N2109

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 442 OF 1996

BETWEEN:

DAVID HALUYA
Plaintiff

AND:

SAMSON GUREL
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani	:	Sakora J
2000		:	17 August
2001		:	28 May

Law of Torts – Wrongful arrest – False imprisonment – Malicious prosecution – Damages for.

Constitutional Law – Rights of all persons – Liberty of the Person – Damages for – Constitution, s. 42(1)

Counsel:
Mr Keta for the Plaintiff.
Ms Kiele for the Defendants.

28th May 2001

SAKORA J:	The plaintiff’s claim is for damages arising out of his arrest, charge and prosecution by the police under a provincial liquor licensing legislation. These actions of the law enforcement agency of the State resulted in the plaintiff being convicted and imprisoned for a term of 6 months (upon default in payment of a fine of K200 ordered to be paid the very same afternoon of the sentence being imposed).

The proceedings were commenced by the issuance of a Writ of Summons filed 2 May 1996 claiming, as stated above, damages for the following wrongs on the part of the State agency, the first defendant and his subordinates:

1.	Wrongful arrest.
2.	Breach of s. 42 Constitution.
3.	False imprisonment.
4.	Malicious prosecution.

The Writ having been duly served on the State on 6 May 1996, the Solicitor-General filed and served a Notice of Intention to Defend on behalf of the first and second defendants some 49 days later (some 19 days outside the prescribed period). On 24 September 1996, the plaintiff applied for and had judgment regularly entered against the defendants (there being no Defence filed under the National Court Rules (NCR)), and for damages to be assessed at a later date.

After several unsuccessful attempts by the plaintiff’s lawyers to have the matter set down for hearing, due in the main (as the records demonstrate) to the procrastination of the lawyers for the defendants, it came before me on 17 August 2000 when I heard counsel and reserved decision.

Background

The facts relied upon by the plaintiff have not been challenged despite a Notice of Institution to Defend having been filed (supra). And it is upon these facts that the previous National Court ordered the entry of a default judgment against the defendants. And they (facts) demonstrate the following circumstances.

The plaintiff is a local businessman and village leader from Andiria village in the Koroba District of the Southern Highlands Province. On 21 May 1992, the first defendant in the company of two other policemen entered the plaintiff’s village in an official Police vehicle, ostensibly to inspect the plaintiff’s club liquor licence. The three policemen were from the neighbouring Tari Police Station where the first defendant was a senior Police Prosecutor. They were uniformed.

The policemen then proceeded to the Club where, after counting the beers and arriving at a total of 30 cartons, requested the plaintiff to produce his licence to sell the beers. Unable to produce the licence because he said it was with the Mendi licensing authorities, the plaintiff produced to the police a receipt for the payment of the licence, whereupon the first defendant stated that the licence had expired and that he (plaintiff) should bring the licence to Tari to confirm that it was current.

The next day, the 22nd May 1992, the plaintiff was arrested and taken to the Tari Police Station where he was charged with selling beers without a licence and kept in custody. The 30 cartons of beer were confiscated and taken to Tari also. On 4 June 1992 the Tari District Court heard the case and dismissed the charge. The 30 cartons of beer were ordered to be returned to the plaintiff forthwith.

The plaintiff was consequently released from custody, but the beers were not returned as ordered. About a month later the plaintiff returned to Tari Police Station and enquired about his 30 cartons of beer. The first defendant was unable to produce the cartons of beer as, it has been plaintiff’s contention and claim all along, he had in fact consumed the beers with others in direct contravention of the court order.

It would appear that the first defendant then decided to recharge the plaintiff with the same offence, resulting in the plaintiff being brought before the District Court and convicted the very same day without evidence having been led. He was then fined the sum of K200.00 to be paid by 4.06 pm, in default 6 months imprisonment with hard labour. Unable to find cash readily the same afternoon, the plaintiff defaulted under the order and thus had to serve the sentence.

The Law: (1) False Imprisonment.

This tort is defined as any total restraint on the liberty of the person for however short a time, by the use or threat of force or confinement. Once the imprisonment is proved it is up to the imprisoner or the police to prove that it was lawful. This is the same type of confinement or detention envisaged in the criminal law misdemeanour of Deprivation of liberty (under s. 355 Criminal Code Act).

Action for false imprisonment protects the interest of freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is: The Law of Torts by John G Fleming (7th ed., LBC, 1987). The learned author said that false is to be understood in the sense of wrongful, and adding further that false imprisonment arising from an improper arrest of a suspect bears a resemblance to the tort of malicious prosecution, which consists of maliciously and without reasonable cause instituting a groundless criminal prosecution.

(2)	Malicious prosecution

Malicious prosecution is defined as an abuse of the Court process by wrongfully setting the law in motion on a criminal charge. This must have been done without reasonable cause and instituted or continued maliciously. The adjective malicious is derived from the noun malice which a desire to cause harm or difficulty to others; ill-will, harmful intent: Oxford Dictionary. It may be that the original arrest was unlawful or that the person was detained for an excessive period.

