Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Vaki v Damaru [2016] PGSC 42; SC1523 (16 August 2016)

SC1523

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NOs. 12 AND 25 OF 2016

BETWEEN

GEOFFREY VAKI
Appellant

AND
MATTHEW DAMARU,
Detective Chief Superintendent of the
Police and the Director of National
Fraud and Anti-Corruption Directorate
First Respondent

AND
TIMOTHY GITUA,
Detective Chief Inspector of Police
and Deputy Director of National
Fraud and Anti-Corruption Directorate
Second Respondent

Waigani: Kandakasi J, Hartshorn and Kassman JJ
2016: 6^th July

: 16^th August

Objection to Counsel for Respondents appearing without the consent of the Attorney General on the ground of issue estoppel and without the consent of the Public Prosecuutor pursuant to s. 177 (1) (a) Constitution and s. 4 (1) (c) Public Prosecutor (Office and Functions) Act 1977

Counsel:

Mr. G.J. Sheppard and Mr. G. Purvey, for the Appellant
Mr. T.G. Lambert and Mr. M. Nale, for the Respondents

16^th August, 2016

1. BY THE COURT: This is a decision on a contested objection as to whether Messrs Matthew Damaru and Timothy Gitua as a Detective Chief Superintendent and Detective Chief Inspector of the Police, and as the Director and Deputy Director of the National Fraud and Anti-Corruption Directorate are able to engage lawyers to act for them in this proceeding without the approval of the Attorney General.

2. The appellant objects to the appearance of counsel for Messrs Damaru and Gitua in this proceeding on the ground that the approval of the Attorney General had not been obtained for such appearance and that Messrs Damaru and Gitua are estopped from contending that they are able to engage lawyers to act for them without the approval of the Attorney General.

3. Further, objection is taken on the ground that as these two appeals are criminal appeals, the Public Prosecutor has reserved to him exclusively the prosecutorial function of such appeals.

Whether approval of Attorney General required

4. The Attorney General’s approval is necessary it is contended as Messrs Damaru and Gitua are parties to this proceeding as police officers and officers and servants of the State concerning matters arising out of their service and duties as police officers in the course of their employment by the State. Reliance is placed upon the Supreme Court decision of James Marape v. Peter O’Neill (2016) SC1487 (Hartshorn, Makail and Sawong JJ, delivered on 24^th February 2016), which held that Messrs Damaru and Gitua did require the approval of the Attorney General to the engagement of lawyers to act for them in that proceeding. Messrs Damaru and Gitua were parties in that proceeding in the same capacities as they are parties in this proceeding.

5. Messrs Damaru and Gitua contend that they are entitled to appoint lawyers and counsel to represent them without the approval of the Attorney General, that they are not estopped from making this contention.

6. We note however the following submission made on behalf of Messrs Damaru and Gitua, at [25]:

“Firstly, we say that the Supreme Court was correct in holding that the Third Respondents participation in that proceeding, so (sic) as in this and other related proceedings, is (sic) respect of a matter that is not of a purely personal nature to them but in their official capacities as policemen representing the interests of the State, hence (sic) require the approval from the Attorney General for the engagement of private lawyers.”

7. We take it from this submission that it is conceded that in this proceeding Messrs Damaru and Gitua require the approval of the Attorney General to the engagement of the lawyers who are to represent them.

8. In any event, this Court constituted by the same bench has already considered this issue in Hon. Peter O’Neill v. Nellie Eliakim and Others (2016) unreported SCA 7/16, delivered on the same day as this decision and determined that Messrs Damaru and Gitua are estopped from contending that they do not require the approval of the Attorney General to their legal representation in that proceeding. This determination was made following a detailed consideration of the relevant authorities. We do not believe it is necessary therefore to embark upon a further such consideration As the capacities in which Messrs Damaru and Gitau appear in this proceeding are almost the same as the capacities in which they appear as parties in Marape v. O’Neill [2016] SC1487 and Hon. Peter O’Neill v. Nellie Eliakim and Others (2016) (supra), we are satisfied that Messrs Damaru and Gitua are estopped from contending that they do not require the approval of the Attorney General to their legal representation in this proceeding.

