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Damaru v Vaki [2014] PGNC 375; N6787 (28 July 2014)

N6787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 484 OF 2014 (CC4)

IN THE MATTER OF CONTEMPT OF COURT UNDER ORDER 14 RULES 37 to 50 OF THE NATIONAL COURT RULES

BETWEEN:

MATHEW DAMARU, Detective Chief Superintendant of Police and the Director of National Fraud and Anti-Corruption Directorate

First Plaintiff

AND:

TIMOTHY GITUA, Detective Chief Inspector of Police and Deputy Director of National Fraud and anti- Corruption Directorate

Second Plaintiff/Applicant

AND:
GEOFREY VAKI, the Commissioner of Police
Defendant/Respondent

Waigani: Injia, CJ
2014: 25^th, 28^th July

CIVIL PRACTICE & PROCEDURE - National Court - Jurisdiction - To Punish for Contempt Over Failure to Execute Warrant of Arrest Issued by District Court- Whether National Court has jurisdiction to deal with a Motion for Contempt- Constitutional question

CONSTITUTIONAL INTERPRETATION - Does Section 37 (2) of the Constitution limit the Contempt Powers of District Court to those contempt offences expressly stipulated in Section 277 of the District Courts Act- Constitutional question

CONSTITUTIONAL - PRACTICE & PROCEDURE- Where important Constitutional questions are raised- Appropriate to reserve questions for determination by the Supreme Court- Constitution, s 18 (2)

Counsel

M Nale with C Tara, for the plaintiffs
J A Griffin QC with P Tabuchi, for the defendant

28^th July, 2014

RULING

1. INJIA CJ: The plaintiffs are the two senior officers of the National Fraud and Anti-Corruption Unit of the Royal Papua New Guinea Police Force. For reasons explained in their affidavits filed in these proceedings, they have been unable to execute a Warrant for the arrest of the Prime Minister Peter O'Neill issued by the District Court on 12th June 2014, the main reason being that the Defendant has, since commencing office as Commissioner of Police, assumed responsibility over the Warrant and has failed to execute the warrant or prevented or frustrated the execution of the Warrant.
   
2. Ordinarily one would think that any application to compel the Police Commissioner to execute the warrant issued by a Court or to punish him for contempt would be made before the same Court that issued the Warrant. Instead the plaintiffs have chosen to come to this Court because they contend that the National Court has the jurisdiction to punish the defendant for contempt.
   
3. The plaintiffs' principal relief claimed in the Originating Summons is a declaration pursuant to Sections 22, 155(4) & (6), 166 and 172 of the Constitution, that the National Court has jurisdiction to watch over the proceedings of the District Court (inferior courts) not only to prevent them from exceeding their jurisdiction or otherwise acting contrary to the law but also to prevent persons from interfering with the course of justice in such courts." By Notice of Motion, the plaintiffs seek the principal relief and an order that "pursuant to Order 14 Rule 42 (2) of the National Court Rules and or Sections 22, 155 (4) & (6), 166 and 172 of the Constitution, the Defendant be charged for contempt for failing or preventing or interfering to effect the Warrant of Arrest issued on 12 June 2014 by the Port Moresby District Court to arrest Peter O'Neill, Prime Minister of Papua New Guinea."
   
4. During the hearing of the Motion, a preliminary issue has arisen which I invited counsel to address me. The issue is whether the National Court has the jurisdiction to deal with a Motion for punishment for contempt with regard to a Warrant of Arrest issued by the District Court. This is a threshold issue that goes to the jurisdiction of this Court, the outcome of which could determine the Motion and even the whole proceedings.
   
5. Counsel who argued the issue were somewhat unprepared and made general submissions which were of some assistance. In the time that I have had since reserving my ruling, I have given some thought to further matters which I reflect upon in my ruling.
   
6. I am of the view that the issue is more appropriately approached from the perspective of the jurisdiction of the District Courts Act because that Court’s jurisdiction and functions are expressly stipulated by statute and any supervisory power that the National Court has over that Court must be authorised by that enabling statute or any other superior law that confers such supervisory jurisdiction. Although the Constitution says the National Court is a Court of unlimited jurisdiction, its jurisdiction is also limited by statute, and this is more so with regard to the National Court's power to oversee or supervise the exercise of jurisdiction of the lower Courts.
   
7. The supervisory jurisdiction of the National Court over the District Court is expressly stipulated by law in various ways, including the following:
   
   • (1) Transfer of proceedings by District Court: Section 24 and Section 25 of the District Court Act;
     

(2) Appeals - Sections 219 to Section 246 of the District Courts Act; and

(3) Reviews - Section 155 (2)(b) of the Constitution

8. In the case before me, A Warrant of Arrest was issued by the Port Moresby District Court. The warrant was directed to named police officers to arrest the Prime Minister and bring him to the District Court to be dealt with according to law. Upon issuing the Warrant, the District Court retained control over the subsequent proceedings. To date the Warrant has not been executed. As a result, further proceedings before the District Court are pending. In other words, the District Court is seized of the matter.
   
9. It is trite law that it is the duty of the police officer(s) named in the Warrant to execute it. If the police officer(s) fail to execute the Warrant by refusing to do so, or take any action that prevents or frustrate the lawful execution of the Warrant, they stand liable to be punished for contempt. The same applies to any person who interferes with, prevents or frustrates the execution of the Warrant. The question is whether the District Court is given the jurisdiction by law to deal with punishment for contempt in relation to the failure or otherwise to execute a Warrant of Arrest. The answer to this question must be supplied by the District Court Act or any other superior statutory law that defines the jurisdiction of the District Court with regard to punishment for contempt.
   
