O'Neill v Eliakim [2017] PGSC 53; SC1654 (15 December 2017)

SC1654

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 25 & 35 OF 2017 (Consolidated)

BETWEEN:
Honourable PETER O’NEILL, Prime Minister of Papua New Guinea
First Appellant

AND:
GARY BAKI in his capacity as the Police Commissioner of PNG
Second Appellant

AND:
NERRIE ELIAKIM, Chief Magistrate
First Respondent

AND:
GEOFFREY VAKI
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Yagi J, Higgins & Foulds JJ

2017 : 31October & 15 December

WARRANT FOR ARREST – decision to issue – administrative decision capable of judicial review – Information must demonstrate reasonable grounds to believe that an indictable offence has been committed and that proceeding by summons would not be effective – no such information – issue of warrant without legal jurisdiction – set aside as void – Arrest Act 1977, s8, Arrest Regulation 1977, s8, form 1

Cass Cited:
Papua New Guinea Cases

In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police in Relation to Warrants of Arrest issued under the Arrest Act, Chapter 339 and charges of Contempt of Court [2014] PGSC 19; SC 1388
Pala v Bidar [2016] SC 1515
Wartoto v The State [2015] SC 1411

Overseas Cases:

Emmanuel v Dau [1995] ACTSC 196
In the matter of an application by TS [2002] ACTSC 102
Nona v R [2013] ACTCA 39
R v Forsyth [2013] ACTSC 179
R v Griffin [2007] ACTCA 6
R v Massey [2009] ACTCA 12

Counsel:

Mr. M. Varitomos & Ms. T. Twivey, for the Appellants
Mr. I. Molloy & Mr. E. Asigau, for the Respondents

JUDGMENT

15^th December, 2017

1. BY THE COURT: This is an appeal by the Prime Minister, the Honourable Peter O’Neill and Police Commissioner Gary Baki. The latter was substituted as a party for Mr. Geoffrey Vaki, who was Commissioner at the time of the events complained of.
   
2. The original matter arose out of an application by the Prime Minister and the then Police Commissioner to set aside and declare to be null and void the decision of the first respondent, the Chief Magistrate of Papua New Guinea, Ms Nerrie Eliakim to issue a warrant for the arrest of the Prime Minister.
   
3. The form of the Warrant is of importance:
   

“THE INDIPENDENT (sic) STATE OF PAPUA NEW GUINEA
Arrest Act 1977
WARRANT FOR ARREST

To: Chief Inspector (a) Timothy Gitua of National Fraud Squad

(b) Officer in charge of police at

(c) All officers and members of the Police Force

WHEREAS on the Information of Chief Inspector Timothy Gitua of National Fraud Squad

Dated June, 2014 [it] is considered necessary by this court to arrest Hon. Peter O’Neill MP of Pangia Village, Ialibu, Southern Highlands Province.

(a) [He] has committed an offence in Papua New Guinea; and
(b) his arrest is necessary ---
☒ To ensure his appearance in court to answer to the offence charge (sic); or
◻ To prevent the continuation or repetition of the offence or the commission of a further offence; or
◻ To preserve the safety or welfare of members of the public or of him.

in respect of “Hon. Peter O’Neill, MP and Prime Minister of Papua New Guinea, being an (sic) holder of a Public Office, charged with the performance of his duty [by] virtue of his office, did corruptly direct [?]to obtain a monetary benefit for Paul Paraka Lawyers in the discharge of the duties of his office as the Prime Minister.”

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.

Dated at Waigani the 12^th day of June, 2014.

......(Signed)........
Magistrate
District Court”

4. The Warrant had issued on 12 June 2014. The form of it varies from that prescribed by Arrest Regulation 1977 s.8 Form1. No documentation comprising or purporting to comprise an “information” was produced to the learned Chief Magistrate nor was any evidence, whether on oath or otherwise, tendered to her Worship.
   
