N3213

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 961 OF 2005

BETWEEN:

DEMBA KALO
Plaintiff

AND:

CORNNIE AKAYA
First Defendant

AND:

SAM INGUBA,
COMMISSIONER OF POLICE
Second Defendant

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Davani, .J
2007: 17, 18, 31 May

Negligence – Malicious Prosecution - elements of Malicious Prosecution to be proven, that defendant to be the prosecutor, proceedings to terminate in plaintiffs favour, there must be absence of reasonable and probable cause and there must be malice.

Damages – Malicious Prosecution – plaintiff assaulted – suffered injuries – arrested – charge dismissed for want of prosecution – injuries and expenses and other out of pocket expenses not particularized – claim not considered – O. 8 r. 33 of National Court Rules.

Damages – Assault to plaintiff by policeman – injuries to face and body – 35% loss of efficient vision of both eyes – K20,000.00 award for eye injury and disability – K5,000.00 for bruises to face and body. 

Cases Cited

PNG cases 

Brendon John Aspinall by his next friend David Lee James Eastwood v the  Independent State of Papua New Guinea and Terence John Aspinall [1979]  PNGLR 642;
Wama Paul an infant by next friend Dan Paul v Anton Kare & The   Independent State of Papua New Guinea [1983] PNGLR 276;
Takie Murray v Norman Kinamur [1983] PNGLR 446;
Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401;
Toglai Apa & Ors v the State N1267;
Carmelita Mary Collins v. Motor Vehicles (PNG) Insurance Trust [1990]  PNGLR 580;
Dawa Yomi v. the State (19/03/90) N823;
Pepena v Malabas & the State N960 (1991);
Repas Waima v. Motor Vehicles Trust [1992] PNGLR 254;
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR   370;
John Tuin Solomon v the State & Others [1994] PNGLR 265;
Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214;
Toglai Apa & Others v. The State N1267;
Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308;
An application for enforcement of human rights pursuant to s. 57 of the  Constitution, application by Kunzi Waso [1996] PNGLR 218;
Dorothy Kesley Tuba (an infant by her next friend Helen Tuba) v the State  N1581 (1997);
Bia Sam v. Paul Hauram, Henry Tokam & The State [1998] PNGLR 246;
Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938;
Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander  of Simbu & The State (21/06/01) N2134;
Madiu Andrew v Mineral Resources Development Co. Ltd (2004) N2601.

Overseas cases cited

Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455;
Brown v Hawkes (1891) 2 QB 718;
Peston M. Mody v Queen Insurance Co. (1900) ILR 25 bomb 332;
Cruise v Burke (1919) 2IR 182;
Davies v Gell (1924) 35 CLR 275;
Blay v Pollard and Morris [1930] 1 KB 628;
Commonwealth Life Assurance Society Ltd v Brain (1934 – 1935) 53 CLR    343;
Bruce v Oldhams Press Ltd [1936] 3 All ER 287;
Herniman v Smith [1938] AC 305;
Mitchell v John Hein and Son Ltd (1938) 38 SR (NSW) 466;
London Passenger Transport Board v Moscrop [1942] 1 All ER 97;
Trobridge v Hardy (1955) 94 CLR 147
Nye v State of New South Wales and Others [2003] NSWSC 1212;

Counsel:

S. Kassman, for the plaintiff
M. Kias and B. Bakau, for all defendants

DECISION

31 May, 2007

1. DAVANI J: Before me is a trial on liability and quantum where the plaintiff claims general damages for assault, malicious prosecution, breach of constitutional rights, exemplary damages and repayment of bail monies, medical expenses and fares.

2. Both liability and quantum are in issue.

Background 

3. The plaintiff alleges that on or about 13 December, 2004, he was verbally and physically assaulted by the first defendant. He alleges that this occurred at a check point at the Doa Police Station, Central Province. Apart from being physically assaulted, the plaintiff alleges that he was locked up for no reason in the Doa Police cells, for about a day and a few hours, that he was not charged nor was the matter prosecuted, that bail monies he paid were misappropriated and that by not being charged, that he was wrongfully arrested and maliciously presented. He also alleges further that he received permanent injuries to his eye and body because of the beatings allegedly inflicted upon him by the first defendant.

