N4265

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 154 OF 2011

BETWEEN:

ROYALE THOMPSON
Plaintiff

AND:

SYLVESTER KALAUT, Superintendent of Police
Headquarters Konedobu
First Defendant

AND:

ANTHONY WAGAMBIE, as the Acting Commissioner for Police
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:

SOUTH PACIFIC POST LIMITED, trading as POST COURIER
Fourth Defendant

AND:

PACIFIC STAR, TRADING AS THE NATIONAL NEWSPAPER
Fifth Defendant

Waigani: Davani, J
2011: 8th, 14th April

CIVIL — control of the criminal jurisdiction of an inferior court — permanent stay of criminal proceedings in the District Court

ABUSE OF PROCESS OF THE COURT — prosecutor making out informations on facts known to him to be untrue

JURISDICTION OF THE COURT TO GRANT A PERMANENT STAY OF CRIMINAL PROCEEDINGS — discussion of the basis of the jurisdiction — District Court proceedings permanently stayed.

Facts

The Collector of Customs Gary Juffa made statements in the newspapers alleging that a foreign vessel had left Papua New Guinea while it was under arrest and while its captain was on bail, thus breaching the terms of the arrest and the bail. The plaintiff, an acting judge of the National Court, while a legal practitioner, placed an advertisement in the newspapers on behalf of her client the owners of the vessel. The advertisement said the statements made by Mr Juffa were false. Superintendent Kalaut, drew up Informations against the plaintiff in the District Court jurisdiction, alleging that, by placing the advertisement, the plaintiff had attempt to pervert the course of justice and that by the advertisement the plaintiff had spread false rumours. Mr Kalaut then charged and arrested the plaintiff. The statements made by Mr Juffa in the newspapers were false to his knowledge. The allegations made by Mr Kalaut in the Informations were false to his knowledge. The statements made in the advertisement by the Plaintiff were true. The vessel was not under arrest and the captain who took the vessel out of Papua New Guinea was not on bail and had never been charged with any offence. The Plaintiff sought to permanently restrain the criminal informations made against her in the District Court jurisdiction.

Held

1.	The court has jurisdiction to protect persons from the abuse of process of the criminal jurisdiction of the court and in the exercise of that jurisdiction to permanently stay criminal proceedings in court, as distinct from the investigative powers of the Police;

2.	The abuse must be an abuse of the whole function of the criminal jurisdiction of the court, not some particular procedure. The court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general.;

3.	Any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the court has itself been improperly made use of;

4.	The actions of Superintendent Kalaut were a gross abuse of process. He has abused his position as a Police Prosecutor to file court proceedings against the plaintiff on facts known to him to be incorrect and false;

5.	The District Court proceedings are permanently stayed. The first defendant is to pay the costs of the proceedings.

Cases Cited:
Papua New Guinea Cases

Baing v. PNG National Stevedores Pty Limited (2000) SC267);
Chan v. Ombudsman Commission [1999] PNGLR 240; 
Gary McHardy v. Prosec Security & Communications Limited [2000] PNGLR 279;
Independent State of Papua New Guinea v. Jimmy Maladina (2004) (CR 402 of 2004);
Jimmy Maladina v. the State & 1 Other OS 178 of 2004 (2004) N2530;
John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v the Attorney General, National Executive Council and the State (2000) N195;
Mauga Logging Co. Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80;
Mune v. Poto (No.1) [1996] PNGLR 125; 
Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809;
Rimbink Pato v. Anthony Mangin & 4 Others (1999) SC622;
Sangam Mote v. Alkan Tololo [1996] PNGLR 404
Simon Ketan v. Lawyers Statutory Committee & Papua New Guinea Law Society (2001) N2290;
State v. Geyame Kilipi [1990] PNGLR 216
Wilson Kamit Gabriel v. Marshall Cooke QC & Cyprian Warokra and Others (2003) N2369; 
Yer, Secretary Department of Finance & 3 Others v. Peter Yama (2009) SC996;
Zachary Gelu & 2 Others v. Sir Michael Somare & 2 Others (2008) N3526;

Overseas Cases

Connelly v. Director of Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401;
Davies in Director of Public Prosecutions v. Humphreys [1977] AC 1;
Gill v. Walton (1991) 25 NSWLR 190;
H. A L v. Andrews [2006] SASC 392; 
Herron v. McGregor (1986) 6 NSWLR 246; 
Jago v. District Court of New South Wales (1989) 168 CLR 23; 
Metropolitan Bank Ltd v. Pooley (1885) 10 App Cas 210;
Miller v. Ryan [1980] 1 NSWLR 93;
Mills v. Cooper [1967] 2 QB 459;
Moevao v. Department of Labour [1980] 1 NZLR 464; 
New South Wales Food Authority v. Nutricia Australia Pty Ltd (2008) 74 NSWLR 148;
R v Bow Street Magistrates; ex parte Mackeson (1981) 75 Cr App R 24;
R v. Chief Constable of Merseyside Police; ex parte Calvely [1986] 2 WLR 144; [1986] 1 All ER 257;
R v. Humphrys [1977] AC 1; [1976] 2 All ER 497;
R v. Osborn [1969] 4 CCC 185; [1968] 1 DLR (3d) 664
R. v. Hartley [1978] 2 NZLR 199
R. v. Jewitt (1985) 20 DLR (4th) 651;
Re Regina and Rourke (1975) 25 CCC (2d) 555; 62 DLR (3d) 650
Re Regina and Rourke (1977) 35 CCC (2d) 129; 76 DLR (3d) 193;
Rogers v. The Queen (1994) 181 CLR 251; 
Walton v. Gardiner (1993) 177 CLR 378;
Williams v. Spantz (1992) 174 CLR 509;

Legislation:

Constitution s155;
Criminal Code s136, 371(1);
Customs Act s168;
District Court Act s24(1), 251-257;
National Court Rules) O4 r2(3)(b);
Summary Offences Act Chapter 264 s11(b).

Counsel:

I. Molloy and F. Griffin, for the Plaintiff
S. Koim, for the First, Second and Third Defendants

DECISION

14th April, 2011

1.	DAVANI .J: Before me for substantive hearing is the Originating Summons filed by Young & Williams Lawyers on 4th April, 2011, for and on behalf of the plaintiff. The Originating Summons seeks the following orders;

"1. That pursuant to Constitution Section 155(4) and the Court's inherent jurisdiction proceedings or proposed proceedings in the District Court based on the three Information signed by Superintendent Sylvester Kalaut, copies of which are annexed hereto, be permanently stayed for being an abuse of process.

2.	That the time for service of this Originating Summons be abridged under Order 1 Rule 15 of the National Court Rules 1983 (as amended).