5. On 2 July 2014, application was made to her Worship to set aside or withdraw the warrant on the ground that no “information” had been laid before her to empower her to issue such a warrant. On 4 July 2014, her Worship dismissed that application.
   
6. The application had been supported by the counsel for the Commissioner who was otherwise under a duty to have the warrant executed.
   
7. The decision of her Worship was delivered in written form (AB 99-103).
   
8. Her Worship asserted that the counsel for the Prime Minister was not seeking to dispute the validity of the warrant. However, it was clear that he was in fact doing so, relying on the absence of any ‘information’ to found the application for the withdrawal of the warrant. Mr. Sheppard, for the Prime Minister, had applied unsuccessfully to Kariko J for an order to stay the execution of the warrant.
   
9. That application was dismissed, apparently, on the basis that it was a matter for the Commissioner whether or not to cause the warrant to be executed. (c.f. In Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC 1388)
   
10. Counsel for the State had directly challenged the validity of the warrant.
    
11. Her Worship noted that the Warrant was necessary, as she expressed it:
    

[20] “... the Application brought under the Arrest Act was made pursuant to s87(2) of the Criminal Code. Section 87 relates to the offence of Official Corruption and sub-section 2 provides as follows: “A person shall not be arrested without warrant for an offence against subsection (1).

[21] Hence, a Warrant of Arrest 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.”

12. In response to a submission that the Commissioner needed to have time to consider whether a prima face case existed against the Prime Minister of “Official Corruption”, her Worship concluded that the previous Commissioner, Mr. Kulunga, had already done so by inviting the Prime Minister to attend for an interview on 16 June 2014. Therefore, she ruled, the current Commissioner was “functus officio”.

12. Her Worship continued:
    

[29] “... I must re-emphasise again (sic) 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 (sic-“with”) the offence of Official Corruption. It is not a case where an accused has been formally charged with an Information formally put to him in court”.

14. It was not disputed that there was no Information laid before her Worship to support the issue of the Warrant of Arrest. It was her Worship’s view that, by reason of the provisions of s.87(2) of the Criminal Code, no such Information was necessary. The Warrant of Arrest was simply an administrative formality to enable a charge to be laid. Thus the application to set aside the warrant was dismissed.

15. That led to various proceedings as recited in the Supreme Court decision of In Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police in Relation to Warrants of Arrest issued under the Arrest Act, Chapter 339 and charges of Contempt of Court [2014] PGSC 19; SC 1388.

16. The Court, constituted by Cannings, Makail, Sawong, Poole and Kangwia JJ, ruled that, in answer to questions referred in various proceedings consequential upon the warrant of arrest of 12 June 2014:

• The Commissioner of Police had standing to seek leave for judicial review of the decision to issue the warrant.
• The Commissioner had authority to direct members to apply or not to apply (inter alia) for arrest warrants.
• That included authority, once a warrant had issued to challenge its issue, including the validity of it.
• Specifically that authority extended to seeking leave for judicial review of this warrant.
• That authority did not extend to directing the prevention of the execution of a valid Warrant of Arrest.
  

17. That latter restriction on the Commissioner’s power is subject to the right of the Commissioner to challenge in a court of competent jurisdiction the validity of that warrant or to seek to vary any orders contained therein.

18. On 8 August 2017, Makail J ruled that the decision of her Worship to issue a Warrant of Arrest was not reviewable. In so holding, his Honour considered that the Supreme Court decisions of Pala v Bidar [2016] SC 1515 and Wartoto v The State [2015] SC1411 were in conflict as to whether a decision of a Magistrate to issue an arrest warrant was reviewable. In fact, Wartoto related to a Magistrate’s decision to commit a person for trial for indictable offences. Pala v Bidar directly concerned the validity of an arrest warrant.