4. By Writ of Summons and Statement of Claim filed on 24 June, 2005, (‘the Writ’) the plaintiff makes these claims and the claim for damages. By Defence filed on 26 January, 2006, the defendants deny the allegations stating further that;

1.	The plaintiff was arrested and locked up because he had resisted arrest;
2.	That the plaintiff was not maliciously prosecuted;
3.	That bail monies of K100.00 were not misappropriated, and that therefore, the plaintiff is not entitled to any claim for damages.

5. By Reply filed on 9 February, 2006, the plaintiff reiterates the claims made in the Writ. 

6. In accordance with the Listings Rules, the court conducted a status conference of this matter at the commencement of the circuit, on 7 May 2007, as this matter was scheduled for hearing on 10th and 11 May 2007. The plaintiff did not have a lawyer and Ms Kias of the Solicitor-General’s office did not appear. The court adjourned to 8 May, 2007. On 8 May, only Mr Kassman appeared and informed the Court that he had just received instructions from the plaintiff to act for him. Ms Kias did not appear for the defendants. The court confirmed the trial dates of 10th and 11 May, 2007. On 10 May 2007, the trial commenced. Ms Kias appeared and informed the court of the following;

1.	The defendants did not file any affidavits and will not be relying on any;

2.	That she will not cross-examine deponents of affidavits filed on behalf of the plaintiff including the plaintiff;

3.	That the defendants do not contest liability.

7.     The Court also noted that pre-trial directions were not issued prior to the matter being set down for trial. Notwithstanding, both parties agreed to proceed to hearing. In relation to the plaintiff’s case, the Court directed that the plaintiff rely on affidavits he intended to rely on and that he had already filed, provided such affidavits were duly tendered through the deponents.

Plaintiff’s evidence

8.     The plaintiff called three (3) witnesses whose evidence is contained in the following affidavits;

(a)	Plaintiff Demba Kalo’s affidavits;

(i)	sworn and filed on 16 November, 2005 and marked as Exhibit "A";
(ii)	sworn and filed on 12 October, 2006 and marked as Exhibit "B";
(iii)	sworn and filed on 3 November, 2006 and marked as Exhibit "C".

(b) Richard Ovia, sworn on 12 April, 2006 and marked as Exhibit "F".

(c)	Jack Solomon, sworn on 15 April, 2006, filed on 17th May, 2006 and marked as Exhibit "G".

9.     The court refused to accept the affidavit of Oscar Waiyo sworn on 8 May, 2006 because the deponent was not in court for the affidavit to be tendered through him.

10.     I should point out also that there was no issue in relation to the plaintiff having given notice to the State within time under section 5 of the Claims By and Against the State Act of 1996;

Defendants case

11.     The defendants did not file any affidavits nor did any witnesses give verbal evidence on their behalf. But by its filed Defence, the defendants admit the following;

i.	That the first defendant Cornnie Akaya;

-	is a citizen;
-	is a member of the Royal PNG Constabulary;
-	was an employee of the State, the third defendant, at the relevant time;
-	was stationed at the Doa Police Station at the relevant time.

ii.	That the second defendant Sam Inguba, Commissioner for Police was the first defendant’s employer.

12.     As for the defendants’ denials in its filed Defence, these are not substantiated by way of evidence.

Analysis of evidence and the law

13.     Although Ms Kias for the State indicated that she would not cross-examine the plaintiff’s witnesses whose affidavits had been tendered, that she subsequently retracted this, then informed the court that she would cross-examine the deponents. 

14.     Ms Kias’s cross-examination attempted to show that the plaintiff had resisted arrest which the plaintiff denied. Ms Kias could not substantiate the State’s claims of the plaintiff resisting arrest, by any evidence.

