N6858
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 484 of 2014
IN THE MATTER OF CONTEMPT OF COURT
UNDER ORDER 14 RULES 37 TO 50 OF THE NATIONAL COURT
RULES
BETWEEN:
MATHEW DAMARU, Detective Chief Superintendent of Police and the
Director of National Fraud and Anti-Corruption Directorate
First Plaintiff/Applicant

AND:
TIMOTHY GITUA, Detective Chief Inspector of Police and Deputy
Director of National Fraud and Anti-Corruption Directorate
Second Plaintiff/Applicant

AND:
GEOFFREY VAKI, the Commissioner of Police
Defendant/Respondent

Waigani:  Injia, CJ
2015: 29th May, 17th June
 
CONTEMPT OF COURT – Commissioner of Police –  Warrant of Arrest Issued by District Court to arrest the Prime Minister- Whether refusal to Arrest the Prime Minister constituted Contempt.
PRACTICE & PROCEDURE – Contempt of Court- In-Court proceedings – Absence of procedure - Ad hoc rules of court of practice and procedure formulated and applied- Constitution, s185, National Court Act, s 9.

Facts:
The Defendant, Commissioner of Police, was charged with contempt of Court for failing to execute a Warrant of Arrest issued by the District Court, in the period that was not covered by a stay order issued by the National Court. The defendant took a number of steps including a public statement that he would not arrest the Prime Minister soon until he was satisfied that the case against the Prime Minister was watertight.
Held:
(1)	The National Court has jurisdiction to deal with a motion for contempt for failing to enforce a Warrant for Arrest issued by the District Court: SCR No. 2 & 3 and SC Ref No. 5 of 2014 (2014) SC1388 applied.

(2)	Defendant’s consistent refusal to execute the Warrant for the reasons given, amounted to contempt of court, for which he stands liable to be punished.
Cases Cited:
Papua New Guinea Cases cited:

Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533. 
Kwimberi v The Independent State of Papua New Guinea [1998] SC 545.
Toami Kulunga v Geoffrey Vaki re charges of contempt re Alfred Manase, Margaret Parua and Sam Bonner(2014) SC 1389
Andrew Daiva & Ome Ome Forests v Lawrence Pukali & Ors (2002) N2289. 

Overseas Cases cited

Hatdkinson v Hadkinson (1952) All E.R. 567
Chuck v Cremer (1846) 1 Coop. Temp. Ctt 205,
 Issacs v Robertson (185)AC 97
Spokes v Banbury Board of Health Page Wood VC (1865) LR 1 Eq 42 at 48-49
Lade & Co Pty Ltd v Black (2006) 2 QdR 544 at 551.
Fairclough v Manchester Ship Canal Co & Lade & Co Pty Ltd v Black (2006) 2 Qd R 531.

Legislations & Subordinate legislations:

Arrest Act (Ch 339) 
District Court Act (Ch 48)
Arrest Act Regulations (Ch 339)
National Court Rules 1987

Counsel:

G M Egan with Mr Nale, for the Plaintiffs
Griffin QC with Mr Purvey, for the Defendant

17th June, 2015

1.	INJIA CJ: The plaintiffs are the two senior officers of the National Fraud and Anti-Corruption Unit of the Royal Papua New Guinea Police Force, a division of the Police National Criminal Investigation Division (CID).  The Defendant at the material time was the Commissioner of Police. 

2.	By originating summons filed in the National Court under Order 14 rules 37-40 of the National Court Rules (NCR), the plaintiffs instituted contempt proceedings against the defendant in relation to the Defendant’s alleged failure to execute a Warrant of Arrest (“the Warrant”) for the arrest of Prime Minister The Hon Peter O’Neill (PM) issued by the District Court on 12th June 2014.

3.	The originating process documents before this Court are the Plaintiffs' Originating Summons filed on 15th July 2014, the Amended Notice of Motion filed on 27th October 2014, the Amended Statement of Charge filed on 24th February 2014 and the Further and Better Particulars are filed on 7th November 2014. These documents are reproduced in Appendix A, B, C & D respectively.

4.	Also appearing in the attachments hereto are copies of other documents which I will be referring to in the course of my deliberation. These are a copy of the Warrant of Arrest (Appendix E), Information (Appendix F) and Transcript of proceedings containing the evidence given by the second plaintiff under cross-examination and re-examination (Appendix G).  

5.	The trial commenced in this National Court after the Supreme Court answered a Constitutional  question that this Court referred to it concerning the jurisdiction of this Court to try a charge of contempt of court order in the form of a Warrant of Arrest issued by the District Court. The Supreme Court determined that this National Court has that jurisdiction:  SC References 2, 3 & 5 of 2014 References pursuant to s 18(2) of The Constitution (2014) SC1388.

CHARGES OF CONTEMPT

6.	By Amended Statement of Charge dated 26th February 2015, the defendant was charged with four (4) counts of contempt. The third count was not pursued leaving the plaintiffs pursuing the first, second and third charges.  Those charges are as follows:

Charge No.  1: 
 
Since taking office as Commissioner of Police on 16 June 2014, though you assumed full control of the police force, you have deliberately and wilfully-taken no action, or alternatively you have prevented or provided no support or instruction to the First and Second Plaintiffs/Applicants for the execution of the warrant of arrest against the Prime Minister O’Neill, contrary to the warrant of arrest issued by order of the District Court on 12 June 2014.

Charge No.  2: 

Since taking office as Commissioner of Police on 16th June 2014, you have permitted or alternatively allowed or alternatively facilitated the protection of Prime Minister O’Neill from arrest pursuant to the Warrant for Arrest issued by order of the District Court on 12 June 2014 by providing or alternatively allowing police personnel (amongst them are Paul Simon (Highway Patrol Central) Philip Pokop (Armed Robbery Response Unit Boroko), Jack Wesil (Waigani Police Station), Ila Rivu, Tony Kande Aiyele) to guard Prime Minister O’Neill contrary to the warrant of arrest issued by order of the District Court made on 12th June 2014, which order mandatorily requires any police officer, including you, to execute the warrant of arrest against Prime Minister O’Neill.

Charge No. 4: 

On 2 July 2014, you intentionally and wilfully, despite there being no legal impediments to the implementation or execution of the warrant of arrest,-made public statements in the media to the effect that you would not implement the order of the District Court made on 12 June 2014 for the arrest of PM O’Neill, such order being a valid court order for the issue of a warrant of arrest, in circumstances where such statements constituted evidence of your intention to prevent and frustrate the implementation or execution of the said court order. In particular the ABC News Website (www.abcc.net.au) quoted you as saying “...he won’t be arresting Prime Minister O’Neill anytime soon, even though a court has ruled the arrest warrant should stand”. Further it quotes you as saying “...any moves to arrest Mr O’Neill on corruption charges are a long way down the road.”

7.	The charges are supported by Further and Better Particulars: see Appendix D.

PRACTICE & PROCEDURES CONCERNING THE COURSE OF THE TRIAL

8.	The contempt alleged in the case at hand is said to have been committed outside the court in connexion with proceedings before the Court. The procedure for commencing contempt proceedings in connexion with proceedings in court is set out in NCR, Order 4. These rules are silent on the procedure for dealing with contempt in court in relation to contempt committed outside the Court. Those procedures largely remain ad hoc and varied amongst judges of the National Court and even the Supreme Court.   There is however general judicial acceptance that contempt is a criminal offence and whatever procedures are adopted by the Judge must facilitate a fair trial, observing principles of natural justice, observing Constitutional protections accorded to persons charged with a criminal offence founded on the presumption of innocence of the accused and burden and standard of proof that is placed on the accuser. 

9.	In conducting the trial in the case at hand, in dealing with contempt committed outside the court that, I have, with the concurrence of counsel representing the parties, employed procedures that resemble those contained in the recent text book Injia on Contempt of Court in Papua New Guinea and the Pacific. I have reproduced an improvised version those step by step procedures: see Appendix H. For purpose of development of the procedural law on contempt, I adopt those procedures as ad hoc procedures pursuant to s 185 of the Constitution and s9 of the National Court Act. 

