Kalaut v Muka [2025] PGNC 363; N11505 (30 September 2025)

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TORT OF MALICOUS PROSECUTION - whether the defendants had reasonable and probable cause – two criminal charges - information available to form honest belief considered – want of reasonable and probable cause in charge - whether defendants had malicious intent - malice may be inferred from circumstances – evidence considered – malice not inferred.
TORT OF NEGLIGENCE – duty of care – pleading alleges breach of statutory duties - police owe no duty of care in investigating crime or charging persons– no abuse of powers – negligence not established.

TORT OF FALSE IMPRISONMENT - arrest and detention on two charges laid on same day - arrest and detention processes not breached – tort of false imprisonment not proved.

The plaintiff, an Assistant Commissioner of Police, was charged on 25 May 2020 with abuse of office and attempt to pervert the course of justice in a matter that the defendants were investigating. The District Court dismissed the abuse of office charge on 11 December 2020, and the National Court discharged the attempt to pervert the course of justice charge on 9 July 2021. The plaintiff commenced this proceeding claiming malicious prosecution, negligence, and false imprisonment. His evidence is that he did not commit any crime in performing his normal duties and the defendants disobeyed the former Police Commissioner's instructions in prosecuting him especially at a time when he was challenging the appointment of the new Police Commissioner. The defendants denied the claim stating they had a lawful justification to prosecute the plaintiff.

Cases cited
Arala & Ors v Kua & Ors [2023] N10621
Baikisa v J & Z Trading Ltd [2016] N6181
Coconut Products Ltd v Markham Farming Co Ltd [2018] SC1717
Damaru v Vaki [2014] N6787
Hambru v Baur [2007] N3193
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] SC1388
Justin Tkatchenko v. National Capital District Commission & The State [2007] N2196
Kalo v Akaya [2007] N3213
Kapi v Kambang Holdings Ltd [2011] N4451
Kavo v Maipakai [2023] N10502
Kelly v Yakasa [2020] N8425
Kenziye v Independent State of Papua New Guinea [2013] N5424
Kipahi v Nambos [2020] N8437
Kofowei v Siviri [1983] PNGLR 449
Kuman v Digicel (PNG) Ltd [2019] SC1851
Mangi v Trane [2024] N10819
Mai and Avi v The State [1988] PNGLR 56
Maku v Maliwolo [2012] SC1171
Mahara Ignote v Hualupmomi & The State [1996] PNGLR 208
Nui v Tanda [2004] N2765
Tole v Kongi [2019] N7728
Yambaki v Namues [2022] N9983
Coudrat v HM Revenue and Customs [2005] EWCA Civ 616
Donoghue -v- Stevenson [1932] AC 562.
English House of Lords in Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53
Gibbs v Rea [1998] UKPC 3; [1998] AC 786
Glinski v McGiver [1962] AC 726
Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419
Herniman v Smith [1938] AC 305
Hicks v Faulkner 8 QBD at 171
Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, 190,
Walker v South Eastern Ry (1870) LR 5 C & P 640
Wershop v Police (1978) 3 All ER 540 at 553

Trial
Trial on liability by affidavit with no cross examination, where the plaintiff sought to prove false imprisonment, malicious prosecution, negligence and breach of Constitutional rights

Counsel
Mr Sylvester Kalaut, the plaintiff, in person
Mr B Samiat, for the defendants

1 BRE AJ: Mr Sylvester Kalaut was the Assistant Commissioner of Police responsible for Human Resources, when he was arrested on 24 May 2020. He was interviewed, charged, arrested, detained, and prosecuted on allegations of abuse of office and attempt to pervert the course of justice when he was the Assistant Commissioner NCD/Central Command in 2017.

2. He seeks to prove that he was falsely imprisoned, maliciously prosecuted and the defendants were negligent in carrying out their duties which resulted in breaches of his constitutional rights and damages to his reputation.

3. He filed this proceeding on 2 January 2022. The statement of claim pleads allegations of fact and law on the causes of action in false imprisonment, malicious prosecution, negligence, breach of constitutional rights, reputational damage, suspension from employment duties without cause, mental stress, pain and suffering.

4. The defendants filed their defence on 3 May 2022. They deny the plaintiff's claims and state that they had probable and reasonable cause to prosecute him concerning an investigation that they had been working on, into the shooting and deaths of escaped notorious convicts William Nanua Kapris and Raphael Walimini. That the prosecution was done without malice as they were performing their lawful duties. They state further that the plaintiff was afforded full protection of the law during his prosecution.

5. The plaintiff relies on the evidence of nine witnesses including himself, whose evidence are outlined in the notice to rely on affidavits which were tendered and accepted into evidence. The evidence are from the plaintiff and former deputy police commissioner operations Mr Jim Andrews, senior constable Raymond Boyamo, Ian Gunawi, Abraham Jerifia, Max Wang, and former Police Commissioner Mr Gari Baki and the plaintiff’s family members Sylvia Kalaut and Beatrice Bonakoya.

6. The gist of the plaintiffs' evidence is that he did not commit any crime as he was performing his normal duties in advising the Police Commissioner about matters that came to his attention as the Commander for NCD/Central, and it was the prerogative of the Police Commissioner to accept or reject the advice.

7. The former Police Commissioner Mr Gari Baki gave evidence in support of the plaintiff. His evidence is that he agreed with the advice and recommendations of the plaintiff concerning the investigations and issued two written directives to cease conducting the investigations, arresting or charging of policemen arising from the shooting of the two named convicts because the case was closed by the Coroner and was not re-opened by the Attorney General as required by the Coroner’s Act.

8. The plaintiff’s evidence too is that the defendants have an ulterior motive to prosecute him, especially with there been a coincidence of his prosecution while he was challenging the current Police Commissioner, Mr David Manning's appointment and his further suspicion in 2017 of the timing of the arrests of policemen following the dismissal of a civil claim for damages by the family of the deceased convicts, which caused him to write an advisory minute to the Deputy Commissioner Police Operations (DCP Ops) copied to the Police Commissioner on 12 September 2017 for which he was charged with attempting to pervert the course of justice.

9. The plaintiff gave further evidence of his long career within the RPNGC and promotion to the high rank of Assistant Commissioner from 2015 and his many accomplishments to demonstrate his good standing within the RPNGC and for which he submits, exacerbated the shame and humiliation he suffered when he was arrested and detained in the Boroko police cells which he led its renovation when he was the Commander NCD/Central.

10. The plaintiff produced into evidence the police file relied on in the District Court by the defendants for the prosecution of his charges. These contained useful information about the evidentiary basis of the defendants case against the plaintiff at the time of arrest and charge.

11. The first and second defendants affidavits were also tendered and accepted into evidence.

12. Inspector Lucas Muka arrested and charged the plaintiff. He is the arresting officer and a detective Inspector with the Fraud Directorate. His evidence is that he was instructed by his Director, the third defendant, to conduct the record of interview to arrest the plaintiff for the offences of abuse of office and attempt to pervert the course of justice. He does not indicate the date of the instructions. He says he had to comply because the second defendant did not have the appropriate rank to interview the plaintiff who is a senior ranking officer. He states that he was only performing his duties, and it was not to maliciously harm Mr Kalaut.

13. Walter Sim is the investigator and was initially tasked in 2017 by his superior the then, ACP Crimes Victor Isouve, to be the case officer. He is a First Constable attached to the National Intelligence Unit and was formerly a member of the Fraud Directorate. He goes into the history of the internal investigations from 2013 to the suspension of the then ACP Crimes and the arrest of the plaintiff. He states the plaintiff was arrested when he failed to produce the weapons that were used by the convicts, alleged to be in his possession.

14. In the Police file produced by the plaintiff, Victor Isouve, now retired, states as the Assistant Commissioner for Crimes then, that in 2017 he initiated a number of investigations into several killings by police including the escaped convicts case. That he obtained the investigation file from the initial case officer senior constable Boyamo, but was of the view that it did not contain sufficient information and required further inquiries to be made. He was of the view that the deaths were not suspicious and did not require referral to the Coroner. That he appointed Walter Sim to conduct the investigations which resulted in the arrest of Sergeant Philip Pokop in 2017. That the investigations were stopped because of the Police Commissioner's instructions that arose from the plaintiff's minute of 12 September 2017. In response to the Police Commissioner's directive, he had written to the Police Commissioner explaining his views and informing him that new evidence was obtained and requested for the Attorney General’s approval to be obtained to re-open the case. However, he was suspended and demoted in 2018. He sought judicial review of the decision and was successful on 26 July 2019.

