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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]
Committal No. 641 of 2015
BETWEEN
DAIRI VELE
Applicant/Defendant
AND
TIMOTHY GITUA
Respondent/Informant
NCD: T. Ganaii, SM
2021: 16th June
COMMITTAL PROCEEDINGS – Warrant of Arrest in the First Instance – Pursuant to Section 8 of the Arrest Act - Charge of Official Corruption under section 87 (1) and (2) of the Criminal Code Act – Application to Disqualify Magistrate from hearing a motion to permanently stay the Arrest Warrant – Apprehended Bias
– Whether prior ruling against another defendant in a Committal Matter sharing same facts gives rise to apprehended bias
PNG Cases Cited
Application by Herman Joseph Leahy (2006) SC981
Boateng v The State [1990] PNGLR 342
Gobe Hongu Ltd v National Executive Council & Ors [1999] SC592
Nambawan Super Ltd v Paraka (trading as Paul Paraka Lawyers) (2019) N 7935 at 28 and 29
PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592
Police v Peter O’Neill, Committal Nos. 629-630 of 2019, [2020] PGDC 51; DC 5030
The State v Paul Paraka, Cr 118/2019 N8505 (Decision on the 10th and 22nd September 2020)
Yama v Bank South Pacific (2008); (SC921)
Overseas Cases Cited
Ebner v. Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson [2000] HCA 48
Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288
R v Liverpool City Justices; Ex-parte Topping [1983] 1 WLR 119 at 123
Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689)
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239
Smits v. Roach [2006] HCA 36
Webb v. R [1994] HCA 30; (1994) 181 CLR 41
References / Legislation
Section 94-100 District Court Act
Section 8 of the Arrest Act
Section 87 (1) and (2) of CCA
Counsel
Twivey Lawyers, Mr. Despond Kipa For the applicant/Defendant
Police Legal Counsel, Mr. Pare Kuiap For the Respondent/Informant
Ruling on Application to Disqualify
16th June 2021
Introduction
Ganaii, SM. This is a ruling on whether or not I should disqualify myself on grounds of apprehension of bias from hearing the substantive motion
to permanently stay an Arrest Warrant issued against the applicant defendant Mr. Dairi Vele.
Background
2. The District Court granted orders on the 22nd of July 2015 and pursuant to section 8 of the Arrest Act[1] for an Arrest Warrant to be executed on Mr. Vele. The court was satisfied that there were reasonable grounds for believing that an
offence of Official Corruption under section 87 of the CCA[2] had been committed.
4. For the offence of Official Corruption, the law in section 87 (2) requires the Police to arrest upon an Arrest Warrant issued by the Court.
5. On the 29th of July 2015 Mr. Vele filed an application to set aside the Arrest Warrant. On the 30th of July 2015, the court granted an interim stay on the execution of the Arrest Warrant pending the hearing and determination of the application to set it aside.
6. Between July 2015 and December 2020 various other applications were filed including an OS proceedings in the high court and those matters were dealt with by the respective courts.
7. On the 01st of December 2020, in a separate matter but one closely related by facts to this matter, which is the matter of Police v Peter O’Neill, Committal Nos. 629-630 of 2019, [2020] PGDC 51; DC 5030; the court made a committal ruling to commit former PM Hon. Peter O’Neill to stand trial in the National Court on one count of Official Corruption and one count of Misappropriation.
8. The allegations in the statement of facts in Police v Peter O’Neill (supra) indicated that the applicant Mr. Vele was the Acting Secretary for the Treasury Department at that time when Hon. Peter O’Neill, was the Prime Minister who issued certain financial instructions pertaining to the release of K50 m for the purchase of two diesel turbo generators. Police allege that there was conspiracy between Hon. Peter O’Neill and Mr. Vele.
9. On the 15th of December 2020 Mr. Vele through his lawyers filed a Notice of Motion seeking that I disqualify myself from further dealing the motion to permanently stay the Arrest Warrant arguing that I may have an apprehension of bias. They argued that I had presided in the committal matter of Police v Peter O’Neill where the allegations in that case are similar to the allegations in the present case against the applicant Mr. Vele.
10. Mr. Vele, through his counsel, Mr. Kipa argued that there is an apprehension of bias.
11. A hearing on the submissions on the motion for disqualification was conducted on the 18th of February 2021.
12. Due to a number of reasons including unavailability of counsels and also due to other urgent ruling matters taking priority in the Committal, Grade Five, Fisheries, Search Warrant, Arrest Warrant and Protection Order tracks, I was not able to rule quickly on this matter until now.
