DC358

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

BY AUTHORITY OF THE SUPERVISING MAGISTRATE

In The Matter Of Several Cases by ‘Health Inspector’ At the Minj District Court
Applicant

V

In The Matter Of Complaints Against the Provincial Police Commander, Police Commissioner, Department Of Police & The State of PNG
Respondents

In The Matter Of S. 12 & 13 of Public Heath (Sanitation & General) Regulations Services Chapter No 226

15th March 2005

M. M. PUPAKA: This is in regards to the several court processes commenced against the Provincial Police Commander and others by a health inspector at the Minj District Court. It is particularly in relation to the condemnation and closer of the Minj Police Barracks.

However this is neither an appeal against nor a review of the Order of the Minj District Court dated the 11th January 2005. This is, in essence, an intervention by me as the Provincial Supervising Magistrate (SPM), through the use of my administrative supervisory powers. I am compelled to intervene after having sighted orders, which I perceive to have been issued as a result of defective Court proceedings.

I initially asked for the file after I received a query or complaint of sorts, from the Provincial Police Commander. The latter indicated that he was having difficulties relocating police personnel and finding alternative accommodation for them. Having sighted the Court file, and having fully perused the contents and the records of proceedings, I consider my intervention quite imperative. It is a matter of administration. It is particularly a matter of Sector (Law & Justice) interest and cooperation. The thought that the Minj Police Station may remain closed indefinitely does not auger well for law and order firstly at Minj and also in the Province generally.

History of the Minj Proceedings

Several proceedings, numbered and styled as D/C 104 – 108, were commenced at Minj District Court by a set of Complaints and Summons Upon Complaint on or around 30th July 2003, by "Health Inspector" against the Minj Police Station Commander as 1st defendant; Provincial Police Commander Western Highlands 2nd defendant; Police Commissioner as 3rd defendant; Police Department as 4th defendant; and Independent State of Papua New Guinea as 5th defendant. 

The nature of the complaint in all of those processes was basically that the defendants were collectively charged for the breach of sections 12 & 13 of the Public Health (Sanitation and General) Regulations Chapter No. 226. It is helpful to restate these pertinent provisions at the outset:

12. Structural defects.

Where, in the opinion of the Local Medical Authority, unsanitary conditions exist on premises by reason of a structural defect in the premises, the owner of the premises shall, within such time as is specified in a written order issued by the Local Medical Authority and served on him, repair the defect.

13. Premises unfit for human habitation.

(1) Where, in the opinion of the Local Medical Authority, a building used as a dwelling is in such a condition as to be dangerous to the health of the inmates, the Local Medical Authority may, by written order served on the inmates and the owner, require—
(a) the inmates to leave the building; and
(b) the owner to cease using the building as a dwelling or allowing it to be so used.

(2) person who refuses or neglects to comply, within the time specified in the order, with an order under Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K100.00 or imprisonment for a term not exceeding three months, and in addition, in the case of a continuing offence, a fine not exceeding K10.00 for every day during which the offence continues.

The Public Health (Sanitation and General) Regulations specifies civic duties of the Local Medical Authority in the exercise of which the Authority may issue directions that must be complied with. The non-compliance of such directions would constitute criminal breach. These pertinent provisions identify what directives maybe issued and also spell out the offence that may be committed by those who do not comply and the penalties for breach. Therefore those suspected of any breach maybe charged by information, in order that, if convicted they face a Court fine or imprisonment.

Those thought to be in breach cannot be summoned, especially by way of a Complaint and Summons upon Complaint.

Having said that it is immediately apparent that the proceedings numbered and styled as D/C 104 – 108, which were registered and issued at the Minj District Court, were void and defective ab initio. Whilst the proceedings were intended to be a charge under the Public Health (Sanitation and General) Regulations, the mode of commencement was not proper. The charges were commenced and prosecuted as if these were civil complaints, which the charges are not.

As a matter of law and practice Civil and Criminal cases are separate and distinct processes. Their respective modes of commencement are different. The manner of commencement of each is defined and regulated by the District Court Act

It is not overly necessary to restate in full all the pertinent provisions of the District Court Act, suffice to say it sets out and distinguishes the two processes. All Criminal proceedings are commenced by a charge or information if initiated by the police and by an Information and Summons upon Information if commenced by persons other than the police. All Civil matters are properly and validly commenced only by way of a Complaint and Summons upon Complaint.

It is worth noting, as a side remark but nevertheless to put matters in proper perspective, that no valid proceedings can be commenced by any other process or instrument other than an Information and Summons upon Information for criminal matters; and Complaint and Summons upon Complaint for civil matters. For instance the use of Notice of Motion as an originating process in the District Court is procedurally incorrect and certainly a process commenced in that manner is invalid from the outset.

Now having said that, reverting to the case on hand, it is no doubt not in the interest of anyone to permit or allow these defendants to continue to not comply with the Minj District Court order. Nevertheless they, especially the police generally, are being caught in a situation where full and total compliance is at best difficult and at worse it would bring about chaotic results. At the same time it would be tragic to exert authority for compliance in the circumstances. Needless to say that the order, coming as it does from the strength of a set of defective court proceedings and processes, cannot be allowed to stand. It would certainly offend against law and procedure.

Any court order based upon an error or mistaken or misconceived set of facts or based on a misunderstanding of the law or a order made contrary to law is void able. Whilst it is normal practice for such an order to be set aside or voided at the request of those affected I think it defies logic to say a competent authority such as a court of competent jurisdiction or a properly empowered authority such as the Provincial Supervising Magistrate cannot do anything, upon its own initiative or motion, to rectify the consequences of a defective or void or void able court order.

It must be stated for the record that I am of course not intervening as a court of competent jurisdiction. But I can and do exercise supervisory powers over the Magistrate (Mr. E. Kupo) who presided in the Minj District Court, which granted the orders alluded to. I must also stress though that my powers are strictly administrate and not judicial.

Nevertheless having expressed the views stated above I consider it imperative to intervene and grant a brief respite to the police from complying with the order on the bases that compliance would entail or bring about disruption to normal police operations, particularly when any disruption may cause an increase or escalation in law and order problems in the Minj District. More importantly though there is an immediate need for the defendants to formally apply to have the Minj District Court order set aside.

Meanwhile, in the exercise of my discretion, I now grant a respite of 14 days from today, (15th March 2005), to the defendants. Consequently the order of the Minj District Court dated 11th January 2005 is stayed for 14 days henceforth, during which period the defendants may be relieved from compliance as to the Minj District Court Order dated the 11th January 2005 and the ultimatum presented in the said Order, on the bases that the such compliance is not in the interests of continuity and maintenance of law and order in the Minj District and its surrounds.

I would further direct that defendants proceed with due speed to formally have the said order set aside as a matter of course on the bases that it was issued upon the strength of invalid and defective originating processes.

None of the parties were present as there was no need to.