Pala v Bidar [2016] PGSC 33; SC1515 (21 July 2016)

SC1515

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 26 OF 2015

BETWEEN:

HON. 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: Batari, J
Sawong, J
Higgins, J
2016: 19^th & 21^st July

WARRANTS FOR ARREST-Proper consideration required before issue alternative to arrest to be considered – Magistrate to be satisfied that a warrant is required upon a ground referred to in s. 8 Arrest Act 1977 – conspiracy-s.128 Criminal Code – allegation of offence not known to law.

PNG Cases cited:
Danigi v. State [1991] PNGNC 44; [1991] PNGLR 376
Ede v. Brown [2006] PGNC 24
Medaing v. Melung [2010] PGNC 164
Raka v. Tohichanand Others [2000] PNGLR 328

State v. Tanedo [1975] PNGLR 395

Overseas cases:
Australian Conservation Foundation Inc v. The Commonwealth (1980) 146CLR 493
Donaldson v. Broomby [1982] FCA 58; [1982] 60 FLR 124
Webster v. McIntosh [1980] FCA 128; [1980] 49 FLR 317

Counsel:
A. Manase, for the Appellant
C. Wara, for the 2^nd Respondent

JUDGMENT

21 July 2016

1. BATARI, J: I have read the draft decision of my brother Justice Higgins. I agree in the reasoning and the orders proposed. I have nothing to add.
   
2. SAWONG, J: I have also read and considered the draft decision of my brother Justice Higgins. I also agree in the reasoning and the orders proposed by him. I do not have anything else to add.
   
3. HIGGINS, J: This proceeding relates to the validity of a warrant of arrest issued by the first respondent on the information of Det Chief Superintendent Mathew Damaru of the National Fraud Squad of the Royal PNG Constabulary. It is set out in full.
   

WARRANT OF ARREST
To: Det Chief Superintendent a) Damaru Mathew National Fraud Squad

b) Officer in charge of National Fraud Squad

c) All officers and members of the Police Force

Whereas on the information of Det. Chief Superintendent – Mathew Damaru – National Fraud Squad Dated 11^th July 2014 is considered necessary by this court to arrest Ano Pala of ........ Village, Central Province.

1. has committed an offence in Papua New Guinea; and
2. his/her arrest is necessary---
   

To ensure his/her appearance in court to answer to the offence charge; or

To prevent the continuation of repetition of the offence of the commission of a further offence; or

To preserve the safety of welfare of members of the public or of him/her,

In respect of “Conspired with Peter O’Neil, [sic] 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 in OS No. 115 of 2014 Hon James Marape& Hon Peter O’Neil v. Paraka trading as Paul Paraka Lawyer to legitimatize bills paid to Paul Paraka Lawyers by way of declaration or taxation”.

Thereby contravening to Section: 128 of the PNG Criminal Code Act, Chapter 262.

YOU ARE THEREFORE ORDERED to arrest the above named Ano Pala.

And bring him/her before the court to answer the said complaint and to be further dealt with according to law.

Case Adj sine die.

Dated at Waigani District Court on the 11^thday of July, 2014.

......(signed &stamped)......

Cosmas Bidar (SPM)

District Court

Place “X” in appropriate square.

4. An application was made to the National Court seeking to quash the order for the issue of the warrant.
   
5. The warrant being an order of the District Court is subject to review by the National Court.
   
6. Makail, J heard the application on 10^th August 2015 and refused it. His Honour’s reasons were published on 14^th August 2015.
   
7. An information had been placed before the learned Magistrate, the first respondent. It was in the following form.
   

INFORMATION

THE INFORMATION of MATHEW DAMARU of Police Station, NATIONAL FRAUD SQUAD In Papua New Guinea a CHIEF SUPERINTENDENT of Police, laid this....... day of June, before the undersigned, Magistrate of a District who (upon Oath) says that on the 17^thday of June 2014 at Port Moresby in Papua New Guinea a ANO PALA aged ... of ..... Village,Sub Province CENTRAL PROVINCE Province.

““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 in OS No. 115 of 2014 Hon James Marape& Hon Peter O’Neil v. Paraka trading as Paul Paraka Lawyer to legitimatize bills paid to Paul Paraka Lawyers by way of declaration of taxation”.

Thereby contravening Section 128 Criminal Code, Chapter 262

.......(signed)......

Laid/Sworn before me the day and year first above mentioned, at .... In Papua New Guinea.

......(signed).......

Magistrate

8. It was, apparently, accompanied by a “Summary of Facts” as follows;

The defendant now before the court is Hon. Ano Pala MP, Attoney General & Minister for Justice and Member for Rigo in Central Province, Papua New Guinea. On the 17 June 2014, he was appointed the Attorney General & Minister for Justice. On the same day of his appointment the defendant wrote to the Office of the Solicitor General – Attention: Jubilee Tindiwi the subject of the matter was: OS No. 115of 2014 Hon James Marape& Hon Peter O’Neil v Paul Paraka trading as Paul Paraka Lawyers.

