HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 59 of 2005

JOHN KWAKWALA MAKASI

-v-

COMMANDER OF PARTICIPATING
POLICE FORCE UNDER THE REGIONAL
ASSISTANCE MISSION TO
SOLOMON ISLANDS(RAMSI)

AND

ATTORNEY-GENERAL

(Mwanesalua, J.)

Hearing: 22, 23, 24, 25, 26,29, 30 August and 1 September 2005
Judgment: 14 December 2007

Mr. C Ashley for the Applicant
Mr. G Stretton for the First Respondent
Mr. N Moshinsky QC and F Walenisia for the Second Respondent

JUDGMENT

1.	Mwanesalua, J:	The Applicant is Mr. John Kwakwala Makasi, of Green Valley, in Honiara, Solomon Islands. The First Respondent is the Commander of the Participating Police Force (PPF) under RAMSI, and the Second Respondent is the Attorney-General, for the Commissioner of the Solomon Islands Police Force ("the Police Force").

2.	The Late Adam Dunning, was an Australian Federal Police Protective Service Officer, serving with the PPF in Honiara, Solomon Islands. On 22 December 2004, at 3.10am, he was shot and killed, while on patrol on the Kola Ridge Road, in Green Valley, in East Honiara.

3.	The PPF has a container demountable building, known as "Zulu 7", within the RAMSI Headquarters, at the Guadalcanal Beach Resort, "GBR", at Henderson, East of Honiara. The PPF use Zulu 7, for inter alia, conduct interviews and record statements from suspects and witnesses in criminal investigations.

4.	The PPF obtained two witness statements and one caution statement from the Applicant after the death of Adam Dunning, at the GBR, on 22, 23 and 31 December 2004. The statements of 22 and 31 December were obtained from the Applicant in Zulu 7, whilst the statement of 23 December, was obtained from him in an office in the Executive Building at GBR.

5.	In the course of their investigations into the murder of Adam Dunning, the PPF obtained a search warrant from a Magistrate in Honiara on 27 December 2004, and executed it on the Applicant’s house in Green Valley, on 29 December 2004. The Applicant was not at home that time, but his wife gave consent for the search to be done.

	The Applicant’s Case:

6.	The Applicant seeks redress against the First and the Second Respondents for their alleged:

(a)	contravention of his personal liberty under section 5(1) of the Solomon Islands Constitution ("the Constitution") between 22 to 31 December 2004.

(b)	unlawful arrest and/or detention under section 5(2) of the constitution between 22 to 31 December 2004.

(c)	undue delay to take him to court under section 5(3) of the Constitution between 22 to 31 December 2004.

(d)	inhuman and degrading treatment of him under section 7 of the Constitution between 22 and 31 December 2004.

(e)	unlawful entry, search and damage to his property under section 9(1) of the Constitution on 29 December 2004.

(f)	contravention of his freedom of movement under section 14(1) and (2) of the Constitution between 22 to 31 December 2004.

And he further claims that:

(i)	section 19 of the Facilitation of International Assistance Act (No. 3 of 2003) (the Facilitation Act) is subject to section 43(3) of the Constitution.

(ii)	section 17 of the Facilitation Act as read with section 24 thereof is subject to Part II of the Constitution.

(iii)	the second Respondent is severably or jointly liable with the First Respondent for the breaches of his constitutional rights and freedoms as the Second respondent has failed in his duty to protect those rights and freedoms, or has allowed himself to be controlled by the First Respondent.

The First Respondent’s Case:

7.	The First Respondent denies that the rights and freedoms of the Applicant under the Constitution, as alleged, were breached at any time during the period between 22 and 31 December 2004; that no issues arise on sections 17 and 19 of the Facilitation Act, as the First Respondent does not rely upon them as defence to this action; that section 43(3) nor any other provision of the Constitution is inconsistent with the status of the PPF as a "visiting contingent" within the meaning of the Facilitation Act; that the right of redress pursuant to section 17 and 18 of the Constitution (whether for compensation or otherwise) are confined to claims by Private persons against the Government of Solomon Islands, and as such, the Applicant has no right of redress against the First Respondent under section 18 of the Constitution.

