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Vaki v Damaru [2016] PGSC 73; SC1557 (16 December 2016)

SC1557

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCRA 12 and 25 of 2015


BETWEEN
GEOFFREY VAKI
Appellant


AND
MATTHEW DAMARU, Detective
Chief Superintendent of the Police
and the Director of National Fraud
and Anti-Corruption Directorate
First Respondent


AND
TIMOTHY GITUA, Detective
Chief Inspector of Police
and Deputy Director of National Fraud
and Anti-Corruption Directorate
Second Respondent


Waigani: Kandakasi, Hartshorn, and Kassman JJ

2016: 2nd September & 16th December


CONTEMPT OF COURT – Appeal against conviction and sentence for contempt of court - Essential elements of – Need for clear and unambiguous court order, service of order and deliberate failure to comply – Arrest warrant issued by the District Court on the application of a police officer – Whether arrest warrant has the force and effect of a court order – Various kinds of warrants considered – Arrest warrant administrative in nature despite being issued by a judicial officer – Judicial oversight only necessary to allay public misgiving about the issuance of an arrest warrant – Arrest warrant here did not have the force and effect of a court order which meant a failure to meet one of the essential elements of the offence – The other essential elements being the need to serve the court orders the subject of the charge of contempt and deliberate failure to comply were also not met - Arrest warrant, which was not a court order was not served and there being no court order together with none service meant the essential element of deliberate failure to comply was also not met – Appeal upheld with conviction and sentence substituted with not guily verdit and acquittal.


Papua New Guinea cases cited


Bishop v. Bishop Bros [1988-89] PNGLR 533
David Chung v. Seth Daniels[1](2015) SC1503.
Independent Public Business Corporation of Papua New Guinea v. Motor
Re powers, functions, duties and responsiblities of the Commissioner of Police (2014) SC1388.
Vehicles Insurance Limited and Ors (2015) N6101
Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1047


Overseas cases cited:


Love v. Attorney-General [1990] HCA 4; (1990) 169 CLR 307
Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361
Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892] UKLawRpKQB 46; (1892) 1 QB 431


Counsel:


Mr. G. Sheppard and Mr. G. Purvey, for the Appellant
Messrs M. Damaru and T. Gitua appeared in person as the Second and Third Respondents


16th December 2016


1. KANDAKASI J: I have had the privilege of reading the draft decision of his Honour, Hartshorn J. I agree with His Honour that the appeal should be upheld with the orders sought granted for the reasons he gives. In my respectful view however, by way of addition, there is a fundamental reason for that decision. That reason is grounded in two of the grounds of appeal as summarized and set out in Hartshorn J’s decision. These grounds concern the learned trial Judge’s failure to:


(1) apply the principle that all elements of the offence of contempt have to be proved beyond reasonable doubt; and


(2) hold that the appellant could or ought not to be found guilty of contempt in circumstances in which all parties misunderstood the effect of the warrant of arrest.


2. These two grounds require a careful consideration, understanding and appreciation of the nature of warrants issued by a District Court on the request of a police investigating officer and the warrant of arrest issued in this case.


The Arrest Warrant


3. The District Court with Chief Magistrate Nerie Eliakim presiding issued an arrest warrant for the arrest of the Prime Minister Hon. Peter O'Neill on the request of a police officer. The police appeared to be faced with difficulties executing the arrest warrant. That saw the commencement of two National Court proceedings. The first was OS No 484 of 2014, in which the policemen who applied for the arrest warrant in the District Court sought to charge the Police Commissioner with contempt of court for failure to execute the arrest warrant. The second one was OS (JR) No 485 of 2014, in which the Police Commissioner and the Prime Minister applied for leave to seek judicial review of the District Court’s decision to issue the arrest warrant. In both cases, the National Court came to the view that questions relating to the interpretation or application of certain provisions of the Constitution had arisen. The Court therefore decided to refer the questions to the Supreme Court under s.18 (2) of the Constitution for the Supreme Court’s declaratory opinion. This was under two separate references namely SC Ref No 2 of 2014 out of OS (JR) No 485 of 2014 and SC Ref No 3 of 2014 out of OS No 484 of 2014. The first reference raised six (6) questions of constitutional interpretation and application while the second raised three (3) such questions. At the time, the Attorney General filed a Special Reference to the Supreme Court under s.19(1) of the Constitution for an opinion on seven questions of constitutional interpretation and application. The questions thus raised were similar in nature. They were therefore consolidated and heard together with a decision delivered on 02nd October 2014, which is now named and numbered as Re powers, functions, duties and responsiblities of the Commissioner of Police (2014) SC1388.


Nature of Arrest Warrants


4. Arrest warrants are usually issued on the application of a police officer, usually a detective police informant. The process is commenced by an Information, which would be a draft of a charge that would be subsequently laid and supported by evidence on oath by a police informant. The evidence would be in the form of affidavits or statutory declarations. Where documentary evidence is involved copies of the documents would be annexed. The content and context of the evidence must be such that they support the application for the issuance of an arrest warrant.


