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Pala v Bidar [2015] PGNC 147; N6048 (14 August 2015)

N6048

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: 14th August

JUDICIAL REVIEW – Review of decision of District Court to issue warrant of arrest – Offence of conspiring to defeat course of justice – Offence requires warrant of arrest – Execution of warrant of arrest – Service of warrant of arrest – No execution or service of warrant of arrest – Whether right to challenge warrant of arrest arise – Criminal Code – Section 128 – Arrest Act, 1977 – Sections 8, 14 & 18.

Cases cited:

Hon. Ano Pala, MP v. Cosmas Bidar & The State (2015) N6037
Eremas Wartoto v. The State (2015) SC1411

Counsel:

Mr R. A. Saulep, for Plaintiff
Ms M. Mai, for First & Third Defendants
No appearance, for Second Defendant

RULING

14th August, 2015

1. MAKAIL, J: On 10th August 2015 the Court refused the Plaintiff Honourable Mr Ano Pala, MP's application to refer certain questions to the Supreme Court for an opinion. The Court held that the question of time a suspect or target can challenge a warrant of arrest was clear-cut, trivial and basic and something that the Supreme Court should not be overly burden with: see Hon. Ano Pala, MP v. Cosmas Bidar & The State (2015) N6037.

2. The substantive proceeding concerns a judicial review of the decision of the First Defendant as a Magistrate of the District Court to issue a warrant of arrest to have Mr Pala arrested for an offence of conspiring to defeat the course of justice under Section 128 of the Criminal Code. The warrant of arrest was issued on 11th July 2014 on the information laid before that Court by the police pursuant to Section 8 of the Arrest Act, 1977. A warrant of arrest is necessary to effect the arrest because the offence requires a warrant of arrest.

3. The police information states:

"The Information of Mathew Damaru of Police Station, National Fraud Squad in Papua New Guinea, a Chief Superintendent of Police, laid this June, before the undersigned, Magistrate of a District Court who (upon oath) says that on the 17th June 2014 at Port Moresby in Papua New Guinea a ANO PALA age of village, Sub Province Central Province

Conspired with Peter O'Neill, Geoffrey Vaki, James Marape, Paul Mawa, Robert Leo, Sam Bonner, Ralph Saulep and Tiffany Twivey to defeat the course of justice in Paul Paraka investigations by filing proceedings in OS No 115 of 2014 Hon James Marape & Hon Peter O'Neill v Paul Paraka trading as Paul Paraka Lawyers to legitimise bills paid to Paul Paraka Lawyers by way of declaration or taxation."

4. According to the grounds of review pleaded in the statement in support filed on 20th October 2014, Mr Pala alleges that the decision of the First Defendant to issue the warrant of arrest is misconceived, erroneous and void on the face of the record because essentially at the material time, he was not the Minister for Justice and Attorney-General when Hon. James Marape, Hon. Prime Minister Peter O'Neill and The State instituted legal proceeding OS No 115 of 2014 to contest the bill of costs of Paul Paraka Lawyers. He was appointed the Minister for Justice and Attorney-General on 17th June 2014 and in that capacity instructed the Acting Solicitor-General to have The State removed as a Plaintiff in that legal proceeding because he did not authorise it to institute the legal proceeding.

5. Based on this ground, Mr Saulep of counsel for Mr Pala submits that the decision of the First Defendant cannot stand because the facts do not support a case that an offence under Section 128 of the Criminal Code has been committed. Essentially, the alleged offence is unsupported by the base facts constituting the offence to which a warrant of arrest was issued by the First Defendant. The decision is flawed.

6. Furthermore and significantly, given the ex parte nature of the application before the First Defendant, the First Defendant did not have the full benefit of the information to consider before arriving at the decision to issue the warrant of arrest. To an extent, the First Defendant was misled by the police because the information about Mr Pala being appointed after the legal proceeding OS No 115 of 2014 was instituted was not drawn to the First Defendant's notice. Had it been so drawn to his notice, Mr Saulep submits, the outcome would have been different. It was a denial of natural justice – Mr Pala was not heard on the application. He submits the application for judicial review should be upheld and the warrant of arrest be quashed.

7. Appreciating those submissions Mr Saulep makes on behalf of Mr Pala and before the Court embarks on a review of the lawfulness of the First Defendant's decision, it must decide the threshold issue of when a suspect or target can contest the decision of the Court to issue a warrant of arrest in the context of an offence under Section 128 of the Criminal Code.

8. Mr Saulep's submission is that regardless of whether the warrant of arrest is executed or served on Mr Pala, it is open to Mr Pala to contest it because it is tantamount to an order of the Court and must be complied with. As a warrant of arrest is an order of the Court, as soon as the subject of the warrant of arrest becomes aware of its existence, is entitled to contest it by way of an application for judicial review in the National Court. In this case, a copy of the warrant of arrest was obtained from the District Court after a formal enquiry and request was made to the Clerk of Court and now Mr Pala is entitled to contest it.

9. His further submission is that an offence such as conspiring to defeat the course of justice which requires a warrant of arrest must be differentiated from those offences that do not require a warrant of arrest and dealt with separately under Section 3 of the Arrest Act 1977 for public policy reasons.

