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Partners of PKF Chartered Accountants v Supreme Court of the Republic of Vanuatu; Batty v Supreme Court of the Republic of Vanuatu; Moores Rowland (a Firm) v Attorney General [2008] VUCA 11; Civil Appeal Case 10, 11 and 12 of 2008 (15 July 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

CIVIL APPEAL CASE No.10 OF 2008

IN THE MATTER OF:

THE MUTUAL ASSISTANCE IN THE CRIMINAL MATTERS ACT
No.14 OF 2002 [CAP.285]

BETWEEN:

THE PARTNERS OF PKF CHARTERED ACCOUNTANTS,
ANDREW NEILL, ROBERT AGIUS AND KELLY FAWCETT-MOURGES AND
THE INTERNATIONAL FINANCE TRUST COMPANY LIMITED
Applicants

AND:

THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Respondent

________________________________

CIVIL APPEAL CASE No.11 OF 2008

IN THE MATTER OF:

THE MUTUAL ASSISTANCE IN THE CRIMINAL MATTERS ACT
No.14 OF 2002 [CAP.285]

BETWEEN:

JAMES ALBERT BATTY & LESLEY ANNE BATTY, EQUITY INVESTMENT GROUP, PKF CHARTERED ACCOUNTANTS, AND THE INTERNATIONAL FINANCE TRUST COMPANY LIMITED
Applicants

AND:

THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Respondent

________________________________

CIVIL APPEAL CASE No.12 OF 2008

IN THE MATTER OF:

THE MUTUAL ASSISTANCE IN THE CRIMINAL MATTERS ACT
No.14 OF 2002 [CAP.285]

BETWEEN:

MOORES ROWLAND (a Firm)
First Applicant

AND:

TRANSPACIFIC TRUST LIMITED
Second Applicant

AND:
ANDREW ROSS MUNRO
Third Applicant

AND:

LAURENCE JOHN HARRISON
Fourth Applicant

AND:

ATTORNEY GENERAL
First Respondent

AND:

THE HONOURABLE CHIEF JUSTICE,
VINCENT LUNABEK
Second Respondent

AND:

VANUATU POLICE FORCE
Third Respondent

Coram: Hon. Justice John William von Doussa
Hon. Justice Oliver A. Saksak
Hon. Justice Christopher Tuohy
Hon. Justice Mark O’Regan

Counsel: Mr. Nigel Morrison for the Applicants in Civil Appeal Cases No. 10 and 11 of 2008
Mr. Peter Coombe for the Applicants in Civil Appeal Case No. 12 of 2008
Mr. Ishmael Kalsakau and Mrs. Viran Trief for the Respondents in Civil Appeal Cases No. 10, 11 and 12 of 2008

Date of Hearing: 14 July 2008
Date of Decision: 15 July 2008

REASONS FOR JUDGMENT

Questions to be addressed

In each of these three cases stated appeals, the Court was required to address the following five questions:-

1) Is a decision to issue a warrant pursuant to section 20 of the Mutual Assistance in Criminal Matters Act 2002 reviewable under a Claim for Judicial Review?

2) If yes, does:-

(a) the Supreme Court
(b) the Court of Appeal

have jurisdiction to adjudicate on the review at first instance?

3) If yes to question 2 (a), does the Court of Appeal have jurisdiction for an appeal against the finding of the Supreme Court on the review?

4) If no to question 1, does the Court of Appeal have jurisdiction to hear an appeal from the decision?

5) If yes to question 4, does the Court of Appeal have jurisdiction to order the decision-maker to give the appellant a written statement of his reasons for issuing the warrant?

Answers to questions

The Court heard arguments on all three appeals on Monday 14 July 2008 and delivered its judgment orally on Tuesday 15 July 2008, on the basis that written reasons of the Court would follow. The Court determined that a decision to issue a warrant under section 20 of the Mutual Assistance in Criminal Matters Act (the Mutual Assistance Act) was reviewable, and that it was the Supreme Court, rather than the Court of Appeal, which had jurisdiction to adjudicate on the review at first instance. We expressed our conclusion in those general terms because we do not see the jurisdiction of the Supreme Court in these circumstances as "judicial review" in the traditional sense, for reasons we will explain later.

