POST ANALYSIS ON PM'S LAWYER'S ARREST

by BRYAN KRAMER

On Monday 11th April 2016 Members of the National Fraud and Anti-corruption Directorate charged the Prime Minister's Lawyer Ms Tiffany Twivey for one count of allegedly attempting to pervert justice.

It is a criminal offence prescribed or defined under Section 136 of the Criminal Code. The provision or section is expressed in the following terms:

136 ATTEMPTING TO PERVERT JUSTICE.

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

The key elements to establish a person is guilty of attempting to prevent justice (1) they attempted -put a plan in action (2) with criminal intent (3) to obstruct; pervert or defeat (4) the course or administration of justice.

Each and every element must be proven to the criminal standard off prove, being beyond reasonable doubt. In other words after considering the evidence and facts there can be no doubt in the Judge's mind the Accused committed the offence.

So what happens when an Accused person is arrested?

They are taken into custody and questioned in relation to the allegations and evidence submitted against them. They will be read their rights - to have their lawyer, family member or friend present. They will also be told they have the right to remain silent and anything they do say maybe used against them. Following the interview Police will document the interview, type out questions asked and Accused response (if any). Police will then formally lay charges- informing the person they have been charged making reference to the specific offence (criminal code) They will be processed (charge sheet completed) and detained in the lock up.

After laying formal charges and depending on the seriousness of the offence Police Station Commander or Commissioned officer may exercise their discretion to release the Accused on bail. The more high profile the Accused the greater chance of being granted bail on account they can be easily located and more importantly not a threat to the welfare of the public or themselves. If Police refuse bail the Accused may engage a lawyer to apply for bail before the District Court or be forced to wait until they are brought before the Court and make a request for bail in person.

Serious crimes like robbery, stealing, break and enter involving firearms or murder rape etc - bail may only be granted by the National or Supreme Court.

In this case perverting the course of justice is not included therefore the arresting Officer exercised his discretion to grant Twivey K1,000 bail.

When a person is charged the arresting officer is referred to as the "Informant" or person informing the Court. They will file the appropriate form statement of charge also referred to the as "Information" It will be attached with "Statement of Facts" A brief and concise explanation of the facts that the arresting officer relies on.

Part 2 of this article will discuss the circumstances (statement of facts) that lead to Twivey's arrest - the criminal process that will follow - committal proceedings in the District Court followed by a trial in the National Court and finally the Appeal process in the Supreme Court. We will also review the response by Ms Twivey following her arrest.

 Ms Twivey was charged by members of the Fraud Squda for one count of allegedly attempting to pervert justice.

Part 1 defined the offence in accordance with the law and explained the process of arrest, laying charges and right to bail. Part 2 will review the circumstances that led to her arrest.

Back ground facts.

On 22 July 2015 Deputy Director for National Fraud & Anti-corruption Directorate Timothy Gitua filed an application (request) before the District Court for a warrant of arrest against Secretary of Treasury Diari Vele. The warrant (an Order of the Court) was to effect Vele's arrest on the charge of Official Corruption.

The charge relates to the alleged illegal payment of K50 million to an Israeli Company, LR Group for the purchase of two Diesel Turbine Power Generators. It was alleged the payment was made at the direction of Vele without following the due process.

Official Corruption is defined in part under Section 87 of the Criminal Code as a person employed in the public service or holder of any public office who corruptly asks, receives or obtains - any property or benefit for himself or any other person on account of any thing done by him in the discharge of the duties of his office - is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

Subsection (2) of section 87 states a person shall not be arrested for the offence of Official Corruption without first obtaining a warrant

The key elements to establish official corruption is
1) the Accused person is employed in the public service or holds public office.
2) they corruptly
3) asked received or obtained
4) any property or benefit (includes money)
5) for himself or another (any other person or company)
6) it was done in the discharge of their duties.