15. There was another minute dated 11 December 2017 written by Deputy Commissioner Police Administration Rafael Huafolo to ACP Crimes Victor Isouve urging him to proceed with the investigations as the DCP was also of the view that the coroner's inquest was not required when there were eyewitness accounts of the shooting. The ACP Crimes then instructed First Constable Walter Sim by internal minutes dated 17 January and 17 February 2018 to continue with the arrest and charging of policemen implicated in the shooting. This was despite the Police Commissioner’s instructions still on foot.

16. At the core of this dispute are differences of opinion amongst the senior rank of the Police hierarchy concerning internal investigations of the police themselves into what is alleged to be the unlawful killing in 2013 of two notorious escaped convicts William Nanua Kapris and Raphael Walimini; whose killings generated substantial public interest at that time.
The investigations were stopped by the Police Commissioner in 2017 on the basis of legal concerns about the case been closed pursuant to the Coroner’s Act. The ACP Crimes in charge of the investigation, Victor Isouve, was disciplined for defying those instructions and demoted in 2018.

17. At the time of his charges, the plaintiff was pursuing a judicial review application against the appointment of the new Police Commissioner Mr David Manning who was appointed on 10 December 2019 by the National Executive Council (NEC). He was granted leave to proceed to the substantive hearing some six days after, he was charged. Mr Kalaut was an applicant for the position and also shortlisted^[1]. The plaintiff alleges his prosecution was malicious because it was to get revenge against him for challenging the Polic Commissioner’s appointment. That the prosecution harmed his good reputation, standing and police career.

18. It is clear that the plaintiff was charged on 25 May 2020 with two charges of:

1) one count of abuse of office for allegedly on 13 September 2017 at six mile police station, NCD; abused the authority of his office as the Assistant Commissioner of Police for NCD and Central to conceal two pistols held in evidence as used by William Kapris and Raphael Walimini, from police investigations which was prejudicial to the rights of the complainant, thereby contravening section 92(1) of the Criminal Code Act Chapter 262; and

2) one count of the charge of attempt to pervert the course of justice allegedly between 12 and 30 September 2017 at the NCD by, attempting to interfere with police criminal investigations into the deaths of William Kapris and Raphael Walimini by ill advising the police commissioner to stop the criminal investigation so as to pervert the course of justice in the prosecution of Sergeant Philip Pokop and others of murder charges; thereby contravening section 136 of the Criminal Code Act Chapter 262.

19. It is also clear that the plaintiff was not convicted of these two charges. The charge for abuse of office was dismissed by the committal Court on 11 December 2020 while he was committed to stand trial for the charge of attempt to pervert the course of justice for which he was later discharged by the National Court on 9 July 2021, after the Public Prosecutor refrained from laying any charges to indict him before the National Court on grounds of insufficiency of evidence to secure a conviction.

20. The content of the written communication between the plaintiff and the Police Commissioner and the information contained in the police brief and other evidence are not largely in contention between the parties which after carefully perusing; I set out below in chronology.

Chronology of events
Date	Time
22 July 2013	Two named escaped convicts are shot dead.
23 July 2013	Senior Constable(SC) Boyamo instructed by DCP Andrews to investigate the shooting and prepare a file for the Coroner.
1 August and 25 Nov 2013	Letter of complaint by families of the escaped convicts to the Police Commissioner on the shooting and requesting for an investigation.
23 December 2013	SC Boyamo refers file to Coroner for an inquest to be conducted.
6 Sept 2017	SC Boyamo writes to the Coroner following up on the inquest, after four years.
8 Sept 2017	The National Court dismissed the civil proceeding WS 1003 of 2015 Brian Kapris v The State & Ors seeking damages against the State for the shooting.
11 Sept 2017	The Coroner writes to senior constable Boyamo advising that the inquest was closed as it was time barred under section 7(3) of the Coroner's Act which requires an inquest to be done within 12 months from death and that he was appointed in 2015 so had closed the inquest and issued the certificate on 16 April 2015 and that he could not conduct the inquest unless the Attorney General so permitted it.
12 Sept 2017	An implicated policeman Sergeant Philip Pokop is arrested by the defendants.
12 Sept 2017	The plaintiff writes an internal minute to the DCP Operations raising concerns about detectives trying to arrest policemen for the shooting in 2013 and expressing concern that the case had been closed by the Coroner and no interest would be served by pursuing it except for ulterior motives. He advised DCP Operations not to re-activate the matter because of liability against the State apart from the Coroner closing the inquest. He pointed out that the Attorney General's permission was required by law to re-open the coronial inquest.
13 Sept 2017	Plaintiff is alleged to attend at 6-mile police station, where he is alleged to inspect two pistols held as exhibits and taken possession of them.
15 September 2017	The Police Commissioner issues a directive to Deputy Commissioner Police operations to cease investigations into the deaths of the two named convicts unless otherwise advised by the Attorney General. This directive was copied to DCP Administration, AC Operations, AC Crimes and Commander NCD/Central.
18 Sept 2017	Eyewitness statements about the shooting in 2013 are obtained and recorded.
26 Sept 2017	DCP Ops Jim Andrews writes a minute to ACP Isouve to stop investigations because of the Police Commissioner's instructions including withdrawing the information against the charged policeman Philip Pokop. He states that any person who continues with the investigation would be deemed to have a self-interest in the matter.
27 Sept 2017	ACP Kalaut writes to OIC Prosecution to drop charges against policeman Philip Pokop.
6 October 2017	The Police Commissioner issues another directive to DCP Operations stating that Police will not pursue the matter of William Nanua Kapris death as the Coroner is time barred to conduct an inquest and it was up to his relatives to take any civil action. This directive was copied to DCP Administration, AC Operations, ACP S Kalaut /Divisional Commander NCD/Central.
16 Nov 2017	Further eyewitness statements about the shooting in 2013 are obtained and recorded.
1 Dec 2017	Minute from ACP Crimes Isouve to Police Commissioner requesting his understanding and stating his intention is not to defy his instructions but in light of new evidence, asking if the Attorney General's approval can be sought for the Coroner to re-open the inquest.
11 Dec 2017	DCP Admin, Huafolo issues instructions to ACP Crimes to continue the investigations into the deaths of the escaped convicts until all suspects are arrested. He expressed his views that it was a culpable homicide and police actions should be investigated despite the Coroner closing the inquest.
17 January 2018	ACP Crimes Isouve issued instructions to the second defendant, Walter Sims, to arrest and charge the implicated policemen.
12 Feb 2018	Legal officer from Mt Hagen Police Mr Sagom, writes to DCP Operations Andrews informing him that the National Court case filed by relatives of the deceased convict has been dismissed for lack of section 5^[2] notice on the State.
17 Feb 2018	ACP Isouve issued instructions to the second defendant to continue the arrest and charge of implicated policemen.
12 March 2018	DCP Andrews issues a minute to the Police Commissioner, relaying the Hagen Police brief that the civil case had been dismissed and the matter is now closed.
23 March 2018	ACP Isouve is suspended from duties on four grounds of insubordination in seeing the Police Minister without informing the Police Commissioner, placing self under obligation to a private individual, making false or frivolous claims against ACP Kalaut and causing disaffection amongst the police contrary to section 20(1) of the Police Force Act. First defendant's evidence is that ACP was charged with 14 disciplinary charges which included not stopping the investigations into the shooting of the convicts but only four disciplinary charges were pursued.
1 August 2018	The Police Commissioner demotes ACP Crimes Isouve to the rank of Chief Superintendent for insubordination and other reasons.
26 July 2019	The National Court quashes the decision of the Police Commissioner to demote ACP Crimes Victor Isouve and reinstates him to the Assistant Commissioner position and noted he has reached compulsory retirement age so will be paid on the Assistant Commissioner level on retirement.
9 Dec 2019	David Manning is appointed by the National Executive Council as the new Police Commissioner.
9 April 2020	The plaintiff and another file judicial review proceedings challenging the new police commissioner's appointment in OS(JR) 2 of 2020 Sylvester Kalaut and Fred Yakasa v National Executive Council et al.
Jan and Mar 2020	Central police statements are obtained against the plaintiff about the weapons at 6 mile police station.
14 May 2020	The National Court grants leave in the judicial review proceedings for the dispute to proceed to substantive arguments on the new Police Commissioner's appointment.
17 May 2020	First arrest of the plaintiff for alleged misappropriation, abuse of office and conspiracy to defraud.
18 May 2020	ACP Hodges Ette's minute to DCP Ops expressing his concerns upon learning about the plaintiff's arrest and that care should be taken in exercising police powers as it can be seen as vindictive.
19 May 2020	The plaintiff is interviewed and charged on allegations of attempting to pervert the course of justice in his advice to the Police Commissioner, Mr Gari Baki to stop the arrest and charges of policemen including Sergeant Pokop regarding the shooting of the named convicted criminals and for abuse of office in directing the Central Province Police officer in charge to surrender to him the weapons used by the named convicts which he allegedly concealed.
24 and 25 May 2020	The plaintiff is interviewed, charged, arrested and detained for four hours and released on police bail of K1000.00
11 Dec 2020	The charge for abuse of office is dismissed by the Committal Court and the plaintiff committed to stand trial on the charge for attempting to pervert the course of justice.
4 and 5 March 2021	The plaintiff is suspended from duties as Assistant Commissioner Police.
22 Jan 2021	The National Court quashed David Manning's appointment as Police Commissioner in Kalaut v National Executive Council [2021] N8709l.
9 July 2021	The National Court discharged the plaintiff after the Public Prosecutor filed a declaration declining to charge the plaintiff, pursuant to section 525 of the Criminal Code Act.
9 Oct 2021	The plaintiff's contract expires. His contract was not renewed after he was suspended for six months.