Our conclusion effectively answers both questions 1 and 2 of the case stated. We answer question 1: "yes", but with the deletion of the words "under a claim for Judicial Review". We answer question 2: "The Supreme Court". Those answers make it unnecessary to answer questions 4 and 5. We answer question 3 "yes" because once the Supreme Court issues a judgment in the review proceedings the right of appeal provided by section 48 of the Judicial Services and Courts Act of 2000 applies.

We now give our reasons for the above conclusions.

The legislative framework

Section 19 of the Mutual Assistance Act provides that the Attorney General may direct an authorized officer to apply to the Supreme Court for a search warrant in certain circumstances including where a proceeding or investigation for a criminal matter involving a serious offence has commenced in a foreign country. At the request of the Australia, the Attorney General made directions to that effect. The request from Australia related to three investigations. In two of these, the investigations involved offences under the following provisions of Australian statutes: section 29D (Fraud) and 86 (Conspiracy) of the Crimes Act of 1914, section 11.5 (Conspiracy), 134.2 (Obtaining a financial advantage by deception), 135.4 (Conspiracy to defraud) and 400.3 (Dealing in proceeds of crime) of the Criminal Code 1995 and section 81 (Money laundering) of the Proceeds of Crime Act of 1987. In the third case, the offences were only those under the Crimes Act and the Proceeds of Crimes Act. Applications were made to the Supreme Court for the issue of warrants in all three cases, involving a number of commercial and residential properties in Port Vila. The applications came before the Chief Justice and the Supreme Court issued the warrants on 25 April 2008.

The search warrants were executed and materials were seized from some or all of the addresses to which the search warrants relate. The applicants then filed claims for judicial review of the decision to issue the warrants and applications seeking to have the warrants set aside and the materials seized pursuant to them returned to the parties from whom they were seized. The Supreme Court made interim orders restraining the Commissioner of Police from delivering any of the materials seized pursuant to the search warrants to the Australian Government or removing or transmitting any of the information obtained as a result of the execution of the search warrants from Vanuatu.

The Chief Justice then issued the case stated for the decision of this Court to determine whether there was jurisdiction for the Supreme Court or this Court to hear the applications for review.

Jurisdiction of the Supreme Court

The case was put to us by the applicants on the basis that the Supreme Court had jurisdiction to review the decision to issue the warrants under the supervisory jurisdiction exercised by the High Court in England through the issuing of prerogative writs (in this case certiorari). In essence the argument was that this jurisdiction existed in Vanuatu at Independence and continued to exist by virtue of Article 95 (2) of the Constitution. Counsel for the applicants conceded that there was difficulty in that jurisdiction being exercised by the Supreme Court in relation to a decision made by the Supreme Court itself.

We approach the case on a quite different basis because we see the law of Vanuatu as embodied in the Constitution and the Judicial Services and Courts Act as having created a jurisdiction for the Supreme Court which reflects the constitutional position of Vanuatu and which is different from the judicial review jurisdiction of the High Court in England at the date of Independence.

The starting point for our analysis is Article 49 of the Constitution, which confers on the Supreme Court "unlimited jurisdiction to hear and determine any civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law". That is amplified by section 28 (1) (b) of the Judicial Services and Courts Act, which provides that the Supreme Court has "all jurisdiction that is necessary for the administration of justice in Vanuatu".

The present context

The situation now before the Court involves an unusual, perhaps unique, combination of circumstances. Section 20 provides for a warrant to be issued not by a Registrar, Magistrate or even a Supreme Court judge, but by the Supreme Court itself. This does not easily fit with the concept of judicial review pursuant to which the Supreme Court exercises a supervisory jurisdiction over inferior courts, tribunals and other decision makers.