In this case Vele Secretary of Treasury (employed as a public servant- element 1 confirmed) allegedly did direct the Deputy Treasury to facilitate the payment of K50 million (the direction was a request (asked) element 3 confirmed) .It was done in the discharge of his duties - element 6 confirmed. K50 million being the benefit-element 4 confirmed. Paid to LR Group (the benefit of another - element 5 confirmed) for the purchase of two turbine generators without following due process (corruptly obtained - element 2 yet to be confirmed).

The essential or key element to prove or establish the offence of Official Corruption is the transaction was "Corrupt."

There is no question it failed follow the strict mandatory
process prescribed under the Finance Management Act making it unlawful however failing to follow due process does not necessarily mean it is corrupt.

The key issue is whether transaction was made in good faith (fair). If it is confirmed the transaction was inflated or the payment was made solely to benefit LR Group then the element of "corruption" may be established. From the findings of my own research in my opinion the whole transaction smacks of dishonesty - I will discuss why in a later article.

Back to the central issue, before Members of the Fraud Squad could arrest Vele under Section 87 (Official Corruption) they first had to obtain a warrant of arrest pursuant to or in accordance with Subsection 2.

Had Fraud effected Vele's arrest without obtaining a warrant then it would have breached Section 87(2) and been deemed unlawful - ultimately leading to the charges against him being dismissed for abuse of process (failing to follow the legal process).

Not every criminal offence require Police to obtain a warrant of arrest to charge someone.

Warrants of arrest are issued by the District Court (lower court). The powers and procedure of the District Court to issue a warrant of arrest is prescribed under the Arrest Act and District Court Act.

The purpose of a warrant of arrest is to ensure a person is arrested without delay and to:

1) ensure his appearance in court - example if a person is out on bail and fails to appear for his hearings; or

2) prevent the person from carrying out a planned offence or repeating or committing any further offence - a warrant is necessary to impose Police ensure his immediate arrest.

3) To preserve the safety or welfare of members of the public or of himself (e.g. he is a danger to the public and his immediate arrest is necessary.

Before a District Magistrate will grant or issue a warrant of arrest it will first review the information submitted by the officer applying for it - to ensure it is sufficient to warrant the person's arrest. The information will be submitted by affidavit (sworn statement) providing a summary of evidence and information establishing the reasonable grounds for a warrant. In this case the law (Section 87(2) requires a warrant be issued making the warrant mandatory in accordance to law.

A warrant will typically be a one page document. It will state the name of the Accused and the offence he or she is alleged to have committed or about to commit. It will also include short information on which it is founded.

It will order the police officer or those to whom it is directed to apprehend the Accused and to bring him/her before a Court to answer to the information and to be further dealt with according to law.

The Warrant of arrest issued against the Prime Minister in relation to Paraka issue was issued in the following terms:

Form 1
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Arrest Act 1977

WARRANT FOR ARREST

To:
Chief Inspector (a) Timothy Gitua of National Fraud Squad
(b) Officer in charge of police at [sic]
(c) All officers and members of the Police Force

WHEREAS on the Information of Chief Inspector Timothy Gitua of National Fraud Squad

Dated June, 2014 is considered necessary by this court to arrest Hon Peter O'Neill, MP of Pangia Village, Ialibu, Southern Highlands Province.

(a) has committed an offence in Papua New Guinea; and
(b) his arrest is necessary

[ X ] To ensure his appearance in court to answer to the offence charge; or

[....] To prevent the continuation or repetition of the offence or the commission of a further offence; or

[....] To preserve the safety or welfare of members of the public or of him,

In respect of

"Hon Peter O'Neill, MP and Prime Minister of Papua New Guinea, being an holder of a Public Office, charged with the performance of his duty virtue of his office, did corruptly direct to obtain a monetary benefit for Paul Paraka Lawyers in the discharge of the duties of his office as the Prime Minister."

YOU ARE THEREFORE ORDERED to arrest the above named Hon Peter O'Neill MP

And bring him before the court to answer to the said Information and be further dealt with according to law.

Dated at Waigani the 12th day of June, 2014.

........ [signed] ........
Magistrate
District Court

*Place "X" in appropriate square.
** This form is not for use in proceedings in Local Court.

//.....