21. I will address first the primary submission of the plaintiff which challenges the legal authority of the defendants to prosecute in light of the Police Commissioner Mr Gari Baki's standing instructions to stop investigations and not arrest or charge officers, and the full bench Supreme Court's decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] SC1388 which upholds the Police Commissioner's authority over members of the RPNGC and their functions.

22. Mr Kalaut submitted that the decision confirms the lawful mandate of the Police Commissioner and renders unlawful the conduct of the defendants in prosecuting him because they had acted in defiance of the Police Commissioner's instructions and had no legal authority to arrest, charge and prosecute him.

23. The Police Commissioner's instructions arose from Mr Kalaut’s advice. Following the advice, the Police Commissioner issued two written instructions to the defendants' superiors on 15 September and 6 October 2017 to stop investigations, arrests and charging of policemen for the 2013 shooting incident. The Police Commissioner's reasons reflected Mr Kalaut's advice that the Coroner was time barred from re-opening the inquest into the deaths of the convicts and that the police had already taken all reasonable steps to recapture the convicts who had unfortunately died after resisting arrest and the case was closed.

24. The defendants evidence indicates that their then superior ACP Crimes Isouve had written on 1 December 2017 to the Police Commissioner in response to his instructions requesting him to reconsider, as they had new evidence about the shooting and requested if he could have the case re-opened through the Attorney General. However, he was disciplined for insubordination and demoted in 2018.

25. At the time of the plaintiff's charges, Mr Baki was no longer the Police Commissioner, the National Executive Council (NEC) had appointed Mr David Manning to be the new Police Commissioner and Mr Kalaut and Mr Fred Yakasa had filed a judicial review application^[3] before the National Court challenging the appointment. However, Mr Baki's instructions were not overturned by Mr Manning. Therefore, the instructions remained. The issue raised by Mr Kalaut is one of law and requires a careful examination of the Supreme Court's decision In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police to the facts of this case.

26. I infer in the absence of evidence of the third defendant, Superintendent Damaru, that he would be aware of the Supreme Court's decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police because he was the case officer in Damaru v Vaki [2014] N6787, that led to this Supreme Court case requiring interpretation of the constitutional provisions^[4] that concerned the Police Commissioner's powers.

27. The Supreme Court's decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police arose from the Police Commissioner not executing an arrest warrant obtained by Mr Damaru and others, to arrest the then Prime Minister which resulted in contempt proceedings filed by the police case officers against their Police Commissioner. In answer to the constitutional question "whether the commissioner of police has power under section 198 of the constitution to direct or control a member of the police force in the discharge of his/her function under section 197(2) to lay, prosecute or withdraw charges in respect of an offence or offences;" the Supreme Court answered at [95] and [96] that:-

" The Commissioner of Police, as head of the Police Force, which is a disciplined force, has an inherent and legitimate interest in the subject matter of all criminal investigations,..

Yes, the Commissioner of Police and other members of the Police Force have power under Section 197 of the Constitution to direct and control other members of the Force in the discharge of their functions to lay, prosecute or withdraw charges in respect of offences."

"101. Section 197(2) of the Constitution provides that members of the Police Force, when laying, prosecuting or withdrawing charges for offences are not subject to direction or control by any person outside the Force. They are, however, subject to direction or control by persons within the Force. They are subject, at least, to the direction and control of the Commissioner who, when directing another member of the Force as to the laying, prosecution or withdrawal of criminal charges, will be (unless the contrary is proven in a particular case) legitimately exercising the powers of superintendence, organisation and control of the Force in accordance with Section 198.

102. It was suggested in the course of submissions by the parties arguing the negative case on this question that such an interpretation would allow too much power to be held by the Commissioner who would be able to overrule operational decisions in criminal matters for corrupt or other improper motives.

103. The answer to this concern is found elsewhere in the Constitution: in Division III.2 (leadership code). By Section 26(1)(h) (application of Division 2) the Commissioner is a leader and subject to the Leadership Code and to the jurisdiction of the Ombudsman Commission. If the Commissioner of Police is alleged or suspected to have committed misconduct in office when directing or controlling another member of the Police Force as to the laying, prosecution or withdrawal of charges, the Commissioner may be subject to investigation by the Ombudsman Commission. If the Ombudsman Commission finds a prima facie case that the Commissioner is guilty of misconduct in office it is obliged by Section 29 (prosecution of misconduct in office) of the Constitution to refer the matter to the Public Prosecutor for prosecution before a leadership tribunal. A Commissioner found guilty of misconduct in office may be dismissed from office."

28. While I accept the plaintiff's submissions that the Police Commissioner's authority as head of the Police Force has been confirmed in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police, a closer perusal of the decision indicates that a superior officer's instructions apart from the Police Commissioner, should be equally complied with by their subordinates and those instructions must not be contrary to law.

29. The defendants had evidence going to the root of the initial investigation about the shooting of the two convicts. These evidence disputed the circumstances of the shooting which was relied on by Mr Baki. The ACP Crimes Victor Isouve had written on 1 December 2017, in response to the Police Commissioner advising that they had new evidence and requested for approval to be obtained from the Attorney General. His superior the DCP Operations, deferred with the views of the Commissioner and the plaintiff, and was of the view that the Coroner's inquest was not necessary as the cause of death arose from loss of blood from gunshot wounds and it was not a suspicious cause of death requiring the coroner's inquest.

30. I find it is from this background that the defendants affirmed their views and especially after their superior, the ACP Crimes discipline was quashed, by the judicial review Court. This is clear from the evidence of the second defendant.

31. The first and second defendants are subordinate officers whose evidence is that they relied on the instructions of their superiors. I find this is consistent with the Supreme Court decision for the police to also obey the instructions of their immediate superiors.

32. Instructions must be obeyed where they are issued by a person having the legal authority to issue the instructions and the instructions themselves must be lawful, clear and specific. Here, the Police Commissioner had the legal authority over the defendants to issue the instructions, but I find that it was open to the defendants to take the course of actions they did because of the conflicted opinions of their superiors and the new evidence.

33. The difference of views and the new evidence in my view, presents an arguably contrary view that falls within the exception clarified by the Supreme Court in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police that:

"101. Section 197(2) of the Constitution provides that members of the Police Force, when laying, prosecuting or withdrawing charges for offences are not subject to direction or control by any person outside the Force. They are, however, subject to direction or control by persons within the Force. They are subject, at least, to the direction and control of the Commissioner who, when directing another member of the Force as to the laying, prosecution or withdrawal of criminal charges, will be (unless the contrary is proven in a particular case) legitimately exercising the powers of superintendence, organisation and control of the Force in accordance with Section 198."

34. Here there is clear evidence of difference of opinion about the merits of the investigations into the 2013 shooting among the police hierarchy and the new evidence from the defendants demonstrating probable cause against implicated police personnel which was not considered by the Police Commissioner. The conflicted views raised a legal issue about whether the case was a proper case for the Coroner.

35. Where there are conflicted legal views among the hierarchy; I am not convinced, with respect, that In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police should be interpreted to limit the authority of other superior officers where there is evidence of these contrary views which challenges the basis of the Commissioner's instructions.

36. Further, the former Police Commissioner Mr Baki, states in his evidence that despite his instructions, investigations were still pursued. This could either mean defiance and insubordination or that the defendants were convinced they had probable cause which would fall within the exception in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police.

37. I am therefore satisfied that the first and second defendants acted within the confines of their mandate by relying on their immediate superiors', the former ACP Crimes Victor Isouve and the third defendant's instructions, and the new evidence obtained of the eyewitness statements from the shooting in 2013 provided them probable cause to proceed with their investigations and arrests of policemen, which included the actions taken against the plaintiff which was seen as contrary to the progress of the investigation and an attempt to pervert the course of justice.