10. Ms Mai of counsel for the First and Third Defendants generally agrees with Mr Saulep's submission but further submits that the recourse available to contest the warrant of arrest would be in the District Court – the Court that issued it. It can be a subject of an application to stay it or set it aside.

11. The procedure for effecting an arrest was explained by the Court in its earlier ruling. In summary, under Section 14 of the Arrest Act, 1977 there are three ways of effecting an arrest. I repeat by adopting what the Court said at [9] of the ruling:

"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."

12. A point worthy of noting in each manner of effecting an arrest is that, the person to be arrested must be informed by the authorised person that he is under arrest, the reasons for his arrest and request to accompany the authorised person to a police station, or a Court, or a place of confinement. If the person to be arrested resists arrest, the authorised person may use reasonable means to make the arrest. In other words, unless there is a physical act of meeting between the authorised person and the person to be arrested, there cannot be a lawful arrest under Section 14.

13. The colloquial term used in ordinary day to day language is that the warrant of arrest be must "executed". It simply means that the warrant of arrest must be served on (physically delivered) to the person to be arrested. None of the counsels have cited a local or overseas authority that held that a Court can intervene and quash a warrant of arrest issued by a lower Court such as the District Court prior to its execution or service on the suspect or target. It must, therefore, be the case that service of the warrant of arrest would precede the reasons for the arrest and request to accompany the police to the police station in a case of a suspect suspected of committing an offence under Section 128 of the Criminal Code.

14. The emphasis and underlying consideration is an arrest of a suspect or target is the start of the criminal justice process which the police, the Courts (District Court, National Court and Supreme Court (where an appeal/review lies)) and finally the Correctional Services Institution administer. Simply put, if no arrest is made, these institutions of State will be rendered inoperative.

15. In the present case, the police have yet to serve the warrant of arrest on Mr Pala regardless of Mr Pala obtaining a copy through his lawyers on request to the Clerk of the District Court. It may be that the warrant of arrest has been outstanding for a long time and the police may or may not have reasons for the long delay. However, with respect, unless it is served on Mr Pala in accordance with the procedure outlined above, in my view, the process under the Arrest Act cannot be set in motion.

16. In coming to this conclusion, I note the submission put forward on behalf of Mr Pala that given the ex parte nature of an application for a warrant of arrest, he has been deprived of a right to be heard before the Court issued the warrant of arrest. However, with respect, this submission fails to appreciate that only the Court has authority to issue a warrant of arrest against a suspect suspected of committing an offence under Section 128 of the Criminal Code. See also Section 8 of the Arrest Act, 1977. It is not the Commissioner of Police and any of his officers who have that authority. In this case, the District Court was entitled to consider in an ex parte fashion, whether on the information laid before it, there was a case for a warrant of arrest to be issued. The right to be heard is in no way removed by the ex parte nature of the application.

17. As I observed earlier, an arrest starts the criminal justice process. Within this process are safeguards – these safeguards are put in place to ensure that the suspect or accused person is not denied a fair trial. As soon as a suspect or target is arrested, he or she has a right to respond. The right to respond to the allegation(s) contained in the information is preserved and will be avail of when he attends at the police station after the warrant of arrest is served on him. In other words, when he arrested, he will be obliged to accompany the police to the police station and explain why he should not be charged with the offence of conspiring to defeat the course of justice.

18. The matters Mr Pala raises in this proceeding, particularly not being privy to the legal proceedings OS No 115 of 2014 when it was instituted are matters that can and should be raised with the police at the police station when he is taken in by the police after he is arrested.

19. One of the duties of the police under Section 18 of the Arrest Act, 1977 is to deal with a suspect following an arrest. It is not intended by this provision that a suspect is left unattended when brought in to the police station (although it does happen at times). To emphasise the point, I repeat by adopting what the Court said at [14-15] of the ruling:

"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."

20. Assuming that Mr Pala is charged by the police, he still has recourse to contest the charge(s) at the District Court committal hearing process under Section 95 of the District Court Act. This is when the Court is considering whether there is a prima facie case to commit Mr Pala to the National Court.

21. Even at the National Court there are adequate avenues provided in the Criminal Code, for an accused person to have recourse to, to contest the State's case against him or her at each critical phase of the criminal trial process once that process is set in motion in the National Court. Those avenues include, amongst other things, application to quash indictment under Section 558 of the Criminal Code and demurs under Section 567 of the Criminal Code: see Eremas Wartoto v. The State (2015) SC1411 per Injia, CJ.

22. The end result is, I find, as a matter of law, that the time to challenge a warrant of arrest in a case where the offence requires a warrant of arrest to be issued is after it is executed or served on the suspect or target. As Mr Pala has yet to be served the warrant of arrest, I find, as a matter of law, it is premature for him to challenge the validity of the warrant of arrest. This being the case, I further find that the judicial review proceeding is misconceived. It is dismissed with costs.

Ruling and orders accordingly.

__________________________________________________________

Saulep Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the First and Third Defendants