Koim: It’s crying time again – Case dismissed

By PNG Echo

13343079_1719514234955147_3481714574178322515_nJust hours ago, the National Court of Papua New Guinea handed down its decision on the Judicial Review of the disbanding of the Taskforce Sweep brought by Chairman Sam Koim.

The court found for the Prime Minister, NEC, Attorney General and Independent State of Papua New Guinea, represented by Mal Varitimos, Tiffany Twivey-Nonggorr and Nicolas Tame, and against Koim on all counts except the defense objection as to the competency of the plaintiff’s proceedings.

As the judgment found that the court did not have power to review the NEC’s decision to disband the agency and that the plaintiff had no standing to commence the proceedings even if it had, the objection as to the competency of the proceedings became redundant, anyway.

Koim’s arguments to the contrary were dismissed as not being established.

Makail’s summary

The proceedings will be dismissed on the grounds that first, the decisions in question are not reviewable. Secondly, even if they were, the requirements of natural justice did not apply. Thirdly, bias and bad faith have not been established, so as, unreasonableness. A further ground for dismissal is that the plaintiff lacked requisite standing to commence these proceedings. The objection to the competency of these proceedings was dismissed.

Writer’s comment

Justice Makail is a judge that has created the perception that he is firmly on the side of Koim and his cronies by the number of cases where he has found for them that have been overturned on appeal. Yet, he could not find any sound legal reasons to accept Koim’s arguments for his continued employment and the continuation of Taskforce Sweep.

The executive government is the body mandated to make these sort of decisions, not the judiciary, as Justice Makail so rightly pointed out in his judgment.

In my opinion, Sam Koim was promoted to a position way above his competency level – and I have written about the reasons for my opinion on many occasions. He should have accepted the decision to disband the agency and do away with his services with grace and dignity – not taken up the court’s time in a matter that should never have been before it.  He has been pandering to his own bruised ego like a jilted cuckold.

 

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Koim gets trial date

By PNG Echo.

Koim back in court on 20 October, minus his illegal counsel
Koim back in court on 20 October, minus his illegal counsel

The substantive case on the future of Task Force Sweep has, after six months of delays, received a trial date of 20th October at 1.30 pm.

The date was fixed on Wednesday (Oct 5) in the Waigani Court – Justice Colin Makail presiding.

With this case having been trial-ready since 13 April, and with Justice Makail, up to this point, entertaining adjournment after adjournment requested by Sam Koim, on Wednesday the Judge set aside all motions that would further delay the trial and it will go ahead as per the stated schedule.

After this matter is settled, Koim will then face the contempt charges associated with the publicising of the results of Task Force Sweeps investigations – in direct contravention of a court order.

Maybe on the 20th October PNG will, at last, get the answers it craves (or details officially confirmed) of matters of national importance such as who’s been funding Koim and whether the payments are legitimate or just more corruption?

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Justice Colin Makail errs (again)

By PNG Echo

CourtA three-man bench of the Supreme Court, earlier today, 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.

Justices Kandakasi, Hartshorn and Kassman  found that Justice Makail was wrong and had fallen into error in granting Damaru and Gitua, as members of the police force, leave to act outside of their chain of command in joining them, independently, to the judicial review.

In their judgment they affirmed that:

The proper person to be a party to a judicial review proceeding on behalf of the Police Force …is the Police Commissioner.

And the Police Commissioner was already a party to these proceeding.

The bench were troubled by Mr Damaru’s admission that his and the interests of the Police Commissioner were different ”

because he wanted the arrest warrant executed but the Police Commissioner did not.

The learned judges gave their binding legal opinion that a police officer is not entitled to execute a warrant against the wishes of the Police Commissioner by way of a court proceeding.

Clearly, this bench of the Supreme Court would not entertain the courts being used in this manner by maverick police officers.

They went on:

Further, 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.

I have a theory on that: could it be that their successes in the courts of Justice Colin Makail have led them into that error – that his errors have been instrumental in fostering the belief that the zealotry and insubordination of these officers is a reasoned response? The Supreme Court begs to differ.

Stay tuned: tomorrow, I will explore that theory further

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Lawyers’ appeal fails

By PNG Echo.