15.     I set out below, the issues and the court’s analysis of evidence on both liability and quantum.

i.	Issues

There are several issues that must be proven. These are;

1.	Whether the plaintiff was acting in the course his employment when the alleged assaults occurred;

2.	Did the alleged assaults occur;

3.	Was the plaintiff locked up in the police cells without being properly charged?;

4.	Whether the plaintiff was maliciously prosecuted;

16.     I discuss these issues under the part on liability. 

ii.	Liability

Issue no. 1 -	 Whether the plaintiff was acting in the course of his employment when the alleged assaults occurred; 

17.     The plaintiff’s evidence is that on 13 December, 2006, whilst he was alighting from a PMV which had just been stopped by police at a check point at the Doa Police Station, Central Province, he heard the first defendant say some things about him which were not true. He said this occurred at about 8.45am whilst he was on his way to the market in Port Moresby. The plaintiff said he heard the first defendant say that he (the plaintiff) had just cut somebody with a knife and also swear at him saying "k… k…". The plaintiff told the first defendant not to say these things as he was not a young man. However, the first defendant did not pay much attention telling the plaintiff to get off the PMV which he did. The PMV drove off with the plaintiff’s bilum of food and a big plastic container. The plaintiff said he has never recovered these items.

18.     The plaintiff said that whilst he was talking, the first defendant swung his belt several times hitting him on his eyes, neck and back. He also punched him on the head. He later kicked him with his boots then marched him to the Doa Police cells where he was locked up for about 28 hours. Because the police could not find the key to the cells, the plaintiff remained incarcerated until the next day when he was released on K100.00 bail.

19.     The defendants did not bring any evidence to refute these allegations.

20.     There is no dispute that at the time this incident occurred, that the first defendant was in the employ of the Royal Papua New Guinea Constabulary as a policeman based at the Doa Police Station, Central Province. He was on duty at the time of the incident. The obvious anomalies in the Writ is that the Royal Papua New Guinea Constabulary must be named to establish the nexus between all defendants, more particularly the aspect of the third defendant being vicariously liable for the first defendant’s actions. However, because of the fact that the plaintiff has pleaded that the third defendant State is the first and second defendants’ employer and is capable of suing and being sued in its own name and style, the court will accept that. This is because under s. 1 of the Wrongs (Miscellaneous Provisions) Act, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject, in respect of torts committed by its servants and agents, in this case, being the first defendant. 

21.     Further, it is also not disputed that the first defendant was on duty when the incident occurred. But vicarious liability is not pleaded in the Statement of Claim. It is appropriate that I discuss the law on vicarious liability and the need to specifically plead. Should the aspect of vicarious liability be specifically pleaded in the statement of claim? It should be because that is the only way the plaintiff can establish the nexus or relationship between the first, second and third defendants. The plaintiff only pleads that the incident happened at a check point. The Statement of Claim does not state that the plaintiff was on duty at that time. But in its Defence, the defendants admit that the incident happened whilst the first defendant was in the employ of the second and third defendant. (see par. 3 and 4 of Defence). They do not deny that the first defendant was not on duty as a policeman when the alleged assaults occurred. That in itself establishes vicarious liability. 

22.     In relation to the law and the need to specifically plead, in Madiu Andrew v Mineral Resources Development Co. Ltd (2004) N2601, Kandakasi .J said;

"Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it. ..Both this court and the Supreme Court have denied plaintiffs grants of reliefs that have no foundation in the pleadings even if there is evidence of it."

23.     Again, Lord Justice Scott in Bruce v Oldhams Press Ltd [1936] 3 ALLER 287 and 249 also said (and relied on by Sakora .J in Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938), the Court held that plaintiff must plead all facts;

"…necessary for the purpose of formulating a complete cause of action, and if any one ‘material’ statement is omitted, the statement of claim is bad."

24.     A party cannot obtain relief which has not been sought or requested in the pleading - see London Passenger Transport Board v Moscrop [1942] 1 All ER 97 per Lord Russel of Killowen at p105; and cases must be decided on the issues on the record and the record must be amended if it is desired to raise other issues - see Blay v Pollard and Morris [1930] 1 KB 628 at 634 per Scrutton LJ. Both cases were cited by Pratt J in the Supreme Court in Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401 at 405.

Issue no. 2 – Did the alleged assaults occur?;

25.     In relation to these allegations, there is no dispute that the plaintiff was assaulted i.e the first defendant hit the plaintiff in the face using his belt and also punched him in his head.