38. I therefore proceed to address liability and will address the cause of action on malicious prosecution first, as my views on the elements of this tort will have a bearing on my views on the causes of action in negligence and false imprisonment because the element of probable cause is a common factor of the claims.

39. The tort of malicious prosecution requires four elements to be proved and concerns the abuse of the State's coercive powers to punish. See Tole v Kongi [2019] N7728, Kipahi v Nambos [2020] N8437, Kavo v Maipakai [2023] N10502 and Haluya v Gurel [2001] N2109.

40. The elements of the tort of malicious prosecution are stated in Kapi v Kambang Holdings Ltd [2011] N4451 at [3] as:

41. At the outset, the evidence is clear that criminal charges were laid against the plaintiff by the first and second defendants which were terminated in his favour when the Committal Court dismissed one of his two charges.

42. The charge for abuse of office was dismissed by the committal Court on 11 December 2020.

43. The Public Prosecutor later declined to charge the plaintiff pursuant to section 525 of the Criminal Code Act citing insufficient evidence to secure conviction and the plaintiff was discharged by the National Court on 9 July 2021.

44. The prosecution initiated by the defendants against the plaintiff ultimately ended when he was discharged on 9 July 2021 by the National Court.

45. I am satisfied that the elements of initiating and terminating prosecution against the plaintiff are proved.

46. The legal elements of reasonable and probable cause and malice are the contentious aspects of the case and require careful consideration of the evidence and the law.

47. The element requires consideration of all information before the defendants to prosecute Mr Kalaut and whether those information were adequate to form an honest belief in the defendants that they had a reasonable and probable cause to prosecute the plaintiff.

48. A survey of local and foreign caselaw suggests the following considerations be taken into account in addressing the element of reasonable and probable cause:

49. The test of a prudent and cautious person was initially established in Hicks v Faulkner 8 QBD at 171 where Hawkins, J defined the element of reasonable and probable cause in the tort of malicious prosecution as:

“An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably had any ordinary prudent cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”

If there really is some evidence founded on speech, letters or conduct that supports the case that the prosecutor did not believe in his own charge, the plaintiff is in my view entitled as of right to have the jury’s finding upon it.”

51. On the burden of proof, the Court explained in Tole v Kongi [2019] N7728 at [7] that:

"Element (b)[reasonable or probable cause] requires the plaintiff to 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."

52. The onus is on the plaintiff to prove that based on the information before the police defendants, they could not have formed an honest belief of his guilt or in other words, form an opinion that there was reasonable and probable cause to prosecute him.

Both of these offences were alleged to be committed in the course of his duties.

54. I remind myself that I must consider the information that was before the first, second and third defendants without the benefit of hindsight and as best as I can possibly place myself to the time, just before the charge and arrest of the plaintiff; to consider if based on the information at that time, the defendants had reasonable cause to prosecute the plaintiff.

In adopting this approach, I will not give much weight to the decisions which occurred after the charging of the plaintiff which are the decisions of the Committal Court, the Public Prosecutor and the National Court who in my view, tested the evidence of both parties as it related to the charges or professionally reviewed it. Here; I am concerned with whether the defendants abused the criminal process to charge the plaintiff without lawful justification at the time of his arrest and charges.

55. In considering whether the defendants held an honest belief that there was probable cause to charge the plaintiff; I will consider each charge and the information relied on by the defendants as contained in the police brief tendered into evidence by the plaintiff, because the plaintiffs claim rests on the sufficiency of the evidence before the defendants, their legal authority to charge him and their intent to prosecute him.

56. And in doing so, I also accept that other sources of information were available to the defendants in 2020, at the time of interviewing and charging the plaintiff. These other information consisted of the following:

57. It is apparent that this charge arose from the witness statements of the policemen from Central Province and six-mile police stations who the plaintiff allegedly instructed to witness him inspecting two pistols kept in the safe. The two pistols were alleged to be used by the convicts. Inspector Lucas Muka's evidence is that the two pistols were concealed at the time of the plaintiff's interview and he makes a request in his affidavit for the court to summon the plaintiff to produce the pistols. First Constable Walter Sim collaborates Inspector Muka's evidence.

58. The record of interview^[5] shows that the plaintiff was asked about viewing and taking the two pistols to conceal them, to which he denied taking the weapons, expressing he had no idea where the pistols were and that if he did take them, he would have known.

59. The charge related to this allegation was dismissed by the Committal Court on 11 December 2020.

60. The plaintiff pleads^[6] that he never abused his authority nor concealed the weapons and the District Court had found no evidence of that and dismissed the charge of abuse of office to which he is suing the defendants for his arrest, detention and prosecution on 24 May 2020.

61. The record of interview was conducted on 24 May 2020. The plaintiff filed his evidence on 2 February 2022^[7] changing his answers in the record of interview to later admit that he did attend at the six mile police station to sight the weapons which were produced to him by senior constable Boyamo and he observed that the two pistols were intact, in good shape and under the custody of senior constable Boyamo.

62. The plaintiff did not disclose this at the time of his interview. The defendants only had the information of his denial. In my view, this confirmed the defendants' belief at the time of his arrest that they had probable cause against the plaintiff for the offence of abuse of office. That belief was still present at the time of Inspector Muka's affidavit in this case.

63. Senior sergeant Boyamo filed his affidavit on 21 November 2022 in support of the plaintiff. He states he was the initial case officer in 2013 soon after the shooting and death of the two convicts and had conducted the initial investigations as instructed by the DCP Operations Jim Andrews. That he completed the investigations and referred the file to the Coroner within five months.

64. He collaborates Mr Kalaut’s evidence and deposes that the two pistols are still under his custody and he has not been asked to produce the weapons, by the defendants nor by any policeman. He confirms the plaintiff sighting the weapons and states the plaintiff did not take them in 2017 when he inspected them, and that the pistols are still with him. He states that at the time of the plaintiff's sighting of the weapons Chief Inspector Liamo Asi former Central Police provincial commander and Senior Inspector William Tovere were present when he produced the pistols to the plaintiff for inspection.

65. The police brief contains the statements of Chief Inspector Liamo Asi and Senior Inspector William Tovere. Senior Inspector William Tovere's statement was made on 20 January 2020 while Chief Inspector Liamo Asi was made on 18 March 2020. He confirms the weapons were taken out of the safe by Senior Constable Boyamo at the instructions of the plaintiff and that there were eight of them including Chief Inspector Liamo Asi and Senior Constable Boyamo when the plaintiff inspected the weapons. Senior Inspector William Tovere took some pictures of the weapons and the safe. He said the plaintiff then instructed senior constable Boyamo to surrender all the exhibits(two pistols) to him the next day, 14 September 2017.

66. Chief Inspector Laimo Asi confirms Senior Inspector William Tovere's statement and confirms that the plaintiff stated that he required the weapons for safekeeping.

67. There is no evidence that senior constable Boyamo gave the two pistols to the plaintiff the next day as directed by Mr Kalaut. His own evidence given some two years later states that the two weapons are still with him and that nobody has asked him about them.

68. What is clear to me from the statements of Chief Inspector Liamo Asi and Senior Inspector William Tovere is that the two pistols were not taken by the plaintiff when he inspected them on 13 September 2017. The clear evidence is that the plaintiff inspected the weapons and saw that they were still kept in the safe at six-mile police station under the custody of senior constable Boyamo.

69. The plaintiff instructed certain policemen to witness him accessing and inspecting the pistols which is the correct procedure to take when viewing evidence. There is no evidence that he physically took the weapons.

70. The defendants had the statements of Chief Inspector Liamo Asi and Senior Inspector William Tovere which clearly does not indicate what happened the next day about whether the weapons were given to the plaintiff. The defendants did not obtain any statement from Senior Constable Boyamo to confirm if he did give the pistols to the plaintiff the next day. This evidence was vital but not obtained, rendering the evidence incomplete and insufficient to form a probable cause for the offence of abuse of office under section 92 (1) of the Criminal Code Act.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years."

71. The evidence is that the plaintiff directed officers within his command to witness him inspecting the weapons, he did not take the weapons. There is no evidence of an arbitrary act that he abused his office to take the pistols that would have been prejudicial to the rights of the complainant. The witness statements are that he directed certain policemen to witness him accessing the weapons and on that day, he did not take the weapons. Further, an alleged statement uttered by the plaintiff mentioned in Senior Inspector William Tovere's statement, alone, proves nothing. The conduct of the plaintiff at that time was within his normal duties.

72. Had the defendants applied the evidence and the law objectively from the perspective of a prudent and cautious police investigator or arresting officer they could not have formed an honest belief that a reasonable and probable cause existed against the plaintiff for the offence of abuse of office.