10.	Unlike a criminal offence that is prescribed under a written law, the precise nature and scope of criminal offence commonly known as contempt of court is incapable of precise definition. It is for this reason that the Court dealing with contempt applies a high standard of scrutiny at different stages of the trial proceedings, to ensure that the Charge (s) is stated in clear and concise terms with sufficient particulars of the charge and that the evidence produced support the Charge. The most appropriate time in the stage of the proceedings when this task is more effectively performed is at the time the charge is presented and before the accused is arraigned. A defendant should not be required to take the stand and arraigned on a charge until the charge documents have passed the scrutiny.  Ambiguities and duplicitous statements of the charge are not permitted.  Statement of the charge in the alternative are not allowed. If ambiguities and duplicitous or alternate pleadings were to escape the scrutiny in the early stages of the trial, there is a general discretion in the court to conduct the scrutiny at any stage of the trial proceedings and strike down those offensive pleadings and reject any evidence led in support of them.

11.	In the present case, a series of preliminary hearings were conducted to ensure that the documentation pertaining to the charge of contempt conformed with the procedural requirements and that the documentations were in order. After the Amended Motion was cleared of any irregularities or defects, the defendant took his stand in the dock from where he was arraigned on the three counts.  His counsel, Mr Griffin QC, entered a not guilty plea in respect of each count.  Both parties produced affidavit and oral evidence. Both parties cross- examined selected deponents of various affidavits. At the conclusion of the case for each party, counsel were allowed time to prepare submissions. They returned to Court and delivered their written submissions which they orally presented at the hearing. After receiving arguments, I reserved my decision to today, which I now deliver. 

12.	Although the parties made submissions on the question of guilt or innocence (verdict) and penalty, as I intimated to counsel during argument, if  I return a guilty verdict on any or all of these three counts of contempt, a separate hearing on penalty will take place. 

CASE BACKGROUND, DISCUSSSIONS & FINDINGS

13.	The issue of the Warrant generated great public interest and triggered many events. Amongst those, court proceedings were mounted in all Courts.  In OS 115 of 2014, the PM challenged the issue of the Warrant.  The defendant consented to the grant of a stay of execution of the Warrant which the National Court granted and discharged later. In the District Court the defendant applied to the District Court to discharge the Information and the Warrant. That application was dismissed.  In OS 484 of 2014 Prime Minister v Police Commissioner, the plaintiffs commenced these contempt proceedings. This Court referred Constitutional questions to the Supreme Court and stayed these proceedings until the Supreme Court gave its opinion on certain Constitutional questions regarding this Court’s jurisdiction. The Supreme Court delivered its opinion. The trial commenced and concluded before me and this judgment constitutes the judgment on verdict.    In OS No. 485 (JR) of 2014, OS (JR) No. 455 of 2014 - Geoffrey Vaki, Police Commissioner v Nerrie Eliakim, Chief Magistrate, The Hon Peter O’Neill, Prime Minister of Papua New Guinea and The Independent State of Papua New Guinea,  the PM and the defendant commenced proceedings in the National Court seeking leave to apply for judicial review to challenge the validity of the Warrant. Leave was granted and a stay order was issued. Constitutional questions were referred to the Supreme Court for its opinion. The Constitutional questions have been answered. The stay order exists pending the determination of the substantive review which is pending hearing.  In SC Ref. No. 5 of 2014 the Attorney- General sought from the Supreme Court clarification on certain Constitutional questions relating to the issue of the Warrant. Those questions have been answered. 

14.	The Constitutional questions raised in the three proceedings were jointly heard and a joint opinion was delivered by the Supreme Court.  Granted  the Supreme Court’s opinion on those Constitutional questions are binding on the National Court and the District Court,  it falls on the National Court constituted by different judges to apply the Supreme Court’s opinion on the Constitutional Questions in the circumstances of the cases before the National Court. 

15.	Both parties, and especially the plaintiffs, rely on the judicial pronouncement of principles and findings of the Supreme Court  with regard to the validity of the Warrant. The defendant insists the Supreme Court made no such findings and it remains for this Court to make its own findings, applying the opinion on Constitutional questions before it. Mr Griffin of counsel for the defendant also submits the issue of the Warrant’s validity remains live issues for determination in the OS judicial review proceedings and this court should not make any conclusive findings without opportunity for interested parties being given to be heard on the issue.

16.	  This Court did not refer any such issues for the Supreme Court with regard to the Warrant’s validity. Nonetheless, insofar as statements of Constitutional principles are concerned, the Supreme Court’s opinion in the Constitutional reference questions is binding on this Court. I do agree with the defendant that the application of that opinion to the facts of the case before this Court is a separate matter that falls to be decided by this Court. I prefer to determine the Warrant’s validity on the facts before me. 

17.	I deal with several aspects of the documentation of the charges and leave others to be dealt with in the course of my deliberations on the merits of the case. Firstly, it is necessary to define the specific time within which the alleged contempt is alleged to have occurred. Given the multiplicity of events that occurred after the issue of the Warrant and the Court proceedings that resulted from it, multiple events occurred within a short space of time and happened fast. Events that unfolded and which gave rise to the contempt proceedings happened fast and at different fronts such that precision in time, in terms of hours within the day may become necessary to define. For instance on the day on which the arrest Warrant was sought to be “executed”, there was a change of command of the Police Force. Which of those Commanders were responsible for which contemptuous act, at what point in time, requires specification. The Warrant was stayed by the National Court on 17th June. If the plaintiffs allege contemptuous actions were committed on the same day before the stay order was issued, at what point in time requires specification. It is also necessary to reconcile the time these contempt proceedings were filed so that contemptuous actions that occurred after these proceedings were filed, which do not come within the ambit  of these proceedings, are precluded from these proceedings.

18.	 In the period when the Warrant was stayed, no contempt can be committed. The material period is the period between the time the defendant assumed the position as Commissioner of Police up to the time an interim restraining orders issued by the National Court in other related proceedings came into force and remained so. That period is from 16th June up to the time a stay order was issued by Kariko J on 17th June 2014 in OS 155 of 2014 Prime Minister v Police Commissioner,  and then from the date after discharge of the stay order, from  18th June  2014 to 18 July before stay order was issued by Gavara-Nanu J in  OS (JR) No. 455 of 2014 Geoffrey Vaki, Police Commissioner v Nerrie Eliakim, Chief Magistrate, The Hon  Peter O’Neill, Prime Minister of Papua New Guinea and The Independent State of Papua New Guinea. 

19.	Secondly, the timing of the contempt proceedings filed in the National Court is also significant in terms of defining the precise ambit of the actions alleged to constitute contempt. The OS proceedings which commenced the substantive charge of contempt was filed on 15th July 2014. The Motion for contempt was amended. The latest amended Motion was filed on 26 October 2014.  The Statement of Charge was amended three times, the latest one filed on 26th February 2015. The substantive OS proceedings were filed when the events giving rise to the contempt proceedings were still unfolding. It is necessary for the precise period within which the contemptuous behaviour the subject of the substantive contempt proceedings were filed. Therefore, any actions complained of in the period after the contempt proceedings were filed (16th – 18th July 2014) is irrelevant for purposes of these contempt proceedings. 

DETERMINATION OF CHARGES

20.	I approach my deliberations and determination of the three charges from  the perspective of the six(6) elements of the offence of contempt requiring proof that I discern from the case Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533. Those elements are:

(a)	there is a Court order issued by a Court of competent jurisdiction;
(b)	the Court order is valid;
(c)	order must be clear and unambiguous;
(d)	the order must have been properly served upon the alleged contemnor; 
(e)	 the defendant failed  to obey the terms of the order; and
(f)	the defendant's failure is intentional, wilful or deliberate.

21.	Each element of the offence must be proved to the required standard of proof applicable in criminal cases, that is proof beyond reasonable doubt: Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533; Kwimberi v The Independent State of Papua New Guinea [1998] SC 545.

Charge No 1:

22.	 Extensive arguments were made by counsel for the parties, which I deal with in the course of my deliberations under each element of the offence.

Court Order issued by a Court of Competent Jurisdiction

23.	There must exist a Court order issued by a Court of competent jurisdiction. With regard to A Warrant of Arrest, the Warrant must be a Court order as distinguished from a Warrant that serves administrative purposes. 

24.	The Supreme Court in SCR Ns. 2, 3 & 5 of 2014 made that distinction and determined that the Warrant in question in these proceedings was an Order of the Court.

