Home | Databases | WorldLII | Search | Feedback Court of Appeal of Vanuatu

  Download original PDF

Republic of Vanuatu v Patunvanu [2015] VUCA 9; CAC 11 of 2015 (8 May 2015)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

CIVIL APPEAL CASE No.11 OF 2015

BETWEEN:

REPUBLIC OF VANUATU
Appellant

AND

JENNECK SAMUEL PATUNVANU
Respondent

Coram: Hon. Justice John Von Doussa
Hon. Justice Ronald Young
Hon. Justice Daniel Fatiaki
Hon. Justice Dudley Aru
Hon. Justice Mary Sey
Hon. Justice Stephen Harrop

Counsel: Mr K Tari (SLO) for the Appellant
Mr K Loughman for the Respondent

Date of Hearing: Wednesday 29 April 2015 at 3 pm
Date of Judgment: Friday 8 May 2015

RESERVE JUDGMENT

Introduction

1. This is an appeal against the judgment of Justice Saksak in the Supreme Court delivered on February 2015 in which the Claimant's Claim of false arrest, unlawful imprisonment and two malicious prosecutions were upheld and Vt 6 million for damages awarded together with VT 900,000 for interest. The Appellant contends that none of the courses of action should have been found established and that therefore no damages ought to have been awarded. The respondent supports the Supreme Court judgment and the reasoning by which it was reached.
   

Background Facts

2. Mr Patunvanu is an experienced sea captain and carries on business under the name "Marine Safety Vanuatu".
   
3. The facts giving rise to the claims were not materially disputed with an important exception as to the basis on which Mr Patunvanu was arrested on 21 April 2011. We therefore gratefully adopt the background facts contained in Justice Saksak's Judgment:
   

"3. Sometime in January 2011 the claimant signed a lease agreement with Carl Belden regarding two vessels, namely the MV Christine Leigh and MV Kaona. Subsequent to that signing the claimant went to the Solomon Islands to bring the two ships to Vanuatu with the help of some crew members from the Solomon Islands.

4. The Claimant captained the MV Christie Leigh and sailed from the Solomons on or about 14th January 2011 arriving in Port Vila on or about 20th January 2011 at 2100 hours.

5. The MV Kaona was captained by Captain Billy Mamaloni which sailed from the Solomons on the same date and arriving in Port Vila at Mid night on 20th January 2011. Both ships were anchored off Malapoa Point on arrival.

6. On 24th March 2011 Abel Kone made a formal complaint statement against the claimant alleging misappropriation, theft and forgery.

7. On 18th and 19th May 2011 Abel Kone made an additional complaint statements against the claimant and further alleging theft of VT 75.000.

8. On 6th April 2011 the Harbour Master, Captain Luke Beandi made a formal complaint statement to the Police alleging that the claimant and Captain Billy Mamaloni had breached section 5(a), (b), (c), (d), ( e), and ( f) of Ports ( Operations in Port Vila ) Regulations Cap.26.

9. Following the complaint of Captain Luke Beandi, the Police arrested the claimant at the Vila Mall at about 12'oclock noon on 21st April 2011. The Claimant was having lunch with a member of Parliament at the time. Four Police Officers in uniform arrived and arrested the claimant and put him in the metal cage at the back of the Police Vehicle. They then drove through town back to the Police Station.

10. At the Police Station the claimant was told to get out of the cage and go into the office. He was told he would be locked up in a cell. He was then locked up for about 3 ½ hours.

11. The claimant being asthmatic and on medication had difficulty breathing inside the dirty and smelly cell. He asked the Police Officers to retrieve his spray from his wife at the family home at Tagabe. After about an hour, the Police returned with the claimant's spray.

12. Later on 21st April 2011 at around 3:30pm the Police took the claimant before the Magistrate Court. He was formally charged in Criminal Case No. 72 of 2011 for breach of section 5 of the Ports Regulations Cap 26 on 8th April 2011.

13. Also during his appearance in the Magistrate Court on 21st April 2011 Mr Loughman sought bail on behalf of the claimant. Bail was granted on conditions that-

a. He must not leave Efate,

b. He must not interfere with Prosecution witnesses,

c. He reports to the Prosecution Office every Friday between 7:30am to 4:30pm( Sic)

d. He appears on 13th May 2011 at 8:30am for plea,

e. Any breach of conditions would result in his arrest and detention.

