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National Court of Papua New Guinea |
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 [2009] NZSC 72; [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:
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:
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:
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:
THE NATIONAL COURT, having taken judicial notice of the alleged detention at the regional processing centre at Lombrum Naval Base, Manus Province, of a considerable number of persons seeking refugee status or asylum in Australia, who have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia, known generally as "asylum seekers" or "transferees", and reports of alleged human rights violations and complaints about the conditions of detention and disturbances resulting in injuries to such persons, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the guaranteed rights and freedoms of those persons ...
10. As for Mr Kuman's concern about the speed of this inquiry, I take that as almost a compliment. Far from my ambitious proposal at the commencement of these proceedings to complete the inquiry by the end of this month being a concern for the reasonable and fair minded person, I think that such a person would be impressed by it. I therefore reject the first ground for disqualification.
GROUND 2: PRE-JUDGMENT OF ISSUES
11. The second ground is that by my judgment in Namah v Pato (2013) N4990 I have pre-judged the issues that I have made the focus of this inquiry.
12. In Namah v Pato the plaintiff, the Leader of the Opposition, commenced proceedings by originating summons seeking declarations that the memorandum of understanding between Papua New Guinea and Australia relating to the transfer to Papua New Guinea and assessment of persons seeking asylum and the continuous deprivation of their liberty at a place declared under the Migration Act to be a relocation centre were unconstitutional and that exemptions by the Minister for Foreign Affairs and Immigration under the Migration Act relating to those persons are void and of no effect and a permanent injunction restraining the defendants from detaining those persons at the relocation centre.
13. After commencement of the proceedings the plaintiff applied by motion for two interlocutory orders. First an interim injunction, pending determination of the substantive proceedings, that the defendants be restrained from receiving or transferring any further asylum seekers from Australia in the relocation centre. Secondly an order that the plaintiff's lawyers be granted access to the relocation centre to get statements and affidavits from some of the persons.
14. I refused to make the first order sought but to a large extent granted the second. In fact as Mr Kuman pointed out I went further than what was actually sought by the plaintiff. I overstepped the mark, he suggested. Mr Kuman cites the following passages from my judgment in that case to support the prejudgment argument. I stated:
... what I consider to be a serious concern, which I aired at yesterday's hearing: there are 271 people including 30 children presently being detained at Lombrum, they are being treated as asylum seekers, they have not been charged with any offences, they have been deprived of their personal liberty.
Mr Rabura in his affidavit asserts that 'it would be wrong to view the processing arrangements as an act of deprivation of liberty of the asylum seekers. The process is necessary for the benefit of all concerned and must be undertaken'. I am not saying that it is not necessary for the existing processing arrangements to be undertaken. However, at this stage I cannot see that they have not been deprived of their personal liberty. I am using the term "detained" advisedly. It is a term used by Section 42(2) of the Constitution. A person is detained if he or she is deprived of their personal liberty (SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556). A person who is detained is entitled to the protection of Section 42(2) of the Constitution ...
Whenever a person is detained he acquires five distinct rights (The State v Linus Rebo Dakoa (2009) N3586). ... These rights must be administered as soon as a person is detained. The timing is critical (The State v Paro Wampa [1987] PNGLR 120).
I acknowledge, as pointed out by Mr Kuman, the lack of clarity as to the terms of the order being sought by the plaintiff and the grounds on which it is being sought (the notice of motion does not mention Section 42(2)). Mr Kuman also points out that it is unclear that the plaintiff's lawyers, Henaos, are the "choice" of any asylum seekers. There is a risk, in view of the fact that this case has been initiated by the Leader of the Opposition, that his lawyers might visit the Centre not for the primary purpose of providing legal advice and assistance to asylum seekers but to advance the plaintiff's political agenda. These are valid considerations that weigh in favour of rejection of the second order sought by the plaintiff. However, the risks involved are outweighed by the primary and overriding concern of the Court, which is this: the information presently before the court suggests that the asylum seekers have been "detained" but they have not been accorded their five rights as detained persons under Section 42(2) of the Constitution. In particular they have not been permitted to communicate without delay and in private with a lawyer of their choice. They have not been given adequate opportunity to give instructions to a lawyer of their choice in the place in which they are detained. It might turn out that the impression that I have gained about such an apparent serious breach of human rights is ill-founded; and if that is the case the order that I am going to make, which is an interim order, can be varied. If the order is exploited for improper purposes by the plaintiff or his lawyers it is also open to variation.
The second order sought will be granted in principle. I will order the Administrator of the Centre or whoever is lawfully in charge of it to forthwith administer to asylum seekers accommodated at the Centre their rights under Section 42(2) of the Constitution and to grant forthwith reasonable access by the plaintiff's lawyers to the Centre so that the asylum seekers may, if they wish, communicate with those lawyers and be provided with legal advice and assistance by them and give instructions to them. In making an order in those terms I refer to paragraph 3 of the amended notice of motion of 8 February 2013, by which the plaintiff sought "such further orders or directions as the court may seem appropriate" [sic]. I also rely on the power of the National Court under Sections 57(1) and 57(3) of the Constitution to on its own initiative enforce the human rights of the asylum seekers, in this case their rights under Section 42(2). I consider that an order to enforce those rights is necessary and appropriate. [Emphasis added.]