I understand the warrant of arrest issued against Dairi Vele was issued in similar terms where the information relates to alleged illegal payment of K50 million to an Israeli Company, LR Group for the purchase of two Diesel Turbine Power Generators.

So what happens if a person named or directed to effect a warrant of arrest fails or refuses to execute it? (arrest the Accused).

Police have Constitutional powers (Section 198) to arrest and charge any person they have reasonable belief have committed or about to commit an offence. These powers also include deciding not to arrest or charge someone. They may also be ordered by senior ranking officer including Commissioner of Police not to effect an arrest.

However when a warrant has been issued by the District Court it becomes an order of the court and must be carried out. If the Officer who applied for the warrant later discovers the evidence he relied on is no longer credible or insufficient he may return to the Court and make an application (request) to withdraw it. Until the District Court sets aside the warrant it remains valid and must be enforced.

If any person who is made aware of the existence of the warrant and intentionally interferes with it from being executed they maybe guilty of contempt of court or charged by Police for attempting to pervert the course of justice.

The former Commissioner of Police Geoffrey Vaki was recently convicted (found guilty) and sentenced to three years hard labour by the Chief Justice for Contempt of Court after he refused to execute the warrant of arrest against the Prime Minister Peter O'Neill. Vaki has appealed his conviction and sentence in the Supreme Court and is currently out on bail pending the determination of his appeal to overturn his conviction.

Part 3 of this article will further discuss the specific issues and events that led to Ms Twivey's arrest and Supreme Court finding against her.

 On 22nd July 2015 Deputy Director of National Fraud & Anti-corruption Directorate Timothy Gitua made an application to the District Court for a warrant of arrest pursuant to Section 87(2) of Criminal Code.

Gitua's application stated his name as the "Informant" and Dairi Vele as the "Respondent"

Giuta was named as the Informant as he is informing the Court by laying (presenting) the information before it. Vele was named as the Respondent on account he would be expected to respond to the allegations of official corruption. Once a person is formally arrested and charged they are named then as the "Defendant" - defending the charges laid against them.

The second page of Gitua's application for a warrant of arrest provided the information in relation to the allegations and summary of facts justifying the request for the warrant.

On the same date District Court granted the warrant of arrest directing Gitua, Commissioner of Police and all other members of the Police Force to arrest Secretary of Treasury Diari Vele and bring him before the court to answer to the said Information (allegations).

On Friday 24th July 2015 I was informed of the existence of the warrant and posted an article headlined "Secretary of Treasury Wanted for Official Corruption."

On morning of 25th July 2015 Vele took the first flight out to Cairns.

On the same day after learning of the existence of the warrant through social media Commissioner of Police Gary Baki directed that Director of Fraud Mathew Damaru and his Deputy Timothy Gitua provide him a brief on Vele's planned arrest.

On 26th July 2015 Baki issued a formal written directive to both Damaru and Gitua to implement the warrant.

On the same day Vele issued a press statement to the media disputing he has gone into hiding, he responded that he was on his way to an official MRDC Board Meeting in Fiji which was to commence at 1pm on 26 July 2015 (Sunday) at the Pearl Resort. However Vele never attended the planned meeting in Fiji and remained in Australia.

On 27th July 2015 Commissioner of Police staged a press conference announcing that he had directed Fraud Squad to implement the warrant immediately. At the same press conference he also announced that he directed the the Acting Deputy Commissioner of Police (Operations) Raphael Haufolo to immediately investigate National Fraud and Anti-corruption Directorate since it was "heavily politicized"

It's alleged that Baki also accused Damaru and Gitua of insubordination and threatened them to be disciplined administratively in obtaining the warrant of arrest.

On 28th July 2015 Damaru issued a written letter to the office of Dairi Vele inviting him to attend an interview at the National Fraud & Anti-corruption headquarters.

On the same date Ms Twivey replied to Damaru's letter on Vele's behalf requesting that the record of interview be deferred to Monday 3 August 2015 as her Client was overseas and would not be able to attend any interview prior to that date.

