N2796

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 168 OF 2005

IN THE MATTER OF AN APPLICATION
BY PAUL TUPURU

BUKA: CANNINGS J
9, 11, 14, 22 MARCH 2005

RULING ON APPLICATION

Constitutional law – criminal law – immunity from prosecution – offences arising from crisis-related activities in relation to the Bougainville conflict – applicant charged with one count of wilful murder, two counts of attempted unlawful killing and two counts of unlawful deprivation of liberty under the Criminal Code – application for declaration that the offences with which the applicant is charged are offences to which the immunity from prosecution granted by Constitution, Section 344(2) (immunity from prosecution) applies – declaration by Governor-General under Constitution Section 344(3) – three criteria to be satisfied for immunity to apply, re: classes of offences to which the immunity applies, nature of crisis-related activities which shall qualify the offence for immunity, period of time to which the immunity applies – onus of establishing that the immunity does not apply on the prosecution – whether the three criteria are satisfied – proof of the nature of crisis-related activities – no rule of law applicable or appropriate – Constitution, Schedule 2.3 (development etc of the underlying law) – formulation of rule that judge should examine depositions before ruling on criteria – prosecution did not object to application for declaration – nonetheless duty of court to be satisfied that three criteria exist – application upheld – declaration made by court – effect of declaration. 

Cases cited:
Supreme Court Reference No 3 of 2001; Special Reference by the Attorney-General re Proposed Bougainville Amnesty, 18.01.02, unreported
The State v Jerry Singirok (2004) N2501

Counsel:
L Siminji for the applicant
L Rangan for the State

CANNINGS J: 

INTRODUCTION

This case is about immunity from prosecution. A Bougainville man has been charged with various criminal offences. He says that a constitutional immunity applies to those offences as they arise from crisis-related activities in relation to the Bougainville conflict. He is applying for a declaration that the immunity applies. If he succeeds, the prosecution of those offences cannot be pursued. 

BACKGROUND 

During the period from the late 1980s to the late 1990s the province of Papua New Guinea known as North Solomons or Bougainville underwent a great upheaval. There was an armed insurrection against the State. This became known as the Bougainville crisis or conflict. There were a number of parties to the conflict, including the Bougainville Revolutionary Army (BRA); the Papua New Guinea Defence Force (PNGDF); the Police Force; the National Government and the Bougainville Resistance Force. Many lives were lost. 

In the late 1990s a serious peace process commenced, involving many parties, culminating with the signing of the Bougainville Peace Agreement at Arawa on 30 August 2001. Central features of that agreement were that Bougainville would be granted significant autonomy; provision would be made for a referendum on independence for Bougainville; there would be mass disposal of weapons to be supervised by a United Nations Observer Mission; and an ‘amnesty or pardon’ would be granted to persons involved in the conflict. The Constitution of the Independent State of Papua New Guinea (the National Constitution) would be amended to give effect to the agreement.

CONSTITUTIONAL OVERVIEW

Constitutional Amendment

In 2002 the National Parliament duly made a law called Constitutional Amendment No 23, Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum. This law added a new Part XIV (Bougainville Government and Bougainville Referendum) to the National Constitution. 
Part XIV consists of the following divisions:

•	Division 1 – Preliminary, Sections 276-278;

•	Division 2 – Arrangements for the Establishment of Bougainville Government, Sections 279-287;

•	Division 3 – Division of Functions and Powers Between National Government and Bougainville Government and transfer of functions and powers to Bougainville Government, Sections 288-299; 

•	Division 4 – Powers and functions of the Bougainville Government and Matters relative thereto affecting other Provisions of this Constitution, Sections 300-323;

•	Division 5 – Fiscal Arrangements, Sections 324-329; 

•	Division 6 – Intergovernmental Relations and Review, Sections 330-337; 

•	Division 7 – Bougainville Referendum, Sections 338-343;

•	Division 8 – Immunity from Prosecution, Section 344; 

•	Division 9 – Miscellaneous, Sections 345-349. 

