Mahera Ignote v Abraham Hualupmomi and The Independent State of Papua New Guinea [1996] PNGLR 308

• Jurisdiction: Papua New Guinea
• Judge: Akuram AJ
• Citation: [1996] PNGLR 308
• Court: National Court
• Year: 1996
• Judgement Number: N1461

Full Title: Mahera Ignote v Abraham Hualupmomi and The Independent State of Papua New Guinea [1996] PNGLR 308

National Court: Akuram AJ

Judgment Delivered: 1996

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...