The Second Respondent’s Case:

8.	The Second Respondent denies that sections 5(1), (2) and (3), 7, 9(1) and 14(1), (2) of the Constitution were breached in relation to the Applicant; that the Police Force was not a party to any breach of the Applicants rights and freedoms as alleged; that the right of redress pursuant to section 18 of the Constitution is confined to claims by private individuals against the state, and not between a private individual and an entity like RAMSI; and that the Applicant’s claim under Part II of the Constitution does not disclose any or any reasonable cause of action and should be dismissed with costs.

	Applicant went to GBR with Police on 22 December 2004:

9.	At about 6pm. on 22 December 2004, the Applicant left his home at Green Valley and accompanied Mr. Erekali, and three other officers of the Police Force in a Police car. They traveled to Rove Police Station and then back to Town Ground. From there, they traveled to GBR in the company of PPF officers in four vehicles.

10.	At 7.55pm, Mr. Barnett and Mr. Usback from the PPF, Mr. Erekali and the Applicant went into Zulu 7 to interview and take a witness statement from the Applicant. During the interview, Mr. Barnett and Mr. Usback ask questions in English, while Mr. Erekali translated in pidgin to the Applicant. Mr. Erekali then wrote the Applicant’s statement in English (see Exhibit R3). The recording of the statement was completed at 10.40pm and then signed by Mr. Barnett, Mr. Usback, Mr. Erekali and the Applicant himself.

11.	Mr. Barnett then gave his business card to the Applicant, and told the Applicant to ring him should he need anything or had further information regarding his statement.

12.	The statement implicated Mr. Ome and Mr. Tatau in the murder of Adam Dunning. They were later arrested and charged with the alleged murder of Adam Dunning with other persons.

13.	At 11.15pm, Mr. Barnett, Mr. Boorman, Mr. Erekali and the Applicant drove to Kukum Police Station, in Honiara. Upon their arrived there, Mr. Barnett explained to the Applicant that they would drop him off at the station because it was not safe for them to drive him to his home at Green Valley at night. The Applicant agreed, and accompanied Mr. Barnett to the station where Mr. Barnett rang a taxi for him. Mr. Barnett gave him $50.00 for the taxi fare. Mr. Barnett and Mr. Boorman then drove on towards west Honiara to drop off Mr. Erekali. 

14.	The court rejects the Applicant’s testimony when he says: that it was Mr. Barnett and not Mr. Erekali who recorded his statement; that Mr. Erekali did not interpret for him; that he was taken by the Police as a suspect; that he was asleep at his house on 22 December 2004 when he heard the sound of the shots which resulted in the death of Adam Dunning; his claim that his statement was fabricated by the Police and that his other name was not Max.

15.	The court accepts: that it was Mr. Erekali who interpreted for the Applicant and recorded his statement of 22 December 2004, while Mr. Barnett and Mr. Usback question the Applicant. This was confirmed by the Applicant himself in his testimony when he said that he answered questions during the interview truthfully; that he was at Mr. Kabau’s house on 22 December 2004 when he heard the shots at about 3am. This was confirmed by his spouse, Maria Ngosana, and Janet Kabau, who were his own witnesses; that people who know him, usually call him "Max". This was confirmed by his spouse, Maria Ngosana, Mrs. Janet Kabau, Mrs. Susan Lolley, Mr. John Lolley, Mr. Eric Bako and Mrs. Helen Soside, who all know him. 

16.	He was not taken as a suspect by the Police Force on 22 December 2004. He was at home with his family when four members of the Police Force asked if he heard about the fatal shooting of a PPF officer and he said he had. They then asked him to accompany them to Rove Police station to assist them in their investigations. He agreed to go with the Police Officers because he wanted to assist in their investigations. He later made a statement to the PPF at Zulu 7 when Mr. Erekali acted as his interpreter and recorded his statement. He was normal, focused, well coordinated, and responded to questions attentively during the interview. He signed on every page of his statement and did not ask for food.

