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Pala v Bidaar [2015] PGNC 141; N6037 (10 August 2015)

N6037

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 718 OF 2014

BETWEEN:

HON. ANO PALA, CMG, MP MINISTER FOR JUSTICE & ATTORNEY-GENERAL
Plaintiff

AND

HIS WORSHIP, COSMAS BIDAR, PRESIDING MAGISTRATE
First Defendant

AND

GEOFFREY VAKI, COMMISSIONER OF POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2015: 30th July & 10th August

CONSTITUTIONAL LAW – PRACTICE & PROCEDURE – Application to refer questions to Supreme Court – Whether Constitutional questions arise – Questions arise from issuance of warrant of arrest – Arrest of suspect – Offence of conspiring to defeat course of justice – Questions raised must not be trivial, vexatious or irrelevant – Whether questions require interpretation by Supreme Court – Question as to time to challenge warrant of arrest – Validity of warrant of arrest – Question clear-cut, trivial and basic – Application refused – Constitution – Sections 18(2) & 41 – Criminal Code – Section 128 – Arrest Act, 1977 – Sections 8, 11, 14, 17 & 18.

Cases cited:

Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930
Supreme Court References 01, 02 & 05 of 2014: Re; Powers, Functions, Duties and Responsibilities of the Police Commissioner in relation to Warrants of Arrest (2014) SC1388

Counsel:

Mr R. A. Saulep, for Plaintiff
Ms L. Mai, for First & Third Defendant
Mr S. Bonner, for Second Defendant

RULING
10th August, 2015

1. MAKAIL, J: The Plaintiff Honourable Ano Pala, MP was granted leave to seek judicial review of the decision of the First Defendant to issue a warrant of arrest to have him arrested for an offence under Section 128 of the Criminal Code. The offence is one of conspiring to defeat the course of justice. This offence requires a warrant of arrest to be issued before the arrest of the person suspected of committing the offence. Section 128 states:

"128. Conspiring to defeat justice.

(1) A person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) A person shall not be arrested without warrant for an offence against Subsection (1).2."

2. At the trial, it became apparent that the warrant of arrest was not served on Mr. Pala. It became necessary to determine whether Mr Pala was entitled to challenge its issuance. In Supreme Court References 01, 02 & 05 of 2014: Re; Powers, Functions, Duties and Responsibilities of the Police Commissioner in relation to Warrants of Arrest (2014) SC1388, it is not clear if the Supreme Court did address this specific question. However, the Supreme Court held amongst other things, that the Police Commissioner had standing (right) to challenge the issuance of a warrant of arrest.

3. Mr Pala submitted that the circumstances giving rise to this issue show that there are constitutional questions involved and sought the indulgence of the Court to refer them to the Supreme Court for interpretation pursuant to Section 18(2) of the Constitution. The Defendants supported Mr Pala's request.

Proposed Questions

4. Mr Saulep of counsel for Mr Pala submitted the following questions arise in this proceeding:

4.1. When does the time arise for Police to exercise the power to arrest a target or suspect under Section 128(2) of the Criminal Code? Is it before an interview is conducted upon the suspect or after such an interview?

4.2. If the answer to Q. 1 is that the arrest is effect before the conduct of an interview, is such requirement or application of the law contrary to Section 41 of the Constitution as being harsh and oppressive?

4.3. If "NO" to Q. 2, given that the Application for a warrant of arrest under Section 8 of the Arrest Act, 1977 would proceed ex parte, what is or are the appropriate standards of disclosure required on the information, supporting such an Application, before a warrant of arrest can be said to be properly or validly issued?

4.4. When does the occasion arise for a target/suspect to challenge a warrant of arrest?

Jurisdiction

5. The National Court may refer questions relating to the interpretation or application of the provisions of Constitutional Laws to the Supreme Court for interpretation pursuant to Section 18(2) of the Constitution. It states:

"18. Original interpretative jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate." (Emphasis added).

Referral to the Supreme Court

6. I have considered the submissions of parties. In Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930 after reviewing past decisions on the question of referral, the Supreme Court suggested four requirements that must be met before the National Court may make a referral under Section 18(2) of the Constitution. The Supreme Court said:

"13. Our reading and consideration of the cases and the particular wording in s. 18 makes it very clear that, there can be a referral under s. 18 (2) only where:

(a) There is an issue as to the interpretation or application of a provision of a constitutional law;

(b) The question so arising is not trivial, vexatious or irrelevant;

(c) The Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision;

(d) No other provisions of the Constitution or any other constitutional law give the National Court jurisdiction to interpret and apply a constitutional law."

7. I consider that in a case where an offence such as the one under consideration requires a warrant of arrest to be issued, the threshold issue is when does the occasion arise for a suspect/ target to challenge the warrant of arrest? It is before or after its execution? In my view, this is a clear-cut issue because first, there is no constitutional question or questions arising from the questions posed by Mr. Pala. The question that an arrest is effected before an interview is conducted is contrary to Section 41 of the Constitution as being harsh and oppressive is one that can be adequately addressed under the Arrest Act, 1977.

8. Let me give a brief run-down of the process. In the context of the offence under Section 128 of the Criminal Code, a warrant of arrest would be applied for and granted by the Court on information laid before the Court pursuant to Section 8 of the Act. Then Part IV of the Act provides for the process of effecting an arrest. Relevantly is Section 14. It states:

"14. Manner of effecting arrest.