10. The power to punish for contempt is an inherent power that is given by the Constitution to all Courts of law including the District Courts. Section 37(2) of the Constitution recognizes this inherent power when it states:
    

"(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law."

11. Section 277 of the District Court Act is the only provision in that Act that makes express provision for contempt of court in certain types of cases by defining the act that constitutes contempt, creates an offence called "Contempt of Court" and prescribes a penalty for that offence. However the contempt jurisdiction is limited to types of cases that relate to the protection of its own in-court proceedings. Section 277 provides:
    

"277. Contempt of Court.

(1) A person who –

• (a) Wilfully interrupts the proceedings of a Court; or
• (b) Conducts himself disrespectfully to the Court during the sittings of the Court; or
• (c) Obstructs or assaults a person in attendance, or an officer of the Court, in the view of the Court; or
• (d) Wilfully disobeys an order made by the Court under Section 63, may be excluded from the Court and is guilty of an offence.

Penalty: A fine not exceeding K200.00

(2) A person who, in the opinion of the Court, wilfully prevaricates in giving evidence is guilty of an offence.

Penalty: A fine not exceeding K100.00.

(3) The Court in the presence of which an offence under this section is committed may immediately convict the person guilty of the offence, on its own view or on the oath of some credible witness.

(4) If a person convicted of an offence against Subsection (1) makes to the Court, before its rising, such apology as it considers satisfactory, the Court may remit the fine wholly or in part."

12. The types of contempt matters specified in this provision are obviously limited to the summary powers of the Court to protect its own proceedings; they do not extend to other contemptuous conduct such as the conduct complained of in the present case. On the one hand, it may be argued that the express stipulation of the types of contempt cases that the District Court has jurisdiction by implication excludes other types of contemptuous conduct. This is a tenable argument that is supported by a long line of cases that say that the District Court is a creature of statute and its jurisdiction is expressly stipulated by the enabling statute. On the other hand, equally tenable and strong is the argument that Section 277 of the District Court Act does not expressly preclude the inherent power of the District Court as a Court of law given by Section 37(2) of the Constitution to punish for contempt committed in relation to other contemptuous conduct; those powers are available to be exercised in addition to the powers expressly given by Section 277. Any such express exclusion provision would come within the expression "Except, subject to any Act of the Parliament to the contrary" in Section 37(2) of the Constitution. On the face of these competing arguments, I am satisfied that there is an issue of Constitutional interpretation with regard to Section 37(2) of the Constitution and its application to Section 277 of the District Court Act and the District Court Act as a whole.
    
13. This Constitutional issue was not addressed by the National Court in the case cited by counsel for the plaintiffs which appears to be the only case on point. That is the case of Pius Mark v Korai Iki (1995) N1364. It is an important issue that I consider the Supreme Court is the appropriate Court that should give a conclusive and binding interpretation and application to the circumstances of this case.
    
14. In arriving at this conclusion, I note that the same Warrant of Arrest is the subject of a separate National Court judicial review proceeding in OS (JR) No. 455 of 2014 Geoffrey Vaki, Police Commissioner v Nerrie Eliakim, Chief Magistrate, The Hon Peter O'Neill, Prime Minister of Papua New Guinea and The Independent State of Papua New Guinea. In that case, the National Court has referred a Constitutional question to the Supreme Court which relates to the Police Commissioner's standing to challenge the Warrant of Arrest. My decision to refer the Constitutional issue in this case is therefore in line with the judicial trend in recent times that important Constitutional questions that have emerged concerning the exercise of police powers in the investigation and prosecution of crime should be addressed and determined conclusively by the highest Court.
    
15. The formal orders of this Court are as follows:
    
    • (1) The following Constitutional questions are reserved for the Supreme Court pursuant to Section 18(2) of the Constitution:
      

Question one (1):

Does the expression “Except, subject to any Act of

the Parliament to the contrary" appearing in Section 37(2) of the Constitution
limit the contempt powers of the District Court to only those contempt of court
offences that are expressly stipulated in Section 277 of the District Courts Act?

Question two (2):

If the answer to Question one is "Yes", does the National Court has the
jurisdiction to deal with contempt offences that fall outside of Section 277
of the District Courts Act, given to it by Sections 155 (4) & (6), 166 and

172 of the Constitution?

Question three (3):

It the answer to Question two is "No", what is the procedure to be applied by
the District Court in dealing with contempt offences that fall outside of Section
277 of the District Courts Act?

(2) Pursuant to Section 18 (2) of the Constitution, these proceedings are stayed
pending the determination of the Reservation.

(3) The Reservation is fixed for directions on Friday 1^st August 2014 at 9:30am to come before the Supreme Court Listings Judge to issue directions to enable the Reservation to be fixed for hearing in the August sittings of the Supreme Court.

(4) The plaintiffs shall prepare and present a draft Index to the Reservation Book for the Supreme Court's perusal and endorsement on 1^st August 2014.

(5) A formal Reservation in accordance with the provisions of 0 4 r 2 and Form 2 of the Supreme Court Rules 2012 (Consolidated) is to be issued to the parties before 1^st August 2014.

_____________________________________________________
Jema Lawyers: Lawyer for the Plaintiffs
Young & Williams: Lawyer for the Defendant