Issue no. 3 – Whether the plaintiff was locked in the police cells without being properly charged;

26.     The plaintiff’s evidence is that he was taken from the check point because of allegations that he had assaulted somebody. However, he was later charged for obstruction. The plaintiff has not provided a copy of the summons for the Court to confirm that he was in fact charged with that offence. However, before the Court is copy of a Recognizance to police for the appearance of a defendant dated 14 December, 2004 which was issued to the defendant upon payment of bail monies of K100.00. This Recognizance states that the defendant was charged on 13 December, 2004 that he "did obstruct a member of the Police Force" (Charge Book No. 2236/04). Also in evidence before me is copy of a Court Order from the District Court Boroko dated 12 April, 2005 which states that the matter was struck out for want of prosecution, that the defendant be discharged and that his bail be refunded. This is sufficient confirmation that the plaintiff was in fact charged with the offence of obstructing a member of the Police Force. 

27.     The plaintiff does not plead breaches of the Arrest Act chapter no. 339, only pleading in his writ, breaches of Constitutional rights and Malicious Prosecution. The claim for breach of Constitutional rights relates to the plaintiff’s allegations that he was not told of the reasons for his arrest and that he was unduly detained in the police cells for about 28 hours. The only claim properly pleaded and before me is that the plaintiff was "unduly detained." In relation to that, the plaintiff was told that he was held in custody on suspicions of having assaulted somebody. The plaintiff does not plead the relevant sections of the Constitution that were allegedly breached nor does he plead relevant sections of the act that were allegedly breached. The court will only consider matters properly pleaded. 

28.     Although the plaintiff claims he was not properly charged, the matter that went before the Court is confirmation of a charge. The charge book no. is also in evidence before me which tells me that the charge book was properly filled in.

29.     On the evidence before me, I find the plaintiff was properly charged.

Issue no. 4 – Whether the plaintiff was maliciously prosecuted;

30.     The plaintiff claims that he was maliciously prosecuted because he was charged for an offence that he was not arrested for. He also alleges that the charges were dismissed for want of prosecution after he made 5 appearances in court, there being no appearance by the police. Is that Malicious prosecution?

31.     Plaintiff’s counsel has not put before the court submissions on the law relating to malicious prosecution. But defendants’ counsel referred the court to the following principles held in the case Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308. These were;

"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."

32.     The Oxford Dictionary defines "malicious prosecution" as "an abuse of the Court process by wrongfully setting the law in motion on a criminal charge. This must have been done without a reasonable cause and instituted or continued maliciously." The adjective "malicious" is derived from the noun "malice" which is a desire to cause harm or difficulty to others; ill-will, harmful intent. 

33.     The elements of the tort of malicious prosecution were held in the case of Commonwealth Life Assurance Society Ltd v Brain (1934 – 1935) 53 CLR 343 at 351. There the Court held the elements to be;

"1.	The institution, adoption or continuation of criminal proceedings by a defendant or defendants against the plaintiff.

2.	The termination of such proceedings in favour of the plaintiff.

3.	Absence of reasonable and probable cause in instituting, adopting, or continuing the proceedings against the plaintiff. 

4.	Actual malice which may comprehend a primary purpose other than that of carrying the law into effect."

34.     In the case Nye v State of New South Wales and Others [2003] NSWSC 1212 dated 16 December, 2003, O’keefe .J discussed the elements of malicious prosecution whose discussion I will adopt in this case. 

Element 1 - who is the prosecutor? 

35.     For the purposes of malicious prosecution, the law looks beyond theory and regards the person in fact instrumental in prosecuting as a prosecutor. The answer to the question "who was the prosecutor?" must depend on the whole of the circumstances of the case. That is a question of fact. To incur liability as a prosecutor a defendant must have played an active role in the proceedings by setting them in motion or by adopting or continuing them. (Davies v Gell (1924) 35 CLR 275 at 282 – 283)) and also relied on in Nye v State of New South Wales & Ors (supra)).

36.     In this case, the first defendant lodged the complaint. As held in Davies v Gell (supra), as to who is the prosecutor, must depend on the whole of the circumstances of the case. I take judicial notice of the fact that the police prosecutions system here in Papua New Guinea is that the arresting officer lays the charges, persons in the prosecutions department of the Police Department also known as the Police Prosecutions, handle the prosecution and are involved in the whole prosecution process. According to Davies v Gell (supra), to incur liability as a prosecutor, a defendant must have played an active role in the proceedings by setting them in motion. In this case, the first defendant did set the proceedings in motion. 