5. The District Court deals with applications for arrest warrants summarily and promptly. An application for a arrest warrant upon being registered at a District Court registry would commence the process. The material filed must disclose a probable cause for the issuance of an arrest warrant. Once registered the application would be brought promptly to the earliest available Magistrate. The Magistrate would puruse the documentation and upon being satisfied that a probable cause is disclosed, the Magistrate would issue an arrest warrant. Usually, draft arrest warrants would be attached to the application which the Magistrate would sign off, seal it and hand it over to the police informant. In most cases, applications for arrest warrants are made in a Magistrates’ chambers. If a Magistrate is not available, applications for arrest warrants would be left at the registry. A Magistrate would deal with it when possible. In that case, the informant would collect the sealed warrant later. It is as simple and straight forward as that. Delays in the process, if any, would be caused by the unavailability of a magistrate to deal with the application. Once an arrest warrant is issued, the police will be on their way to execute the warrant. That would happen even as the application papers and sealed registry copies of the arrest warrant are pending entry and archiving at the Court registry. Clearly therefore, the entire process, from filing and registration of an application to the issuance of an arrest warrant, may take as little as an hour or even less.


6. As can be seen, there are no calling and cross examination of witnesses or a trial or hearing in the normal sense. Even the person who is the subject of a warrant who stands to be affected, is neither required nor given an opportunity to be heard or call his witnesses before a decision to issue or not to issue a warrant is arrived at. Clearly, therefore an application for an arrest warrant is purely administrative to assist police in their work and is dealt with summarily or administratively. This is necessary to ensure an offender does not escape arrest. Arrest warrants are applied for and obtained by the police to bring suspected offenders to the police station for interviews and eventual arrest if there is enough evidence to proceed with a criminal charge against the person arrested perusant to an arrest warrant. Given that, no provision is made in the District Court Act or else where authorizing a District Court Magistrate to make an order directing or compelling police to arrest a suspect.


7. Through the arrest warrant process, all that the police are doing is asking or seeking the permission of a District Court Magistrate to arrest someone. In so doing, they are effectively asking the Court to sanction an otherwise an unlawful act, the deprivation of a person’s liberty and to compel that person, who is usually a suspect to cooperate in ongoing police investigations, after which they may choose to formally charge and prosecute an offender or not. Seeking permission to arrest a suspect is what the process is all about and it starts and ends with the police. There is usually no compulsion to have the arrest warrant executed. If on further consideration of the material the police acted on or on further investigtions there is no disclosure of a criminal offence being committed or the evidence is not strong enough to secure a conviction, the police would be within their powers not to execute an arrest warrant and decide against going any further. In such a case, the probable cause ceases to exist and the need to execute the warrant becomes futile. Thus, the police have the discretion or the prerogative to decide whether or not to execute an arrest warrant and if it is to be executed, when. If a warrant is not executed, the police are not required to justify their choice not to execute the warrant or indeed for not arresting the suspect and bring him to the Court. Given that, there is no provision in the District Courts Act or any legislation for follow up or enforcement of arrest warrents. The police are of course accountable to their immediate superiors and ultimately the Commissioner of Police, for the choices they make on the execution of any arrest warrant.


8. Arrest warrants have to be contrasted with court orders issued in regular court proceedings which require obedience. Complying with court orders is mandatory for persons who are ordered or directed or commanded to do or take certain steps. Failing compliance of such orders will attract adverse consequences, including contempt of court proceedings. As may be apparent from what has already been said, there is a fundamental difference between arrest warrants and regular court orders. The difference is in the fact that, in regular court proceedings, there must be a hearing where the party seeking the order and the party that will be affected by the order are fully heard or opportunity given for that before an order can be made. In some instance, as in urgent ex parte interim proceedings, where the rules of the Court or a positive law permits, court proceedings may be commenced and pursued to the exclusion of the other side. In those kinds of cases however, the court is required to be statisfied that a cause of action known to law is disclosed in the proceedings and the applicant is enitlted to the relief or relieves the applicant may be seeking. In other words, the court must be satisfied that the applicant has made out his or her case both on the relevant and applicable law and the facts as opposed to a magistrate needing only to be satisfied that there is probable cause for the issuance of a arrest warrant.


Comparative look at warrants


9. There are a number of other warrants for various purposes. The first is a bench warrant. Such a warrant is usually issued for the arrest of an escapee or bail absconder by a court. A bench warrant is a direction or order that compels the police to arrest the named person on sight and bring him or her to court. A police officer, who willfully fails to execute a bench warrant, especially when the opportunity to do so is presented, may be in contempt of the court that issued it. It has the same force and effect as a formal court order.