25.	I find that the Arrest Warrant directs named police officers Chief Supt. Mathew Damaru and Det. Chief Insp. Timothy Gitua and “all members of the Police Force”  to arrest Prime Minister Peter O’Neill on a charge specified in the Warrant pursuant to an Information that was laid before the Port Moresby District Court. There is no dispute that the Warrant issued in this case was an order of the Court.  I find without any hesitation that the Warrant was issued by a competent court, constituted by a Magistrate, exercising lawful jurisdiction, which issued the court order in the form of a Warrant pursuant to the Arrest Act and the District Courts Act for purposes of s 87(2) of the Criminal Code Act.  The order directed or commanded the persons to who the warrant was directed to arrest the PM and “to bring him before a Court of law to be dealt with according to law.” 

Court Order must be valid

26.	The order must be valid in terms of its form, content and currency. Where the form of the order is prescribed by written law, the form must as far as possible adhere to the terms of the prescribed form. If the written law requires strict compliance with the form, the order must do so. If the order requires the performance of an act within a stipulated period, the act must be performed in that period.

27.	The defendant disputes the validity of the Warrant.  Mr Griffin argued that the question of the validity of the Warrant remains live issues in OS (JR) No. 455 of 2014 Geoffrey Vaki, Police Commissioner v Nerrie Eliakim, Chief Magistrate, The Hon  Peter O’Neill, Prime Minister of Papua New Guinea and The Independent State of Papua New Guinea which is yet to be heard and determined.  In the circumstances, this Court should avoid making determinations with regard to the validity of the Warrant that may prejudice those parties’ right to challenge the validity of the Warrant. 

28.	However if the Court were minded to determine this issue for purpose of these proceedings, the defendant submits there is insufficient evidence to prove that the Warrant was validly issued. Firstly, the Warrant was not issued pursuant to an Information laid before the District Court that charged the defendant with the offence specified in the Warrant. This is evident from the fact that the exact date in “June of 2014” on which the Information was laid is not specified in the body of the Warrant as required by the form of the warrant. Instead the date “16th June 2014” appears on the back sheet of the Warrant. His explanation in Court that these were an oversight on his part should be rejected.  In his first affidavit filed in these proceedings, the second plaintiff did not attach a copy of the Information. This omission shows that no Warrant existed at the time the affidavit was filed in these proceedings.

29.	 The defendant submits on 17th June the defendant applied to set aside the “Warrant” for lack of supporting Information. The Chief Magistrate in her reasons for dismissing the application avoided making any definitive statement affirming that an Information laid before her was the basis for the Warrant. Mr Ralph Saulep and Mr Tabuchi who appeared before the Chief Magistrate for the defendants in those proceedings produced some notes they took of exchanges that took place at the hearing between them and the Chief Magistrate which suggests that the Chief Magistrate made some remarks concerning the lack of an Information. This evidence confirms that there was no Information laid at the time of issue of the Warrant.

30.	The plaintiffs submit the Supreme Court expressed an opinion on the issue, that this Warrant was an order of the Court and validly issued. That opinion is binding on this Court. Mr Egan cited passages from the judgment.  Mr Egan also argued the Warrant accords with the prescribed form in the Arrest Act Regulations. The exact date in June 2014 is missing in the body of the Warrant but it is supplied in the back sheet of the information. The prescribed form of the Warrant does not require a return date to be fixed. It is proper for the Warrant to be addressed to all police officers as provided in s 14 of the Arrest Act and the prescribed form of Warrant in the Arrest Act Regulations.  When the Warrant was applied to be set aside for the reason that there was no information laid to support it, the Chief Magistrate who issued the Warrant heard the application and dismissed it. If there were any other statements made by her in the course of the hearing that conceded the lack of an Information, the District Court records should be produced before this Court to support the assertion and not notes taken by counsel.  The grounds and reasons for issuing the Warrant based on an Information laid before the Court are clearly specified in the Warrant.  The Warrant is clear, unambiguous and enforceable on its own terms. 

31.	The defendant argues that the Supreme Court was not asked to and did not determine issues concerning the validity of the Warrant. It expressed an opinion on the issue and it is for the National Court to make its own findings of fact and apply the opinion of the Supreme Court. 

32.	I appreciate that the validity of the Warrant remains a live issue before the National Court in the OS proceedings which are before another judge. It is for that judge to determine those issues in those proceedings. There may as well be some important legal and factual issues concerning the validity of the Warrant that remain to be conclusively determined by that Court. That other Court will determine for itself that question on the strength of the evidence and material presented before it. That does not preclude this Court from making its own determination on the question of the validity of the Warrant if the issue is fairly litigated at the trial. For if the validity of the Warrant were a precondition for the issue of the Warrant, and I say it is, it would defeat the purpose of these contempt proceedings if this Court were to defer to the findings of the other judge in another proceeding to determine that issue. Whatever determination that this Court makes on the issue remains binding on the parties to this case; it is not binding on the parties to that other case. 

33.	I am satisfied that the issue of the validity of the Warrant has been fairly argued before me with both parties given the opportunity to adduce evidence and raise arguments. Therefore I make findings of fact and law for purposes of these proceedings.

34.	The question of the absence of an Information was first raised in the District Court when the defendant applied to discharge the Warrant. It appears from fragments of the District Court record of proceedings placed before me that the Chief Magistrate was under the mistaken impression that a formal interrogation, arrest and charging would follow the initial arrest on the Warrant that she had issued. The Chief Magistrate, it appears was not specific, with regard to an Information laid before her that provided the basis for the Warrant. This is apparent from the only official court records of the proceedings placed before me in evidence, in several passages from her written ruling. Mr Saulep of counsel for the defence had argued before the Chief Magistrate that at the time the Warrant was issued, there was no Information laid. The Chief Magistrate's ruling on the point appear in the following passages of her ruling: 

              		At para 21:

“Hence, a warrant under this provision is not a discretionary matter but a legal requirement   to facilitate a lawful arrest of a person for the offence of official corruption”. 
                        At para 28:
  In my view, counsel for the State who indicated at the outset his instructions to     consent to the Commissioner Vaki’s Application to set aside the warrant; seem to have gone further than just consenting. In fact, he made submissions in addition to the Applicant’s and raised issues with the validity of the Warrant of Arrest. The thrust of his argument as t why the Warrant of Arrest should be set aside was that there was no information before the court.
                            At para 29 as follows:
“ Although it is also my view that the interest of justice in this particular case outweighs the  respondent’s consent to the orders sought, I must re emphasis  again that this Warrant of Arrest is a legal requirement under s. 87 (2) of the Criminal Code in order for a suspect to be lawfully charged under the offence of Official Corruption. It is not a case where an   accused has been formally charged with an Information formally out before the court...”.
35.	Her Worship did not answer the question directly- Was there an Information laid upon which she issued the Warrant? The same question is before me. Mr Gitua who applied for and obtained the Warrant insists the Information was laid before her Worship at the time the Warrant was applied for and obtained. The defendant has not produced any evidence to counter this evidence except to point out the missing date of the Information on the body of the Warrant. The court records could establish if the Information was in fact laid at that time the Warrant was issued: see s 44 of the Evidence Act. The complete court records are not before this Court. Mr Saulep and Mr Tabuchi, who appeared for interested parties have produced to this Court their notes taken of the proceedings. Neither party have called for the full Court records of the District Court proceedings which could establish the chronology of events with respect to filing and issue of the Information and the Warrant and the notes taken of the proceedings by the Chief Magistrate. Whilst the duty was on the plaintiffs to call for or produce those records as part of discharging its burden of proof, there is that evidentiary burden that the procedural law places on the defendant to substantiate a material point in a defence that could determine a key factual or legal issue in the case that could be favourable to his or her case. I am satisfied that the court records of the proceedings before the Chief Magistrate could assist this Court in determining if an Information was laid to support the issue of the Warrant and that the point is material to the questions concerning the validity of the Warrant raised by the defendant. The plaintiffs have contended all along that the Warrant was validly issued in that it was based on an Information laid before the Chief Magistrate, a copy of which is in evidence. The defendant has failed to discharge his evidentiary burden.

