Royale Thompson v Sylvester Kalaut, Superintendent of Police, Headquarters Konedobu andAnthony Wagambie, as the Acting Commissioner for Police and The Independent State of Papua New Guinea andSouth Pacific Post Limited, trading as Post Courier andPacific Star, trading as the National Newspaper (2011) N4265

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 14 April 2011
• Court: National Court
• Citation: (2011) N4265
• Docket Number: OS NO. 154 OF 2011
• Year: 2011
• Judgement Number: N4265

Full Title: OS NO. 154 OF 2011; Royale Thompson v Sylvester Kalaut, Superintendent of Police, Headquarters Konedobu andAnthony Wagambie, as the Acting Commissioner for Police and The Independent State of Papua New Guinea andSouth Pacific Post Limited, trading as Post Courier andPacific Star, trading as the National Newspaper (2011) N4265

National Court: Davani, J

Judgment Delivered: 14 April 2011

N4265

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 154 OF 2011

BETWEEN:

ROYALE THOMPSON

Plaintiff

AND:

SYLVESTER KALAUT, Superintendent of Police

Headquarters Konedobu

First Defendant

AND:

ANTHONY WAGAMBIE, as the Acting Commissioner for Police

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND:

SOUTH PACIFIC POST LIMITED, trading as POST COURIER

Fourth Defendant

AND:

PACIFIC STAR, TRADING AS THE NATIONAL NEWSPAPER

Fifth Defendant

Waigani: Davani, J

2011: 8th, 14th April

CIVIL — control of the criminal jurisdiction of an inferior court — permanent stay of criminal proceedings in the District Court

ABUSE OF PROCESS OF THE COURT — prosecutor making out informations on facts known to him to be untrue

JURISDICTION OF THE COURT TO GRANT A PERMANENT STAY OF CRIMINAL PROCEEDINGS — discussion of the basis of the jurisdiction — District Court proceedings permanently stayed.

Facts

The Collector of Customs Gary Juffa made statements in the newspapers alleging that a foreign vessel had left Papua New Guinea while it was under arrest and while its captain was on bail, thus breaching the terms of the arrest and the bail. The plaintiff, an acting judge of the National Court, while a legal practitioner, placed an advertisement in the newspapers on behalf of her client the owners of the vessel. The advertisement said the statements made by Mr Juffa were false. Superintendent Kalaut, drew up Informations against the plaintiff in the District Court jurisdiction, alleging that, by placing the advertisement, the plaintiff had attempt to pervert the course of justice and that by the advertisement the plaintiff had spread false rumours. Mr Kalaut then charged and arrested the plaintiff. The statements made by Mr Juffa in the newspapers were false to his knowledge. The allegations made by Mr Kalaut in the Informations were false to his knowledge. The statements made in the advertisement by the Plaintiff were true. The vessel was not under arrest and the captain who took the vessel out of Papua New Guinea was not on bail and had never been charged with any offence. The Plaintiff sought to permanently restrain the criminal informations made against her in the District Court jurisdiction.

Held

1. The court has jurisdiction to protect persons from the abuse of process of the criminal jurisdiction of the court and in the exercise of that jurisdiction to permanently stay criminal proceedings in court, as distinct from the investigative powers of the Police;

2. The abuse must be an abuse of the whole function of the criminal jurisdiction of the court, not some particular procedure. The court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general.;

3. Any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the court has itself been improperly made use of;

4. The actions of Superintendent Kalaut were a gross abuse of process. He has abused his position as a Police Prosecutor to file court proceedings against the plaintiff on facts known to him to be incorrect and false;

5. The District Court proceedings are permanently stayed. The first defendant is to pay the costs of the proceedings.

Cases Cited:

Papua New Guinea Cases

Baing v. PNG National Stevedores Pty Limited (2000) SC 267);

Chan v. Ombudsman Commission [1999] PNGLR 240;

Gary McHardy v. Prosec Security & Communications Limited [2000] PNGLR 279;

Independent State of Papua New Guinea v. Jimmy Maladina (2004) (CR 402 of 2004);

Jimmy Maladina v. the State & 1 Other OS 178 of 2004 (2004) N2530;

John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v the Attorney General, National Executive Council and the State (2000) N195;

Mauga Logging Co. Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80;

Mune v. Poto (No.1) [1996] PNGLR 125;

Paul Paraka v. Eastern Highlands Provincial Government (2005) SC 809;

Rimbink Pato v. Anthony Mangin & 4 Others (1999) SC622;

