Pius Nui v Senior Sergeant Mas Tanda, Assistant Commissioner Tom Kulunga and The Independent State of Papua New Guinea (2004) N2765

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 December 2004
• Court: National Court
• Judgement Number: N2765

Full Title: Pius Nui v Senior Sergeant Mas Tanda, Assistant Commissioner Tom Kulunga and The Independent State of Papua New Guinea (2004) N2765

National Court: Cannings J

Judgment Delivered: 21 December 2004

N2765

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 149 OF 2003

PIUS NUI

Plaintiff

V

SENIOR SERGEANT MAS TANDA

First Defendant

ASSISTANT COMMISSIONER TOM KULUNGA

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

MT HAGEN : CANNINGS J

17 NOVEMBER, 21 DECEMBER 2004

RULING ON MOTION

Practice and procedure – application to set aside interim order of National Court to restrain officers of Police Force from arresting a person in relation to suspected criminal conduct – murder – interim order expressed to be made by consent of parties – application to dismiss proceedings for malicious prosecution on grounds that no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and an abuse of process – elements of tort of malicious prosecution – whether the proceedings should be dismissed – whether an interim order, expressed to be made by consent of parties, can and should be set aside – relevant considerations – application of considerations – remarks on constitutional significance of orders interfering with Police investigations – relevant principles to apply – similar principles applicable to investigations conducted by other agencies exercising investigatory powers and functions.

Case cited

Anderson Agiru v Electoral Commission and The State (2002) SC687

Bank of Papua New Guinea and Wilson Kamit v Marshall Cooke QC and Cyprian Warokra and Others (2003) N2369

Bernard Hagoria v Ombudsman Commission (2003) N2400

Dan Salmon Kakaraya v Ombudsman Commission (2003) N2478

David Haluya v The State (2001) N2109

Drew v Towers Investments [1973] PNGLR 450

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001

Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915

Justin Tkatchenko v Dessy Magaru (2000) N1956

Justin Tkatchenko v National Capital District Commission and The State (2002) N2196

Kiee Toap v The State and Others (2004) N2731

Lucas Roika v Peter Wama and Others (1995) N1373

Mahera Ignote v Abraham Hualupmomi and The State [1996] PNGLR 308

Mainland Holdings Ltd and Others v Stobbs and Others (2003) N2522

Mark Ekepa and Others v William Gaupe and Others (2004) N2694

Paul Torato v Sir Tei Abal [1987] PNGLR 403

Peter Aigilo v Sir Mekere Morauta and Others (2001) N2102

PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85

Re Peter Naroi [1983] PNGLR 176

Rimbink Pato v Anthony Manjin and Others (1999) SC622

Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8

Simon Ketan v Lawyers Statutory Committee and PNG Law Society (2001) N2290

Simon Mali v The State (2002) SC690

The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2002) N2322

The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2003) SC716

K J Peri for the plaintiff

J Kolkia for the defendants

CANNINGS J:

INTRODUCTION

This is a ruling on a motion by the defendants. They are seeking two orders: to set aside a previous order of the National Court; and to dismiss the substantive proceedings.

In the substantive proceedings the plaintiff is suing the defendants for malicious prosecution.

BACKGROUND

Incident in June 2002

This case arises from an incident in Mt Hagen during the 2002 general election, in which a man, Bill Noah, was shot dead. The incident happened at a polling booth at the Mt Hagen General Hospital, in the middle of June 2002. There was apparently a shootout between the supporters of two candidates.

Shortly after the incident, officers of the Police Force based at Mt Hagen commenced a murder investigation. During the course of investigation, they interviewed the plaintiff, Pius Nui, at least twice. He is a businessman from Togoba village, in the Western Highlands Province. It seems that in January 2003 the Police were preparing to arrest and charge the plaintiff with the murder.

Writ filed: 7 February 2003

On 7 February 2003 the plaintiff’s lawyers, Warner Shand, filed a writ of summons in relation to the Police investigation. The statement of claim attached to the writ asserts that the first and second defendants, who are Police officers, are guilty of malicious prosecution of the plaintiff and that the third defendant, the State, is vicariously liable for their action. The plaintiff seeks general and exemplary damages.