Applicant went to GBR on 23 December 2004:

17.	In his affidavit (A5) the Applicant says that he went to Kukum market in the morning of December 2004 to purchase betel nut and leaf for his market stall at Green Valley. He says that when he arrived back at his house at about 11.30am, his wife told him that the PPF were looking for him. He says that he immediately left to the Border-Line Police Post, and the Officer-in-Charge of the Post, rang Naha Police that the Applicant needed transport to go to GBR. 

18.	Mr. Satini was the Officer-in-charge of Naha Police Station. He says that he received the call from the Border-Line Police Post at about 5pm as he was closing up his office to go home. He then drove to the Border-Line Police Post where the Applicant told him that he needed transport to go to GBR. Mr. Satini saw the Applicant holding a piece of paper containing the telephone numbers of RAMSI officers in it. This convinced Mr. Satini that the Applicant genuinely required transport. He thus drove the Applicant to GBR.

19.	Upon their arrival at GBR, Mr. Barnett met them outside the Executive Building at 6.25pm. Mr. Barnett saw the Applicant holding his business card and smiled at him. Mr. Barnett learned from Mr. Satini that the Applicant had been threatened. Mr. Barnett and Mr. Potter then took the Applicant into an office in the Executive Building and took his statement (see Exhibit MWR3). After recording his statement, Mr. Barnett and Mr. Potter drove him to Kukum Police Station. He agreed to be dropped at the station and they gave him $50.00 for his taxi fare to his home.

20.	In his statement, the Applicant says inter alia, that he was selecting betel nuts at the market about lunch time, when he saw Mr. Ome walking up to him with a bush knife about three quarters the length of his arm. They then faced each other, about 5 meters apart, and made the following exchanges between them: Mr. Ome, "You". Mr. Makasi, "what’s wrong". Mr. Ome, "You already report me to the Police yesterday". Mr. Makasi, "Yea you already said to me that one fine day you will shoot RAMSI". Mr. Ome, "You motherfucker". Mr. Ome then walked to the Kukum main road, turned around, held up his knife and said to the Applicant, "I will kill you to night. I’m going to come to your house and kill you". The Applicant said that he felt scared and was worried that he would be killed.

21.	The court rejects the Applicant’s evidence that the PPF came to his house to look for him that day; that the statement was invented by Mr. Barnett and Mr. Potter; that he merely signed the statement after it had been written; that its entire contents did not come from him; that Mr. Ome did not threaten him that day; that he merely saw the statement for the first time in court and that he had never read it.

22.	It was clear from the statement itself, that he signed each page of the statement and confirmed on page three of the document that he read that the statement and that it was true and correct. 

Applicant taken to GBR by PPF on 31 December 2004:

23.	He says that: the PPF officers took him from his house at 9am to GBR on 31 December 2004; a PPF officer reached for his pistol and ordered him to lay on his belly on the floor of the vehicle as they left the high way to drive towards GBR; he was locked up in Zulu 7 when they arrived; that the air reaching him from outside, came through a small opening at the side of the door; there was a table and four chairs in Zulu 7; that he started banging on the door for PPF officers outside to open it from outside as he wanted to urinate; that when the door was opened, the PPF officer who ordered him to lay on his belly on the floor of the vehicle ordered him to urinate just outside the door, in the presence of around nine PPF officers; when he finished urinating, the same PPF officer ordered him to go back into Zulu 7 and closed the door behind him; that the door was open again at about 3pm and about five to six PPF officers entered; the officer who had been giving him orders threw some photographs of Adam Dunning on the table; the officer kick him with the chair he sat on when he told the officer he did not kill Adam Dunning; he fell to the floor and the officer ordered him to get up and sit on the chair again; whilst he was outside Zulu 7 after the interview, the same officer ordered him to board a Land Cruiser and told him to lay on his belly in the middle of the vehicle. The officer ordered him to sit up when the vehicle reached the highway opposite the Henderson International Terminal Building, and arrived back at his home around 8pm.

Was the Applicant alone in Zulu 7 from 11.15am to 2.10pm on 31 December 2004?

