Makasi v Commander of PPF [2008] SBCA 2; CA-CAC 1 of 2008 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Civil Appeal Case No. 1 of 2008 (On Appeal from High Court Civil Case No. 59 of 2005)
DATE OF HEARING:	15 July 2008
DATE OF JUDGMENT:	18 July 2008
THE COURT:	Williams JA , Adams JA,
	Goldsbrough JA
PARTIES:	JOHN MAKASI -V- COMMANDER OF PPF AND ATTORNEY-GENERAL
ADVOCATES:
Appellant:	C Ashley
Respondents:	Berger and A Radclyffe for First Respondent
	Woods for Second Respondent
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1 - 9

JUDGMENT OF THE COURT

The appellant sued the first and second respondents in the High Court seeking redress for their alleged:-

(a) contravention of his personal liberty under s.5 (1) of the Solomon Islands Constitution between 21 to 31 December 2004;
(b) unlawful arrest and/or detention under s.5 (2) of the Constitution between 22 to 31 December 2004;
(c) undue delay to take him to Court under s.5(3) of the Constitution between 22 to 31 December 2004;
(d) inhuman and degrading treatment of him under s.7 of the Constitution between 22 and 31 December 2004;
(e) unlawful entry, search and damage to his property under s.9(1) of the Constitution on 29 December 2004;
(f) contravention of his freedom of movement under s.14 (1) and (2) of the Constitution between 22 to 31 December 2004.

The learned trial judge rejected the substance of the appellant’s evidence relied on to support the above claims. For reasons which the judge gave, and which are not challenged on appeal, the appellant’s claim for redress based on the above particularized matters failed. That effectively meant the answer to question 2 in the Notice of Motion of 9 March 2005 was answered "No" and there was no basis for granting the order sought in paragraph 3 thereof.

The first respondent did not seek to defend the claims on the basis of immunity derived from s.17 of the Facilitation of International Assistance Act 2003 and in consequence the judge held that question 3 in the Notice of Motion did not arise for determination. There was then no basis for making the order sought in paragraph 1 of that Notice of Motion.

Question 1 in the Notice of Motion sought an answer to:

"Whether the actions of the First Respondent through its officers during the period from Wednesday 22nd to Friday 31st December 2004 taken against the Applicant were at the direction or control of the Second Respondent and consistent with s.43 (5) of the Solomon Islands Constitution and the provisions of the Police Act [cap 110]."

For reasons he gave the judge answered that question "No" but did not make the order sought in paragraph 2 of that motion which asked for a declaration

"that any criminal investigation conducted by the First Respondent without the overall supervision of the Second Respondent is unconstitutional and is therefore void and of no effect."

The critical declaration sought by the appellant on appeal is number 2 which is as follows:-

"A declaration that s.19 of the Facilitation of International Assistance act 2003 (No. 1 of 2003) is subject to s.43 of the Solomon Islands Constitution and that any criminal investigations conducted by the First Respondent without the overall supervision of the Second Respondent is unconstitutional and is therefore void and of no effect."

If that declaration was made the appellant would not thereby be entitled to redress for the allegations made in paragraph (a) to (f) set out above. The appellant would not establish his rights under the Constitution were violated merely by obtaining that declaration because the particulars in which his rights were allegedly contravened were rejected by the trial judge.

In consequence the only relief which the appellant could obtain if successful on the appeal would be a declaration in terms of order number 2 in the Notice of Appeal.

It is necessary now to set out the background to these proceedings. The first respondent is the Commander of the Participating Police Force (PPF) which is present in the Solomon Islands pursuant to the provisions of the Facilitation of International Assistance Act 2003 and associated agreements and understandings with the Regional Assistance Mission to the Solomon Islands.

Initially the Commissioner of Police for the Royal Solomon Islands Police was the second respondent, but by order of the Court the Attorney-General was made the second respondent representing the Commissioner of Police.

In the early morning of 22nd December 2004 Adam Dunning, an Australian Federal Police Protective Service Officer serving with the PPF, was shot and killed while on patrol on the Kolaá Ridge road in East Honiara. The PPF immediately began an investigation into that shooting.

Johnson Siapu, an Assistant Commissioner in the Royal Solomon Islands Police Force, swore an affidavit in these proceedings on behalf of the second respondent. In that affidavit the following statements were made:-

"While I am in charge of my department like other ACP’s we are all under the command of the Commissioner of Police who by virtue of s.43 (3) of the Constitution is the head of the Police Force in the Solomon Islands.

The first respondent as Commander of the Participating Force ("the PPF") is not responsible to the Commissioner of Police in any matter concerning the conduct of the PPF operations. .........

Further to s.19 of the Facilitation Act, the sole responsibility for the internal command, control, discipline and administration of the personnel of the PPF is vested in RAMSI. The situation prevails even though Mrs Sandra Peisley occupies the position of Commander of the PPF and is also a Deputy Commissioner of Police.

The investigation of the possible involvement of the Applicant in the present case in relation to the tragic shooting of Officer Adam Dunning was a case that was not ordered by me or nay officers under my command. We had left it to the PPF to carry out the investigations. However, my officers assisted the PPF as interpreters and provided help to locate persons whom the PPF wished to interview."