15. 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.
16. I have emphasised those parts of the judgment in Namah v Pato that would, I consider, signal to a reasonable and fair minded person, who has knowledge of how the courts and judges operate, that I was not making a final determination of any issues and I was not foreclosing the outcome of any subsequent court case in which similar issues arose.
17. It is also important to note the terms of reference of the current inquiry that I announced by the Opening Statement on 27 February 2014 in Waigani:
I intend that the focus of the Inquiry (which might be regarded as terms of reference) will be on three issues:
18. A reasonable and fair minded person would I consider gather from the wording in particular of terms of reference 1 and 2 – in particular the use of the words "if any" – that I have left open the possibility, despite the concerns and views expressed in Namah v Pato, that it will be concluded that the transferees have no human rights enforceable under the Papua New Guinea Constitution.
19. Finally I have had regard to a significant point made by Hartshorn J in Tzen Pacific Ltd v Innovest Ltd (2012) N4713. The reasonable apprehension that must be shown to exist, before a Judge is disqualified, is that the Judge will not decide the case impartially. A reasonable apprehension that the Judge will decide the case adversely to one party is not the relevant criterion to apply.
20. Hartshorn J pointed out that there may be many situations in which previous decisions of a Judge on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean that the Judge will approach the issues in that case otherwise than with an impartial and unprejudiced mind. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be firmly established. That has not been firmly established in this case. For those reasons I reject the second ground of disqualification.
GROUND 3: ASSOCIATION WITH EXPERT WITNESS
21. I made a statement in Court this morning that has given rise to this third ground of objection. I stated that late last Friday 14 March 2014 my Associate informed me that the first and second respondents had filed an application for disqualification and that the filing of the application and the nature of the ground supporting it, had caused me to decide that I should disclose a fact that I had hitherto considered unnecessary to disclose.
22. The fact I disclosed is that the doctor appointed by the Court, Dr P R Crouch-Chivers, as Specialist Consultant in Clinical and Public Health, by the order and directions of 6 March 2014, is a personal friend of mine of long standing.
23. The duty and functions of Dr Crouch-Chivers are to inspect, examine and evaluate the provision of clinical and public health services at the Regional Processing Centre, and give expert evidence, to be presented in Court at Lorengau, to assist the Court in its determination of:
(a) the conditions in which the Transferees are accommodated; and
(b) if necessary, whether the conditions in which the Transferees are accommodated comply with the human rights standards of:
- (i) the Constitution; and
- (ii) any relevant and applicable international human rights instrument to which Papua New Guinea is a party.
24. I stated that I had not discussed with Dr Crouch-Chivers the details of this case or the evidence that he is expected to give and that I had not, of course, attempted to influence him as to the conclusions he may reach or the evidence that he should give. I repeated the view, subject to being persuaded otherwise, as expressed in Court in Madang on 6 March 2014, that Dr Crouch-Chivers is eminently well qualified and experienced in the area of public health, and that his experience as a medical professional in Papua New Guinea, extending over a period of 37 years, makes him ideally suitable. Given the timetable I have set for this Inquiry the chance of the Court locating and appointing anyone more qualified and experienced and suitable than him was very remote.
25. In deciding to disclose that fact, I applied the principles that I considered relevant when a judge is deciding whether it is desirable to disclose to the parties a fact that might give rise to a ground for disqualification. These principles emerge from the decision of the Supreme Court in Application by Herman Joseph Leahy (2006) SC981 and from persuasive overseas authority referred to by the Supreme Court in Hon Patrick Pruaitch MP v Chronox Manek (2012) SC1168:
26. To those three principles I added a fourth, of my own:
4 If in doubt as to whether to disclose a fact, the judge should disclose it rather than not-disclosing it.
27. I stated that the application of those principles led to the following conclusion:
28. The first and second respondents are asserting that my association through friendship with Dr Crouch-Chivers is a cause for concern as to my impartiality; more particularly that a reasonable and fair minded person with knowledge of that relationship would consider that a fair hearing was not possible.
29. I reject that contention. 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 generally regarded as being persons of integrity and inherently capable of acting independently and impartially.
30. It is also significant that the person with whom the friendship has been disclosed is a member of a profession that has its own code of ethics to which he is required to adhere. A reasonable and fair minded lay observer with knowledge of not only how courts and judges operate, but also with knowledge of the medical profession's code of ethics, would regard it as almost inconceivable that an expert witness appointed by the Court would allow his friendship with the presiding Judge to interfere with or influence his professional judgment and the evidence that he gives to the Court.
31. I consider that a reasonable and fair-minded person would appreciate the reasons for the appointment and the reasons for the disclosure and that no reasonable apprehension of bias would be expected to arise. The third ground of disqualification is rejected.
ORDER
(1) The first and second respondents' application for disqualification of the presiding Judge made by paragraph 2 of the notice of motion filed 14 March 2014 is refused.
(2) These proceedings shall proceed forthwith.
Judgment accordingly.
____________________________________________
Kuman Lawyers: Lawyers for the 1st & 2nd Respondent
Public Solicitor: Lawyer for 3rd Respondents
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