10. Secondly, there are the warrants of execution that are commonly used in the District Court. Its equivalent in the National Court is a writ of levy of property which is usually issued by the Registrar of the National Court or his duly authorized representative. Such a process is usually issued at the request of an unsatisfied judgment creditor. A warrant or a writ of levy of propery is a direction or command which authorizes the police or the Sheriffs in the National Court to seize property belonging to a judgment debtor for the satisfaction of a judgment debt which remains due and owing. The warrant or the writ of levy of property authorizes an otherwise an illegal act which is, seizing another person’s property against their will. The police can and may, as often is the case, defer a seizure or make or accept alternative arrangements or accept full or partial monetary payment for the judgment creditor. In other instances, they may not be able to execute the warrant of execution or writ of levy of property for a range of reasons, including their being no available property against which such process could be effected. There is often hardly a case for contempt of court in this types of warrants or processes.


11. Thirdly, there are the search warrants. Such warrants authorize searches of a person and his or her properties. It is often issued at the request of a police officer to assist with police investigations. The warrant authorizes the invasion of a person’s privacy and or property on the bases of a probable cause or on a reasonable suspicion of a possible commission of an offence. However, the warrant need not be executed. There is no compulsion attached. Given that, a police officer who fails to execute such a warrant is never dealt with for contempt of court.


12. Fourthly, there are the warrants of remand. Such warrants are often issued by a court whilst dealing with an accused person in Court. A court often issues such a warrant directing a named remand centre, usually, a correctional institution, to accept an accused person who is refused bail or who has been granted bail but is yet to pay the set bail, whilst awaiting his or her trial. Hence, such a warrant is valid prior to conviction. This type of warrant must be accepted and obeyed by the commander of the named remand center. The latter has no discretion to refuse to accept a remandee unless bail is paid where that applies or the remandee is released by an order of a court. Breaching or disobeying such a warrant attracks contempt of court as they have the force of a court order that must be complied with.


13. Finally, and logically following on from the fourth type of warrants, are warrants of commitment or imprisonment. Such warrants are usually issued by a court directing a named correctional institution to accept a convicted offender who has been ordered to serve a mandatory jail sentence or who is yet to pay a court fine at the end of a criminal trial process. Clearly, a warrant of commitment is valid after conviction. As in the case of a remand warrant, the prison commander to whom the warrant is directed has no discretion but to accept into his or her custody a convicted person ordered to be incarcerated at his or her institution. A jail commander cannot release a prisoner unless a set fine is paid, or the person’s release is ordered by the court or when the prescribed jail term ends.


14. As could be seen from the above, there are two kinds or categories of warrants, those that demand compliance and those that do not require compliance. The difference between the different kinds of warrants is in the nature of the warrants themselves and the purpose they serve. Warrants such as a search and arrest usually in the criminal process are administrative in nature. They assist police in a due discharge of their duties and in the exercise of which, the police may for good reason, choose not to execute them. These kinds of warrants are attached with no compulsion. This is because, such warrants are often handy and are usually issued at the request of the police in aid of police investigations and the eventual conclusion of their investigations. In the end, the police might decide to charge a person with a criminal offence or choose not to charge any person depending on the kind of evidence the police secures. Where the police decide to formally charge a person with a criminal offence and bring an accused into a court, the court will formally take over from there and the matter is now in the control of the court. Hence, all orders and directions and or warrants issued by the court from then on, from a warrant of remand until the hearing and conclusion of the case with a warrant of commitment or imprisonment, they become formal orders of the court which must be adhered to or complied with.


15. At the end of civil proceeding are warrants of execution in the District Court and or writs of levy of property in the National Court. These process are usually issued by a magistrate or the Registrar of the National Court in the case of a writ of levy of property to enforce a judgment or order. They are usually issued on the request or application of a judgment creditor. By that stage, a court would be functus officio and would not be called upon to decide upon the rights and interest of the parties but simply a matter of being asked to issue process that will assist in the enforcement of its judgment or decision. No compulsion to comply is attached to these kinds of warrants. Consequently, contempt of court in these kinds of settings is unheard of.


16. Getting back specifically to arrest warrants, I note of course that, most criminal offences do not require arrest warrants to effect arrests of offenders. Only a few offences require arrest through an arrest warrant. In such cases as in official corruption cases, the legislature has intended that there should be an oversight by an independent judicial person in order to dispel any public misgivings about the issue of warrants by persons other than judicial officers. This is necessary in the limited cases where the law provides for arrest warrants because, say for instances, the importance of the office the person who is the subject of the warrant might occupy which needs to be protected through the exercise of a judicial mind over a matter that could otherwise strictly speaking be a police matter. Obviously, legislature intended that, through a court of competent jurisdiction, the police need to demonstrate that they have good reason based on the facts and the relevant and applicable law to proceed to arrest the person against whom the police is seeking an arrest warrant. Clearly therefore, when a magistrate decides to grant an arrest warrant, the warrant empowers as opposed to compelling the police to proceed with their intention to effect the arrest of the person, the subject of the warrant.