36.	The Chief Magistrate made no mistake that she had issued a Warrant and that it met the requirements of s 87(2) of the Criminal Code. The main requirement for the issue of a Warrant of Arrest under the Arrest Act and the District Courts Act is that there is an Information that was laid before her charging the Prime Minister with an offence under s 87 (2) of the Criminal Code for which a Warrant was applied for and for which she was mandated by that provision to issue a Warrant. The issue of a Warrant is governed by the Arrest Act and the District Courts Act. The laying of an Information charging a suspect with an offence is a precondition to the issue of a Warrant of Arrest for the arrest of a suspect. Arrest Act, s 8; District Courts Act, s 49 (1). It would take a great deal of persuasive evidence to support a finding that the Chief Magistrate did not have before her an Information that she signed off at the time she issued the Warrant that she also signed off at the same time, in close sequence.  

37.	I accept Mr Damaru’s evidence that the omission of the exact date from the space in the body of the Information was due to an oversight and that is cured by the date inserted on the back sheet of the Information. The Information bears the same signature which appears on the Warrant. It is beyond doubt that both signatures belong to the Chief Magistrate Nerrie Eliakim. I also accept Mr Gitua’s evidence that he presented the Information to the Chief Magistrate when he applied for and obtained from the Chief Magistrate the Warrant. In those circumstances I find no reason to doubt the authenticity of the Information bearing the date "12th June 2014" that is in evidence.  

38.	For the foregoing reasons, I find that there was an Information laid before the Chief Magistrate which she signed off at the time she issued the Warrant.

39.	The second and third points raised by the defendant concerning the validity of the Warrant have no merit. The argument that the Warrant is not directed to the defendant and a return date is not fixed in the Warrant are answered by the Arrest Act, s 11 and the form of the Warrant provided in the Arrest Act Regulations. These provisions allow for a Warrant to be directed to "all members of the Police Force" and without specifying a return date for the Warrant.
           Court Order must be clear and unambiguous 

40.	I accept submissions of the plaintiffs that the Warrant is clear and unambiguous. The terms of the Warrant are self-explanatory. The Warrant could be no clearer. The Supreme Court was of the same opinion in SCR 2 & 3 and SCR Rev 5 of 2015; "that the warrant at the centre of these references is in fact and in law, for all intents and purposes, an order of the District Court and must be obeyed by those persons to whom it was directed".

Order must be properly served on the alleged contemnor

41.	In my ruling on the defendant’s no case to answer submission, I ruled that there was no requirement to “serve” the Warrant on the defendant and that it would suffice if the police officer in question knew the terms of the Warrant.  The defendant has not pressed the point in his submissions after the close of the case for the parties. My earlier determination remains.

42.	For purpose of completeness, I make some pertinent findings. A Warrant of Arrest is different from a Court order in a criminal or civil case that prohibits or imposes a mandatory duty on a party in the proceedings or a person that has an interest in the proceedings. Bishop's case is an example of such order.  

43.	A Warrant is issued, on application by a person authorised by law, usually a Police Officer, directing the officer to effect the arrest of a person named in the Warrant and to produce the person to the Court to be dealt with according to law for the offence with which the person is charged in an Information that has been laid before the Court.  The terms of the Warrant and the form of the Warrant is prescribed by statute. The Warrant is not served on the member of the Police Force named in the Warrant, he applies for it and receives it from the Court that issues it. A Warrant is issued to persons named in the Warrant or is addressed to all police officers of the Police Force, who by reason of their duty, receive instructions from the police command to execute the Warrant. It will suffice that the Policeman who is named in the Warrant or the unnamed member of the Police Force having responsibility to execute the Warrant has by reason of his employment come to posses knowledge  or become aware of the existence of the Warrant. It is for this reason that s 11 of the Arrest Act permits a Warrant to direct an authorised officer, named or unnamed, to execute the Warrant. The defendant, both in his capacity as a member of the Police Force and as the incumbent Commissioner was an authorised officer, named or unnamed, to execute the Warrant.  Section 11 of the Arrest states: 

11.	Direction of warrant.
A warrant may be directed to all or any of the following—
(a)	to a named person; or
(b)	to the officer for the time being in charge of police in a particular province or place; or
(c)	to all members of the Police Force.

44.	Section 15 of the Arrest Act which is also relevant states:

15.	Warrant to be carried or produced.
Where a warrant issued under Section 8, 9 or 10 is directed to a person—
(a)	in accordance with Section 11(a) or (b)—he shall, when executing the warrant, carry it with him and produce it on request; or
(b)	by virtue of Section 11(c) only—he shall, on request of the arrested person, produce it as soon as practicable. (underlining is my emphasis)

45.	 Section 51 and s 52 of the District Courts Act complements s 11 and s 15 of the Act. Those Sections  state:

51.	Direction of warrant.
A warrant to apprehend a defendant so that he may answer to an information may be directed to a police officer by name or generally to all police officers in the country without naming them, or to both.

52.	Any police officer may execute warrant.

Where a warrant is directed to all police officers, any police officer may execute the warrant as if it were directed specially to him by name. (underlining is my emphasis)

46.	The defendant, in his capacity as a member of the Police Force and as the incumbent Commissioner of Police was an authorised officer to whom the Warrant was directed under the "To all members of the Police Force". The defendant argued that because the Warrant was not served on him, the warrant was not in his possession to be able to execute it. In my view, the argument is untenable given the clear provisions of s 14 and s 15 of the Arrest Act and s 51 and s 52 of the District Courts Act. Indeed, an unnamed person who falls under the category of "all members of the Police Force" to whom a Warrant is directed, need not have with him in his possession a copy of the Warrant in order for its execution. It suffices that he is aware of the existence of the Warrant and its terms and is able to effect the arrest on the Warrant, and if the person were to request the production of the Warrant, the officer is required to produce it to him "as soon as practicable" after effecting the arrest. For it would be practically difficult for "all members of the Police Force" to whom the Warrant is directed, and there are over 5,000 members of the Police Force in this country, to possess and produce a copy of the Warrant to effect the arrest on a Warrant that they clearly have sufficient information of and are under instruction from their command to carry out the arrest. They can carry out the arrest having been equipped with the necessary information contained in the Warrant, and if the person arrested were to insist on a production of the Warrant, that can be produced to him after the arrest, "as soon as practicable".

Failure to obey the terms of the order

47.	The defendant's failure to effect the arrest as directed of him by the Warrant goes without saying. There was no arrest made because the defendant decided so because he wanted to peruse the CID investigation file and satisfy himself that the case against the PM was watertight. However, the defendant raises a number of grounds upon which he argues there in fact was no breach of the Court order, the first of which is based on the manner of effecting an arrest stipulated in s 14 of the Arrest Act. Section 14 states:

14.	Manner of effecting arrest.
(1)	Where an authorized person intends to make an arrest and the person to be arrested—
(a)	does not resist the arrest and the authorized person is aware that they speak a common language, the authorized person shall at the time of arrest—
(i)	advise the person he is under arrest; and
(ii)	advise the person arrested of the reason for his arrest; and
(iii)	request the person arrested to accompany him to a police station, to a court or place of confinement, as the case may be; or
(b)	does not resist the arrest and the authorized person is aware or ascertains—
(i)	that they do not speak a common language; or
(ii)	that he is unable to speak to the person arrested because the person arrested suffers from some mental or physical defect, the authorized person shall indicate by reasonable means to the person arrested that—
(iii)	he is under arrest, and
(iv)	he is to accompany the authorized person; or
(c)	resists the arrest, whether by force or by refusing to move, or seeks to evade arrest, whether by running away or by other means, the authorized person may, subject to Subsection (2), use all reasonable means to make the arrest.
(2)	Subsection (1)(c) does not justify the use of greater force than is reasonable in the circumstances.

48.	The manner of effecting the arrest under this provision is quiet simple. The police officer to whom the Warrant is directed approaches the suspect named in the Warrant (the person named in the Warrant to  be arrested),  identifies himself to the person, shows the Warrant and explains it and tells the suspect that he is under arrest for the reason stated in the Warrant. The Police Officer then asks the suspect to accompany him, there and then, to the Court (or a   Police Station or a place of confinement specified in the Warrant) to be dealt with according to law. If the suspect abides by the request, the arrest is complete. If the suspect does not abide by the request, by whatever means and for whatever reason, that may amount to resisting arrest in which case the  police  officer is empowered to use all reasonable and necessary force to physically apprehend the person to effect the arrest, and take him to the Court.  