The Law: Damages

The general purpose of the law of torts is to provide compensation or damages to the person or persons whose rights have been infringed. It provides money compensation for people who suffer harm by another person’s wrongful acts or omissions. This is done to try to put the injured person back to the position he was in before the wrongful act occurred, as far as money can do this.

An action for damages for false imprisonment can be brought if there is no justification for the arrest.

There are several types of damages that can be awarded. General Damages are ordered to be paid for inconvenience and discomfort, for the loss of enjoyment of life which is the result of the wrong (as in injury for assault or motor vehicle collision), and for the pain and suffering caused by the wrongdoer. In personal injury cases, damages would include future loss of earning capacity, and future medical expenses as a result of the injury. Needless to say, these wrongs are not easily calculated in money terms but must be estimated.

Then there are the Special Damages which are the specifically mentioned costs such as medical expenses, loss of income incurred while the injured person was away from work, and any hospital and nursing charges.

The amount of damages that can be awarded can be classified under several headings. There are the Nominal damages, which constitute very small amounts, that can be awarded where the legal right has been infringed but no actual loss or harm suffered. They are a mere indication that the plaintiff was in the right. On the other hand, Compensatory damages can be substantial because compensation aims at putting the person back to where he was before the injury was done or harm was caused as far as possible. Then there are the Exemplary damages which are or can be large amounts awarded to show that an example is being made of the offender or tortfeasor. They are punitive.

The Law: Costs

What it will cost to take a case to Court depends upon such factors as its complexity, the time taken by the trial, and the number and eminence of the lawyers involved. An unsuccessful party (whether plaintiff or defendant) must usually pay the costs of the successful party; in general, costs follow the event, or, putting it colloquially, winner takes all.

As learned author Bernard C Cairns states in his useful text Australian Civil Procedure, 2nd ed. LBC (1985), at 479: "The Court has a general discretion over the cost of all proceedings. It may order the costs of proceedings to be paid by one of the parties to the other or it may make no order for costs. In making or refusing to make an order relating to costs the court has the widest of discretions".

There are undoubtedly many cases in which natural justice clearly requires that the successful party should receive something like an indemnity against the costs incurred in vindicating his rights. This would be so in, for example, cases where the action ought never to have been brought and, equally, where it is one to which there was never any substantial defence.

The lexicon Osborn’s Concise Law Dictionary states the general rule as being that "a successful litigant in civil proceedings is entitled to his costs; costs follow the event". It is emphasised there, however, that costs are always in the discretion of the court, and that there may be statutory or other restrictions on the award of costs.

Needless to say, specific provisions on this subject are made in the NCR under O.22, specifically rr.4, 8 and 11 which basically restate the above principles.

The Asessment

The issue of liability having been determined by the operation of the procedural laws, the only issue before me for determination is as to quantum.

The plaintiff claims the total amount of K57,100.00 for damages. This sum is asserted to be made up of the claims under the following heads of damages (plus costs):

•	Wrongful Arrest					K10,000.00
•	False imprisonment				K10,000.00
•	Malicious prosecution				K18,200.00
•	Breach of Constitutional Rights			K 6,000.00
•	Detention, Conversion of 30 cartons of beer
(including interest)				K 2,900.00
•	Costs						K 7,000.00

It is noted that these sums had been submitted to the State at an earlier date for the purpose of settlement at the invitation of the State after the entry of default judgment. But this came to nothing as the State continued its inaction and procrastination in the matter, though expectations had been raised by the State’s overtures that the matter would be settled out of Court.

What brief submissions learned counsel for the State was able to make under the circumstances (she asserting she was aware of the matter on the very morning of the hearing) was, unfortunately, confined to the issue of liability, which is not an issue before me now. And except for noting that there is no claim for exemplary damages, Ms Kiele does not challenge the other heads of damages that the plaintiff claims.

The Court is greatly assisted by the discussion of the pertinent case law under each of the heads of claim by learned counsel for the plaintiff.

In the light of the brief discussion of the law (supra), it is the opinion of the Court that wrongful arrest and false imprisonment are not same as would appear at first impression.. Under the circumstances of the case, the latter tort refers only to the 6 months imprisonment served upon the blatant manipulation the legal/judicial system by the first defendant. Amongst other illegalities and abuses, there was here a complete disregard for the principle of autrefois acquit.

The Court is of the strong view that the actions of the first defendant, compounded by the connivance of other State authorities in Tari, more particularly the District Court, smacks of deliberate abuse of State powers. Thus, it ought to be visited with the strongest censure by the award of exemplary damages. However, there being no specific claim for this, as learned counsel for the State points out, the Court is reluctant to make an award in this respect.

In the end result, the Court accepts the claim(s) submitted by the plaintiff, and makes orders for the State to make good the damages suffered in the following way:

•	Wrongful Arrest					K10,000.00
•	False imprisonment				K10,000.00
•	Malicious prosecution				K18,200.00
•	Breach of Constitutional Rights			K 6,000.00
•	Detention, Conversion of 30 cartons of beer
(including interest)				K 2,900.00
•	Costs						K 7,000.00
Total		K57,100.00

_____________________________________________________________________
Lawyer for the Plaintiff:	David Keta Lawyers
Lawyer for the Defendants:	Solicitor-General