statements of Esther Moreva (annexure E13), Daniel Kamiak (annexure E14), The Jonathan Kalsup (annexure E16) and Constable Cyrus Natil (annexure E27). These witness statements suggest that the Plaintiff willingly gave away his vehicle to the criminals on the afternoon of Sunday 18th September 2016 to be used in the robbery with a promise for cash return. 

31.	According to the statement of Cyrus Natil (annexure E27 of the Plaintiff’s affidavit) the Plaintiff was interviewed around 6pm on 1st October 2016. Natil stated that Plaintiff confessed giving his vehicle to the criminals, giving names of the criminals involved. The Plaintiff was then arrested and charged that evening. It appears the Plaintiff was charged after the Defendants obtained statements from Esther Moreva and Daniel Kamiak.

32.	I accept the submissions of the Defence counsel that the statements of Esther Moreva and Jonathan Kalsup annexed to the affidavit of the first Defendant and filed in Court are not for the purpose of proving the guilt of the Plaintiff in the robbery. The documents are produced to show that the Defendants had reasonable belief based on the evidentiary material they before them which implicated Plaintiff giving his company vehicle willingly to the criminals to be used in the robbery. That is, the Defendants had reasonable grounds to believe that the Plaintiff has committed an offence and thus they were empowered by law to arrest and charge the Plaintiff as they did.  

33.	The Plaintiff has the onus to prove that the Defendants when arresting him acted without reasonable belief that he committed an offence. After carefully assessing the evidence presented by the parties, I am not satisfied that the Plaintiff has discharged the burden of proof on the balance of probabilities that the Defendants acted without a reasonable belief that he (the Plaintiff) committed an offence. On the contrary, I find there is overwhelming evidence that support the Defendants belief that the Plaintiff aided in committing the armed robbery that took place on 19th September 2016 at Lae International Hotel by giving his company vehicle to be used as the getaway vehicle. The crime of armed robbery was real. It was premeditated and well planned.  The Plaintiff’s company vehicle was used in the robbery. The vehicle theft was not immediately reported until after the robbery was carried out. It does not appear to be just a random vehicle theft. More significantly two of the criminals were convicted and serving jail terms. One of the convicts, Jonathan Kalsup, freely confessed the crime and incriminated the Plaintiff in his confessional statement. 

34.	In the circumstances, the Defendants were justified on the strength of the information they had in arresting and charging the Plaintiff. I find the arrest, the laying of criminal charge and detention of the Plaintiff were carried out in accordance with the law and thus not unlawful.

c.	Whether the Plaintiff was maliciously prosecuted

35.	The Plaintiff alleges that he was maliciously prosecuted for a crime he did not commit. The law on malicious prosecution is settled.  Refer:  Demba Kalo vs Comnie Akaya and Others (2007) N3213 and Kipahi vs Nambos (2020) N8437.  To succeed in a malicious prosecution, the Plaintiff must meet four (4) elements:

		a)	institution of a criminal proceeding by the Defendant.
b)	termination of the criminal proceedings in the Plaintiff’s favour.
		c)	a lack of probable cause to support the charges.
		d)	malice.

(a)	& (b) Institution and termination of criminal proceedings

36.	In respect of elements (a) and (b), there is no dispute that the Defendants initiated criminal proceedings against the Plaintiff. He was arrested and charged by the first and second Defendants with a criminal charge of armed robbery under Section 368 (1) (2) of the Criminal Code Act in October 2016. He was committed by the Committal Court to stand trial in the National Court. The Plaintiff was tried in the National Court in November 2019. He was found not guilty and acquitted on 4th December 2019. The criminal proceedings were terminated in the Plaintiff’s favour. The two elements are established. 

37.	The fact that the Plaintiff was taken to Court and that the charge has been dismissed does not necessarily follow that the Defendants are guilty of malicious prosecution. This is for public interest and for public policy reasons as against protection of individual rights guaranteed under the Constitution. The Police officers must be given space to do their work for the good and order of society. They have a Constitutional duty to receive complaints from anyone and act upon them. Under section 197(2) of the Constitution, the members of the Police Force are independent and not subject to direction or control by anyone outside of the Force in carrying out its duties.  Section 197 reads:  

“Functions of the Police Force.
 