49.	The dispute between the parties is with regard to whether an arrest was made on 16th June 2014. The issue is whether an arrest was effected on 16th June 2014. The evidence of what transpired on 16th June 2014 when the purported arrest took place was given by Chief Insp. Gitua (second plaintiff) and Assistant Police Commissioner Thomas Elu.  Chief Insp. Gitua deposed in his affidavit sworn on 14th July 2014 (see Court Exhibit ‘K”) that on 12th June 2014, he applied for and obtained a Warrant of Arrest from Chief Magistrate Nerrie Eliakim at the Port Moresby District Court.  He was accompanied by ACP Elu at the time of the application. On 16th June 2014, he, accompanied by ACP Elu and Chief Superintendent Andrew Guinness, set out to “serve the warrant of arrest on the Prime Minister. The warrant was served on him at around 9:30am at his private business office at Konedobu, NCD”.  ACP  Elu in his affidavit sworn 15th July 2014 (Court Exhibit “N”) said “I accompanied Timothy Gitua and Chief Superintendant Andrew Guinness and effected service of the warrant of arrest on the Prime Minister. The warrant was served on him at around 9:30am at his private business office at Konedobu, NCD. We explained to him the nature of the warrant and out of respect we delivered the former Commissioner Kulunga’s letter inviting him to attend a record of interview at the Commissioner’s office.” Neither Chief Superintendant Jim Andrews did not depose to any affidavit. Neither Chief Insp. Gitua nor ACP Elu gave an account of what actually was said and done by them when the Warrant was “served” on  the PM.

50.	In his evidence under cross examination and re-examination, Chief Insp. Gitua explained what transpired between them on the 16th of June 2015 when the warrant was served on the PM. It is necessary to set out the full text of his answers. I have for reason of convenience reproduced his evidence in Appendix  G.  It is apparent from his evidence that he gave a conflicting, confusing, or distorted account with regard to whether or not he effected the arrest. In his affidavit, he did not say if he went to arrest the PM or went to “serve” the Warrant only. In Court he said he went to serve the Warrant in order to get him to attend at the Police Station for a Record of Interview to be conducted, later he said he went to arrest him and he arrested him, then he said he did not arrest him because the PM wanted to come to the office voluntarily. He said if he known that the PM was not going to come to the police station voluntarily, he would have physically effected the arrest there and then.  He did not make any mention of how he arrested him or contemplated effecting arrest in accordance with the manner of arrest set out in s 14 of the Arrest Act. 

51.	The defendant argues that an arrest was made by Chief Inspector Gitua, ACP Elu and Chief Supt. Jim Andrews, when equipped with the Warrant, they went to the PM’s private business office at Konedobu on the morning of 16th June 2014.  A Warrant had been issued. It directed the plaintiffs to arrest the PM. They produced the Warrant to the PM. The Police officers went to the PM to arrest him. The PM knew he was being arrested.  He was asked to accompany them to the Police Headquarters. When he refused to accompany them there and then and told them he would voluntarily come later, that amounted to resistance of the arrest. They failed in their duty to apprehend the PM. The Warrant had been executed, the arrest having been completed, there remained no live Warrant for the defendant to execute. The physical arrest was not effected at that time by these three police officers, and it is them who should be punished for contempt; not the defendant. 

52.	The plaintiffs contend that no arrest was effected at that time because the Warrant was merely “served” on the PM and the PM told them he would voluntarily turn up at the Police Station in the afternoon of that day. The PM was never seized or touched with a view to restrain his arrest. The PM despite agreeing to present himself to the Boroko Police Station, never did so. No arrest took place on 16th June. The subsequent actions of the PM in seeking to restrain his arrest after 16th June 2014 constitutes an admission on his part that he had never been arrested on 16 June 2014. The PM, by failing to submit himself to the compulsion of arrest, as a matter of law, was never arrested.  In the circumstances, the manner of arrest set out in s 14 of the Arrest Act was not complied with. The Warrant was not executed and no arrest was effected.  

53.	The plaintiffs also argue that when the PM failed to turn up voluntarily at the Police Headquarters, efforts to apprehend him were prevented by the defendant by providing escort policemen to guard the PM to prevent the arrest from taking place. The defendant was appointed on the same day after the failed arrest by the plaintiffs under the command of the defendant’s predecessor Commissioner Toami Kulunga. The defendant took immediate steps to protect the PM and prevent or suppress any fresh attempts by the plaintiffs to apprehend the PM.  The defendant himself did not want to arrest the PM from the time he was appointed Commissioner. His intentions that he was not prepared to arrest the PM were made known in various ways. He deployed policemen to escort and guard the PM to prevent the PM’s arrest. He consented to a stay order in OS No. 115 of 2014, commenced by the PM challenging the issue of the Warrant. In District Court, the defendant applied to discharge the Information and the Warrant.   In OS No. 485 (JR) of 2014, OS (JR) No. 455 of 2014 Geoffrey Vaki, Police Commissioner v Nerrie Eliakim, Chief Magistrate, The Hon  Peter O’Neill, Prime Minister of Papua New Guinea and The Independent State of Papua New Guinea, the defendant commenced judicial review proceedings challenging the validity of the Warrant. Then on 2nd July, after the stay order in OS No. 115 of 2014 was discharged, he held a press Conference where he declared that he was in no hurry to arrest the PM, that the arrest would not take place anytime soon because he needed to study the investigation file to satisfy himself that there was a watertight case against the PM before he arrested him. Further he engaged policemen to guard the PM during the entire period to suppress or prevent the arrest by the plaintiffs and other members of the Police Force. These and other actions of the defendant constituted a failure to obey the terms of the Court order.  

54.	 The defendant contends he had no intention of disobeying the Court order. He would carry out the arrest after satisfying himself from studying the investigation file that the case against the PM was watertight. He requested the CID investigation file from the plaintiffs which the plaintiffs refused. He sought legal advice from lawyer Mr Greg Sheppard and based on that advice, he took actions to file court proceedings to vary or discharge the Court order. In these circumstances, he did not fail to obey the order. 

55.	The defendant contends it is normal protocol for the Police Commissioner to provide security escort to protect government VIPs such as the Head of State and the Prime Minister, by engaging members of the National Security Unit of the Police Force (NSU). Those policemen assigned to the PM were done under normal arrangements and not for the purpose of thwarting any arrest.

56.	 It is clear from these evidence that although Mr Gitua and Mr Elu and Det.Chief Supt Damaru were clear in their own minds of the purpose of the Warrant  - that they had obtained an order from the District Court to arrest the Prime Minister - confusion reigned in their minds as to whether the Warrant was a means of securing attendance of the PM for a police interview which would lead to a formal arrest and charge by the laying of a formal Information before the District Court. The plaintiffs understood their task to be to serve the Warrant on the PM to require his attendance at the Police Station for a police interview for the offence specified in the Warrant. When the PM told them he would voluntarily attend, that met their expectation. They had a confused understanding of the manner of effecting an arrest prescribed by s 14 of the Arrest Act. They went there to serve, unprepared for the eventuality that if the PM were to refuse to accompany them, that would amount to resistance and reasonable force would be applied there and then to complete the arrest. Even in Court Mr Gitua laboured to bring the actions he took within the arrest process set out in s14 of the Arrest Act. He misunderstood or misinterpreted the purpose of the Warrant which was, a command to arrest the PM and bring him to the Court to be dealt with for the offence charged in the Information that had been laid based on which the Warrant was issued, “to be dealt with according to law”.    I find that the arrest process set out in s14 was commenced but not properly and completed. Hence no arrest was effected on the PM on the morning of 16th June 2014. 

57.	The plaintiffs contend that after the service of the Warrant on the PM and when the PM failed to turn up at the Police Station, the defendant suppressed or prevented the execution of the Warrant and that no arrest was carried out by the defendant or by officers under the defendant’s instruction. The defendant refused to arrest the PM. The defendant made his intention known at a press conference held 2 July 2014. 
58.	  I find on the evidence that the defendant refused to effect the arrest anytime soon because he wanted to access the CID investigation file and make his own assessment on whether the case against the PM was watertight. The defendant wanted the investigation files to be handed over for him by the plaintiffs to make his own assessment over the case and to decide whether the Arrest warrant should be executed, but the files were never delivered to him.  