17. The Supreme Court in Re powers, functions, duties and responsiblities of the Commissioner of Police (2014) SC1388 had before it amongst others, the question of what was the nature of the arrest warrant (the same one in this case) and whether it had the nature, character and force and effect of or as a court order. The Court answered the question in the affirmative. In so doing they reasoned at paragraph 123 that:


“....putting a label on the decision to issue a warrant of arrest is a difficult task. It is far more significant to look at the warrant and read what it says. If a document is issued by a court in the National Judicial System – such as the District Court – and it is signed and sealed by a judicial officer (or an officer of the Court, purporting to have signed and sealed the document with the authority of the Court) and it contains orders that state expressly or impliedly that the orders must be obeyed: it should be regarded as a court order.”


18. At pargraph 129 the Court added:


“It is also relevant to assess how a reasonable person in Papua New Guinea would regard this warrant. By a reasonable person, we mean a person with some basic knowledge of how courts operate and the role of the courts in the dispensation of justice and enforcement of the law and the notion of the Rule of Law. Would he or she regard it as simply an administrative authorisation, to allow Chief Inspector Gitua and “all officers and members of the Police Force” at their discretion to arrest Hon Peter O’Neill MP and/or bring him before the court? Or would he or she regard it as an order to arrest him and bring him before the court? We think the latter would be the response of the reasonable person.”


19. The Court took that position despite accepting at paragraph 121 that:

“there will be occasionally situations in which the recipient of a warrant will find it not appropriate or proper to execute a warrant. If the target of the warrant is gravely ill or if for operational reasons a member of the Police Force decided that a warrant should not immediately be executed, it would be proper not to execute the warrant. However, the nature of the obligation to execute the warrant will depend on the wording of the warrant.”


20. This was also despite the Supreme Court having already determined other questions which recognized and upheld the power and discretion that is vested in the Police Commissioner concerning amongst others, the use of arrest warrants in the context of police investigations and procecution of offenders in criminal cases.[2] In so doing, the Court reasoned at paragraph 111 of the judgment that:


“However, our determination of earlier questions has not resolved what we see as the critical issue at the centre of question 8, which is whether a warrant of arrest is a court order, or the equivalent of a court order. If it is, and it is expressed in terms that demand obedience, we cannot see how it can be said that the Commissioner can direct or control other members of the Police Force to prevent its execution.”


21. By chosing to go that way, the Supreme Court rejected, in my humble view, sound submissions which reiterated the clear position at law that an arrest warrant issued at the request of a police officer is an administrative matter and does not have the force and effect of a court order for reasons discussed and disclosed above and others accepted by the Court itself at paragraph 121 of the judgment. Additionally, a number of overseas cases were cited in support of that submission. One of them was a decision not far from the shores of PNG, Australia, by its High Court in Love v. Attorney-General.[3]


22. In that case, the High Court, had before it a warrant that was issued by a judge of the New South Wales Supreme Court. That was on the application of a police officer. The purpose was to listen in and record private converstations between the appellants and others under the NSW Listening Devices Act 1984. One of the key issues before the Court was, whether the warrant was judicial or administrative in nature. The High Court accepted the respondent’s arguments that the warrant was administrative despite it being issued on the orders of a judge which gave it a judicial character. The Court cited with approval the decision of Lopes L. J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson[4] who said:


“The word ‘judicial’ has two meanings. It may refer to the discharge of duties exerciseable by a judge or by a justices in court, or administrative duties which need no be performed in court, but in respect of which it is necessary to bring to bear a judicial mind – that is, a mind to determine what is fair and just in respect of the matters under consideration.”


23. The High Court also accepted the more elaborated decision of Kitto J. in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd.[5] who said:


“Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligation that the application of the law to the facts has shown exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs not to posess and lead to such an end needs to possess some special compelling feature its inclusion in the category of judicial power is to be justified.”


24. In the case before the High Court, the appellants sought to equate the warrant to a court order or judicial in nature by reference to two factors. First, the power was conferred not upon a judge but the Court and second that there was a requirement to serve an application for a warrant on the Attornery-General. The Court did not find any persuasion in these and rejected them both. In so doing, the High Court noted that, the power vested in the Court was akin to the power to issue a summons which is an administrative or ministerial act and not judicial. The Court emphassised at para 23:


“The reasoning in Hilton v. Wells demand that undue emphasis not be placed upon the fact that the power is conferred upon the court. No doubt the legislature intended that the power would be exercised in a judicial manner by persons who are judges in order to allay any public misgivings about the issue of warrants under the State Act. But that has to do with the manner in which the power is exercised rather than with nature of power. Although the character of the repository of power is an important indicum of the nature of the power, it is not necessarily conclusive.”