3.	Such further or other orders or relief, including consequential orders or relief, as this Honourable Court considers appropriate.

4.	Costs.

5.	Time be abridged to the time of settlement with the Registrar, which shall take place forthwith."

2.	 The application is opposed by the first to the third defendants.

3.	 Also returnable before me are interim stay orders issued by this Court on 4th April, 2011.

Background

4.	 i. Information in District Court - The plaintiff in these proceedings is an Acting Judge of the National Court, having recently been appointed. She makes this application in response to three Information made by the first defendant against her. These are;

(i)	The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4th April, 2011, alleging that between 12th and 14th January, 2011 at "National Capital District", Royale Thompson "did spread misleading reports tending to cause ill-feeling between the members of PNG Customs Service and the Royal Papua New Guinea Constabulary", contravening s.11(b) of the Summary Offences Act chapter 264.

(ii)	The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4th April, 2011, alleging that between 12th and 14th January, 2011, Royale Thompson "Attempted by causing the publication of a newspaper article in the Post Courier dated the 14th January 2011, titled "The Motor Tanker "UBT" FJORD" and its departure from Rabaul, which was false and misleading to pervert the course of justice, when the matter (CR No. 1092/2010) was pending before the Kokopo National Court", thereby contravening s.136 of the Criminal Code.

(iii)	The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4th April, 2011, alleging that between 12th and 14th January, 2011, at "National Capital District", Royale Thompson did "Attempted by causing the publication of a newspaper article in the Post Courier dated the 14th January, 2011, title "The Motor Tanker "UBT" FJORD" and its departure from Rabaul, which was false and misleading to pervert the course of justice, in that the tanker escaped Simpson Harbour because of prolonged delays and unlawful demands from PNG Customs Service", thereby contravening s.136 of the Criminal Code.

5.	Copies of these Informations are in evidence before me. However, as at 7th April, 2011, it was still unclear in which Court these Information will be pursued. This is deposed to in several affidavits by lawyers from Young & Williams. On 7th April, 2011, Ms Christine Copland, lawyer, deposes that on 4th April, 2011, when she attended at the Waigani Committal Court, she was advised by the Court Clerks Tanya Wilson and Elsie Guise, that the fresh Information had not yet been submitted to the Police Prosecutor. Ms Copland was informed that the usual practice was that the Court could not number or list the matter until the Police had provided them with a copy of the bail receipt showing the payment of monies to the Department of Finance. The Clerks further informed Ms Copland that they had not yet received the receipt. They said that Ms Thompson's lawyers would have to appear every day and check with the Clerks if the Police had given them the bail receipt.

6.	Ms Copland again attended the Waigani Committal Court on 5th April, 2011 and noted that the matters involving the plaintiff were not on the list for the day. Ms Copland then spoke to Police Prosecutor Senior Constable Ambrose, who advised her that although he had all of the 3 fresh Information with him, that the matters would have to be mentioned the following week as he needed advice on the effects of a National Court Order of 4th April, 2011, taken out by the plaintiff.

7.	Jeffrey Kennedy, lawyer, by his affidavit sworn on 7th April, 2011, deposes that on 4th April, 2011, he attended at the Boroko District court and on checking the lists, noted that the Information against the plaintiff was not listed. 

8.	Francis Griffin, lawyer, by his affidavit sworn on 7th April, 2011 and filed on 8th April, 2011, deposes that on 5th April, 2011, he attended at the Boroko District Court and on checking the Court lists, noted that the Information against the plaintiff, was not listed. He was advised by the Court Clerk Vele Ila that the matter could not be dealt with as he had been served with a National Court Order.

9.	The relevance of these affidavits will be discussed later below.

10.	ii. Newspaper article by Young & Williams Lawyers - These charges arise from a newspaper article published by the firm Young & Williams Lawyers in the Post Courier for and on behalf of their client, on 14th January, 2011 (the 'article'). The article reads;

"THE MOTOR TANKER "UBT FJORD" AND ITS DEPARTURE FROM RABAUL

The oil tanker that departed PNG last Saturday night, after seven months at anchor in Rabaul Harbour, left because of prolonged delays and unlawful demands from PNG Customs, a spokesperson for the ship-owner in Singapore said yesterday. The ship, the UBT Fjord, was stopped by Customs in June last year after taking on board a cargo of fuel oil at Loloho, in the Autonomous Region of Bougainville.

"After allowing the tanker to load the cargo at Loloho, and giving it clearance to depart for Singapore, PNG Customs then stopped the ship and redirected it to Rabaul. Unfortunately, PNG Customs took the opportunity to make all sorts of demands, and bring various court proceedings."

Contrary to what Commissioner Garry Juffa may claim, the ship's spokesperson said, the vessel was not under arrest or detention. A temporary deportation order had been lifted, and Mr Juffa's application for a further restraining order was refused by the National Court – "once again with an order that he pay the Court costs", the spokesperson added.

Contrary to Mr Juffa's statements, the Captain was not facing any charges, had not been arrested, and was not on bail.

The spokesperson said there should be a completed investigation of PNG Customs from the top down. "We have learned of other incidents and, as matters stand, the way Customs is being administered, foreign shipping have a strong incentive to avoid Papua New Guinea altogether. PNG Customs appear to be a law unto themselves".

Meantime, the owners and charterers of the UBT Fjord have issued their own proceedings in the National Court including a multi-million US dollar claim against Commissioner Juffa and the State. The claim is for loss of profits, and extra expenses incurred whilst the vessel has been in Rabaul. "Those proceedings will be pursued to the end", the spokesperson said. "We are determined to recover compensation for these losses through maladministration and unlawful demands. The costs to the ship owner and the waste of public monies have been quite astounding".
 (my emphasis)

11.	iii. Captain Moe Hein and the vessel UBT Fjord - The article is as a result of criminal prosecution and civil proceedings filed by the State against one Moe Hein who was the Captain of the vessel "UBT Fjord". These Proceedings CR 1092 of 2010, were in relation to Moe Hein's alleged theft of fuel oil from Loloho, Bougainville. 

12.	Whilst the proceedings were pending at the National Court, Kokopo, he was replaced as Captain. He was on bail then. On 13th August, 2010, he was committed to stand trial at the National Court, Kokopo on the stealing charge, laid under s.371(1) of the Criminal Code.

13.	He applied to vary his bail Conditions as he wished to travel to Singapore. This was granted by the National Court, Kokopo on 14th December, 2010 and he was also ordered to appear at the trial of the matter, to run from 15th, 16th and 17th March, 2011 at Kokopo. Bail was set by the National Court, Kokopo. 

