N4373

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 423 OF 2011

BETWEEN

BEKAE HEZAKI, BENNARD HEZAKI, ROBIN SASE, FRANCIS WESLEY, OFI BEN, EDDIE WILLIAM AND FELIX SENKI
Applicant

AND

CHIEF INSPECTOR PETER ROARI
Respondent

Goroka: Ipang AJ
2011: 29 July & 3, 10 & 17 August

CIVIL LAW – Writ of Habeas Corpus – Order 17 National Court Rules – to release applicants from Police custody – deemed to be held unlawfully – requirements of proceeding ex-parte- discussed

CIVIL LAW – Writ of Habeas Corpus –Whether State ought to be served –discussed –whether applicants ought to file their respective affidavits –requirement of 8 clear days also discussed

Cases Cited

Paul Aika & Ors v Casper Uramany [1976] PNGLR 
Mission Asiki v Manasupe Zurenoc (Provincial Administrator), Morobe Provincial Administration & The State SC797
Sam Tom & Donden Tom v Superintendent Corrective Institute Service Giligili & The State (2004) OS479 of 2004
Frederick Martins Punangi v Sinai Brown as Minister for Public service, Sir Michael Somare as Chairman of National Executive Council & The State (2004) N2661

Counsel

M. Mumure, for the Applicant 
Mr. R. Saranduo, for the First Respondent
Mrs. Kuvi, for the Second Respondent 

DECISION

17 August, 2011

1. IPANG, AJ: This a hearing on return to a writ of Habeas Corpus pursuant to Order 17 of the National Court Rules. The proceeding was [initially] commenced by originating summons and a motion seeking the Habeas Corpus.

2. It is appropriate that I state the back ground to this case so it will be easy to follow:

3. The application for writ of Habeas Corpus was heard ex parte on the 29th July, 2011. In seeking the ex parte orders the applicants relied on the affidavit of Mark Kompane sworn and filed on the 28th July, 2011. Mark Kompane deposed of the following facts:

1.	 He said he is the village elder, former councilor and land mediator from Taranofi village, Kainantu and a relative of the applicants.

2.	 He said at or about 16th July, 2011 around 9pm and 10pm, the applicant Bennard Hezaki was apprehended and brought to the Police Station and during the same night, under the influence of alcohol, the police officers under the command of the respondent went to Bekae Hezaki and apprehended him including the rest of the applicants, chop them using bush knives and brought them to Yonki Police cell.

3.	 He said on the morning of 17th July,2011 he went to Kainantu Police Station together with relatives of the applicants, upon hearing that the applicants were badly assault and chopped with bush knives by police officers and thrown in to the cell.

4.	At the police station, he said he saw Bennard Hezaki in the cell, who was badly beaten and covered with blood. He asked the Duty Officer and he went to the hospital to seek medical assistance.

5.	He said the respondent came and saw them at the Police Station, stopped the vehicle, opened the door, pulled out a Tramontina bush knife and ordered everybody to leave the police station. Mark said the respondent then approached him and Wesley Hezakie and said did you bring me the pump action which Mark said he has no idea. Mark also said the respondent also demanded that they call their names which they did. The respondent then told them to face the Hagen people.

6.	Mark said when Wesley Hezakie tried to talk the respondent shouted them down saying to them "shut up you criminals, I don't need to hear you. Just shut up and hear only from me".

7.	When they were still there, the duty policeman and the two hospital staff arrived with medical supplies.

8.	Mark said the respondent instructed the hospital staff to leave and they left without seeing the applicant Bennard Hezaki. Respondent then ordered his policemen not to listen to anybody apart from himself as the boss. Mark said he (respondent) also instructed his policemen not to treat the applicants to the visit that morning (28.07.11).

9.	Mark said he reported the matter to the office of the Public Solicitor on the 20th of July, 2011 and a lawyer was sent to investigate the allegation on the 20th July, 2011. On the 25th July, 2011 a letter was delivered to the police and the lawyer talked to the witnesses and returned on the 26th July, 2011.

10.	On the 26th July, 2011 Mark said respondent approached him and told him not to listen to the Public Solicitor and his lawyers and that the letter written to him does not have weight and that they might lie to him and that he might waste his money or they (lawyers) might lie and finish his money.