Prior to the addition of Part XIV Papua New Guinea already had one of the world’s longest constitutions. The new part added more than 70 new sections. Division XIV.8 consists of only one section, 344, which deals with the issue of immunity. That is the critical provision for the purposes of the present case.

Section 344 commenced operation on the date of certification of Constitutional Amendment No 23 of 25 June 2002. The other sections in Part XIV commenced operation on 7 August 2003. (See the commencement provision of Constitutional Amendment No 23 and National Gazette No G103 of 2002.)

New Organic Law

In 2002 the National Parliament made the Organic Law on Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum, which gave further effect to the new Part XIV of the National Constitution, in accordance with the Bougainville Peace Agreement.

Bougainville Constitution

A Bougainville Constitutional Commission was established under Part XIV. It consulted with the people of Bougainville and prepared a draft Bougainville constitution. A Bougainville Constituent Assembly was established, also under Part XIV. It considered and debated the draft constitution and consulted with the National Executive Council. Then on 12 November 2004, at Buin, it adopted the Constitution of the Autonomous Region of Bougainville (the Bougainville Constitution). The Governor-General endorsed the Bougainville Constitution and on 10 December 2004 it was published in the National Gazette. 

The Bougainville Constitution consists of a preamble, 26 parts (containing 241 sections) and 10 schedules. Some provisions have already come into effect: the provisions of Part XXV (First Bougainville General Election and First Meeting of House of Representatives), together with such other provisions as are necessary to enable the first general election of the President of the Autonomous Region of Bougainville and members of the House of Representatives (the Bougainville Legislature). They came into effect on 11 December 2004. The remainder of the Bougainville Constitution will come into effect on the day fixed for the return of the writs for the general election, 9 June 2005.

THE PRESENT CASE

It is within the above historical and constitutional context that the present case arises. In 1994 and 1995 the applicant, Paul Tupuru, was arrested and charged with a number of offences under the Criminal Code. The offences are alleged to have been committed in 1991 and 1992 in south Bougainville. On 15 February 1995 the District Court at Buka committed him for trial.

On 9 March 2005 Senior State Prosecutor, Mr Rangan, presented two indictments to me, constituting the National Court, at Buka:

•	one indictment charged the applicant with the wilful murder of Paul Harepa at Dusei in the Buin area of south Bougainville on a date unknown in 1991;
•	the other indictment charged the applicant with two counts of unlawful deprivation of liberty in relation to Joshua Kangku and Jeremiah Timpa and two counts of attempting to unlawfully kill Joshua Kangku and Jeremiah Timpa, and all these offences were allegedly committed at Dusei at various dates from 1990 to 1992.

I endorsed the indictments. Then Mr Rangan began to set out the background of the case. In the normal course of events the accused person would then have been arraigned, ie he would have had the allegations formally put to him and asked to plead guilty or not guilty. However as Mr Rangan unravelled the allegations it became apparent that there might be an issue of immunity to be addressed. I suggested to both counsel that they should look into the issue and consider their positions.

On 11 March 2005 the applicant’s counsel, Mr Siminji, indicated that he wished to make an application for a declaration of immunity.

On 14 March 2005 the application was heard. This is the ruling in that application.

PREVIOUS CASE

This is only the second reported case of an application for immunity from prosecution in relation to the Bougainville crisis. The first was The State v Jerry Singirok (2004) N2501, National Court, Davani J. Jerry Singirok, a former Commander of the Papua New Guinea Defence Force, was charged with sedition, an offence under Section 54(1) of the Criminal Code, for making an ‘address to the nation’ in March 1997 at the height of the Sandline crisis. He called on the citizens of Papua New Guinea to force the Prime Minister, Deputy Prime Minister and Minister for Defence to resign within 48 hours and to join with the Defence Force and the Police Force in rejecting the government of the day. He said that the government had secured the services of Sandline International, a mercenary group, for the sole purpose of putting an end to the Bougainville conflict and to reopen the Panguna copper mine before the 1997 general election; that the contract between the government and Sandline was entered into corruptly; and that fulfilment of the contract would lead to the murder of many innocent citizens, especially Bougainvilleans.