On 29th July 2015 Twivey wrote to Damaru confirming itnwas agreed that the record of interview of Vele be deferred to 3 August 2015.

However on 30th July 2015 Twivey filed three separate applications before three different courts, District, National and Supreme Court seeking an interim injunction or stay preventing her client's arrest.

The central grounds of her argument being that the warrant of arrest issued against her Client defied the Supreme Court orders in SC 87 proceedings. Those orders prevented Police from arresting or harassing the Prime Minister, including his lawyers and staff. Twivey was trying to make the argument Vele was a staff of the Prime Minister and the investigations into LR Generators involved the Prime Minister and thus breached the Supreme Court Orders. Of course this argument was misconceived and a deliberate misrepresentation of the Supreme Court orders.

Twivey filed an application before the District Court to set aside the warrant. On account the warrant was applied for and issued to Timothy Gitua it is normal practice that any application made before the same court would name the same parties concerned. In this case Gitua stated himself as the Informant and Vele as the Respondent. So Twivey acting on behalf Vele should have prepared her application under the same parties (naming Gitua as the Informant and her client as the Respondent. Further serving Gitua a copy of her application so he may appear before the Court and respond to her clients request to set aside the warrant issued by the District Court at his request.

Instead Twivey filed her application without naming Gitua as a party replacing his him name with the PNG Royal Constabulary (Police Force). She served a copy of the application on Baki's lawyer Sam Bonner.

This allowed her the tactical advantage of dealing directly with Commissioner of Police and his lawyer Sam Bonner who upto know have been supporting her applications on behalf of the Prime Minister Peter O'Neill.

Both Twivey and Bonner appeared before the District Court with signed consent order seeking to stay warrant of arrest against Vele.

Both consented (agreed) to adjourn the hearing of her application and that an interim (temporary) be granted.

Rather then uphold the interest of the Police Force against the Accused in this case Commissioner of Police issued instructions to his lawyer Bonner to agree with Twivey's request.

District Court Magistrate taking into consideration the Commissioner of Police had not taken issue or opposed Twivey's request issued an interim stay until the matter returned to Court on 25th August 2015.

The normal practice is the Court would hear opposing arguments from both parties then make a ruling. In this case both parties agreed - Commissioner of Police and the Accused Criminal.

The next day on 31st July 2015 Damaru said he was shocked to hear that the District Court had issued a stay against the warrant of arrest in the media.

On 3rd August 2015 Twivey Lawyers served a copy of the interim stay order to Gitua. With the order personally served on Gitua they knew he was bound to comply with it.

Twivey failed to inform or name Gitua as party in Vele's application he was never afforded the right to appear and oppose it. Damaru submitted in his affidavit before the Supreme Court proceedings SC87 that he believed Sam Bonner acting for the Police deliberately failed to inform or seek instructions from Damaru or Gitua that there was such an application filed by Twivey on behalf of Dairi Vele seeking to set aside the warrant of arrest.

Damaru also noted that it was unusual for the Commissioner of Police to direct him and his officers to effect the warrant and on the other hand consented (agreed) to stay (stop) of the warrant without their knowledge.

Further Damaru contests since the stay was put in place Commissioner of Police has taken no steps to set aside the consent order.

Part 4 of this article will discuss the ruling of the Supreme Court and its decision to refer both Twivey and Bonner to the Law Society and their failed appeal.

 On 12th August 2015 Commissioner of Police Gary Baki who as party to SC proceedings SC87 moved (submitted) an application (request) seeking orders that Director of Fraud Mathew Damaru and his Deputy Timothy Gitua be prevented from:

1) engaging Jema Lawyers or any other lawyers representing them.

2) joining, commencing or defending any court proceedings against the Prime Minister Peter O'Neill.

- without his expressed consent (approval).

So essentially Baki was seeking orders from the Supreme Court to sideline Fraud, the effect of which would have served the interest of his boss Peter O'Neill.

Both Baki and Attorney General Ano Pala filed affidavits in support of Baki's application.

