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Ipape v State [2008] PGNC 116; N3430 (24 July 2008)

N3430

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 288 OF 2008

BETWEEN

TAKOPE IPAPE

AND

THE STATE

Wabag: Yalo, AJ
2008: 24 July

CRIMINAL LAW - Application under Sections 155(3) and 42(6) Constitution and Section 6 Bail Act – Grant of Bail to Applicant by National Court – District Court revoked National Court Bail, imprisoned Applicant to 3 months jail with hard labour – Applicant found Guilty of Offence for which he was not Charged – District Court has No Jurisdiction to Revoke National Court Bail – District Court’s ruling Unconstitutional – National Court Bail is in force – Applicant ordered to be released from unlawful custody.

Cases cited
Nil

Counsels
Mr P. Kumo, for the Applicant
Mr J. Done, for the State

24 July, 2008

1 YALO, AJ: This is a Bail Application under Sections 155(3) and 42(6) of the Constitution and Section 6 of the Bail Act. The Application was made on 23 July 2008. I refused the application on the basis that two pertinent documents that would have greatly assisted the Court to consider the Application, namely a copy of the Applicant’s Bail Certificate issued by the National Court at Mount Hagen and decision of the District Court at Mendi were not before me. I further ruled that it is open for the Applicant to apply again if he so wished. It appears now that the Applicant has obtained these documents and therefore the subsequent application he makes today.

2. When the application was made this morning I gave a short oral ruling granting the application and undertook to return in the afternoon with detailed reasons. These are my reasons.
   
3. The brief background facts are as follows. The Applicant has been charged for one count of wilful murder under Section 300 of the Criminal Code Act Ch 262. The National Court in Mount Hagen granted bail to the Applicant on 5 October 2007. A copy of the Bail Certificate is annexed to Mr Kumo’s affidavit and is marked as Annexure "C". Bail condition No 9 reads:
   

9. The Applicant is to report to the Clerk of the Mendi District Court every Thursday and appear on the first day of any crimes call-over conducted at the National Court sitting at Mendi.

4 The Applicant submits that when he was in Mendi to report at the District Court as required by one of his bail conditions he was arrested. He states that at 1:40 pm on 20 February 2008 he was sitting close to Mendi Police Station when the father and the relatives of the deceased whom the Applicant is alleged to have wilfully murdered gave him chase for no obvious reason. The Applicant states that the father of the deceased Mr Nick Salvalin is a Policeman based at Moro Police Station. His son-in-law Mr Joel Vele is also a Policeman based at the same police station. The Applicant asserts that these two officers have been harassing and intimidating him and his relatives for a long time. When in Mendi the said two police officers chased and apprehended the Applicant near the premises of the District Court House. The officers searched the Applicant and found in his hand bag a knife safely concealed in his bag.

5 The affidavit evidence before this Court shows Constable Joel Vele of Pimaga Police Station on 22 February 2008 charged the Applicant for breaching the bail condition. The charge reads in part:

"Fail (sic) to comply with his bail obligations namely:

Bail condition 4 which states:

The Applicant is to reside at Tatape Village, Southern Highlands Province whilst on Bail,

Bail condition 5 which states:

The Applicant is to remain home every night from 6pm – 6 am

Bail condition 9 which states:

The Applicant is to report to the Clerk of the Mendi District Court every Thursday and appear on the first day of any crimes call-over conducted at the National Court sitting at Mendi".

6 On 10 April 2008 the District Court at Mendi heard the charge against the Applicant and convicted and sentenced him to three months imprisonment with hard labour. In its ruling the District Court found that the Applicant carried "the knife in his bag" in breach of one of the bail condition. That is, "# 6 to keep peace. Therefore the Nt C bail is revoked and Bail of K500.00 is forfeited to the State". I notice on the file in respect of this application a Warrant of Remand dated 10 April and a Warrant of Commitment dated 28 April 2008 both signed by the Magistrate in respect of the Applicant.

7 Mr Kumo for the Applicant submits that the two police officers’ conduct in chasing and arresting the Applicant is biased. That they had harassed, stalked and intimidated the Applicant. He was lawfully out on National Court Bail. He was in Mendi to comply with one of his bail conditions. In addition, the District Court acted beyond its jurisdiction to revoke the National Court Bail and imprison the Applicant for three months with hard labour.

8 Counsel for the State Mr Done conceded that the record on file shows that there is no room to oppose the application but to agree with his learned friend’s submissions. I agree with Mr Done.

FINDINGS

9 I find that the District Court in Mendi has acted ultra vires. The Supreme Court and the National Court are the highest Courts of the land. By Section 155(2) of the Constitution the Supreme Court is the final Court of appeal and has inherent power to review all judicial acts of the National Court. It has such other jurisdiction and powers conferred on it by the Constitution or any other law.