After the State presented the indictment for the criminal prosecution in February 2004, the accused, Jerry Singirok, applied for a declaration of immunity in accordance with Section 344 of the National Constitution. He argued that his address to the nation was a crisis-related activity.

His application was refused. Davani J held that crisis-related activities are only those that took place on Bougainville and from which people could seek an amnesty or pardon to enable the fulfilling and completion of the peace process. The prosecution was pursued and the accused was eventually acquitted. 

NATURE OF THE IMMUNITY

Limited immunity

There is no doubt that an immunity exists in relation to criminal offences committed during the Bougainville crisis. It is not a blanket immunity. It is limited. But it is a very effective immunity as it arises directly from the National Constitution.

Constitution

Section 344 (immunity from prosecution) states:

(1)	The purpose of this section is to assist in the reconciliation process in Bougainville, and it is the intention of the Parliament that the provisions of this section be so applied as to assist in achieving this purpose.

(2)	There shall be immunity from prosecution in accordance with this section in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict.

(3)	The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may by declaration published in the National Gazette, declare—

(a)	subject to Paragraph (b), the class or classes of offences to which the immunity is to apply or not apply; and
(b)	the nature of crisis-related activities which shall qualify the offences for the immunity; and
(c)	the period of time to which the immunity shall apply; and
(d)	such other matters as are necessary to ensure that the immunity can be effected.

(4)	Where a declaration has been made under Subsection (3), no charge shall be laid and no prosecution—

(a)	shall be initiated; or
(b)	if initiated, shall be pursued,

in respect of an offence—

(c)	included in the offences described pursuant to Subsection (3)(a); and
(d)	of a nature described in Subsection (3)(b); and
(e)	committed during the period specified in Subsection (3)(c).

(5)	The provisions of this section—

(a)	may be applied generally in respect of classes of offences and classes of circumstances without the need to identify alleged offenders; and
(b)	shall apply to offences whether or not a charge has been laid in respect of them.

Significance

No other provision of the National Constitution provides for a declaration of immunity from prosecution. Section 344 is unprecedented. It qualifies the exercise of powers by the Public Prosecutor in a significant way. The Public Prosecutor is a constitutional office-holder whose primary functions are to control the exercise and performance of the prosecution function and to bring or decline to bring proceedings for misconduct in office by leaders. The general principle is that the Public Prosecutor is not subject to direction or control in the performance of those functions. (National Constitution, Sections 176(3)(a) and 177(1)(a).) The Public Prosecutor may grant immunity, either absolute or conditional, where in the opinion of the Public Prosecutor it is necessary in the interests of justice to do so, in relation to an offence with which a person could otherwise be charged (Public Prosecutor (Office and Functions) Act Chapter No 338, Section 5). But that sort of immunity, granted by the Public Prosecutor on a case-by-case basis, is a different thing to a general immunity granted by operation of law.

Immunity by operation of law rather than direction to Public Prosecutor 

At one stage, after the Bougainville Peace Agreement was signed, it was intended that the amnesty/pardon/immunity issue would be addressed by giving the Public Prosecutor a direction under Section 176(3)(b) of the National Constitution.

Section 176(3) states:

Subject to this Constitution—

(a)	in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but
(b)	nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization).

In late 2001 the Attorney-General made a special reference to the Supreme Court under Section 19 of the National Constitution, seeking a binding opinion on whether the circumstances of the Bougainville crisis and the peace process gave rise to matters that might prejudice the security, defence or international relations of Papua New Guinea in a way that would warrant a direction being given to the Public Prosecutor under Section 176(3)(b). It was envisaged that the National Executive Council would advise the Governor-General, who would then give a direction to the Public Prosecutor not to prosecute any person alleged to have committed crimes during the period of the crisis. 

The case was heard in early 2002. The Attorney-General argued that such a direction would be constitutional. The Public Prosecutor and the Ombudsman Commission were both granted leave to intervene and argued that a broad direction in those terms is not permitted and that a constitutional amendment would be necessary. 