23.1	Mr. Harrison and Mr. Pickering left Rove Police Station to pick the Applicant at Green Valley at 11.05 on 31 December 2004. They arrived at the Applicant’s house at 11.15am and took him to GBR in their vehicle. They arrived outside Zulu 7 at 11.34am and Mr. Harrison telephoned Mr. Boorman that the Applicant was in Zulu 7. Mr. Harrison and Mr. Pickering stayed with the Applicant in Zulu 7 for about one and half hours. During this time, they showed the Applicant his previous statements of 22 and 23 of December 2004 and the statements of Mr. and Mrs. Lolley. Mr. Boorman arrived at Zulu 7 at about 12.30pm and spoke to the Applicant. Mr. Harrison and Mr. Pickering left Zulu 7 at 1pm to go to Rover Police Station to pick up Mr. Simao. They arrived back at Zulu 7 with Mr. Simao at 2.10pm. Mr. Robertson went to Zulu 7 to take part in an Interview with the Applicant. Mr. Robertson saw Mr. Boorman, Mr. Harrison and Mr. Simao with the Applicant when he arrived at Zulu 7. Mr. Boorman said he spoke to Mr. Robertson before he left Zulu 7. Mr. Harrison said that Mr. Boorman was still in Zulu 7 when the interview started. Mr. Harrison and Mr. Pickering were with the Applicant in Zulu 7 from 11.15am. to 1pm. That Mr. Boorman was with the Applicant from 12.30pm until after 3.05pm. The court finds that the Applicant did not stay in Zulu 7 by himself from 11.15am to 2.10pm on 31 December 2004.

Was the door to Zulu 7 completely closed from 11.15am and 2.10pm on 31 December 2004?

23.2	Zulu 7 is a shipping container, used by the PPF for among other things, as an interviewing room. It is air tight sealed when it is completely shut. The Applicant says that the door to Zulu 7 was closed when he was in it on 31 December 2004. According to his affidavit (Exhibit A5), as the door was closed, he was only able to breathe from air coming through an opening at the side of the door. But in his testimony, he changed his story, saying that the air came through a hole underneath the door of the container. But Mr. Boorman, Mr. Hadden and Mr. Harrison told the court that the door could not be completely closed because an electrical cable ran above the door to an air condition unit in the interviewing room, where the Applicant was on 31 December 2004. A video tape of this door confirmed the existence of this electrical cable above the door. Mr. Harrison further told the court that no air could flow into the Zulu 7 under the door, if it had been completely closed because the door would be below the floor level, shutting off the hole which the Applicant referred to in his testimony. The court finds that the door to Zulu 7 was not completely closed on 31 December 2004 as claimed by the Applicant.

Did the Applicant urinate outside the door of Zulu 7 in the presence of PPF officers on 31 December 2004?

23.3	Mr. Boorman was with the Applicant in Zulu 7 from about 12.30 to after 2.10pm. During this period of time, the door to Zulu 7 was open all the time. The Applicant would not therefore need to bang on the door to Zulu to be opened by any PPF from outside. There would have been no necessity for any PPF officer to tell him to urinate near the door in the presence of PPF officers, as Mr. Boorman had taken him outside to urinate at the left side of Zulu 7. Mr. Boorman stood about five to ten meters away when the Applicant urinated. The court finds that the Applicant did not bang the door of Zulu 7 nor urinated near the door in the presence of PPF officers.

	Did a PPF officer kick the Applicant with the chair he sat on in Zulu 7?

23.4	The Applicant says that a PPF officer kicked him with the plastic chair he sat on in Zulu 7. This occurred sometime prior to the interview. The Applicant says this occurred after a PPF officer showed him the photographs of Adam Dunning. He says the PPF officer who kicked him was Bob. Later, he says that the Police Officer was either Bob or Mr. Harrison or Mr. Pickering. There was no one called Bob posted GBR at the time. Both Mr. Harrison and Mr. Pickering denied kicking the Applicant in Zulu 7. They could not have been in possession of Adam Dunning’s photographs prior to the interview with the Applicant. This was because the photographs were developed and kept by Mr. Robertson, and that he only brought them with him to Zulu 7 when Mr. Harrison and Mr. Simao were already with the Applicant for the interview. On the other hand, the photographs would not have been in the possession of any other PPF officer prior to the interview. The court finds that neither Mr. Harrison nor Mr. Pickering showed the photographs to the Applicant nor kicked him with his chair prior to the commencement of the interview.