14.	On 15th March, 2011 when the matter was called by the National Court, Kokopo, Moe Hein was not in attendance. A Warrant of Arrest for his arrest was issued that same day. Case CR 1092 of 2010 was adjourned sine die and cash bail of K100,000.00 revoked and forfeited to the State.

15.	At the same time, the PNG Customs filed proceedings in the National Court OS 548 of 2010. In those proceedings, Mr Garry Juffa as Commissioner, Papua New Guinea Customs Service, was the plaintiff and Mr Hein in his capacity as Master and Captain of Vessel MT UBT Fjord, was the defendant, proceedings brought under s.168 of the Customs Act. On 13th December, 2010, the National Court heard Moe Hein's application to dismiss the proceedings in their entirety. However, in response, Mr Juffa applied to withdraw those proceedings. On 14th December, 2010, the Court gave Mr Juffa leave to withdraw the proceedings on the basis that he was permanently restrained from issuing any similar proceedings. The Court Orders read;

"1. The plaintiff is given leave to vacate the trial date and discontinue the proceedings herein.

2. Leave is given on terms that the plaintiff, his officers and agents are permanently retraining from commencing or enforcing any further proceedings against the defendant which are the same as or similar to the proceedings herein on OS No. 548 of 2010 and

3. On terms that the plaintiff shall pay all of the defendant's costs, to be taxed or agreed, pursuant to Section 175 of the Customs Act."

Analysis of evidence and the law

16.	The plaintiff seeks to permanently stay these proceedings. As an Acting Judge of the National and Supreme Courts of Papua New Guinea and whilst the proceedings subsist, the plaintiff submits that they are interfering with the performance of her duties and have a tendency to threaten to bring the Judiciary into disrepute.

17.	The plaintiff submits that the proceedings must be permanently stayed because there is no reasonable prospect of a conviction and no likelihood of success, therefore an abuse of process.

18.	i. Permanent stay - The application is made to the National Court in relation to proceedings filed in the District Court. The District Court Act does not provide for a general power to stay proceedings. However, there are general powers to stay, e.g. when an entry of appeal is filed, that acts as a stay of proceedings (see Sangam Mote v. Alkan Tololo [1996] PNGLR 404). Or under s.24(1) of the District Court Act, there is a general power to stay proceedings when proceedings are transferred from one Court to another.

19.	In Part XII of the District Court Act, which is the part on "Protection of Magistrates in the execution of their office", s.251 provides for a setting aside or stay of proceedings against a Magistrate. It reads;

"251. Actions in prohibited cases.

If an action that by this Act is declared to be not maintainable is brought against a Magistrate, a Judge, on application by the defendant and on affidavit of the facts, may set aside or stay the proceedings in the action with or without costs."

20.	Sections 252, 253, 255, 256 and 257 are provisions that demonstrate how and when an applicant can apply to the District Court if aggrieved by a Magistrate's actions.

21.	In this case, the incident occurred when the plaintiff was still a lawyer and not an Acting Judge, as she is now. Those provisions provide some guidance as to how a Court can deal with a criminal prosecution against an acting Judge or Judge for that matter, more particularly s.256. It reads;

"256. Magistrate only liable in case of malice, etc.

In an action against a Magistrate for an act done by him in the execution of his duty as such or in his capacity as such, it must be expressly alleged in the statement of claim or plaint that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied and at the trial of the action the plaintiff fails to prove them, judgment shall given for the defendant."

22.	Because s.256 applies to a serving magistrate, which the plaintiff was not when the incident occurred, that I will not refer to it.

23.	The subject of contention in this case is the article. The evidence is that the article was placed in the Post Courier upon the plaintiff's client's instructions. It is common knowledge that in a lawyer's practice, upon receipt of instructions from his/her client, he/she must attend to them as best as he/she can. The plaintiff in her affidavit sworn on 4th April, 2011, deposes that Young & Williams Lawyers had instructions on civil proceedings OS No. 748 of 2010, which was a prosecution by PNG Customs against Moe Hein under the Customs Act, seeking orders,, amongst others that the fuel on board the vessel UBT Fjord, was subject to Custom's control and could not be dealt with by any one else. At the same time, Mr Hein also instructed other lawyers to represent him in criminal proceedings CR 1092 of 2010 and related to the bail application, MP No. 378 of 2010.

24.	According to the plaintiff's affidavit, her instructions from her client were that criminal proceedings CR No. 1092 of 2010 were set down for hearing from 6th to 10th December, 2010. Her instructions were that Moe Hein appeared at the National Court, Kokopo for the trial but neither the prosecution nor the Judge were available. He again applied for and obtained permission to leave the country. He informed his lawyer that the terms relating to detention of the UBT Fjord which was in the earlier bail orders, were not re-imposed. The Kokopo National Court's Orders of 14th December, 2010, granted the applicant permission to leave Papua New Guinea and to return for a 3-day trial on 15th, 16th and 17th March, 2011. The orders of 14th December, 2010 were also that the UBT Fjord should not be detained any more, a variation from the previous orders. Par.5 of those orders read;

"5. The previous order for the detention of the Oil Tanker "UBT Fjord" until the return of the applicant as per Order No. 2 of Variation of Bail Order dated 25th August, 2010 is dissolved."

25.	The plaintiff only dealt with the civil proceedings. The criminal proceedings were handled by another law firm in Rabaul. According to her affidavit, instructions given to her in relation to the criminal proceedings were about Court appearances in December, 2010. The defendants have not put forward evidence to say that the plaintiff knew that Mr Hein had to appear at the National Court, Kokopo on 15th March, 2011.

26.	When the plaintiff received instructions from her client to place the advertisement in the newspaper, she did as instructed. 

27.	If the defendants were concerned about the newspaper article being misleading, they have not demonstrated to the Court the steps they have taken in relation to the arrest of Mr Hein, apart from the issue of the Warrant of Arrest which is often done at the Court's prerogative and discretion. They have also not put any evidence before the Court to show that they had opposed the application to vary the bail orders to allow Mr Hein to leave the country. As far as I am concerned, they have done very little to have Mr Hein return to Papua New Guinea to face charges in relation to the alleged theft of fuel oil.

28.	ii. National Court's powers to stay - The National Court has inherent powers to stay its own proceedings for abuse of process and also proceedings in inferior Courts or Tribunals (Moevao v. Department of Labour [1980] 1NZLR 464; H. A L v. Andrews [2006] SASC 392; Herron v. McGregor (1986) 6 NSWLR 246; Gill v. Walton (1991) 25 NSWLR 190).