The court held that Section 176(3)(b) gives a positive power to give directions to the Public Prosecutor on matters coming within it; that whether a matter might prejudice security, defence or international relations is a matter of discretion; the Public Prosecutor would be bound to comply with a direction, if it were given within the boundaries of Section 176(3)(b); and that neither Section 176 (establishment of offices) or Section 197 (functions of the police force) of the National Constitution prevent the National Parliament from enacting laws that grant an amnesty to a group of persons for acts or omissions that may be criminal offences committed during a defined period. The court, however, said that a direction to the Public Prosecutor under Section 176(3)(b) could be subject to judicial review. 

The court declined to answer the question (No 7) that specifically asked whether the Bougainville crisis and the peace process were matters that could give rise to a direction to the Public Prosecutor. 

The court stated:

Decline to answer; circumstances are matters for the National Executive Council’s judgment and discretion to advise the Head of State.

On 18 January 2002 the court published a judgment summary. Full reasons are yet to be given. (Supreme Court Reference No 3 of 2001; Special Reference by the Attorney-General re Proposed Bougainville Amnesty, 18.01.02, unreported, Amet CJ, Los J, Hinchliffe J, Sheehan J, Injia J.) 

The National Constitution was amended a few months after the Supreme Court’s decision. The ‘amnesty or pardon’ issue was addressed by Section 344. No direction has ever been given to the Public Prosecutor under Section 176(3)(b).

Relevant provisions of the Bougainville Constitution

The immunity exists due to the combined effect of Section 344 of the National Constitution and a declaration by the Governor-General under Section 344(3). The immunity is recognised by Section 187 of the Bougainville Constitution. 

Section 187 (issues arising from the Bougainville conflict) states:

(1)	The Bougainville Executive Council shall formulate a policy for –

(a)	dealing with human rights issues and victims of human rights issues arising out of; and
(b)	effecting reconciliation of parties involved in,

the Bougainville conflict, and to this end shall consult with the National Government.

(2)	In so far as is possible, Bougainville customs and practices shall be utilized and employed in dealing with the human rights issues and in effecting the reconciliation referred to in Subsection (1).

(3)	The provisions of the Bougainville Peace Agreement, as implemented in Section 344 (immunity from prosecution) of the National Constitution relating to immunity from prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict are set out in Schedule 6.1 (National Constitutional Provisions relating to Immunity from Prosecution) to this Constitution.

(4)	The declaration in respect of immunity from prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict made by the Head of State, acting with, and in accordance with the advice of the National Executive Council under Section 344(3) (immunity from prosecution) of the National Constitution, dated 1 August 2002 and published in the National Gazette on 2nd August 2002 is as set in Schedule 6.2 (Declaration in respect of immunity, etc).

Section 344 and the Governor-General’s declaration are reproduced in Schedules 6.1 and 6.2 of the Bougainville Constitution. However, it should be noted that the immunity operated irrespective of its recognition and reproduction in the Bougainville Constitution. 

THE GOVERNOR-GENERAL’S DECLARATION

Section 344(3) declaration

On 1 August 2002 the then Governor-General, Sir Silas Atopare, acting with and in accordance with the advice of the National Executive Council, made a declaration under Section 344(3). 

Section 344(3) confers the power to make a declaration on the Head of State. This means the Queen and Head of State. The National Constitution provides that the Governor-General is the representative of the Queen and Head of State. The privileges, powers, functions, duties and responsibilities of the Head of State may be had, exercised and performed by the Governor-General. A reference in any law to the Head of State is to be read as a reference to the Governor-General. (National Constitution, Section 82, Schedule 1.21.) 