11.	Mark said he left the police station feeling really sad as the applicants had been badly assaulted with offensive weapons and that they have been denied medical attention and also they have not been charged as yet and it was more than a week, they have been held in custody.

12.	Mark said he personally believe the applicants rights have been abused, they have been mistreated and so the respondent and the applicants be brought to court to explain.

WRIT OF HEBEAS CORPUS

4. The following Ex-parte orders were issued;

1.	The requirements for service of this Application are dispensed with pursuant to National Court Rules Order 1, Rule 7.

2.	A Writ of Habeas Corpus to issue against the Respondent commanding him to have bodies of Bekae Hezaki, Bennard Hezaki, Robin Sase, Francis Wesley, Ofi Ben, Eddie William and the body of Felix Senki being taken and detained in his custody and produced before a Judge of the Goroka National Court on the 03rd of August 2011.

5. A Writ of Habeas Corpus was issued to Chief Inspector Peter Roari. The Writ was in the following form.

6.	Mr. V.Agusave has filed an affidavit of service dated 02nd August, 2011, deposing that he has served a "Notice to be served with the writ of Habeas Corpus" dated 29th July, 2011.

7.	 On the 3rd of August, 2011 the respondent was required to produce the bodies of the applicants before the court. However, when the matter was called the respondent was not present and the bodies of the applicants were not produced. Mr. Mumure invoked Order 17 Rule 8 Sub-rule 2 where it reads, "If the Respondent does not appear, and the body is not produced, application may be made to the Court or Judge supported by affidavit of service and disobedience, for Committal for Contempt.

8.	 The matter was adjourned to Friday 05th August 2011 for the Court to rule on Mr.Mumure's application. On Friday 5th August, 2011 the court ruled that the respondent be imprisoned for 14 days at CIS Bihute for Contempt of Court however the sentence be suspended on the condition that the respondent produces the bodies of the applicants in court on the 9th August,2011 at 9:30am .

9.	 On the 9th of August 2011 the respondent had acquired the services of a lawyer who is Mr.R.Saranduo, the police legal officer – Momase Region. Mr. Saranduo seeks adjournment to 10th August 2011 at 1:30pm to file and serve his submission. And also for the applicants lawyer to verify if Robin Sase is one of the applicants.

10.	 On the 10th August, 2011 at 1:30pm when the court resumed, Mr. Mumure submitted that he was short-served in court with the respondent's application and needed time to read through. The matter was then further adjourned to Thursday 11th August, 2011 at 9:30am. On Thursday 11th August, 2011 submissions were heard from the respective parties. Order 17 Rule 8 Sub-rule 1 was administered. The Writ of Habeas Corpus was read and then further requirements under the Order 17 Rule 8 Sub-rule (1) were followed. 

Preliminary Issues

Whether the applicant John Sase is John Andrew

11.	 The bodies of the applicants were produced in court and the next issue was the "Robin Sase" to be attached to which body of person. The police had record of holding "John Andrew" and not "John Sase" so for convenience sake it was ruled that both names be used inter-changeably to mean one person.

Whether Ex parte application should be supported by applicants' affidavits

12.	 Mr. Saranduo submitted that the Writ of Habeas Corpus is set under Order 17 Rules 1-10 of the National Court Rules. He submits that Order 17 Rule 1 (2) allows the applicants to make an ex-parte application subject to sub-rule (3). In this application he submitted that the application must be supported by the affidavits of the applicants. Counsel is correct in his argument, however exception is provided for under Order 17 Rule 1 sub rule 3 for the application to be supported by affidavits of other persons. The only matter applicants need to justify is the reason why they are not able to file their respective affidavits.

Whether eight (8) clear days requirement has been complied with

13.	 Counsel also raised issue regarding compliance with the requirements of Order 17 Rule 2 (2) on the eight (8) clear days between the service of the Notice and Summons and the date of hearing of the application. I am sure after appreciating the nature of proceeding that the Notice and Summons were served on the respondent on the 30th July, 2011 though he (respondent) was required to appear on the 3rd August, 2011 however it was not until the actual hearing on the application which took place on the 10th of August, 2011 which is more than the eight (8) clear days requirement.