29.	The National and Supreme Courts have an extensive inherent jurisdiction derived from s.155 of the Constitution as the superior Courts of this jurisdiction (see Mauga Logging Co. Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80; Mune v. Poto (No.1) [1996] PNGLR 125; Chan v. Ombudsman Commission [1999] PNGLR 240; Baing v. PNG National Stevedores Pty Limited (2000) SC 267).

30.	The plaintiff asks the Court to exercise its inherent jurisdiction to prevent an abuse of the Court process. Mr Ian Molloy submits that the Court is not being asked to interfere with the Public Prosecutor's powers (State v. Maladina (2004) N2530). Nor is the Court being asked to interfere with a Police investigation (Rimbink Pato v. Anthony Mangin & 4 Others (1999) SC622). In those cases, the applicants were defendants or respondents in proceedings before the National Court. They sought to stay those proceedings which the Court refused.

31.	iii. Abuse of process - In Rogers v. R. (1994) 181 CLR 251 at pg.254, Mason CJ said;

"The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fix the categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process."

32.	Mason CJ's statement only goes to demonstrate that abuse of processes are many and varied and that a Court must treat each case that comes before it with the expected diligence, caution and fairness. As in this case, the Court must be seen to be protecting its processes and at the same time preventing the abuse of its processes.

33.	If the Court's processes are abused, the filing and pursuit of litigation by those who are able to do so, against accused persons, would be used as a tool by the instigator of the charges to either satisfy a personal desire to exact revenge or to restore lost pride or for many other personal reasons. And of course, these personal reasons will not be made known to the Court so long as the instigator of the charges, is on the face of it, seen to be complying with process.

34.	The issue now is whether the National Court sitting as a Civil Court, can stay District Court Criminal proceedings. In New South Wales Food Authority v. Nutricia Australia Pty Ltd (2008) 74 NSWLR 148, Simpson .J said;

"There is nothing controversial or complex about the basis upon which the Court will intervene to stay a criminal prosecution. It may properly do so where it would be an abuse of process for the prosecution to proceed. It is an abuse of process, inter alia, where there is no prospect that the prosecution will result in a conviction". (see generally Jago v. District Court of New South Wales (1989) 168 CLR 23; Walton v. Gardiner (1993) 177 CLR 378; Rogers v. The Queen (1994) 181 CLR 251; Williams v. Spantz (1992) 174 CLR 509).

35.	 This then takes me to the criminal charges to be laid in the District Court.

36.	The plaintiff is charged with several offences. The first offence is a charge under s.11 of the Summary Offences Act. This section reads;

"11. False reports

A person who spreads false or wilfully misleading reports tending to cause trouble or ill-feeling – 

(a)	amongst people; or

(b)	between the members of a group of people; or

(c)	between groups of people; or

(d)	between individuals,

is guilty of an offence.

Penalty: a fine not exceeding K100.00 or imprisonment for a term not exceeding 3 months."

37.	The charge on the Information omits the word "wilfully". That is an essential element of the offence. Another element that is missing is "false". I note the word "misleading" is contained in the Information. However, the specific elements of the offence, being "false" and "wilfully misleading" must be stated in the Information as elements of the offence, to be proven beyond reasonable doubt by the prosecution.

38.	There is no reasonable prospect of the Court's finding that the plaintiff caused the notice of 14th January, 2011 to be published, knowing it was misleading with a tendency to cause trouble or ill-feeling amongst people, between the members of a group of people or between individuals. 

(i)	The next offence is s.136 of the Criminal Code. It reads;

"136. Attempting to pervert justice

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding 2 years".

39.	In the State v. Geyame Kilipi [1990] PNGLR 216, Brunton .J said this in relation to the offence of attempting to pervert the cause of justice.

"The essence then of the offence, whether its facts are rooted in time before a trial, that is, in the police investigation, or are part of the trial process such as interfering with witnesses, or trying to persuade a Judge or Magistrate to do something, or not to do something, is that the conduct might lead to a miscarriage of justice, whether or not a miscarriage actually occurred. There must be an act which attempts to "turn aside" the course of justice, and the act must also have that tendency."

40.	The State's submissions are that the plaintiff has misled the public by the publication of the article. The effect of the charge is that the plaintiff has perverted the course of justice by publishing a false and misleading article. As Brunton .J said in Geyame Kilipi, the act must be an attempt to 'turn aside' the course of justice.

41.	Is the plaintiff's act, an act to 'turn aside' the course of justice?

42.	Apart from the charge being vague and confusing, the existing facts before the charges were laid and after the charges were laid, are that when the order to vary bail was made by the National Court Kokopo on 14th December, 2010, the Court also ordered that the previous order for the detention of the oil tanker "UBT Fjord" is dissolved. That is provided at par.5 of the orders, which I have set out above. This means when the article was published on 14th January, 2011, the UBT Fjord was not bound by any Court order to remain in Papua New Guinea.

43.	On 14th December, 2010, the National Court, Kokopo also ordered that the applicant Moe Hein supply his residential address in Singapore to the Provincial Police Commander prior to his leaving Papua New Guinea. He is also to furnish to the Assistant Registrar of the National Court Kokopo with a copy of his return airline ticket from Singapore to Port Moresby, prior to his leaving Papua New Guinea. If Superintendent Kalaut was vigilant in the performance of his duties, he would have ensured that those requirements were furnished to him and to the Assistant Registrar of the National Court, Kokopo prior to Captain Moe Hein leaving Papua New Guinea. So in the event he jumps bail, Superintendent Kalaut would have some basis from which to start. There is no evidence from Superintendent Kalaut that the State obtained those details before Moe Hein's departure.

44.	Therefore, contrary to the newspaper report in the National of 10th January, 2011 where the PNG Commissioner of Customs Garry Juffa had stated that the detained vessel had fled Simpson Harbour, there was no such order in place as at 14th December, 2010, as demonstrated by par.5 of the Bail Variation Orders of the National Court, Kokopo. Further, the National Court, Waigani in National Court proceedings OS No. 548 of 2010 instituted by the Collector of Customs Garry Juffa which was a prosecution under the Customs Act seeking orders amongst others that the fuel on board the vessel UBT Fjord was subject to Custom's control, and could not be dealt with by anyone else, was dealt with by the National Court, Waigani on 13th December, 2010. There, the National Court heard the defendant Moe Hein's application to dismiss the proceedings in their entirety. As stated above, in response, Mr Juffa applied to withdraw those proceedings. On 14th December, 2010, the Court gave Mr Juffa leave to do so on the basis that he was permanently restrained from issuing any similar proceedings and he was also ordered to pay the costs. In making those orders, the Court noted that Mr Juffa had earlier issued similar proceedings in the District Court which had already been struck out and that Moe Hein and his witness had travelled from Singapore only to be met by Mr Juffa's application to discontinue the proceedings. The National Court's Orders of 14th December, 2010 read as follows;

"1. The plaintiff is given leave to vacate the trial date and discontinue the proceedings herein.