Text of declaration

The declaration, published in the National Gazette on 2 August 2002, states:

DECLARATION IN RESPECT OF IMMUNITY FROM
PROSECUTION IN RESPECT OF CERTAIN OFFENCES
ARISING FROM CRISIS-RELATED ACTIVITIES
IN RELATION TO THE BOUGAINVILLE CONFLICT

I, Silas Atopare GCMG, K St J, Governor-General, by virtue of the powers conferred by Section 344(3) of the Constitution and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council, hereby Declare that, in respect of the immunity from prosecution granted by Section 344(2) of the Constitution, in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict:-

(a)	the classes of offences to which the immunity is to apply are as set out in the Schedule hereto; and

(b)	the crisis-related activities which qualify offences for the immunity are activities:-

(i)	in pursuit of the objectives of any of the parties to the conflict including, but not limited to, the ordering and or carrying out activities in the course of armed conflict or against a person believed to be a member or supporter of one of the parties to the conflict; or
(ii)	relating to the self-defence of an individual, family, group or party; or
(iii)	in defence of the community, public order and/or justice where normal constitutional processes could not be applied; or
(iv)	involving non-compliance with regulatory, licensing or requirements where compliance was impracticable on account of the crisis; and

(c)	the immunity shall apply in respect of offences committed during the period commencing 1st October, 1988 and ending:-

(i)	in respect of offences other than:-

(A)	those committed in activities referred to in Paragraph (b)(iv); and
(B)	those relating to illegal possession, ownership and control of firearms, 

on 30th August, 2001; and

(ii)	in respect of offences committed in activities referred to in Paragraph (b)(iv) above – on the date on which compliance becomes practicable or on the date of establishment of the autonomous Bougainville Government, whichever shall first happen; and
(iii)	in respect of offences relating to the illegal possession, ownership and control of firearms – on the date of verification by the Director of the United Nations Observer Mission on Bougainville that the weapons to which the weapons disposal agreement applies are secured and contained under the supervision of that Mission, or, in respect of persons in control of the weapons collected pursuant to the weapons disposal agreement, on the completion of stage 3 of that agreement; and

(d)	any person charged with an offence covered by this Declaration may, at any time after being so charged, make application to the court for a declaration that the offence with which he is charged is an offence to which the immunity applies, and upon the hearing of the application the onus of establishing that the immunity does not apply shall be upon the prosecution.

SCHEDULE

Any offence within Papua New Guinea jurisdiction specified in:-

(a)	Part II (Offences against Public Order) of the Criminal Code (Chapter 262); and
(b)	Part III (Offences against the Administration of Law and Justice and against Public Authority) of the Criminal Code (Chapter 262); and
(c)	Divisions 1, 3, 4 and 5 of Part IV (Offences Injurious to the Public in General) of the Criminal Code (Chapter 262); and
(d)	Part V (Offences against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals) of the Criminal Code (Chapter 262), excepting the offences specified in the following:-

(i)	Section 301 (Infanticide);
(ii)	Section 312 (Killing unborn child);
(iii)	Division 7 (Assaults on females; abduction);
(iv)	Division 9 (Bigamy and offences relating to parental rights and duties); and

(e)	Part VI (Offences relating to Property and Contracts) of the Criminal Code (Chapter 262); and
(f)	Part VII (Preparation to Commit Offences; Conspiracy; Accessories after the Fact) of the Criminal Code (Chapter 262); and
(g)	Summary Offences Act (Chapter 264); and
(h)	any piece of legislation imposing regulatory, licensing or similar requirements relating to crisis-related activities to which Paragraph (b)(iv) of this Declaration relates, to the extent that the offence is related to non-compliance with the regulatory, licensing or similar provisions; and
(i)	any piece of legislation relating to the possession, control or use of firearms, to the extent that the offence is related to the illegal possession, control or use of firearms.

Dated this 1st day of August 2002.

