SC REF NO 2 OF 2014: Reference by The National Court Pursuant To Constitution, Section 18(2), In Respect Of Os (Jr) No 485 Of 2014 SC REF NO 3 OF 2014: Reference By The National Court Pursuant To Constitution, Section 18(2), In Respect Of OS NO 484 OF 2014 SC REF NO 5 OF 2014: Reference by The Attorney-General Pursuant To Constitution, Section 19(1) in the matter of the powers, functions, duties and responsibilities of the Commissioner of Police in relation to warrants of arrest issued under the Arrest Act Chapter 339 and Charges of Contempt of Court (2014) SC1388

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Makail J, Sawong J
• Judgment Date: 02 October 2014
• Citation: (2014) SC1388
• Docket Number: SC REF NOS 2, 3 & 5 0F 2014
• Court: Supreme Court
• Year: 2014
• Judgement Number: SC1388

Full Title: SC REF NOS 2, 3 & 5 0F 2014; SC REF NO 2 OF 2014: Reference by The National Court Pursuant To Constitution, Section 18(2),
In Respect Of Os (Jr) No 485 Of 2014 SC REF NO 3 OF 2014: Reference By The National Court Pursuant To Constitution, Section 18(2),
In Respect Of OS NO 484 OF 2014 SC REF NO 5 OF 2014: Reference by The Attorney-General Pursuant To Constitution, Section 19(1) in the matter of the powers, functions, duties and responsibilities of the Commissioner of Police in relation to warrants of arrest issued under the Arrest Act Chapter 339 and Charges of Contempt of Court (2014) SC1388

Supreme Court: Cannings J, Makail J, Sawong J

Judgment Delivered: 2 October 2014

SC1388

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NOS 2, 3 & 5 0F 2014

SC REF NO 2 OF 2014: REFERENCE BY

THE NATIONAL COURT

PURSUANT TO CONSTITUTION, SECTION 18(2),

IN RESPECT OF OS (JR) NO 485 OF 2014

SC REF NO 3 OF 2014: REFERENCE BY

THE NATIONAL COURT

PURSUANT TO CONSTITUTION, SECTION 18(2),

IN RESPECT OF OS NO 484 OF 2014

SC REF NO 5 OF 2014: REFERENCE BY

THE ATTORNEY-GENERAL

PURSUANT TO CONSTITUTION, SECTION 19(1)

IN THE MATTER OF THE POWERS, FUNCTIONS, DUTIES AND RESPONSIBILITIES OF THE COMMISSIONER OF POLICE

IN RELATION TO WARRANTS OF ARREST

ISSUED UNDER THE ARREST ACT CHAPTER 339

AND CHARGES OF CONTEMPT OF COURT

Waigani: Cannings J, Makail J, Sawong J,

Poole J, Kangwia J

2014: 29 August, 2 October

CONSTITUTIONAL LAW – disciplined forces – Police Force – Commissioner of Police – powers and functions of Commissioner to issue directions and orders to other members of Police Force – whether Commissioner can direct members as to law enforcement procedures: applying for and executing arrest warrants, laying, prosecuting, withdrawing criminal charges – Constitution, Sections 197, 198.

NATIONAL JUDICIAL SYSTEM – District Courts – power to issue warrants of arrest – Arrest Act – whether warrant is a court order or administrative authorisation – whether Commissioner of Police can challenge issue of warrant of arrest that has been sought by another member of the Police Force.

CONTEMPT OF COURT – whether Commissioner of Police bound to execute warrants of arrest – whether failure to execute or preventing execution of a warrant can amount to contempt of court – Constitution, Section 155(6).

CONTEMPT OF COURT – contempt of District Court – whether punishable in National Court – Constitution, Sections 37(2), 155, 166, 172.

The granting by the District Court of a warrant for the arrest of the Prime Minister was followed by two National Court proceedings. In OS (JR) No 485 of 2014 the Commissioner of Police and the Prime Minister applied for leave to seek judicial review of the District Court’s decision to issue the warrant. In OS No 484 of 2014 the members of the Police Force who applied for the warrant sought to charge the Commissioner of Police with contempt of court for disobedience of the arrest warrant. In each proceeding the National Court, having considered that questions relating to the interpretation or application of provisions of the Constitution had arisen, referred the matter to the Supreme Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution.

OS (JR) No 485 of 2014 led to SC Ref No 2 of 2014, which contains six questions of constitutional interpretation and application. OS No 484 of 2014 led to SC Ref No 3 of 2014, which contains three questions of constitutional interpretation and application.

