N4617

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 121 OF 2012

BETWEEN:

SIR SALAMO INJIA
Plaintiff

AND:

THOMAS ELUH, ASSISTANT COMMISSIONER, ROYAL PAPUA NEW GUINEA CONSTABULARY
First Defendant

AND:

TOAMI KULUNGA, COMMISSIONER OF POLICE, ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Manuhu, J
2012: 13 March

EXTEMPORE RULING

PRACTICE AND PROCEDURE – Permanent stay – Plaintiff charged for attempting to pervert course of justice – Plaintiff issued direction for cheque to be put on hold – Reasons for direction – Criminal intent – Abuse of process.

Cases Cited

No case was cited in the judgment.

Counsel:

D. Wood, for the Plaintiff
H. Ette, for First Defendant

13th March, 2012

1. MANUHU, J: This is an ex parte hearing, after a late appearance by counsel for the First Defendant and non-appearance of other counsel, which means that the only evidence that the court has taken into account is the evidence that was adduced by the plaintiff.

2. The plaintiff seeks a permanent stay of proceeding on the basis that the criminal proceeding mounted against him by police is an abuse of process. The plaintiff has been charged for attempting to pervert the course of justice when he directed the Registrar to recall or stop payment of an NJSS cheque that was made to Nandape Lawyers in accordance with an order by Sevua J granting probate in respect of the estate of late Hinchliffe J to Timothy Sari Jr. 

3. In criminal law, having a criminal intent at the time an act or omission is done is critical. At the time the plaintiff gave the direction in question, on the evidence, his reasons were as follows. First, he was not aware of the orders made by Sevua J and, days after the direction, his attempts to obtain the relevant court file were not successful. The court file was locked away in Sevua J's chambers. The second reason the plaintiff gave for giving that direction is that he wanted to make further enquiries with the blood relatives of the late Justice Hinchliffe in Australia. 

4. In my view, it was wise for the plaintiff to direct that the cheque be put on hold. Firstly, at the time Sevua J made the orders referred to there was already an order in place in Australia appointing the Public Trustees of Queensland as administrator for the late Justice Hinchliffe. That order was current when Sevua J granted probate to Timothy Sari Jr. Therefore, the grant of probate by Sevua, J was in contradiction with that order that was made in Queensland.

5. The second reason I say the plaintiff was wise to give the direction to stop the cheque is that the relatives of the late Justice Hinchliffe were indeed interested in his estate. This is amplified in the subsequent proceeding in Waigani by Equity Trustees Limited on their behalf challenging the appointment of Timothy Sari Jr. 

6. Clearly, therefore, what the plaintiff did was wise. It was the appropriate course also because, in his affidavit, the plaintiff explains that he was in charge of public funds. The National Judicial Staff Service is allocated millions of kina each year. These allocations come directly under the control of the plaintiff as Chief Justice. The cheque in question was raised by National Judicial Staff Service. It was his ultimate responsibility to ensure that funds are properly accounted for.

7. It is clear, therefore, that what the plaintiff did, when he gave the directions, does not show any criminal intent to maintain the charge of attempting to pervert the course of justice. 

8. In any event, the evidence shows that the matter is now settled. The Equity Trustees Limited which took Timothy Sari Jr to court and challenged his appointment, as ordered by Sevua J, has discontinued its action against Timothy Sari Jr. Timothy Sari Jr has collected all the money he wanted. 

9. Police have a constitutional function to prosecute an offender on behalf of citizens of this country but such power should not be abused. Prosecutorial functions should not become an instrument of persecution. They should not become an instrument of revenge. They should not become an instrument of unnecessary prosecution. Where the court finds abuse of those powers, as in this case, there is the discretion to stay the proceeding either permanently or temporarily.

10. In this case, I am satisfied that the prosecution of the plaintiff is an abuse of prosecutorial powers because, as I have said, what the plaintiff, as Chief Justice, did, does not show any criminal intent and does not show an attempt to pervert the course of justice. 

11. For the foregoing reasons, I will grant a permanent stay of the criminal proceeding. I will also order costs on a party/party basis. Time is abridged.

_____________________________________________________________

Derek Woods: Lawyer for the Plaintiff
Police Legal Services Directorate: Lawyers for the Defendants