SILAS ATOPARE
Governor-General
Effect of declaration

The declaration does a number of things:

•	it prescribes, by paragraphs (a), (b) and (c), the offences that fall within the immunity granted by Section 344(2);

•	it therefore brings the immunity into effect (Section 344(2) is not self-executing and without the declaration no immunity would operate); 

•	it means, per force of Section 344(4), that if an offence is covered by the immunity, no charge can be laid, no prosecution can be initiated and, if initiated, a prosecution cannot be pursued, in respect of that offence; 

•	it confers, by paragraph (d), on any person charged with an offence covered by the declaration, the right to make application to a court for a declaration that the offence with which the person is charged is an offence to which the immunity applies; and 

•	it provides, also by paragraph (d), that upon the hearing of such an application the prosecution bears the onus of establishing that the immunity does not apply.

Three criteria

For the immunity to apply, three criteria must be satisfied:

(a)	the offence must fall within one of the nine classes of offences (paragraphs (a) to (h)) prescribed by the schedule to the Governor-General’s declaration;

(b)	the offence must arise from crisis-related activities in relation to the Bougainville conflict, as defined by subparagraphs (i) to (iv) of paragraph (b) of the declaration;

(c)	the offence must have been committed within the period prescribed by paragraph (c) of the declaration. 

APPLICANT’S SUBMISSIONS

Mr Siminji, for the applicant, argued that all three criteria are satisfied in this case. The offences that the applicant is charged with fall within paragraph (d) of the schedule. They arise from crisis-related activities. At the relevant time, the applicant was a commander of the BRA in south Bougainville. He allegedly committed the offences against persons believed to be supporters or sympathisers of the National Government. The offences were committed within the period referred to in the declaration. 

THE STATE’S POSITION

Mr Rangan responded that the State did not oppose the application.

PROCEDURAL ISSUES

Two issues

The submissions of the parties gave rise to two procedural issues that need to be addressed before considering the merits of the application:

•	first, should the court determine the application, given that the State does not oppose it? 

•	secondly, what material should the court have regard to before determining the application?

Determination of the application

I decided that I should determine the application even though it was unopposed. The State was intending to go ahead with the indictment and had made no decision to withdraw it. The accused person had the right to make the application that he did, so as to exercise his right to the full protection of law under Section 37(1) of the National Constitution. It was incumbent on the court in those circumstances to determine the application expeditiously.

Material

As to what material I should have regard to, it would have been appropriate to call for affidavit evidence in support of the application. That was what happened in Singirok’s case (cited above). The applicant filed an originating summons and a notice of motion, supported by affidavit, in accordance with the National Court Rules.

In the present case no affidavits were filed and I permitted the application to be made orally. I then had to consider whether it would be appropriate and sufficient to look at the District Court depositions. I consulted both counsel. They agreed that I could, and should do that and make a decision accordingly. A judge is usually only permitted to consider the depositions after an accused person pleads guilty, so that the judge can check that the accused has properly pleaded guilty and to assist the judge in determining the sentence. Here, no plea had been taken, so if I were to look at the depositions at such an early stage of the case, I would be doing something unusual. But doing something unusual does not make it wrong. I take into account that this is an entirely new area of law. The court is dealing with something never before encountered. There appears to be no rule of law applicable and appropriate to the circumstances of the country. I must therefore apply Schedules 2.3 and 2.4 of the National Constitution.

Schedule 2.3 (development, etc, of the underlying law) states:

(1)	If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard—

(a)	in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
(b)	to Division III.3 (basic rights); and
(c)	to analogies to be drawn from relevant statutes and custom; and
(d)	to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and
(e)	to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,
and to the circumstances of the country from time to time.

(2)	If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant—

(a)	in the case of the National Court—the court may; and
(b)	in the case of any other court (not being a village court)—the court shall,

refer the matter for decision to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

Schedule 2.4 (judicial development of the underlying law) states:

In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.

I have had regard to the matters prescribed by Schedules 2.3(1) and 2.4 of the National Constitution, particularly the circumstances prevailing in the country. It is evident from the Bougainville Peace Agreement that the constitutional enshrinement of immunity from prosecution was a vital ingredient to peace and weapons disposal. The National Court must adapt its procedures and rules to allow speedy resolution of immunity issues whenever they arise. I therefore formulate the rule that it is appropriate and sufficient for a judge to consider the depositions for the purposes of determining an application for a declaration of immunity under paragraph (d) of the declaration of 1 August 2002 made under Section 344(3) of the National Constitution. In formulating that rule I am discharging the National Court’s duty to develop the underlying law, pursuant to Schedules 2.3(1) and 2.4 of the National Constitution. I do not consider it necessary to refer the matter to the Supreme Court and therefore I exercise my discretion under Schedule 2.3(2) not to do so.