14. The case was listed and called for plea on the following dates-

1. 13 May 2011, the prosecutor did not appear
2. 30th May 2011, the prosecutor did not appear again.

100. 24th June 2011, the prosecutor did not appear

4. 6th July 2011, the prosecutor did not appear
5. 22nd August 2011, the prosecutor did not appear and the Court dismissed the case for want of prosecution.
   

On each of those dates, the claimant appeared in Court.

15. On or about 20th June 2011 the defendant commenced the second criminal proceeding against the claimant in Criminal Case no. 173 of 2011 Public Prosecutor .v. Jenneck Samuel.
    
16. The charges preferred and laid against the claimant were misappropriation (Count 1), theft (Count 2) and forgery (Count 3).
    
17. On 14th July 2011 the claimant appeared in Court and pleaded not-guilty to all the charges. The Court adjourned the case for trial to 21st July 2011.
    
18. On 21st July 2011 the claimant appeared in Court however, the prosecution entered a nolleprosequi in respect of all three charges laid against the claimant."
    

THE CLAIM IN THE SUPREME COURT

4. Mr Patunvanu claimed that his arrest on 21 April 2011 was unlawful because it was carried out without a bench warrant and in relation to an alleged defence under the Ports (Operations of Port Vila) Regulations the maximum penalty for which is a fine so that the Respondent could not properly have been arrested without a warrant as it was not a cognisable offence. He further claimed that his detention from the point of arrest to his appearance at Court was consequently unlawful.
   
5. Mr Patunvanu also claimed that both of the prosecutions against him were malicious as having been brought for reasons other than to prosecute him as an offender.
   
6. As to the first prosecution, Criminal Case No. 72 of 2011 alleging the Maritime offending particulars pleaded were that the complainant in that case was Maurice Kaloran (Former Director of Port and Harbour) and that the Respondent had been asked to be part of an investigation team looking into Mr Kaloran's conduct in light of allegations of misappropriation and failure to tender procedure in the building of the Pango Lighthouse.
   
7. As to the second prosecution, Criminal Case No. 173 of 2011 in which the counts of misappropriation, theft and forgery were laid, the particulars were that the main complainants were Carl Belden, Abel Kone and Ronnie Lele against whom the Respondent had obtained a default judgment on 30 March 2011 for Vt 1,400,000. Further, it was pleaded that in January 2011, Mr Belden had engaged the Respondent to bring the two ships to Vanuatu from the Solomon Islands under a lease agreement pursuant to which the Respondent would continue to ran and operate the ships within Vanuatu. Mr Belden however had terminated that agreement and entered into two new lease agreements, one with Abel Kone to operate MV Kaona and the other with Ronnie Lele to operate the MV Christie Leigh. It was further pleaded that Mr Kone, Lele and Belden had difficulty running the two ships under the new lease agreements because they assumed that the Respondent was preventing them doing so through Admiralty Case No. 3 of 2011 in which he had obtained the default judgment.
   

DISCUSSION

Unlawful Arrest and False Imprisonment

8. The Appellant's appeal against Justice Saksak's finding that there was an unlawful arrest and unlawful detention for about 3 ½ hours at the Police station were undoubtedly correct and the appeal against those findings must be dismissed.
   

Malicious Prosecution – Criminal Case No. 72 of 2011

9. At paragraph 32 (c) of his judgment Justice Saksak said: "The prosecution of the claimant in Criminal Case No. 72 of 2011 was simply bad. He was charged without the evidence to support the charge. He was charged prior to being interviewed. There was another captain who was complaint against but he was not charged. Those are the facts what (sic) made this prosecution malicious. The test established in the case of Martin v. Watson [1994] 2 All ER 606 was satisfied by the Claimant."
   
10. Establishing the tort of malicious prosecution is no easy task. The ...... authors of Salmond and Heuston on the law of torts (21st edition, 1996) state at paragraph 19.4:
    

"In order that an action shall lie for malicious prosecution.... the following conditions must be fulfilled:

(1) The proceedings must have been instituted or continued by the defendant:

(2) He must have acted without reasonable and probable course;

(3) He must have acted maliciously;

(4) The proceedings must have been unsuccessful – that is to say must have terminated in favour of the plaintiff now suing."