Sangam Mote v. Alkan Tololo [1996] PNGLR 404

Simon Ketan v. Lawyers Statutory Committee & Papua New Guinea Law Society (2001) N2290;

State v. Geyame Kilipi [1990] PNGLR 216

Wilson Kamit Gabriel v. Marshall Cooke QC & Cyprian Warokra and Others (2003) N2369;

Yer, Secretary Department of Finance & 3 Others v. Peter Yama (2009) SC 996;

Zachary Gelu & 2 Others v. Sir Michael Somare & 2 Others (2008) N3526;

Overseas Cases

Connelly v. Director of Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401;

Davies in Director of Public Prosecutions v. Humphreys [1977] AC 1;

Gill v. Walton (1991) 25 NSWLR 190;

H. A L v. Andrews [2006] SASC 392;

Herron v. McGregor (1986) 6 NSWLR 246;

Jago v. District Court of New South Wales (1989) 168 CLR 23;

Metropolitan Bank Ltd v. Pooley (1885) 10 App Cas 210;

Miller v. Ryan [1980] 1 NSWLR 93;

Mills v. Cooper [1967] 2 QB 459;

Moevao v. Department of Labour [1980] 1 NZLR 464;

New South Wales Food Authority v. Nutricia Australia Pty Ltd (2008) 74 NSWLR 148;

R v Bow Street Magistrates; exparte Mackeson (1981) 75 Cr App R 24;

R v. Chief Constable of Merseyside Police; exparte Calvely [1986] 2 WLR 144; [1986] 1 All ER 257;

R v. Humphrys [1977] AC 1; [1976] 2 All ER 497;

R v. Osborn [1969] 4 CCC 185; [1968] 1 DLR (3d) 664

R. v. Hartley [1978] 2 NZLR 199

R. v. Jewitt (1985) 20 DLR (4th) 651;

Re Regina and Rourke (1975) 25 CCC (2d) 555; 62 DLR (3d) 650

Re Regina and Rourke (1977) 35 CCC (2d) 129; 76 DLR (3d) 193;

Rogers v. The Queen (1994) 181 CLR 251;

Walton v. Gardiner (1993) 177 CLR 378;

Williams v. Spantz (1992) 174 CLR 509;

Legislation:

Constitution s155;

Criminal Code s136, 371(1);

Customs Act s168;

District Court Act s24(1), 251-257;

National Court Rules) O4 r2(3)(b);

Summary Offences Act Chapter 264 s11(b).

Counsel:

I. Molloy and F. Griffin, for the Plaintiff

S. Koim, for the First, Second and Third Defendants

DECISION

14th April, 2011

1. DAVANI .J: Before me for substantive hearing is the Originating Summons filed by Young & Williams Lawyers on 4th April, 2011, for and on behalf of the plaintiff. The Originating Summons seeks the following orders;

“1. That pursuant to Constitution Section 155(4) and the Court’s inherent jurisdiction proceedings or proposed proceedings in the District Court based on the three Information signed by Superintendent Sylvester Kalaut, copies of which are annexed hereto, be permanently stayed for being an abuse of process.

2. That the time for service of this Originating Summons be abridged under Order 1 Rule 15 of the National Court Rules 1983 (as amended).

3. Such further or other orders or relief, including consequential orders or relief, as this Honourable Court considers appropriate.

4. Costs.

5. Time be abridged to the time of settlement with the Registrar, which shall take place forthwith.”

2. The application is opposed by the first to the third defendants.

3. Also returnable before me are interim stay orders issued by this Court on 4th April, 2011.

Background

4. i. Information in District Court - The plaintiff in these proceedings is an Acting Judge of the National Court, having recently been appointed. She makes this application in response to three Information made by the first defendant against her. These are;

(i) The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4th April, 2011, alleging that between 12th and 14th January, 2011 at “National Capital District”, Royale Thompson “did spread misleading reports tending to cause ill-feeling between the members of PNG Customs Service and the Royal Papua New Guinea Constabulary”, contravening s.11(b) of the Summary Offences Act chapter 264.

(ii) The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4th April, 2011, alleging that between 12th and 14th January, 2011, Royale Thompson “Attempted by causing the publication of a newspaper article in the Post Courier dated the 14th January 2011, titled “The Motor Tanker “UBT” FJORD” and its departure from Rabaul, which was false and misleading to pervert the course of justice, when the matter (CR No. 1092/2010) was pending before the Kokopo National Court”, thereby contravening s.136 of the Criminal Code.

(iii) The Information of Sylvester Kalaut, Acting Police Superintendent, laid on 4...