On the other hand, the decision of the Supreme Court to issue a warrant is not a decision made in the exercise of the Court’s criminal or civil jurisdiction and does not lead to the making of a judgment which attracts the right of appeal to this Court provided by section 48 (1) of the Judicial Services and Courts Act. An application for a warrant under section 20 does not involve a dispute between parties and there is therefore no party who may appeal against a successful application for a warrant. In the present case, there is also no opportunity to challenge the admissibility of any evidence obtained as a result of the execution of the search warrants in the jurisdiction of Vanuatu, because there is no intention to adduce that evidence in a Vanuatu Court. Thus, in the absence of a review jurisdiction there would be no avenue for challenge of a search warrant issued under section 20.

Justice requires that an avenue for review be provided

There are obvious reasons for concern at the absence of any avenue to challenge the validity of a warrant issued under section 20. When the Supreme Court considers an application for a warrant, it must rely on the accuracy of the information provided to it by the applicant. There is no opportunity to test that information and no opposing party to put the case against the issue of the warrants. The procedure has some similarities to an ex parte application in the Court’s civil jurisdiction: the Court relies on the accuracy of the information provided to it by the applicant, and the applicant is under a duty to provide candid disclosure of the facts. In the ex parte jurisdiction, the opportunity exists for any order made ex parte made to be subsequently reviewed and an inter partes hearing at which the Court has the advantage of hearing from both sides.

All of this suggests that there should be some provision for review of a warrant issued under section 20, and that such an avenue for review is necessary for the administration of justice in Vanuatu. A party whose premises have been searched and whose property has been seized needs to have an opportunity to test the validity of the warrant under which the search and seizure was authorized. To deny such a person that opportunity would deny him or her justice. As noted earlier, section 28 (1) (b) provides that the Supreme Court has jurisdiction that is necessary for the administration of justice in Vanuatu, and we conclude that this is a situation where recourse to that provision is required so that the Supreme Court can undertake a review of the validity of the warrants.

Constitutional rights

We are reinforced in that view by the fact that the challenge to the warrants is, in substance, an assertion of the fundamental right provided for in Article 5 (1) (j) of the Constitution (protection for the privacy of the home and other properties and from unjust deprivation of property). It may well be that an alternative means of bringing the present matter before the Court would have been by way of a constitutional challenge, but it is not necessary for us to reach a concluded view on this.

We are also satisfied that the provision of a means of challenging the validity of a warrant is necessary to give effect to the right provided for in Article 5 (1) (d) of the Constitution (protection of the law).

Jurisdiction is limited

We do not see the present jurisdiction as involving the exercise of the supervisory jurisdiction of the Supreme Court which is the traditional basis for judicial review. Nor do we see the present proceedings as judicial review in terms of Part 17 of the Civil Procedure Rules. Rather we see it as unique jurisdiction to be exercised by the Supreme Court in the unusual circumstances of the present case to provide a proper means for a challenge to a warrant which would otherwise be beyond the reach of the Supreme Court.

Our conclusion that jurisdiction exists in the present case is specific to this case: we make it clear that this decision is not a finding that any decision of the Supreme Court may be subject to review by that Court. To the contrary, we confirm that in the normal course of events a decision of the Supreme Court cannot be the subject of review by the Supreme Court: the proper avenue for challenge is an appeal to this Court. This decision reflects the unusual factors in play in this case, particularly:

(a) the fact that the power to issue the warrant is given by section 20 to the Supreme Court itself;
(b) the lack of any appeal right or opportunity to otherwise challenge the validity of the warrant (for example by means of a challenge to the admissibility of the evidence obtained from the execution of the warrant);
(c) the need to provide a means to challenge the warrant in order to do justice.

It should not be seen as being of general application.

Conclusion

For these reasons we decided that the Supreme Court has jurisdiction to determine applications for review of the warrants issued under section 20 of the Mutual Assistance Act. We direct that the applications in Civil Case Numbers 68, 69 and 70 of 2008 be treated by the Supreme Court as invoking this jurisdiction. The jurisdiction of the Supreme Court authorizes it to quash any warrant if it finds it to be invalid and to make any consequential orders, such as orders for the return of any property seized in the execution of the warrants.

DATED at Port Vila, this 15th day of July, 2008.

BY THE COURT

Hon. John von Doussa J.
Hon. Oliver A. Saksak J.
Hon. Christopher Tuohy J.
Hon. Mark O’Regan J.