Whether State ought to be served with Notice

14.	 On the 9th of August, 2011, I have directed Counsel's appearing for respective parties to address this court on the issue of whether the State should be served with documents. My direction was issued on the basis that Order 17 rule 8 sub-rule 1&2 of the National Court Rules provides for the procedure of the hearing of the writ, where it provides a mandatory requirement that after the writ is returned and the motion has been moved then the Respondent lawyer is heard first, the Counsel for the State, the Counsel for the persons restrained.

15.	 Mrs. Kuvi of Counsel for the state argued that the provision provides a mandatory requirement for the State to also be heard especially when it is an allegation against a state official acting within his official capacity. Hence the State Counsel argued that the State ought to have been served and notice should have been served to the State.

16.	 The section 5(1) Notice of the Claims By and Against the State Act, 1996 stipulates that no action to enforce any claims against the State lies against the State unless notice in writing of intention to make a claim is given. However, in the case of Mision Asiki v Manasupe Zurennoc (Provincial Administrator), Morobe Provincial Administration and the State (2005) SC797 the Supreme Court held that the notice requirement under the Claims By and Against the State Act (supra) are only applicable to actions that are based on contract, tort and breaches of constitution rights. The Court went on to say that Section 5 Notice does not apply to actions seeking orders in the nature of prerogative writs.

17.	 The issue of service of Notice on state is settled in regards to Writs of Habeas Corpus. Injia DCJ, (as he then was) in Frederick Martins Pungi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of National Executive Council and the State (2004) N2661 stated the following words.

"Reading subsection (1) and (2) [of Section 2 of the Claims By and Against the State Act] together, all claims By and Against the State in contract or tort or application under Section 57 and 58 of the Constitution for which a suit may be brought against the State in "any Court" of law of complete jurisdiction (s.1), are covered by the Act. Conversely, an application in the nature of a prerogative writ under Order 16 is not included in Section 2. Therefore, by implication, [an] application for orders in the nature of prerogative writs [is] excluded from the definition Section 2, hence the notice provisions in the Act do not apply to such [an] application".

What then is the Writ of Habeas Corpus?

18.	 The Habeas Corpus is a prerogative writ used to change the validity of a person's detention, either in official custody or in private hands. If on an application for the writ the court or Judge is satisfied that the detention is "prima facie" unlawful, the custodian is ordered to appear and justify it, failing which release is ordered. (A Dictionary of Law Oxford University Press) (OUP 7th Ed. at p.256) see also Osborn's Concise Law Dictionary, sweet & Maxwell 9th Ed, 2001.

Legal Issues

19.	 There will be only contentious issue for consideration: 

1.	Whether applicant's detention was unlawful or was it proper & lawful?

SUBMISSION BY RESPONDENT

20.	 Mr. R.Saranduo of counsel for the respondent was first to address the court. In making his submission to the court, Mr. Saranduo relies on the affidavit of Detective First Constable John Joseph dated 3rd August, 2011, the Respondent Chief Inspector Peter Roari dated 03rd August, 2011, and affidavit of Barbara Gore dated 10th August, 2011.

21.	 Counsel for the respondent submitted from the outset that the application made by the applicant pursuant to Order17 of the National Court Rules relating to Writ of Habeas Corpus after the applicants have been arrested and charged for "Attempted Robbery" pursuant to s.387(1)(a) of the Criminal Code Act. It was further submitted that the Writ of Habeas Corpus is used to challenge "detention of a person in police custody or in a corrective institution". Counsel submitted that the applicants are now asking the court to release them because they have been unlawfully locked up at the police cell and are now in custody at Bihute Corrective Institute.

22.	 Mr. Saranduo sets out the brief facts on the reasons each applicants were detained in police custody. On the 16th July, 2011 at about 10:30pm the applicants namely Bekae Hezaki, Bennard Hezaki, John Andrew, Felix Sengi, Ofi Ben, Eddie William, and Francis Wesley were at Mobil Service, Kainantu town, Eastern Highland Province. 

23.	 The complainant Christopher Wakati who was the driver and his crew Benjamin Wyne, were driving a Toyota Coaster, 25- seater PMV bus Registration No: P.O.377H, white and brown in color coming from Lae towards Hagen, Wabag and into Mendi. 

