N4451

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1288 OF 1999

WILLIAM YANO KAPI
Plaintiff

V

KAMBANG HOLDINGS LIMITED
TRADING AS LUTHERAN SHIPPING
Defendant

Madang: Cannings J
2011: 20 May, 17 June, 18 November

TORTS – malicious prosecution – elements – whether a complaint of criminal conduct to police by defendant was made without reasonable and probable cause – whether defendant motivated by malice or any other improper purpose.

Two months after the plaintiff resigned from his job with the defendant the defendant made a written complaint to the police alleging theft of its property by the plaintiff during his period of employment. The plaintiff was subsequently subject to a criminal investigation, arrested, detained in custody for 55 days and tried on a charge of theft. The case was dismissed two years and nine months after the defendant's complaint had been made. The plaintiff commenced proceedings against the defendant claiming damages for malicious prosecution.

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 defendant complained to the police without an honest and reasonable belief in the allegations against him (element (b)) and that the defendant acted out of spite or ill-will towards him or was motivated by anything other than carrying the law into effect (element (c)).

(3)	Liability was not established and the proceedings were 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 Yasmsombi (2009) N3787

TRIAL

This was a trial on liability for malicious prosecution.

Counsel

W Y Kapi, the plaintiff, in person
J Napu, for the defendant

18 November, 2011

1. CANNINGS J: The plaintiff, William Yano Kapi, was employed as a marine engineer with the defendant, Lutheran Shipping, for ten years before resigning. Two months after he resigned, the defendant's operations manager reported to the police that a large quantity of diesel fuel had gone missing from the ship on which the plaintiff had been working and alleged that the plaintiff was responsible and requested that the police commence an investigation. The plaintiff was subsequently subject to a criminal investigation, arrested, detained in custody for 55 days and tried in the District Court on a charge of stealing under Section 372(7)(b) of the Criminal Code. The case was dismissed two years and nine months after the defendant's complaint had been made.

2. The plaintiff then commenced proceedings against the defendant claiming damages for the tort of malicious prosecution. He also sued the police officers responsible for his arrest, detention and prosecution and the Commissioner of Police and the State, pleading that his constitutional rights had been breached as he was denied access to a lawyer and family members, denied the right to seek bail and detained unlawfully in poor conditions for a long period. He filed the proceedings in 1999 soon after the criminal proceedings against him were dismissed but the case has taken a long time to be tried. Part of the delay was caused by the plaintiff living a long way from the place of trial. He comes from and now lives in Southern Highlands Province (he says he was the first Southern Highlander to be a marine engineer) and he was employed and lived in Madang when he worked on the ship, MV Totol, from which he was alleged to have stolen the fuel. The complaint was made to the police in Madang and the place of trial is Madang. In 2010 he discontinued the proceedings against the police officers, the Commissioner and the State after he was alerted to the fact that he had not given notice of his intention to make a claim against the State within six months after the occurrence out of which the claim arose in accordance with Section 5 of the Claims By and Against the State Act. A trial has been held to determine whether the defendant is liable in the tort of malicious prosecution. The question of damages will only be addressed if liability is established.

THE ELEMENTS

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 fact that the defendant made a formal complaint in writing and requested that the police conduct a criminal investigation is sufficient to regard the defendant as being responsible for institution of proceedings against the plaintiff. Element (a) is thus satisfied. The fact that the District Court 'dismissed' (that being the term used by the court) the case against the plaintiff means that he was acquitted, so the proceedings were resolved in his favour. Element (d) is satisfied. The issues to be decided are whether the defendant instituted the proceedings without reasonable and probable cause (element (b)) and whether it was motivated by malice or some other improper purpose (element (c)).

DID THE DEFENDANT INSTITUTE THE PROCEEDINGS WITHOUT REASONABLE AND PROBABLE CAUSE?

5. This element requires the plaintiff to prove that there was no good reason for the defendant making the complaint to the police. Specifically the plaintiff must 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.

6. The plaintiff submits that it is an outlandish allegation that he stole 23,234 litres of diesel in a six month period. It is not physically possible, he submitted, for that to have happened. It cannot be accepted that the defendant honestly believed that he had stolen that amount of fuel; and if the defendant did, in fact, honestly believe that that is what happened, that belief was not based on reasonable grounds.

7. I reject those submissions. It is apparent from the evidence that the defendant's operations manager was very concerned about excessive fuel consumption on MV Totol in 1996. An internal investigation was commenced and the plaintiff, as well as other personnel, was implicated. I cannot accept that the amount of fuel alleged to have been stolen is outlandish or that it was physically impossible for anyone to have stolen it. The plaintiff had admitted selling small amounts of excess fuel to businessmen at Wasu Wharf. He had also been admonished for selling food and cigarettes to passengers and was suspended without pay for a month in mid-1996. He was, as well as being a marine engineer, operating a PMV business in Madang. He gave notice of his resignation on 13 September 1996, with effect from 4 October 1996. It was unsurprising that he should be a suspect. I find that the plaintiff has not established that the defendant did not honestly believe that he had stolen the fuel (as it is clear that the operations manager honestly believed that the plaintiff was the culprit) or did not have reasonable grounds on which to base that belief (as there was circumstantial evidence implicating him). He has failed to prove that the defendant did not have a reasonable and probable cause for complaining. Element (b) is not satisfied.

WAS THE DEFENDANT MOTIVATED BY MALICE OR OTHER IMPROPER PURPOSE?

8. The importance of proof of malice or some other improper purpose is reflected in the name of the tort: malicious prosecution. It is insufficient to prove that proceedings were instituted negligently or carelessly. The plaintiff must establish that the defendant's conduct was malicious or that the defendant was motivated by some other improper purpose. There is no evidence of this. It seems that in 1995 and 1996 the plaintiff and the defendant had a prickly working relationship, culminating in the plaintiff being suspended without pay for a month and then resigning shortly afterwards. But the impression I gain from the evidence is that the plaintiff was well regarded in the company for the quality of his work. There is no suggestion that he was incompetent or unqualified or that his suspension was motivated by malice or that in making the complaint to the police the defendant or its operations manager (who signed the complaint letter) acted out of spite or ill-will towards him or was motivated by anything other than carrying the law into effect. Element (c) is not satisfied.

CONCLUSION

9. The plaintiff has not established two of the elements of the tort of malicious prosecution so his claim must fail. This does not excuse or justify what happened to him. He commenced these proceedings for good reason as it appears that his constitutional rights were breached by the police in a number of respects and he suffered hardship as a result. However, I agree with Mr Napu, for the defendant, who submitted that the defendant should not be held responsible for the improper conduct of the police.

10. As to costs I cannot help but think that if the defendant had taken a less combative approach this case could have been resolved much sooner and the plaintiff could have been pointed in the right direction: pursuing a claim against the police and the State. In the interests of justice I will order that the parties bear their own costs.

ORDER 

(1)	The plaintiff has failed to establish liability against the defendant and the proceedings are entirely dismissed.

(2)	The parties shall bear their own costs.

(3)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.
____________________________

Lawyers for the Plaintiff: Nil
Napu & Associates Lawyers: Lawyers for the defendant