59.	Two issues arise from Charge No. 1. The first is whether the defendant himself or by officers under his instructions, failed to effect arrest on the PM. The second is in the alternative, whether the defendant prevented or provided no support or instruction to the plaintiffs to execute the warrant. The second question is duplicitous and pleading in the alternative. These pleadings are struck out or dismissed for those reasons.

60.	With regard to the first issue, I find that the defendant's position was made clear all along that he would not arrest the PM until he had a watertight case against the PM based on his assessment of the CID investigation file. That file also contained the original(s) of the Warrant. The file was in the custody of the plaintiffs, a situation that has remained at the time of trial. However it is within his power to call for the Warrant, either its original or copy of it. I am satisfied that he knew the existence of the Warrant and its terms because the attempted execution of the Warrant under the command of his predecessor was the reason for his appointment as Commissioner. He became aware of the Warrant as from 17th June 2014 when he instructed his lawyer to consent to the stay order in OS No. 115 of 2014. 

61.	The question remains:  Did the defendant arrest the PM on the Warrant?  He did nothing not because he chose not to effect the arrest. Even if he had the CID investigation file, it was unlikely that he would have executed the Warrant given that on the 17th of June, he consented to a stay of the Warrant and made application in the District Court unsuccessfully to set aside the Warrant and pursued another application before the District Court to set aside the Warrant. Then more tellingly, on 2nd July 2015, he affirmed his intentions all along, that he would not arrest the PM anytime soon. It is not disputed that the defendant was reported as saying that “he won’t be arresting the Prime Minister Peter O’Neill anytime soon even though a court has ruled the arrest warrant should stand”; that “any moves to arrest Mr O’Neill on corruption charges are long way down the road”; and that “the case requires more investigations to make sure it is watertight and even then, the Prime Minister would be invited to give an interview to police”. 

62.	It is true that he was not named as the officer to whom the Warrant was directed, however his position, as I ruled on the no case submission, was covered by the Warrant under the broad heading “All officers of the PNG Police Force”. As long as the Warrant remained in force, it fell on all members of the Police Force, the defendant included, to execute it there and then and not question it and withhold its execution at their own discretion. It is not only his inaction in effecting the arrest but his deliberate refusal to execute the Warrant when there was no legal impediment to prevent the arrest in the period in question, that amounts to an act of disobedience.  

63.	In SCR No. 2 & 3 2014 & SC Rev No.  5 of 2014, the Supreme Court affirmed the Commissioner’s control over the Police Force. That has always been the Constitutional position of the Commissioner’s Constitutional role and the Supreme Court was saying nothing new. How the Commissioner positioned himself to take control over elements of the Police Force including the CID,  to effect the arrest is matter for him as the head of the Force.  In the present case, the fact remained that the CID staff and the investigation file on this matter held by the plaintiffs remained within his control and reach. The arrest had to be carried out by him or as commanded by him. By 2nd July 2014, he knew full well the Warrant that remained unexecuted. But he was bent on not executing it, not for the reason that the warrant was not in his possession, but for other reasons. He need not have in his physical custody the police file and the warrant to arrest the PM on the warrant: As a person covered by s 11 (c) of the Arrest Act combined with s 15(b) of the Arrest Act, and given the service of the warrant on the PM on 16th June 2014, he did not have to have in his possession the warrant to execute it on the PM.

64.	For those reasons, I find that the defendant failed to execute the Warrant as directed by the Warrant. 

65.	I accept the defendant’s submission that the provision of policemen from the NSU did not amount to an attempt to prevent police from effecting the arrest for reasons given by the defendant. Those policemen were assigned to provide escort and security protection under normal police protocol arrangements. 

Disobedience must be intentional, wilful or deliberate

66.	 It has been long held that disobedience of an order must be intentional, wilful or deliberate before an alleged contemnor can be punished for contempt. In Kwimberi v The Independent State of Papua New Guinea (1998) SC545, it was held that the question whether a disobedient act was intentional, wilful or deliberate may be established by express words of intention used by the person; or, intention  may be inferred from the conduct of the person. Intention, whether
express or implied, is not confined to actions which may be strictly categorised as “intentional, wilful or deliberate” in their ordinary meaning. In Kwimberi, it was held that even gross carelessness or gross negligence on the part of a lawyer in failing to attend court at a scheduled Court hearing, may by inference, lead to a conclusion that the act was deliberate or intentional.  This reasoning found support in the Supreme Court in Toami Kulunga v Geoffrey Vaki  re charges of contempt re Alfred Manase, Margaret Parua and Sam Bonner (2014) SC1389.  The full Court said:
“50. We find that the manner in which the draft consent order was attempted to be drawn to the attention of the Chief Justice on 5 June 2014 was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process and disrespectful of  the Court and Chief Justice. The effect of such a course of conduct could only be to interfere with the Chief Justice's decision, to present a real risk of interference with the due administration of justice and to, in fact, interfere with that process.
“51. At this juncture we remind ourselves of the classic statement of the elements of contempt of  court made by the Supreme Court in Andrew Kwimberi v The State (1998) SC545: 
contempt of court  is a criminal offence, the elements of which are any act or omission, committed in the face of the  court or outside court, which is intended to or calculated to or  likely to interfere or obstruct the fair or due administration of justice.
52. We are satisfied that Mr Manase committed acts and omissions outside court that were likely to   interfere with and obstruct the due administration of justice. He is guilty of contempt of the Supreme Court.” (my emphasis)

67.	 The defendant drew a distinction between mandatory orders and prohibition orders where in the case of the former,  there are exceptions to the general rule that an order must be complied even when a person were to have misgivings about the correctness or validity of the order:  Hatdkinson v Hadkinson (1952) All E.R. 567 adopted and applied in Bishop’s case. It is an exception that a person who is aggrieved by a Court order is entitled to apply to the Court to discharge stay, vary or discharge the order; and, in the period when that is being done, no contempt is committed:  Chuck v Cremer (1846) 1         Coop. Temp. Ctt 205, Andrew Daiva & Ome Ome Forests v Lawrence Pukali & Ors (2002) N 2289. 

68.	He submitted that in the relevant period when the defendant, PM and other interested persons and Constitutional authorities took steps to bring proceedings before the Supreme Court, the National Court and the District Court challenging the validity of the Warrant, no contempt was committed. Because in those circumstances, it cannot be said that the failure to comply with the order was intentional, wilful or deliberate.

69.	Mr Egan submitted the defendant questioned the court order and took steps to set aside the court order in the District Court which failed. In the other OS proceedings and Constitutional references, those proceedings were set in motion but the orders remained in force and as long as the order remained in force, it was imperative that it be enforced by the defendant. It was not for the defendant to take it upon himself to question the order and refuse to enforce it: Issacs v Robertson (185)AC 97, Spokes v Banbury Board of Health Page Wood VC (1865) LR 1 Eq 42 at 48-49, Lade & Co Pty Ltd v Black (2006) 2 Qd R 544 at 551.

70.	In SCR No. 2 & 3 2014 & SC Rev No.  5 of 2014, the Supreme Court recognized that a person who is aggrieved by a decision of the District Court in issuing a Warrant of Arrest may seek judicial review of that decision in the National Court. The Supreme Court was not referred any question and did not express any opinion on the question whether a member of the Police Force to whom a Warrant is directed or a person who is the subject of the Warrant may be found guilty of contempt in the period the judicial review proceedings are  being mounted when there is no legal impediment that stands in the way of an arrest. It is for this Court to determine that issue.  

71.	The defendant’s submission does not differentiate between an order issued by a Court that imposes a mandatory duty on a person to do something and that person is a party in the proceedings, usually in a civil proceeding; and an order issued by a Court in a criminal case.   The English and PNG cases cited by Mr Griffin in support of his argument are cases of the former kind. The person who is a party or any other person having direct interest in the subject matter of the proceedings is ordered to do a thing or refrain from doing a thing. I can understand the reason that if the person ordered to do something has issues with the validity of the order, he is entitled to apply to the court to stay, vary or discharge it, before the order is enforced by those officers authorised by law to enforce Court orders. The principles in those cases have little or no application to a situation where a member of the Police Force is directed to execute the Warrant. It is not for the member of the Police Force who is directed by the Warrant, having obtained the Warrant in the first place, to question it himself directly or through his superiors. The person to be arrested is different, it is up to that person to raise his own issues about the validity of the Warrant. The Policeman’s job is to effect the arrest as directed by the Warrant there and then. The member of the Police Force should not act as a judge and question the Warrant and stop its enforcement. He is intentionally, deliberately and wilfully disobeying the order to arrest,  if he, for whatever reason, buys time and delays, procrastinates and or completely refuses to execute the Warrant. The policeman’s obedience to the Court order lies in the compulsion of the order and the law that entrusts him with the responsibility to enforce the Court order. 
 