2. Leave is given on the terms that the plaintiff, his officers and agents are permanently restrained from commencing or enforcing any further proceedings against the defendant which are the same as or similar to the proceedings herein in OS No. 548 of 2010.

3. On terms that the plaintiff shall pay all of the defendant's costs, to be taxed or agreed, pursuant to Section 175 of the Customs Act."

45.	Despite the National Court Orders, several newspaper articles taken out by Mr Juffa contained reports that were directly contradictory to the National Court Waigani's Orders and the National Court, Kokopo's Orders. I take out extracts from the plaintiff's affidavit of 4th April, 2011. On 12th January, 2011, Mr Juffa informed the media that;

"this is yet another example of foreigners fleeing the country when granted bail';

and on many occasions Customs has sought custody while cases are pending and yet Courts grant bail to foreigners who evade justice and leave;

and annexed hereto and marked with the letter "C" is a copy of the article from the National newspaper of 12 January, 2011."

46.	On 13th January, 2011, Superintendent Sylvester Kalaut informed the media that he had arrested and charged several people with "aiding the Captain of the ship, Ye Wi Aung", in the illegal departure of the vessel. Annexed to his affidavit, marked "D" is copy of that article from the National newspaper of 13th January, 2011. That confirms that when the UBT Fjord departed on or about 7th January, 2011, that the Captain of that vessel was not Moe Hein, but was Ye Wi Aung. I must emphasise, a fact known to Superintendent Kalaut.

47.	The evidence is that Mr Juffa's application to the National Court, Waigani in the OS proceedings to restrain the fuel, was not granted. He did not obtain a Court Order for the detention of the vessel UBT Fjord. Moe Hein was not the Captain of the vessel when it left. Mr Juffa and Inspector Kalaut knew that the Captain was another man who had not been arrested or charged and was not on bail. 

48.	It was as a result of newspaper articles referred to above, that the plaintiff then received instructions from her client to place the article in the newspaper. 

49.	The plaintiff is now an Acting Judge of the National Court of Papua New Guinea. Since Mr Juffa's full page advertisements of 19th January, 2011 to March, 2011, the Police did not take any steps to file charges. It was only after the plaintiff was appointed Acting Judge of the National Court of Papua New Guinea, that on Thursday, 31st March, 2011, Superintendent Kalaut and another Policeman delivered a letter to the Chief Justice, addressed to the Chief Justice, not marked confidential and seen by a number of people. This letter was copied to Mr Juffa. Even when sitting in Court as a Judge, the plaintiff was directed by Superintendent Kalaut to attend at the Police Station to be interviewed. The plaintiff had to cancel all her Court's sittings to then attend at the Police Station. At the Police Station, she was promptly arrested and then released from police custody on bail of K2,000.00. She has yet to receive the original receipt.

50.	There was a period of a month when the plaintiff was still a lawyer that action could have been taken by the Police. However, this was not done. Steps to prosecute were taken after the plaintiff was appointed an Acting Judge.

51.	I have seen that the publication, the subject of contention was placed in the media by the plaintiff upon instructions from her client. As emphasised in the reproduced article at para [10] of this decision, the article refers to "the spokesperson". These are not the plaintiff's words. If Superintendent Kalaut and Mr Juffa are affected by the article, then they are suing the wrong person. They should be suing "the spokesperson", not the plaintiff. It was not the plaintiff's words but that of her client. It does not serve any purpose pursuing charges against the plaintiff.

52.	I should also state at the outset that in line with the charges against the plaintiff, if there were any ill-feeling or infighting or disputes or conflict between the PNG Customs and the PNG Police or anyone else as a result of the publication of the newspaper article of 14th January, 2011 as alleged in the charges under s.11 of the Summary Offences Act, that Inspector Kalaut has not placed any of that evidence before this Court to show that the charges do have some substance.

53.	Can the Court stay criminal proceedings based on the above? I sitting as a Civil Judge, will effectively be putting a stop to criminal proceedings. Can I do that? I discuss this below.

Order to permanently stay District Court criminal proceedings

54.	i. Submissions by the defendants - Mr Koim submits that Mr Molloy's submissions should more appropriately be made in the District Court. He submits that this is a Police investigation and must continue. In saying that, Mr Koim referred this Court to Pato v. Manjin (supra); Simon Ketan v. The Lawyers Statutory Commission (infra) and to the Independent State of Papua New Guinea v. Jimmy Maladina (CR 402 of 2004) and Jimmy Maladina v. the State & 1 Other OS 178 of 2004 (2004) N2530. 

55.	Mr Koim submits that the main complaint is par.4 of the article. Par.4 states that the Captain was not facing any charges, had not been arrested and not on bail. I am reminded again that the plaintiff caused the article to be published, on instructions from her client. At that time, she had instructions only in relation to the December, 2010 hearing. If she was misled by Moe Hein, that is beyond her control. However, the evidence is that the Oil Tanker referred to in that article was captained by Ye Wi Aung. Ye Wi Aung was not facing any charges, he had not been arrested and he was not on bail. The article is accurate, contrary to Mr Juffa and Superintendent Kalaut's assertions and Mr Koim's submissions.

56.	Mr Koim submits that as to whether the charges are likely to lead to a conviction, that on a cursory view of the evidence before the Court, that the plaintiff did pretend to be an official/spokesperson of the shipping company and caused the publication of misleading reports in the Post Courier to pervert the course of justice. He submits that the publication was done with a view to undermining the severity of the escape of the "UBT Fjord" from lawful custody. He submitted further that the report basically portrayed a picture that there was nothing against the Captain and the ship and further, that if there was anybody responsible, that it is the Customs and the Police and it is they who are corrupt. He submits that the article is calculated to divert justice and national attention from the seriousness of Moe Hein's actions.

57.	Mr Koim submits that there is a strong case against the plaintiff which requires that the criminal process continue and for the plaintiff to prove her innocence or otherwise at that forum, being the District Court. 

58.	As to whether this Court can stop the Police and the criminal process from taking its course, Mr Koim refers the Court to s.197 of the Constitution which provides for the functions of the Police Force. That section provides that the primary functions of the Police Force are to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. He submits that in doing so, members of the Police Force are given the constitutional mandate to prosecute or withdraw charges in respect of offences and that members of the Police Force are not subject to direction or control by any person outside the Police Force. Mr Koim then referred the Court to the cases Rimbink Pato v. Anthony Manjin & Ors (1999) SC622; Simon Ketan v. Lawyers Statutory Committee & Papua New Guinea Law Society (2001) N2290; Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Cyprian Warokra and Others (2003) N2369.

