Tuesday, 25 April 2017

The Court to rule on Prime Minister Hon. Peter O'Neill's Warrant of Arrest on Friday (28th April, 2017)

(Kramer Report - Facebook)

THE National Court in Waigani will hand down its decision this coming Friday (28/4/17) whether or not to rule in favour of Prime Minister Peter O'Neill and quash (withdraw) the warrant of arrest issued against him by Chief Magistrate of District Court or confirm the warrant is in order, directing his immediate arrest.

The judicial review proceedings in National Court were filed by former Commissioner of Police Geoffrey Vaki in July 2014.

Vaki filed the proceedings after the Chief Magistrate rejected his application to set aside the warrant in relation to allegations against O'Neill over official corruption charges connected to Paraka Lawyers fraudulent payment of K71.8 million in 2012.
             Due to the rather complex and convoluted issues surrounding the warrant and effort O'Neill has gone to evade arrest including hiding in Parliament, the sacking of a Police Commissioner, Deputy Police Commissioner, Attorney General, disbanding Task Force Sweep, the sidelining of Police lawyer, Solicitor General (State Lawyer), disbanding Fraud and even arresting of Fraud officers to name a few, I will avoid explaining the genesis (beginning) of the whole issue in this article.

So what happens if the National Court rules against O'Neill on Friday?

It will mean the stay (stop order) preventing police from arresting O'Neill in relation to the Paraka scandal will no longer be in effect. Therefore the Commissioner of Police, Gary Baki including every officer in the Police Force are required to immediately effect O'Neill's arrest.
Now on the assumption the National Court rules against O'Neill will Baki order his immediate arrest?
In my view the short answer is NO.

It is important to note Gary Baki was appointed by O'Neill and I believe he will serve him/his Government. 
So then what will likely happen following the Court's ruling?
O'Neill will instruct his lawyers to file an urgent appeal in the Supreme Court challenging the decision of the National Court and seeking a further stay until the Supreme Court hears his substantive (main) appeal.

I suspect Baki will then claim on account O'Neill has filed an appeal the matter is back before the court therefore it would be appropriate to wait for the court to determine the matter.

Every person is afforded a constitutional right to seek redress in a court of law this includes the right to request for a higher court to review any lower court's decision.

However, to avoid persons abusing this process as an excuse to drag proceedings on for years the Courts have put place strict procedures to consider whether a case is genuine and should be heard or a waste of the courts time and dismissed.
This process involves a party first filing an application for leave (permission) before higher court to demonstrate they have an arguable (strong) case to justify the higher court hearing it.
Supreme Court leave applications for appeal are heard by a single judge to consider whether National Court judge may have made an error in considering facts/evidence or misinterpretation/application of the law in arriving at its decision.
If the Supreme Court Judge believes there is an arguable case then it will grant leave (permission) for an appeal or review before full bench of the Supreme Court (3 or more judges).

In this case O'Neill lawyers at the same hearing would ask the Supreme Court judge to also stay the National Court ruling releasing the warrant pending the full bench of Supreme Court hearing the substantive (main) appeal.

So what happens if the Supreme Court judge refuses O'Neill's application for leave to appeal?

He may directly appeal that decision before a three man bench but it means his case will be given little consideration and very slim chances of winning and more importantly he will not receive a stay (stop order) against the warrant released by the National Court.

Now what happens if the Supreme Court Judge grants O'Neill leave?

The Judge will most probably expedite (fast track) the hearing of the appeal giving orders that O'Neill must have his case filed and ready to be heard by a date set by the Court.

Task Force Sweep (TFS) Chairman Sam Koim recently filed a Supreme Court (SC) leave application last month after the National Court ruled against him challenging the National Executive Council decision to disband TFS.

Koim's application was heard by Chief Justice who granted him leave for appeal, staying the National Court ruling pending the ruling of the SC appeal. When handing down his ruling the CJ also expedited Koim's SC hearing on Wednesday, 26th April 2017.

So if the National Court rules against O'Neill on Friday (28/04/17) will he have sufficient grounds or an arguable case to file an appeal?

In my view the short answer is NO.

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