An Explainer on #PNG PM O’Neills Application for a Stay Order by Brian Kramer

By Brian Kramer

faces_of_corruption_pngSo what is an Application?

In a court proceeding when a party (lawyer) applies for an interim (temporary) stay order from the court they must file an application. Because you are literally “applying” for something from the court hence the term Application. This application is made by way of a motion (meaning to ask)

Just like in a formal meeting a person moves a motion when they wish to discuss or table an issue for the other members of the meeting to consider. In a Court of Law a party will do the same, that is to move a motion to raise an issue they wish the court to consider. Motions can be made verbally or in writing. In most cases in writing so the court and parties can be clear about the issues to consider. The written document is referred to as a Notice of Motion – hence giving notice of your motion

A motion/application will set out what specific orders the party seeks and the provisions (sections) of the law that allow it. They will also typically file affidavits (sworn statements) as evidence providing facts to support their application.

In this case the PM filed an application/motion applying/asking the court for interim orders to restrain police from effecting the arrest warrants and charging him. To support his application he also filed his affidavit attaching a copy of the letter and arrest warrants the Police served on him and also explain to the Court the reasons he should not be arrested.

In moving an application a court will typically only accept evidence in affidavit form. Your lawyer can not just tender documents in court the judge won’t accept them. They must first prepare an affidavit and explaining the details of the document and attach it as an annexure (attachment) swear it to be true to ensure it is properly before the court.

It’s important to understand the Lawyers will prepare the affidavit on behalf of their clients and make sure what they want said is stated in the affidavit. Their client will be asked to sign the affidavit (under oath – sign it in front of a commissioner of oaths which is typically the lawyer) and in many cases never actually read it or understand it’s contents. The lawyers will craft their clients statements in a way that makes it compelling and even exaggerate the facts so they can rely on it when they argue their application in Court.

The Application and affidavit is filed at the Court Registry. Once the registry confirms a date with the Judge’s Associate copies of the documents are required to be served on the other parties. (at least three days notice). The opposing lawyer will then review the documents and if he believes the evidence in the affidavit is false then they will get their client to file an affidavit in response to dispute it.

Lawyers will then prepare their submissions (written arguments either for or against the application. The submissions will outline the provisions of the law that relate to it followed by legal issues for the court to consider. They will base their arguments on precedent (previous court rulings) They will also make reference to the affidavits in support of their submissions.

At the hearing of the application parties (lawyers) will appear in court where the Judge will ask the party that moved the application to argue their case first, followed by the opposing party. Both parties are required to submit a copy of their written submission to the judge and each party. So everybody has the benefit of reading and responding to it. Once the opposing party to the application has concluded the lawyer that moved the application will be allowed to respond or have the final say. The judge may then put questions to either party about their submission after which he will typically adjourn (break) for a few days while he reviews the submissions and hands down his decision. The decision of the Judge will hinge on the law and legal precedents. If one party relies on National Court ruling and the opposing party on Supreme Court judgements the Judge will be bound to follow the Supreme Court ruling. So in the end it will come down to the law and case law (previous court rulings) that support it.

At the initial hearing the Police lawyer Miviri also prepared an affidavit on behalf of the Task Force Sweep investigators Sam Koim where they included all the background details of the case against the PM and evidence to support their plan to interview and arrest the PM. This would give the Judge the benefit of understanding both sides of the case. Just in case one side lied about the facts or intentionally left it out of their affidavit. So although the Police investigators did not have the benefit of a lawyer to argue their case the Judge will still consider their affidavits when forming his decision.

In the PM’s case all five lawyers supported the PM’s application leaving no party to oppose it. But because the application relates to law in that the PM is asking the Court to stay (temporary stop) police from arresting him the judge must first determine whether or not the Court has such powers irrespective of whether the Police lawyer was sidelined and the new lawyer instructed to support the PM’s application.

So as not to be guilty of sub judice (latin for “under judgement”, means that a particular case or matter is under trial or being considered by a judge or court and can lead to contempt of court)

For hypothetical purposes assuming I had been engaged to argue against PM application. I would have relied on the following arguments in response to the QC’s Submission.

The Constitution Section 197 FUNCTIONS OF THE POLICE FORCE

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament–
(a) to preserve peace and good order in the country; and
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Subject to Subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.

The right for Police to lay charges in respect of offences including corruption is a constitutional right. In the performance of such function, the Police Force is not subject to direction or control by any person or authority. Police must be allowed to perform their functions as provided by the Constitution and related legislation.

This view was supported by the Supreme Court in the case Pato vs Manjin [1999] PGSC 50 held “It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional function of the police”

Same view was held in a recent Supreme Court case Wartoto vs State [2013] PGSC 59; SC1298 (15 November 2013). Eremas Wartoto sought a stay on the criminal preceding against him pending his appeal after he was charged for two counts of misappropriation. The Court refused his stay application and held the Public Prosecutor must be given that opportunity to perform his function without interference and if there is a delay in the prosecution of an accused person, the accused person has recourse to other remedies available to him.

Both Supreme Court cases support the view the Court should not interfere with constitutional duties of either Police or Public Prosecutor. Further Schedule 2.5.9 of the Constitution stipulates all decisions of law by the Supreme Court are binding on all other courts, but not on itself. Which means the National Court is bound to follow the rulings of the Supreme Court in refusing stay orders that seek to interfere with Police Constitutional functions or duties.

In response to the QC arguments replying on overseas case law – Schedule 2.5.12(1) of the Constitution

“subject to any decision of law of the Supreme Court or the National Court, as the case may be, to the contrary, but otherwise no decision of law of a court or tribunal that was not established within the National Judicial System is binding on a court within it”

That is to say no decision of law made outside PNG is binding on any court in PNG.

In response to the QC arguments the PM’s has been denied natural justice a constitutional right under Section 59 Constitution because they presumed the PM was guilty by obtaining the arrest warrants before giving him his right to be heard (interviewed).

This argument is misconceived firstly Police obtained the arrest warrants as required by law Section 87(2) of the Criminal Code it is procedural function of investigations stipulated by law. Secondly the PM he was never formally arrested therefore he can not claim his rights were violated. The Police simply asked him to come in for an interview thus providing him the opportunity to be heard before they could conclude whether or not after hearing his side of the story they had reasonable grounds to arrest and charge him. Further Police powers of arrest does not require them give a person the right to be heard. He is afforded that right at the indictment or acquittal hearing. Police can arrest any person on reasonable grounds including on the spot without giving them the right of an interview provided they have reasonable grounds.

The Supreme Court in the case Pato vs v Manjin [1999] PGSC 50 held if accused claims such rights are violated, he has recourse pursuant to s.57 Constitution. We can’t see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

In conclusion the court should strike out the application for being an abuse of process.

Pending today’s decision my next article will be on what will happen if the PM is arrested or if the court upholds his application and grants a stay order