Aposol v Theo [2025] PGNC 457; N11617 (1 December 2025)

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TORT – Allegations of unlawful arrest, unlawful detention and malicious prosecution – valid basis for arrest, detention and prosecution – malice not proved – prosecution did not proceed as State witnesses requested compensation

Counsel
D. Piam for appellant
No appearance for the first defendant
M. Kambao for second, third, fourth and fifth defendants

1 ELLIS J: These proceedings were commenced by a writ of summons filed on 1 May 2017. However, at the hearing it was indicated that the plaintiff relied on the Further Amended Writ of Summons that was filed on 3 July 2020. The plaintiff claimed damages, alleging (1) unlawful arrest and detention, (2) malicious prosecution, and (3) breaches of s 37(4)(b), s 42(2) and s 47 of the Constitution.

2 As the first defendant did not play any role in these proceedings, it is convenient to use the word defendants to refer to the remaining defendants.

3 Documents that were either tendered or marked for identification are listed below:

Document	Description (date sworn)	Party
Exhibit A	Affidavit of plaintiff (03 May 17)	Plaintiff
Exhibit B	Affidavit of Epenes Nili (08 Mar 18)	Defendants
Exhibit C	Affidavit of Siminao Suprum (08 Mar 18)	Defendants
Exhibit D	Affidavit of Ellie Lati (08 Mar 18)	Defendants
Exhibit E	Affidavit of Saimon Pindale (08 Mar 18)	Defendants
Exhibit F	Affidavit of Richard Otto (08 Mar 18)	Defendants
Exhibit G	Affidavit of Epenes Nili (20 Jul 20)	Defendants
Exhibit H	Affidavit of Richard Otto (12 Aug 20)	Defendants
Exhibit J	Affidavit of plaintiff in reply (31 May 18)	Plaintiff
MFI 1	Submissions filed on 08 Jul 24	Plaintiff
MFI 2	Submissions filed on 16 Jan 25	Defendant

4 There were no objections to any of the affidavits and there were no oral submissions beyond the written submissions other than a contention by the defendants’ lawyer that the plaintiff had not made out a case for damages.

5 In his first affidavit (Exhibit A), the plaintiff alleged that, on 3 April 2014, the first defendant tried to attack him and that, on 9 April 2014, the third defendant (Ellis Lati) alleged that he had killed two men on 23 February 2014. He alleged that he was kept in custody, either in the Wabag police lock-up or in the Baisu correctional facility (Baisu), for 144 days in 2014: from 3 April to 3 September. He claimed that, on the fifth occasion he was brought before the District Court, he was released, claiming “there was no evidence to substantiate the charge”. As it is common in criminal proceedings in Enga Province, the plaintiff alleged he had an alibi defence. He asserted that the charge of wilful murder was fabricated by the first, second and third defendants.

6 Much of the plaintiff’s affidavit in reply (Exhibit J) was not evidence in reply, but either repeated evidence-in-chief or added additional evidence-in-chief. No explanation was provided for the additional claims made in what purported to be an affidavit in reply. While there could have been an objection to that evidence, no such objection was taken. That affidavit included allegations that (1) the third defendant (Ellis Lati), on 6 April 2014, sought K400 for the plaintiff’s release from custody, and (2) the prosecutor (Simino Suprum), on 14 July 2014, also sought K400 for withdrawing the case against him (allegations never put to them).

7 In his first affidavit (Exhibit B), Epenes Nili (the second defendant) said he was the Rural Commander, based at the police station in Wabag, and that a CID member, namely Elly Lati (the third defendant), was the investigator in relation to the case against the plaintiff. He said that the plaintiff’s case went through the court processes but was dismissed because the State witnesses and the relatives of the deceased wanted payment of compensation.

