N7975
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 47 OF 2019

PAUL PARAKA
Plaintiff

V

MEKEO GAULI, PRINCIPAL MAGISTRATE
First Defendant

SENIOR CONSTABLE PIUS PENG
Second Defendant

CHIEF SUPERINTENDENT MATHEW DAMARU
Third Defendant

CHIEF INSPECTOR TIMOTHY GITUA
Fourth Defendant

PONDROS KALUWIN, PUBLIC PROSECUTOR
Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Cannings J
2019: 19, 28, 30 August

HUMAN RIGHTS – application for enforcement of human rights: right to full protection of the law, Constitution, Section 37(1) – decision of Public Prosecutor under Criminal Code, Section 526, to present ex officio indictment against plaintiff – whether preconditions to exercise of power existed – whether failure to comply with preconditions amounts to denial of full protection of law – remedies for breach of human rights.

PRACTICE AND PROCEDURE – whether remedies sought by the plaintiff (including permanent injunction to restrain Public Prosecutor from presenting ex officio indictment) were orders in the nature of prerogative writs – whether plaintiff obliged to commence proceedings by judicial review under National Court Rules, Order 16 – abuse of process. 

The plaintiff was charged by police with 27 indictable offences, leading to committal proceedings in the District Court, which resulted in an order of the District Court striking out all charges as an abuse of process and discharging the plaintiff. The Public Prosecutor subsequently, in the purported exercise of powers under Section 526 of the Criminal Code, issued an ex officio indictment, based on the evidence relied on by police in the committal proceedings, served it on the plaintiff and obtained a date for its presentation to the National Court. The plaintiff then commenced these proceedings by originating summons as an application for enforcement of human rights, seeking to restrain the Public Prosecutor from prosecuting him. He argued that the decision of the Public Prosecutor to issue the ex officio indictment was an infringement of his right under Section 37(1) of the Constitution to the full protection of the law as the preconditions to the exercise of power under Section 526 were not satisfied and therefore the Public Prosecutor acted unlawfully. The plaintiff sought various declarations and orders under Section 57 of the Constitution to protect and enforce his human rights, in particular injunctions to permanently restrain the Public Prosecutor from proceeding further with the ex officio indictment. The plaintiff commenced the proceedings against six defendants (the presiding District Court Magistrate, three members of the Police Force involved in the police investigation, the Public Prosecutor and the State), who argued as a preliminary issue that the proceedings ought to be summarily dismissed as an abuse of process as the plaintiff was seeking orders in the nature of prerogative writs, and was obliged to approach the Court under Order 16 of the National Court Rules and seek leave for judicial review of the Public Prosecutor’s decision. They argued that in the event the proceedings were not summarily dismissed, the plaintiff’s case should still fail as the preconditions in Section 526 of the Criminal Code to exercise of the Public Prosecutor’s power were satisfied, and no denial of the full protection of the law had was likely to occur. They further argued that even if a breach of human rights were proven, the granting of relief is discretionary and all relief sought by the plaintiff ought to be refused. 

Held:

(1)	The plaintiff’s cause of action was breach of human rights and, though some of the relief was similar in nature to prerogative writs, he was not obliged to commence the proceedings by judicial review. There was no abuse of process. 

(2)	The preconditions to exercise by the Public Prosecutor of the power to present an ex officio indictment under Section 526 of the Criminal Code are: (a) a court of summary jurisdiction has refused to commit an accused for trial; (b) the Public Prosecutor has considered the evidence;(c) the Public Prosecutor has reduced into writing in an indictment, a charge of any offence that the evidence appears to warrant; (d) the Public Prosecutor has served on the accused, copies of the committal depositions and witness statements.

(3)	All preconditions were satisfied including the requirement that the District Court refuse to commit the accused for trial as, though the District Court did not expressly state that it was refusing to commit the plaintiff for trial, in substance that is what it did when it, after conducting the committal proceedings over a long period, dismissed the 27 charges as being an abuse of process and discharged the plaintiff.

(4)	The Public Prosecutor did not act unlawfully. There was no actual, imminent or reasonably probable infringement of the right of the plaintiff to the full protection of the law.

(5)	All relief sought by the plaintiff was refused and the proceedings were dismissed, with costs. 

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Application by Herman Joseph Leahy (2006) SC855
Gene v Hamidian-Rad [1999] PNGLR 444
Jimmy Mostata Maladina v Posain Poloh (2004) N2568
Luke Lucas v Public Employees Association [1993] PNGLR 264
Pius Peng v Paul Paraka COM Nos 942-956 of 2014, 10.12.18 unreported
Simon Liliura v Commissioner of the Correctional Service (2019) N7917
Telikom PNG Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906

ORIGINATING SUMMONS 

This was an application by a person who was the subject of an ex officio indictment, for an injunction to restrain the Public Prosecutor from presenting the indictment. 

Counsel

P Paraka, the Plaintiff, in person 
G Akia, for the Second to Sixth Defendants 

30th August, 2019

1.	CANNINGS J: The plaintiff, Paul Paraka, applies by originating summons for an injunction to permanently restrain the Public Prosecutor, Pondros Kaluwin, from presenting an ex officio indictment against him. The indictment contains one count of misappropriation of State money in the sum of approximately K162.8 million (K162,860,194.96). The plaintiff seeks other remedies also, but the permanent injunction is the main one. He has commenced the proceedings as an application for enforcement of human rights.

2.	In 2014 the plaintiff was charged by police with 27 indictable offences. Committal proceedings commenced in the Waigani District Court on 31 July 2014 and continued until 10 December 2018 when the presiding committal magistrate, his Worship Mr M Gauli, upheld an application by the plaintiff for striking out the charges and ordered:

1.	All the charges (including 17 counts of conspiracy to defraud under Section407(1)(b) of the Criminal Code, five counts of stealing by false pretence under Section 404(1)(a) of the Criminal Codeand five counts of money laundering under Section 34(2)(a) of the Proceeds of Crime Act 2005) registered as COM NO 942-956 of 2014 against defendant Paul Paraka are struck out for being abuse of process.

2.	Defendant Paul Paraka is discharged forthwith. 

3.	Defendant’s K50,000.00 bail be refunded. 

4.	On 5 April 2019 the plaintiff commenced the present proceedings, having been given notice by the Public Prosecutor of his intention to present the ex officio indictment in the purported exercise of powers under Section 526 of the Criminal Code. Six defendants were named: the presiding District Court Magistrate, three members of the Police Force involved in the police investigation, the Public Prosecutor and the State. The first defendant has not taken part in the proceedings. The other five defendants have been represented by the Solicitor-General. 

5.	On 25 April 2019 the Public Prosecutor signed the ex officio indictment and on the next day, 26 April 2019, it was served on the plaintiff. The Public Prosecutor then obtained a date for its presentation to the National Court. However, on 3 May 2019 this Court granted an interim injunction to restrain the presentation of the indictment pending the trial of the amended originating summons, and no indictment has yet been presented. 

RELIEF SOUGHT

6.	On 10 May 2019 the plaintiff filed the amended originating summons, which states:

2. THE PLAINTIFF SEEKS ENFORCEMENT OF HIS CONSTITUTIONAL HUMAN RIGHTS TO THE FULL PROTECTION OF THE LAWS (SECTION 37(1) OF THE CONSTITUTION) UNDER SECTION 57(1) OF THE CONSTITUTION BY SEEKING THE FOLLOWING ORDERS:
2.1	A DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that the decision of the First Defendant (sitting as the Committal District Court) dated 10th December, 2018 striking out the charges for abuse of process is the equivalent of an “order dismissing an Information or Complaint,” and the Informant or any aggrieved person has only a right of appeal under Section 219 of the District Court Act.
2.2	A DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that the First Defendant sitting as the Committal District Court had lawful jurisdiction to determine issues going to its proceedings including criminal charges against the Plaintiff pursuant to its inherent powers prior to, at or during the commencement of a Committal hearing.
2.3	A DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that the decision of the 10th December, 2018 by the First Defendant (District Court) did not involve a decision ether “to commit” or “not to commit” after a “Committal proceeding” under PART IV of the District Court Act, and the Public Prosecutor lacks any jurisdiction, power or lawful authority whatsoever to initiate any ex-officio indictment under Section 526 of the Criminal Code Act.
2.4	A DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that there was no formal “Committal hearing/proceedings” under Part IV of the District Court Act (Sections 94-100), the subject of the decision of the First Defendant dated 10th December, 2018.
2.5	AN ORDER pursuant to Section 57(3), (4) & (5) of the Constitution, in the nature of a permanent injunction restraining and or staying any actions by the Public Prosecutor under Section 526 of the Criminal Code Act.
2.6	In addition or in the alternative, a DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that the decision by the Public Prosecutor to initiate in writing under his hand an indictment against the Plaintiff dated 25th April, 2019 is in breach of the pre-condition stipulated under Section 526(1) of the Criminal Code Act, and is therefore null and void and of no effect.
2.7	AN ORDER pursuant to Section 57(3), (4) & (5) of the Constitution that the purported indictment initiated by the Public Prosecutor dated 25th April, 2019 against the Plaintiff be permanently STAYED.
2.8	AN ORDER pursuant to Section 57(3), (4) & (5) of the Constitution that an injunction be issued permanently restraining the Public Prosecutor from presenting the Ex-Officio Indictment under Section 526(2) of the Criminal Code Act to the National Court.
2.9	A DECLARATION pursuant to Section 57(3), (4) & (5) of the Constitution that the purported service of the Indictment on the Plaintiff on the 26th April, 2019 by the Public Prosecutor together with the draft Indictment and the purported Court deposition (comprising of the Police Hand-Up Brief (PHUB)) is in breach of Section 526(3) of the Criminal Code Act and Part IV of the District Court Act, and is therefore null and void and of no effect.
2.10	AN ORDER pursuant to Section 57(3), (4) & (5) of the Constitution that the draft Indictment, and purported District Court depositions including the PHUB purported served under Section 526(3) of the Criminal Code Act on the 26th April, 2019 by the Public Prosecutor be permanently stayed.
2.11	Further and other Orders:
(a)	The application for enforcement of human rights be upheld. 
(b)	It be declared, pursuant to Section 57(3) of the Constitution, that the Defendants have infringed the Plaintiff’s rights under Section 37(1) of the Constitution to be full protection of the laws.
(c)	It be ordered, pursuant to Section 57(3) of the Constitution, in relation to the charges in the ex-officio indictment of 25th April, 2019, that:
(i)	The presentation and prosecution of the charges be permanently stayed;
(ii)	The Plaintiff be discharged from the indictment;
(iii)	The Plaintiff be discharged from his bail obligations and his bail shall be refunded forthwith.
(d)	It be declared, pursuant to Section 58(2) of the Constitution, that the Plaintiff is entitled to damages, which shall, if not agreed, be assessed by the Court. [Withdrawn 30 July 2019]
(e)	The Defendants pay the Plaintiff’s costs of the proceedings to date, on a party-party basis, which shall if not agreed to be taxed.
2.12	The Plaintiff is seeking the full protection of the Laws (under Section 37(1) of the Constitution):
(a)	District Court Act (PART IV).
(b)	Criminal Code Act (Section 526).
(c)	In Re: Powers, Functions, Duties and Responsibilities of the Police Commissioner (2014) SC1388.
(d)	MekeoGauli’s Judgment in NCC No. 942-946 of 2014 (C/B No. 4641 of 2014); Senior Constable Pius Peng (Police) -v- Paul Paraka.
(e)	Section 155(6) of the Constitution.
(f)	Application by Herman Joseph Leahy (2006) SC855.
2.13 Costs.
2.14 Time be abridged.
2.15 Such further and other Orders as the Court deems fit.
PRINCIPAL ARGUMENTS

7.	The plaintiff’s principal argument is that the decision of the Public Prosecutor to issue the ex officio indictment is an infringement of his rights under Section 37(1) of the Constitution (protection of the law), which states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

8.	The plaintiff argues that he has been, and will be further, denied the full protection of the law if the Public Prosecutor is not restrained from presenting the ex officio indictment. He argues that the preconditions to the exercise of power under Section 526 of the Criminal Code have not been satisfied, and therefore the Public Prosecutor has acted and will continue if not restrained to act unlawfully. 

9.	The defendants oppose all relief sought by the plaintiff. They argue, first, as a preliminary issue, that the proceedings should be summarily dismissed as an abuse of process as the plaintiff is seeking orders in the nature of prerogative writs to challenge a decision of the Public Prosecutor, and is obliged to approach the Court under Order 16 of the National Court Rules and seek leave for judicial review of the Public Prosecutor’s decision. 

10.	They argue that in the event the proceedings are not summarily dismissed, the plaintiff’s case should still fail as the preconditions in Section 526 of the Criminal Code to exercise of the Public Prosecutor’s power have been satisfied, and no denial of the full protection of the law has or is likely to occur. 

11.	The defendants further argue that even if a breach of human rights is proven, the granting of relief is discretionary and all relief sought by the plaintiff should be refused as, if the ex officio indictment is presented and the plaintiff is tried in the National Court, he is guaranteed all the protections of the law under Section 37 of the Constitution afforded to all persons charged with criminal offences.

ISSUES 

12.	The following issues arise:

1.	Should the proceedings be summarily dismissed?

2.	Has the plaintiff been denied the full protection of the law?

3.	What orders should the Court make? 

1	SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

13.	Mr Akia, for the second to sixth defendants, submitted that much of the relief sought by the plaintiff in the amended originating summons is in the nature of prerogative writs such as mandamus, prohibition and certiorari and in substance the plaintiff is seeking judicial review of a decision of a public official, the Public Prosecutor, made under a statute, the Criminal Code. Therefore, he is obliged to approach the Court under Order 16 of the National Court Rules and seek leave to apply for judicial review of the Public Prosecutor’s decision. Mr Akia cited several Supreme Court decisions that explain the circumstances in which a plaintiff is required to approach the court under Order 16, and those in which it is not necessary to follow the Order 16 procedure, where it is sufficient to approach the Court under Order 4. These cases include Luke Lucas v Public Employees Association [1993] PNGLR 264, Gene v Hamidian-Rad [1999] PNGLR 444 and Telikom PNG Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906. Mr Akia submitted that these cases demonstrate that the plaintiff was required to approach the court under Order 16. He has not done so, therefore the proceedings are an abuse of process and ought to be dismissed.

14.	I reject those arguments. The amended originating summons reveals that the plaintiff’s cause of action is breach of human rights, in particular breach of the right in Section 37(1) of the Constitution to the full protection of the law. The plaintiff has approached the Court directly under Section 57(1) of the Constitution seeking orders, particularly under Sections 57(3) and 57(5) of the Constitution, to enforce his human rights. 

s 57(1): A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

s 57(3): A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

s 57(5): Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

15.	There is nothing in those provisions to indicate, that if there are alternative procedures available (such as by commencing judicial review proceedings under Order 16 of the National Court Rules) for seeking enforcement of human rights, those procedures should be used or exhausted prior to approaching the Court under Section 57. It does not make constitutional sense to require plaintiffs to use procedures in subordinate legislation in preference to procedures provided for by the Constitution. As I said recently in Simon Liliura v Commissioner of the Correctional Service (2019) N7917: when the Constitution grants power directly to the National Court, there can be no greater source of power.

16.	Even though, some of the relief sought by the plaintiff is similar in nature to prerogative writs, he was not obliged to commence the proceedings by judicial review. There was no abuse of process. The proceedings are not summarily dismissed.  

2	HAS THE PLAINTIFF BEEN DENIED THE FULL PROTECTION OF THE LAW?

17.	The plaintiff argues that he has been denied the full protection of the law as the preconditions to the exercise of the power in Section 526 of the Criminal Code have not been satisfied, and therefore the Public Prosecutor has acted and will continue if not restrained to act unlawfully. 

18.	Section 526(1) (indictment without committal) states:

Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may—

(a)	consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(b)	reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

19.	In Application by Herman Joseph Leahy (2006) SC855 the Supreme Court set out the preconditions to the presentation of an indictment under Section 526:

(a)	a court of summary jurisdiction has refused to commit a person for trial on an indictable offence;

(b)	the Public Prosecutor has considered the evidence contained in the depositions taken before the court (and any other relevant evidence);

(c)	the Public Prosecutor has reduced into writing in an indictment a charge of any offence that the evidence appears to warrant.

To that list might be added another precondition, prescribed by Section 526(3):

(d)	the Public Prosecutor has served on the accused, copies of the committal depositions and statements from witnesses whom the prosecution intends to call at the trial.  

20.	The plaintiff argues that preconditions (a) and (b) have not been complied with. As to (a), the plaintiff submits that there were in fact and in law no committal proceedings, as:
•	the five stages of the committal process under Part VI of the District Courts Act (as set out by Injia DCJ in Jimmy Mostata Maladina v Posain Poloh (2004) N2568) were not completed;
•	the District Court made no decision not to commit him for trial; and 
•	the District Court did not consider the evidence in the Police hand-up brief (PHUB). 
21.	As to (b), the plaintiff submits that there is no evidence that the Public Prosecutor has considered the evidence.

22.	I reject those arguments. As to (a), I consider the fact that all five stages of the committal process were not completed in the normal manner is inconsequential. The committal proceedings were prematurely terminated because the District Court upheld the plaintiff’s application that the charges were an abuse of process. That does not mean that there were no committal proceedings. There were in fact and in law committal proceedings before the District Court which continued for more than four years before their termination. 

23.	As to the order of the District Court of 10 December 2018; it is correct that the words ‘refused to commit for trial’ were not used. However, when a similar issue arose in Application by Herman Joseph Leahy (2006) SC855 the Supreme Court said that the most important thing to do is look at the substance of the order. I consider that in substance the order of 10 December 2018 was a refusal to commit for trial. 

24.	It is apparent from the learned Magistrate’s written judgment (Pius Peng v Paul Paraka COM Nos 942-956 of 2014, 10.12.18 unreported) in which his Worship gave reasons for making that order, that his Worship did consider the evidence in the Police hand-up brief. There were depositions before his Worship, which clearly, he did consider (unsurprisingly) during the more than four years that the proceedings were before him.

25.	As to (b), the Public Prosecutor, Mr Kaluwin, has given the following evidence in these proceedings (by affidavit filed 13 June 2019, Exhibit P7, paragraphs 6 and 7):

5 Relevant to this matter, following the dismissal of the charge at committal on the 10th of December 2018, as described in my affidavit of 27 May 2019, I received a request from the Police, accompanied by a brief of evidence, to consider issuing an ex officio indictment against the accused (plaintiff).

6 After following the standard procedure, I was satisfied that the brief of evidence warranted the charge I subsequently signed and annexed to my affidavit of 27 May 2019, on 25 April 2019.

26.	This is sufficient evidence that the Public Prosecutor has complied with a precondition (b) (prescribed by Section 526(1)(b)).

27.	There is ample evidence that preconditions (c) and (d) have been complied with. I conclude that the Public Prosecutor has not acted unlawfully and will not, if he proceeds with his intended course of action, act unlawfully. In these circumstances the plaintiff has failed to prove any actual, imminent or reasonably probable infringement of his right to the full protection of the law under Section 37(1) of the Constitution. He has failed to establish a cause of action for breach of human rights. 

3	WHAT ORDERS SHOULD THE COURT MAKE? 

28.	As I pointed out in Application by Benetius Gehasa (2005) N2817, an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two questions:

•	first, has a right of the applicant actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If the answer to that question is no, the court should not intervene; and 

•	secondly, if the answer is yes, the court needs to consider the second question: whether it should grant the remedy sought or make some other order for enforcement of the right under Sections 57(1) and 57(3) of the Constitution.

29.	In this case the answer to the first question is no. Therefore, the Court will not intervene. It is unnecessary to consider the second question. All relief sought by the plaintiff will be refused. Costs follow the event. 

ORDER

(1)	All relief sought in the amended originating summons filed 10 May 2019 is refused.

(2)	All interim injunctions and orders are dissolved. 

(3)	The proceedings are dismissed. 

(4)	Subject to particular costs orders made in the course of the proceedings, the plaintiff shall pay the second to sixth defendants’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed. 

Ordered accordingly.
__________________________________________________________________
Solicitor-General: Lawyer for the Second-Sixth Defendants