19. There is a clear difference between a person subject to an arrest warrant and one subject to a committal order. As was pointed out in Re Powers of the Commissioner of Police (supra) a person so committed may lawfully avoid the delay and expense of trial by applying to the Public Prosecutor to file a nolle prosequi. Even should that fail, application may be made to the trial judge demurring to the indictment or even submitting there is no case to answer. Seeking a permanent stay is not precluded but as the cases cited in Wartoto v The State demonstrate, it is only a remedy available in the clearest of cases and in the absence of other remedies in the criminal justice system. (see eg. R v Griffin [2007] ACTCA 6; R v Massey [2009] ACTCA 12; Nona v R [2013] ACTCA 39; In the matter of an application by TS [2002] ACTSC 102 per Miles CJ; Emmanuel v Dau [1995] ACTSC 196 per Higgins J; R v Forsyth [2013] ACTSC 179 per Penfold J)

20. A decision to order the arrest of a person is, at common law, a serious infringement upon the liberty of the subject. In this jurisdiction, protection from such an infringement is conferred by s.42 of the Constitution:

“(1) No person shall be deprived of his personal liberty except -

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence;”

21. That section further provides –

“(3) A person who is arrested or detained -

(b) upon reasonable suspicion of his having committed, or being about to commit an offence, shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.”

22. Subsection (4) provides that “the necessity or desirability of interrogating the person ... is not a good ground for failing to comply with Subsection (3).”

23. In a free and democratic society, no person should be subjected to arbitrary or unnecessary detention by the State. Even where reasonable suspicion exists that a person has broken the law, that detention is appropriately limited by the law to its intended purpose.

24. For that reason, arrest of a person to enable them to be charged with an offence is not mandatory. The power of arrest without warrant is not unlimited.

25. The powers of arrest of any person, whether the Prime Minister or any other person, is regulated by law.

26. Specifically those powers are regulated by the District Courts Act 1963 and the Arrest Act 1977.

27. The District Courts Act, s.49, provides:

“(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 (not relevant)

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.

50 Warrant in the first instance

Where an information is laid before a Magistrate that a person is guilty of, or is suspected of having committed, a simple offence in the country, the Magistrate may, on oath being made before him substantiating the matter of the information to his satisfaction, instead of issuing a summons, issue in the first instance his warrant to apprehend the defendant and cause him to be brought before a Court to answer to the information and to be further dealt with according to law.”

28. To further emphasise the role of “the information”, s.53 prescribes that:

“A warrant shall -

(a) state shortly the offence or matter of the information on which it is founded.”

29. Section 93 provides for the issue of an arrest warrant where a person fails to appear in answer to a summons. Again that power is conditioned upon a statement on oath substantiating the matter of the information to the satisfaction of the Magistrate seized of the matter.

30. Those provisions are supplemented by the Arrest Act 1977.

31. Section 8 of that Act clarifies the circumstances in which proceeding against a person suspected of committing an offence may be by warrant of arrest rather than summons. It provides:

“Where an information is laid before a court, other than a Local Court [now abolished], 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.”

32. The case of Pala v Bidar [2016] PGSC 33; SC1515 determined that for the issue of a warrant of arrest, the relevant Magistrate needed to be satisfied that the provisions of s.8 of the Arrest Act were satisfied. Even so, that does not mandate the issue of an arrest warrant. It merely enlivens the discretion so to do.

33. It also follows from that case that the mere fact that arrest without warrant is not an available option does not lessen the force of those requirements in deciding whether proceeding by way of summons rather than arrest in the first instance would suffice in the circumstances of the case.

34. In this case, it was contended before Makail J that there had been no Information laid before her Worship to found the issue of a Warrant of Arrest.

35. That contention was founded upon evidence, uncontested before his Honour, that her Worship had stated, in open Court and in written reasons for her decision not to quash the Warrant.

“(orally) What information are you referring to? There is no information to be withdrawn.”

36. In her written decision of 4 July 2014 referring to the argument put to her that an Information in writing and verified on oath was a necessary precondition to the issue of an arrest warrant, she said:

[28] “... Counsel for the State ... raised issues with the validity of the Warrant of Arrest. The thrust of his argument as to why the Warrant of Arrest should be set aside was that there was no information before the court.