8 Simino Suprum provided an affidavit (Exhibit C) which said he was a police prosecutor and provided the following chronology:

14 Apr 14	Plaintiff appeared in District Court, charged with wilful murder
15 Apr 14	That Court arraigned the plaintiff and adjourned the case
18 Jun 14	The plaintiff’s case was adjourned to 29 Jul 14
29 Jul 14	As the Magistrate was sick, the case was stood over to the next day
30 Jul 14	The Magistrate was still not present
05 Aug 14	No Magistrate was available: the case was stood over to the next day
06 Aug 14	No Magistrate was available: the case was stood over to the next day
07 Aug 14	No Magistrate was available: the case was stood over to the next day
11 Aug 14	Police brief tendered: stood over to 28 Aug 14 for a ruling
28 Aug 14	The police prosecutor disqualified himself from the case

9 This witness denied that he was given money and made a general denial of the plaintiff’s allegations.

10 Elli Lati (the third defendant) also provided an affidavit (Exhibit D) in which he said he was the Deputy CID officer at Wabag police station. His evidence was that the plaintiff and the first defendant were at that police station on 3 April 2014 when Richard Otto and Saimon Pindale identified him as a suspect for the murder of Pius Lekaly. He then ascertained that the plaintiff and Willy Joe were registered in the crime report for that murder. As a result, the plaintiff was arrested, charged and placed in the cells at Wabag police station. He went on to say that there was a delay due to no Magistrate being available, after which a warrant of remand was issued, and the plaintiff was taken to Baisu. It was said that, while the plaintiff was there, one of his relatives brought K200 and request the plaintiff be granted bail but was advised to see a private lawyer. The same week, Willy Joe was arrested for the same murder, and he was also remanded to Baisu. Witness statements were obtained from Richard Otto and Saimon Pindale. While this witness was waiting for a post-mortem report, the State witnesses signed a statutory declaration and the case against Willy Joe was struck out as the relatives of the deceased wanted compensation in the form of pigs and money. Likewise, those witnesses indicated they wanted the case against the plaintiff to be withdrawn as they wanted compensation from the plaintiff. It was said by this witness that, after a statutory declaration was signed, the Magistrate “got upset and dismissed the case”. Although this witness said that copies of the witness statements of Richard Otto and Saimon Pindale were attached, they were not.

11 Simon Pindale’s affidavit (Exhibit E) said he was a “key witness” for the State in the case against the plaintiff which charged him with wilful murder in relation to the death of Pius Lokalyo. He said that close relatives of the deceased agreed they wanted compensation to be paid by the plaintiff and Willy Joe and that “We agreed to see the arresting officer”. A copy of the 6 August 2014 statutory declaration of this witness, and Richard Otto, was annexed. It said:

We are the State witnesss to the case of wilful murder charges against two defendants namely Kevin Warao Aposol and Will Joe. Both charged for the unlawful killing of late deceased Pius Lokalyo at Teremanda Village. We are the complainant in this case. We the close relatives of the deceased [have] agreed to withdraw the charges at Wabag District Court as we want compensation from Kevin Warao Aposol and Willy Joe. We the Kii clam agreed to withdraw the charges on the 06^th day of August 2014. We want the matter put to rest and the compensation to be paid to Kii clam by Kevin Aposol and Willy Joe’s clans.

12 The affidavit of Richard Otto (Exhibit F), who signed the same statutory declaration, was to the same effect as that in Simon Pindale.

13 A second affidavit of Epenes Nili (Exhibit G) explained why the plaintiff and the first defendant were arrested, charged and detained. His evidence was that established police procedures were followed. He also noted that (1) police cells provide a safe place when there is the prospect of payback or a revenge killing, and (2) any person who considers they have been unlawfully detained can either seek bail in the National Court or make an application to enforce their human rights.

14 The second affidavit of Richard Otto (Exhibit H) contained the following evidence:

15 The 37 pages of written submissions, upon which the plaintiff’s lawyer relied, failed to provide any justification for the inclusion of the first defendant as a defendant. Those submissions unnecessarily repeated the particulars set out in the Further Amended Writ of Summons in relation to the allegations of unlawful arrest and detention and malicious prosecution.