11. There can be no doubt here that both of the prosecutions were initiated by prosecutors for whom the Appellant is responsible. Equally the fourth requirement is established in each case because the first prosecution ended with a dismissal of the case (for want of prosecution) and the second resulted in the discharge of the respondent after the entry of a nolleprosequi by the Public Prosecutor. The effect of this was that the respondent had to be treated in all respects as though he had been acquitted.
    
12. The first question to be considered is whether in laying the charges in Criminal Case No. 72 of 2011 the Prosecutor acted without reasonable and probable course. The burden of proving the absence of this is on the claimant who, as Salmond and Heuston observe"thus undertakes the notoriously difficult task of proving a negative."
    
13. As the lenient authors go on to say:
    

"Reasonable and probable course means a genuine belief based on reasonable grounds, that the proceedings are justified..... the defendant is not required to believe that the accused is guilty: It is enough if he believes there is reasonable and probable course for a prosecution. He need only be satisfied that there is a proper case to lay before the Court."

14. It is obvious, but none the less important not to forget, that the assessment of this question and indeed of whether there was malice, is to be made at the time when the charges were laid rather than informed by hindsight. Self-evidently, a prosecution launched with reasonable and probable course may nevertheless for a variety of reasons be later discontinued without this derogating from the original justification for the charge.
    
15. Here there was undisputed evidence that there was a written complaint lodged by Captain Luke Beandi, the Harbour Master at Port Vila which expressly stated that neither the vessel under the command of the respondent nor that under the command of Captain Mamaloni had obtained the Harbour Master's consent in the various respects required by section 5 of the Regulations. His complaint attached a copy of the Regulations and the Public Prosecutor prepared a statement of brief facts as well as particularized charge and a four page document in support of an application for a remand in custody or alternatively on bail on certain conditions. Given that the maximum penalty was fine, we cannot see how either a remand in custody or on bail could have been justified. For present purposes though it is clear that the Public Prosecutor acted entirely as if she believed she had reasonable and probable course to launch the prosecution and we note that the complainant was on the face of it a responsible public official without any apparent ulterior motive to make the complaint.
    
16. We note too that Mr Loughman was heard on the bail application and that Magistrate saw it as appropriate in the circumstances to impose bail conditions which included an obligation to report to the Prosecution every Friday and a warning of arrest and remand in custody until the case was completed if there were any breach of bail. To this extend the charges receive the imprimatur of the Court.
    
17. We do not understand Mr Loughman to have contended either in the Supreme Court or before us that there was no basis for the charges.: He did not plead that there was no reasonable course for the prosecution to be launched by reference to the facts of the complaint lodged by Captain Beandi but rather attacked the prosecution as being for an ulterior purpose. Of course if there were ulterior reasons at play but nevertheless a reasonable and proper course for prosecution then the claimant failed to establish an essential element of the course of action. Although it is unlikely to occur, it is conventionally possible, for there to be a prosecution launched with malice but also with an honest and reasonable belief in the prospects of success in which case a claim for malicious prosecution must fail because the second element is not fulfilled.
    
18. In this case we are not satisfied that there was sufficient evidence justifying the conclusion that the Public Prosecutor did not have reasonable and probable course to lay the charges under the Regulations. In our view, this is fatal to the course of action and the appeal in relation to the first alleged malicious prosecution must succeed.
    
19. In any event there is the further requirement to proof that the prosecution was launched maliciously. The session in the claim that Mr Kaloran was the complainant is no the face of it correct. While he may have complained to the Harbour Master, it was the Harbour Master who complained to the Police and to the Prosecutor so even if it was a malicious complaint, it was cloaked with the Harbour Master's authority that when it came to the Public Prosecutor. On the evidence provided to the Supreme Court we are not satisfied that the Respondent proof his allegation that the Public Prosecutor knew of the alleged motivation for Mr Kaloran to complain about the Respondent and that she deliberately launched the prosecution knowing of that. We therefore not satisfied that the third element of malice was established on the evidence. We do not accept Justice Saksak's conclusion that the failure to interview the Claimant until after he was charged and the fact that the other Captain was not charged is proof that the Public Prosecutor acted maliciously. The lenient Judge referred to his being satisfied that the test in Martin v. Watson [1994] 2 All Err 606 was satisfied. We cannot accept that it was in relation to the prosecution under the Regulations. That case confirmed the test as we have set it out above. The facts of Martin v. Watson itself emphasize a need to focus on the mind of the prosecutor. That was a case where a deliberately false allegation had been made by the defendant to a Police officer but the defendant had not taken part in the decision to prosecute so the defendant was not liable for malicious prosecution. Here therefore the focus had to be on the mind of the Public Prosecutor, Ms Tavoa and arguably she needed to be summonsed by the Respondent as a critical witness in support of the allegation of the Prosecution she launched as having been motivated by malice. The onus was on the Respondent to proof that she was malicious. She was not called to give evidence although the Acting Public Prosecutor, Mr Malantugun purported to do so effectively on her behalf.
    
