Tkatchenko v National Capital District Commission [2002] PGNC 128; N2196 (25 April 2002)

N2196

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 240 of 2000

JUSTIN WAYNE TKATCHENKO

-v-

THE NATIONAL CAPITAL DISTRICT COMMISSION

&

THE STATE

WAIGANI: SALIKA, J
21 November, 2001
25 April, 2002

CIVIL SUIT – allegation of false information – allegation of malicious prosecution – allegation of false imprisonment.

Engagement of Police Fraud Squad to investigation – allegation of misappropriation

Complaint justified – arrest and detention justified – claim misconceived and is frivolous and vexatious.

Counsel:
Mr G Sheppard for the plaintiff.
No appearance for the defendants.

The first defendant is the local city authority. It is a statutory body set up under the National Capital District Commission Act and can sue and be sued in its corporate name and style. The plaintiff alleged that on or about 6 December 1999 the first defendant by its agent and employees, maliciously and without reasonable cause made a false complaint to Frank Misso, a member of the Royal Papua new Guinea Constabulary and an agent and employee of the Second Defendant that the plaintiff had misappropriated a sum of money from the First Defendant, thereby causing the criminal legal process to be set up in motion against the plaintiff.

The plaintiff also alleged that, the second defendant by its agent and employee Frank Misso maliciously and without reasonable cause, laid an information before a Magistrate against the plaintiff alleging one count of misappropriation contrary to S.383A(1)(a) of the Criminal Code Act. On or about the 28 February 2000 the plaintiff duly appeared before a Grade 5 Magistrate sitting as a committal court which dismissed the information and acquitted the plaintiff from the charge.

The plaintiff further alleged that he was arrested on 13 January 2000 in relation to the same misappropriation charge and imprisoned for a period of three hours.

By reason of the matters aforesaid the plaintiff alleged that he was wrongfully imprisoned and deprived of his liberty and that he was greatly injured in his credit, character and reputation and suffered considerable trouble, inconvenience, anxiety expense and has been greatly injured in his business and has suffered loss and damage.

The plaintiff claims damages, costs on an indemnity basis and interest.

The defendants on the day of the trial did not make any appearances either by themselves, or their agents or their lawyers. Because the matter had been set for trial by all parties, I ordered the trial proceed in the absence of the defendants.

The plaintiff gave evidence to substantiate his allegations in his writ of summons. He gave evidence of being the Acting City Administrator and being suspended by the National Government and that Jamie Maxton Graham took over as the City administrator. He said Jamie Maxton Graham referred him to the criminal investigation division for allegations of misappropriation of National Capital District Commission monies. He said before he was terminated Jamie Maxton Graham engaged the services of the Criminal Investigation Division officers and set up an office inside the City Hall for the officers to use. He said those police officers were engaged to investigate allegations of corruption and misappropriation and that they were paid by the National Capital District Commission, while at the same time being paid by the State their normal salaries. He said he knew that information because he received payment vouchers as well as ledgers from the accounts department on payments issued and paid out to the police personnel for their investigations. These payment vouchers were not produced in Court.

The plaintiff further gave evidence that on Saturday 4 December 1999 while he and his family were having breakfast 10 police officers (6 armed) came up to his house and called him to the gate. He was then told to go with them to Konedobu Police Headquarters to be questioned about a certain complaint. He called his lawyer, Mr Sheppard to meet him at the police station and told his wife to be ready if anything happened. He proceeded to Konedobu Police Headquarters in his own car. At Konedobu he met up with Mr Sheppard and was taken to the CID office which is on the second floor of the building. At the police station he saw Mr Misso and Mr Senat produce a floppy disk which they inserted into the computer. He saw the computer screen was facing him and Mr Sheppard. He said questions were showing on the computer screen which had already been loaded on the floppy disk. He said after answering all the questions they put to him it did not matter what he said because he was charged and arrested. He said he was not given a chance to defend himself in that the policemen had made up their minds to charge him. He said he co-operated fully with the police officers and in the end he signed the Record of Interview. He said after that he drove to Boroko Police Station and he was taken straight to the cells. He was in the cells for about 3 to 4 hours before he was bailed out.

Sometime later he appeared before a Magistrate and the Magistrate dismissed the case because he said there was no evidence against the plaintiff.

After his acquittal from the charge the plaintiff commenced these proceedings.

The police file which the police prepared was tendered into evidence in this hearing.

The defendants never turned up to defend the action although they had filed a defence.