10 In similar vein by Section 155(3) the National Court has an inherent power to review any exercise of judicial authority; and has any such jurisdiction and powers conferred on it by the Constitution or any law. However the said National Court’s jurisdiction and powers do not apply where: (1) the jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or (2) where the Supreme Court assumes jurisdiction under Section 155(4); or (3) the power of review is removed or restricted by a Constitutional Law or an Act of Parliament.

11 Implicit under Section 155(3) is that the District Court’s jurisdiction and power is subject to the jurisdiction of the National Court. There is neither evidence before me nor is there any provision of the Constitution or other laws that apply within the exception No 3 referred to herein that I imagine the District Court would have relied on to satisfy itself of jurisdiction and power to revoke the Bail of the National Court granted to the Applicant on 5 October 2007.

12 Section 172 of the Constitution provides for the establishment of inferior courts. The subheading reads: "Subdivision F – Inferior Courts, the Magisterial Service, etc". Section 14 of the District Court Act gives effect to Section 172 of the Constitution and establishes the District Courts. Section 172 must be read as enabling provision only and therefore it [Constitution] does not confer jurisdiction and power on the District Court. Reading these provisions of the Constitution as a whole (see Schedule 1.5 Constitution) the jurisdiction and power of a District Court is lower and below that of the National Court. With respect, the same applies to the jurisdiction and powers of the Magistrate exercising jurisdiction and powers of the lower Court. With respect, it follows that a Judge’s jurisdiction and powers prevail over a District Court Magistrate’s jurisdiction and powers. Whilst on the one hand I feel that this discussion is unnecessary because jurisdictional issues between the National Court and Judges, and the District Courts and Magistrates are the basic rule of thumb. On the other hand it is necessary for me to point out the propriety or otherwise of the District Court’s ruling. It is also for the benefit of the Applicant and for the knowledge of any lay person placed in the Applicant’s position.

13 The hierarchy of the Courts in our jurisdiction is a basic knowledge imparted to first year law students at law school. I assume this basic knowledge remains with lawyers all throughout their professional lives. How could the District Court in Mendi revoke bail granted to the Applicant by the National Court in Mount Hagen? With respect, this borders on professional negligence and reckless ignorance of Part II of the Constitution which relates to, among others, the hierarchy of laws (Section 9), the Supremacy of the Constitution (Section 10) and Part IV Division 5 which provides for the Administration of Justice.

14 Furthermore, it baffles me that a knife securely concealed in the Applicant’s hand bag is a breach of the bail condition, and to quote the learned Magistrate failed "to keep the peace". It baffles me even more that the Applicant is convicted and sentenced to 3 months in jail with hard labour for an offence he was never charged. So far as I understand Constable Joel Vele’s information dated 22 February 2008 which I have quoted on page 3 of this ruling the Applicant is not charged for breaching the peace or for not "keeping the peace". I would assume that a knife in a hand bag would be a pocket knife or a small knife. How is that a threat to peace?

15 In addition it defies commonsense that a reasonable person such as the Applicant who is on bail would sit in front of a police station if he had in his possession a knife or that was he doing an act that would be in breach of one of his bail conditions. The police officers had no knowledge that the Applicant had a knife in his hand bag. The Applicant was in Mendi to comply with one of his bail conditions. The police officers actions are riddled with malicious intent and are disrespectful of the National Court. It is not far-fetched to draw a conclusion that the conduct of the police officers and the learned Magistrate demonstrate collusion to abuse power and are riddled with malicious intent. If Law Officers appointed by relevant Constitutional authorities and trusted by the public to maintain peace and order and to administer justice are dubious in the conduct of their professional duties the rights of powerless individuals are seriously compromised. Law enforcement agencies and judicial services in remote centres of our country play a very vital role in the administration of justice. These powers must never be abused under any circumstance or otherwise we invite serious erosion of public trust in our National Judicial System. In this case the Applicant’s Constitutional right is breached and it is open for him to seek appropriate redress if he so wishes.

16 Pursuant to Section 155(3) and (4) of the Constitution I declare that the District Court in Mendi has no lawful jurisdiction and power to revoke the Applicant’s bail and the conditions therein issued by the National Court in Mount Hagen. The bail and its conditions therein remain in force. The Applicant’s surety money is unaffected by the unlawful orders of the District Court. The District Court’s act is unconstitutional and unlawful. I order the release of Applicant from unlawful custody. I order that the National Court Registry in Wabag make available to the District Court in Mendi copies of this ruling.

Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State