25. Then at para 24, the High Court said of the requirement for service on the Attorney-General:


“The requirement of service upon the Attorney-General and not upon the person in relation to whom a warrant is sought indicates that the power is administrative rather than judicial. The very nature of the activities authorized by a warrant precludes notice to the individual whose privacy will be affected by action taken under the warrant. But the selection of a member of the executive government as the person to be served, whose role is to be afforded “an opportunity to be heard in relation to the granting of the warrant” ..., strongly suggests that in issuing a warrant the judge is not engage in a judicial determination of the rights of the parties.”


26. Finally at para 26, the High Court concluded:


“Although the administrative power to issue a warrant is in terms conferred upon the court rather than the several judges of the court, the exercise of the power is essentially administrative in nature. The warrant is the outcome of a complaint upon which the judge must bring his or her judicial mind to bear and decide on the material before him or her whether the warrant should issue. The judge is under a duty to act judicially and to that extent the issue of the warrant is a judicial act but it is not a ‘judicial act in the same sense as is an adjudication to determine the rights of parties’, ... It is not an order inter parties from which a party whose conversation may be overheard has a right of appeal... [A] judge makes no order and nothing that he or she does is enforced as an order of the court.”
(Underlining supplied)


27. The Supreme Court in Re powers, functions, duties and responsiblities of the Commissioner of Police (2014) focused on the terms of the arrest warrant rather than the overral scheme of the criminal investigation and prosecution process, the availability of arrest warrants in the context of that process and the very nature of such warrants as elaborated by the decision in Love vs. Attorney-General (supra) and my foregoing discussion. In taking the path it took, the Supreme Court with respect, did not give serious consideration to the different kinds of warrants discussed above. The Court also with respect, did not give any consideration to the fact that the arrest warrant itself contained two commands:


“...you are therefore ordered to arrest the above named Hon Peter O'Neill MP; and bring him before the court to answer to the said information and be further dealt with according to law”.


28. For argument sake, let us say the Prime Minister was or is arrested and interviewed. Thereafter, let us say further that the police do not find any compelling or prima facie cause for a charge or there is cause but the Prime Minister’s further detention is not warranted and they have him released. Will the District Court (or National Court in its behalf) still hold the named police officer in contempt for failing to “...bring him before the court to answer to the said information and be further dealt with according to law”? With respect, I do not consider that would be possible as a matter of common sense if not as a matter of law. For in the circumstances suggested, there would be no basis to detain the Prime Minister and bring him to court. Consequently there would be no basis to hold the relevant police officer for contempt of court. This is another problem with the decision of the Supreme Court in Re powers, functions, duties and responsiblities of the Commissioner of Police (supra).


29. Further, the Supreme Court was for the first time dealing with the question of whether an arrest warrant issue by a Magistrate on the request of a police officer to the exclusion of the person directly affected is a court order and its breach could result in contempt proceedings. There was no local case authority on point. In the absences of any local case authority, the Supreme Court was duty bound to consider the position in other countries having a legal system similar to PNG’s. The decision of the Australian High Court in Love vs. Attorney-General (supra) was a case on point, though not binding, it was of good persusive value which could not be ignored except for good legal reason. That decision in my respectful view, brought out clearly the distinction that exists between an arrest warrant issued ex parte by a magistrate at the request of a police officer and a decision that determines rights and obligations of parties to any given proceeding. The Supreme Court decided in effect to reject the persuasive value in that Australian case and gave no good legal reasons for its decision which it was bound to do.


30. Also, with the greatest respect, the Supreme Court did not address the consequence its decision would have generally on all arrest warrants. In equating the arrest warrant in this case to a court order and therefore allow for it to attract contempt proceedings for any breach, it upsets what is an accepted position at law from the mother of common law, England to Australia as clearly demonstrated by the decision in Love vs. Attornery General (supra). The reasons offered by the Supreme Court in Re powers, functions, duties and responsiblities of the Commissioner of Police (supra), with respect, go against the grain of a well established position at law. Further, whether a purported court order is an order of a court that must be complied with, is not dependent on what “a reasonable person in Papua New Guinea would regard the warrant” but how the law determines that question.


31. The decision Re powers, functions, duties and responsiblities of the Commissioner of Police (supra), gives police officers no choice but to arrest persons required to be arrested under an arrest warrant and bring them to court, even if there is no need for that subsequently. The decision therefore, effectively removes the discretion often vested in police officers to follow through with an arrest warrant or not for very good reason. The decision would unnecessarily prevent police from going to the District Courts for fear of being cited for contempt of court for any decision or a simple failure to execute arrest warrants issued by a District Court. This would adversally affect law enforcement and law and order in general. This requires correction before it is too late and revert to the corrent position it had always been prior to the decision of the Supreme Court.