73. While the police are not required to test every fact, here, the two statements relied on, clearly showed the plaintiff did not take the weapons or abuse his authority within the terms of Section 92 (1) CCA.

74. I am satisfied on a balance of probabilities, when objectively viewing the information from the witness statements that the first, second and third defendants, could not have formed an honest belief that there was sufficient prima facie evidence to justify charging the plaintiff with the offence of abuse of office.

75. On this charge, at first glance, it seems that the former Police Commissioner's instructions should have been considered before arresting and charging the plaintiff.

76. However, the charge is that the plaintiff attempted to interfere with the ongoing investigation by ill-advising the Police Commissioner with a view to pervert the course of justice concerning murder charges laid against sergeant Philip Pokop and other policemen.

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

78. The defendants had been investigating and collecting witness statements from 2018 and 2020 despite the Police Commissioner's instructions of 2017. This, I infer, was largely due to earlier contrary views of their superior and the change of the Police Commissioner later in 2019 going to their belief of a reasonable and probable cause or that there was a case for the plaintiff to answer.

79 First Constable Walter Sim's evidence is that the evidence he compiled showed that the two convicts were shot at indiscriminately without there being a shoot-out with the Police, causing their deaths. The defendants' case is that their investigations were stopped by the Police Commissioner upon the ill advice of the plaintiff.

80. The then Police Commissioner Mr Gari Baki issued two directives after the plaintiff's advisory minute of 12 September 2017. The first is dated 15 September 2017 and the second dated 6 October 2017. The directives were issued to the DCP Operations and copied to ACP Crimes Victor Isouve and others including the plaintiff, to stop the investigations because it was closed by the Coroner and not re-opened by the Attorney General. Reliance was placed on section 21 of the Coroner's Act by Mr Kalaut in his advisory minute.

(1) Where the Attorney-General directs a Coroner to re-open or hold an inquest, he shall–

(b) hold the inquest, if an inquest into a death has not been held because he or another Coroner has certified that the inquest was not necessary.

(b) a person authorized for that purpose by this section requests him to re-open or hold the inquest.

(3) Before re-opening or holding an inquest at the request of a person authorized for the purpose by this section, a Coroner may require a written statement of the grounds for the request.

(4) Where a Coroner considers that the grounds given under Subsection (3) do not warrant the re-opening or holding of the inquest he may refuse to re-open or hold it, as the case may be, but he shall, in writing accompanied by a copy of the grounds for his refusal, inform the Attorney-General of his refusal.

(5) The persons authorized to request a Coroner to re-open or hold an inquest under this section are the Commissioner of Police, a Superintendent of Police, and the husband or wife, father, mother, sister, brother, son, daughter or guardian of the deceased person."

82. In response, ACP Crimes Isouve presented his views to the Police Commissioner in a minute dated 1 December 2017 and clarified that he was not defying the Police Commissioner's instructions but requesting if the Attorney General's approval could be sought to re-open the coronial inquest in light of new evidence.

83. However, on 23 March 2018 ACP Isouve was suspended from duties on four grounds for insubordination and other alleged disciplinary offences. On 1 August 2018, the Police Commissioner demotes the ACP to the rank of Chief Superintendent.

84. On 26 July 2019, the National Court reinstates ACP Victor Isouve to his Assistant Commissioner rank but he had reached retirement age by that time, so the Court ordered that he retire at the Assistant Commissioner position.

85. First Constable Walter Sim's evidence is that he proceeded with the investigations after the successful outcome of his former superior ACP Crimes Victor Isouve’s judicial review case. That would be after July 2019 and probably explains why there was lack of progress in the investigation since 2018. He also refers to the advice and instructions from DCP Raphael Huafolo to ACP Crimes Victor Isouve dated 11 December 2017 that the investigations should continue until all suspects are arrested.

86. DCP Raphael Huafolo and ACP Crimes Victor Isouve's views dated 1 and 11 December 2017 are clear. They defer with the views of ACP Kalaut and ultimately the Commissioner's.

87. It is clear Section 21 requires the Attorney General to re-open a case closed by the Coroner, however given the views of their superiors, and the evidence they complied as contained in the police brief, I find that First Constable Walter Sim and Inspector Muka held an honest belief that the plaintiff had a case to answer for the offence of attempting to pervert the course of justice, which they believed was the plaintiff attempting to interfere with their investigations by his advisory minute.

88. In the record of interview conducted on 25 May 2020, the plaintiff denied the allegations of attempting to pervert the course of justice by his advice. The second half of the interview concerned the discipline and demotion of the ACP Crimes. This may appear irrelevant, but I infer Inspector Muka was trying to establish that by the plaintiff's conduct in providing the advice and the police commissioner's instructions; the investigation had also been interfered with by the discipline of the ACP Crimes Victor Isouve.

89. Mr Kalaut explains in his evidence^[8] filed on 2 February 2022; that he was performing his normal duties to provide advice, and his initial minute of 12 September 2017 was to the DCP Operations copied to the Police Commissioner. His evidence is that he was concerned with proper legal processes being followed to re-open the case. His reason for writing to the DCP was that the matter was of national interest and required a decision to be reached by the Police management.
90. The plaintiff further explains that another reason why he wrote the memo was to prevent another civil suit for damages against the Police and the State noting what to him was a suspicious coincidence of the arrest of sergeant Philip Pokop on 12 September 2017 about four days after the National Court in Mt Hagen dismissed a civil suit for damages by one of the deceased convict's family member.
However, I am not convinced by this reasoning as it has no evidential relevance to his charges.

91. While the plaintiff may have been driven by a sense of duty to advise the DCP Ops and Police Commissioner about his concerns of the internal investigations and the arrest of policemen by the defendants, the element of reasonable and probable cause, requires the Court to consider the state of mind of the defendants and not, the plaintiff's defence.
In considering whether to arrest or charge a person suspected to commit a crime, the police are not required to prove every fact or consider an offender's defence. What matters is that they have sufficient information that persuades them of a prima facie case against the suspect or offender. The Police are not required to consider the offender's defense. See Herniman v Smith and Coudrat v Revenue and Customs Commissioners.

92. I accept the defendants' evidence of their belief that they had a reasonable and probable cause because I find that the following evidence gave them reasonable grounds or probable cause, even if the weight of the information they had may have not been legally adequate according to the District Court or the Public Prosecutor; based on the information they had at the time of charging the plaintiff; they believed the plaintiff had a case to answer from:

93. On the charge of attempt to pervert the course of justice, I find that the defendants did hold an honest belief that the plaintiff had a case to answer for the charge alleged and of the merits of their case against the plaintiff.
Given the weight of the defendant's evidence, the plaintiff has not discharged his burden of proving that the defendants did not have reasonable or probable cause to charge him with the offence of attempt to pervert the course of justice.

94. The element of malice, is the dominant element of the tort of malicious prosecution and is usually inferred from circumstances.

96. The plaintiff must prove the defendants were predominantly motivated by malice or some improper purpose. In Kalo v Akaya [2007] N3213 the Court held that:

"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] UKLawRpKQB 123; (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."

97. To be successful, the plaintiff should prove on a balance of probabilities that there are strong inferences to be drawn from the evidence that the dominant purpose for his prosecution was out of spite, ill-will or for a purpose contrary to give effect to the law and to harm his reputation and person.

98. The plaintiff pleaded his causes of action in the statement of claim by stating allegations of fact under each cause of action according to their legal elements. For the tort of malicious prosecution, he did not specifically plead the factual allegations for the element of malice. The State's counsel took issue with this. However, Mr Kalaut pleads malicious intent under the claims for false imprisonment and negligence, which I exercise my discretion to accept as sufficient for consideration for malicious prosecution.

99. The plaintiff alleges malicious intent at paragraphs 6.3, 6.4, 6.5, 7.1.20 and 7.1.21 of his statement of claim amongst others, to infer malice by the conduct of the defendants of arresting policemen in 2017, within a short time of four days after a civil proceeding brought by the family of Gabriel Nanua Kapris was dismissed in Mt Hagen on 8 September 2017 and that of his arrest which occurred six days after the National Court granted him leave to challenge the Police Commissioner David Manning's appointment. He alleges that the defendants abused their powers by maliciously prosecuting him three years after the offence was allegedly committed to get revenge against him for challenging the appointment.

100. I understand from the plaintiff's submissions that malice should be inferred from the following circumstances: -

1) The time of his arrest and charges just six days after he was granted leave by the judicial review Court in the proceeding he filed to challenge Mr David Manning's appointment as the Police Commissioner;
2) The defendants acting in defiance of the former Police Commissioner's standing instruction;
3) The internal minute from ACP Crimes Mr Hodges Ette raising concerns that his arrest was vindictive;
4) The prosecution would give rise to another chance at suing the State for damages.