(1) Where an authorized person intends to make an arrest and the person to be arrested —

(a) does not resist the arrest and the authorized person is aware that they

speak a common language, the authorized person shall at the time of arrest —

(i) advise the person he is under arrest; and

(ii) advise the person arrested of the reason for his arrest;

and

(iii) request the person arrested to accompany him to a

Police station, to a court or place of confinement, as the case may be:

or

(b) does not resist the arrest and the authorized person is aware or

ascertains —

(i) that they do not speak a common language; or

(ii) that he is unable to speak to the person arrested because the person arrested suffers from some mental physical defect, the authorized person shall indicate by or physical defect, the authorized person shall indicate by reasonable means to the person arrested that-

(iii) he is under arrest, and

(iv) he is to accompany the authorized person; or

(c) resists the arrest, whether by force or by refusing to move, or seeks to

evade arrest, whether by running away or by other means, the authorized person may, subject to Subsection (2), use all reasonable means to make the arrest.

(2) Subsection (1)(c) does not justify the use of greater force than is reasonable in the circumstances."

9. According to Section 14, there are three ways of effecting an arrest. They
are:

9.1. where the authorised person and the person to be arrested speak a common language, the authorised person shall inform the person that he is under arrest, the reasons for his arrest and request him to accompany the authorised person to a police station, to a Court or a place of confinement, as the case may be, or.

9.2. where the authorised person and the person to be arrested do not speak a common language, or the person to be arrested suffers from mental or physical defect, the authorised person shall indicate by reasonable means to the person arrested that he is under arrest and he is to accompany the authorised person, or.

9.3. where the person to be arrested resists the arrest, whether by force or by refusing to move or seeks to evade arrest, whether by running away or by other means, the authorised person may use all reasonable means to make the arrest.

10. The first and second cases cover situations where the person to be arrested does not resist arrest. The third covers resistance to arrest. The authorised person is defined in Section 1 of the Act as a person empowered to make an arrest under the Arrest Act or any other law or by a warrant. Under Section 11, a warrant is directed to all or a named person, or the officer-in-charge of police in a particular province or place or all members of the Police Force. These are the persons authorised to make the arrest.

11. After an arrest is effected, what happens? Part V of the Act provides for the duties to be performed after arrest. Relevant to the case at hand is Section 17. It states:

"17. Duties of a policeman after arrest.

(1) Where a policeman makes an arrest he shall —

(a) take the arrested person without delay to a police station to be dealt

with under Section 18 or before a court; and

(b) subject to Subsection (2), use all reasonable means to prevent the

arrested person from escaping.

(2) Subsection (1)(b) does not justify the use of greater force than is reasonable in the circumstances."

12. Amongst other things, the policeman who makes the arrest shall take the arrested person without delay to a police station or before a Court.

13. After the arrested person is arrested and say, is taken to the police station, what happens? Section 18 is pertinent. It states:

"18. Duties of officer-in-charge of station.

(1) Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall —

(a) immediately release the person if he considers that —

(i) the person arrested did not commit the offence for which he

was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or

(ii) there are good reasons why the arrested person should not be

proceeded against for an offence; or

(iii) proceedings can be effectively taken by way of summons

against the arrested person; and

(c) if he does not release the person under Paragraph (a)—take

the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested —

(i) has committed an offence—the nature of that offence;

or

(ii) has been arrested for some other reason—that reason;

and

(d) promptly inform the person arrested or cause him to be informed in language he understands of —

(i) the reason for his arrest; and

(ii) details of the charges against him; and

(iii) his right, immediately and in private —

(A) to communicate with a member of his family or a

personal friend; and

(B) to give instructions to a lawyer of his choice, including

the Public Solicitor if he is entitled to legal aid; and

(e) as soon as practicable consider and accordingly grant or refuse bail in

accordance with the Bail Act; and

(f) if bail is not granted under Paragraph (d) or if for any other reason

the person arrested remains in custody at the station—take the person, or cause him to be taken, before a court without delay; and

(g) if bail is granted to the person by a court but for any reason the person

remains in custody at the station after bail is granted—take the person or cause him to be taken before a court as soon as practicable after the expiration of 14 days after the bail is granted; and

(h) if bail is granted to the person but he remains in custody after being

brought before a court on one or more occasions—take the person or cause him to be taken from time to time before a court as soon as practicable after the expiration of 14 days after the time he last appeared before a court.

(2) The officer-in-charge of a police station shall at all times permit persons arrested or detained at the police station —

(a) whenever practicable, without delay and in private to communicate

with —

(i) a member of his family or a personal friend; and

(ii) a lawyer of his choice, including the Public Solicitor if if he is entitled to legal aid; and

(b) to give instructions to a lawyer of his choice, including the Public

Solicitor if he is entitled to legal aid."

14. According to Section 18, one of the duties of the officer-in-charge of the police station is to immediately release the person arrested if he considers that the person arrested did not commit the offence for which he was arrested or any offence and there is no other reason to justify his detention. If he does not release the person arrested, he must take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested has committed an offence, the nature of that offence.

15. In the case of the latter, the officer-in-charge has a further duty to administer what is commonly referred to as a "Section 37 rights" under the Constitution. These are, amongst other things, right of the suspect to be informed of the nature of the offence, right to be given adequate time and facilities to prepare his defence including a legal representation of his own choice. In summary, Section 18 will only apply if the person is arrested and brought to the police station.

Conclusion

16. With respect, in my view, the process outlined above shows that there are adequate measures in place in the Arrest Act to address the questions posed by Mr Pala. This in turn means that the threshold issue as to when a suspect/target can challenge a warrant of arrest is clear-cut, trivial and basic and something that the Supreme Court should not be overly burden with.

Order

17. The orders are:

1. The application is refused.

2. Costs shall be in the cause.

3. Time shall be abridged.
_______________________________________________________________

Saulep Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the First and Third Defendants
Sam Bonner Lawyers: Lawyers for the Second Defendant