32. Further, as the Supreme Court noted, the Police Commissioner (the Appellant then) has three ways to challenge the validity of an arrest warrant. These are: (1) by way of judicial review or; (2) by way of appeal to the National Court under Section 219(1) of the District Courts Act or; (3) the section 155(3)(a) (the National Judicial System) of the Constitution option. It would thus follow that, if despite my foregoing observations, contempt of court proceeding is still open, it should be initiated after these processes have been exhausted.


33. There is a further and a fourth way, which the Supreme Court with respect did not have any regard to in its decision. Even if the arrest warrant was indeed judicial in nature, it was issued ex parte. This means the Appellant being the person whose right of liberty and position generally is affected by the arrest warrant, can move the District Court to have it set aside. This should parrticulary be the case if the warrant is to be treated like a court order which must be complied with. In any case, the Appellant was not heard before that final and enforceable decision and or order was arrived at. As with the three possible recourses open to the Appellant, no contempt proceedings against him could be possible until he has had the opportunity to make such an application and the application is heard and determined.


34. It is settled law that, in order for an alleged contemnor to be found guilty of contempt three essential elements must be met. These are:


(1) the order was clear;


(2) it was properly served; and


(3) there was a deliberate failure to comply.


35. The Supreme Court in Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd and Ors,[6] reiterated the clear legal position that, to succeed on a charge of contempt of court there are three essential elements that must be proven beyond reasonable doubt. Subsequently, in David Chung v. Seth Daniels[7] the Supreme Court re-affirmed that position and added:


“The charge of contempt cannot be sustained if any of the elements is not proved to the required standard - proof beyond a reasonable doubt.”

36. Applying the law to the facts of the case, the Supreme Court found in David Chung v. Seth Daniels (supra) that the first essential element was not met because there was a lack of clarity in what the court order meant. For that and other reasons, the Court upheld an appeal against a conviction and penalty for contempt of court.


Present Case


37. For the case before us, I am not convinced for the reasons outlined above that, there existed a court order which required compliance and was breached. This position has to be contrasted with there being a court order but there is an argument over its clarity. In this cases, there had to be a clear establishment as a matter of law and by evidence that, there was in existence a clear and unambiguous court order which the Appellant breached. What was clear to all in this case was an arrest warrant issued by a District Court Magistrate on the request of a police officer. To borrow the words of the High Court in Love vs. Attornery General (supra), the warrant in this case was “the outcome of a complaint upon which the” magistrate had to “bring his or her judicial mind to bear and decide on the material before him or her whether the warrant should issue.” The magistrate was “under a duty to act judicially and to that extent the issue of the warrant” was “a judicial act but it is not a ‘judicial act in the same sense as is an adjudication to determine the rights of parties’.” It was “not an order inter partes from which” the Appellant “has a right of appeal”. The warrant in this case came out through an administrative process which did not have the force and effect of a court order. For reasons given above, the decision in Re powers, functions, duties and responsiblities of the Commissioner of Police cannot be in the way of the well accepted legal principles governing warrants with a long history in the common law and apply throughout the common law world as highlighted by the Australian High Court decision in Love vs. Attornery General (supra), from taking their normal effect as an administrative process in nature and being treated as such.


38. In short, there had to be a positive finding that there was a valid court order which the Appeallant breached in order to find him guilty of contempt of court. The facts and the law as discussed above, did not form the necessary foundation for such a finding. This is in addition to the need for the order or warrant to be personally served on the Appellant. With there being no court order and the same not being served on the Appellant, it follows that the third essential element of deliberate failure to comply with a court order could not be made out. Accordingly, I would uphold the appeal, order a set aside of the Appellants conviction and sentence and return a verdit of not guilty and have him acquitted forthwith of the charge.


39. HARTSHORN J: This is a decision on contested appeals against conviction and sentence. The Appellant has been convicted of two counts of contempt and sentenced on each count to 3 years imprisonment in hard labour. Those sentences are to be served concurrently.


Background


40. The respondents, two senior officers of the National Fraud and Anti- Corruption Unit of the Royal Papua New Guinea Police Force, instituted contempt proceedings against the appellant, for his alleged failure to execute a warrant for the arrest of the Prime Minister, the Hon. Peter O’Neill. The appellant was the Commissioner of Police at the relevant time. The warrant of arrest had been issued by the District Court on 12th June 2014.


This Appeal


41. The grounds of appeal include in essence that the primary judge fell into error in:


a) failing to apply the principle that all elements of the offence of contempt have to be proved beyond reasonable doubt;


b) failing to find that the second respondent had arrested the Prime Minister on 16th June 2014 and that the warrant of arrest had been executed;


c) failing to find that the second respondent had parted with the warrant of arrest when he gave it to the Prime Minister and that therefore the warrant of arrest could no longer be lawfully effected;


d) failing to hold that the appellant could not be guilty of contempt as he had not been served with the warrant of arrest;


e) holding that the appellant could or ought to be found guilty of contempt in circumstances in which all parties misunderstood the effect of the warrant of arrest.