ARE THE THREE CRITERIA SATISFIED?

Merits 

I now consider the merits of the application. As indicated above the application for a declaration that the offences the applicant is charged with are offences to which the immunity applies will be granted if the criteria in all of paragraphs (a), (b) and (c) of the Governor-General’s declaration are satisfied.

Class of offences

The applicant has been charged with one count of wilful murder and two counts each of attempted unlawful killing and deprivation of liberty.

Wilful murder

This is an offence under Section 299 of the Criminal Code. It is specified in Part V (Offences Against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals); and specifically within Division V.3 (homicide: suicide: concealment of birth). It is not an offence specified in subparagraphs (d)(i) to (d)(iv) of the schedule. It is an offence allegedly committed in Papua New Guinea jurisdiction. It is therefore within the class of offences to which the immunity applies, by virtue of paragraph (a) of the declaration and paragraph (d) of the schedule to the declaration.

Attempted unlawful killing 

This is an offence under Section 304 of the Criminal Code. It is specified in Part V (Offences Against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals); and specifically within Division V.3 (homicide: suicide: concealment of birth). It is not an offence specified in subparagraphs (d)(i) to (d)(iv) of the schedule. It is an offence allegedly committed in Papua New Guinea jurisdiction. It is therefore within the class of offences to which the immunity applies, by virtue of paragraph (a) of the declaration and paragraph (d) of the schedule to the declaration.

Deprivation of liberty 

This is an offence under Section 355 of the Criminal Code. It is specified in Part V (Offences Against the Person and Relating to Marriage and Parental Rights and Duties and against the Reputation of Individuals); and specifically within Division V.8 (offences against liberty). It is not an offence specified in subparagraphs (d)(i) to (d)(iv) of the schedule. It is an offence allegedly committed in Papua New Guinea jurisdiction. It is therefore within the class of offences to which the immunity applies, by virtue of paragraph (a) of the declaration and paragraph (d) of the schedule to the declaration.

Conclusion

All of the offences satisfy the first criterion.

Crisis-related activities

Nature of allegations

I have examined the depositions and it is consistently alleged that the applicant was at the time of commission of the alleged offences a supreme commander of the BRA in the southern region, that there were BRA platoons under his command and that he gave orders for the arrest, detention, torture or killing of the alleged victims for practising sorcery or for not giving the applicant poison to kill ‘the security force members’ or for siding with the government or reporting the applicant and his people ‘to the army’. 

The hand-up brief prepared by the police prosecutor for the District Court committal proceedings states:

The accused now before the court was a supreme commander of BRA at Dusei village in the Siwai area of Buin District, North Solomons Province, during the crisis.

On July 28 1990 to March 5 1992 the accused who was somebody in charge was alleged to have ordered the arrest and detention of victim Joshua Kangku.

While victim was under custody, suspect at certain place of detention of victim, personally interrogated victim and inflicted wounds and attempt to have victim killed.

Victim however managed to escape from all that was happening that time. Accused was also alleged to have involved in the same treatment of another victim named Jeremiah Timpa. The second victim was also treated the same as Joshua Kangku. He was beaten up to death and both victims were hung up and tortured. Somehow the second victim managed to escape on May 15 1992.

Both victims escaped to Buka Island where they currently reside. Having saw the accused at Buka both reported the incident to police, which resulted in the arrest of the accused. 

During investigation the accused was said to have involved in [the] killing of a man called Paul Harepa. The deceased was said to have been gunned down by the accused at Dusei village during the crisis.

The accused was then charged with the wilful murder of Paul Harepa.