Issue
13. The main issue is whether or not I should disqualify myself from further hearing this matter.
14. The test is whether a fair minded lay observer can say that in the present circumstances, there is an apprehension of bias.
The Law
15. The applicable case laws are:
16. In this case, The State v Paraka (supra) the court adopted from the case of Gobe Hongu Ltd v National Executive Council & Ors [1999] SC592, the four categories for consideration on the general principles regarding applications for disqualification. These are:
"1) Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice
of a Judge in their cause, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239;
2) Judges should resist from being driven from their Courts by the conduct or assertion of parties. Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689);
3) A Judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain
a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in
issue. Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288;
4) A Judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an early case or he has had some knowledge of prejudicial and inadmissible facts. Webb v. R [1994] HCA 30; (1994) 181 CLR 41;
5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality of those entrusted with the administration of justice so that the impartiality and the Constitutional independence of the judiciary is not interfered with.
6) The test of an ‘objective observer’ established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors (1998) SC 592 should also include ‘a fair minded, lay observer’ as considered in Livesay v. NSW Bar Association (supra)."
17. The Supreme Court in Herman Joseph Leahy made it clear that the “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”. Furthermore that:
“3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.
4) If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication ......”. (underlined emphasis mine)
18. In Boeteng, the case adopted the test in R v Liverpool City Justices; Ex-parte Topping [1983] 1 WLR 119 at 123 for determining whether a judge should disqualify themselves for apprehended bias. The test is:
“ Would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the appellant was not possible”
19. In Re JRL, Mason J stated that the apprehension of bias must be firmly established:
“There may be many situations in which previous decisions of a judicial officer 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 either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be “firmly established”....(underlined emphasis mine).
The Applicants case
20. Mr. Kipa of learned counsel for Mr. Vele did not file written submissions. He relied on a NOM filed on the 20th of December 2021 and the affidavit of Twivey Layers lawyer Mr. Serome Sesega.
21. Mr. Kipa made the following oral submissions:
22. Counsel stated that he will provide case authorities to support his argument and to assist the court however, he had not done so.
Respondent’s Submission
23. Mr. Kuiap of learned counsel for the respondent/Police relied on his filed submissions and submitted as follows:
1) The test to be applied is “would a reasonable and fair minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial for he appellant was not possible”, relying on Boeteng v State [1990] PNGLR 342;
2) Similarly, in PNG Pipes Pty Ltd and Sankaran Venugopal v Mujo Sefa & Ors (1998) SC592, the court held that: “the test to be applied...was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion”.
3) The test for an objective observer should also include a ‘fair minded, lay observer’ Gobe Hongu Ltd v National Executive Council [1999] N1964 ; Livesay v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288. The general principles regarding such applications, giving rise to apprehension of bias was discussed.
4) An objective, fair minded, lay observer “is to be attributed with having some knowledge of the way in which lawyers and judges work”. Yama v Bank South Pacific Ltd (2008) SC921;
5) “...The emphasis is the need for public confidence in the judiciary ...” Johnson v Johnson [2000] HCA 48;
6) “Suspicion or apprehension of bias must be based on reasonable, not fanciful grounds”. Herman Joseph Leahy (2006) SC981
7) The apprehension of bias must be ‘firmly established’ (Re JRL; Ex parte CJL [1086] HCA 39.
8) In order to identify whether a reasonable apprehension of bias had been established, it is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters, and circumstances and the apprehended deviation from the course of deciding the case on merits (Yama v Bank South Pacific (2008); SC921)
24. Further, Mr. Kuiap submitted that:
Further Oral submissions
25. Mr. Kuiap also made oral submissions as follows:
1) Matter has taken too long and must be dealt with as a priority matter; and
Courts consideration of Submissions and Application of Law to Facts
26. In the determination of the issue of whether I may be biased in presiding further in this proceedings due to a Committal ruling I
presided in, in the matter of Police v Peter O’Niel (O’Neill, supra) I must consider whether my previous ruling provide an acceptable basis for inferring that there is a reasonable apprehension held by a reasonable, fair-minded and objective
lay observer that I will approach future issues in a biased way (Gobe Hongu Ltd v NEC; PNG Pipes v Mujo Sefa; Re JRL; Ex parte CJL, supra ).