(1)	 The primary functions of the Police Force are, in 	accordance with 	the Constitutional Laws and Acts of the Parliament—

	(a) 	to preserve peace and good order in the country; and
	(b) 	to maintain and, as necessary, enforce the law in an 		impartial and objective manner.

(2) 	Insofar as it is a function of the Police Force to lay, 	prosecute or withdraw charges in respect of offences, the 	members of the Police Force are not subject to direction or control by any person outside the Force.”

38.	The only time the actions of the policemen are legitimately challenged are when they abuse their power, or where they have no probable or reasonable cause to arrest and charge or where they maliciously prosecute persons with ulterior motives or with ill intentions. Turning to the present case, has the Plaintiff established lack of probable cause with malicious intent?

(c) a lack of probable cause to support the charges.

39.	In respect of element (c), the Plaintiff must establish a lack of probable cause to support the charges. That is the Plaintiff must prove that the Defendants did not have a probable or reasonable cause to arrest and charge the Plaintiff. The relevant pleading is at paragraphs 17 of the statement of claim. It reads:

“17. The Defendant Police Officers did not tender any reasonable or probable grounds to support an inference of the existence of any elements of the charge of armed robbery against the plaintiff’.

40.	The Defendants denied the allegations in paragraph 4 of the Defence pleading that the Defendants had reasonable grounds to belief that the Plaintiff was involved in the armed robbery that took place at Lae International Hotel by making available his company vehicle to be used in the robbery.

41.	I have addressed this issue in detail in paragraphs 26 to 38 of the judgment and repeat same here. For the same reasons given, I find the Plaintiff has not proved a lack of probable cause to support the charge on the part of the Defendants. Rather, the contrary position has been shown. The Defendants have demonstrated that they had reasonable belief from their investigations and witness statements that the Plaintiff committed a crime and as such had reasonable or probable cause to arrest and charge the Plaintiff. The Plaintiff has not established element (c). 

(d) Whether the Plaintiff pleaded and proved malicious prosecution

42.	In respect of the fourth requirement of malice, the Plaintiff is required to plead and prove malice with appropriate evidence.  The relevant pleading is at paragraph 18 of the statement of claim which states:

“18. The Defendant Police Officers while acting within the scope of their employment, maliciously used the criminal process to suppress and oppress the plaintiff purposely to distress him based on personal vendetta for revenge, bias, prejudice and conflict of interest, other than to seek a conviction.”

43.	 The Defendants	 specifically deny malice in paragraph 5 (a) of its Defence.  Paragraph 5 (a) of the statement of Defence reads:

“	(a) The Plaintiff has alleged malicious prosecution based on bias, personal vendetta, vengeance, prejudice and conflict of interest against the Defendants however he has failed to plead with sufficient particulars the elements and details of his allegations.”

44.	For the Plaintiff to succeed, the onus is on him to plead particulars of malice.  Order 8 Rule 31 of the National Court Rules requires specific pleading of particulars of malice.  Order 8 Rule 31 reads:

		“31.	Condition of mind. (16/3)

(1)	A party pleading any condition of mind shall give particulars of the 
facts on which he relies.

(2)	In Sub-rule (1) “condition of mind”, includes any disorder or 
disability of mind, any malice and any fraudulent intention, but does not include knowledge.”

45.	In Kipahi vs. Nambos (supra), Kandakasi DCJ discusses the necessity to plead and provide evidence to establish the essential elements of malice to prove malicious prosecution.  At paragraphs 24 – 25 of his judgment, his Honour says:

“24. Hence, modern malicious prosecution theory and practice allows for balancing of four competing policy interests.  These are namely; (1) the need to encourage honest accusers; (2) resolving litigation quickly and finally; (3) deterring groundless suits; and (4) compensating victims of groundless suits or prosecution:  Groundless Litigation, at 1220.  Through these developments, it has now become clearly established that there are four critical elements that must be met to succeed in a modern-day malicious prosecution claim.  These are:

(1)	institution of a criminal proceeding by the defendant.
(2)	termination the criminal proceeding in the plaintiff’s favour.
(3)	a lack of probable cause to support the charges; and
(4)	malice.”

“25.  The fourth requirement of malice has been defined as a requirement for a plaintiff in a malicious prosecution case to pleaded and then prove by appropriate evidence the defendant’s subjective state of mind at the relevant time of the alleged malicious prosecution. This has to do with the defendant’s intention or purpose behind his or her initiation of the relevant prosecution.  That intention or purpose must be for reasons other than bringing a criminal offender to justice.  Thus, pleading and establishing this element is a critical component for a claim n malicious prosecution:  Ryan, at 779.”