Tiffany Twivey leaving the court with Barrister Mal Varitimos
Tiffany Twivey leaving the court with Barrister Mal Varitimos

A three-man bench of the Supreme Court today refused the application of Lawyers Tiffany Twivey and Sam Bonner to have their referral to the Law Society quashed and so the referral stands and will go ahead.

The decision to refuse the appeal was a majority decision (2:1) of Justices Makail and Sawong with Hartshorn dissenting.

The referral to the Law Society for disciplinary action was initiated by Justice Kirriwom and announced in court during the hearing of the case of the arrest warrant of Secretary of Treasury Dairi Vele and the replacement of two respondents without, what the learned Judge considered, sufficient notice. The complaint/order was later followed up by His Honour by letter to the Society.

Lawyers for Twivey and Bonner argued that the pair had not been accorded natural justice or procedural fairness by the court before the referral. They were given no opportunity to respond to the allegations.

Sam Bonner - referred too
Sam Bonner – referred too

Twivey and Bonner contended that, as such, the ensuing plethora of publicity in the mainstream and online press (that had only one side of the story to report -Kirriwom Js) had tarnished their reputations’ and impacted negatively on their standing in both the eyes of the public and their clients and they stood to lose personally, substantially and professionally.

The cases were not decided on any wrongodoing on the part of the two lawyers but on a procedural consideration of whether the referral was a court order or a complaint.

Two judges decided that the referral was not a court order and that they had no jurisdiction to hear the appeal and indeed may be usurping the role of the Society were they to.

It was considered that all the grievances of the lawyers could be aired when the Society considered the complaint.

Justice Derek Hartshorn - dissenting
Justice Derek Hartshorn – dissenting

Hartshorn’s dissent arose from the fact that he considered that the referral was a court order and he agreed that natural justice had not taken place and furthermore was of the opinion that, under the circumstances, if the complaint was subsequently heard by the Law Society, justice would not be served as the nature of the referral had already done the damage regardless of the eventual outcome. He wanted the case quashed.

So, in this matter, the Supreme Court of Papua New Guinea has passed the buck to the Law Society with but a single prick of conscience from the dissenting judge for the potential damage to reputations that has already been caused.

I guess it’s medical doctors not Judges that take the Hippocratic Oath – “First do no harm.”

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Koim in court

By PNG Echo

PMs - two motions filed claiming Koim's contempt
PMs – two motions filed claiming Koim’s contempt

In the Waigani Courts, yesterday, (Tuesday, 3 March 2016) a date was set for the substantive hearing into the disbanding of Task Force Sweep, but not before lawyers for the Prime Minister filed two motions against the Task Force Sweep (TFS) Chairman Sam Koim.

Both motions arose out of the alleged contempt committed by Koim when he breached a 2014 court order by extensively publishing subjudice material. The 2014 court order restrained Koim from discussing the TFS case in any media forum.

The Prime Minister’s first motion asked that the whole proceedings be summarily dismissed due to Koim’s breach of the court orders, while the other was a Notice of Motion charging Koim with contempt and asking that he be found guilty and punished by imprisonment.

Koim took out a full-page, paid adb-vertisement discussing the case in direct contravention of a court order
Koim took out a full-page, paid advertisement in this publication discussing the case in direct contravention of a court order

Koim is alleged to have used both social and mainstream media to commit his contempt – including holding a press conference, televised on EMTV (later linked to youtube) where he handed out written statements.  Koim also paid to have published a full-page advertisement in The National newspaper discussing and disseminating information about Task Force Sweep as well as publishing in social media in direct contravention of the court order.

Sam Koim. failed to purge contempt by continuing with contemptuos publication.
Sam Koim. failed to purge contempt by continuing with contemptuos publication.

Lawyers for the Prime Minister said that the decision to push ahead with the charges (after an earlier ruling that disallowed their ‘show cause’ motion as technically incompetent) was predicated on the failure of Koim to purge his contempt by continuing to publish, on Facebook and Twitter, in breach of the order,  after 19 December when the Prime Minister first raised the allegations.

The hearing for the motions was set down for 10 March – with the substantive hearing adjourned until next month (April 13) – these dates were set by the judge in spite of, and in contradiction of, his earlier ruling (same proceedings), denying the same request from Counsel for the Prime Minister.

