Londe Tole v Joe Kongi (First Defendant) Jason Tiban (Second Defendant) Peter Wani (Third Defendant) Peter Pop (Fourth Defendant) Joe Kesan, State Prosecutor, Mt Hagen (Fifth Defendant) The Independent State of Papua New Guinea (Sixth Defendant) (2019) N7728

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 01 March 2019
• Court: National Court
• Citation: (2019) N7728
• Docket Number: HRA NO 237 OF 2017
• Year: 2019
• Judgement Number: N7728

Full Title: HRA NO 237 OF 2017; Londe Tole v Joe Kongi (First Defendant) Jason Tiban (Second Defendant) Peter Wani (Third Defendant) Peter Pop (Fourth Defendant) Joe Kesan, State Prosecutor, Mt Hagen (Fifth Defendant) The Independent State of Papua New Guinea (Sixth Defendant) (2019) N7728

National Court: Cannings J

Judgment Delivered: 1 March 2019

N7728

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 237 OF 2017

LONDE TOLE

Plaintiff

V

JOE KONGI

First Defendant

JASON TIBAN

Second Defendant

PETER WANI

Third Defendant

PETER POP

Fourth Defendant

JOE KESAN, STATE PROSECUTOR, MT HAGEN

Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Waigani: Cannings J

2018: 21 December,

2019: 22 February, 1 March

TORTS – malicious prosecution – elements – whether defendant police officers and State Prosecutor instituted criminal proceedings without reasonable and probable cause – whether defendants motivated by malice or any other improper purpose

TORTS – false imprisonment – elements – whether detention in remand for 19 months was unlawful

HUMAN RIGHTS – whether unsuccessful prosecution of plaintiff by ex officio indictment, combined with detention in remand for 19 months, amounted to breach of plaintiff’s human rights – Constitution, Sections 32 (right to freedom), 36 (freedom from inhuman treatment), 37 (protection of the law), 42 (liberty of the person)

The plaintiff was charged by police with three counts of wilful murder and remanded in custody for five months before the District Court refused to commit him for trial. Then the Public Prosecutor issued an ex officio indictment and the plaintiff was rearrested and detained in custody for a further period of 14 months, during which time he faced trial in the National Court on the same charges of wilful murder. He was acquitted and discharged from custody. The plaintiff subsequently commenced proceedings against the police investigator and three other members of the Police Force (first to fourth defendants) responsible for pursuing him, the State Prosecutor upon whose recommendation the ex officio indictment was issued (fifth defendant) and the State (sixth defendant), claiming damages for the torts of malicious prosecution and false imprisonment and for breaches of human rights under Sections 32, 36, 37 and 42 of the Constitution.

Held:

(1) The elements of the tort of malicious prosecution are that (a) the defendant is responsible for institution of proceedings against the plaintiff; (b) the defendant instituted the proceedings without reasonable and probable cause; (c) the defendant was motivated by malice or some other improper purpose; and (d) the criminal proceedings were resolved in favour of the plaintiff.

(2) Elements (a) and (d) were established but not (b) or (c). The plaintiff failed to prove that the defendants pursued his case without good reason as there was a substantial body of eyewitness evidence that the plaintiff was directly involved in the murders, a no-case submission was rejected at the trial and the prosecution ultimately failed as the State could not exclude the alibi raised by the plaintiff. There was no evidence, other than the plaintiff’s suspicion, that any of the defendants acted out of spite or ill-will towards him. A cause of action in malicious prosecution was not established.

(3) The elements of the tort of false imprisonment are that the defendant detained the plaintiff without the plaintiff’s consent, in circumstances that were unlawful.

(4) Here the circumstances were not unlawful as there was, in respect of all periods of custody, a reasonable suspicion that the plaintiff had committed offences and a court order authorising his detention. A cause of action in false imprisonment was not established.

(5) As to the claims of human rights breaches, the plaintiff failed to prove that he was unlawfully deprived of his right to freedom, that he was submitted to inhuman treatment, that he was not afforded the full protection of the law or that he was deprived of his liberty in circumstances not permitted by Section 42 of the Constitution. All human rights claims failed.

(6) Liability was not established and the proceedings were entirely dismissed.

