N7138
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 1 OF 2015

BETWEEN

MATHEW NOGONDA
Plaintiff

AND
MARTIN LAKARI 
First Defendant

AND
MICHAEL MOSES AI
Second Defendant

AND
COMMISSIONER OF POLICE 
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2016: 20th May, 29 July,
2018: 28th February 

NEGLIGENCE – whether senior member of Police Force who instructed that a member be charged with a criminal offence, contrary to advice, liable in negligence in view of acquittal of member charged.

DEFAMATION – whether senior member of Police Force who instructed that a member be charged with a criminal offence, contrary to advice, liable in defamation.

HUMAN RIGHTS – whether senior member of Police Force who instructed that a member be charged with a criminal offence, contrary to advice, liable for breaching the member’s human rights – Constitution, Section 32 (right to freedom); Section 41 (proscribed acts).

The plaintiff, a member of the Police Force, was charged with the indictable offence of official corruption for allegedly corruptly receiving K1,000.00 cash from a detainee in his custody. The District Court refused to commit the plaintiff for trial on the ground that no prima facie existed. The plaintiff then commenced civil proceedings against the two members of the Police Force he claimed were instrumental in having him charged (first and second defendants), the Commissioner of Police (third defendant) and the State (fourth defendant). He pleaded three causes of action: negligence, defamation and breach of human rights. He argued that the first and second defendants negligently failed to take heed of an internal investigation report that recommended he not be charged and had defamed him and breached his right to freedom under Section 32 of the Constitution and his right to be protected against harsh and oppressive acts under Section 41 of the Constitution. He argued that the State, as the employer of the first and second defendants, was vicariously liable for their wrongful conduct. 

Held:

(1)	The elements of a cause of action in negligence are that: the defendant owed a duty of care to the plaintiff; the defendant breached that duty (acted negligently); the breach of duty caused damage to the plaintiff; and the type of damage was not too remote. Here, the question of whether a member of the Police Force owes a duty of care in deciding who to charge and what to charge them with, is a moot point. However on the evidence it was not proven that the first or second defendants had acted negligently, so there was no liability for negligence.

(2)	The elements of a cause of action in defamation are that: the defendant made a defamatory imputation of the plaintiff; the defendant published it; and the publication was unlawful in that it was not protected, justified or excused by law. None of the elements was proven as laying of a criminal charge does not without more amount to a defamatory imputation or publication of any imputation, but if both of those elements are deemed proven, it was not proven that the publication was unlawful.

(3)	Under Section 32 of the Constitution every person has the right to freedom based on law and under Section 41 of the Constitution every person is protected against harsh, oppressive and other proscribed acts. Here, nothing done by the defendants offended against those human rights.

(4)	The plaintiff failed to establish any cause of action and the proceedings were entirely dismissed. 

Cases cited:

The following cases are cited in the judgment:

Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471
John Tindaka v David Kambu (2012) N4853
Morobe Provincial Government v John Kameku (2012) SC1164
Stephen Ian Asivo v Cocoa Board of PNG (2016) N6230
Steven Kaipa v RD Tuna Canners Ltd (2017) N6650
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16

STATEMENT OF CLAIM

This was a trial on liability for negligence, defamation and breach of human rights.

Counsel:

I David, for the Plaintiff
L Florian, for the Fourth Defendant

28th February, 2018

1.	CANNINGS J: A trial on liability has been conducted to determine whether the plaintiff, Mathew Nogonda, has established a cause of action in negligence, defamation and/or breach of human rights arising from the following facts.

2.	The plaintiff was in 2009 a member of the Police Force, holding the rank of Sergeant, based at Wabag Police Station, Enga Province. The first defendant, Martin Lakari, the then Enga Provincial Police Commander, alleged that the plaintiff corruptly received K1,000.00 from a detainee and released the detainee from custody. An internal investigation was conducted and the recommendation was made that the plaintiff not be charged with a criminal offence due to there being insufficient evidence against him. However, the second defendant, Michael Maso Ai, then also a Sergeant at Wabag Police Station, arrested and charged the plaintiff with the indictable offence of official corruption under Section 87(1) of the Criminal Code. The plaintiff was suspended without pay in May 2010. An information was laid in the Wabag District Court but the District Court in October 2011 refused to commit the plaintiff for trial due to there being no prima facie case. The plaintiff was then reinstated and paid back-dated salary for the period he had been off the payroll. 

PLAINTIFF’S CASE

3.	Mr David, for the plaintiff, submitted that the first and second defendants committed three civil wrongs:

•	the tort of negligence, due to their negligent failure to properly assess the evidence against the plaintiff before arresting and charging him and bringing the committal proceedings against him;

•	the statutory tort of defamation, due to the damage to the plaintiff’s reputation and his good name in his church and the community caused by his arrest and charge and the committal proceedings; and 

•	they breached the plaintiff’s human rights. 

4.	It is argued that the fourth defendant, the State, should be held vicariously liable for those civil wrongs committed against the plaintiff and that he is entitled to damages.  

EVIDENCE

5.	The plaintiff has given evidence of the above events. No evidence has been given by the defendants and no issue has been taken with the factual allegations.  

DEFENCE 

6.	The State is the only defendant to file a defence and appear at the trial, though its counsel, Mr Florian. He submitted that the State is not vicariously liable as the plaintiff has failed to establish any of the three causes of action that he pleaded.