16 After listing the affidavit evidence, the suggested issues were listed. Next came a summary of the evidence for the plaintiff and the defendants. It was contended that the plaintiff’s evidence was “direct, credible and cogent” and that the evidence of the defendants was “vague, inconsistent and not credible”.

17 Submissions in relation to the evidence were followed by contentions on the law relating to unlawful arrest and detention and malicious prosecution, going to the issue of liability. Those submissions were followed by submissions as to the assessment of damages.

18 After referring briefly to the evidence of the parties, six issues were listed. For each of those issues, submissions were made as to the applicable law, the evidence and the application of the law to that issue. Other matters for consideration were said to be (1) a lack of evidence for the first defendant, (2) the position in relation to bail, (3) the time taken by the police to arrest the plaintiff.

19 In conclusion, it was submitted that (1) the plaintiff was lawfully arrested, charged and detained, (2) he failed to prove his prosecution was malicious, (3) as the actions of the second and third defendants was not wrongful, the State (the fifth defendant) could not be vicariously liable. A submission was made that the plaintiff’s claim should be dismissed with costs.

20 To prove a claim of unlawful arrest and detention, cases such as Kavo v Maipakai [2023] PGNC 344; N10502, and the cases cited in that decision, establish that it must be proved that the arrest was:

(1) in breach of the law, notably the Arrest Act, and
(2) without a reasonable belief the plaintiff committed an offence.

21 For an allegation of malicious prosecution to succeed, from cases such as Tole v Kongi (2019) N7727 and Kipahi v Nambos [2022] PGNC 222; N8437, it is clear the plaintiff must establish the following matters:

(1) the commencement of criminal proceedings against the plaintiff,
(2) termination of those proceedings in favour of the plaintiff,
(3) lack of probable cause to the support the charge(s), and
(4) the proceedings were motivated by malice.

22 The Further Amended Writ of Summons referred to provisions in the Constitution. First, s 37(4)(b) which provides:

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; ...

23 Secondly, as there was both a general reference to s 42 and a specific reference to s 42(2) of the Constitution, the full wording of s 42, which is headed “Liberty of the person”, is set out below:

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(ga) for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matters, in his absolute discretion, approves; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of –

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i); 68 and (i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in Paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer.

(4) The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.

(5) Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained –

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

(a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and

(b) the person or his representative may apply to the Higher Courts of Justice in a summary manner for his release.

(8) Subject to any other law, nothing in this section applies in respect of any reasonable act of the parent or guardian of a child, or a person into whose care a child has been committed, in the course of the education, discipline or upbringing of the child.

(9) Subject to any Constitutional Law or Act of the Parliament, nothing in this section applies in respect of a person who is in custody under the law of another country –

(b) as permitted by or under an Act of the Parliament made for the purposes of Section 206 (visiting forces).

24 It must first be observed that the question of whether the plaintiff was guilty of the charge that was brought against him is not an issue in these proceedings. Instead, the issue is whether there was a reasonable basis for that charge being laid.

25 The outcome of these proceedings does not depend on any case law relating to the causes of action, but on the evidence that was placed before the Court and the assessment of that evidence. Relevant considerations are set out below.

26 First, it is fundamental, in both criminal and civil proceedings, that a party should put to the other party’s witness(es) any matters which are said to contradict the evidence of such witness(es). The case commonly cited in support of that principle is Browne v Dunn (1893) 6 R 67 (HL) which was adopted in Papua New Guinea more than 40 years ago, in Awoda v The State [1984] PNGLR 165. That principle can be said to be based on natural justice, which requires that a person should (1) know what is being alleged against them, and (2) have an opportunity to answer any such allegation.

27 In this case, the plaintiff’s case was not put to any of the defendant’s witnesses. That is particularly significant since the plaintiff, in these proceedings, is alleging that the conduct of police officers was not only unlawful but was also motivated by malice.