42. The respondents’ contend that the primary judge did not make any error in his decision and that this appeal should be dismissed.


Whether the warrant of arrest was properly served upon the appellant


43. I consider this ground of appeal first because a finding in favour of the appellant will be determinative of these appeals.


44. The appellant submits that the primary judge erred in law in finding that the mere knowledge of the existence of an order for the arrest of the Prime Minister and the appellant’s failure to act on that knowledge was sufficient to sustain a conviction of contempt. The primary judge ought to have found instead that there must be proof beyond reasonable doubt that the order that the appellant is said to have disobeyed had been properly served upon him. The Supreme Court has previously determined that “properly served” means “personally served,” and that technical service, or mere knowledge of the existence of the order is insufficient to sustain a conviction: Bishop v. Bishop Bros [1988-89] PNGLR 533.


45. The respondents’ submit that the primary judge correctly found that the submission of the appellant that he had not been properly served with the warrant was without merit. The appellant was under a duty to do all things in his power to facilitate the arrest of the Prime Minister as soon as he was aware of the existence of the court order. The primary judge correctly stated the position when earlier in the proceeding he said:


“It is trite law that it is the duty of the police officers named in the warrant to execute it. If the police officers failed to execute the warrant by refusing to do so or take any action that prevents or frustrates the lawful execution of the warrant, they stand liable to be punished for contempt.”


46. The respondents’ submit that the appellant well knew what a warrant for the arrest of a suspect required him to do. He said that he was very familiar with the arrest of suspects by warrant as a result of his 44 years as a member of the Police Force.


47. It is submitted that the law is as stated in Halsbury, 4th Ed Vol 11 at paragraph 120, where it is said:


“A warrant to arrest a person charged with an offence may be executed by any constable, notwithstanding that the warrant is not in his possession at that time, but the warrant must, on the demand of the person arrested, be shown to him as soon as practicable.”


Consideration


48. The primary judge stated that he approached his


“....deliberations and determination..... from the perspective of the six (6) elements of the offence of contempt that I discern from the cases including 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) the order must be clear and unambiguous;
d) the order must have been properly served on the alleged contemnor;
e) the defendant failed to obey the terms of the order;
f) the defendant’s failure is intentional, wilful or deliberate; and
g) by such conduct, it presented a real risk of interference with the due administration of justice or interfered with the due administration of justice.


21. Each element of the offence must be proved to the required ordinary standard of proof that applies to 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] SC545. The plaintiffs carry that onus of proof.”


49. When the primary judge came to consider whether (d) above had been complied with, he stated that there was no requirement to “serve” the warrant on the (Appellant) and that it would suffice if the police officer in question knew of the terms of the warrant. This, in His Honours view, was because a warrant for 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.”


50. Then,


“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 was 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 possess knowledge, or become aware of the existence of Warrant.”


51. The primary judge considered the provisions of sections 11 and 15 Arrest Act and sections 51 and 52 District Courts Act. He appears to be of the view that they support his statement that a warrant of arrest is a different order that does not require to be served on a police officer and it would suffice if the police officer knew the terms of the warrant. A perusal of those sections in my view does not reveal that they affect or touch upon the requirement that an order, in this case a warrant, must have been properly served on an alleged contemnor who is charged with contempt for not complying with the warrant, for there to be a successful conviction.


52. The submissions of the respondents’, though concerned with the duty of police officers to execute a warrant of arrest, do not refer to the requirement that for an alleged contemnor to be able to be convicted of contempt for failing to comply with a court order, he must have been properly served with that order. Therefore with respect, the submissions are not on point.


53. The primary judge’s view that it would suffice if a police officer in question knew the terms of the warrant, raises the question of how that police officer came to know the terms of the warrant and how the Court can be satisfied that he has the requisite knowledge.


54. As to possessing knowledge by reason of employment or becoming aware of a warrant, is a Court able to be properly satisfied when considering a charge for contempt for not complying with a court order, that an alleged contemnor by virtue of such acquisition of knowledge, knew precisely what he has to do and by what time he has to do it?


55. This court in Bishop Bros (supra) was cognisant of the necessity to ensure that before an alleged contemnor is found guilty of contempt, the Court must be satisfied that the alleged contemnor knew precisely what he had to do and by what time he had to do it.


56. Barnett J. at p545 said:


“To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served "upon the alleged contemnor": Halsbury's Laws of England (4th ed), vol 9, par 66; Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381; Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041; Husson v Husson [1962] 3 All ER 1056, and refer Miller, Contempt of Court, 2nd ed, at 422.


Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order.”


57. Then in Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1047, the Supreme Court after referring to the comments of Barnett J in Bishop (supra) as to service said at para 11:


“Further, one of the authorities that was followed by Barnett J, was Ronson Products Ltd v. Ronsen Furniture Ltd [1966] 1 Ch. 603. At p614, Stamp J in considering the distinction between an order to do an act and an order prohibiting an act stated that:


‘If a man be ordered to do an act, so that his failure to do it may lead him to prison, justice requires that he know precisely what he has to do and by what time he has to do it,.....’


