State v Biyama [2008] PGNC 175; N3532 (25 November 2008)

N3532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1706 OF 2006

THE STATE

V.

SEDEKA BIYAMA

Waigani: Paliau, AJ
2008: 20th, 24th & 25th November

CRIMINAL LAW – Interpretation – Arrest without Warrant – whether s. 87(2) of Criminal Code Mandatory.

Cases cited:
The State v. Kiap Bonga [1988-89] PNGLR 360
The State v. Natpalau Tulong [1995] PNGLR 329

Counsels:
Mr. D. Kuvi & Mr. T. Ai, for the State
Mr. D. Korowa, for the Accused

RULING

25 November, 2008

1. PALIAU, AJ.: The accused was charged under Section 87(1) of the Criminal Code for official corruption between the 21st December 2005 and the 8th August 2006 (bribing personal of certain companies).
   
2. The indictment was presented and the accused was arraigned. After the arraignment the Defence objected to the jurisdiction of the Court arguing that Section 87(2) of the Criminal Code provides that a person charged with official corruption under Section 87(1) "Shall not be arrested without warrant." The arrest of the accused was therefore unlawful and therefore the court has no jurisdiction and the accused should be discharged.
   
3. It is conceded by the State the arrest was without warrant. The State is arguing however that the accused is not indicted with official corruption. He is indicted with false pretence and making documents without authority, which offences do not require the accused to be arrested with warrant. The accused can be arrested without warrant for these offences.
   
4. The State did not contest the argument by the Defence that a person charged with official corruption under Section 87(1) shall not be arrested without warrant. So there must always be a warrant issued for the arrest of any person for committing the offence of official corruption under Section 87(1). An arrest of a person without warrant is unlawful.
   
5. The case of The State v. Natpalau Tulong [1995] PNGLR 329, Doherty J, was cited by the Defence Counsel for the proposition that when the Criminal Code was amended in 1993, Section 87(2) was one of the provisions in relation to arrest that was not repealed. Therefore the intention of the Parliament was clear in that a person shall not be arrested without warrant for an offence under Section 87(1).
   
6. I have considered that case and it discussed an earlier case of The State v. Kiap Bonga [1988-1989] PNGLR 360, per Barnett J., and I adopt the principle outlined in the Natpalau Tulong (supra) to be applicable to the present case.
   
7. We are dealing with the arrest of the accused by the Police before committal. Whether the arrest was effected in accordance with the law? I am of the view that Section 87(2) of the Criminal Code is mandatory and non-compliance with it renders any arrest to be illegal. It was that arrest that resulted to laying of other charges. Because the initial arrest was unlawful, the other charges cannot be accepted.
   
8. The argument that the accused is not indicted with a Section 87(1) offence of the Criminal Code cannot also be accepted.
   
9. I consider that the accused was unlawfully arrested and therefore illegally before this Court. Although the indictment has been presented and the accused arraigned, I am duty bound to discharge him. Of course, a discharge does not mean that the accused cannot properly be arrested again and a charge laid against him.
   
10. I find that the accused is illegally before this Court and discharge him accordingly.
    
11. Bail money of K 1,000.00 is refunded to the accused forthwith upon presentation of receipt.
    

Ordered accordingly.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused