N11721
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 12 OF 2025 IECMS

BETWEEN:
PETER BESWICK
Plaintiff

AND:
MARK PUPAKA in his capacity as Chief Magistrate 
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI: CROWLEY J
11 NOVEMBER 2025; 27 FEBRUARY 2026

JUDICIAL REVIEW –issuing arrest warrant- where decision-maker has to be satisfied both that the person has committed an offence and that the issuing of arrest warrant is necessary- jurisdictional error- precedent fact- where information the decision-maker relied on was wrong- where decision-maker applied test of probable cause- where Arrest Act provides the test of reasonable grounds for believing- obiter dicta- there is no obligation on a person to prevent crime- an arrest deprives a person of their liberty- an arrestee should have an opportunity to challenge their arrest before the issue of the warrant. 

Held
1.	The affidavit material did not provide evidence capable of satisfying the decision maker that the Plaintiff would not appear at court, would continue committing offences or was a danger to himself or the public. 
2.	The First Defendant relied on facts now understood to be wrong in material respects. 
3.	The First Defendant applied the wrong test and 
4.	The First Defendant took into account irrelevant considerations.
Cases cited

Ignote v Hualupmomi and The State [1996] PNGLR 308
Pala v Bidar [2016] PGSC 33; SC1515
R v Coney [1882] UKLawRpKQB 30; (1881-1882) 8 QBD 534

Counsel

Mr. E Asigau for the plaintiff
Ms Z Rekeken for the first & second defendants

RULING
1.	CROWLEY J: This is an application for the judicial review of a decision to issue a warrant of arrest for Peter Beswick (the Plaintiff) by the Chief Magistrate Mark Pupaka (the First Defendant) in relation to a charge under s415 of the Criminal Code. The information that was provided to the First Defendant, asserted that a letter the Plaintiff authored dated 15 September 2018 was fraudulent and calculated to cover up the behaviour of Bank of South Pacific (‘BSP’) employees.

Background

2.	The background facts contained in the information before the First Defendant, and in subsequent material filed by the parties, has almost nothing to do with the Plaintiff.  They relate to criminal activity of another, who has been tried and convicted. The accusations and investigation against the Plaintiff follow in the slipstream of this criminal activity. However, one cannot understand the nature of the charge against the Plaintiff without a recitation of the facts of the investigation and conviction of Robert Ralewa (‘Mr Ralewa’). 

3.	Mr Ralewa was the CEO of Asian Pacific Insurance Brokers (‘APIB’). That organised, sold and managed insurance policies. As part of that activity, APIB operated a trust account. That trust account was with BSP and included an internet banking facility. The major shareholder and a director of APIB was Watt Kil Kiddie (‘Mr Kiddie’). Between 27 January 2017 and 3 March 2018, Mr Ralewa used the internet banking facility to withdraw K931, 800.00 from APIB’s trust account and deposit it into his own.   This scheme was eventually uncovered, and Mr Ralewa was convicted and sentenced to imprisonment. 

4.	Mr Kiddie commenced litigation against BSP on the basis they had been negligent in allowing Mr Ralewa to operate the internet banking facility on his own. Mr Kiddie asserted BSP had breached its own policies in doing so.  The Plaintiff, who was Group General Manager of BSP Corporate Banking and had never had any dealings with APIB, Mr Ralewa or Mr Kiddie, wrote a letter to Mr Kiddie. The letter said that an internal investigation at BSP had found no problems with the establishment of APIB’s internet banking facilities and denied liability. 

5.	Mr Kiddie used this letter in a criminal complaint he had made. Mr Kiddie claimed the Plaintiff’s letter was a fraud, and its purpose was to cover for BSP employees whose actions had allowed Mr Ralewa to commit his offence. 

6.	DSS Francis was much taken with this idea and commenced investigating the Plaintiff. That investigation ran for several years (and is presumably ongoing). It involved attempts to question some BSP staff including the Plaintiff. When the Plaintiff declined an invitation to attend the police station for questioning DSS Francis sought an arrest warrant against him. 

7.	When issuing the arrest warrant the First Defendant checked the following boxes to indicate why he decided it was necessary to issue it against the Plaintiff:

a.	“To ensure his appearance in court to answer to the offence charged.
b.	To prevent the continuation or repetition of the offence or the commission of further offences.
c.	To preserve the safety or welfare of a member of the public or of him”.

8.	In his affidavit filed in these proceedings, the First Defendant said that his reasons were: “The warrant for Arrest was issued on the basis that the Plaintiff’s arrest was necessary to ensure his appearance and continued involvement in the ongoing criminal investigation by the Criminal Investigation Division.” (see para [7])

Law
9.	Section 8 of the Arrest Act provides that:

“ ISSUE OF WARRANT BY A COURT OTHER THAN A LOCAL COURT
Where an information is laid before a court, other than a Local Court, that there are reasonable grounds for believing –
(a) that a person has committed an offence within the country; and 
(b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary – 
(i) to ensure his appearance in court to answer a charge for the offence;  or 
(ii) to prevent – 
(A) the continuation or repetition of the offence; or 
(B)  the commission of a further offence; or 
(iii)    to preserve the safety or welfare of a member of the public or of the person, 
the court may issue a warrant for the arrest of the person.” 

10.	 The process of obtaining an arrest warrant commences with an information being laid before a Court (other than the Local Court, s8 Arrest Act). The definition of “information” includes a complaint for an offence (see s1(1) of the Arrest Act). 

11.	 The information must first convince the Magistrate that there are reasonable grounds for believing that a person has committed an offence within the country (s8(a) Arrest Act).

12.	 Second, the information must also convince the Magistrate of one or more of four things. Either that: 

a.	there are reasonable grounds for believing that the persons’ arrest is necessary to ensure his appearance in court to answer a charge for the offence (s8(b)(i) Arrest Act); OR 
b.	there are reasonable grounds for believing that his arrest is necessary to prevent the continuation or repetition of the offence (s8(b)(ii)(A) Arrest Act); OR 
c.	there are reasonable grounds for believing that his arrest is necessary to prevent the commission of a further offence; (s8(b)(ii)(B) Arrest Act); OR
d.	there are reasonable grounds for believing that his arrest is necessary to preserve the safety or welfare of a member of the public or of the person, (s8(b)(iii) Arrest Act). 

What evidence was before the First Defendant? 

13.	 On 6 December 2024 the First Defendant was presented with a Notice of Motion filed by DSS Francis. This Notice of Motion was accompanied by an Affidavit in Support and a Police Information. 

14.	 The Notice of Motion was in COM NO: 1334 of 2024 between Derrick Francis Detective Senior Sergeant as the Informant/ Applicant and Peter Beswick the Respondent. It sought:

“That pursuant to Section 8 of the Arrest Act 1977 a Warrant of Arrest be issued to the applicant, Detective Senior Sergent Derrick Francis to Arrest the Respondent, Peter BESWICK. And An order authorising the applicant and members of the Police Force (CID NCD, Boroko Police Station) to physically and formally arrest the suspect, Peter BESWICK” [emphasis in the original].

15.	 The Affidavit in Support was deposed too by DSS Francis.  That affidavit said: 

a.	DSS Francis was the investigating officer;
b.	On 26 July 2018 he received a complaint of misappropriation of trust monies of K931,800.00 by Robert Ralewa the CEO of Asian Pacific Broker Limited (APIB Ltd) between 27 January 2017 and 3 March 2018;
c.	The complainant was Watt Kil Kiddie a director and major shareholder of APIB Ltd;
d.	Mr Ralewa bought Mr Kiddie “...a BSP Online Business Banking form for the purpose of BANK VIEWING BALANCE and RECONCILIATION PURPOSE ONLY...”
e.	Mr Ralewa “... had his own intention and made himself as the sole master user for daily withdrawals of K500,00.00 in the company’s Operations Account and Trust Account...”. Ralewa transferred this money to his private company’s bank account.
f.	Mr Ralewa was arrest, charged and convicted of “misappropriation of trust monies in the sum of K931,800.00”
g.	His appeal was heard and dismissed on 1 December 2023.
h.	Police Investigation “...revealed that BSP Online Business Banking Form for Asian Pacific Insurance Brokers Limited ... did not exercise due diligences (“The care that a reasonable person exercises to avoid harm to other persons or their property’) in performing their duty statement and indirectly assisted/facilitate ...[Mr Ralewa]... to misappropriate the trust monies in the sum of K931,800.0...”;
i.	Mr Kiddie “... wrote several complaint letters in 2018 to the BSP Corporate Banking high lighting the alleged misappropriation by ... [Mr Ralewa]... who was CEO of APIBL at that time and also his complaint against BSP Bank staffs for alleged conspiring with the accused, negligence and not exercising due diligence in approving the BSP Online Business Banking internet form...”
j.	“Peter Beswick who was the Group General Manager of BSP Corporate Banking at that time, then wrote one page letter on 15th September 2018 to ...[Mr Kiddie]... stating that ...[his]... allegations were investigated, the account was correctly established, transactions were duly authorized by the authorized signatory and BSP Bank hereby denies any liability in this matter”.
k.	“Further investigation by Police through Search Warrant Number 256 of 2024 which was served to BSP Bank...” seeking documents like copies of power of attorney or minutes or resolutions by the Board of Directors appointing Mr Ralewa sole user of API Ltd online banking  “... was not available and was not given by BSP Bank”.
l.	The Affidavit asserted that such documents were required by BSP’s Online Business Banking Terms and Conditions. 
m.	The fact that these documents did not exist or were not produced “...shows that the investigation done by BSP and the letter dated 15th September 2018 by suspect namely Peter Beswick... were all false to cover up the BSP employees mistakes at that time and also indirectly assisted/facilitate ... [Mr Ralewa] ... to misappropriate the trust monies ...”
n.	“Therefore, a Warrant of Arrest is necessary for false statements by officials of companies contrary to Section 415(1)(a) of the PNG Criminal Code...”
 
No evidence to support the issuing of the arrest warrant

16.	 The information provided to the First Defendant addressed only the first criteria that he had to be satisfied of, namely that there are reasonable grounds for believing that a person has committed an offence within the country (s8(a) Arrest Act). 

17.	 There was no evidence that provided reasonable grounds for believing that the arrest was necessary to:

a.	ensure the Plaintiff’s appearance in court to answer a charge for the offence (s8(b)(i)); OR 
b.	prevent the continuation or repetition of the offence (s8(b)(ii)(A); OR 
c.	prevent the commission of a further offence; (s8(b)(ii)(B); OR
d.	preserve the safety or welfare of a member of the public or of the Plaintiff (s8(b)(iii). 

18.	 As such the First Defendant was not entitled to conclude the Plaintiff would not appear at court or that the Plaintiff would commit the same or other offences or that the Plaintiff’s arrest was necessary to protect the Plaintiff or the public (see Pala v Bidar [2016] PGSC 33; SC1515 per Higgins J at [26]). 

19.	 Therefore, the First Defendant’s decision suffers from a jurisdictional error. This on its own would be enough to justify the quashing of the decision. However, if I am wrong, I will consider other grounds.

The issuing of arrest warrant

20.	 Documents filed by the Plaintiff and First Defendant for the hearing of the judicial review identify that the facts deposed to by DSS Francis were wrong in a material sense. A decision-making relying on incorrect facts may be a jurisdictional error. 

21.	 On 6 December 2024 the First Defendant had before him the Affidavit of DSS Francis and an information. The information identified that the arrest warrant was sought in relation to a charge of s415(1(a) of the Criminal Code. That section read:
“s415. FALSE STATEMENTS BY OFFICIALS OF COMPANIES. (1) Subject to Section 416, a promoter, director, officer or auditor of a corporation, existing or intended to be formed, who makes, circulates or publishes, or concurs in making, circulating or publishing, any written statement or account that is, to his knowledge, false in a material particular, with intent by doing so– 
(a) to deceive or defraud any member, shareholder or creditor of the corporation, whether or not a particular person; or 
(b) to induce any person, whether or not a particular person– 
(i) to become a member of, or to entrust or advance any property to, the corporation; or
(ii) to enter into any security for the benefit of the corporation, 
is guilty of a crime. Penalty: Imprisonment for a term not exceeding seven years”. 

22.	 On 12 June 20925 in preparation for this application the parties filed a “Statement of Agreed and Disputed Facts and Legal Issues”. That document establishes that some critical facts set out in the Affidavit of DSS Francis was wrong. As such the precedent facts relied on by the First Defendant were wrong.

23.	 The Statement of Agreed and Disputed Facts and Legal Issues says, in part:

a.	“At all material times, in his capacity as the Group General Manager of BSP’s Corporate Banking Business, the Plaintiff was not involved in any manner whatsoever with APIB’s application for internet banking to be linked to its bank accounts or in relation to any of the transactions made by Ralewa”
b.	“The Plaintiffs letter to APIB did not contain any false information whatsoever and was not issued to deceive APIB but to provide BSP’s position on the complaints raised by APIB in relation to transactions performed by Ralewa”
c.	Section 415(1)(a) of the Criminal Code does not apply to the Plaintiff on the grounds that: 
i.	The Plaintiff is not a “promoter, director, officer or auditor of” APIB for the purposes of section 415(1)(a) of the Criminal Code;
ii.	The information contained in the Plaintiff’s letter to APIB is based on internal investigation of BSP;
iii.	The statements in the Plaintiffs letter are true and accurate as far as BSP is concerned;
iv.	The statements in the Plaintiffs letter were made in good faith as responses to the allegations made by APIB
v.	The Plaintiff did not send the letter to APIB with the intent to deceive APIB or Kiddie.

24.	 On a judicial review, the Court does not review the decision itself but the decision-making process. As such judicial review is confined to assessing errors of law not errors of fact. However, errors of precedent facts are different because they are facts which establish the decision maker’s authority. As Christopher Karaiye describes in Administrative and Judicial Review in Papua New Guinea:

“These facts determine what relevant considerations the decision maker has to take into account and what irrelevant considerations the decision maker has to ignore or avoid in the course of making a decision. Where a decision-maker has failed either or both, the decision is infected with error of precedent fact or jurisdictional error and is judicially reviewable” (see [4.4.2.4.1] page 107).

25.	 Section 8 of the Arrest Act establishes that the precedent facts are ones which speak to the question of whether there are reasonable grounds for believing that the person has committed an offence within the country and whether their arrest is necessary, variously, for a potential failure to appear, committing the same or further offence and/or endangering the safety of the public. 

26.	 As noted above there was no evidence provided in the affidavit material regarding a likelihood of a failure to appear, committing the same or further offence and/or endangering the safety of the public. 

27.	 However, the information contained precedent facts that caused the First Defendant to conclude that the Plaintiff had committed an offence against s415 of the criminal code. However, as the Statement of Agreed and Disputed Facts and Legal Issues makes clear, these precedent facts were wrong. The Plaintiff letter of 15 September 2018 was not false, was made in good faith and was not sent with an intention to deceive. As such the Plaintiff could not be liable for prosecution under s415 and the decision is infected with jurisdictional error. The decision-making process has miscarriaged and the decision is liable to be quashed on this basis alone. 

28.	 However, I will go on to consider other aspects of the decision-making process.

The First Defendant used the wrong legal test.

29.	 A decisionmaker who exercised power conferred on it but errs in law in making that decision is liable to have their decision judicially reviewed.   On a judicial review, the Court has the discretion to intervene if an error of law appears on the record of the decision, is substantial and if allowed to stand would manifest injustice. 

30.	 The First Defendant proceeded on the basis that the information to justify the issuing of the arrest warrant had to convince him that “probable cause” existed.

31.	 In paragraph 4 of the First Defendant affidavit, he says:

“Warrants ... are police investigation tools and are issued by District Court Magistrates upon request. What Magistrates look for in the information and sworn affidavits in support is probable cause” [emphasis added].

32.	 The First Defendant was echoing his own Practice Direction No.1 of 2023 at paragraph 4.1 which says that “A designated Magistrate shall consider an application for warrant and may issue a warrant where probable cause is demonstrated” [emphasis added].

33.	 In his Affidavit in Response the First Defendant concluded; “... I verily believe that there was no error in issuing the Warrant for Arrest as there was probable cause to shown by the Criminal Investigation Division...” [emphasis added].

34.	 The jurisdiction to issue arrest warrants is established by the Arrest Act. The test under section 8 of that Act is “...reasonable grounds for believing...”. The magistrate must be satisfied (amongst other things) that there are “reasonable grounds for believing” that an offence has been committed within the country. 

35.	 The phrase “probable cause” does not appear in the Arrest Act, nor does it appear in the District Court Act. The phrase “reasonable or probable cause” appears in the Criminal Code (s390(2)(b) Demanding property by written or oral threats) and “reasonable and probable cause” appears in the Customs Act (s47(4) Certificates of clearance). But the phrase is not used in the English common law. It is used in the common law of the United States in relation to search’s and arrests.  

36.	 It appears in Papua New Guinea common law in relation to the tort of malicious prosecution where the tort is committed if arrest is procured maliciously and without probable cause (see Ignote v Hualupmomi and The State [1996] PNGLR 308). In my opinion it is not appropriate to use it in consideration of arrest warrants primarily because it is not the test enunciated in the Arrest Act but also because the definition of this phrase has not been established by the Supreme Court. 

37.	 In applying the test of “probable cause” the First Defendant made an error of law in that jurisdiction to issue an arrest warrant is found on the decisionmaker having “reasonable grounds for believing”. I am satisfied that this error of law is substantial and if allowed to stand would manifest injustice because the First Defendant has not assessed the relevant information correctly.

Irrelevant consideration
38.	 As identified above, the information contained in the Affidavit of DSS Francis has now been agreed by the parties to be wrong. However, even assuming it was correct the First Defendant was not entitled to conclude that there were reasonable grounds for believing that the Plaintiff had committed an offence in this country. 

39.	 In the First Defendant’s Affidavit he says: 

“It is my understanding that Peter Beswick does not have to be a promoter director officer or auditor of APIB to be suspected of complicity and culpability. If the police believe he did enough to perpetuate crime and did not do enough both consciously and unconsciously, to prevent crime the police can hold him to account” [emphasis added].

40.	 Firstly, there is no obligation on a citizen to prevent crime. There is a responsibility not to commit crime but if a person witnesses a crime they are under no obligation to intervene. This flows from the idea that a person is not criminally liable for passive presence at a crime (see R v Coney [1882] UK Law Rp KQB 30; (1881-1882) 8 QBD 534).  As such the First Defendant’s reliance on the police belief that the Plaintiff did not do enough both consciously and unconsciously, to prevent crime is an irrelevant consideration and should not have been considered. 

41.	 Second, the Information before the magistrate asserted that the Plaintiff’s letter had assisted other BSP employees by falsely covering for them. However, nowhere does it identify what offences these BSP employee committed. Therefore, the Plaintiff could not be guilty of aiding their offending.

42.	 As has already been said, the First Defendant must be satisfied that there are reasonable grounds to believe the Plaintiff has committed an offence within the country. DSS Francis deposed that: 

“...the investigation done by BSP and the letter dated 15th September 2018 by suspect Peter Beswick...were all false to cover up the BSP employees mistakes at the time and also indirectly assisted/facilitated the conviction State Prisoner to misappropriate the trust monies...” [emphasis added].

43.	 This identified the police belief that the letter Peter Beswick wrote on 15 September 2018 was false (so in breach of section 415) and that the letter covered up for BSP employees mistakes. The BSP employees’ mistakes indirectly assisted Ralewa to misappropriate money. 

44.	 Under the party provisions (s7 & s8 of the Criminal Code) a person cannot “indirectly” or “unconsciously” (to use the First Defendant’s words) aid, counsel, procure, encourage or conspire to commit a crime. All those actions require the mental acknowledgment of assisting in an offence. Therefore, the Plaintiff would not be criminally responsible for “indirectly” or “unconsciously” helping BSP employees help Mr Ralewa commit offences. 

45.	The BSP employees’ mistakes asserted in the Affidavit of DSS Francis are not alleged to be criminal in nature. No employee is named, no specific action identified and no criminal charge indicated. Therefore, even if the Plaintiff’s letter of 15 September 2018 was deliberately false, it was not assisting Mr Ralewa. It was merely “covering” for BSP employees who had not committed criminal offences. As such the Plaintiff could not have been perpetuating a crime as understood by the First Defendant. Therefore, it is an irrelevant consideration to believe that the Plaintiff was.

46.	 Finally, the decisionmaker accepted these things because “...the police believe ...[the Plaintiff]... did enough to perpetuate crime...”. This is an irrelevant consideration in that it is not the police belief that is relevant but that the information gives the First Defendant’s “reasonable grounds for believing” the Plaintiff had committed an offence. 

47.	 As such the First Defendant has taken into account irrelevant considerations in reaching his decision and therefore his decision is infected with jurisdictional error and liable to be quashed.

Obiter Dita
48.	 In considering this matter, two things struck me that I feel duty bound to mention.

49.	 First, the First Defendant concluded his Affidavit: 

“Therefore I verily believe that there was no error in issuing the Warrant for Arrest as there was probable cause shown by the Criminal Investigation Division and the Plaintiffs rights to a fair hearing is not breached as he has not lost any right to be head at all next levels going forward.” [emphasis added]

50.	 This is in direct contradiction to the Supreme Court jurisprudence (beside being against the Constitutions).

51.	 In Pala v Bidar [2016] PGSC 33; SC1515 Justice Higgins (with whom Justices Batari and Sawong agreed) said: 

“19. It is a fundamental principle in a free and democratic society that the liberty of the subject should be interfered with only for good cause and then to the minimum extent necessary to achieve a proper public purpose. (see Section 32 of the Constitution).
20. It was recognised, correctly, in Donigi v. State [1991] PNGNC 44; [1991]PNGLR 376, that a person has standing to challenge the validity of a legislative act and hence a judicial act or order if the person thereby suffers:
“... or is at risk of suffering direct and substantial damage other than that which is common to the rest of the public”.
21. In that case the plaintiff was not at risk of adverse action but it cannot be suggested that a person against whom a warrant of arrest has been issued is not at risk of such adverse action. It is not to the point that, after arrest, the arrestee can challenge the validity of the deprivation of his liberty. By then the deprivation has already occurred.” [emphasis added]

52.	 Second the First Defendant said at [7] said “The warrant for Arrest was issued on the basis that the Plaintiff’s arrest was necessary to ensure his appearance and continued involvement in the ongoing criminal investigation by the Criminal Investigation Division.” [emphasis added] 

53.	 There is nothing in s8 of the Arrest Act that permits arrest for “...continued involvement in the ongoing criminal investigation”. That is consistent with the right to silence (or privilege against self-incrimination) which is the right of every Papua New Guinean (s37 of the Constitution). The police investigation may establish reasonable grounds for the Magistrates to believe that the person has committed an offence. The police cannot seek to establish that after the person is arrested, by questioning them. It is a fundamental tenant across the common law world that the accused is not a source of information for the police or prosecution unless they voluntarily choose to be. 

Conclusion
54.	 As identified above the affidavit relied on by the First Defendant did not provide reasonable grounds for believing the issuing of an arrest warrant was necessary. Moreover, that affidavit is now understood to be wrong in material respects. Further, the First Defendant applied the wrong test and finally, relied on irrelevant considerations. For these reasons I exercise my discretion to quash the decision of 6 December 2024 to issue the Arrest warrant.  

Orders 
1.	 An order in the nature of certiori quashing the decision of the First Defendant dated 6 December 2024 made pursuant to the Arrest Act to issue a warrant for the arrest of the plaintiff for an offence under section 415(1)(a) of the Criminal Code. 

2.	The First and Second Defendant to pay the Plaintiffs costs on the standard basis to be taxed if not agreed.
_________________________________________________________________
Lawyers for the plaintiff: Corrs Chambers Westgarth 
Lawyer for the first & second defendant: Solicitor-General