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Overruled and overturned – The courts previous findings for Damaru and Gitua.

By PNG Echo

Appellant: Minister for Finance - James Marape
Appellant: Minister for Finance – James Marape

Rulings handed down today today by a full bench of the Supreme Court (Justices Hartshorn, Sawong and Makail) have dismissed an objection by Police Officers Gitua and Damaru to an appeal by Minister James Marape arising from a National Court decision and have, furthermore, reversed a ruling of single-sitting Supreme Court Judge, Justice Kirriwom, thus upholding the appeal of Prime Minister Peter O’Neill, Minister James Marape and the Independent State of Papua New Guinea.

In the first-mentioned matter, an appeal had been lodged against the National Court’s ruling that refused an application by government and police lawyers for interlocutory orders by consent, restraining police from arresting Minister Marape and the Prime Minister.

Messrs Gitua and Damaru were objecting to the competency of the appeal.

A full bench of the Supreme Court ruled:

In our view all of the objections of the objectors’ [Damaru and Gitua] do not question this court’s jurisdiction to hear the appeal and do not go to the competency of the appeal but rather questions as to the merits of the appeal. Consequently the objection to competency should be dismissed.

In the second matter, the appeal was against Justice Kirriwom’s ruling that police officer’s Gitua and Damaru should be allowed to choose and engage their preferred counsel – in this case, Jema Lawyers and barrister Greg Egan.

Instructions from Attorney General Ano Pala needed to engage lawyers on behalf of the state and state employees.
Instructions from Attorney General Ano Pala needed to engage lawyers on behalf of the state and state employees.

The court determined that as police officers, Damaru and Gitua were required to obtain approval from the Attorney General to engage lawyers to act on their behalf in this proceeding and that Justice Kirriwom had erred in drawing the opposing conclusion.

An interim order restraining the police officers from engaging or instructing lawyers was granted and it was ordered that each party (both the Attorney General and the police officers) make the applications and appointments necessary for legal representation of Damaru and Gitua in this matter.

In both cases costs were awarded against Damaru and Gitua.

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PM to charge Koim with contempt after ‘Show Cause’ motion dismissed.

By PNG Echo

Lawyers representing the Prime Minister
Lawyers representing the Prime Minister

A motion brought before the National Court by the Prime Minister for Sam Koim, to ‘show cause why he should not be charged with contempt’ for allegedly disobeying a court order restraining him discussing matters before the courts in regards to Task Force Sweep has been dismissed by Justice Colin Makail today.

The learned Judge said that there were only two ways to proceed with contempt charges and that was for the courts to bring the charges or for one party to bring the charges against another – to ask a party to ‘show cause’ was a procedural error and Justice Makail ruled the motion as “incompetent” and dismissed it.

However, the Judge advised that it was open for the Prime Minister and the NEC to charge Koim with contempt and lawyer for the Prime Minister, Ms Tiffany Twivey, advised, in open court this morning, (Tuesday 23 Feb.) the intention of her client to do so.

Justice Makail, in making his ruling, dismissed the case purely on a procedural hiccough without considering the merits of the contempt allegations.

It is expected that the charges will be filed within the next week.

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Supreme Court says “yes” to Prime Minister

By PNG Echo

Justice Bernard Sakora
Justice Bernard Sakora

The Supreme Court, presided over by Justice Bernard Sakora, has today (23 February 2016) granted both appeals brought before the court by Prime Minister, Peter O’Neill.

The Prime Minister, represented by Twivey Lawyers and Mal Varitimos QC, had firstly sought leave to appeal the decision of Justice Colin Makail in the National Court where previously, Justice Makail had granted leave for police officers, Timothy Gitua and Matthew Damaru, to join as parties to National Court judicial review proceedings challenging the decision of the Chief Magistrate, Ms Nerrie Eliakim, to issue an arrest warrant against the Prime Minister.

They were granted leave to appeal the joining by the learned Judge.

Following on from his decision to grant this leave, Justice Sakora ordered a stay on the hearing of the issue of the arrest warrant until the appeal against the joining of the parties was settled.