Death

There is evidence in the depositions that the two men who the applicant allegedly unlawfully detained and attempted to kill, Jeremiah Timpa and Joshua Kangku, have since died. There is a statutory declaration by a relative of the two men that Mr Timpa died in May 2000 and Mr Kangku died in November 2004. Their deaths have no effect on the legality or propriety of the prosecution of the applicant or on the merits of the application now before the court.

Onus of proof

It can reasonably be inferred from the depositions that the applicant was involved in crisis-related activities. However, as Davani J emphasised in Singirok’s case, it is not sufficient to conclude, generally, that that is the case. The court needs to be satisfied that the activities took place on Bougainville and fall within one of the categories in subparagraphs (b)(i) to (b)(iv) of the Governor-General’s declaration. When determining whether it is so satisfied the court must bear in mind that the prosecution bears the onus of establishing that the immunity does not apply.

Davani J explained the effect of this in Singirok’s case, at page 12:

Clause (d) of the declaration states that the onus is on the prosecution to prove that immunity does not apply. The Peace Agreement states … that technical rules of construction should not apply. Clause (d) of the declaration does not state whether it is the civil or criminal standard that is applicable. One can argue that because it is a criminal case, that the criminal standard of proof applies. However, because the Peace Agreement is specific as to how it is to be interpreted and because the Declaration is a product of the Peace Agreement, that the ordinary dictionary meaning of "onus" should be applied, and that according to the revised third edition of the Oxford Advanced Learners Dictionary of Current English, "onus" means that "it is for you (in this case the State) to supply the proof".

I agree with her Honour. It is up to the prosecution to supply the proof that these were not crisis-related activities. In Singirok the prosecution supplied the proof. In the present case, by contrast, the prosecution concedes that the applicant was involved in crisis-related activities. However the court should not, in my view, simply rubber-stamp such a concession. It should still inquire into the matter to be satisfied, objectively, that the crisis-related activities are of the prescribed character and to ensure that the concession has not been made improperly or without good reason.

Inquiry

I have done that and I am not satisfied that the actions of the applicant were crisis-related activities as defined by subparagraphs (b)(ii) to (b)(iv) of the declaration.

However, I am satisfied that when doing the things that are alleged to constitute the offences the applicant was carrying out activities against persons (Paul Harepa, Joshua Kangku and Jeremiah Timpa) believed to be supporters of one of the parties to the conflict, ie the National Government. The applicant was doing those things in his capacity as a BRA commander. The BRA was one of the parties to the conflict. He was therefore acting in pursuit of the objectives of one of the parties to the conflict. 

The offences therefore arise from crisis-related activities and qualify for the immunity under subparagraph (b)(i) of the Governor-General’s declaration. 

Conclusion

The second criterion is satisfied.

Period

The alleged offences did not involve non-compliance with regulatory or licensing requirements and did not relate to illegal possession, ownership or control of firearms. Therefore the question is whether they were committed during the period commencing on 1 October 1988 and ending on 30 August 2001. 

The offences were allegedly committed in the period from 1990 to 1992, well within the period prescribed by subparagraph (c)(i) of the declaration.

Therefore the third criterion is satisfied. 

Result 

All three criteria are satisfied. The prosecution’s onus has not been discharged. The result is that the constitutional immunity from prosecution applies to the offences with which the applicant has been charged. The application for a declaration will therefore be granted.

RULING AND DECLARATION

The Court:

1	rules that the application by Paul Tupuru made under paragraph (d) of the Governor-General’s declaration of 1 August 2002 pursuant to Section 344(2) of the National Constitution, for a declaration that the offences with which he is charged are offences to which an immunity from prosecution applies, is upheld; and accordingly 

2	declares that all offences in the indictments presented on 11 March 2005 and with which Paul Tupuru has been charged are offences to which the immunity in Section 344(2) of the National Constitution applies; and

3	declares for the avoidance of doubt that the further prosecution of those offences shall not be pursued.

Ruled and declared accordingly.
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Lawyers for the applicant	:	Public Solicitor
Lawyers for the State		:	Public Prosecutor