59.	Mr Koim submits that only in very clear cases are investigations halted. He did not provide any authorities to support that contention.

60.	Mr Koim submits further that the "matters" that are now being raised by the plaintiff, can be raised in the District Court. He asked why there is a resistance by the plaintiff to the Police investigation. He submits that once our laws are flouted, the whole fabric of freedom is destroyed. He submits that one law broken and the bridge thereof ignored, is but an invitation to ignore further laws and if continued, will only result in the breakdown of the freedom that we presently treasure. He submits further that in a worst case scenario, if "high class people" stop police from carrying out their constitutional duties, then there is no reason to have a Police Force in this country. He submits that this will result in there being two sets of laws when the rule of law demands that everybody be equal.

61.	I will consider Mr Koim's submissions together with my analysis of the law in relation to the staying of criminal proceedings.

62.	ii. The National Court's powers to grant a stay - The plaintiff relies on s.155 of the Constitution for the permanent stay. This section reads;

"155. THE NATIONAL JUDICIAL SYSTEM

(1) The National Judicial System consists of–

(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court–

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3) The National Court–

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where–

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

(5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System."

63.	The National Court's extensive inherent jurisdiction has been discussed in many cases, which I set out above. Basically, in the absence of legislation providing for a stay of criminal proceedings, this Court will exercise powers available to it under s.155(4) of the Constitution to do justice in the circumstances of this case.

64.	In Gabriel Yer, Secretary Department of Finance & 3 Others v. Peter Yama (2009) SC 996, the Supreme Court held that there are certain principles that must be taken into account by the National Court when it is considering whether to grant an injunction. That if the Court grants the injunctions, the Court's records must – unless the injunction is granted by consent – demonstrate either through a written judgment or by reasons expressed orally by the presiding Judge that the Court has addressed its mind to these principles and is satisfied that their application makes it appropriate to grant the injunction sought. (Paul Paraka v. Eastern Highlands Provincial Government (2005) SC 809). I discuss these principles below.

65.	iii. Principles on the grant of stay - The case now before me concerns an application for a permanent stay order. The principles in relation to grant of a stay were settled in the case Gary McHardy v. Prosec Security & Communications Limited [2000] PNGLR 279. The Supreme Court said at page 8 that the principles whether or not to grant the stay order, will be applied, in the exercise of discretion. They are;

-Whether the leave to appeal is required and whether it has been obtained?

-Whether there has been any delay in making the application?

-Possible hardship, inconvenience or prejudice to either party;

-Return of the judgment sought to be stayed;

-The financial ability of the applicant;

-Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

-Whether on the face of the record of the judgment, there may be indicated an apparent error of law or procedure;

-The overall interest of justice;

-Balance of convenience;

-Whether damages would be a sufficient remedy?

66.	In my view, the principles relevant to this case are;

67.	Possible hardship, inconvenience or prejudice to either party – in this case, the plaintiff is an Acting Judge of the National Court of Papua New Guinea. If this case were to continue, it would seriously prejudice the plaintiff's continued practice as a Judge and will seriously hamper and interfere with her day to day conduct of cases. It will also bring the Judiciary into disrepute.

68.	As for Superintendent Kalaut, he will not suffer any harm or repercussions. He arrested the plaintiff on alleged criminal charges and he is determined to prosecute these cases to the end.

69.	Preliminary assessment about whether the plaintiff has an arguable case on the proposed appeal – The Originating Summons seeks a permanent stay. Mr Koim submits that substantive relief on interlocutory applications without trial of the issues should not be permitted. He submits that it is settled law that interlocutory proceedings cannot be used to obtain substantive relief. That interlocutory applications simply facilitate or enable the substantive issues to be dealt with in due course and that they cannot themselves be relied on to secure substantive relief (see John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v the Attorney General, National Executive Council and the State N1951 dated 10.3.00). I agree with Mr Koim to a certain extent. However, in this case, the plaintiff chose to come to Court under O.4 r.2(3)(b) of the National Court Rules. That rule states that proceedings may be commenced by Originating Summons where there is unlikely to be a substantial dispute of facts. Additionally, because the plaintiff is applying for an immediate injunction or in this case, a permanent stay, obviously a legal issue only, that she can proceed under O.4 r.2(3)(b). This rule states that proceedings for an immediate injunction are more appropriately commenced by Originating Summons, not a Writ of Summons and that is what the plaintiff has done.

70.	As I said above, it is also a proceeding where the Court has to determine a question of law only, and that is whether a permanent stay can be granted on criminal proceedings.

71.	Whether the plaintiff has an arguable case on the proposed appeal – The substantive action is a question of law. The interim orders return for determination on the question of law. The arguable issue is whether injunctions or stays can be taken out on criminal proceedings. 

72.	The overall interest of justice - The plaintiff is an Acting Judge of the National Court of Papua New Guinea. It is in the interests of justice that this Court resolves the issue of whether a stay can be taken out on criminal proceedings filed against her personally.

73.	Balance of convenience – Based on the evidence, the permanent stay is sought to prevent an injustice. 

74.	Whether damages would be a sufficient remedy – Damages are not a sufficient remedy.

75.	The relevant principles in relation to grant of stay have been fully satisfied. In Zachary Gelu & 2 Others v. Sir Michael Somare & 2 Others (2008) N3526, the Court held that an applicant seeking to stay an on-going investigation being conducted by a proper authority under the laws of Papua New Guinea, must show that there is a strong, arguable case. In that case, the trial judge relied on Rimbink Pato v. Anthony Manjin & Others (supra) in saying that the Court should exercise considerable caution before deciding to stay investigations of criminal or other allegedly wrongful or improper conduct being conducted by the Police Force or other proper investigating authorities under the Laws of Papua New Guinea.

76.	He held that each case must be considered on its merits. That it is only in a very clear case that the Court should order a halt to an investigation that is being conducted by a proper authority under the Laws of Papua New Guinea. He pointed out that if the Courts do not insist on this strict test, that the Courts will create an environment in which any person who is fearful of exposure by a Commission of Inquiry or other investigatory agency will come to Court, knowing that they only have to establish an arguable case. Then investigation will be stopped, time will be bought, perhaps time to hide evidence and the Courts may be unwittingly protecting those with something to hide rather than protecting the more legitimate interests of those with the right to know, and that is the people of Papua New Guinea.