Element 2 - favourable termination of the proceedings.

37.     The law requires a plaintiff in an action for malicious prosecution to show that the proceedings of which he complains have terminated in his favour i.e that they have been brought to an end without adverse consequences to him. In Davies v Gell (supra), Isaacs ACJ adopted what was said by Lord MacNaghten in Peston M. Mody v Queen Insurance Co (1900) ILR 25 bomb 332 at 335 and held that an acquittal of a Criminal charge establishes, for the purposes of an action for malicious prosecution, a sufficient basis for the person who has been acquitted to maintain his action and that the same rule applies where a Nolle Prosequi is entered. 

38.     In this case, after the charges were filed in Court, the matter was called on five (5) occasions with no appearance by the police. The proceedings were then dismissed for want of prosecution. No doubt the proceedings were terminated in favour of the plaintiff. 

Element 3 - Absence of reasonable and probable cause.

39.     A clear, concise and authoritative statement of what it is that a plaintiff has to prove in relation to element 3 in an action for malicious prosecution is to be found in the judgment of Jordan CJ in Mitchell v John Hein and Son Ltd (1938) 38 SR (NSW) 466;

"In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia), that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds. To establish the first of these matters, it is essential that evidence should be given of some fact or facts which, either inherently or coupled with other matters proved in evidence, would enable the inference that the defendant did not believe in the plaintiff’s guilt... Merely to prove that the defendant had before him information which might or might not have lead a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative... It may, for example, be supplied by evidence that the defendant had before him facts pointing to the plaintiff’s innocence so overwhelming that no reasonable man could have believed in his guilt... But the necessary evidence is not supplied by proof that the defendant was aware of facts which might or might not have satisfied him of the plaintiff’s guilt, or that he had before him information, some of which pointed to guilt and some to innocence.

If the plaintiff proposes to establish that the defendant had not sufficient grounds for believing him to be guilty, the burden is on the plaintiff to give evidence of what information the defendant in fact had... If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant’s belief actually was with respect to the accuracy of the information in question, not a guess as to what it was... It is only when he has supplied some evidence of the nature of the whole of the information that the defendant had that he can invite an inference that it was insufficient... If the plaintiff does place before the court evidence of the nature of the whole of the information which the defendant had, it is for the judge... to determine whether it was reasonable for the defendant to believe in the accuracy of the information and also to determine whether it was reasonable for him to act on it, i.e., whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty" (supra at 469 to 471). 

40.     The plaintiff in this case contends that the first defendant did not have sufficient grounds for believing him to be guilty. The burden is now upon the plaintiff to give evidence of what information the first defendant had. He must supply evidence supporting the inference as to what the first defendant’s belief actually was with respect to the accuracy of the information in question, not a guess as to what it was. In this case, the evidence is that the defendant acted on information he had that the plaintiff had assaulted somebody. The question I ask myself is whether it was reasonable for the defendant to believe in the accuracy of the information and whether it was reasonable for him to act on it. I find that as a policeman, it was reasonable for the first defendant to act on the information that he received.

41.     Therefore in this case, I find that there was reasonable cause for the first defendant to act as he did by apprehending the plaintiff at the check point. There was also reasonable cause for the first defendant to charge the plaintiff with the offence that he charged him with because the decision to lay a charge is an unfettered discretion, without direction, interference, or orders from any other policeman or officer whether of the same or of a superior rank. (see Mahara Ignote v Abraham Hualupmomi and the State [1996] PNGLR 308).

Element 4 – Malice

42.     Trobridge v Hardy (1955) 94 CLR 147 is a case that was concerned with Wrongful Arrest and False imprisonment and where the court had to consider the meaning of the word ‘malice’ as used in the Police Act 1892 – 1953 (WA). Fullagar .J equated the meaning of ‘malice’ as used in that statute with the meaning of the same word as used in the context of malicious prosecution. However, Kitto .J in that case expressed a more wider view. He said;

"The word ‘malice’ must... mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted ‘from an indirect and improper motive, not in furtherance of justice’ (Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455). That is to say, from some desire other than ‘to discharge his duty to the public’ (Cruise v Burke (1919) 2IR 182 at 186)... (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive" (supra at 162).