Before the judge at first instance and again in this court counsel for the appellant submitted that there could, by virtue of the Constitution, only be one police force in the Solomon Islands. That was rejected by the judge. He referred to s.19 (1) (g) and s.19 (4) of the Constitution and the detailed judgment of the Chief Justice in Nori –v- Attorney-General and Peisley [2006] SBHC 134. Not surprisingly all counsel in this Court, including counsel for the appellant, recognized the authority of that judgment. This court endorses the reasoning of and conclusions reached by the Chief Justice.

Clearly s.43 of the Constitution provides that the Solomon Islands Police Force shall be under the sole command of the Commissioner who is responsible for determining the uses and controlling the operations of the Force and is not subject to the direction or control of any person or authority with respect to such matters.

But as s.19 (4) of the Constitution recognizes, when needed, another police force may be present in the Solomon Islands. So much was held by the trial Judge here in conformity with the reasoning, of the Chief Justice in Nori.

The learned judge at first instance rejected the submission there could be only one police force in the Solomon Islands and nothing said by counsel for the appellant on the hearing of the appeal establishes that he was wrong in as concluding. The trial judge was clearly correct in arriving at the conclusion which he did.

The next submission addressed both to the Court at trial and this Court was that when there was another police force present in the Solomon Islands that force was subject to the command, control, directions and superintendence of the Commissioner. It was said anything less would not be consistent with s.43 (5) of the Constitution.

The PPF is in the Solomon Islands consequent upon the Agreement between the Assisting Countries and the Solomon Islands of 24 May 2003 and the subsequent Facilitation of International Assistance Act 2003. The trial judge cited with approval the following passage from the reasoning of the Chief Justice in Nori:

"As there are two Police Forces, which is not contested, it is only proper that members of the PPF (who consist of numerous Police Officers from the participating countries) have a clear issue of command and control in terms of general administration and discipline. In their operational control and activities that also comes from the head of the PPF, who in turn comes under the direct command and control of the Commissioner. The overall command and control of the Commissioner therefore is not usurped, compromised, diminished or reduced. Through, Article 5.2, that command and control authority is retained. "

Article 5.2 of the Agreement of 24 May 2003 provided that the head of the PPF should be appointed a Deputy Commissioner of the Solomon Islands Police Force.

The trial judge then concluded:-

"The members of the PPF who dealt with the Applicant were under the "operational control of the head of the PPF, who in turn comes under the direct control of the Commissioner" of the Police Force, by virtue of his position as the Deputy Commissioner of the Police Force. This does not compromise, diminish or reduce the power of the Commissioner of the Police Force as envisaged under s.43 (5) of the Constitution."

That conclusion reflected s.19 of the Facilitation of International Assistance Act 2003 which provides that while "respecting the laws of Solomon Islands, the visiting contingent shall have sole responsibility for the internal command, control, discipline and administration of the personnel of the visiting contingent."

Section 19 of the Facilitation Act only deals with the PPF and it does not have the consequence of in any way restricting the command of the Commissioner over the Royal Solomon Islands Police Force which is mandated by s.43 of the Constitution. Section 43 only deals with the relationship between the Commissioner and the Royal Solomon Islands Police Force and it has no relevance to an arrangement made by the Government of the Solomon Islands with some other police force serving in the Solomon Islands. Further, section 43 does not require all police functions, including those vested in the PPF, to be under the control of the Commissioner. Finally, s.19 of the Facilitation Act does not in any way subject the Commissioner to any direction or control.

It must be noted that the Supreme Court of Papua New Guinea was considering very different legislative provisions in Special Reference pursuant to Constitution Section 19; Special Reference by the Morobe Provincial Executive [2005] PGSCI. The decision is not helpful in resolving the issues raised by this appeal.

It is probably true to say, as counsel for the appellant submitted, that the second respondent had no command or control over the PPF carrying out investigations into the murder of Dunning during the period 22 to 31 December 2004. But the clear inference from the affidavit of Siapu is either that the second respondent agreed that should be the case or he acquiesced in that position. In either event there was no breach of any provision of the Constitution.

It remains to say something about the answer "No" given by the judge at first instance to Question 1. It is obvious that the question raises two separate issues. Firstly, were the relevant actions of the first respondent "at the direction and control of the Second Respondent." Secondly, were those actions "consistent with s.43 (5) of the Solomon Islands Constitution and the provisions of the Police Act." It is clear from the reasons of the judge at first instance that the answer "No" relates to the first part of the question and not the second. That is confirmed by the judge’s refusal to make the order sought in paragraph 2 of the Notice of Motion. Clearly, and correctly, the trial judge was of the view that nothing done by the First Respondent during the relevant period was contrary to the Constitution.

It follows that the appeal should be dismissed with costs.

Williams JA
Vice President

Goldsbrough JA
Member

Adams JA
Member

The question of costs

1. When the orders of the Court were announced, counsel for the First and Second Respondents informed the Court that they understood that the usual allowance of costs in the Court of Appeal is 40% above the costs usually allowed in the High Court and sought an indication that this practice should continue under the regime prescribed by the new Rules of Court. We think it sufficient to say, without deciding one way or the other whether the understanding of counsel is correct as to the increased allowance, that the new Rules do not require departure from the current practice whatever it might be. We point out that the relevant discretion is given at first instance to the Registrar and this indication is not intended to prevent his exercising his discretion as he thinks proper. Of course, in the event of a dispute, the Act provides for appeal.
   

The amount paid into court for security of costs can be disbursed equally to each of the first and second respondents.