In support of those claims the plaintiff asserts the following:

·in August 2002 he was picked up at his village by Sergeant Patrick Towingo, taken to Mt Hagen Police Station, and questioned about Bill Noah’s death;

·Sergeant Towingo found no evidence against the plaintiff and shelved the investigation;

·in September 2002 he was again picked up at this village, taken to Mt Hagen Police Station, this time by Sergeant Thomas Pundu, and questioned about Bill Noah’s death;

·Sergeant Pundu found no evidence against the plaintiff and shelved the investigation;

·on or about 13 December 2002 the first defendant, Senior Sergeant Mas Tanda, and the second defendant, Assistant Commissioner Tom Kulunga, held a private meeting in a village outside Port Moresby, to work out how to reopen the investigation into Bill Noah’s death;

·on 30 January 2003 the first defendant drove to the plaintiff’s village and requested the plaintiff to attend Mt Hagen Police Station on 31 January 2003 for another interview in connection with Bill Noah’s death; and

·both the first and second defendants have a direct interest in the outcome of the investigation and prosecution of the plaintiff.

Plaintiff’s notice of motion filed: 7 February 2003

On the same day that the writ of summons was filed, 7 February 2003, the plaintiff filed a notice of motion. He sought an order that all officers of the Police Force be restrained from arresting him, pending the outcome of a coronal inquest under the Coroners Act, and that the matter be referred to the Coroner’s Court.

In support of his motion, the plaintiff swore an affidavit, which elaborated on some of the allegations made in his statement of claim. He deposed, amongst other things, that:

·the shootout at the hospital was between supporters of William Duma, who won the election, and Stanley Nui;

·Stanley Nui is his son;

·the first defendant is from Bill Noah’s village;

·the second defendant is from Koglamp village, Western Highlands Province, which is where William Duma comes from;

·he was present when Bill Noah was shot and fired a shot in the air when he was being pursued; and

·there is an inconsistency between the post mortem report on Bill Noah’s death and the certificate of death.

Order of 7 February 2003

On 7 February 2003 the notice of motion, filed that day, came before Hinchliffe J at Mt Hagen. His Honour was apparently handed a draft consent order. It had been endorsed by Mr K Peri, of Warner Shand, Mt Hagen, and by Mr B Ovia, of the Office of the Solicitor-General, Mt Hagen. Hinchliffe J made an order, expressed as a consent order, in the following terms:

1 Pending the outcome of the coronial inquest pursuant to Section 7 of the Coroners Act Chapter No 32, the first defendant or other policemen be restrained from arresting the plaintiff.

2 The matter be referred to the Coroner’s Court.

Events since February 2003

On 6 March 2003 the Solicitor-General, Zacchary Gelu, filed a notice of intention to defend on behalf of the three defendants.

On 20 May 2003 the Acting Solicitor-General, John Kumura, filed a defence. This focussed on Section 197 of the Constitution, which prescribes the primary functions of the Police Force, and the defence that there is no cause of action. It was stated that the plaintiff contributed to his own detriment by not cooperating with the Police.

On 13 January 2004 Paul Paraka Lawyers, of Mt Hagen, commenced acting for the defendants.

On 28 June 2004 Paul Paraka Lawyers filed three affidavits: by Francis Kuvi, Mas Tanda and Thomas Pundu.

Francis Kuvi, Acting Solicitor-General, swore an affidavit on 29 April 2004. He indicated that Mr Ovia endorsed the consent order without instructions.

Mas Tanda, the first defendant, swore an affidavit on 12 May 2004. He deposed to his belief that there is overwhelming evidence that the plaintiff was responsible for the murder committed on 18 June 2002 in the vicinity of Mt Hagen General Hospital. He described the steps he had taken to investigate the murder. He denied the plaintiff’s claim that the murder investigation had been shelved. He stated that he was just about to charge the plaintiff for murder and was surprised to be served with a restraining order. He was not consulted before the order was obtained.

Thomas Pundu is a sergeant in the Police Force, attached to the Criminal Investigation Division at Mt Hagen Police Station. He deposes in an affidavit of 24 May 2004 that he did some preliminary investigations into Bill Noah’s murder. To his knowledge...