27. The applicable test is one in Boeteng, (adopting the test in R v Liverpool City Justices; Ex-parte Topping) where the court must determine whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the appellant was not possible.
28. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be firmly established (Gobe Hongu).
29. To firmly establishment this apprehension, it must be made from the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its merits and secondly, to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Yama v Bank South Pacific(2008); SC921 adopting and applying Ebner v. Official Trustee in Bankruptcy [2000] HCA 63 and Smits v. Roach [2006] HCA 36.
30. A fair minded observer is a lay person and not a lawyer (Yama v Bank South Pacific) observing the Arrest Warrant proceedings against Mr. Vele and the committal proceedings against Hon. Peter O’Neill and having a reason to hold the suspicion that this court will be biased in future adjudications in proceedings against Mr. Vele.
31. The following abstracted paragraphs from Police v O’Niel (O’Neill) show the matters I had taken into account in making the committal ruling. They include: the relevant facts; matters for consideration on sufficiency of evidence on the elements of the charges and reasons for committal.
32. Although these abstracts show that there is a logical connection between those facts and circumstances because the facts relied on are similar, the evidence of the pronouncement of the ruling in open court where the court read word for word the written ruling (which is now published) did not show that I had given an opinion on the evidence against Mr. Vele or if I may add that I have encouraged prosecutions in pursing the matter in a certain way against Mr. Vele.
33. The only statement made by the court against Mr. Vele as the presiding magistrate in that committal ruling was that “there was insufficient evidence that Hon. Peter O’Neill conspired with the applicant Mr. Vele”. The reasoning for that finding was based on the available evidence in the Police Hand Up Brief alone that Hon. Peter O’Neill gave directional instructions in the letter and the letter alone containing that directional financial instruction was not enough to make out a prima facie case of Conspiracy between the Hon. Peter O’Neill and Mr. Vele.
34. Hence, in my respectful view, and evidently from the pronouncement of the ruling, the court did not express any direct opinion on the evidence against the Mr. Vele that a fair minded lay observer in both proceedings would have reason to hold that the court will be bias in any future adjudication against Mr. Vele.
35. For appreciation, the abstracted paragraphs in the committal ruling in Police v Peter O’Neill are: firstly, the Statement of Facts at paragraphs 4 and 5 with the relevant paragraph 4 saying:
“4. As adopted form the PHUB page nos 6-7, Police say that on the 04th of December 2013 the defendant Mr. Peter Paire O’Neill, Member of Parliament representing Ialibu/Pangia Electorate, at the time of the commission of the alleged offence was the Prime Minister of PNG.
Police allege that the defendant procured Fifty Million Kina (K50 m) from the Department of Treasury and paid these monies to an Israel Company styled as LR Group Ltd. Investigations revealed the following:
- In a letter dated 04th December 2013, the defendant, then as the Prime Minister directed the Acting Secretary for the Department of Treasury Mr. Dairi Vele to release K50 m for the purchase of two diesel turbo generators. Police say the subject of purchase of the generators was previously discussed by the defendant and Mr. Dairi Vele. (Underlined emphasis mine).
- ......”
and secondly, in the Court’s response to the respective submissions by parties at paragraphs 34 – 41 where the relevant paragraph at 41 says;
Conspiracy:
“.....
41. On the charge of conspiracy, the letter dated 4/12/13 alone cannot amount to conspiracy. In my respectful view, as it is, the letter although does show prior discussions, it talks about a specific ‘subject matter’. The subject matter may be the generators and so much the money and manner in which it should be procured. That alone is not enough to infer conspiracy and is not sufficient to make out a prima facie case.
Relying on the case law of St v. Paul Tiesten (supra), the court found that the letter by the minister to the secretary was a directive and so persons down the line had no choice but to
comply. There cannot be conspiracy. In the present case, on the charge of conspiracy, the Police submit that it is a directional
instruction. If that is so, and for current purposes, I find insufficient evidence on the face of the letter alone, that there was
conspiracy between the defendant and Mr. Dairi Vele”. (underlined emphasis mine)
36. The above abstracts which were read out in court during the court’s pronouncement of its committal ruling show the strict performance
of the committal court magistrate’s functions pursuant to sections 94-100 of the DCA[3] where the court has considered the evidence in the Police HUB and made findings on the sufficiency of evidence against Hon. Peter
O’Neill on the two charges of Official Corruption and Misappropriation.