The statement of claim alleged firstly that the first defendant by its agents and employees maliciously and without reasonable cause made a false complaint to Frank Misso, a member of the Royal Papua New Guinea Constabulary Fraud Squad, that the plaintiff had misappropriated K4,000.00 from the First Defendant thereby causing the Criminal Legal process to be set in motion against the plaintiff.

Secondly, the plaintiff alleged that Frank Misso maliciously and without reasonable cause laid an information before a Magistrate against the plaintiff alleging one count of misappropriation.

The first issue in my view is whether the complaint to Frank Misso was false. It is the Constitutional function of the Police Force to preserve peace and good order in the country and to maintain and enforce the law in an impartial and objective manner. (Section 197 of the Constitution) It is also a police function to lay, prosecute or withdraw charges in respect of offences. Therefore any person or body who wishes to charge another person for any offence must lay their complaint with the police and the police would lay the appropriate charge or charges against that person.

In this case although there is no evidence of this I assume someone from the First Defendant complained to the police about the plaintiff allegedly misappropriating some K4,000 from the First Defendant. The policeman involved in the case has carried out an investigation. Again I assume that because there are witnesses statements in the police file. Police obtained statements from various people. Francis Misso laid an information before a magistrate charging that on the 30 June 1999 Justin Tkatchenko dishonestly applied to his own use K4,000.00 the property of the National Capital District. This information was supported by Statements of witnesses namely:

Gima Kilaverave – A senior team leader – Customs Services

PNGBC – Waigani Branch
Mania Madaha
John Mona
Bernard Kipit
Kinglsey Manickham
Victor Lakae
Edward Ipai; and
Frank Alfons Makanuey

This was supported by the Record of Interview of the plaintiff.

The statement of Mr Gima Kilaverave says that a search warrant No 293/99 for account No 202-006-45350 was obtained and a search was conducted at the PNGBC Waigani branch, a NCDC cheque No 118331 dated 6 June 1999 in the amount of K4,000.00 made payable to Edward Ipai was released to the Police. The NCDC account was debited by K4,000.00 on the 1st July 1999.

The police then obtained a statement from Edward Ipai. This witness said on or about 30 June 1999 the plaintiff called him into his office and told him to raise an Order Requisition Form for Funeral expenses K4,000.00 under his (Edward Ipai) name. He said the plaintiff told him the money was to help John Mona with his father’s funeral expenses the late Louise Mona. He went ahead and filled out the Order Requisition Form and was told by the plaintiff to charge it to professional accounts Vote No: 7340-1110. An inter office memorandum from the Executive Officer Jacob Rongap to the Deputy City Administrator – Health and Social services at that time the plaintiff was attached to the Order Requisition Form. That memorandum dated the 30 June 1999 read:

"SUBJECT: FINANCIAL ASSISTANCE

As per your discussion with the Governor, please arrange for K4,000.00 for presentation".

At the bottom of the page the plaintiff wrote the following:

"DCA F/A

Could you please assist this request asap for funeral assistance and confirmation"

I take it that DCA F/A means Deputy City Administrator Finance and Administration. At the bottom of the handwritten note by the plaintiff is another handwritten note which reads:-

"Accounts Payment:

Pls organise manual cheque made payable to Justin Tkatchenko, "urgently" ".

I do not know which officer wrote that but it may have been the Deputy City Administrator – Finance and Administration.

As alluded to earlier a manual cheque for K4,000.00 was drawn payable to Edward Ipai. Edward Ipai said in his statement to the police that he picked up the Cheque from EDP section and signed on the cheque requisition form which was witness by Mr Victor Lakae who was the accounts payable Accountant. These all happened on the 30th June 1999. He returned with the cheque to the plaintiff who gave him a letter addressed to the Manager PNGBC Waigani Branch authorising Edward Ipai to cash the cheque.

Edward Ipai went with the letter and the cheque to PNGBC Waigani Branch with their office driver on 1 July 1999 and cashed the said cheque. He said when he returned from the Bank he gave the K4,000.00 to the plaintiff.

Edward Ipai in his statement said he never applied for the money nor did he benefit from the K4,000.00 drawn under his name. He said what the plaintiff did with the money he did not know. He also said he did what he was told to do by the plaintiff.

Police also obtained a statement from a John Mona. This witness worked with the National Capital District Commission at the Parks and Gardens Section at the University of PNG. When the plaintiff was promoted to Deputy City Administrator Community Health and Social Services, the position of the Executive Officer to the Plaintiff became vacant. This witness applied for that position and won it. After he won the position he moved to an office in the City Hall next tot he plaintiff’s office.