Around the same time that those references were made, the Attorney-General, being an authority entitled to do so, applied by way of special reference to the Supreme Court under Section 19(1) (special references to the Supreme Court) of the Constitution for its opinion on seven questions of constitutional interpretation and application; this reference arose out of the same events that led to the two National Court proceedings and the questions were similar in nature. The Supreme Court decided to consolidate the three references, resulting in them being heard together. A total of 16 questions of constitutional interpretation and application were heard and determined.

Held:

(1) The Commissioner of Police has authority to issue directions to other members of the Police Force regarding the conduct of criminal investigations, including applying for arrest and search warrants, laying charges, and presenting information.

(2) The granting under the Arrest Act of a warrant of arrest by the District Court, given the terms of such a warrant, is for the purposes of Section 155(6) of the Constitution, a decision of the National Judicial System. It is the equivalent of a court order, which must be complied with and put into effect. It is not a mere administrative authorisation. A duty to obey it is imposed on the persons to whom it is addressed, who have no intrinsic discretion not to execute it.

(3) In an appropriate case a member of the Police Force, including the Commissioner of Police, to whom a warrant is directed and who does not execute it in a timely manner or who refuses to execute it or frustrates the attempts of other persons to execute the warrant, may be guilty of contempt of court.

(4) The National Court, but not the District Court, has power to punish, for contempt of the District Court, contempt offences other than those created by Section 277 of the District Courts Act; and in an appropriate case a person, including the Commissioner of Police, may be prosecuted in the National Court for contempt of court constituted by disobedience of a warrant of arrest issued by the District Court.

Cases cited

The following cases are cited in the judgment:

Aigilo v Morauta (2001) N2102

Andrew Kwimberi v The State (1998) SC545

Application by Herman Joseph Leahy (2006) SC855

Damaru and Gitua v Vaki OS No 484 of 2014, 28.07.14

Helifix Group of Companies Ltd v PNG Land Board (2012) SC1150

James v Robinson (1963) 109 CLR 593

Lavu v Thompson & NBPOL (2007) N5018

Leto Darius v Commissioner of Police (2001) N2046

Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107

Love v Attorney-General (1990) 169 CLR 307

Marape & O’Neill v Paraka (2014) N5740

Marape v O’Neill & Paraka (2014) SC1378

Mark v Iki [1995] PNGLR 116

Meten v Seneka (2010) N4462

Nakun Pipoi v Seravo (2008) SC909

NTN Pty Ltd v Board of Post and Telecommunications Corporation [1987] PNGLR 70

Ousley v The Queen (1997) 192 CLR 69

Pepi Kimas v Boera Development Corporation (2012) SC1172

Peter Luga v Richard Sikani (2002) N2285

Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227

Reference by the Morobe Provincial Executive (2012) SC1202

Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8

SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178

Sorby v The Commonwealth (1983) 152 CLR 281

Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785

Stephen John Rose v Neville Devete (2007) N3327

The State v Lohia Sisia [1987] PNGLR 102

Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

REFERENCES

This is the determination of three constitutional references.

Counsel

M M Varitimos QC & W Kapipi, for the Prime Minister

J A Griffin QC, G Purvey & P Tabuchi, for the Commissioner of Police

T Twivey-Nonggorr, for the Attorney-General

R Saulep, for the State

G M Egan, M M Nale & T G Lambert, for Chief Superintendent Damaru & Chief Inspector Gitua

M Murray, for Sir Toami Kulunga

2nd October, 2014

1. BY THE COURT: This is the determination of three constitutional references, containing 16 questions of constitutional interpretation and application, which have been made to the Supreme Court for its opinion.

2. Two references have been made by the National Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution. One reference has been made by the Attorney-General under Section 19(1) (special references to the Supreme Court) of the Constitution. All references arise out of the decision of the Port Moresby District Court constituted by Chief Magistrate Eliakim, of 12 June 2014, to issue a warrant under the Arrest Act Chapter 339 for the arrest of the Prime Minister, Hon Peter O’Neill MP.

SECTION 18(2) REFERENCES

3. The issue of the arrest warrant led to two National Court proceedings:

· In OS (JR) No 485 of 2014, commenced on 14 July 2014, the Commissioner of Police and the Prime Minister apply for leave to seek judicial review of the District Court’s decision to issue the warrant. In those proceedings the Commissioner and the Prime Minister are the plaintiffs and the Chief Magistrate and the State are the defendants.

· In OS No 484 of 2014, commenced on 15 July 2014, the members of the Police Force who applied for the warrant of arrest, Detective Chief Superintendent Mathew Damaru and Detective Chief Inspector Timothy Gitua (Director and Deputy Director respectively of the...