28 Secondly, allied to that is the well-accepted principle that the evidence required to prove an allegation depends on how serious is that allegation: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. Simply stated, the more serious an allegation, the more substantial and compelling the evidence must be for the Court to be persuaded that allegation has been proved. The uncorroborated evidence of the plaintiff is insufficient to establish the serious allegations he made.

29 Thirdly, the ability of the plaintiff to submit evidence in reply should have been used to respond to what is raised by the evidence for the defendants. What was said to be an affidavit in reply (Exhibit J) failed to respond to the affidavit evidence of (1) Epenes Nili, (2) Siminao Suprum, (3) Ellie Lati, or (4) Richard Otto either adequately or at all.

30 As a result, the defendants’ evidence was neither challenged nor contradicted. Affidavits from those four witnesses were filed on 8 March 2018 and the plaintiff swore an affidavit that was titled “Affidavit in Reply” on 31 May 2018. That affidavit could and should have replied to the four affidavits filed on 8 March 2018.

31 Fourthly, as the plaintiff bears the onus of proof, it is the plaintiff who must prove his case on the balance of probabilities, ie more likely than not. When there is evidence from the plaintiff in support of an allegation, and evidence from the defendants to the contrary, in the absence of any reason why the evidence of the plaintiff should be preferred to that of the defendants, the position must be that the plaintiff has failed to satisfy that onus of proof.

32 Fifthly, when the Court does not have the benefit of oral evidence, notably cross-examination, the resolution of an evidentiary dispute is commonly based on contemporaneous documents, which show what was said at the time of the relevant events, rather than what a witness says after civil litigation such as these proceedings has been commenced.

33 Of particular significance in this case are the following contemporaneous documents:

(1) the undated witness statements of Richard Otto and Simon Pindale, both signed before a Commissioner for Oaths, which stated that, at about 9.30am on Sunday 23 February 2014 they saw nine people come out of a bus at Pupang, Teremanda village, one of whom was the plaintiff, who was said to have used a gun to shoot Pius Lokalyo, who died later that day, and

(2) the 6 August 2014 statutory declarations signed by those two State witnesses (quoted above), which reveals they wanted compensation to be paid by the plaintiff instead of proceeding with the charge of wilful murder against him.

(1) The plaintiff’s case was that he was arrested and detained on 3 April 2014 and was not released until 3 September 2014, when the charge against him was dismissed due to there being insufficient evidence. It was contended that his arrest and detention were unlawful, that his prosecution was malicious, and that his rights provided by the Constitution were breached.

(2) The defendant’s case was that the proper processes were followed and that the case against the plaintiff did not proceed because the State’s two eyewitnesses preferred to receive compensation instead of giving evidence.

35 Having regard to the evidence, and the submissions made on behalf of the parties by their lawyers, the Court makes the following findings of fact:

(1) Based on the unchallenged evidence of Elly Lati and Epenes Nili, which was neither challenged nor contradicted in the plaintiff’s affidavit in reply: on 3 April 2024, while the plaintiff and the first defendant were at the police station in Wabag, the plaintiff was arrested and charged with the wilful murder of Pius Lokalyo at Teremanda Village, based on what was said by Richard Otto and Saimon Pindale.
(2) Subsequently, the accused unsuccessfully applied for bail.

(3) While the accused alleged in these proceedings that he had an alibi defence, there is no evidence that was ever communicated to the police.

(6) That police brief included statements from two eyewitnesses, namely Richard Otto and Simon Pindale.

(7) On 6 August 2024 those two eye-witnesses signed a statutory declaration in which indicated they no longer supported the charge against the plaintiff because they preferred that he pay compensation.

(8) As a result, the State no longer had any eyewitnesses to support the charge against the plaintiff.

(9) The delays that occurred in the District Court were not caused by the police.

(10) On 3 September 2014, the charge against the plaintiff was dismissed due to there being insufficient evidence to support that charge.

