DC6046

Papua New Guinea

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

CB NO 1617 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

JUSTUS RAMO
[Defendant]

His worship Paul Puri Nii

15th July 2021

PROCEEDINGS: -Charges- Misappropriation-383A(1)(a)-Abuse of Office-92(1)-Forgery-642(1)-Uttering-463(2)-False Pretense-404(1)(a) and Conspiracy to Commit a Crime-515 of the Criminal Code Act 1974- Pending PHUB

APPLICATION: Notice of Motion-Affidavit in Support- Restraining Police interference-fresh allegations-investigations incomplete-Control and Command- ultra vires-encroachment into the Police administrative issue-Application dismissed.

PNG Cases cited:
Nil

Overseas cases cited: 
Nil

REFERENCE

Legislation

The Constitution
Criminal Code Act 1974 Chapter 262
District Court Act 1963 , Chapter 40
Police Act 1996
Bail Act 1977,

Counsel
Police Prosecutor: 	Chris Iga				For the Informant
Gary Tine:		Gary Tine				For the Arresting Officer

RULING ON NOTICE OF MOTION

15th July 2021

INTRODUCTION

NII, P Magistrate. This is my ruling on a Notice of Motion filed by the Defendant dated 6th July 2021, to have members of the Police force restrained from interfering into the investigations of allegations against the Defendant. The arresting officer sought the subsequent terms of the orders in his Notice of Motion:

a)	An order restraining, prohibiting and preventing the Defendant and his servants, and known associates from interfering and obstructing the full investigations and duty of the Investigating officer Detective Senior Constable Smith Morikia.

b)	An order restraining, prohibiting and preventing all police officers not involved in the investigation and prosecution of the matter to interfere and obstruct the administration of justice and duty of the Investigating Officer Detective Senior Constable Smith Morika.

c)	Cost be in the cause.

d)	Such further and other orders this court deems necessary.

CHARGE(S)

1.	Defendant is charged with one count of six (6) different charges under the Criminal Code Act 1974. Defendant is charged of Misappropriation under Sections 383A(1)(a), Abuse of Office under section 92(1), Forgery under section 642(1), Uttering under section 463(2), False Pretense under section 404(1)(a) and Conspiracy to Commit a Crime under section 515 of the Criminal Code Act 1974.

FACTS

2.	Police says on 16th July 2018-August 2019, Defendant aged 31 years old of mix parentage PNG and Solomon Island was alleged to have committed six(6) different offences. On 21st June 2021, Defendant was arrested and subsequently charged for the allegations. The supposed actualities giving rise to the allegations against the Defendant are abridged by Police in the information holding the charges as beneath:

“Dis dishonestly apply to the use of another namely, Tungula Tokali the monies in the sum of K101,563 that was embarked for the repay and maintenance of National Airport Cooperation and the independent State of Papua New Guinea”
 
3.	In the nutshell police alleges Defendant received K101,563, money property of the National Airport Cooperation by deceitfully asserting that he would do some maintenance and repair work for the Cooperation but Defendant did not put the money to where it was primarily intended for and hence he was arrested and charged.

ISSUE

4.	Should the Applicant’s Notice of Motion be considered in the circumstance?

THE LAW 

The Law on the application to administer this issue 

Section 22(2)-District Court Act

22.	General ancillary jurisdiction.
Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—
(a)	grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

	
CHARGE

5.	The six (6) offending charges:

1.	Section 383A (1)(a) – Criminal Code Act

383A.	Misappropriation of property

(1)	A person who dishonestly applies to his own use or to the use of another person— 
(a)	property belonging to another is guilty of the crime of misappropriation of property 

2.	Section 92(1)-Criminal Code Act

92.	Abuse of office.

(1)	A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanor. Penalty:	Subject to Subsection (2), imprisonment for a term not exceeding two years.

3.	Section 462(1)-Criminal Code Act

462.	Forgery in general: punishment in special cases.

(1)	A person who forges any document, writing or seal is guilty of an offence        that, unless otherwise stated, is a crime. Penalty:	If no other punishment is provided—imprisonment for a term not exceeding three years.

4.	Section 463(2)-Criminal Code Act

463.	Uttering false documents and counterfeit seals.
      (2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

5.	Section 404(1)(a)-Criminal Code Act

404.	Obtaining goods or credit by false pretence or wilfully false promise.

  (1)		A person who by a false pretence or willfully false promise, or partly by a false pretence and partly by a willfully false promise, and with intent to defraud—
(a)	obtains from any other person any chattel, money or valuable security is guilty of a crime.

6.	Section 515-Criminal Code Act

515.	Conspiracy to commit crimes.

A person who conspires with another to commit a crime or to do any act in any part of the world that—
(a)	if done in Papua New Guinea would be a crime; and
(b)	is an offence under the laws in force in the place where it is proposed to be done,
is guilty of a crime.
Penalty:	If no other penalty is provided—
	(a)	imprisonment for a term not exceeding seven years; or
	(b)	if the maximum penalty for the crime in question does not exceed imprisonment for a term of seven years—not exceeding that penalty.