[29] Although it is also my view that the interest of justice in this particular case outweigh the Respondent’s consent to the orders sought, I must re-emphasise 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 put to him in court.”

37. Her Worship at no stage indicated that she had either received or, if received, acted on any Information laid before her.

38. In Pala v Bidar (supra), there was an Information but it did not disclose any grounds for believing that an offence known to law had been committed.

39. That case held that the decision to issue a warrant of arrest was reviewable. It is not an appeal but a review on administrative law grounds. The learned judge at first instance however declined to follow Pala v Bidar, taking the view that it was in conflict with the earlier Supreme Court decision in Eremas Wartoto v The State [2015] SC 1411.

40. In truth there was no conflict. Wartoto dealt with the question of a stay of criminal proceedings already commenced. Pala v Bidar was not concerned with such an issue but rather the validity of an arrest warrant wrongfully issued. It did not in any way inhibit police from asking a Magistrate to issue a summons to a person to answer an allegation of a criminal offence. What it did do was highlight the duty of a Magistrate, if an information is laid before him or her charging an indictable offence, to follow the provisions of the Arrest Act and not to cause an arrest to be made where a summons would be effective.

41. We turn, therefore, to the warrant in question.

42. The form used did not follow the form set out in the Arrest Regulations made under the Act. It recites “on the information of Chief Inspector Timothy Gitua of National Fraud Squad dated June 2014 [it] is considered necessary by this court to arrest Hon. Peter O’Neill.”

43. It does not say that the information stated “that there were reasonable grounds for believing” that the said Peter O’Neill had committed an offence or, importantly, that the arrest process was necessary to ensure the person’s appearance in court to answer a charge for the offence.

44. The Magistrate did attempt to set out the “nature of the information” as the prescribed form requires.

45. It recited that the Prime Minister:

“... being an [sic] holder of a public office, charged with the performance of his duty [by] virtue of his office, did corruptly direct [sic] to obtain a monetary benefit for Paul Paraka Lawyers in the discharge of the duties of his office as the Prime Minister.”

46. It did not disclose whether the “benefit” was or was not unlawful. For example, if, as in Pala’s case, it involved payment of fees to Paul Paraka Lawyers, it would be “corrupt” if, and only if, the Prime Minister was aware that Paul Paraka Lawyers were not entitled to such payment. In Pala’s case, the offending conduct was alleged to be the reference of Paraka’s bills of costs to taxation, a process for ascertaining the sum lawfully due. If the bills were fraudulent, that process would, if done properly by the relevant court officer, expose that.

47. However, the more fundamental defect is the basis for asserting that proceeding by way of arrest was necessary to ensure the Prime Minister’s appearance in court to answer the charge. What grounds existed for believing he would not attend unless arrested are not only disclosed but it is difficult to imagine what they might be.

48. The Information in question, even if it supported a belief that an offence had been committed, would have need to provide grounds for the belief that proceeding by way of summons would not have been effective. It does not even purport to assert that there were any, let alone “reasonable”, grounds for any such belief.

49. It follows that the warrant is defective on its face and the decision to issue it is equally defective. It must be quashed. The lack of care in its preparation is also concerning. Not only is “Independent” wrongly spelt, the place of the officer at (b) is blank. The date of the Information is partially blank.

50. It remains open to the informant to seek a summons or warrant from a Magistrate if a proper and sufficient information is laid.

51. The State is to pay the appellants’ costs of and incidental to this appeal, to be taxed if not agreed.

52. The following will therefore be the formal orders of this Court:

1. Both appeals are allowed.

2. The Warrant of Arrest dated 12 August 2014 is declared void and of no effect.

3. The orders of the District Court and the proceedings emanating therefrom are forthwith quashed.

4. The first, second and third respondents to pay the appellants’ costs of and incidental to the proceedings in this Court and the National Court to be taxed if not agreed.
_______________________________________________________________
Twivey Lawyers: Lawyers for the Appellants
Solicitor General’s Office: Lawyers for the Respondents