7.	Mr Florian submitted that the fact that the plaintiff was not committed for trial and was discharged does not force the conclusion that the decision to charge him had been made negligently or that he had been defamed or that his human rights had been breached. It was a routine criminal investigation, which did not result in a conviction. That does not mean that civil wrongs were committed. Mr Florian emphasised that although the internal investigation recommended that no criminal charges be laid, the conclusion was reached that the plaintiff had in fact received K1,000.00 from a detainee on the pretext that it was some form of compensation money. It was recommended that the plaintiff be charged with a disciplinary offence of disgraceful and improper conduct under Section 43 of the Police Act. So the decision to charge the plaintiff was based on a genuine consideration of the evidence and was made in good faith based on reasonable grounds that he had committed an offence. 

8.	I now consider each of the three causes of action, in turn.

NEGLIGENCE 

9.	Negligence is a tort, a type of civil wrong, emerging from the common law of England and adopted as part of the underlying law of Papua New Guinea. To establish a cause of action in negligence the plaintiff has to prove all elements of the tort: 

(a) the defendant owed a duty of care to the plaintiff; 
(b) the defendant breached that duty (acted negligently); 
(c) the breach of duty caused damage to the plaintiff; and 
(d) the type of damage was not too remote (Steven Kaipa v RD Tuna Canners Ltd (2017) N6650). 

10.	The question of whether a member of the Police Force owes a duty of care in deciding who to charge and what to charge them with, is a moot point. However, even if it is presumed that the first and second defendants, who it seems were jointly responsible for the decision to charge the plaintiff, owed him a duty of care, thus satisfying the first element, I am not satisfied as to the second. The actual breach of duty has not been proven. I uphold Mr Florian’s submission that the fact that an accused person has not been committed for trial does not necessarily mean that the person who decided to lay the charge was negligent. I agree with Mr Florian’s assessment of the decision as one made bona fides on the basis of evidence that the plaintiff had received cash from a detainee in questionable circumstances.

11.	As the second element of the tort of negligence has not been proven, no cause of action in negligence has been established against the first or second defendants. Therefore the State, and the Commissioner of Police too, bear no vicarious liability. 

DEFAMATION 

12.	Defamation is historically, like negligence, a tort, emerging from the common law of England. However in PNG, the law of defamation has been codified in the Defamation Act, so it is convenient to label it as a statutory tort. The elements of a cause of action in defamation are prescribed by the Defamation Act, Sections 5 and 24.  It must be proven that: 

(a)	the defendant made a defamatory imputation of the plaintiff; 
(b)	the defendant published it; and 
(c)	the publication was unlawful in that it was not protected, justified or excused by law (Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16). 

13.	I find that none of the elements have been proven. Laying of a criminal charge does not without more amount to a defamatory imputation against the accused person. Even if it did, no evidence has been adduced of the publication of the imputation. Furthermore, even if both of those elements are deemed proven, it has not been proven that the publication was unlawful. No cause of action in defamation has been established against the first or second defendants. Therefore the State, and the Commissioner of Police too, bear no vicarious liability. 

BREACH OF HUMAN RIGHTS 

14.	Breach of human rights is a separate and distinct cause of action. It was pleaded in the statement of claim that the first and second defendants breached the plaintiff’s human rights in two respects: his right to freedom under Section 32 of the Constitution and his right to be protected against harsh and oppressive acts under Section 41 of the Constitution

Section 32 (right to freedom) states:

Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a)	does not injure or interfere with the rights and freedoms of others; and
(b)	is not prohibited by law,

and no person—

(c)	is obliged to do anything that is not required by law; and
(d)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

15.	Mr David did not pursue the argument strongly at the trial and I fail to see how the plaintiff’s right to freedom was breached by any of the actions of the first or second defendants.

16.	Section 41 of the Constitution (proscribed acts), states: 

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)	The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

17.	Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1.	harsh; or
2.	oppressive; or
3.	not warranted by the requirements of the particular circumstances;
4.	disproportionate to the requirements of the particular circumstances;
5.	not warranted by the requirements of the particular case; or
6.	disproportionate to the requirements of the particular case; or
7.	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

18.	I do not consider that the actions of the first or second defendants in deciding to charge the plaintiff with a criminal offence can reasonably be regarded as harsh or oppressive or disproportionate or in any other way unlawful for the purposes of Section 41. I have already determined that the defendants made their decision in good faith, based on evidence that suggested that the plaintiff’s conduct was improper. The decision was not made for any improper motive or in bad faith or for any personal or vindictive reason. For any decision to charge a person with a criminal offence to be regarded as a proscribed and unlawful act under Section 41, it must in my view have some element of noxiousness in it (Stephen Ian Asivo v Cocoa Board of PNG (2016) N6230), something like what must be proven to establish a cause of action for the tort of malicious prosecution (Daniel Yano Kapi v Kambang Holdings Ltd (2011) N4471, John Tindaka v David Kambu (2012) N4853). That element is not present in this case.

No cause of action in breach of human rights has been established against the first or second defendants. Therefore the State, and the Commissioner of Police too, bear no vicarious liability. 

CONCLUSION

19.	The plaintiff failed to establish any cause of action and the proceedings must be dismissed. This appears to have been a genuine claim and in view of the presumed relative economic positions of the parties I will order that they pay their own costs. 

ORDER

20.	The formal Orders of the Court are:

(1)	The proceedings are entirely dismissed.

(2)	The parties bear their own costs. 

(3)	The file is closed. 

Judgment accordingly.
____________________________________________________________
Public Solicitor: Lawyers for the Plaintiff			
Solicitor-General: Lawyer for the Fourth Defendant