In that letter the defendant used his powers under Section 4 of the Claims By and Against the State Act and Section 7 of the Attorney General Act 1989, to instruct the Solicitor General to immediately apply to join the Independent State of Papua New Guinea in the proceedings of OS No 115of 2014 Hon James Marape& Hon Peter O’Neil v. Paul Paraka trading as Paul Paraka Lawyers as Third Plaintiff. Prior to the 17^th June 2014, the defendant was the Minister for Transport.

The proceeding in OS No. 115 of 2014 is an attempt to pervert the course of justice. Police have commenced investigation into the misappropriation of K80 million by Paul Paraka Lawyers, the property of the Independent State of Papua New Guinea. The Prime Minister Hon Peter O’Neil is the complainant in this matter and referred the matter to Investigation Task Force Sweep to investigate. Several people including: Six Lawyers, Former Secretary for Finance, Former Deputy Secretary for Finance including Paul Paraka have all been arrested and charged for Conspiracy to Defraud, misappropriation of public funds. These matters are now before the District Court going through the committal proceedings.

The investigation is continuing with more people to be arrested and charged which include lawyers and politicians. On the 16 June 2014, at the Remington Office in Konedobu, Prime Minister Hon Peter O’Neil was served with a warrant of arrest and invited to report to the National Fraud & Anti-Corruption Directorate for interview at 11:00am on the same day for his part of the fraud by giving approval to the Finance and Treasury Departments to make payments to the Paul Paraka Lawyers in outstanding bills. The claims by Paul Paraka Lawyers were fraudulent and not genuine.

The Prime Minister did not report to NFACD office as expected at 11:00am and deferred to 2.00pm and again did not show up a NFACD office at Konedobu. Immediately after service of the invitation letter and the warrant of arrest for the Prime Minister Hon Peter O’Neil, the Prime Minister returned (sic – “ to”) his office. Following the service of the warrant of arrest of Prime Minister, Hon Peter O’Neil [sic] following events took place commencing on the 16 June 2014:

1. 16 June 2014, 11:00am Prime Minister Peter O’Neil failed to report to the National Fraud & Anti-Corruption Directorate for interview;
   
2. 16 June 2014, 2:00pm Prime Minister Peter O’Neil failed to report to National Fraud & Anti-Corruption Directorate for interview;
   
3. 16 June 2014 in the afternoon, Prime Minister called an urgent NEC meeting;
   
4. 16 June 2014, Police Commissioner Paul Kulunga was retired from the Police Force as the Police Commissioner;
   
5. 16 June 2014, Geoffery Vaki was appointed acting Police Commissioner;
   
6. 16 June 2014, Prime Minister, Peter O’Neil, went to the National Court to seek orders exparte to set aside the warrant of arrest and to restrain Police from interviewing him and arrest;
   
7. 16 June 2014, late in the after [sic], the National Court refused hear [sic] exparte hearing instead wanted inter-party hearing and stood over the matter to 17 June 2014.
   
8. 17 June 2014, matter was heard by His Honour, Justice Ere Kariko as OS No 115 of 2014 Hon. James Marape and Peter O’Neil v. Paul ParakaLawyers. Hon. James Marape and Hon. Peter O’Neil were represented by .......... of Leo Lawyers and Tiffany Twivey Nongor respectively. The Police was represented by Mr Nicholas Maviri assisted by Mr Sam Koim and Solicitor General’s Office sat in as a friend of the court. The State was not represented. (Check facts) The plaintiffs made their submission and concluded their submission. Mr Nicholas Maviri for Police responded and tendered affidavits. The lawyers for the plaintiffs needed time to respond to the affidavits tendered by Mr Nicholas Maviri for the Police, which include affidavit by Sam Koim chairman of the Investigation Task Force Sweep. Therefore the matter was adjourned to the next day 18 June 2014. Court issued Interim stay orders on the Police not to arrest Prime Minister Hon. Peter O’Neil and that Police Commissioner was restrained from taking any action against the police investigation team involved in the Paula Paraka investigation.
   
9. 17 June 2014, Attorney General and Minister for Justice, Hon. Kerenga Kua was sacked as a Minister;
   
10. 17 June 2014, Hon. Attorney General and Minister for Justice was appointed Attorney General and Minister for Justice;
    
11. 17 June 2014, Hon Ano Pala as Attorney General and Minister for Justice [Ano Pala] wrote to the Solicitor General to apply to join the Independent State of Papua New Guinea in the proceedings as the Third Plaintiff and instruction to consent to orders sort by First and the Second plaintiffs;
    
12. 17 June 2014, Acting Police Commissioner Geoffrey Vaki wrote to Mawa Lawyers to consent to orders sort [sic] by First and Second plaintiff on behalf of the Royal Papua New Guinea Constabulary.
    