72.	 An officer to whom the Warrant is directed, a police officer, may hold some misgivings about the Warrant he has obtained or that he has been directed to enforce a Warrant obtained by another officer. The police officer may contemplate commencing Court proceedings to challenge the Warrant. This is the very situation that the principles developed by the Courts are designed to discourage or prevent. Having obtained the Warrant, it is not for the police officer to question the Warrant. It is for the person the subject of the Warrant to take issue with the Warrant. The Police Officer’s duty is to obey the order. Until he is served with an order of a Court of competent jurisdiction staying, varying or discharging the Warrant, it is his duty to obey the terms of the Warrant.

73.	The duty placed on a police officer to whom a Court order is directed is imposed by law. Apart from principles established by the Courts found in cases from both within and outside of this jurisdiction cited to me by both counsel, the duty to enforce the Warrant of Arrest is imposed by statute.

74.	Section 274 of the District Courts Act is very specific as to this command with regard to Warrants issued by that Court: The written law on the duty of members of the Police Force to execute Warrants issued by the District Court or any other Court for that matter in Papua New Guinea is clear and sufficient.  Apart from a long list of cases from both within and outside of this jurisdiction cited to me by both counsel,  s 274 of the District Court Act is very specific as to this command with regard to warrants issued by that court:

“S 274. DUTY OF MEMBERS OF POLICE FORCE

All members of the Police Force shall obey the warrants, orders and directions of Magistrates granted, given or done, and shall perform their several offices and duties in respect of those offices under the pains and penalties to which a member of the Police  Force is liable for neglect of duty”.

75.	A member of the Police Force who is ordered or directed to arrest a person and bring him to a court of law fails to do so, whatever the reason may be, is liable to the “pains and penalties” to which that failure is attached; and punishment for disobedient conduct has traditionally at law, always lies in the Court’s power to punish disobedient conduct of members of the Police Force, through the offence commonly known as contempt of court. Clearly, punishment for contempt comes within the expression “under the pains and penalties to which a member of the Police Force is liable for neglect of duty” appearing in s 274 of the District Court Act.

76.	If a person were aggrieved by an arrest effected on a questionable Warrant of Arrest or the manner in which the arrest is effected, his remedy lies in damages. Section 57 of the Constitution provides compensatory and injunctive relief for any person whose arrest is effected in breach of his or her Constitutional rights in terms of breaches of the right to protection of the law and other relevant rights that may be infringed in the process of effecting the arrest. Section 26 of the Arrest Act also gives an aggrieved person recourse to compensatory relief. Section 26 states: 

26.	Civil remedy for wrongful exercise of powers conferred by this Act.
(1)	A person who—
(a)	exercises a power to make an arrest to which this Act applies in breach of this Act; or
(b)	exercises a power conferred by this Act, other than a power of arrest, in breach of this Act; or
(c)	performs a duty imposed by this Act in breach of this Act; or
(d)	fails or refuses to perform a duty imposed by this Act,
may be liable in damages to the person aggrieved by that breach.
(2)	An action under Subsection (1) may be brought—
(a)	in the National Court; or
(b)	in a District Court, and in the case of a District Court, the court has jurisdiction within the limits prescribed by Section 21 of the District Courts Act.
(3)	In an action under Subsection (1), a court may award exemplary damages.
(4)	The provisions of this section are in addition to and not in derogation of the provisions of the Constitution or any other law dealing with the enforcement of any constitutional right, power, duty, restriction or prohibition.

77.	In the present case, the defendant questioned the Warrant and commenced his own judicial proceedings challenging the Warrant or joined forces in proceedings commenced by the PM challenging the warrant. Whilst those proceedings were on foot during the period in question, there were no legal impediment that prevented the defendant from enforcing the Warrant. He was under a duty to enforce the Warrant. By his own conduct, he placed himself in a difficult situation where he compromised his professional independence and judgment. That goes to show that the disobedience of the Court order was deliberate, wilful and intentional.

78.	The defendant submits even if he committed some error,  his conduct falls short of being “so serious, manifest or egregious as to interfere with the administration of justice” (SR 2,3 & 5 of 2014, page 51). I am of the view that this is not a case of misunderstanding of the warrant or casual or accidental and unintentional acts: Fairclough v Manchester Ship Canal Co & Lade & Co Pty Ltd v Black (2006) 2 Qd R 531. He chose not to effect the arrest. The defendant's refusal to effect the arrest was deliberate, intentional and wilful. 

79.	The defendant on his part exhibited no mistakes or misapprehensions about the terms of the Warrant and what was required of him to do in obedience to its terms. He knew from the circumstances of his appointment immediately after the attempted arrest earlier in the day on 16th June 2014 that there was in existence an order for the arrest of the PM that day and immediately after he took over command, he decided not to arrest the PM, a position he consistently maintained through to 2nd July 2015, when he publicly stated that he intended not to execute the warrant anytime soon. 

80.	Whether the defendant understood the Warrant to merely facilitate a police interview with formal charges to follow, or understood the Warrant to be conclusive, is in my view, irrelevant to the question whether the defendant deliberately, wilfully or intentionally disobeyed the Court order. Those are matters that attached to the reasons for intentional, wilful or deliberate disobedience of a court order and relevant for purposes of sentence than criminal culpability.  

81.	The purpose of a Warrant issued for purposes of s 87 of the Criminal Code, though not relevant to the issue of guilt, is, I believe an area of law that is new and one that I should offer some remarks for purpose of the development of law in this area. To my mind, anyone, lawyers included, even the learned of them, could easily misunderstand the purpose of the Warrant issued under the Arrest Act for purpose of s 87 (2) of the Criminal Code. 

82.	It is clear to me that not one person got the purpose of this Warrant right. The defendant's predecessor, former Commissioner Kulunga required the Warrant to arrest the PM to be to secure his attendance at the police station to be interrogated, arrested and charged. The plaintiffs were under the same impression. They went to "serve" the Warrant to secure his attendance at the police station to be interviewed, arrested and charged. The defendant was under the same impression. He thought he had the discretion to decide whether or not to arrest the PM and he required to study the CID investigation file to satisfy himself that the case against the PM was watertight before he arrested the PM.

83.	The Chief Magistrate was also under the mistaken impression that a formal interrogation, arrest and charging would follow and a formal Information would be laid. She misunderstood the purpose of the Information that had been laid before her and the purpose of the Warrant that she had issued.

84.	The misunderstanding stems from the wording of s 87 (2) of the Criminal Code. Section 87(2) of the Criminal Code states:

"Division 2.- Corruption and Abuse of Office

87.	Official corruption.
(1)	A person who—
(a)	being—
(i)	employed in the Public Service, or the holder of any public office; and
(ii)	charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),
corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or
(b)	corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,
is guilty of a crime.
Penalty:	Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.
(2)	A person shall not be arrested without warrant for an offence against Subsection (1)." (underlining is my emphasis)

85.	Section 8 of the Arrest Act states:

8.	Issue of warrant by a court other than a Local Court.
Where an information is laid before a court, other than a Local Court, that there are reasonable grounds for believing—
(a)	that a person has committed an offence within the country; and
(b)	that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary—
(i)	to ensure his appearance in court to answer a charge for the offence; or
(ii)	to prevent—
(A)	the continuation or repetition of the offence; or
(B)	the commission of a further offence; or
(iii)	to preserve the safety or welfare of a member of the public or of the person,
the court may issue a warrant for the arrest of the person. (underlining is my emphasis)