24.	 As the bus approached the township of Kainantu the driver sensed that he had flat tyre. He then drove the bus on to the right side of the road next to the Kainantu Mobil Service Station and parked the PMV bus under a street light. The crew went out to check the tyres. The driver was still sitting in the driver's seat when he saw a group of men armed with a factory made shot gun, bush knives, sticks, stones and beer bottles. The driver of the bus then moved the bus and drove forward straight towards the person who was armed with the factory made shotgun and he jumped onto the side of the road. He was identified as Bekae Hezaki and his brother Bennard Hezaki also identified as the one who was armed with a long black handle tramontina bush knife.

25.	 When the other six men realized that the PMV bus was driving off, they ran towards the bus throwing stones, beer bottles and sticks at the vehicle smashing its glass windows and Bennard Hezaki cut the side of the bus where the driver was sitting. The driver escaped and drove to Kainantu Police Station to report the attempted arm hold up.

26.	 While this was going on, the Policemen who were on foot patrol on the opposite side of the road realized that there was an attempted armed hold up by criminals and so they discharged several warning shots towards the criminals. The policemen on foot patrol than started chasing the criminals towards Tiofi Gate. Whilst in hot pursuit chasing the criminals, Bekaae Hezaki fired two shots towards the policemen who were chasing them. However quick respond from the policemen pursuing the criminals resulted in the apprehension of Bennard Hezaki who was armed with a black handle tramontina bush knife.

27.	 The other six criminals escaped into the darkness. The suspect Bennard Hezaki was taken to Kainantu Police Station and locked up in the Police Cell. Meanwhile, the driver of the PMV bus had lodged his complaint at Kainantu Police Station were an O/B entry was made and the O/B reference No. 5063/2011 was entered.

28.	 The Police men then re-grouped after they received a tip off from reliable sources that Bekae Hezaki and five comrades had come out from Tiofi yard or premises and headed towards Bekae Hezaki's residence. At about 1:30am, 17th July, 2011 the policemen went to Bekai Hezaki's house and surrounded his house and picked up Bekae Hezaki, John Andrew, Felix Sengi, Ofi Ben, Eddie William and Francis Wesley and took them to Yonki Police Station where they were each and severally cautioned and locked up at the Yonki Police Cell.

29.	 The complainant and his crew's statements were obtained on the 21/07/2011 and the damages done to the PMV bus was valued at K9,335.05.

On the 26th, 27th, 28th and 29th of July, the applicants were interviewed, cautioned, told of their constitutional rights under section 42 (2) of the Constitution and charged with the offence of "Attempted Robbery" under Section 387 (1) (a) of the Criminal Code Act, and locked up in the cell. 

30.	 The applicants made their first court appearance on the 02nd of August, 2011 before Goroka Committal Court where they were remanded at Bihute Corrective Institution on a Remand Warrant issued by Goroka Committal Court Magistrate.

31.	 The respondent's counsel submitted that the applicants were arrested and charged for attempted robbery and had appeared in the Committal court and have been remanded in Bihute Corrective Institute on a lawful Remand Warrant by the Committal Court. Counsel referred to the affidavit of Ms. Gore from the office of Public Prosecutor dated 10th August, 2011 attaching copies of Remand Warrants marked as A – G.

Submission by State

32.	 Mrs. Kuvi of counsel for the State relied on her written submission filed and dated 9th August, 2011. Mrs. Kuvi referred to the case of Sam Tom & Denden Tom v The Superintendent Corrective Services Giligili and the State (2004) OS 479 of 2004 (N2716). In this case Lay,J (as he then was) stated that, "the principal purpose of Habeas Corpus is to enquire in to whether the custody in which the person is held is lawful".

33.	 In the Sam Tom & Denden Tom's case (supra), both applicants commenced proceedings against the Superintendent of the Correctional Institute at Giligili, Alotau and the State by way of an originating summons No. 479 of 2004. At the same time the applicants made an application for bail. The argument raised were that; Samuel Tom had been attacked and injured by a warder whilst at the CIS, there was a fresh evidence of dying declaration of the deceased pointing to their innocence and a newspaper report, reporting that police had attributed the murder to another person whom they have shot dead. 