13. 18 June 2014, Paul Mawa of Mawa Lawyers appears for Police and caused confusion in court. Nicholas Maviri in-house lawyer for Police is stood down. The Police investigation Team rank and file has no representation and is at the mercy of the court to use discretion in the interest of justice;
    
14. 18 June 2014, NEC disbanded the Investigation Task Force Sweep;
    
15. 18 June 2014, NEC sacked the Deputy Commissioner of Police Operations, Mr Simon Kauba;
    
16. 18 June 2014, NEC appointed Assistant Commissioner of Police Jim Andrews as Deputy Police Commissioner – Operations.
    

All these events that transpired are viewed as attempt by the Prime Minister to stop the Police form conducting its Constitutional duties under Section 197 (2) of Constitution of Papua New Guinea. The course of justice has begun and the actions of the Prime Minister Hon Peter O’Neil, Acting Police Commissioner, Attorney General and Minister for Justice, and NEC and its servants are perverting the course of justice by their actions or in actions.

On the ...... June 2014, the defendant was taken to National Fraud & Anti-Corruption Directorate office at Konedobu were he was interviewed in relation to his action which is part and parcel of the whole conspiracy to defeat justice. He was caution, given his constitutional rights. In response to the questions asked he ...........

He was arrested and charged with one count of Abuse of Office under section 92(1) of the Criminal Code and Attempt to pervert the course of justice under section 136 of the Criminal Code and placed under custody.

9. The blank spaces on this document are not explained and refer to events that had yet to occur and would only have occurred after the warrant of arrest was issued and executed.
   
10. On its face the information is seriously defective.
    
11. It does not state the date on which it was laid.
    
12. It does not clarify the magistrate’s District.
    
13. It refers to the subject as,“Ano Pala of ...... Village .... Sub Province, Central Province.”
    
14. The matter alleged to contravene section 128 of the Criminal Code is conspiracy between the named parties, including the counsel who sought to appear in this matter, to file Court proceedings requiring Paul Paraka Lawyers to substantiate their bills of costs rendered to the State by way of taxation.
    
15. His Worship, notwithstanding the form of the proffered charge issued a Warrant of Arrest. It was in the form set out in paragraph 1 hereof.
    
16. As Injia, CJ has held in the case of contempt proceedings against the second respondent, it is a serious contempt of the District Court to fail or refuse to execute or obstruct the execution of an arrest warrant.
    
17. Nevertheless Makail, J held, in effect, that the appellant lacked standing to challenge the validity of the warrant until it was executed.
    
18. With respect that ignores the fact that a person subject to an arrest warrant is liable to be deprived of his or her liberty without notice and remain in custody, subject to the grant of bail, until the charge laid by the information is disposed of.
    
19. It is a fundamental principle in a free and democratic society that the liberty of the subject should be interfered with only for good cause and then to the minimum extent necessary to achieve a proper public purpose. (see Section 32 of the Constitution).
    
20. It was recognised, correctly, in Donigi v. State [1991] PNGNC 44; [1991]PNGLR 376, that a person has standing to challenge the validity of a legislative act and hence a judicial act or order if the person thereby suffers:

“... or is at risk of suffering direct and substantial damage other than that which is common to the rest of the public”.

21. In that case the plaintiff was not at risk of adverse action but it cannot be suggested that a person against whom a warrant of arrest has been issued is not at risk of such adverse action. It is not to the point that, after arrest, the arrestee can challenge the validity of the deprivation of his liberty. By then the deprivation has already occurred. This is not a case of the enforcement or protection of a public right. eg: Australian Conservation Foundation Inc v. The Commonwealth (1980) 146CLR 493, it is his own liberty the appellant was seeking to safeguard.(See also Ede v. Brown [2006]PGNC 24 per Lay, J – candidate for office challenging process for selection; Medaing v. Melung [2010] PGNC 164 – Per Cannings, J- Landholder threatened by grant of mining lease; Raka v. Tohichanand Others [2000]PNGLR328; per Sakora, J; NEC decision affecting officers of the State, each officer has standing).
    
22. Given the importance of protecting the public from arbitrary or unnecessary arrest the Parliament has enacted the Arrest Act 1977.
    
23. At the outset it should be noted that s. 3 of the Act was not invoked in this case. Nor should it have been. It provides for arrest without Warrant of a person whom an officer believes on reasonable grounds –
    1. is about to commit; or
    2. is committing; or
    100. has committed

an offence.