86.	 Section 49 (1) of the District Courts Act states:

PART III.- ARREST WARRANTS

49.	Issue of warrants of arrest.
(1)	Where an information is laid before a Magistrate—
(a)	that a person is suspected of having committed an indictable offence in the country; or
(b)	that a person charged with having committed an indictable offence of which cognizance may be taken by the courts of Papua New Guinea is suspected of being in the country,
the Magistrate may, subject to Subsection (2), issue his warrant for the arrest of that person and cause him to be brought before a Court to answer to the information and to be further dealt with according to law.
(2)	In a case referred to in Subsection (1), the Magistrate, if he thinks fit, instead of issuing his warrant in the first instance for the arrest of the person charged, may proceed by summons and issue a summons against the person charged.
(3)	Notwithstanding the issue of a summons, a Magistrate may issue his warrant at any time before or after the time specified in the summons for the appearance of the defendant.(underlining is my emphasis)

87.	 The words "arrest", "warrant" and "offence" appearing in s 87(2) of the Criminal Code are not defined in the Criminal Code. The definitions are supplied by other relevant statutes. An arrest must mean an arrest under the Arrest Act, s 8; and District Courts Act, s 49 (1) and s 51. An offence means an indictable offence under s 87(2) of the Criminal Code for which an Information is laid under s 49(1) of the District Courts Act. A Warrant must mean a Warrant issued under Arrest Act, s 8 and District Courts Act, s 49(1)(a).

88.	In the normal course of things, an Information and a Warrant would not have been laid and issued respectively without probable cause, established by the police in their own investigations, conducted without the need for any assistance from the suspect under investigations. The charge laid by an Information is or should be the upshot of such investigations. The Court issues the Warrant directing the arrest of the suspect and for that person to be brought to Court to answer the charge laid in the Information. Further police investigations following the arrest and court appearances may continue but under the management of the case by the Court.

89.	In the present case, I am satisfied and do find that the Information laid before the Chief Magistrate upon which the Warrant was issued, was laid under the District Courts Act, s 49 (1) (a) and under Arrest Act, s 8 (a), and for all intention and purposes an Information laid and a Warrant issued for the purpose of s 87(2) of the Criminal Code.

By such conduct, it presented a real risk of interference with the due administration of justice or interfered with the due administration of justice

90.	I am satisfied that the disobedience constituted an affront to the administration of justice, interfered in the administration of justice,  brought public respect for the justice system into question and disrepute and undermined the rule of law. The defendant's actions in refusing to execute the Warrant and to bring the PM to the District Court to be dealt with according to law prevented the PM from being dealt with for an offence with which he had been charged by Information. The defendant's actions raised serious imputations in the minds of the public that the Police Commissioner was the ultimate arbitrator or adjudicator of the Warrant of Arrest issued by the Courts as to whether or not it should be enforced or at all and brought to the District Court and its judicial process into disrepute and embarrassment. 

Conclusion 

91.	I have considered all the matters and concluded that the Warrant was an order of the Court, the Warrant was valid, the Warrant is clear and unambiguous, the defendant had full knowledge of the terms of the Warrant, that he knew that as the Commissioner of Police and a member of the Police Force he was directed by the Warrant to effect the arrest of the PM, that he disobeyed the Court order and the disobedience was intentional. I am satisfied that the disobedience constituted an affront to the administration of justice, interfered in the administration of justice, brought public respect for the justice system into question and disrepute and undermined the rule of law. 

Proof beyond reasonable doubt 

92.	In all circumstances, I am satisfied that the plaintiffs have proven, each of the six elements of the first charge of contempt and convict him accordingly. The particulars of contempt for which this conviction is based are these:

Charge No. 1:
Since taking office as Commissioner of Police on 16th June 2014, though you assumed full control of the police force, you have deliberately and wilfully –taken no action, or alternatively you have prevented or provided no support or instruction to the First and Second Plaintiffs/Applicants for the execution of the warrant of arrest against Prime Minister, contrary to the warrant of arrest  issued by order of the District Court on 12th June 2014.
              
              Particulars
a.	Between 16 June 2014 and 18 June 2014, the Defendant acted in contempt of the order of the District Court made on 12 June 2014 for the arrest of the Prime Minister    pursuant   to    Warrant   For    Arrest   issued    that   day    by:

I.	Instructing Paul Mawa, a lawyer, on 17 June 2014, to consent to an order OS 115 of 2014that the arrest of the Prime Minister be restrained in circumstances where the order of the District Court made on 12 June 2014 for the arrest of the Prime Minister had not                                                                   at that time   relevantly been set aside, quashed or varid.1

II.	Failing to take any action to effect the arrest of the Prime Minister, including the failure to order police officers to effect such arrest , in circumstances where he had publicly stated on 1 July 2014 that:

1.	He wouldn’t be arresting the Prime Minister Peter O’Neill “anytime soon”.
2.	Any moves to arrest the Prime Minister on corruption charges were “a long way down the road”.
3.	The case required more investigation to make sure it was “watertight” and that even the Prime Minister would be invited to give an interview to police.3

93.	I find that paragraph A IV of the Better and Further Particulars  is inconsistent with the terms of the Warrant, which was to arrest and bring the PM to court to be dealt with according to law, not to take him to the police station to be interviewed, arrested and charged. 

94.	I do not find the particulars under A II  of the Better and Further Particulars proved because a lawyer’s consent to a proposed court consent order is a matter for the Court before whom the consent order to deal with and punish parties for contempt of itself

Charge No. 2:

95.	 I affirm my earlier conclusion that I accept the defendant’s evidence that by the policemen that he organised for the PM were part of normal security arrangements provided by the Police Force to important people such as the PM. I am not satisfied on the evidence that these limited number of policemen would have repelled any arrest by the Police Force with its might. I find him not guilty on this count.

Charge No 4:

96.	 For the same reasons I have given in relation to the first charge, I find the defendant guilty of the second charge and convict him accordingly.

97.	The charge and particulars of that charge on which the conviction is based are the following:

Charge No.4

On 2 July 2014, you intentionally and wilfully, despite there being no legal impediments to the implementation or execution of the warrant of arrest ,-made public statements in the media to the effect that you would not implement the order of the District Court made on 12 June 2014 for the arrest of PM O’Neill,   such order being a valid court order for the issue of a warrant of arrest, in circumstances where such statements constituted evidence of your intention to prevent and frustrate the implementation or execution of the said court order.
In particular, the ABC News Website ( www.abc.net.au) quoted you as you saying, “he won’t be arresting Prime Minister O’Neill anytime soon, even though a court order has ruled the arrest of warrant should stand.” Further it quotes you as saying, “…any moves to arrest Mr. O’Neill on corruption charges are long way down the road.”

             Particulars - Charge No. 4:

a.	Between 16 June 2014 and 18 July 2014, the Defendant acted in contempt of the Order of the District Court  made on 12 July 2014 for the arrest of the Prime Minister pursuant to Warrant For Arrest issued  that day by:

i.	Failing to take any action to effect the arrest of the Prime Minister, including the failure to order police officers to effect such arrest, in circumstances where he had publicly stated  on 1 July 2014 that:

1.	  He wouldn’t be arresting the Prime Minister Peter O’Neill “anytime soon”.
2.	Any moves to arrest the Prime Minister on corruption charges were  “a long way down the road”
3.	The case required more investigation to make sure it is “watertight” and that even the Prime Minister would be  invited to give an interview to police.8

ii.	Failing to take any action to effect the arrest of the Prime Minister, including the failure to order police officers to effect such arrest, in circumstances where he had publicly stated on 2 July 2014 that he would not enforce the execution of the warrant of arrest against the Prime Minister until after he had ensured that the case against the Prime Minister was “watertight”.10

iii.	Failing to take any action to effect the arrest of the Prime Minister, including the failure to order police officers to effect such arrest, in circumstances where he had publicly stated on 1 July 2014 that he would not order that the arrest of the Prime Minister be effected until after he had independently assessed the investigation. 11

CONCLUSION

98.	For the foregoing reasons, I find the defendant guilty on the first and fourth counts of contempt and return a guilty verdict on each count. I will now hear the parties on penalty.
__________________________________________________________
Jema Lawyers: Lawyer or the Plaintiffs         
Young & Williams: Lawyer for the Defendant    

[PacLII Editorial Note: Appendices referred to in Judgment can be viewed in the PDF version, which can be downloaded at the top of this page.]