20. We do not accept there was sufficient evidence justifying the conclusion reached by Justice Saksak that the prosecution under the Regulations was malicious. Accordingly in our view, the respondent failed to establish both the second and the third elements of that course of action, in relation to the Criminal Case No. 72 of 2011.
    

Criminal Case No. 173 of 2011

21. Justice Saksak also found this prosecution was malicious. At paragraphs 40 and 41 of his judgment he found:
    

"40. The evidence was that the charges of misappropriation theft and forgery were laid following the complaints of Abel Kone made on 24th March 2011 and on 18th and 19th May 2011. That is undisputed evidence. The difficulty is that when the police interviewed the claimant on 27th April 2011, six days after his arrest, detention, Court appearance and bail, the police did not raise any questions to the claimant about the allegations made against him by Abel Kone. And the defence did not produce any evidence showing (a) witness statements to support the allegations and (b) any suspect statement from the claimant as defendant or accused at the time.

41. Faced with that scenario the Public Prosecutor took decisions to prosecute the claimant and laid formal charges dated 11th July 2011. This is annexed to the sworn statement of Sgt.Wycliff Tarilenga (Exhibit D3). The case was then for a preliminary hearing on 21st July 2011. When the case was called by the Magistrate to assess the evidence and decide whether there was a prima case to commit the claimant as accused to the Supreme Court, the prosecution invited the Court to enter nolleprosequi. Their defence is that there was insufficient evidences against the claimant. Was that a malicious decision? In my view it was. That decision could and should have been made right at the beginning when considering the complaint, the witnesses statements and the suspects statement to assess whether on the basis of the material before her, a guilty plea and conviction could be secured or reached. To set a prosecution in motion without such consideration and assessment and to make that decision at a preliminary inquiry stage was simply malicious, if not a neglect of duty. In my view the test set out in Martin v. Watson were (sic) satisfied by the claimant in this case."

22. Mr Loughman points to the failure of the police to interview the respondent about Mr Kone's complaints before they laid the charges. While this might on occasion be indigitive of an absence of reasonable and probable course and of malice, it is by no means unusual for a prosecutor to lay charges without any input from the defendant. Of course on many occasions a defendant whom the police seek to interview declines to make any statement in the exercise of his/her rights. The prosecutor must then decide whether there is sufficient evidence available without any comment from the defendant to lay a charge. But it does not follow that if there is no interview or even an attempt to interview a defendant that the prosecution may not have sufficient evidence already.
    
23. What information then did the prosecutor have before laying the charges in Criminal Case No. 173 of 2011? First there was a handwritten statement taken on 24 March 2011 and the further one taken on 18 May 2011. While it is unclear how the second statement came to be taken, there is at least an available implication that the police sought further information from Mr Kone in respect of his initial complaint. The information provided allowed the Public Prosecutor to lay three charges with a reasonable level of particularization. The documents lodged at the Court for the purposes of the preliminary enquiry hearing were the two complaints, the formal statement of complaint signed by the Public Prosecutor pursuant to section 35 of the Criminal Procedure Code certifying that the Public Prosecutor believed on reasonable and probable grounds that Mr Patunvanu had committed the offences of misappropriation, theft and forgery and the information which contained the three charges together with the particulars.
    
24. In these circumstances, we cannot accept that there was enough evidence to support the respondent's allegation that these charges were laid without reasonable and probable course. While the level of investigation and the absence of interview of the respondent may support an allegation of far less than ideal preparation, all the prosecutor needed to have at that stage was a belief that there was reasonable and probable course for the prosecution, a proper case to lay before the Court. Here there was an identified complainant who had twice made statements in support of the allegations and sufficient detail to allow particularized charges to be laid. The prosecutor herself had certified formally that she believed on reasonable and probable grounds that he had committed the offences. The Public Prosecutor herself was not called as a witness by the Respondent in an attempt to challenge her state of mind as being otherwise and holding the belief she certified she had. We cannot accept Justice Saksak's conclusion that a failure to interview the complainant before charging the Respondent indicates an absence of reasonable and probable course to do so. While as Justice Saksak noted, there were no supporting witness statements, that does not mean that Mr Kone's statements alone did not provide a sufficient basis to launch the prosecution.
    