Did Mr. Harrison force the Applicant to lay on his belly on the floor of the vehicle on 31 December 2004?

23.5	The applicant says in his affidavit (Exhibit A5) that he had to lay on his belly on the floor of the vehicle on the way to GBR because a PPF officer forced him by reaching out for his pistol. He called that officer Bob. No PPF officer working at GBR at that time was known by that name. Further, he says that the officer took out his pistol from its holster and raised it up to shoulder level. It was Mr. Pickering who drove the vehicle to GBR and Mr. Harrison was the one who sat on the passenger seat at the time. They say that they only suggested that the Applicant lay down on his seat, when the vehicle went through the gate to GBR. They explained that this was for the welfare and safety of the Applicant as the local security officers at the gate might recognize him and give his name to other locals, who were against locals assisting PPF officers with their investigations of crimes committed during ethnic tension. Both Mr. Harrison and Mr. Pickering denied threatening the Applicant with their pistols. Mr. Hadden explained that it would be difficult for anyone to lay on his belly on the floor of the vehicle as the space in the middle of the vehicle was very narrow. This court will accept that neither Mr. Harrison nor Mr. Pickering forced the Applicant to lay on his belly by raising their pistols at the Applicant. The court will also accept Simao’s evidence that the Applicant only crouched on their seat when the vehicle went through the gate after the interview. 

Tape Record of Interview on 31 December 2004:

23.6	The interview was made between Mr. Robertson and the Applicant. Mr. Harrison was the witnessing officer whilst Mr. Simao was the interpreter from English to pidgin for the Applicant. The Applicant was provided with food and water and was cautioned before the interview began at 3.05pm. The Applicant was asked three times at the beginning and during course of the interview whether he needed a lawyer, but he said, he would talk by himself. He read the previous statements he gave to Police on 22 and 23 December 2004. He understood the contents of his statement of 23 December and did not wish to change anything in it. He mentioned, among other things, that apart from the name John Makasi, other people also call him "Max". He was at Mr. Kabau’s house when he heard gun shots about 3am on 22 December 2004. Later that morning, he travelled on a vehicle owned by a man and his wife, who dropped him off at Vura I bus stop. He knew Mr. John Lolley and Mrs. Susan Lolley. He also knew Mr. Bako. Mr. Bako was present when he borrowed fifty dollars from Mrs. Susan Lolley in December 2004. The interview ended at 5.49pm. He confirmed that he gave his statement during the interview voluntarily. The Transcript of this tape record of interview was marked Exhibit "R5". The four tapes containing this record of interview were also Exhibited to the court. The Applicant was not truthful when he said that he was not asked whether he wanted a Lawyer during the interview because Mr. Robertson did ask him three times whether he wanted a Lawyer.	

Did the First Respondent have reasonable grounds to enter, and search the Applicant’s house on 29 December 2004?

24.	On the morning of 23 December 2004, Helen Soside informed the PPF that Max (John Makasi) related to her that it was Mr. Tatau and Mr. Ome who shot Adam Dunning. These men came to his home with a gun and shot the PPF Officer after they drank with him (see Exhibit RSB2 annexed to Mr. Barnett’s affidavit (R8)). Mrs. Susan Lolley and Mr. Bako also informed the PPF that Max mentioned having four high powered guns in his house. (See Exhibits MWR8 and 10 annexed to the affidavit of Mr. Robertson (R17)). The Advocate for the Applicant did not oppose the admission of these documents as evidence. The entry and the search of the Applicant’s on 29 December 2004 were carried out under a Search Warrant issued by a Magistrate pursuant to section 30(1) of the Firearms and Ammunition Act (Cap.80). The Police Officers who executed the search warrant were Mr. Pickering, Mr. Booth, Mr. Stanwix and Mr. Warness of the PPF. Mr. Kabitana and Ms. Koloni of the Police Force merely assisted as interpreters to the wife of the Applicant. The Applicant’s wife consented to the entry and search of the house. Mr. Booth searched two of the bedrooms. He did not damage any part of those rooms. Mr. Stanwix searched the third bedroom. He saw some areas of the house which were in very poor condition. Wall cladding were hanging loosely from the walls, the ceiling was very messy, some of the wall timber cladding only extended four feet from the floor. There was a gap in the cladding which formed the hallway wall. He did not cause any damage to the house. The Applicant says he noticed a hole in the wall when he returned home after the search was made. The photographs, marked exhibits "MN6", "MN7" and "MN9", annexed to Maria Ngosana’s affidavit purported to show damage in the walling and ceiling of the house. But Mr. Booth and Mr. Stanwix denied causing any damage to the house as depicted in the photographs. Maria Ngosana did not take and develop the photographs. It is further noted that the photographs were taken on 2 August 2005, seven months and four days after the search warrant was executed on the house. There is doubt in the mind of the court on whether damage shown in photographs were caused during the search, in view of Mr. Booth and Mr. Stanwix’s evidence. There were reasonable grounds to enter and search the Applicant’s house for guns. The information from Ms. Helen Soside, Mrs. Susan Lolley and Mr. Bako would justify the issue of the warrant to enter and search the Applicant’s house.