Whether approval of the Public Prosecutor is required

9. The appellant further objects to the appearance of counsel for Messsrs Damaru and Gitua in these proceedings on the ground that these are criminal appeals and that s. 177 (1) (a) Constitution and s. 4 (1) (c) Public Prosecutor (Office and Functions) Act 1977, reserve exclusive control of the prosecutorial function, which includes responding to appeals against criminal convictions, to the Public Prosecutor.

10. Messrs Damaru and Gitua contend that under s. 160 (2) Constitution, the Supreme Court is empowered to impose punishment for contempt. Under s. 163 (2) Constitution, the National Court is empowered to impose punishment for contempt. The Rules promulgated by the Courts pursuant to s. 184 Constitution provide for the prosecution of the offence of contempt. Order 14 Division 6 National Court Rules provides for the exclusive procedure for prosecution of contempt proceedings in the National Court. Under that Division, the Registrar of Court or a party to the proceeding can initiate contempt proceedings. To suggest that the Public Prosecutor has exclusive right to prosecute is to deny this long established procedure in this and other comparable jurisdictions. Further, it is contended that there is no provision in s. 4 (1) (c) Public Prosecutor (Office and Functions) Act 1977 which provides for the Public Prosecutor to have exclusive power to deal with contempt of court proceedings.

Consideration

11. The National Court proceeding from which these appeals emanate is a civil proceeding commenced by originating summons pursuant to Order 14 Rules 37-40 National Court Rules. It was not commenced or prosecuted by the Public Prosecutor. These appeals are against findings of guilt of two counts of contempt pursuant to Order 14 Rules 42 (2) and 43 National Court Rules and the sentence imposed. They have been filed as “SCRA” appeals which would usually indicate that they are criminal appeals. There is reference in the notice of appeal for SCRA 12/15 that the appeal lies without leave pursuant to s. 22 (a) and (b) Supreme Court Act. This section concerns criminal appeals and may be availed by a person convicted by the National Court.

12. That these appeals have been purportedly filed as criminal appeals, is to be contrasted with the recent delivered appeal against a sentence imposed as punishment for contempt in the Supreme Court Appeal SCA No 64 of 2013, Emmanuel Mai v. Madang Development Corporation Ltd and Others (2016) unreported, (Injia CJ, Ipang and Lindsay JJ) delivered 20/5/16.

13. In our view, it is necessary to have regard to the nature of the proceeding from which an appeal emanates as well as the decision appealed to determine the form of the appeal to the Supreme Court. We do not comment further as to whether these appeals have been correctly commenced as that question is not before this Court.

14. As to the appellant’s contentions concerning s. 177 (1) (a) Constitution and s. 4 (1) (c) Public Prosecutor (Office and Functions) Act 1977, in our view, as to how they are to be interpreted in regard to a criminal appeal, they only concern a criminal appeal that emanates from a decision that was prosecuted by the Public Prosecutor pursuant to the functions of the Public Prosecutor to control the exercise and performance of the prosecution function pursuant to s. 177 (1) (a) Constitution. An inconsistent and illogical result would occur if it were otherwise. Consequently, this objection of the appellant is dismissed.

Orders

15.

a) The objection of the appellant in regard to the approval of the Attorney General being required by the respondents is upheld and the objection of the appellant in regard to the approval of the Public Prosecutor being required by the respondents is dismissed;

b) The respondents are estopped from contending that they do not require the approval of the Attorney General to their legal representation in this proceeding;

c) The respondents shall pay half of the costs of and incidental to the hearing of the objections of the appellant, to be taxed if not otherwise agreed.

_____________________________________________________________
Young & Williams Lawyers : Lawyers for the Appellant
Jema Lawyers : Lawyers for the First and Second Respondents