37. On the third charge of Conspiracy, the court found insufficient evidence that Hon. Peter O’Neill conspired with the applicant Mr. Vele.
38. In Application by Herman Joseph Leahy (2006) SC981 the Supreme Court made it clear that the “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds and that includes: If a Judge's knowledge of the subject matter of legal proceedings is contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge’s knowledge and the issues for adjudication in those proceedings, e.g. if the Judge has expressed a prior opinion on the issues for adjudication ......”. (Underlined emphasis mine).
39. In determining and delivering the ruling in Police v Peter O’Neill, I have not expressed any opinion on any issues for future adjudication against Mr. Vele.
40. In Police v Peter O’Neill, the pronouncement of the statements in the committal ruling made by myself as shown above (by the abstracts) in both the Statement of Facts and the Determination on Sufficiency of Evidence on the Elements of the Charge of Conspiracy, in my view are not sufficient in themselves for any fair minded lay observer to hold a firm view that I would be biased in any future adjudication against Mr. Vele. The statements alone are not sufficient to make out a case for disqualification.
41. As such there is no evidence to firmly establish an apprehension of bias just by relying on the similarity of the statement of facts.
42. The principles in Nambawan Super Ltd v Paraka (supra) is applicable. Hartshorn J stated:
“ The mere fact that a judge previously decided cases in favour or against a party does not provide a foundation for a reasonable apprehension that the judge might not consider another case involving one or both of the parties with other than an impartial mind and unprejudiced mind”.
43. The mere fact that that statement of facts are the same and that I had previously dealt with the committal ruling of a co-accused does not provide a basis for a reasonable apprehension of bias in an Arrest Warrant proceeding against Mr. Vele.
44. Further, I agree with Mr. Kuiap’s submission in reliance on State v Paul Paraka N8505 (supra) that the issues for the committal court’s deliberation are not the same as in those in the Arrest Warrant proceedings.
45. In the Arrest Warrant proceedings, the Court need only be satisfied that the there is reason to believe that an offence has been committed and the offence is one that requires an arrest warrant.
46. On the further issue of revocation of the Arrest Warrant, the District Court can exercise inherent powers but will only be determining the issue of whether the Arrest Warrant had been properly obtained.
47. The issues for adjudication in the Arrest Warrant proceedings compared to that of the Committal matter of Police v Peter O’Neill where the court is considering sufficiency of evidence to make out a prima facie case are distinct in nature.
48. That is to say that this is not a case where I had presided over an earlier trial involving the same set of facts whereby I have had some knowledge of prejudicial and inadmissible facts. Webb v. R [1994] HCA 30; (1994) 181 CLR 41 applied. But rather this is a case where the Statement of Facts relied on in the Committal ruling in Police v Peter O’Neill is properly adopted from the Police Hand Up Brief as is usually the case and is relevant for purposes of the committal court’s functions on determining sufficiency of evidence and whether there is a prima facie case. Challenges to admissibility of facts are matters for trial proper and the court has no part in that function during a committal hearing.
49. The issues at the Arrest Warrant stage of the committal proceedings also does not involve the finding of admissible facts so that issue of being prejudicial should arise. The argument that there is an apprehension of bias because of the consideration of evidence in a prior committal matter that shares the same set of facts to this case where the Police is brining against a defendant in an Arrest Warrant proceeding does no stand. As such, there is no foundation for reasonable apprehension that I will be biased due to the lone argument that both proceedings share the same set of facts.
50. A final consideration is that the case principle in Johnson v Johnson [2000] HCA 48 must be applied where the court’s emphasis is the need for public confidence in the judiciary. The court has a duty to prevent any abuse of its process to maintain public confidence in its operations and one such way of realising that is to ensure that any applications brought to court are based on meritorious grounds. I do not find that the present application for disqualification has proper foundation to stand.
Findings
51. In conclusion, I make the following findings:
Final Orders
52. The court’s final orders are:
Twivey Lawyers For the applicant/Defendant
Police Legal Division For the Respondent/Informant
[1] Chapter 339 of 1977
[2] Chapter 262 of 1974
[3] Chapter No 40 of 1963
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