43.     Malice can be proved either by showing what the motive of the defendant 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 (Brown v Hawkes (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy (supra) at 163, 174).

44.     In this case, the plaintiff must show or establish that the first defendants conduct was actuated solely or predominantly by a wrong or indirect motive. There is no such evidence before the Court. Therefore, I find there was no malice in the plaintiff’s apprehension and confinement.

45.     To summarize, I have found that the first defendant was acting in the course of his employment when he assaulted the plaintiff. I have also found that the plaintiff was properly charged and that the plaintiff was not maliciously prosecuted as alleged because there was no malice in the whole prosecution process. Therefore, the plaintiff is only entitled to the claim for injuries suffered as a result of the assaults.

iii.	Damages

A. General Damages - The plaintiff claims general damages for injuries to eyes, face, neck and body (see par. 5 and 6 (a) to (c) of Writ), items as pleaded in the Writ. 

46.     The plaintiff sustained injuries to his eyes and face. Attached to the plaintiff’s affidavit sworn on 16 November, 2005, is a hand-written note from the Agevairu Health Centre, Gabadi, Bereina District which reads that the treatment administered to his injuries were eye ointment and amoxicillin and which was to be taken for 5 days. The injuries described in that hand-written note are these;

"-	Red on eyeball;
-	Swollen on the face
-	Pain on the neck and body."

47.     The report is not signed. However, there being no objections to the affidavit, it was accepted into evidence.

48.     Also attached to the plaintiff’s same affidavit is a report from the Port Moresby General Hospital’s Ophthalmologist dated June 17, 2005 which describes his disabilities as a loss of efficient vision of both eyes by 35 percent. The defendants did not object to the affidavit being tendered into evidence nor did they ask for the doctor to be brought in for cross-examination or present evidence contradicting this. I therefore will make an assessment based on Dr. Simon Malanga’s report that the plaintiff does suffer from a 35 percent loss of efficient vision of both eyes and that this was as a result of being hit in the face, neck and body from which he sustained bruises.

49.     Both counsel cited cases which are relevant to determining the plaintiff’s claim under this part. These are;

Eye injury/disabilities

1.	Dorothy Kesley Tuba (an infant by her next friend Helen Tuba) v the State N1581. (1997)

Plaintiff suffered from 42 percent loss of visibility to both eye. The Court awarded K20,000.00

2.	Takie Murray v Norman Kinamur [1983] PNGLR 446

Plaintiff claimed damages for an eye injury after an assault occasioned upon her which required the removal of the eye and the implant of an artificial eye.

The Court awarded K20,000.00.

Bruises

1.	Pepena v Malabas & the State N960 (1991)

Following assaults by members of the Police Force, the plaintiff suffered and sustained bruises and laceration to his head, face, shoulder, elbow, knee and foot. At the time of trial, he was still claiming a tenderness in his feet and back.

The Court awarded K2,000.00.

50.     For the eye injuries, the only evidence before the court is that of the 35 percent disability. For the other injuries, the only evidence is that of the hand-written note from the Agevairu Health Centre.

51.     In the case of personal injuries, the requirements of O. 8 r. 33 of the National Court Rules are clear. The Supreme Court emphasized that in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p. 221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at 373 – 374. These judgments re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The cases require a plaintiff to plead his injuries, any residual liability and any out of pocket expenses with sufficient particulars. The list of relevant cases is long but examples of these are the judgments in Repas Waima v. Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254 and Carmelita Mary Collins v. Motor Vehicles Insurance (PNG)Trust [1990] PNGLR 580 at p. 582.

52.     Where there are allegations of injuries without any pleadings of any residual disability coupled with a lack of any evidence of any residual disability, the suggestion is that, the plaintiff has recovered well with no residual disability. After all, the burden is on a plaintiff to properly plead with sufficient particulars and prove his claim. Accordingly, damages in such cases are in the range of K500.00 to K800.00. Examples of cases on point are the judgments in Dawa Yomi v. the State (19/03/90) N823 and Wama Paul an infant by next friend Dan Paul v Anton Kare & The Independent State of Papua New Guinea [1983] PNGLR 276.