25. Even if there was an absence of reasonable course, we are also not satisfied that there was sufficient proof of malice. The Respondent pleaded that there were ulterior motives for the prosecution relating to the relationship between the respondent and Mrs Beldon, Cone and Lele.
    
26. We first note that the pleaded malice was not relied on at all by Justice Saksak in his decision: rather he focused on the paucity of evidence and the prompt decision to discontinue the prosecution after it was laid. With respect he appears to have equated what he saw as insufficient justification for the charge to be laid with proof of malice. As we have already noted, even if the prosecutor was lacking in the honesty of belief in the prospects of success of the prosecution that does not mean she had a dishonest motive in lodging it. Pleaded dishonesty or ulterior motives were simply not established by sufficient evidence called at trial and we note that Mr Loughman's submissions before us also fail to refer to any evidence which might have supported the pleaded allegations of malice. The same is true of his submissions to Justice Saksak in the Supreme Court.
    
27. In summary, we are not satisfied that on the evidence before the Supreme Court there was sufficient justification for concluding that the prosecutor acted without reasonable and probable course in filing the charges but even if we had found otherwise, there was no evidence or even a submission on behalf of the Respondent which justified a conclusion that the pleaded malice set out in paragraph 15 of the amended claim was established. There may well have been justification for criticism of the conduct of the prosecutor as being inadequately prepared for the laying of these charges but the evidence fell well short of establishing the second and particularly the third element required to be proved to establish a course of action in malicious prosecution.
    
28. We therefore allow the appeal so far as it relates to the Supreme Court's finding that there was a malicious prosecution in respect of Criminal Case No. 173 of 2011.
    

Conclusions on liability issues

29. We uphold the Supreme Court's findings that there was unlawful arrest and false imprisonment and dismiss the appellant's appeals in those respects but we allow its appeals in respect of the two findings that there were malicious prosecutions, respectively in Criminal Case No. 66 of 2011 and 173 of 2011.
    

Damages

30. Self-evidently the appeal against the award of damages in the Supreme Court must be allowed because the most serious findings on liability, those relating to malicious prosecution, has been set aside. An assessment is now required of the appropriate award of damages to the Respondent for the unlawful arrest and false imprisonment which occurred between his arrest and his appearance some 3 ½ hours later at the Magistrate's Court.
    
31. In the Supreme Court the respondent claimed Vt 500,000 for humiliation and shame and Vt 1 million for false imprisonment.
    
32. As we understood, Mr Loughman, the Respondent accepts that the most that could reasonably be sought was around Vt 1 million covering both the house arrest and unlawful detention for 3 ½ hours. The question is what is the appropriate award having regard to the awards made in cases with similarities to this one.
    
33. We accept that the arrest itself was humiliating and embarrassing for the Respondent. He is an experienced sea man of 30 years and former Harbour Master who was arrested while having lunch with a member of Parliament at the Vila Mall. His detention began with a degrading ride, albeit a fairly short one, in the cage in the back of a police vehicle from Vila Mall to the Police station. He noted in his evidence that this involved a drive through town and that he felt humiliated and ashamed because people on the street saw him on the back of the cage. The inference is that there are likely to have been people who knew him, who saw him inthat position. He was then detained in a cell and was worried about his ashma worsening in the conditions there. He had to request his ashma spray but this was brought to him reasonably promptly. He then had to travel to the Magistrate's Court from the police station, again at the middle cage on the back where he was visible to the public.
    
34. How do these facts compare with other similar cases?
    
35. Mr Tari referred us to the Court of Appeal judgment in Warte v. Republic of Vanuatu [2013] VUCA 10 and suggested that the damages here should be calculated based on that case. There Claire Dornic v. Lee McNicol, were arrested by police officers who unlawfully entered and remained on Mrs Dornic's property after they were told to leave by her. They were detained for some 3 hours and in the course of arrest Mrs Dornic suffered bruising to her legs and body. Mr McNicol was also manhandled and forced into the police vehicle and was aged 67 at that time. Mrs Dornic was never charged with offence and there was no evidence that the police ever had a legitimate basis for her arrest. Mr McNicol faced a minor charge of wilful damage of a lock but that was withdrawn by the police with his ever appearing in Court. Even if the charge had been justified, it could not have legitimately formed the basis for this arrest.
    