34.	 It was agreed that, the applicants were remand under remand warrant from the court; the court proceeded to hear their bail applications as the applicants have been convicted by criminal offence and were being in custody under a lawful warrant.

35.	 In Paul Aika & Ors v Casper Uremany [1976] PNGLR 46, Prentice DCJ (as then was) started that "one appreciates that a Habeas Corpus application has as its basis the direct inquiry as to whether a person is properly detained. A bail application on the other hand is usually a request for the favour of a person immediately and properly detained"

36.	 The Respondent Chief Inspector Peter Roari in his affidavit (supra) paragraph 8 deposes to the history of this matter. He deposed that on the 16th July, 2011, Kainantu Police received a report of an arm hold –up. Police proceeded to the scene. The applicants were caught by police and detained at the police cell. On the 18th July, 2011 the applicants received medical treatment. On the 22nd July, 2011 the respondent received a letter from the applicant's lawyer directing release of the applicants. The respondent did not release the applicants as respondent says the applicants were properly being detained as suspects for attempted armed robbery of passing motorist.

37.	 The matter was then handed over to the Criminal Investigation Division (CID) and the applicants were each and severally charged on the 26th, 27th, 28th and 29th of July, 2011. The applicants made their first appearances before the Committal Court in Goroka as there was no magistrate in Kainantu.

38.	 The affidavit of detective First Constable John Joseph is attested to the above. He was the arresting officer. He explained that the applicants where charged on separate days as he had to collect the witness statements of persons who were not resident in Kainantu and also that he conducted separate interviews with each of the applicants (accused). They were formally charged and detained awaiting court. The applicants were remanded on remand warrants and appeared in court.

39.	 The State's contention is that the applicants are properly and lawfully detained. State Counsel said the proper course is for the court to follow the approach in Sam Tom & Denden Tom's (supra) case by considering their bail.

Submission by applicant's lawyers

40.	 Mr. M.Mumure of Counsel for the applicants submitted that the court has to determine whether from the period commencing 16th July, 2011 to 1st August, 2011 whether the detention of the applicants are lawful. This is for the reason that he says after the writs of Habeas Corpus was issued; the applicants were arrested and brought to court. Counsel quoted the maxim, "he who comes to equity must come with clean hands. "Mr. Mumure said currently the proceeding serves no purpose however the Court should consider the issue as to whether the detention was lawful or not from 16th July, 2011 to 01st August, 2011.

Final Analysis

41.	 Considering the affidavit of Respondent Chief Inspector Peter Roari dated 3rd August, 2011, the affidavit of Detective First Constable John Joseph dated 3rd August, 2011, and the affidavit of Barbara Gore dated 10th August 2011, I am satisfied of the explanation given by the respondent. Respondent Chief Inspector P.Roari in paragraph 8 of his affidavit (supra) gave details on the history of the matter. 

42.	 Detective First Constable John Joseph who filed an affidavit (supra) deposed that he conducted the investigation in to the applicants matter. He said the applicants were brought to the police station on the 18th August 2011 and he conducted the investigations. He also said that the witnesses were traveling public who were there at the scene so he said once that was done; he then conducted the interviews and formally arrested the applicants (accused). He said the applicants were then formally charged on the 26th, 27th, 28th and 29th July 2011. He said he had them charged separately as he had to collect witnesses' statements and conduct interviews on each of them. He said on 1st August 2011 the respondent directed him to get the police lawyer in Mt Hagen, however, the lawyer could not make it.

43.	 Ms. B.Gore's affidavit (supra) attested copies of the Remand Warrants for each of the applicants (accused) on remand at Bihute Correction Institute issued by the Committal Court on the 2nd August, 2011.

44.	 Given the explanation now before me I am more than satisfied that a legitimate process has been set in motion on some proper basis in that the applicants have been arrested and charged according to law.

45.	 It is my finding that the applicants have been lawfully detained. I, therefore quash the Writ of Habeas Corpus. Applicants are now at liberty to apply for bail.

_______________________________

Public Solicitor: Lawyer for the Applicant
Police Legal Officer – Momase Region: Lawyer for the Respondents
Acting Public Prosecutor: Lawyer for the State