The curious decisions of Justice Makail.

By PNG Echo

Justice Derek Hartshorn - one of the three Supreme Court Judges that overturned Justice Makail's decision today
Justice Derek Hartshorn – one of the three Supreme Court Judges that overturned Justice Makail’s decision today

When earlier today, a three-man bench of the Supreme Court unanimously overturned a National Court decision by Justice Colin Makail to join Police officers Gitua and Damaru to the judicial review of Chief Magistrate, Nerrie Eliakim’s decision to grant an arrest warrant against Prime Minister Peter O’Neill, in their judgment they raised a very good question.

 

…that a police officer wishes to execute an arrest warrant against the wishes or orders of the Police Commissioner raises issues as to why that Police Officer is of that view and believes he has such a particular interest in executing the warrant that he seeks court enforcement, against the position taken by the Police Commissioner.

Why do these maverick police officers think they can go over the head of their boss and appeal directly to the courts? Could it have something to do with their success when Justice Makail is the sitting judge – buoying them: encouraging their rogue tendencies?

Well…in journalism, we consider once to be an isolated incident, two times a coincidence but have it happen three times, and that’s a trend.

There are four instances that I’d like to highlight – I’ve called them ‘The curious decisions of Justice Makail’. There may be more than four, I may have missed some – if I have feel free to point them out.

Supreme Court says – noooo.

Justices of the Supreme and National Courts
Justices of the Supreme and National Courts

We’ve already looked briefly at yesterday’s Supreme Court decision that found that Justice Makail was wrong and had fallen into error when finding for Damaru and Gitua. His judgment was quashed.

And it’s not the first time lately, is it?

Back in July, the Supreme Court also set aside Makail’s decision in the National Court that dismissed Attorney General Ano Pala’s petition.  Makail said Pala had no standing to bring proceedings challenging the validity of an arrest warrant until after he was arrested.

Justice Makail, that’s ridiculous!

There would be no point in trying to stop the arrest if it had already happened, now would there? That’s shouldn’t be too hard for a Justice of the PNG courts to understand, should it?

Luckily, the Supreme Court judges did not have the same conceptual deficit and quashed the arrest also commenting that:

None of the grounds for considering the arrest referred to…could reasonably have been believed to justify the arrest of the applicant.

The police officer who had had the arrest warrant sworn out was ….drum roll…wait for it…Matthew Damaru.

Is Justice Makail so mesmerised by Damaru that he cannot see what other Judges clearly can?

Seems the Supreme Court doesn’t think much of his judgments and I must say I find them …well…curious too.

A trip down memory lane – two more (but who’s counting?)

Sam Koim - playing for time?
Sam Koim – playing for time?

Cast your minds back to March to the time after Sam Koim took out a full-page advertisement in the newspaper allegedly in contempt of a court order stopping him talking to the press.

In the National Court, when this and Koim’s substantive case concerning the status of Task Force Sweep was up for mention, Justice Makail, on adjourning both, decided that the substantive case should be heard first.

What the…?

Justice Makail seems to have a lot of trouble with sequencing. He’s put the cart before the horse again.

If the contempt is found to be proven and egregious enough then it could (and some would argue ‘should’) have the case thrown out. You don’t need to know the law – you just need to be blessed with a modicum of common sense.

Justice Makail, has done Koim a huge favour, removing one of the obstacles to his case. In the meantime He’s made himself look ridiculous (there’s that word again)– but that doesn’t seem to worry the good Judge as he errs in ways that a layperson who watches “Law and Order’ regularly  wouldn’t.

And it’s for the same faction he subsequently favoured in his error-ridden judgments – in this case Damaru and Gitua’s little mate, Sam Koim.

And ironically, while Makail has no sympathy for the physical harm done to Lawyer Tiffany Twivey, back in April, after being manhandled and held in appalling conditions by policemen acting on behalf of Damaru and Gitua – before she was charged, for Sam Koim’s lack of preparedness he has all the patience in the world.

Even armed with a doctor’s certificate detailing the injuries Twivey had received, Justice Makail, would not entertain her request for a week’s adjournment and gave her just a day saying that the case was of national importance and needed to go ahead. (It was the substantive case of Task Force Sweep).