The learned Judge delivered his decision verbally in court and instructed the lawyers to take out orders immediately to effect the stay on the National Court proceedings.

Justice Sakora’s written decision will be available tomorrow and it is expected that, on receiving the orders, Justice Makail will vacate the court date set aside of March 3 when the judicial review on the Prime Minister’s arrest warrant was, just this morning, set down for a mention.

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Task Force Sweep’s integrity compromised.

By PNG Echo

Forced evictions at Paga Hill to make way for developer exonerated for wrongdoing by Task Force Sweep
Forced evictions at Paga Hill to make way for developer exonerated for wrongdoing by Task Force Sweep

The International State Crime Initiative (ISCI) has raised serious questions about the integrity of anti-corruption agency, Task Force Sweep (TFS) and its Chairman, Sam Koim, after, TFS exonerated expatriate businessman Gudmundur Fridriksson and his companies and associates who are the developers of the controversial Paga Hill estate.

In a press statement accompanying a 57-page report released today, Dr Kristian Laslett, who heads ISCI’s Papua New Guinea Research, claims that errors in the Task Force Sweep assessment are “seismic” and “can’t be put down to mere ignorance or inexperience.”

In October 2012, ISCI lodged a complaint with Task Force Sweep containing serious allegations about the developer. Nevertheless, Dr Laslett writes:

Sweep failed to make any substantive response for 19 months then during June and July of 2014 Mr Fridriksson personally petitioned Task-Force Sweep to ‘correct’ Public Accounts Committee and Auditor General’s Office findings.

Four months later Sweep released a ten page case-assessment exonerating Mr Fridriksson and certain associated corporate entities.

The assessment contains “startling errors of fact, law and method,” claims the ISCI who goes on further to accuse Task Force Sweep of entirely ignoring its own basic practice and procedure, notwithstanding that “Task-Force Sweep is highly literate in investigative procedure and the law.”

The ISCI report highlights a “lack of rigour” in the case-assessment of TFS which it says

  • Is tainted by irregular practices
  • Misrepresented the Public Finances (Management) Act
  • Failed to consider the question of criminal liability
  • jeopardized whistleblowers.

ISCI is calling on the government of Papua New Guinea to launch an arms-length, independent probe into Task-Force Sweep’s investigation of Mr Fridriksson and other associated entities.

ISCI suggests that any uncovering of systemic failures within Task Force Sweep should lead to a broader evaluation of Task Force Sweep’s casework, managerial processes and financial accounting practices.

The ISCI recommends that the proposed Independent Commission Against Corruption be introduced at the earliest possible opportunity.

Task Force Sweep Chairman - not yet responded
Task Force Sweep Chairman – not yet responded

Task Force Sweep Chairman, Sam Koim, has been contacted to give his response to the report but although having read the messages has, so far, failed to respond. PNG Echo will publish his response should it arrive and whenever it arrives.

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Ombudsman’s Powers to be decided by Supreme Court.

By PNG Echo

Plaintiff: PM, O'Neill.  Application upheld
Plaintiff: PM, O’Neill. Application upheld

Plaintiffs, Prime Minister, Peter O’Neill and Acting Secretary of Treasury, Mr Dairi Vele had their application to the National Court upheld today at Waigani.

The application was pertaining to a loan acquired by government to purchase Oilsearch shares – a situation that gave rise to certain directions by the defendants, the Ombudsman’s Commission (OC ) whose constitutionality remain in dispute.

Earlier this year, proceedings were instigated for a judicial review of the Ombudsman Commission directions to stop payments on said loan

The National Court, at that time, stayed the directions of the OC in order that repayments were able to be met and the government’s obligations under the loan honoured. This was pending an application for a judicial review.

Plaintiff, Acting Secretary of Treasury, Dairi Vele
Plaintiff, Acting Secretary of Treasury, Dairi Vele

Today, the judicial review was stayed in its entirety and all the questions asked by the lawyers for the plaintiffs referred to the Supreme Court for interpretation.

Amongst the matters to be decided by the Supreme Court are whether the OC has legal authority, power and jurisdiction to issue a notice of direction to government, whether failure to comply with such a notice constitutes misconduct in office and whether the OC has the power, authority and jurisdiction to impose penalties

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