The central grounds or arguments raised by Baki included:

1) He is the Commissioner of Police responsible for command, control and superintendence (having direct overall supervision) of the Police Force.

2) He said since taking office he could not find any record being sent to the Office of Attorney General to brief out (engage) Jema Lawyers to represent Damaru and Gitua in their capacity as police officers in this Court matter.

3) Baki explained Damaru and Gitua are current members of the Police Force and as the rest of the members of the Force are subject to the direct superintendence (supervision) and command of the Police Commissioner when performing duties and responsibilities in their official capacity as Police Officers.

4) He argued Damaru and Gitau can not be engaging private lawyers in their official duties without his consent. He has never given any permission or consent to engage the services of Jema Lawyers to act for them or that they could pursue civil proceedings against the Prime Minister in their official capacity as members of the Police Force.

5) Baki submitted it is a disciplinary offence under the Police Act for any Police Officer to receive any benefit in kind or cash directly or indirectly in the performance of their duties without the Commissioner's consent. Based on their wages Damaru and Gitua can not afford the services of Jema Lawyers including an Australian barrister (lawyer) Greg Egan. They should not be allowed receive the benefit of legal representation services paid or unpaid except with the consent of the Commissioner.

6) Baki claimed he had never been informed by Damaru and Gitua how they were able to engage lawyers including overseas barristers without his knowledge or consent. Such behaviour is promoting insubordination, divisions, break down in and command. He was no considering legal advice to commence disciplinary action against them. He considered the actions as potential serious breach of discipline.

7) Lastly Baki claimed he was never briefed by Damaru and Gitua about the Warrant of Arrest obtained against Dairi Vele and only learned about it through social media. He further claimed that he raised his concerns with Damaru and Gitua by way of minute (internal memo) requesting a full brief but yet to receive a response.

Attorney General (Minister in charge of Justice Department) Ano Pala submitted the following arguments in his affidavit.

1) Under the Attorney General Act 1989 (laws governing office of the Attorney General Office) the Attorney Genera (AG) is the only person who can legally brief out (engage) private lawyers to act on behalf of the State when there is a shortage of capacity within the Office of Solicitor General (SG).

The SG is a legal division under the AG's office that acts for the Government in civil (non-criminal) proceedings.

2) Pala confirmed that in July 2014 he received a request by Task Force Sweep Chairman Sam Koim to brief out Jema Lawyers to act for TFS. However Pala claimed he refused Koim's request to brief out on the basis the Police Department were already represented by a firm of lawyers (Sam Bonner of Bonner Lawyers).

3) Pala explained submitted a letter relating to payment of costs not authority of a brief out. He said he agreed to and only to the payment of fees from ITFC account.

4) Pala stated there is no records held by the Attorney General confirming brief out to Jema Lawyers relating to 30 or so court proceedings arising out of Paraka legal bills saga.

For the above reasons Pala submitted he supported Baki's application.

It is important to note both and Baki and Pala were appointed by O'Neill so it came at no surprise they were aggressively pursuing O'Neill's interest in the matter.

Damaru opposed Baki's application filing his own affidavit in response. Damaru explained the former Commissioner of Police Geoffrey Vaki and including Baki were appointed under controversial circumstances and that he was convinced that Baki's application to remove their lawyers was tainted with bias, ill-will and made in bad-faith.

To support this view Damaru submitted evidence that Supreme Court Justice Higgins allowed them to join as party to the proceedings SC87 in light of their direct involvement in the issue of the arrest warrant against the Prime Minister. At the hearing Commissioner of Police rigorously argued against Damaru and Giua joining claiming it was unnecessary as the Police Force was adequately represented by Commissioner of Police. While Damaru and Gitua objected on the basis the was no real representation to oppose O'Neill. Further they believed the Commissioner of Police had compromised his position and consenting (agreeing) with and aligns with the O'Neill, Marape and others (Paraka). The Court ruled in favour of Damaru and Gitua to allow them to join as a party to adequately represent the interest of the Police Force and assist the Court progress the matter (court proceedings).