36 In view of those findings, the Court determines (1) that there was a basis for the arrest of the plaintiff, (2) that he was informed that he was charged with wilful murder, (3) that there was a basis for his detention, (4) that basis was confirmed when his bail application was refused, (5) that there was a basis for his prosecution, ie there was probable cause, and (6) that the prosecution of the plaintiff has not been shown to have been malicious.

37 In those circumstances, the plaintiff has failed to establish either (1) that his arrest and detention were unlawful, (2) that there was malicious prosecution, or (3) that his rights provided by the Constitution were breached.

38 As the plaintiff has failed to establish any liability on the part of any of the defendants, it is not necessary to consider the plaintiff’s claim for damages.

39 The usual position in relation to civil proceedings is that costs follow the event, meaning that costs depend on the outcome of the proceedings, with the unsuccessful party being ordered to pay the costs of the successful party.

40 Such costs can be payable on what is commonly referred to as the ordinary basis, meaning that a reasonable amount is payable, or on an indemnity basis, whereby all incurred costs are payable except those that are determined to be unreasonable.

41 Costs may be awarded on the more stringent, indemnity basis, in circumstances where either the unsuccessful party unreasonably failed to accept a settlement offer or where there is some aspect of the case that justifies a costs order being made on an indemnity basis.

42 Since the issue of costs does not arise until the Court has determined which party was successful, costs cannot normally be considered until after judgement has been delivered. Further, a final order as to costs should not be made without providing an opportunity for the parties to make submissions as to what the orders for costs should be.

43 The practical course is to make what may be termed a rebuttable order, being an order that will apply if neither party wishes to make submissions on the question of costs, but to provide a facility for submissions to be made if either party contends that a different order should be made in relation to costs.

44 The Court is satisfied that this was a case where a prosecution did not proceed because the eyewitnesses, who provided statements to the police and would have been crucial witnesses in any trial, preferred to receive compensation.

45 Cases such as Kovi v The State [2005] PGSC 34; SC789 (Kovi) make it clear that compensation is not an alternative to the application of the criminal law. Problems arise when criminal cases do not proceed due to witnesses refusing to give evidence due to compensation having either been promised or paid. For example, such conduct allows an accused person to buy their way out of being held responsible for committing a crime. Further, such an approach leaves the accused person in his or her local community which may result in the acquisition of additional power because that person is seen to be immune from the rule of law.

46 Of course, when a criminal case is finalised because of a promise to pay compensation, there is a risk that such compensation will not be paid. In other words, the promise is made for the purpose of avoiding prosecution.

47 While this case did not require any consideration of whether the plaintiff committed the crime of wilful murder, it would clearly be an unacceptable situation if a person who committed a crime could avoid being convicted and sentenced for a serious crime by paying compensation and then recovering compensation from the State, based on claims of unlawful arrest and detention and/or malicious prosecution. Indeed, if such conduct was successful, the accused’s recovery from the State in damages would operate to reimburse the accused for the payment of compensation and may even result in the accused profiting from the commission of a crime.

48 However, the short point that needs to be emphasised is that while compensation that has been paid may be relevant to the question of what sentence should be imposed, compensation should not be used as a way of by-passing the criminal justice system.

3 If either party wish to seek a different costs order:
(1) Order 2 does not apply.

(2) Any submissions in support of a different costs order are to be filed and served by 8 December 2025.

(4) Any such submissions should include an indication of whether it is accepted that the question of costs should be determined on the papers (ie without conducting a further hearing).

(5) Any such submissions may be filed and served electronically, with the filed copy being sent to: MPake@pngjudiciary.gov.pg
4 Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the plaintiff: Daniel Piam Lawyers
Lawyers for the second, third, fourth and fifth defendants: Strategic Legal Services

National Court of Papua New Guinea

Aposol v Theo [2025] PGNC 457; N11617 (1 December 2025)