‘The practical difference between an order under which a positive act is to be done and one where an act is prohibited must lead to the conclusion that the former class of order ought not to be enforced against a director unless he has been served with it so that he, like the company, knows precisely what is to be done and the period during which it has to be done.’”


58. In my view, any differences that the primary judge is of the view exist between a warrant of arrest issued by a District Court and a National Court criminal or civil order, do not and should not diminish the requirement that a person charged with contempt of disobeying any court order must be properly served with the subject court order, so that he knows precisely what he has to do and by what time he has to do it.


59. I note in his consideration of this issue, the primary judge did not rely upon any authority in support of his view and did not specify why Bishop Bros (supra) and Tutuman v. Growmax (supra) should be departed from in this instance apart from, impliedly, that a warrant is a different type of order.

60. In this regard I refer to what I said in Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited and Ors (2015) N6101 at [14] which in my view is on point:


“14. When an application for contempt is made against someone who is not a party, in my view it is akin to commencing a new proceeding against that person. When a new proceeding by either writ of summons or originating summons or petition is commenced, the defendant is put on notice as to the claim made against it. Similarly, the initial step to be taken before an application for contempt is made, is for the contemnor to be put on notice of the order with which he must comply. A new proceeding is required to be served on the defendant personally. Similarly, an order with which a non- party must comply should be required to be served on the contemnor personally. This is so as the consequences of being found guilty of contempt are serious. In my view, as this is the case regardless of whether the obligation in the order with which the contemnor must comply is positive or negative, the contemnor must know precisely, the terms of the order. It is necessary therefore that for the contemnor to be made aware precisely of the terms of the order, especially when the contemnor is not named in the wording of the order, in addition to being a non-party, as is the case here, he must be served personally.”


61. As to the contention of the respondents’ that the appellant was aware of the warrant, as I said in IPBC v, MVIL (supra) at [15]:


“.....it may be that a contemnor is aware that an order has been made particularly if he is a party to the proceeding in which the order is made. Similarly, it will likely be the case that a defendant will be aware generally of a claim to be made against him before he is personally served with either a writ of summons, originating summons or petition. Being aware of an order made, is not however, the same as being put on notice of the precise terms of an order, that if breached could result in serious consequences, such as imprisonment. It is in this context in my view, that the statement of Barnett J in Bishop (supra) as to proper service upon a contemnor, should be read.”


62. Consequently, in circumstances where the appellant was not personally served with the warrant of arrest, was not specifically named in the warrant and had not applied for the warrant, and on the authority of the Supreme Court decisions to which reference has been made, I am of the view that the primary judge fell into error in finding that the mere knowledge of the existence of an order for the arrest of the Prime Minister and the failure to act on that knowledge was sufficient to sustain a conviction of contempt against the appellant. The primary judge in my respectful view, should have found that there must be proof beyond reasonable doubt that the warrant had been properly served upon the appellant, before a conviction of contempt could have been made. Accordingly, I would uphold the appeal, quash and set aside the Appellants conviction and sentence and have him aquitted forthwith of the charge of contempt of Court. Given this, it is not necessary to consider the other submissions of counsel.


63. KASSMAN J: I have had the benefit of reading the draft judgments of my brothers, Kandakasi and Hartshorn JJ.. With respect, I agree with the discussion by Hartshorn J. that reaffirms the mandatory requirement that to hold someone guilty of contempt for wilful disobediance of an order of the court, the court must be satisfied beyond reasonable doubt that the alleged contemnor was in fact and law served personally with the order. I agree with my brother judges on the outcome stated by them.


Decision and orders of the Court

64. Ultimately, the decision of the Court is:

(1) These appeals are upheld;


(2) The convictions and sentence imposed upon the Appellant by the National Court are quashed, set aside and are substituted with the orders that follow;


(3) A verdict of not guilty on the two charges of contempt of Court against the Appellant is returned;


(4) The Appellant is forthwith acquitted on the two charges of contempt of court: and


(5) Cost follow the event.


__________________________________________________

Young & Williams Lawyers : Lawyers for the Appellant
The Second and Third Respondents appeared in person

[1] (2015) SC1503; The Supreme Court decision in the case of Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1407 support these line of cases.
[2] See paragraph 110 of the Judgment.
[3] (1990) 169 CLR 307.
[4] [1892] UKLawRpKQB 46; (1892) 1 QB 431 at p.452.
[5] [1970] HCA 8; (1970) 123 CLR 361 at pp. 374 – 375.
[6] [1988-89] PNGLR 533
[7] (2015) SC1503; The Supreme Court decision in the case of Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1407 support these line of cases.

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