Unreported National Court Decisions
N1373
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 568 OF 1994
LUCAS ROIKA - Plaintiff
V
PETER WAMA - First Defendant
DONNIE OWAI - Second Defendant
THE STATE - Third Defendant
Mount Hagen
Woods J
16 October 1995
27 October 1995
POLICE - Malicious Prosecution - Nolle Prosequi of the same charge twice - No different circumstances - Plaintiff a Premier - Measure of damages.
Counsel:
P Kunai for the Plaintiff
P Peraki for the First Defendant
27 October 1995
WOODS J:  The Plaintiff is bringing an action for malicious prosecution against the Defendants for their role in the institution of proceedings against the plaintiff for the alleged crime of misappropriation during the plaintiff’s occupation of the office of Premier of the Western Highlands Province.  The claim alleges that the first and second defendants were instrumental in having the charges laid for malicious reasons against the plaintiff, the first defendant being the Administrator of the Province after the suspension of the Government of the Plaintiff and the second defendant as the police officer who led the investigation and laid the information.  The State is joined as the third defendant as being vicariously liable for the actions of the first and second defendant.
The history of the matter is that in December 1992 the Western Highlands Provincial Government of which the plaintiff was Premier was suspended.  The first defendant was thereupon appointed Administrator of the Province.  In February 1993 the second defendant  forwarded a report of the Auditor-General into the operation of the Province to the Police Commissioner for appropriate police investigation and action.  Following police investigation a charge of misappropriation of the sum of K2,200 was laid against the plaintiff later in the year.  On the 4th August 1993 the Public Prosecutor filed a nolle prosequi in relation to this charge before the National Court and the plaintiff was discharged from those proceedings.  I might note that I was the Judge who presided when that nolle prosequi was filed and the explanation given to the court was that there was insufficient evidence to support the charge.  Then in February 1994 a further information was laid by the second defendant in the same form charging misappropriation of the sum of K2,200.  In due course this second charge came before the National Court and I as the Judge presiding at the time it came into the list expressed surprise as it seemed to be alleging the same facts as the earlier charge.  I was then further surprised later in 1994 when the Public Prosecutor filed a nolle prosequi again citing the same reasons as the year earlier.  There was no suggestion offered at the time as to whether there were different elements in the evidence to support the reframing of the charge the second time and of course as the matter did not go to trial the court was left with no other information.
It is the actions involving the laying of the second charge which gives rise to the proceedings.  The plaintiff is alleging that the second charge was laid purely for malicious reasons to harass and discredit the plaintiff.
A definition of malicious prosecution is as per Osborne’s Law Dictionary:
“as consisting of the institution of criminal or bankruptcy proceedings against another or liquidation proceedings against a company or to procure the arrest and imprisonment of another by means of judicial process civil or criminal or to cause execution to issue against the property of a judgement debtor, maliciously and without reasonable and probable cause, by which that other suffers damage to his fame. person or property, provided that the proceedings terminate in the others favour so far as may be possible.”
There has been no facts or evidence presented to explain the circumstances why the charge of misappropriation was laid the second time on supposedly the same facts and evidence.  There has been nothing presented to this court to suggest that the second proceedings were reasonable.  As I have already stated I myself was very surprised when the charge was laid the second time and initially I assumed that there may have been different facts behind the charge. The plaintiff at all times was in a very high profile political situation.
I am satisfied that there appears to have been no reasonable or good reasons for what in effect became the hounding of the plaintiff the second time.  I am satisfied that malice can be inferred behind the laying of the same charge when there were no changed circumstances.
However I cannot find that there was malice in the first defendant.  When he first acted as Administrator in referring the Auditor-General’s report to the Commissioner of Police he was only doing his duty.  I find no evidence that he had anything to do with the laying of the charge the second time.
And I am not satisfied that the second defendant himself was personally responsible for the laying of the second charge, he merely appears to have been a police officer performing his duties as directed.  However someone gave directions and the State must bear the responsibility for what was an unreasonable hounding of the plaintiff.
I am satisfied that the plaintiff has suffered loss because of the laying of the second charge.  First there was loss by way of legal costs he incurred in meeting this charge.  It has been claimed that these costs amounted to K6,000.  However it appears these costs may have covered both proceedings.  There is no real submissions made that the laying of the charge the first time was unreasonable, and anyway that had gone through the normal process of committal so it appeared to a magistrate to be at the least a prima face or arguable case.
There is also a claim for damages to name and reputation.  This a very difficult matter to assess.  It is impossible to apply a mathematical formula to such a claim.  Whilst it is often said that a public figure in politics has to accept a certain amount of rough and tumble that does not mean that such a person is immune from loss and damage to reputation.  I will consider a conservative amount for this.  I will allow a total figure of K9,000 to cover the loss by way of legal costs incurred and damage to name and reputation.
I order judgement against the third defendant in the sum of K9,000.
Lawyer for the Plaintiff: Kunai & Co
Lawyer for the First Defendant: Peraki Lawyers