36. The Court of Appeal said at paragraphs 31 and 32 of its judgment:
    

"31. In our view the appellants were arrested and imprisoned without course in the circumstances where the arresting police officers were well aware that the arrests were not justified. Mrs Dornic was assaulted during the course of her arrest. Mr McNicol was 67 years of age and poor health. The appellants were also detained in custody for a relative (sic) short period of some 3 hours. However, neither appellant suffered serious or permanent injury.

32. The Respondents suggest an award of between Vt 400,000 to Vt 600,000 for each appellant. We agree this is an appropriate range. Mrs Dornic is entitled however to a somewhat higher award given the assault on her. Accordingly we award Mrs DornicVt 600,000 and Mr McNicolVt 400,000 damages under this head."

37. There were other awards of damages to Mrs McNicol for trespass and malicious prosecution (Vt 1 million and Vt 125,000 respectively) and an award of Vt 125,000 to Mr McNicol for malicious prosecution.
    
38. Although we have upheld the Supreme Court finding that the arrest of the Respondent at the Vila Mall without a warrant was unlawful, there is no suggestion that the arresting officers knew that they were acting unlawfully. Also there is no suggestion of physical harm suffered by the Respondent although there was the additional factor of humiliation during his transport to and from the police station and from the stress associated with the concerned about his ashma spray.
    
39. In the circumstances we consider that an award of damages of Vt 500,000 covering the unlawful arrest and false imprisonment would be consistent with the approach of the Court of Appeal in Warte.
    

Interest on Damages?

40. The Respondent both claimed and was awarded interest on the damages awarded in the Supreme Court. In our view where the damages are not for out of pocket losses i.e. special damages which the Court has found ought to have been paid by the defendant to the claimant at an earlier point in time, in principle no interest ought to be awarded. When the Court awards damages for unlawful arrest and detention it considers the case in light of "current money awards" as at the date of trial so it is not appropriate to award interest on such intentionable items. This has been long established in personal injury cases in relation to awards for pain and suffering, loss of immunity and so on. See Alphonse v. Tasso [2007] VUSC 54 at [57] and Commissioner of Police v. Garae [2009] VUSC 9 at [31].
    
41. We therefore decline to award interest on the damages award of Vt 500,000 which we consider appropriate.
    
42. In relation to the damages award made in the Supreme Court we set that aside and replace it with an award of Vt 500,000 in favour of the Respondent against the appellant but with no interest applicable.
    

Costs

43. Both parties have had some success on appeal. The appellant has succeeded in its challenges to the findings that there were two malicious prosecutions and has succeeded in reducing the damaging award overall from Vt 6.9 million plus interest to Vt 500,000. On the other hand it persisted in its contention that the arrest and subsequent attention were lawful when hatenly even though the respondent could have been arrested on the theft, misappropriate and forgery charges, in fact he was arrested on the Maritime charges.
    
44. In these circumstances, we consider costs should lie where they are fallen. The award of costs made in the Supreme Court must obviously be and is set aside.
    

Self-evidently the effect of the second and third of these cumulative requirements is that even if the prosecutor lays a charge without reasonable and probable course to do so there is no malicious prosecution unless it is also proved that he or she acted maliciously. Further, even if it were proved that the prosecutor acted maliciously, there is no malicious prosecution if (unlikely as this may be) there was reasonable and probable course.

Accordingly as the lenient authors of Salmond and Hueston observe at page 397:

"Malice and absence of reasonable and probable course must unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence of want of sound judgment and the use of it creates no liability; and, conversely, if there are reasonable grounds for the proceedings (for example the probable guilt of an accused person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Therefore it is necessary to distinguish between honesty of belief and honesty of motive: the former is relevant to the question of reasonable and probable course, the latter to the question of malice.

Malice means the presence of some improper and wrongful motive – that is to say, and intent to use the legal process in question for someother than its legally appointed and appropriate purpose. It can be proved either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor."

DATED at Port Vila this8thday of May, 2015

BY THE COURT

Vincent LUNABEK
Chief Justice