Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Xamua v Agisa [2022] PGDC 109; DC9049 (7 November 2022)

DC9049
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION

CC NO 973-974 OF 2022

BETWEEN:

REX XAMUA
[Informant]

AND:

SEKIA AGISA
REX KIPONGE
[Defendants]

Waigani: Paul Puri Nii

7^th November 2022

APPLICATION: Stop the Warrant of Arrest issues by the Waigani District Court – Arrest of the Defendants – Defendants suspected of an offence – Official corruption – Validity of warrant – Assessment of evidence – Consideration of the summary of allegation provided – Arrest Act – Section 8

cases

Vaki v Eliakim [2017] PGNC 144; N6835
Pala v Bidar [2015] PGNC 147; N6048
Police v Kimisopa [2021] PGDC 76; DC6031

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Arrest Act

Parties

Police Prosecutor: Chris Iga For the Informant
Warner Shand Lawyers: Dan Kakaraya For the Defendants

JUDGMENT

7^th November, 2022

NII, P. P, Magistrate: In this case of the Police, the Defendants are suspected of official corruption, an offence contrary to Section 87 of the Criminal Code. For this offence, a person shall not be arrested without a warrant of arrest.

Brief Background

1. It was for this purpose that on 20^th October 2022 a warrant of arrest was issued by this court on the application of Detective Sergeant Rex Zamua of Police Special Investigation Team.
   
2. The warrant of arrest was focused to among others, Detective Sergeant Rex Zamua to arrest the Defendants “as being a holder of public office as the Minister for Civil Aviation charge with the performance of his duty corruptly wrote a letter instructing Rex Kiponge (the co-accused) for the ministerial funds to be transferred to a nominated trust account with the full knowledge and authority that the funds would be dishonestly applied.”
   
3. Before the warrant of arrest was implemented or served, an application was made by the Defendants to have it set aside and subsequently revoked. The Defendants wanted to have the Warrant of Arrest against them be revoked.
   
4. The Police Informant objected to the Application and pointed out that the issuance of the warrant of Arrest under Section 8 of the Arrest Act is in order and pending execution.
   
5. Defendant Sekie Agisa is the former Minister for Civil Aviation and defendant Rex Kiponge is the current acting Managing Director of National Airport Corporation.
   
6. Previously, a separate warrant of Arrest against the defendants was issued by this court but was revoked on 4^th October 2022 based on the same issue being deliberated by the higher court; however, now it is on a different issue.
   

APPLICATION

7. The Notice of Motion filed by the defendant seeks to set aside and revoke the orders of 20^th October 2022. Application supported by the Defendants Affidavits filed on 2^nd November 2022.
   

RULING

Defendants position

8. Defendants have strongly contented that there is no evidence for the allegation of Official corruption under Section 87(1) of the Criminal Code Act.
   
9. Defendants have provided a number of cases and one of them was Police v Kimisopa [2021] PGDC 76; DC 6031 that police have failed to substantiate the elements of the charge.
   
10. Defendants have argued that police have failed to provide any evidence against them to substantiate the allegation.
    
11. Defendants in doing so have relied on an Affidavits field on 24^th October 2022 and 2 November 2022 by introducing their evidence and justified their acts.
    

Prosecutor’s position.

12. Police argued that the warrant of arrest is issued based on allegation and thus evidence is not needed at the time when application for warrant of arrest is filed. Moreover, Police say the summary of facts is sufficient for the court to issue a warrant of arrest and rest of the evidence is provided later after when the defendant is arrested and charged.
    

Court’s Opinion

13. The Warrant of Arrest was issued under Section 8 of the Arrest Act.
    

“8. Issue of warrant by a court other than a Local Court.

Where an information is laid before a court, other than a Local Court, that there are reasonable grounds for believing—

(a) that a person has committed an offence within the country; and

(b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary—

(i) to ensure his appearance in court to answer a charge for the offence; or

(ii) to prevent—

(A) the continuation or repetition of the offence; or

(B) the commission of a further offence; or

(iii) to preserve the safety or welfare of a member of the public or of the person,

the court may issue a warrant for the arrest of the person.”

14. The Warrant of Arrest was issued against the defendants for the allegation of Official corruption because it is an allegation where an accused person cannot be arrested without a warrant of arrest.
    
15. The law under Section 8 permits the court to issue a warrant of arrest against a suspect if the court is of the opinion or believe that the person of interest is alleged to have committed an offence.
    
16. The Law permits the court to issue a warrant of arrest if the court had reasonable grounds to believe that an offence is suspected of being committed.
    

The elements of reasonable grounds:

a) The suspect must be correctly named;

b) The charge must be clearly identified and stated;

c) The statement of allegation must contain a summary of the allegation;

d) The charge is provided in the Criminal Code or any other Legislation;

e) The summary of allegation must clearly attract the charge;

f) The Complainant should be a person of interest in the allegation.

17. In my opinion, when going through the documents for the warrant of arrest, I am satisfied that the court's opinion was lawfully funded on reasonable grounds to issue a warrant of arrest against the defendants and is in order and intact.
    
18. An information is not the evidence but it contains brief elements of an offence which are reinforced by the brief allegation of facts. Brief allegations of facts or brief summary of facts are not evidence but are the Police informant's self judgement or a summary of what he/she believes based on the Complaint provided.
    
19. The police-hand-up-brief commonly known as police file encloses the full statements of evidence and other particulars corresponding to the elements of an offence. This police file is not presentable at the time of the application for warrant of arrest but after when the warrant is executed and the accused is before the court for assessment of evidence under Section 95 of the District Court Act.
    
20. However, in some cases, a Police hand-up-brief (police file) may be ready before a warrant of arrest is issued but that does not stop police from applying for a warrant of arrest even if the police file was not ready.
    
21. A warrant of arrest may be declared substandard and revoked by the court if one of the following contents are not presentable in the application for warrant of arrest:
    

a) Information;

b) Allegation of facts/Summary of facts/Statement of facts;

c) Notice of Motion;

d) Affidavit in Support (from the case officer);

e) Complaint (statement against which the allegation is funded);

f) The Complainant is the Police informant/case officer.

g) The Complainant is related to the Police informant/case officer

22. I have noted from the defense arguments but they have not raised any issue that the warrant of arrest which was issued was defective nor the documents provided to the court by police are not in order even though a defect in the information subject of issuance of a warrant of arrest is not reviewable per Vaki v Eliakim [2017] PGNC 144; N6835. This is fundamentally for the obvious reason that after the defect is rectified, police would still proceed to effect the arrest and thus it won’t change the status quo.
    
23. If defendants would want to challenge the validity of a warrant of arrest, then it may be challenged after it is executed per Pala v Bidar [2015] PGNC 147; N6048, if defendants were of the view that the Warrant of arrest is defective.
    
24. However, challenging the evidence and arguing on the elements of the evidence at the issuance of the warrant of arrest stage is premature. Arrest with and without warrant is done based on allegation and not evidence but evidence is argued after the police file is compiled and served.
    
25. Defendants in my view are arguing the requirements under Section 95 of the DCA which is impulsive and premature at the current stage.
    

ORDER

26. Defendants Sekia Agisa and Rex Kiponge’s application through a Notice of Motion filed on 24^th October 2022, seeking to have the warrant of arrest against their arrest to be set aside and revoked is refused.
    

Warner Shand Lawyers For the defendants
Police Prosecutor For the State