101. I find the fourth circumstance remote and disregard it as it occurred some three years before the plaintiff's arrest. I consider too, that while the plaintiff may be driven by a sense of duty to advise the Police Commissioner in 2017, I do not see any direct link to the allegation of malice arising from his charges as the civil action can only be brought by those persons, mainly family, specified in the Wrongs (Miscellaneous Provisions) Act Chapter 297^[9].

102. For the third circumstance; the plaintiff relies on the minute^[10] from ACP Ette that raises concerns about his arrest on 17 May 2020 not his arrest on 24 May 2020, the subject of this proceeding. ACP Ette writes to the DCP Operations and expresses surprise and disappointment that the plaintiff was arrested earlier then what he was informed about and cautioned that the police officers must observe due process, or the arrest would be viewed as vindictive. The minute does not mention the judicial review case nor the new police commissioner. The minute is dated 18 May 2020, copied to the plaintiff and another policeman arrested around the same time as the plaintiff.

103. In my view, this minute does not assist the plaintiff as ACP Ette only expresses his concerns as the superior officer, about the lack of notice to him about the plaintiff's arrest but falls short of providing any specific information or making any reference to the judicial review challenge. I find the minute presents innuendos coming across as only those the minute is addressed to would understand the innuendos been implied and for these reasons, I give less evidential weight to it.
104. As to the first circumstance, concerning timing of the plaintiff's arrest and charges to the judicial review proceeding; I am unable to draw an inference of malice because of the following reasons arising from the plaintiff's own evidence and submissions. These are:
A. The plaintiff was charged with other policemen, and

B. There is no evidence of the Police Commissioner David Manning issuing instructions to the defendants to arrest the plaintiff or of any history of ill-will with the plaintiff.

105. The plaintiff referred me to the decision of his Honour Mogish J in criminal proceedings CR 544 and 896 of 2022 The State v Jeffrey Kifoi and Tony Kande unreported National Court decision 13 October 2023, as authority for his submission that Mogish J had considered and upheld the same instructions of the Police Commissioner Mr Baki, to quash the indictments of two policemen charged with murder from the same investigation and in light of the Supreme Court decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police. In that case, his Honour reasoned that there was no legal basis to charge the two policemen and quashed their indictment finding that it tended to embarrass or prejudice their defence. This decision was made after the fact on 13 October 2023.

106. To me, the essential fact arising from that case, is that the two policemen were charged around the same time as the plaintiff from the same investigations.
In that case Jeffrey Kifoi was charged on 4 February 2020 and Tony Kande on 18 April 2020. The plaintiff was interviewed and arrested on 24 May 2020 and charged on 25 May 2020, a month after Tony Kande.

107. Further, according to ACP Hodges minute, the plaintiff was arrested with another policeman, a Bob Kerry, on the 17 of May 2020 which was six days before the charges the subject of this proceeding. The plaintiff gave no evidence nor detailed submissions about the earlier arrest of 17 May 2024.

108. These facts indicate to me that the plaintiff was not the only policeman arrested and so could not have been targeted for the sole reason of challenging the NEC decision to appoint the new Police Commissioner.

B. There is no evidence of the Police Commissioner David Manning issuing instructions to the defendants to arrest the plaintiff or of any history of ill-will with the plaintiff.
1) Plaintiff's evidence
2) Defendants' evidence

109. The aspect of the case that the plaintiff takes the most issue with on the element of malice is the timing of his arrest and charges, to the judicial review case. In light of the defendants evidence; it could be a coincidence, or, an opportunity for the defendants to charge as Mr Baki was no longer the Commissioner or it just wasn't considered. The defendants gave no evidence about the judicial review case nor the new police commissioner; it is as if they never considered this fact in forming their views about the plaintiff having a case to answer.
However, I take note that the judicial review challenge would have been well-known among the rank and file within the RPNGC. They would have considered its impact to their actions.
Still, the defendants were not cross-examined by the plaintiff to bring out such evidence, if it existed.
I am therefore left with no evidence about Mr Manning's role and in the absence of such evidence; I am disinclined to accept an assumption that the defendants acted on Mr Manning's instructions to prosecute the plaintiff which is what has been implied in the plaintiff’s submissions.
Further, Mr Manning has not been sued to defend himself.

110. I remind myself that malice must be the sole or dominant purpose of the prosecution, and it is often accompanied by trumped up charges with no or irrelevant evidence. Here, the defendants have been able to explain that they had a reasonable belief based on the evidence they had and formed a view that the plaintiff had a case to answer. The delays in arrest, I find, were also affected by the discipline of their superior ACP Isouve, in 2018 and 2019.

111. The plaintiff states in his own evidence^[11] that he knew that his arrest and charges were out of spite for him, mostly to get revenge against him because he had commenced judicial review proceedings to challenge the appointment of David Manning as the new Police Commissioner.

112. To collaborate his belief, he relies on the internal minute by the ACP Crimes Mr Hodges Ette which I have already decided does not assist the plaintiff.

113. He was a strong contender^[12] for the position of Police Commissioner and while this fact alone may generate some suspicion about his charges, because of its timing, he has to go one step further and produce evidence of malice in light of the defendants evidence including providing that opportunity to Mr Manning to respond to the allegations as a party to the proceeding, which he has not done.
114. His evidence does not give details about why he was targeted and not Mr Fred Yakasa the other applicant in the judicial review case or, whether there existed any previous animosity between him and Mr Manning or any of the defendants.

115. The first defendant's evidence is that he did not intend to harm the plaintiff by his arrest and charges because he was only performing his duties after been instructed to do so by his superior, the third defendant.

116. The second defendant's evidence reveals that he is loyal to his former superior the ACP Crimes Victor Isouve. I consider his evidence with the evidence from the record of interview and evidence in the police brief of the disciplinary charges against the former ACP Crimes, where I note that one allegation related to the ACP making a false allegation against the plaintiff. Considering these evidence together, reveals to me that there is an undertone of animosity against the plaintiff for the discipline of his former superior, and I infer, for the investigations been put to a stop by the Police Commissioner.

117. To me it is not unusual for an investigator who has spent time and effort on a case to be upset about the case being stopped by a superior. However, I weigh carefully the undertones of animosity against the evidence that the former ACP Crimes Victor Isouve was disciplined by the former Police Commissioner and the plaintiff does not plead that it is because of the former ACP Crimes discipline, that he was charged.

118. The second defendant explains how the investigations were initiated and stopped because of the plaintiff's minute in 2017 and his arrest by the first defendant and the subsequent dismissal of the charges.

119. I find the second defendant, First Constable Walter Sim’s evidence provides a good summary of the factual account of the case and his duties and demonstrates that he believed he had probable cause.

120. The third defendant is the superior officer of the first and second defendants. He has not filed any affidavit to explain his role and where the source of his instructions came from.

121. However, the plaintiff produced a letter signed by the third defendant inviting the plaintiff to a police record of interview to respond to allegations of abuse of office and attempt to pervert the course of justice as a result of investigations into the escaped convicts. The letter states further that the investigation was sanctioned earlier by the former ACP Crimes Victor Isouve. To me, this letter provides evidence that the investigations initiated by the former ACP Crimes were being continued and provides insight into the source of the third defendant's instructions.

122. In weighing the evidence, I find that the plaintiff was doing his job as the commander in 2017 of NCD/Central, to voice concerns about the legal impact of criminal charges against policemen when the Coroner had closed the inquest for the being time barred and it was up to the relatives to request for the case to be re-opened which is consistent with Section 21 of the Coroner’s Act.

123. However, I find that the arresting officer Inspector Muka was also doing his job and I accept his evidence that he was instructed by his superior, the third defendant, to arrest and charge the plaintiff.

124. As to the intentions of the second defendant, I find he was loyal to his former superior and was driven to see his investigations result in arrests. The undertone of animosity is for the loyalty he had to his former superior and not, I find, because of an intent to maliciously harm the plaintiff because he challenged the Police Commissioner's appointment.

125. The only outstanding issue is the lack of evidence from the third defendant. However, the plaintiff did not take issue with this and the letter relied on by him explains sufficiently why the plaintiff was required for the interview and clarified too who sanctioned the investigations.

126. The plaintiff further submitted that the defendants were not impartial and objective in carrying out their duties and in doing so breached their constitutional duty under section 198 of the Constitution. I accept that not being impartial and objective has a bearing on the element of malice on whether the defendants had an improper purpose to prosecute the plaintiff.
127. I remind myself that malice must be the dominant purpose in order for the tort of malicious prosecution to be proved.
I find the defendants were focused on establishing that and did not consider if they had the legal authority given the Police Commissioner's instructions; to lay charges against the policemen as it is not a legal requirement of sections 91 and 136 CCA to obtain the Police Commissioner’s permission before charging persons.