That it clashed with her appearance in court with her own case was not just serendipity – although it was that too – it was just too convenient for Koim to think could be anything but contrived.  With the action of his mates, Damaru and Gitua, Koim avoided the witness stand – and continues to do so.

Ironically, at the same time, Justice Makail agreed to adjourn the case on the request of Sam Koim because Koim was not prepared.

NOT PREPARED?

This is possibly the most important case of his life – and he wasn’t prepared?  How much time does he need?

Half a year, apparently.

Since that day, Justice Makail has entertained Koim’s requests for adjournments another three times that I’ve counted. – with Koim still making all sorts of specious excuses about why he’s not prepared – most involving his representation and Justice Makail buying them all and indulging him.

The case is currently listed for a ‘status hearing’ on 5 October. Why? Why isn’t the case just going to trial?

Justice Makail agreed to give Twivey one day’s adjournment but has given Koim 6 months. Does that sound balanced to you?

Makes you wonder what Koim is playing at and why Makail is facilitating it, doesn’t it?

Playing for time

Sam Koim leaves the Waigani court - with his illegal counsel
Sam Koim leaves the Waigani court – with his illegal counsel

The truth of the matter is that the substantive case was ready to be heard back in April. All the affidavits have been filed – the evidence has been collected and distributed – all neatly in ring binders.

Koim’s been dragging out this case. Why?

October 20th is the date when all public servants contesting the election have to resign, isn’t it?  Hands up who thinks Koim will throw his hat in the ring? All of you? Oh, OK.

It’s not long until then, is it?

Supposing Koim can hold off this case until then, he can resign from his position (a bit of a joke, under the circumstances -but stay with me here) – he then tells the court that, not being the Chairman of Task Force Sweep, he doesn’t have any standing in the case anymore. He withdraws and the case collapses.

What a great outcome for Koim that would be!

Because, there is nothing surer than Koim will not step down from the witness stand smelling of roses if Twivey can get him in there to be cross-examined.  Makail is thwarting that by granting all the adjournments.

I think Koim has an urgent need to avoid that witness stand, at any cost.   I mean, if he’s going to stand for election, that’s not what he wants his constituents to remember – the day, with his hand on the Bible, that he was forced to tell the truth, the whole truth and nothing but the truth – so help him, God. The day his halo may have slipped and be choking him.

Mind you, with Makail hearing the case, I doubt that Koim would lose, precedents suggest that – but that’s OK, his judgment is likely to be overturned on appeal (those precedents again)

Now, I may be completely barking up the wrong tree, but just in case, and, as you’ve said, Justice Makail, this is a case of National importance, so be as punitive with Koim as you were with Twivey. Give him a day. Start hearing the substantive matter on October 6.

Waddyasay, hey?

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5 thoughts on “The curious decisions of Justice Makail.

  1. Me thinks, as you said, a trend is a trend. You know trends form habits or intentions inform trends….Dr, you are Scottish are ya? The thing is all judicial outcomes should be law based. SC left it in no doubt yesterday that the man showed a high level of incompetence even by non lawyer standards. You did not mention the fellow’s part in latest clown act…he was one of the trio that unilaterally issued a ‘order’ forcing Parliament to adjourn for 7 days in breach of their own first questionable order directing Parliament to meet when it stood adjourned. The O’Neill government treated is as just that – a circus act – by complying. Yep, you wrote of it, my comment here, others will talk about it – unfortunately that is what some court cases have become….circus shows starring clowns!

      • That’s close enough…and you have done a good job of uncovering details of a few corrupt deals, am wondering when we’d know the truth about who is funding Koim’s and rouge cops’ expensive trips in and out of the courts?

  2. Koim’s application for judicial review was commenced in July 2014. As it is now more than two years since it commenced, it is a sad reflection on not just Mikail but the whole judiciary, especially the Chief Justice, that this case has been allowed to drag on for so long.

    Koim;s credibility is gone and it is time his silly supporters woke up to themselves. To take some words from Monty Python’s Life of Brian: “He’s not the Messiah. He’s just a very naughty boy”!

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