Cases Cited

The following cases are cited in the judgment:

Joe Hesingkeoc Nayos v Roy Gawi (2008) N3484

Justin Tkatchenko v National Capital District Commission (2002) N2196

Lucas Roika v Peter Wama and Others (1995) N1373

Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308

Pius Nui v Mas Tanda (2004) N2765

Titus Wambun v Inspector D Yamasombi (2009) N3787

TRIAL

This was a trial on liability for malicious prosecution, false imprisonment and breach of human rights.

Counsel

T M Ilaisa, for the Plaintiff

T Mileng, for the Defendants

1st March, 2019

1. CANNINGS J: The plaintiff, Londe Tole, was in February 2013 charged by police with three counts of wilful murder and remanded in custody for five months, before the Mt Hagen District Court, in July 2013, refused to commit him for trial and discharged him from custody. Then the Public Prosecutor issued an ex officio indictment against him. In March 2014 he was rearrested and detained in custody for a further period of 14 months. In May 2015 he faced trial in the National Court at Mt Hagen on the same charges of wilful murder. He was acquitted in June 2015 and again discharged from custody.

2. The plaintiff subsequently commenced proceedings against the police investigator and three other members of the Police Force (first to fourth defendants) responsible for pursuing his case, the State Prosecutor upon whose recommendation the ex officio indictment was issued (fifth defendant) and the State (sixth defendant), claiming damages for the torts of malicious prosecution and false imprisonment and for breaches of human rights under Sections 32, 36, 37 and 42 of the Constitution. All defendants deny liability and a trial has been conducted. The issues are whether the plaintiff has established a cause of action in:

· malicious prosecution;

· false imprisonment; and/or

· breach of human rights.

MALICIOUS PROSECUTION

3. The elements of the tort of malicious prosecution are that:

(a) the defendant is responsible for institution of proceedings against the plaintiff;

(b) the defendant has instituted the proceedings without reasonable and probable cause;

(c) the defendant was motivated by malice or some other improper purpose; and

(d) the criminal proceedings have been resolved in favour of the plaintiff.

(See generally Lucas Roika v Peter Wama and Others (1995) N1373, Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308, Justin Tkatchenko v National Capital District Commission (2002) N2196; Pius Nui v Mas Tanda (2004) N2765; Joe Hesingkeoc Nayos v Roy Gawi (2008) N3484, Titus Wambun v Inspector D Yasmsombi (2009) N3787; and J G Fleming The Law of Torts 5th edition The Law Book Company Ltd © 1977.)

4. The first defendant, Joe Kongi, was the lead Police investigator who decided to charge the plaintiff with three counts of wilful murder. The fifth defendant, Joe Kesan, is the Senior State Prosecutor who assessed the evidence against the plaintiff after the District Court refused to commit the plaintiff for trial, and recommended to the Public Prosecutor that an ex officio indictment should be issued and prosecuted the case in the National Court (before being removed from the case by order of the trial judge, upon an application to that effect being made by the plaintiff). Their roles in the criminal process are uncontentious facts, of which there is ample evidence. Element (a) is thus satisfied in relation to the first and fifth defendants.

5. It is not satisfied, however, in relation to the other members of the Police Force (the second, third and fourth defendants) as there is insufficient evidence that any of them was responsible for institution of the criminal proceedings against the plaintiff. No case of malicious prosecution has been made out against those defendants.

6. The fact that the National Court acquitted the plaintiff means that the proceedings were resolved in his favour. Element (d) is satisfied. The issues to be decided are whether the first or fifth defendants instituted the proceedings without reasonable and probable cause (element (b)) and whether either of them was motivated by malice or some other improper purpose (element (c)).

7. Element (b) requires the plaintiff to prove either or both of two things: that the defendant did not honestly believe that the plaintiff was guilty of an offence or that, if the defendant did hold such a belief, it was not based on reasonable grounds. He has failed to adduce evidence that either the first defendant or the fifth defendant did not honestly believe that he was guilty.

8. So has he proven, presuming that either of the defendants held an honest belief in his guilt, that their belief was not based on reasonable grounds? No. There was a substantial body of eyewitness evidence that the plaintiff was directly involved in the murders, a no-case submission was...