	Legal Submissions on behalf of the Applicant

25.	First submission: There can only be one Police Force in Solomon Islands. And such Force must be under the command of the Commissioner of the Solomon Islands Police Force ("the Police Force"). The creation of any other force whether by law or otherwise will be unconditional.

25.1	It is clear to this court, that the constitution envisages that any other Police Force can be in the country when needed. This is reflected by s.19(1)(g) and 19(4). In Andrew Gabriel Hanaipeo Nori-v-Attorney-General and Sandie Piesley (Commander of the Participating Police Force of the Visiting contingent to Solomon Islands and others, at p.11, his Lordship Palmer CJ said:

"…Part III of the Police Act provides for arrangements where police officers from the Police Force of a neighbouring territory may enter the country for the purpose of assisting the Force in Temporary emergency. In such situation, the provisions of section 57 could apply.

Similar arrangements also envisaged in my respectful view by our Constitution by having section 19(1)(g) included, in which the definition of a "disciplinary force" includes "any other constabulary or police force established by Parliament", and subsection 19(4) which envisages arrangements made between the Solomon Islands Government and another Government or an international organization whereby another disciplined force is in the country."

25.2	It is accepted that the Commissioner is the Commander of the Police Force. The Constitution envisages there is one Commander in the country over policing operations. In Andrew Gabriel Hanaipeo Nori-v-Attorney-General and Sandie Piesley (Commander of the Participating Police Force of the Visiting Contingent to Solomon Islands and others cited above, at pp 10-11, his Lordship Palmer CJ said:

"It is important to appreciate that in normal circumstances, it was clearly envisaged under the Constitution and the Police Act that there should be one Commander of police operations. This made clear when the provisions of section 5 of the Police Act on the roles and functions of the Force in the country are considered" "The Force shall be employed in and through out Solomon Islands for the maintenance and enforcement of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the apprehension of offenders…" When this is read with section 8 of the Police Act and section 43(5) of the Constitution, it is clear that ultimately the power of control over policing activities and operations in the country was intended under the Constitution to be vested in one Supreme Commander, the Commissioner. Subsection 43(5) in particular makes clear that in respect of the use and operational control of the Force, the Commissioner is in-charge. To that extent I accept submissions of the Plaintiff is so far as the Constitution envisages that there is one Commander in the country over policing activities/operations."

26.	Second submission: where there is present in Solomon Islands another force, all members of that other force, are subject to the command, control, directions and superintendence of the Commissioner of the police. Anything less would be in consist with section 43(5) of the Constitution, and as such, is void and of no effect.

26.1	The Solomon Islands Government signed an Agreement with Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga ("the Agreement") on or about 24 May 2003, to facilitate the operations and status of the police; armed forces and other personnel deployed to Solomon Islands under the Regional Assistance Mission to Solomon Islands.

26.2	Article 5 of the Agreement describes in detail the status of the PPF. Article 5.1 identifies the head of the PPF in the country will be "The Most Senior Australian Police Officer of the Participating Police Force, with the responsibility for the control of the Force. In exercising that control, the head of the Participating Police Force shall consult with the head of the visiting contingent."