John Mona said in his statement that on 25 June 1999 his father Louise Mona died. He rang the plaintiff’s office that he would not be at work because of his father’s death. The plaintiff was not at the office but he left a message to that effect. He said at about 3.00 pm that day the plaintiff called in to the Port Moresby General Hospital and saw him. He said the plaintiff told him that the National Capital District Commission would assist him. He said the Governor Philip Taku later went to their house where his family were gathering and talked his brother Daniel and his uncles. After that he got up to leave and gave a donation of K2000.00 cash to Daniel.

There were other statements taken by Frank Misso in relation to the matter but for the purposes of this case this will suffice.

From the two statements there was some evidence of possible misappropriation of money belonging to the National Capital District Commission. The plaintiff on those statements was implicated. In his Record of Interview the plaintiff argued that he was aware of the payment vouchers being raised in relation to the K4,000.00 for funeral expenses. However, the plaintiff denied ever receiving the K4,000.00 cash from Edward Ipai. Edward Ipai said he gave the K4,000 cash to the plaintiff. According to Edward Ipai the payment voucher and the memo from Jacob Rongap’s office to the plaintiff, all these chain of events started from the Governor’s Office. The memo said:-

"As per your discussions with Governor please arrange K4,000.00 for presentation".

This memo must surely implicate the plaintiff, that he was involved in raising the K4,000.00 cheque personally for "funeral expenses" to help John Mona to help meet expenses associated with his father’s death.

Moreover, John Mona in his statement said the Governor Philip Taku donated K2,000.00 to him and his brothers to help with the funeral expenses of his late father. Was the donation of the K2,000 part of that K4,000.00 that was paid in cash Edward Ipai at the PNGBC at its Waigani Branch? Was the K2,000 paid by Governor Taku from his own pocket? These are questions the plaintiff was in a position to answer in my view and answer truthfully. In other words the inference was that the plaintiff then passed on the K4,000.00 to the Governor to donate to John Mona and his family. I do not know, but honesty will prevail in the end and that is what this Country needs. Edward Ipai was used as a scapegoat. The alleged basis the Grade 5 Magistrate dismissed the case saying there was no evidence is a wonder to this Court.

It is my respectful view in the circumstances that with that type of information before him, Frank Misso was entitled to effect arrest and lay the appropriate charge. In my view the allegations that the First Defendant, by its agents and employees maliciously and without reasonable cause made a false complaint to Frank Misso a police officer, that the plaintiff had misappropriated a sum of money thereby causing a legal process to be set in motion against the plaintiff is misconceived and an abuse of the court process. This is because the employees of the National Capital District Commission were entitled to question the legality of the spending of the K4,000.00. The K4,000.00 was taken out of Vote 7340-1110 and the vote description is "Professional Fees". "Funeral Expenses and Professional Fees" to my mind bear no similarity. NCDC had every right in my view to question that expenditure and they did. Their efforts were defeated by the Grade 5 Magistrate sitting as a Committal Court and maybe by the Public Prosecutor for failing to proceed ex-officio in the National Court.

It is also my view that the allegation that the second defendant by its agents and employee, Frank Misso maliciously and without reasonable excuse, laid an information before a Magistrate against the plaintiff alleging one count of misappropriating is also misconceived. Frank Misso as a police officer with the National Fraud Squad was investigating a possible Fraud against the NCDC. He did what was required of him and arrested the plaintiff on what ever information he had and had him charged after conducting a record of interview. That in my view is a normal police duty and police process. After the plaintiff was arrested and charged he was placed in the cell. Again that was a routine police duty in my view. The plaintiff was with his lawyer all that time. It was incumbent on his lawyer to arrange bail from then on.

The plaintiff also alleged that he was wrongfully imprisoned and deprived of his liberty and that he was greatly injured in his credit, character and reputation and suffered considerable trouble, inconvenience, anxiety and expense and that he was greatly injured in his business and he suffered loss and damage.

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.

The fact that Frank Misso had sufficient information to arrest and charge the plaintiff in my view negates the allegation that the plaintiff was wrongfully imprisoned and deprived of his liberty. In my view the plaintiff was properly arrested, charged and properly placed in the cells. It became a matter of bail after he was placed in the cells. His lawyer was present all the time. It became the lawyers duty to arrange bail. The lawyer was then to get a Court to convene and make the necessary application for bail as soon as practicable or as soon as possible.

In the circumstances, I dismiss the claim as being misconceived and go further to say that the claim is frivolous and vexatious.
____________________________________________________________________
Lawyer for the Plaintiff: Maladina Lawyers
Lawyer for the Defendants: Solicitor General