Pala v Bidar [2015] PGSC 55; SC1465 (28 October 2015)

SC1465

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 26 OF 2015

BETWEEN:

HONOURABLE ANO PALA – As Minister for Justice & Attorney General
Appellant

AND:

HIS WORSHIP COSMAS BIDAR – Presiding Magistrate
First Respondent

AND:

GEOFFREY VAKI – Commissioner of Police
Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Manuhu, J
2015: 27th & 28th October

APPEAL – Warrant of Arrest – Application to restrain arrest – Relevant considerations – Personal interest – Public interest – Civil procedure – Criminal procedure.

Cases cited:
Eremas Wartoto v The State (2015) SC1411
Rimbink Pato v Anthony Manjin (1999) SC62
Wari Mugining v R [1975] PNGLR 352

Counsel:
R. Saulep, for the Appellant.
C. Wara, for the Second Respondent.

28th October, 2015

1. MANUHU, J: This is an application by the Appellant made pursuant to Section 5 (1) (b) of the Supreme Court Act 1975 for orders to restrain the Second Respondent and Royal Papua New Guinea Constabulary, its employees, agents or servants from arresting him.

2. A Warrant of Arrest dated 11 July 2014 (the Warrant) is the reason for the application for judicial review in the National Court which was dismissed. The Warrant was issued in conjunction with an Information laid by Mathew Damaru on 17 June 2014 with a charge pursuant to section 128 of the Criminal Code that the Appellant conspired with Peter O'Neil, Geoffrey Vaki, James Marape, Paul Mawa, Robert Leo, Sam Bonner, Ralph Saulep and Tiffany Twivey to defeat the course of justice in Paul Paraka investigations by filing proceedings OS No 115 of 2014 Hon James Marape & Hon Peter O'Neil v Paul Paraka trading as Paul Paraka Lawyers (OS proceeding) to legitimise bills paid to Paul Paraka Lawyers by way of declaration of taxation.

3. The judicial review proceeding was dismissed by Makail J on the basis that as the Warrant had not been served it was premature to seek a review. The Appellant has appealed against that ruling and seeks to restrain execution of the Warrant pending determination of the appeal.

4. It was submitted that the Warrant is invalid because the OS proceeding was instituted by Hon Marape in March 2014, 3 months before the Appellant was appointed Minister for Justice and Attorney General on or around 17 June 2014. Consequently, if he is allowed to be arrested when the appeal is still pending, he would be deprived of the right to test the validity of the warrant. There is therefore a serious question to be tried.

5. It was submitted secondly that an arrest on him as Attorney General of a nation would be devastating not just for him as an elected leader but as Chief Legal Advisor to the Government. Thus, damages would not be an adequate remedy.

6. Thirdly, it was submitted that the balance of convenience favours a grant of the restraining orders. While the appeal is on foot, he is vulnerable to possible arrest by police.

7. Furthermore, the Appellant has made an undertaking as to damages.

8. I have considered the submission and am of the view that the application is without merit. In the context of this case, the power to review may be exercised if the validity of the Warrant is being questioned. However, the substance of the Appellant's argument against the Warrant is not on want of form or want of procedural compliance. The argument that the Appellant was not Minister at the relevant time and could not have conspired as alleged relates to the merits of the intended charge. Such an issue is properly left to the courts in charge of the criminal process to determine against the evidence, which evidence was not before the court below and would not be before the Supreme Court when the appeal is heard.

9. Secondly, it is in the public interest that the powers of police to investigate and arrest a person should not be interfered with. See Rimbink Pato v Anthony Manjin (1999) SC62. It is in the public interest for a person wanted by police to be apprehended promptly while evidence is still fresh. The nature of the remedy the Appellant seeks to derive from this appeal is personal in nature. The criminal process, which is set in motion by a police officer arresting a person, to when the Supreme Court considers a criminal appeal, is where public interest is more prominent and, as a general rule, must always override personal interest.

10. Thirdly, the Constitution contains provisions that accord an accused person the right to challenge the validity of a warrant, challenge the evidence, and there is a right of appeal and review. See Eremas Wartoto v The State (2015) SC1411. Without utilising these options, it was inappropriate for the Appellant to seek judicial review in the first instance.

11. Furthermore, it has to be understood that civil and criminal practice and procedures are not the same. In a judicial review, where the standard of proof is on the balance of probabilities, failure to comply with procedural requirements results in the act or decision in question being declared null and void. In the criminal process, the standard of proof is higher and, even where there has been a procedural breach; the ultimate test is whether there has been a miscarriage of justice. See Wari Mugining v R [1975] PNGLR 352, for instance.

12. In other words, if we subject the same set of facts to the two processes, we would have two different outcomes. Essentially, you cannot properly take a complaint arising from a criminal process and seek a remedy in a civil process. If it will help understand the point, you cannot use petrol on your car if it has a diesel engine.

13. In this case, the Warrant has remained unexecuted for over 12 months. The delay in executing the Warrant is unacceptable and a disservice to the Constitution and country. It took more than 10 years, for instance, for the criminal process to be completed in the Jimmy Maladina case (and appeals have been filed against conviction and sentence). If every person charged with an offence is permitted to take the course taken by the Appellant and Jimmy Maladina, we might as well forget about criminal law. It is not the intention and design of the law for a criminal process to be delayed for such lengthy periods. See section 37 of the Constitution.

14. Moreover, a criminal process does not recognise the status of a person in the society. The criminal process considers everyone as equal. Charges are laid against "a person", regardless of his status and standing in the community. In this case, the Appellant being a Minister and Chief Legal Advisor to the Government is irrelevant. In any case, there is no shortage of qualified Members of Parliament to replace him if need be. He is merely a person wanted by police for questioning. That is the same standard that applies to every citizen of this country. No one is above the law, which law is manifested in the investigating and arrest powers of the police.

15. The Appellant is concerned about his reputation but his personal interest is secondary to the interest of 7 million citizens of this country who expect a person suspected of committing a crime to be apprehended without delay. If the charge, if any, against the Appellant is eventually found to be without merit, the civil remedy of damages for malicious prosecution is available to him. Several Members of Parliament have submitted themselves to the criminal process, as they should. There is no proper basis for the Appellant to stall execution of the Warrant.

16. When the Warrant is executed, the Appellant will, among other things, be interviewed. It is within the domain of the investigating officer to hear his explanation and determine whether to proceed with the charge or not. If he is arrested, he would be entitled to ask for bail. If charged, the Appellant would be fairly tried within a reasonable time by an impartial tribunal. There is no cause for the Appellant to fear and avoid the criminal process.

17. For the foregoing reason, to restrain police from carrying out their constitutional powers would be inappropriate. I will refuse the application with costs.

Orders accordingly

________________________________________________________________
Saulep Lawyers: Lawyer for the Appellant
Tame Lawyers: Lawyer for the second Respondent