APPLICATION

7.	Defendant was arraigned by this court on 21st June 2021, for the six (6) charges against him. The Matter was then adjourned to the 22nd July 2021, at 9.30am mention. However, on 6th July, 2021, Police informant filed this application to restrain members of the police force from interfering into the investigations regarding allegations against the Defendant among other others. The Case officer stated at paragraph 11 of his Affidavit in support filed dated 7th July 2021, that since the date of the Defendant’s arrest, certain members of the Police force including the Police hierarchies are encroaching into the pending allegations against the Defendant by interfering and suppressing the investigation process by trying to suspend the informant. The Application by the Arresting Officer is not challenged by the Prosecutor. 

ANALYSIS OF THE APPLICATION

8.	The fundamental function of Police apart from its administrative obligations and keeping of peace is under Section 197(2) of the Constitution. 

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) 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.
 
9.	Any regular member of the Police force is obligated by the Constitution to arrest, interrogate and charge any person who is allege of coming in conflict with the Laws of the land. The Police informant having himself guided by this provision of the Constitution arrested the Defendant on 26th February 2021, for allegations under the Criminal Code Act. However, somewhere along the way, the arresting officer’s duty under the constitution was disturbed by members of the police.

 Do I have powers to stop Police from interfering into the investigations of allegations against the Defendant? 

10.	The Constitution at Section 197(1) offers that the crucial purposes of the police force are in the Constitution and an Act of Parliament which is the Police Act 1996. The Constitution only provides the core functions such as arrest, prosecution and maintaining peace while the Police Act 1996, governs the administrative and disciplinary conducts of the members of police force. Section 20 of the Police Act provides a list of Disciplinary offences which are subject of police internal administrative disciplinary actions. Of all these, I have captured Section 20(ae) of the Police Act 1996, which is quite relevant in the current application by the arresting officer and  thus I recite the law below:

20.	Disciplinary offences.
(1)	A member of the Force who—
(ae)	through an intentional act or omission places himself under an obligation to a person which is likely to affect the proper discharge of his duties as a member of the Force is guilty of a disciplinary offence and is liable to be dealt with and punished under this Division.

11.	If a police officers’ conduct is likely to affect the proper discharge of his duties then the subject police officer is to be death with under 22 or 23 of the Police Act, depending on the seriousness of the allegations. Sections 24 -29 of the Police Act, provides for how an alleged officer under Section 20 shall be death with. The powers of arrest and investigation are constitutional powers that are vested on the Police officers by virtue of their declaration as a regular member of the force. However, on the internal administrative functions of police, the hierarchy should administer the procedures to deal with police from interfering into criminal investigations. The duties of other police officers and prosecution are subject to control from the police hierarchy down the subordinates and therefore it is a Police administrative task. My power as a Committal Court Magistrate is limited to the enabling legislation that obliges me to consider evidence for the allegations against the Defendant. The law that enables me is under Section 95 of the District Court Act. I do not have inherent jurisdictions but limited jurisdictions to consider matters that are brought before me. My jurisdiction is below:
	95.	Court to consider whether prima facie case.

 (1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.
(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

12.	The current application by the Applicant to restrain certain members of the police from interfering into the investigations involving the Defendant is an internal police administrative issue that should be addressed though the police hierarchy. I do not have powers to enquire into the internal affairs of the Police force. 

13.	The Arresting officer has also raised issue that the Defendant and his agents be restrained from interfering into the investigations conducted by the arresting officer. On 22nd June 2022, the Defendant was arraigned and subsequently I issued certain bail conditions in the ensuing manner:  

a)	Defendant not to interfere with State witness,
b)	Defendant not to leave NCD without leave of the court
c)	Defendant to attend court at all times
d)	Defendant to reside at Rainbow, Section 143, Allotment 16,at all times when his allegation was going on in the court. 

14.	The above conditions were sanctioned pursuant to Section 18 of the Bail Act 1977, where it provides for bail to be granted subject to conditions and that means it is a legal requirement under Law that Defendant is not allowed to interfere with the Complainant or state witness including the Arresting officer. If there was evidence of breaching any of the bail conditions including interference with State witness then the Arresting officer through the Prosecutor may make an application to revoke Bail and have the Defendant remanded.

RULING

15.	The Application to have members of the Police force restrained from involving in the investigations and prosecution of the allegations against the Defendant is refused as the court has no powers and jurisdictions to interfere in the internal affairs of the Police administration.

16.	If there was evidence of Defendant and his agents interfering with the State witness including the Arresting Officer then the Arresting Officer may file appropriate application before the court to have the Defendant’s bail revoked and have him remanded. 

CONCLUSSION

17.	The Orders of the court are made in two (2) limbs, the first ground is refused for want of jurisdiction and for the second limb, Defendant may file proper application before the court for revocation of bail.

ORDERS

My formal orders

A)	The Application by the Arresting Officer to restrain, prohibit and prevent all police officers not involved in the investigation and prosecution of the allegations against the Defendant to interfere and obstruct the administration of Justice and duty of investigating Officer Detective Senior Constable Smith Morikia is refused.

B)	If the Arresting Officer had evidence of interfering and Obstruction by the Defendant and his agents or relatives against  the progress  of investigations into the allegations against the Defendant then the arresting Officer may file necessary application before the court to have the Defendant’s bail revoked and have him remanded. 

Gary Tine						For the defendant
Police Prosecutor					For the State