128. I am more inclined to accept the defendants' evidence because, the first and second defendants gave evidence explaining their intent and the police file clearly demonstrates the evidence complied by the defendants against policemen, including the plaintiff which provided them with reasonable cause, although legally mistaken, for the charge of abuse of office.

129. As regards the District Court and Public Prosecutor's decisions, those are after the fact and not relevant for me to consider to ascertain the state of mind of the defendants at the time of arresting and charging the plaintiff.

130. Further, the District Court tested the prima facie aspects of the charges from the evidence and submissions of both parties while the Public Prosecutor expressed an independent professional legal opinion after perusing the evidence from the Police and the plaintiff. They are entitled to express their professional opinion which resulted in the remaining charge of attempt to pervert the course of justice, being discharged against the plaintiff.

131. Alternatively; if I am wrong; in contrast to this case, is Yambaki v Namues [2022] N9983. The Court there found the defendant policeman applied the criminal law maliciously for an improper purpose because he was pressured by the complainant to arrest and charge the plaintiffs who were senior bank officials. The Court made this finding despite finding that the policeman did not understand the operation of banking laws.

132. In that case, the senior bank officials authorised the transfer of an income that was due to the complainant towards re-payment of his debt, which is a normal bank transaction.
In Yambaki v Namues [2022] N9983 Shephard J commented at [105] that:-

"...I consider that the first defendant as a senior criminal investigating police officer did not have sufficient knowledge of the law of bank securities and the law of garnishee proceedings because it is apparent that if he did have that knowledge, he could not have held any reasonable belief that there was any criminal conduct on the part of Mr Maddison and Mr Fleming in the circumstances which were presented to him during the course of his pre-prosecution investigations. I find that, because of his lack of knowledge of relevant banking law and garnishee proceedings, the first defendant’s objectivity when presented with Mr Yama’s complaint was overborne by the improper purpose of pursuing the prosecution of Mr Maddison and Mr Fleming at the behest of Mr Yama to punish them and BSP for Mr Yama’s grievances against BSP and against Mr Kruse as the duly appointed Receiver of Yama Security Services Limited."

133. The facts are clearly distinguishable to this case, however, the distinctive factor for me is the clear finding by the Court of the policeman's objectivity been clouded by his lack of understanding of the banking laws which was made worse by the pressure applied on him by the complainant, resulting in a finding that the criminal law was applied for an improper purpose, which was to satisfy the complainant and not to see the ends of justice met. Here, the supposed influencer is Mr Manning but there is no evidence that Mr Manning applied pressure to the defendants or that the defendants were motivated to please the new Commissioner.

134. Without further clarification from the evidence, I find that the plaintiff's belief that his prosecution was out of revenge against him; are based on suspicions and innuendos, and after considering the evidence in totality, I am of the view that the circumstances submitted by the plaintiff are not sufficient for me to draw a strong inference or impute that malice predominantly existed or was a primary motivating factor for his prosecution. Suspicions are not adequate to prove malice. See Tole v Kongi [2019] N2765 at [10].
135. Although, a finding of lack of probable cause in the charge for abuse of office, may provide an inference of malice, I am not satisfied the finding results in that inference, as the arresting and case officers gave evidence that they were performing their normal duties with no intent to maliciously harm the plaintiff. I also consider that it is not uncommon for police charges to be dismissed for insufficient evidence or want of prosecution. It often does not mean the prosecution was malicious. I therefore do not infer any malice from my finding of no probable or reasonable cause with the charges.

136. It is my conclusion that the plaintiff did not discharge his burden of proof on a balance of probabilities that the defendants were driven primarily by malicious intent to prosecute him. His evidence that circumstances existed of the coincidence of his judicial review proceeding and his criminal charges is not an imputation of wrong or improper motive that I can make against the weight of the first and second defendants' evidence.

I find based on all the evidence before the defendants at the time of arresting and charging Mr Kalaut; that they had reasonable belief that he interfered with their investigations by the internal advisory minute to the Police Commissioner and his inspection of the pistols kept as exhibits. I find according to their information they believed they had reasonable cause to investigate policemen implicated in the shooting from the eyewitnesses' statements of three persons, but their investigations were hampered by Mr Kalaut's minute.

I find their views were fixed when the judicial review Court quashed the insubordination charge of their superior AC Isouve.
I also find that by this time there was a change in the Police Commissioner, from December 2019.

The proper course they would have taken was to obtain new instructions from the new Police Commissioner, Mr David Manning. However, Mr Kalaut challenged his appointment and there would be a strong inference of bad faith if Mr Manning were to revoke Mr Baki's instructions with new instructions to prosecute.
The defendants therefore proceeded on the basis of their former superior ACP Isouve's earlier instructions to complete the investigation and arrest implicated policemen.

137. I find the defendants were performing their normal duties with no ill intent nor to apply the criminal law improperly to tarnish Mr Kalaut's reputation or cause harm to him as alleged.

I am therefore not satisfied that the element of malice has been proved by the plaintiff.
The timing of the plaintiff's arrest raised a lot of suspicions for him but, the defendants are able to prove that they were discharging their normal duties without any malicious intent for the plaintiff.

138. All elements of the tort of malicious prosecution are required to be proved in order to be successful. See Mahara Ignote v Hualupmomi & The State and Kapi v Kambang Holdings Ltd. Not all elements of malicious prosecution have been proved. I therefore find that the plaintiff has not discharged his burden of proof on a balance of probabilities that he was maliciously prosecuted by the defendants.

139. It is therefore my judgement that the defendants are not liable for the tort of malicious prosecution in prosecuting the plaintiff on 24 and 25 May 2020.

140. For the cause of action in the tort of negligence, the plaintiff claims the defendants owed him statutory duties of care under the Constitution, the RPNGC Standing Orders and Code of Ethics to be diligent, impartial and objective in conducting their investigations.

141. The plaintiff pleads the defendants owe him a duty of care under section 197 and 198 of the Constitution to be objective and impartial when applying the law. Also for breach of section 59 of the Constitution to use the administrative process to afford him the right to be heard through the administrative employment process on the allegation, before charging him criminally.

142. He also pleads breaches of the Police Code of Ethics for failure to carry out their duties diligently with integrity and honesty by not doing the investigations thoroughly. And for breaches of the Police Standing Orders for failure to comply with the Police Commissioner's instructions. And that if the defendants complied with these laws, they would have realised, he had no case to answer.

143. The legal elements for the tort of negligence which the plaintiff must satisfactorily prove on a balance of probabilities; requires that the defendants owed him a duty of care and that duty of care was breached, the breach caused damages to the plaintiff, and it was not remote. See Kuman v Digicel (PNG) Ltd [2019] SC1851, Baikisa v J & Z Trading Ltd [2016] N6181 and Mangi v Trane [2024] N10819.

144. The first element is the presence of a duty of care. A duty of care entails a relationship in proximity to the plaintiff that the conduct of the defendants affects him. Negligence entails a relationship as espoused by the classic common law case of Donoghue -v- Stevenson [1932] AC 562.
However, in general, the police owe no duty of care to anyone when performing their duties to execute their functions in supressing crime and conducting investigations. See Maku v Maliwolo [2012] SC1171 and Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53.

145. A specific instance of negligence that may arguably arise could be for the defendants not meeting the test of the prudent and cautious person in considering the evidence for the charge of abuse of office. However, the general common law of police immunity from negligence as established in Maku v Maliwolo discounts this, as that test, in my view, concerns the subjective decision-making process of the police on whether to attend to a crime; not an overt act or omission of the defendants.
Still, this aspect is not pleaded by the plaintiff and is not a relevant consideration.

146. In my view, the plaintiff is asserting that the defendants should have carefully considered the evidence before them by being diligent and objective about it, which the decisions in Hill -v- Chief Constable of West Yorkshire and Maku v Maliwolo are clear, that the Police cannot be held negligent for not carefully considering the evidence or its impact which is part of their duties to supress crime.

147. Compared with other cases where the police have been found to be negligent for overt acts of blatant breaches of people's constitutional rights when enforcing the law and clear evidence of abuse of police powers in conducting raids such as in the cases of Maku v Maliwolo, Arala & Ors v Kua & Ors [2023] N10621 and Kelly v Yakasa [2020] N8425, the defendants here acted within the scope of their duties and the conduct that is challenged by the plaintiff is not an overt excessive act of abuse of the law by destruction of properties or physical assault but the state of mind of the defendants in considering the evidence and information before them. This aspect is in my view clearly protected by the common law principle of police immunity to negligence as espoused in Maku v Maliwolo.