Marape later filed an appeal challenging Justice Higgens decision to allow Fraud to join. The three man bench of the SC by majority decision upheld Higgins ruling and dismissed Marape's appeal.

Damaru also submitted evidence in relation to Commissioner's instructions to his lawyer Sam Bonner to consent (agree) to Twivey's application to an adjournment and interim stay (temporary stop order) of the warrant of arrest issued against Secretary of Treasury Dairi Vele. The full details of which was explained in Part 3 of my article.

So after considering all the evidence Justice Kirriwom sitting as a single judge of the Supreme Court (highest Court) made the following ruling and observations.

On the issue of whether to grant interim injunction (temporary prevention or stop order) against the Damaru and Gitua engaging Jema Lawyers or any other lawyers representing them, which includes preventing them from joining or filing, defending any court proceedings without first obtaining the consent of Commissioner:

SC understood the central issue behind Baki's arguments being that he describes Damaru and Gitua as employees of Commissioner of Police and therefore subject to his direction and control.

His honour held the view that the Police Force is not a private organisation that belongs to the Commissioner of Police. Damaru and Gitua are high ranking officers of the PNG Royal Constabulary (Police Force) and employees of the State (People of PNG).

Commissioner is only holding office at the pleasure of the Government of the day and be removed as easily as he is appointed.

The Police Force would not function effectively and efficiently under the Constitution if it operated under the arrangement submitted Baki subjecting individual officers in all their investigative functions. The SC held the view the interim orders sought by Baki is to restrict Daramu and Gitua form performing their investigational functions because every complaint or arrest made or received they must submit a written request seeking the Commissioner's consent before they can proceed to arrest and charge anyone suspected of breaking the laws of the land.

Police becoming named as informants or complainants in the original documents filed in the District Court does not happen by choice but by operation of law under the District Court Act and Police Practice.

His honour noted that as far as he is aware this practice is as old as the legal system itself in this jurisdiction (PNG legal system) and not a new origin.

"Proceedings are never commenced in the name of Police this is why Mr. Bonner and Ms Twivey have made a total blunder when they changed the name of the case and obtained consent order without Mr. Gitua's knowledge" his Honour said.

The Judge went on to state:

"This is where misconception and confusion creeps into the procedure either by ignorance, oversight or by deliberate choice. The latter (deliberate choice) can amount to flaunting the law with deliberate intent, malice or design to mislead the court or promote ulterior (hidden) motive or illicit (illegal) purpose."

"In this case the lawyers Fourth Respondent (Baki) Sam Bonner and First Respondent (O'Neill) Ms Twivey could be guilty of collusion in perverting the course of justice where they filed an application in the District Court and signed a consent judgement setting aside a warrant of arrest of Dairi Vele without notifying Detective Chief Inspector Gitua who was the complainant in the proceedings before the District Court.... And they did so by removing Timothy Gitua's name as the Informant and replaced it with Royal PNG Constabulary."

"Is this the standard practice of the Police Force? No it is not. And Mr. Sam Bonner someone who spent so many years with Police Force as career policeman and lawyer ought [to] know this very well. This has been the way it has always been and that was the only way to deal with this matter.

"By deliberately changing the name of the case half way through the proceeding, actions of these very experienced and senior lawyers can only be described as deliberate act by them to avoid opposition from the Sixth and Seventh Respondents" (Damaru & Gitua)

"I am given no choice but to refer both to the Lawyers Statutory Committee for disciplinary action. As how the Sixth and Seventh Respondents (Damaru & Gitua) wish to take this matter further I leave to them."

In the end the Supreme Court Judge refused Baki's application his view was that it was not in the best interest of justice and public policy to deny Damaru and Gitua legal representation. He concluded Commissioner of Police is not coming to Court with clean hands (genuine intentions).

Given the complexity of the issues I've been forced to extend this article to Part 5 and possibly Part 6.

In Part 5 will discuss the Twivey and Bonner's failed bid to overturn the Justice Kirriwom's decision to refer them including the Commissioner of Police Gary Baki's criminal liability if any in relation to this issue.