26.3	Article 5.4(a) of the Agreement provides that "Members of the Participating Police Force are subject only to the orders of, and instructions from: (i) the head of the Participating Police Force; and (ii) where appointed to the Solomon Islands Police, the Commissioner of the Solomon Islands Police Force, in consultation with the head of the Participating Police Force."

26.4	Article 5 of the Agreement provides that the head of the PPF shall be appointed a Deputy Commissioner of the Solomon Islands Police Force ("the Police Force").

26.5	In Andrew Gabriel Hanaipeo Nori v.Attorney-General and Sandie Piesley (Commander of the Participating Police Force of the Visiting Contingent to Solomon Islands and others, cited above at p.22 his Lordship Palmer CJ said:

"As there are two Police Forces, which is not contested, it is only proper" (referring to Article 5.4(a) above) "that members of the PPF (who consist of numerous police officers from the participating countries) have a clear issue of command and control in terms of general administration and discipline. In their operational control and activities that also comes from the head of the PPF, who in turn comes under the direct c/c of the Commissioner. The overall c/c of the Commissioner therefore is not usurped, compromised, diminished or reduced. Through, Article 5.2, that c/c authority is retained."

Conclusion:

27.	The Applicant heard the shots which led to the death of Adam Dunning on 22 December 2004. He went with members of the Police Force Voluntarily to assist with their investigations. He gave a witness statement to the PPF and a member of the Police Force at GBR. Mr. Barnett gave him his business card containing his telephone number. The intention was for him to ring Mr. Barnett should there be additional information regarding his statement which implicated Mr. Ome and Mr. Tatau in the murder of Adam Dunning. There was no evidence showing he was arrested or detained. The PPF and the Police were not required to take him before the court without undue delay as he was a potential prosecution witness.

28.	The Applicant went to GBR on 23 December 2004 by his own decision. The PPF did not expect him at GBR that day. Mr. Barnett told him on 22 December 2004 told him to ring him if he needed anything. It seemed that he was threatened by Mr. Ome that day. Mr. Potter described the Applicant as being very scared when he conversed with him at the Executive Building. His personal liberty was not contravened. He was neither arrested nor detained by the PPF and the Police Force on that day.

29.	This court does not accept the Applicant’s evidence on the following matters: that an officer from the PPF forced him to lay on his belly on the floor of the vehicle by raising a pistol at him on 31 December 2004; that the door to Zulu 7 was completely closed when he was in it that day that he was in Zulu 7 by himself that day; that he urinated close to the door of Zulu 7 in front of RAMSI officers; that he was shown photographs of Adam Dunning and kicked by a PPF officer with the chair he sat on prior to the interview that day; and that he was not asked by the PPF officers whether he needed a lawyer to assist him during the interview. There was no need to take him to court without undue delay as he was not charged with any offence. He was not subjected to inhuman and degrading treatment by the PPF and the Police Force on that day.

30.	There was material for the Magistrate to issue a search warrant to the PPF to search the home of the Applicant for guns. The entry and search of the Applicant’s home was not unlawful as it was done under the authority of a search warrant.

31.	There is no evidence to show that the PPF and the Police Force have deprived the Applicant of his freedom of movement as envisaged under section 14(1) and (2) of the Constitution.

32.	The members of the PPF who dealt with the Applicant were under the "operational control of the head of the PPF, who in turn comes under the direct control of the Commissioner" of the Police Force, by virtue of his position as the Deputy commissioner of the Police Force. This does not compromise, diminish or reduce the power of the Commissioner of the Police Force as envisaged under section 43(5) of the Constitution.

33.	The First Respondent did not seek to defend this action on the basis of the immunity provided to the PPF under section 17 of the Facilitation Act the question of Immunity is not in issue in this case.

34.	The answer to questions 1 and 2 in the Applicant’s Notice of Motion is no, whilst question 3 does not arise for determination. Accordingly the Plaintiff’s motion is dismissed having disclosed no reasonable case of action. Judgment is entered in favour of the Respondents.

Francis Mwanesalua
Puisne Judge