53.     Personal injuries in the context of a police raid or brutality appear to attract damages slightly higher compared to those awarded in purely personal injuries settings. In Bia Sam v. Paul Hauram, Henry Tokam & The State [1998] 246, Kapi DCJ, (as he then was) awarded K1,000.00 in compensation for assaults and a further K1,000.00 for false imprisonment. Before that in the case of An Application For Enforcement of Human Rights Pursuant to Section 57 of the Constitution – Application by Kunzi Waso [1996] PNGLR 218, the National Court awarded K1,500.00 as damages for assault on the prisoner [plaintiff] by a Warder.

54.     In cases where Constitutional breach and personal injuries are lumped together, the damages range from K2,000.00 to K4,000.00. One of the most recent cases is that of Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (21/06/01) N2134. The judgment had regard to the earlier judgments in John Tuink Salomon v. the State and Others [1994] PNGLR 265; Toglai Apa & Others v. The State N1267 and several others.

55.     In this case, the plaintiff has pleaded particulars of injuries suffered and I consider they have been properly particularized, which includes the disabilities in percentages.

56.     In the present case, the plaintiff seeks K10,000.00 for the assault and K15,000.00 for the 35 percent loss of vision. Based on the report from the Agevaira Health Centre, the bruises occasioned by the assaults appear not to be serious. However, the disability to the both eyes appears to be permanent. Based on the cases cited to me, the effluxion of time and the nature of the injuries and disabilities, I consider the following awards to be fair;

-	Eye injuries/disabilities	- K20,000.00	
-	Bruises	- K 5,000.00	
	K25,000.00	

B. Special damages - The plaintiff also seeks special damages being;

•	Cost incurred for optometrist consultation	K 50	
•	Cost for spectacles	K 500	
•	Port Moresby General Hospital Report Fee	K50	

57.     I will not consider the plaintiff’s claims for PMV return fares for hearing of District Court charges and meals and allowances. These costs are all related to his claims for malicious prosecution and breach of constitutional rights which I have refused. But I will award the claim for refund of bail monies because first, it is pleaded and secondly a copy of the receipt is before me.

58.     The plaintiff has not pleaded the other out of pocket expenses that I set out above. The law on pleadings in relation to the provision of particulars for out of pocket expenses is very clear. Because they have not been pleaded, I will not award these.

C. Exemplary Damages - Although the plaintiffs Statement of Claim pleads exemplary damages, it does not state who should pay. This is because in a situation of this nature, the individual policeman must pay for his action. I say this because when actions of a policeman goes beyond mere non-compliance of a statutory provision, the individual policeman, if identified, and sued, is personally liable to pay exemplary damages. The State is only liable to pay exemplary damages for (technical) breaches or indiscretions committed in the execution of the policeman’s lawful functions, statutory or otherwise.

59.     Because it is not properly pleaded, I will not make any award under this part.

iv. Interest

60.     Interest on general damages – The plaintiff is entitled to interest at 8 percent calculated from the date when the cause of action arose i.e 13 December 2004 to date of judgment being 31 May, 2007, a total of 3 years, 2 weeks and 4 days, done in accordance with s.1 of the Judicial Proceedings (Interest on Debts and Damages) Act ch. 52.

61. Therefore, interest awarded on the amount of K25,000.00 in general damages at 8 percent over the above-mentioned period is K7,904.76.

62. Interest on special damages – Interest on special damages, in this case K100.00, is 4 percent, being half the 8 percent rate due to inflation (see Brendon John Aspinall by his next friend David Lee James Eastwood v the Independent State of Papua New Guinea and Terence John Aspinall [1979] PNGLR 642). Interest is calculated on K100.00 from the date of issue of the writ to the date of judgment. Therefore interest calculated at 4 percent on K100.00 over the above-mentioned period is K3,161.90.

v. Total to be paid by the State

63. The total amount to be paid by the third defendant is as follows;

-	General damages	K25,000.00
	
-	Interest on general damages at 8 percent	K 7,904.76	
-	Special damages, reimbursement 
of bail monies	K 100.00	
-	Interest on special damages at 4%	K 3,161.90	
	K36,166.66	

vi. Costs

64.     The third defendant shall pay the plaintiff’s costs of the proceedings to be taxed if not agreed.

__________________________

Kassman Lawyers: Lawyer for the plaintiff
Office of the Solicitor-General: Lawyer for all defendants