46.	After referring to several cases decided in this jurisdiction and overseas, his Honour concludes his discussion at paragraph 32 of his judgment, where he said:

“32.  The foregoing discussions of the law, make it clear that the element of malice is critical element.  Malice has to do with the concerns the accuser’s motivation for bringing the failed criminal proceedings.  Most of the time it is difficult to know what is in one’s mind, except only to infer from one’s actions or inactions.  Motives or intentions of an accuser are matters that are personal and are best known to him or herself.  Given that, it would be most difficult for the victim of any malicious prosecution to succeed in a claim of vicarious liability against an accuser’s employer or principal, because the plaintiff will need to plead with sufficient particulars mind set and motivation of two different persons.  To succeed n a claim based on malicious prosecution against accuser and his employer, the victim plaintiff has a duty to clearly and succinctly plead with particulars the bases for also claiming malice against his or her accuser’s employer or principal.”
	
47.	In the present case, the Plaintiff did not clearly plead the particulars of malice in the statement of claim. He did not clearly set out any hidden motives and ill intentions of the Defendants to harm the Plaintiff. The Plaintiff did not plead any improper purpose pursued by the Defendants other than that of bringing him to answer for his involvement in the armed robbery at the Lae International Hotel.

48.	The law on pleadings is settled in the case Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 that …unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. The Plaintiff will only be entitled to what he has pleaded and not otherwise. I find the Plaintiff has not sufficiently pleaded malice and is estopped from calling evidence to establish liability.

49. 	Despite the lack of pleading, the Plaintiff sought to prove malice from derogatory words directed at him by the third Defendant on 2nd October 2016. The words uttered in the Pidgin language were “You brother of Titus Wambun! Now you are in our hands. You will not escape.”  The Plaintiff translated this to mean, that the policemen had a grudge against him for being a close friend and work mate of Titus Wambun at Shorncliffe (PNG) Limited. Late Titus Wambun was convicted for murder of late Peter Akusa, a CID officer.

50 	I am not convinced malice has been proved from the alleged utterances. Firstly, the Plaintiff has not pleaded these facts in the statement of claim. Secondly the Plaintiff has not given any detail evidence of his friendship with late Titus Wambun. The evidence shows the Plaintiff commenced employment with Shorncliffe in February 2010. Titus Wambun was convicted of murder in 2002 and sentenced. Titus Wambun comes from Wabag and the Plaintiff comes from Simbu. The late Peter Akusa, deceased, is from East Sepik Province. The facts do not add up to establish ill motive on the part of the Defendants to falsely accuse the Plaintiff of a very serious crime that would deprive him of his liberty and affect his personal and family life. It defies common sense and logic to attribute malice where the reasons for malice and the relationship are so remote and disjointed.  

51.	For the foregoing reasons, I conclude that the Plaintiff has not established malice on the part of the Defendants. I find the Defendants are not liable and will therefore dismiss the Plaintiff’s claim for malicious prosecution.

d.	Whether the publication of the allegations against the Plaintiff defamatory

52.	The Plaintiff claims damages for defamation against the defendants, especially the publications made by the fourth Defendant concerning the criminal actions taken against the Plaintiff. For the Plaintiff to succeed, he must show that the Defendants made a defamatory publication against the Plaintiff and the publication was unlawful in that it was not protected, justified or excused by law. 

53. The publication of the arrest and charge against the Plaintiff were done by the fourth Defendant, the Northern Commander of Police. Based on my findings in the judgement I find the publication was made in good faith, without malice, and with an honest and reasonable belief that what was published is for the public interest.  It is justified under Sections 8-12 of the Defamation Act.  

Conclusion

54.	In the end, I am not satisfied that the Plaintiff has proven liability against the defendants on the balance of probabilities for all the reasons given. I will therefore dismiss the proceeding.

Costs

55.	In respect of cost, the defendants have been successful in defending the claim and therefore are entitled to cost.

Orders

56.      The Court orders:

a)	The Plaintiff’s proceeding is dismissed.
b)	The Plaintiff shall pay the Defendants costs to be taxed, if not agreed.
c)	Time be abridged.
_____________________________________________________________
Charles Moreva	:	Plaintiff In person
Lawyers for the defendants: Solicitor General