NATIONAL FRAUD & ANTI CORRUPTION DIRECTORATE MOVE IN ON PRIME MINISTERS SUPREME COURT APPEAL.

By BRYAN KRAMER

Supreme Court (SC) on 26th March 2015 upheld an application filed by National Fraud & Anti-corruption Director Mathew Damaru and his Deputy Timothy Gitua granting them leave (permission) to join the Prime Minister Peter O'Neill and Finance Minister James Marape's Supreme Court appeal staying (stopping) their arrest.

Damaru and Gitua were added as sixth and seventh Respondents (parties who are given the right to appear and respond in the proceedings). Marape is named as "Appellant" principle person who filed the SC appeal against an earlier National Court ruling dismissing his case seeking an order of taxation of Paraka bills as well as Prime Minister's application seeking to interim stay preventing police from effecting their arrest.

Five other Respondents (parties) in the Supreme Court proceedings include Prime Minister followed by Attorney General, Ano Pala, Paraka Lawyers, PNG Royal Constabulary (Police) and the State (Govt) represented by State Solicitor.

Damaru and Gitua were represented by McRonald Nale of Jema Lawyers. Nale relied on Supreme Court ruling in PNG Deep Sea Fishing Ltd v. Critten (2010) which held the view that in considering whether a proposed party should be granted leave (permission) to join a proceedings is depended on whether the applicant:
(a) has sufficient interest in the proceedings; and
(b) if joined, is necessary to ensure that the proceedings can be effectively and completely adjudicated upon. (brought to an end).

Nale argued that both Damaru and Gitua are lead investigators in alleged fraudulent payments to Paraka Lawyers. Supreme Court's earlier decision to grant an interim injunctive (stop) order against the arrest of Marape and Prime Minister affects Damaru and Gitua's interest in the criminal investigations and proceedings that were already on foot and under way.

In addition there has been no opposing view in the proceedings where all parties have consented (agreed) to support Marape and Prime Minister's interest. Therefore the interest of justice requires that an opposing view be put forward to the Court for consideration, which Damaru and Gitua will if granted leave to join.

Further Marape, who is Minister responsible for Finance Department had initiated proceedings in National Court which would effectively circumvent (get around) the issues pending determination in the Criminal Courts.

Prime Minister's lawyer argued against Damaru and Gitua's application to join, they relied on recent Supreme Court Reference on Powers of Commissioner of Police where the Court held the view the Commissioner of Police has ultimate power over the Police Force which includes Damaru and Gitua who are members of the Constabulary. Police are already named as a party and Damaru & Gitua had not obtained consent from Commissioner to join.

Justice Higgins sitting as a single Supreme Court judge granted leave to Damaru and Gitua to join. His honour was satisfied that both had sufficient interest in the proceedings and that if joined as a party would assist the Court in dealing with all matters in dispute efficiently.
Damaru and Gitua will now file an application seeking orders to set aside the Supreme Court's earlier ruling preventing police from effecting the arrest of Marape and Prime Minister. They will rely on full bench of Supreme Court chaired by Chief Justice in recent ruling in the case Eremas Wartoto vs State where the Court ruled that civil proceedings should never be invoked to interfere with or injunct the Criminal processes prescribed by law, and that criminal processes should be allowed to run their course.

If successful the Supreme Court may reverse or set aside its earlier ruling of interim injunctive orders preventing National Fraud & Anti-Corruption Directors from effecting Prime Minister and Marape's arrest for their alleged involvement in fraudulent payments of K71.8m to Paraka Lawyers.
On 30th July 2014 the SC granted an interim injunctive order (temporary stop order) against Marape's arrest by Fraud Squad members. At the time Marape relied on evidence submitted Prime Minister, the State Solicitor and Acting Police Commissioner Geoffrey Vaki (as he was then) that there were divisions in the Police Force, and that the Acting Police Commissioner is unable to perform his constitutional duties and functions, which includes commanding and controlling the Police Force, and that he himself has been charged with offences.

Supreme Court was of the view that there was a small justification to grant injunctive order in that there is more than a likelihood that Marape will be subject to an arrest that is unlawful or improper. Court concluded that no citizen of this country, regardless of any position that he may hold, should have to live in fear of such treatment from a supposedly disciplined force. In these circumstances, the Court was satisfied for the above reasons that the balance of convenience favours the interim injunctive orders be granted.

Soon after Marape's successful application the Prime Minister rushed to join the same proceedings seeking the same orders preventing any further arrests planned against him by Fraud & Anti-Corruption Directorate. His lawyers submitted evidence alleging that the Prime Minister including his staff, family members and security detail had been subject to constant harassment and intimidation by rouge members of the Force namely Task Force Sweep including Fraud & Anti-Corruption Directorate. Prime Ministers application and evidence was heard unopposed with all the other parties consenting to it.

However following Supreme Court ruling in Eremas Wartoto vs State the Supreme Court has affirmed the position it is against good order and due administration of justice for civil courts to intervene in criminal cases

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