24. However, s. 3(c) is, in context, a power to effect arrest in the immediate aftermath of the commission of the offence in question.
    
25. The procedure for arrest where there is no such exigent circumstance is provided for by s. 8;

“ Where an information is laid before a Court, other than a Local Court, that there are reasonable grounds for believing –

1. that a person has committed an offence within the country; and
2. that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary-
   1. to ensure his appearance in court to answer a charge for the offence; or
   2. to prevent-
      1. The continuation or repetition of the offence; or
      2. The commission of a further offence
   3. 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”.
      

26. It follows that if those conditions are not fulfilled, a Magistrate may not issue an arrest warrant but if satisfied that there are reasonable grounds for believing that the person in question has committed an offence, proceed under Section 41 of the District Courts Act 1963 to issue a summons requiring the defendant to appear to answer any charge of an indictable offence.
    
27. It does not appear that option was considered by the first respondent. Support for that view is obtained from the form of Warrant of Arrest issued. (See paragraph 1).
    
28. The need to consider the alternative to arrest is mandatory. None of the grounds for considering arrest referred to in Section 8 could reasonably have been believed to justify the arrest of the applicant. Indeed it does not appear that any such grounds were suggested to the learned Magistrate. None of them are even checked in the Warrant as being relevant. No “X” was placed in any of the relevant squares.
    
29. Indeed, the warrant has received such little attention that the Learned Magistrate did not even choose whether the subject of the Warrant was “him” or “her”. That is quite apart from the misspelling of the Prime Minister’s name (“O’Neil” rather than “O’Neill”) and the failure to specify an address for the applicant.
    
30. However, that is not the end of the deficiencies in the document. It is trite that the warrant must allege an offence known to law. Section 128 of the Criminal Code Act 1975 provides:
    

“128. Conspiring to defeat justice.

(1) A person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) A person shall not be arrested without warrant for an offence against Subsection (1).”

31. The definition of the crime of conspiracy is, or ought to be, well-known. It was set out in State v. Tanedo [1975]PNGLR 395, 418 by Prentice, DCJ (as he then was).
    

“If two or more persons agree together to do something contrary to law... or wrongful and harmful towards another person, ......... or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons who so agree commit the crime of conspiracy,.... So long as the design to do such an act rests in intention only it is not criminal, but as soon as two or more agree to carry it into effect, then their act becomes punishable.” “(Halsbury third., Vol 10, pp 310 and 311).

32. In other words it is conspiracy for two or more persons to agree to commit an unlawful actor to perform or a lawful act by unlawful means.
    
33. In this case the act alleged is “filing proceedings in OS No. 115 of 2014”. That is not an unlawful act. Indeed it is an act incapable of being a criminal act. The purpose of the filing is alleged to be “to legitimatize (sic) bills paid to Paul Paraka Lawyers by way of declaration or taxation”.
    
34. It is apparent that DCS Damaru suspected that bills submitted to the State by that law firm were fraudulent. However to submit them to substantiation and scrutiny is a way of substantiating that suspicion, though it might, of course, be inconclusive. Making a wilfully false statement in such proceedings would be unlawful and an attempt to pervert the course of justice. However, if the alleged conspirators agreed as alleged, then that agreement was to perform a lawful act by lawful means for a lawful purpose.
    
35. The charge is of conduct not recognised as criminal by the law. The warrant is void and of no effect. Being an order of the District Court, that order must be quashed.
    
36. It may be added that to quash the warrant as this stage is to the advantage of the State. Otherwise, it would have faced a legitimate claim for damages for wrongful arrest and false imprisonment (See Webster v. McIntosh[1980]49 FLR 317; Donaldson v. Broomby[1982]60 FLR 124).
    
37. If, as reported, the warrant has been purportedly executed, that does not end the matter. It is of importance not only to the appellant but others named in the Warrant that it be declared to be void and of no effect.
    
38. It is also important that both police and magistrates exercise their powers to affect the liberty of the subject lawfully and with due care and attention to those rights.
    
39. When this matter was argued on 19 July 2016 counsel for the second respondent conceded that the warrant in this matter was defective and its issue could not be supported.
    
40. It follows that the warrant and the proceedings commenced pursuant to it should be quashed.
    
41. The respondents to pay the appellant’s costs of and incidental to the proceedings in this court and the National Court to be taxed if not agreed.
    

BY THE COURT: The Orders of the Court are as follows.

1. The Appeal is upheld.
2. The Warrant is declared void and of no effect.
3. The orders of the District Court and the proceedings emanating therefrom are quashed.
4. The second and third respondents to pay the appellant’s costs of and incidental to the proceedings in this court and the National Court to be taxed if not agreed.
   

Manase & Co. Lawyers: Lawyers for the Appellant
Nicholas Tame Lawyers: Lawyers for the 2^nd Respondents