77.	In this case, there is no reason for the plaintiff to hide evidence. The case presented by the Police is based on incorrect facts, as I have shown above. The plaintiff, as an Acting Judge of this Court, is a person with integrity and principle, having been born in this country some 50 years ago and has lived and been raised all her life here. She has practised law in Papua New Guinea all her professional life, being 32 years, with the firm Young & Williams. As a lawyer, she was on the Council of the PNG Law Society for 11 years and was the Chairperson of the Lawyers Statutory Committee, the statutory disciplinary body for lawyers, for 8 years. In the 32 years of her practice, she has never had a compliant laid against her, either professionally or civil or criminal. (See Royale Thompson's affidavit sworn and filed on 4th April, 2011). She does not have anything to hide. She is only seeking the full protection of this Court and the law which it appears has been abused by the prosecuting authorities.

78.	What do the overseas cases say about a Civil Court's power or a Court's powers to stay criminal proceedings?

79.	Lord Morris of Borth – Y – Gest in Connelly v. Director of Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401 said this;

"There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. ..." (1301; 409).

80.	Lord Morris of Borth – Y – Gest (at 1301-1302) said further that in a criminal Court, they "include a power to safeguard an accused person from oppression or prejudice." In the same case Lord Devlin said (at 1354) that the Courts had "an inescapable duty to secure fair treatment for those who come or are brought before them." Lord Pearce (at 1365) thought that a Court had power to stop a criminal prosecution if it "creates abuse and injustice". The right to stay criminal proceedings which are an abuse of process, was again recognized in the speeches of Lords Hailsham, Salmon and Edmund – Davies in Director of Public Prosecutions v. Humphreys [1977] AC 1 at 39, 45-46, 52-53 and 55. The highest Courts in New Zealand and Canada have also recognized the right to stay proceedings in the criminal Courts; R. v. Hartley [1978] 2 NZLR 199; Moevao v. Department of Labour [1980] 1 NZLR 464; R. v. Jewitt (1985) 20 DLR (4th) 651. In Miller v. Ryan [1980] 1 NSWLR 93 at 109, Rath .J said that a magistrate had power to stay criminal proceedings on the ground that they were an abuse of process. He followed the statement of Lord Parker CJ in Mills v. Cooper [1967] 2 QB 459 at 467, who said that magistrates could dismiss a charge for abuse of process and that "every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court."

81.	The power of a superior court under its supervisory jurisdiction to stay criminal as well as civil proceedings in an inferior court on the ground that they are an abuse of process, was recognised in Miller v. Ryan (supra) at 110; R v Bow Street Magistrates; ex parte Mackeson (1981) 75 Cr App R 24 and R v. Chief Constable of Merseyside Police; ex parte Calvely [1986] 2 WLR 144; [1986] 1 All ER 257.

82.	(Ibid, 1296; 406). Lord Morris in Connelly expanded somewhat in his remarks already cited. He said;

"The power (which is inherent in a court's jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice." (Ibid, 1301-1302; 410).

83.	Should the Court define the circumstances under which an abuse can be found?

84.	Lord Morris in Connelly took a very cautious view as to the circumstances in which such a power could be used to prevent a prosecution going ahead. 

85.	The inherent power of a Court to protect its process from abuse was again the subject of some discussion in the House of Lords in R v. Humphrys [1977] AC 1; [1976] 2 All ER 497. 

86.	Lord Salmon (45-46; 527-528) expressed himself as being in agreement with the views of Lord Devlin and Lord Pearce in the Connelly case. Like them he thought that the statements of Lord Selborne LC and Lord Blackburn in Metropolitan Bank Ltd v. Pooley (1885) 10 App Cas 210 applied to criminal as well as civil cases. He then said;

"I respectfully agree with my noble and learned friend, Viscount Dilhorne.

That a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealousy preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred. I express no concluded view as to whether courts of inferior jurisdiction possesses similar powers." (46; 527-528) (my emphasis)

87.	Lord Edmund-Davies had delivered the judgment of the Court of Criminal Appeal in the Connelly case. In the Humphry's case, he said;

"Notwithstanding certain of my observations in delivering the judgment of the Court of Criminal Appeal in Connelly v. Director of Public Prosecutions, at pp 1276-1277, I am now satisfied that, in the words of Lord Parker CJ in Mills v. Cooper [1967] 2 QB 459, 467;

...every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court"" (52-53; 533) (my emphasis)

88.	I have referred in some detail to the speeches in Connelly and Humphrys. In neither case did their Lordships hold that on the facts there had been an abuse of the process of the Court. However, the majority view strongly supports the proposition that a superior Court has jurisdiction to intervene if the prosecution amounts to an abuse of the process of the Court and the only way to prevent such abuse is by stopping the prosecution.

89.	The existence and extent of the inherent power of a Court to protect its process against abuse has been considered at appellate level in Canada. The existence of the power was recognized by the Ontario Court of Appeal in R v. Osborn [1969] 4 CCC 185; [1968] 1 DLR (3d) 664. In that case, it was exercised to prevent a second indictment which the Court regarded as unjustly oppressive.

90.	More recently the question was considered by a specially convened Court of five Judges of the British Columbia Court of Appeal in Re Regina and Rourke (1975) 25 CCC (2d) 555. 62 DLR (3d) 650. The judgment of the Court was delivered by McIntyre JA and adopted the decision in Osborn. McIntyre JA said:

"I adopt the view, then, that a trial judge has an inherent jurisdiction to protect the process of the Court from abuse by oppressive conduct on the part of the prosecution. It is a power which must be used sparingly and only in the clearest case and in my view is not a power limited to superior Courts...

"In reaching this conclusion I have not been unmindful of the fact that the exercise of the discretion will present grave problems... It must be remembered that the traditions of the common law have always dictated free access to the Courts by private litigants, those charged with crime, and the Crown. In the exercise of discretionary power of the nature here under discussion the Court must not be allowed to become in addition to Judges of the cases presented to them,,Judges of what cases shall be permitted to come to them. The discretion to stay is one which should be exercised in only the most unusual cases and the case will be a rare one indeed where its use can be justified." (564-565; 658-659).
(my emphasis)

91.	I ask again, should the Court define the circumstances under which an abuse can be found?

92.	This judgment of the British Columbia Court of Appeal recognizes (566; 660-661) the danger and difficulty of attempting to give examples of conduct so oppressive as to amount to an abuse of process. If it is of interest as referring at p 563; 657-658, but without comment as to their propriety, to a number of Canadian cases where Judges have availed themselves of the inherent jurisdiction in varying circumstances.