148. The other potential aspect to consider if a duty of care existed would be the employment aspect as there is an employer/employee relationship between the State and the plaintiff. Hower this was not pleaded for the tort of negligence and the Police Commissioner who would have made the decision to suspend him is not a party to the proceeding.

149. I therefore find that there is no duty of care owed by the police defendants to the plaintiff in executing their duties. There is no need to consider the other elements which are dependent on there being a duty of care. Thus, the cause of action in the tort of negligence is not proved on a balance of probabilities as the critical element of duty of care has not been established.

150. Alternatively, the plaintiff pleads that his arrest and confinement in the Boroko Police Station cells from 1pm to 5pm on 24 May 2020 was illegal, because his arrest and detention was in breach of the Police Commissioner’s directives to stop the investigations, arrest and charge of policemen related to the deaths of Willian Nanua Kapris and Raphael Walimini.

151. The elements of false imprisonment are that the plaintiff was arrested, charged and detained without lawful justification. In Hambru v Baur [2007] N3193 the Court clarified:

"33. False imprisonment, unlawful arrest and unlawful detention are entwined, thus false imprisonment would inevitably arise in an unlawful arrest and detention situation. This position is illustrated by a number of decided cases where it was held that an arrest which is not according to law would amount to or constitute false imprisonment. See The State v. Songke Mai & Gai Avi (supra); John Savarao v. Lau Soran & Ors [1997] PNGLR 14; Pawa Kombea v. Semel Peke (supra); Mahira Ignote v. Abraham Hualupmomi & The State [1996] PNGLR 308. The point was made plain in Regina v. Kakius-Isiura [1964] PNGLR 84 where Minogue J (as he then was) at p. 89 said:

"...An unlawful arrest is technically a ‘false imprisonment’, which is both a tort, giving an action for damages against the officer, and a common-law misdemeanour. The damages awarded may be punitive, that is to say more than are necessary to compensate the plaintiff, in recognition of the fact that his constitutional right to freedom has been invaded..." "

In Kofowei v Siviri [1983] PNGLR 449 the Court explained that false imprisonment constitutes:

" ...the act of arresting or imprisoning any person without lawful justification and preventing him from exercising his right to leave the place of detention and continues from apprehension until being dealt with judicially or being released.

Holding the plaintiff in breach of the provisions of the Arrest Act for three days amounted to false imprisonment."

152. Mr Kalaut submits that his arrest and detention by the defendants was without lawful justification for breaching sections 2 and 3 of the Organic Law on the Relief of Members of Disciplined Forces 1998 and the Police Standing Orders which requires compliance with a directive of the Police Commissioner.

153. The plaintiff’s claim for false imprisonment rests on the legal authority to prosecute. I reiterate my views that the defendants were entitled to procced with their investigations and arrest despite the Police Commissioner’s instructions because they had evidence that challenged the factual basis of the Police Commissioner’s instructions which brings the defendants within the exception in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police.

154. I also am of the view that the Supreme Court decision in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police. regarding the ultimate authority of the Police Commissioner also applies to senior officers that are subordinate to the Police Commissioner.

155. Sections 2 of the Organic Law on the Relief of Members of Disciplined Forces 1998 exonerates a policeman who acts on an honest belief on reasonable grounds that he was complying with a lawful order. Based on my views from In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police, the lawful order, in the defendants' case would be the instructions of their superior.

My views of In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police is that the decision also applies to a superior officer's instructions to his/her subordinate, apart from the Police Commissioner, so the defendants are entitled to rely on their superiors' instructions. I do not find, this is in defiance of the Police Commissioner’s instructions, because the plaintiff’s charges arises from a difference of opinion amongst the hierarchy which concerned his role in that difference of opinions and the instructions from the Police Commissioner.

156. The legal process for protection of rights in section 42 Constitution and the Arrest Act were complied with by the first defendant in arresting Mr Kalaut. Mr Kalaut was afforded courtesy and his constitutional rights during his interview and arrest were observed by the defendants. His initial interview scheduled on 22 May 2020 was deferred to 24 May 2021 at his request^[13]. An officer of appropriate rank interviewed him. The letter requesting his interview and the charges gave him the lawful justification for his arrest, detention, and charges. He was offered police bail of K1000.00 for the two charges after four hours of detention or confinement in the Boroko Police Station cells. I do not see any of his constitutional rights being breached.

The plaintiff did not dispute this process. I do not find any breachers of his constitutional rights occurred.

157. Though, given his rank and standing within the Police Force at the time of his arrest, I accept that he suffered damage and harm to his reputation however, I find that his experience is a natural consequence suffered by anyone who is arrested and detained by the police.

158. And I adopt and apply as my own, the comments of His honour Salika J in Justin Tkatchenko v National Capital District Commission [2002] N2196:

" I have no doubt he was greatly injured in his credit, character and reputation and that he suffered considerable trouble, inconvenience, anxiety and expense and that he had been greatly injured in his business and as a result suffered loss and damage. I have said already that as a result of routine police duty and after he was charged he was placed in the cell. Is that wrongful imprisonment or wrongful detention. From all the information it is my view that the placing him in the cells after being charged was routine police duty. What the police officer did was according to law and that it was proper in the circumstance. Every person charged with a criminal offence goes through that routine. When that happens he is deprived of his liberty, he is greatly injured in his credit, character and reputation. The anxiety in convenience and expense are a natural flow on results when a person is charged with a criminal offence. "

159. Further, it is not unusual for police charges to be dismissed by the Committal Court or the National Court. It does not mean that the persons were falsely arrested and detained. See Tkachenko v National Capital District Commission [2002] N2196.

160. I therefore find that the plaintiff has not proved his claim in the tort of false imprisonment.

161. Overall, It is my judgement that the plaintiff has not discharged his burden of proof on a balance of probabilities to prove that the defendants are liable for the causes of action he has pleaded against them for the torts of malicious prosecution, negligence, false imprisonment, breach of constitutional rights and other damages.

162. The plaintiff's causes of action came down to whether the defendants had reasonable and probable cause to arrest and charge him. That included whether they were in defiance of the Police commissioner's instructions which I have found that they have not, and their conduct is captured by the exceptions in the In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police. This addressed most of the plaintiff's legal concerns about the defendants' authority to prosecute him.

163. The defendants evidence proves that they had been working on an outstanding investigation which was affected by the Police Commissioner's instructions and the discipline of their superior the ACP Crimes Victor Isouve, which they attributed to the plaintiff's advisory minute of 12 September 2017.

164. While the timing of the interview, arrest and charging of Mr Kalaut produced heightened anxiety and suspicions given his judicial review application challenging the Police Commissioner's appointment; I find that the challenge to the police leadership, did not have a bearing on the first, second and third defendants’ actions and views about the plaintiff having a case to answer.

165. I find the defendants were performing their normal police duties and had a lawful justification to arrest and charge the plaintiff and in so doing, did not owe a duty of care to the plaintiff to exercise care in thoroughly considering the evidence and have also not falsely imprisoned him. Therefore, there was no breach of any of his constitutional rights during his interview, arrest, detention, and charges.

166. It is therefore my judgement that the plaintiff has not proved that the defendants are liable for the causes of action pleaded against them. Consequently, the proceeding shall be dismissed in its entirety.

167. Costs are a discretionary remedy and usually follows the event. However, given the proceedings arose from earlier criminal proceedings, the Court considers that both parties were put through time and expense but more so for the plaintiff in defending himself.

168. I therefore exercise my discretion to not award costs against the plaintiff. Each party bears their own costs.

Judgement and Orders accordingly,
__________________________________________________________________
Lawyers for the defendants: Solicitor General

^[1] See Kalaut v National Executive Council [2021] N8709
^[2] Claims By and Against the State Act 1996.
^[3] OS(JR) 2 of 2020 Sylvester Kalaut and Fred Yakasa v National Executive Council et al
^[4] Sections 197 and 198.
^[5] At questions and answers 20 to 24.
^[6] At paragraphs 6.12, 6.13 and 6.14 of the statement of claim.
^[7] Court File document No 3 Exhibit marked 'P1'.
^[8] Court File document No 3 Exhibit 'P1'
^[9] See sections 25, 26 and 27.
^[10] Annexure 'SK 11', affidavit of Slyvester Kalaut filed 2 February 2022 Exhibit 'P1'.
^[11] Exhibit P2 at paragraph 28, Court File document no: 2.
^[12] See Kalaut v National Executive Council [2021] N8709
^[13] Court Documents No. 3 plaintiff’s evidence

National Court of Papua New Guinea

Kalaut v Muka [2025] PGNC 363; N11505 (30 September 2025)