The State v Jerry Singirok (2004) N2501

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 11 February 2004
• Citation: (2004) N2501
• Court: National Court
• Year: 2004
• Judgement Number: N2501

Full Title: The State v Jerry Singirok (2004) N2501

National Court: Davani J

Judgment Delivered: 11 February 2004

1 Constitutional law—Application for immunity from prosecution—offence of sedition—Declaration of immunity for 'crisis–related' activities—purpose of and reason for Constitutional amendment No 23—Consideration of peace and reconciliation process in Bougainville—Constitutional Amendment No 23 s344; Gazettal No G126 dated 2.8.03

2 Criminal law—offence of sedition—speech by accused—whether 'crisis–related' activity—not immuned from Prosecution—Criminal Code s54(1)(a)

3 SCR No 3 of 2001 (Unnumbered and Unreported Judgments dated 18 January 2002)

RULING (Application for immunity)

___________________________

N2501

IN THE NATIONAL COURT ]

OF JUSTICE AT WAIGANI ]

PAPUA NEW GUINEA ]

CR 1254 OF 1999

THE STATE

V.

JERRY SINGIROK

(‘Accused/Applicant’)

Waigani: Davani .J

2004: 9, 11 February

R. Auka for the State

M. Murray for the Accused/Applicant

Constitutional law – Application for immunity from prosecution – offence of sedition

– Declaration of immunity for ‘crisis-related’ activities – purpose of and reason for Constitutional amendment No. 23 – Consideration of peace and reconciliation process in Bougainville – Constitutional Amendment No. 23 s. 344; Gazettal No. G126 dated 2.8.03

Criminal law – offence of sedition – speech by accused – whether ‘crisis-related’ activity – not immuned from Prosecution – Criminal Code s. 54(1)(a)

Cases Cited

Supreme Court Reference No. 3 of 2001 dated 18.1.02

Texts cited

Bougainville Peace Agreement dated 30.8.01

RULING

(Application for immunity)

11 February 2004

DAVANI .J: On 9th February 2004, the State tendered an Indictment alleging that on 17th March 1997 at Port Moresby, the Accused/Applicant (‘Applicant’) published seditious words and writing in his “address to the nation” when he in effect, called on the citizens of Papua New Guinea to force the Prime Minister, Deputy Prime Minister and Minister for Defence to resign within 48 hours and furthermore, when he also called on Papua New Guineans to join the Defence Force and the Police in rejecting the government of that day.

Before the making of a plea, the Applicant’s counsel raised an objection to the indictment under s. 558 (1) (a) of the Criminal Code Act (‘CCA’) relying on Notice of Motion dated 6.6.03 and filed on 10.6.03 seeking various orders. The orders sought in the motion were;

1. - a Declaration that the offence with which the Accused is charged with, is an offence to which immunity from prosecution applies;

2. - a Declaration that pursuant to s. 344 of the Constitution, the Accused/Applicant is immune from prosecution;

3. - other orders.

The motion is supported by Originating Summons filed on 19.9.03 seeking the same orders.

S. 558 (1) (a) of the CCA reads;

“558. Motion to quash indictment

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that –

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

…”

Although the application for immunity does not fall within the ambit of s. 558 (1) (a), clause (d) of the gazetted Declaration states that any person charged with an offence covered by the Declaration, in this case s. 54 of the CCA, may at anytime after being charged, apply to the court for a Declaration that the offence he is charged with is an offence to which immunity applies. It is on that basis that the Applicant applies by way of motion and originating summons, process permitted under O. 4 R. 3 (a) of the National Court Rules, proceedings seeking a declaration of right:

The Applicant’s lawyer in submitting that the Applicant is immuned from prosecution, relies on Constitutional amendment No. 23. This amendment to the Constitution is titled “Peace Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum” and was certified on 25.6.02 and gazetted in National Gazette No. G126 dated 2.8.03 (‘Constitutional amendment’). The Gazettal is titled “Declaration in respect of Immunity from Prosecution in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict” and which I will refer to throughout as the ‘Declaration’. Clause (d) of the Declaration is the provision counsel for the Applicant relies on in making this application.

Counsel for the State opposes the application submitting that although the offence with which the Applicant is charged, is an offence that carries the cloak of immunity as prescribed in paragraph (a) of the Schedule to the Declaration, that certain words uttered by the Applicant in his “address to the nation” exempt him from that immunity and which requires that he be charged and prosecuted.

The issue therefore is whether the Applicant’s “address to the nation” on 17.3.97 is a “crisis-related activity” as prescribed in s. 344(2) of the Constitutional amendment.

To answer that issue, it is necessary that the court set out in full s. 344 of the Constitutional amendment, the Declaration in the Gazettal and s. 54(1) (a) of the CCA, the section the Applicant is charged with.

S. 54(1) (a) of the CCA reads;

“54. Sedition

(1) A person who –

(a) conspires with any person to carry into execution a seditious enterprise; or

…

Penalty: Imprisonment for a term not exceeding three years.”

S. 344 of the Constitutional amendment states thus;

“344. IMMUNITY FROM PROSECUTION

(1) The purpose of this section is to assist in the reconciliation process in Bougainville, and it is the intention of the Parliament that the provisions of this section be so applied as to assist in achieving this purpose.

(2) There shall be immunity from prosecution in accordance with this section in respect of certain offences arising from crisis-related activities in relation to the Bougainville conflict.

(3) The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may by declaration published in the National Gazette, declare –

(a) subject to Paragraph (b), the class or classes of offences to which the immunity is to apply or not apply; and

(b) the nature of crisis-related activities which shall qualify the offences for the immunity; and

(c) the period of time to which the immunity shall apply; and

(d) such other matters as are necessary to ensure that the immunity can be affected.

(1) Where a declaration has been made under Subsection (3), no charge shall be laid and no prosecution –

(a) shall be initiated; or

(b) if initiated, shall be pursued,

in respect of an offence –

(a) included in the offences described pursuant to Subsection (3) (a); and

(b) of a nature described in Subsection (3) (b); and

(c) committed during the period specified in Subsection (3) (c).

(1) The provisions of this section –

(a) may be applied generally in respect of classes of offences and classes of circumstances without the need to identify alleged offenders; and

(b) shall apply to offences whether or not a charge has been laid in respect of them.”

The Declaration states the following;

“I, Silas Atopare, G.C.M.G., K.St.J., Governor-General, by virtue of the powers conferred by Section 344(3) of the Constitution and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council, hereby Declare that, in respect of the immunity from prosecution granted by Section 344(2) of the Constitution, in respect of certain offences arising from crisis-related in relation to the Bougainville conflict:-

(a) the classes of offences to which the immunity is to apply are as set out in the Schedule hereto; and

(b) the crisis-related activities which qualify offences for the immunity are activities:-

(i) in pursuit of the objectives of any of the parties to the conflict including, but not limited to, the ordering and or carrying out activities in the course of armed conflict or against a person believed to be a member or supporter of one of the parties to the conflict; or

(ii) relating to the self-defence of an individual, family, group or party; or

(iii) in defence of the community, public order and/or justice where normal constitutional processes could not be applied; or

(iv) involving non-compliance with regulatory, licensing or similar requirements where compliance was impracticable on account of the crisis; and

(a) the immunity shall apply in respect of offences committed during the period commencing 1st October, 1988 and ending:-

(i) in respect of offences other than:-

(A) those committed in activities referred to in Paragraph (b)(iv) above; and

(B) those relating to illegal possession, ownership and control of firearms

on 30th August, 2001; and

(i) in respect of offences committed in activities referred to in Paragraph (b)(iv) above – on the date on which...