93.	Re Regina and Rourke went on appeal to the Supreme Court of Canada (1977) 35 CCC (2d) 129; 76 DLR (3d) 193. Pigeon J delivered a judgment which was concurred in by four other members of the Court. He thought the true position at common law was as stated by Viscount Dilhorne in Humphrys. He then went on to consider the effect in Canada of the codification of the criminal law. Laskin CJC delivered a judgment which accepted the existence of a power to prevent abuse of process. It was concurred by the remaining three members of the Court. As regards the concept of abuse of process he said:

"To recognize it as a desirable general notion for judicial control of the criminal process does not mean that its only bounds are the discretion of a trial Judge which must inevitably be respected. That discretion must itself if be addressed to situations capable of being embraced in the general notion and cannot itself be the touchstone of abuse of process (ibid 137; 1201).

94.	The Chief Justice returned to the same theme when he commented that the cases of Connelly and Humphrys "...underline, as I would myself, that the power to prevent abuse of process is one of special application and its exercise cannot be a random one" (143; 207). However the judgment does not attempt to lay down any particular test whereby a trial Judge can determine whether a particular situation is "embraced in the general notion" nor did the Chief Justice (ibid 139:203) pass judgment on the correctness of numerous cases to which he had referred (at p 137-139, 201-203) in which Canadian Judges of different levels had used abuse of process as a way of controlling prosecution behaviour which operated prejudicially to accused persons. He thought that the question of the exercise of the discretion to protect process from abuse "...becomes a matter of discipline, keyed to particular situations which, as an outgrowth of case law, commend themselves as of a kind in which the principle may be raised". (142; 205). Laskin CJC also thought that the power could be invoked by all Courts, at whatever level, having criminal jurisdiction (ibid 143; 206).

95.	Therefore, any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegally or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.

96.	Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is "the process of law", to use Lord Devlin's phrase, that is the issue. It is not something limited to the conventional practices or procedures of the Court system. It is the function and purpose of the Courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase "abuse of process" by itself does not give sufficient emphasis to the principle that in this context the court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general. 

Conclusion

97.	I have reviewed the evidence and found the following to be the correct facts;

(1)	Moe Hein was the plaintiff's client in or around October/November, 2010 to January, 2011.

(2)	The Commissioner of PNG Customs filed civil proceedings in the National Court, Waigani, OS No. 548 of 2010, for certain restraining orders against Moe Hein. Young & Williams, Moe Hein's Lawyers, applied to dismiss those proceedings in their entirety. However, Mr Garry Juffa, in his capacity as Commissioner for Customs decided to withdraw the proceedings. On 14th December, 2010, the National Court gave him leave to discontinue the proceedings and to vacate the trial date. Mr Juffa was also permanently restrained from commencing or enforcing further proceedings against Moe Hein, the same or similar proceedings to OS 548 of 2010.

(3)	Prior to that, on 13th August, 2010, Moe Hein was committed to stand trial at the National Court, Kokopo for a stealing charge under s.371(1) of the Criminal Code, proceedings CR 1092 of 2010.

(4)	On 14th December, 2010, the National Court, Kokopo varied Moe Hein's bail conditions and gave him leave to depart Papua New Guinea for Singapore. The National Court also ordered dissolving detention orders against the vessel "UBT Fjord".

(5)	On 13th January, 2011, Inspector (then) Kalaut was reported in the National newspaper as saying that he had arrested and charged several people with aiding the Captain of "UBT Fjord", one Ye Wi Aung.

(6)	The article in the Post Courier of 14th January, 2011, by Young & Williams Lawyers, is in response to several articles by Mr Garry Juffa and Superintendant Kalaut, to correct incorrect and misrepresented facts they both had been advertising in the newspapers. The incorrect facts were that;

(i)	The "UBT Fjord" was still under Court Orders to remain berthed at Simpson Harbour.

(ii)	That Mr Moe Hein was the Captain of the vessel.

(iii)	That Mr Moe Hein was facing criminal charges.

(iv)	That it was Ms Thompson who uttered the words stated in the article and that therefore she was misleading the public and was attempting to pervert the course of justice.

98.	I have seen that at the time of Mr Juffa took out a press release on 19th January, 2011, in response to the article and at the time Superintendent Kalaut arrested the plaintiff, on 1st April, 2011, that these were the correct facts, also known to Mr Juffa and Superintendent Kalaut;

(i)	When the "UBT Fjord" departed Simpson Harbour on 8th January, 2011, there was no Court Order in place, detaining her;

(ii)	On 8th January, 2011, the Captain of the vessel was one Ye Wi Aung;

(iii)	There is continuous reference in the article to "the spokesperson". It is "the spokesperson" giving instructions to the plaintiff. These are not her words. And what is published are correct facts, as stated above;

(iv)	The evidence by Superintendent Kalaut as contained in his affidavit sworn on 7th April, 2011 and filed on 8th April, 2011, at pars. 12, 13, 14 and 15 – 

-	That it is false and misleading, that the vessel was cleared by Customs;

-	That the article contained false and misleading information;

-	That the "UBT Fjord" was the subject of the criminal proceedings when it left Papua New Guinea, 

are all incorrect.

99.	I find the actions of Superintendent Kalaut to be a gross abuse of process, where he has abused his position as a Police Prosecutor to file Court proceedings against the plaintiff. Even as I hand down this decision, I do not know if Superintendent Kalaut has filed the 3 Information that he drafted because one and a half weeks after he arrested the plaintiff, he had yet to file the Information. It speaks of the Superintendent being unsure of what to do.

100.	The Court must never be used by individuals for their personal battles. Only genuine claims must be filed and pursued. If the claims are not genuine, they should rightly be stayed or dismissed or withdrawn or discontinued. This case is clearly one of abuse of process where the plaintiff was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, as being incorrect and false.

101.	As the authorities suggest and have held, the power to stay proceedings must be exercised sparingly and only in exceptional circumstances. It is a discretion that is exercised to prevent anything which savours of abuse of process. It is a power that is jealously preserved or guarded and is exercised only in very rare cases and "sparingly". It is exercised only in the most unusual cases and its use can be justified. The exercise of that power should not be a random one and will be exercised to protect the abuse of its process.

102.	As I stated above, the Courts must be protected from abuse. This is a case where the Court system has been abused by the filing of charges and the arrest of the plaintiff which has only resulted in serious embarrassment to her. This must stop and must stop now.

103.	The Court must exercise its inherent powers to ensure that justice is done. I find the District Court charges are an abuse of process and are now permanently stayed.

Formal orders

104.	The Court's formal orders are;

(1) The 3 Information signed by Superintendent Kalaut are permanently stayed as an abuse of process;

(2) The first defendant, Superintendent Kalaut, shall pay the whole costs of these proceedings, to be taxed if not agreed;

(3) Time is abridged to time of settlement to take place forthwith.

_____________________________
Young & Williams Lawyers: Lawyer for the Plaintiff 
Solicitor-General's Office: Lawyer for the First, Second and Third Defendants