Alleged Detention Manus Province, of persons seeking Asylum in Australia

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 March 2014
• Citation: (2014) N5529
• Court: National Court
• Year: 2014
• Judgement Number: N5529

Full : HROI No 1 of 2014; In the matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57, re circumstances of Alleged Detention at the Regional Processing Centre at Lombrum Naval Base, Manus Province, of persons seeking Asylum in Australia, transferred to Manus, known generally as “Asylum Seekers” or “Transferees” (2014) N5529

National Court: Cannings J

Judgment Delivered: 17 March 2014

N5529

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 1 0F 2014

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS

UNDER THE CONSTITUTION

OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE CIRCUMSTANCES OF ALLEGED DETENTION

AT THE REGIONAL PROCESSING CENTRE

AT LOMBRUM NAVAL BASE, MANUS PROVINCE,

OF PERSONS SEEKING ASYLUM IN AUSTRALIA, TRANSFERRED TO MANUS, KNOWN GENERALLY AS “ASYLUM SEEKERS” OR “TRANSFEREES”

Lorengau: Cannings J

2014: 17 March

COURTS – Judges – application for disqualification of presiding Judge – whether reasonable apprehension of bias by reason of: the manner in which the Judge was conducting proceedings; pre-judgment of issues; disclosure of friendship with witness.

The National Court was conducting an inquiry into human rights issues arising out of the alleged detention at a regional processing centre of transferees. Two of the parties to the proceedings applied to the Judge conducting the inquiry that he should disqualify himself on the ground of a reasonable apprehension of bias arising from: the manner in which he had conducted the proceedings to date; his pre-judgment of the issues in a previous proceeding and his disclosure to the court of his friendship with the doctor appointed by the Court to be an expert witness in the proceedings.

Held:

(1) For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Application by Herman Joseph Leahy (2006) SC981).

(2) A reasonable and fair minded person would not discern from the manner in which the proceedings were being conducted any reasonable apprehension of bias.

(3) In ascertaining whether a Judge’s pronouncement in a previous case amounts to a pre-judgment of issues arising in a later case it is necessary to consider all the circumstances in which the previous pronouncement was made, in particular whether it was a final determination. The question to ask is whether the previous pronouncement forecloses the Judge’s determination in the later case such that it can be said that there is a reasonable apprehension that the Judge will not decide the case impartially.

(4) In determining whether a Judge’s personal association with a proposed expert witness gives rise to a reasonable apprehension of bias, it must be borne in mind that the person being observed – the Judge – is a professional whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson [2000] HCA 48). It is also relevant to take into account that the Judiciary in Papua New is held in high esteem. Judges are regarded as being persons of integrity and capable of acting independently and impartially.

(5) The application for disqualification was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC981

Hon Patrick Pruaitch MP v Chronox Manek (2012) SC1168

Johnson v Johnson [2000] HCA 48

Namah v Pato (2014) SC1304

Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35

Tzen Pacific Ltd v Innovest Ltd (2012) N4713

Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987

Yama v Bank South Pacific Ltd (2008) SC921

NOTICE OF MOTION

This was an application for disqualification of the presiding judge in an inquiry by the National Court under Section 57 of the Constitution into various human rights issues.

Counsel

P Kuman, for the first & second Respondents

F Pitpit, for the third Respondents

17th March, 2014

1. CANNINGS J: This is a ruling on an application by the first and second respondents that I be disqualified from dealing with this matter and that the matter be referred to another Judge. The application was filed by notice of motion on 14 March 2014, supported by the affidavits of the Attorney-General and Minister for Justice, Hon Kerenga Kua MP, and counsel for the first and second respondents, Mr Kuman.

2. The matter in question is an inquiry into human rights issues arising out of the alleged detention at the regional processing centre at Manus of a considerable number of persons seeking refugee status or asylum in Australia. They have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia. They are known generally as “asylum seekers” or “transferees”. There have been reports of alleged human rights violations and complaints about the conditions of detention and disturbances resulting in injuries to such persons. On 24 February 2014 I commenced the proceedings on my own initiative under Section 57(1) of the Constitution, which states:

A right or freedom referred to in this Division [III.3, Basic Rights] shall be protected by, and is enforceable in, the Supreme Court or the National Court … either on its own initiative or on application by any person who has an interest in its protection and enforcement … [emphasis added].

GROUNDS

3. The application for disqualification is based on three grounds:

1 The manner in which I have conducted the proceedings so far.

2 My pre-judgment of the issues in a previous proceeding.

3 The fact, which I disclosed in Court this morning, as to my friendship with the doctor appointed by the Court to be an expert witness.

RELEVANT PRINCIPLES

4. The principles to be applied when a judge is required to deal with an application for disqualification are well settled. Those that I consider particularly pertinent are as follows:

· For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible? (Application by Herman Joseph Leahy (2006) SC981.)

· The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds (H J Leahy).

· An objective, fair minded, lay observer is to be attributed with having some knowledge of the way in which the Courts and Judges work (Yama v Bank South Pacific Ltd (2008) SC921).

· It must be borne in mind that the person being observed is a professional whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson [2000] HCA 48).

· The applicant should identify the facts, matters and circumstances by reason of which it is said that the Judge might decide the case other than on merit and then demonstrate a logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the proceeding on merit (Workers Mutual Insurance (PNG) Ltd (in Liq) v Sathasivam Sivakumaran (2013) N4987).

· In cases where the allegation is that the apprehension of bias arises because a judge has presided over an earlier case or cases involving one or other of the parties, substantial grounds must be established.

GROUND 1: MANNER OF CONDUCTING PROCEEDINGS

5. It is argued, based on the opinion of the Attorney-General Mr Kua expressed in his affidavit, that I am conflicted and that there is a real apprehension of bias in that I have:

1 made the allegations that are at the centre of this Inquiry in the originating process;

2 heard and issued summons and directions;

3 made various interlocutory orders myself without submissions by any of the interested parties;

4 put myself in a position (going to Manus) where it is likely that I will be considered a witness;

5 while at the same time presiding in the case.

6. Mr Kua has expressed the opinion that the above aspects of my conduct of the proceedings make me “a party, prosecutor, witness, counsel and Judge and goes against the notion and the basic tenants of a fair trial and hearing”.

7. Mr Kuman also submits that I have set such a tight timetable for the proceedings that there is an appearance of speed and haste, giving rise to an apprehension of pre-judgment.

8. Notwithstanding the opinion of the Attorney-General I do not consider that a reasonable and fair minded person knowing all the relevant facts, having some knowledge of the way in which the Courts and Judges work, would have a reasonable suspicion or apprehension that a fair hearing was not possible.

9. I consider that a reasonable and fair-minded person would appreciate the following:

· First, the originating process in this case was expressed in terms of Form...