PETER O'Neill’s lawyer Ms Tiffany Twivey and political publicist Ms Susan Merrell claim the recent arrest of Treasury deputy secretary of Aloysius Hamou was carried out by rogue cops and based on political motives.
National Fraud & Anti-corruption Director, Mathew Damaru, and his deputy, Timothy Gitua, laid formal charges against Mr Hamou last Thursday under Section 92(1) of the Criminal Code (Abuse of Office).
He was charged for his alleged part in the illegal procurement of two turbine generators for K50 million from Israeli company LR Group.
I broke the story on social media on Friday afternoon. An immediate response came from Ms Merrell and Ms Twivey. This was expected on account of their client, Peter O'Neill, allegedly being implicated in the unlawful transaction.
Ms Merrell posted a rather convoluted article in response which was poorly argued and for most part misconceived....
"It is becoming increasingly rare that any of the good citizens of PNG are prepared to go on record openly criticising the shenanigans of Messrs Damaru and Gitua of the PNG Fraud Squad – and there’s much that needs scrutiny."
"For even as the Prime Minister goes to some lengths to enact measures to rein in an ill-disciplined police force, Gitua and Damaru’s insubordination has been sanctioned time and time again by the PNG courts."
"People are frightened – and so they should be – these two senior police officers are now a law unto themselves – vigilantes."
What sanctions have the Court issued against Damaru and Gitua for insubordination? None. Both Supreme and National Courts have supported their applications to-date to join the court proceedings against the Prime Minister.
Are people frightened of Damaru and Gitua?
No, but I suspect Peter O'Neill and others implicated in high level corruption would be "very frightened." Corrupt politicians have reason to be afraid of honest officers who can't be bribed or intimidated about upholding the law.
I understand Ms Twivey may also be afraid, if her client goes down, she may face criminal charges following the recent ruling of the Supreme Court by Judge Kirriwom, expressing the view that Twivey and the then lawyer for Commissioner of Police, Sam Bonner, could be guilty of collusion in perverting the course of justice.
Twivey and Bonner filed an application in the District Court attempting to stay Secretary of Treasury Dairi Vele's arrest. Twivey and Bonner signed a consent form to set aside the warrant of arrest against Vele without notifying the Detective Chief Inspector Gitua who had applied for the warrant.
The contentious issue is that Police normally prosecute the accused and don't turn up to court supporting applications preventing their arrest.
Twivey and Bonner have appealed Kirriwom's findings, including his decision to refer them both to the Law Society to be disciplined. The risk is, should the three-man bench of Supreme Court uphold Justice Kirriwom's ruling, then the question of their guilt will be beyond doubt. What should follow is for Fraud to lay formal charges against the duo on account that perverting the course of justice is a criminal offence.
It is also important to note that Sam Bonner was charged back in July 2014 for stealing, conspiracy to defraud and money laundering. The charges related to allegations that he was involved in the Paraka legal corruption scandal having received illegal funds on behalf of the law firm; the same funds the prime minister is facing criminal prosecution over.
One has to ask how is it that Bonner, an accused lawyer, ended up being engaged by the Police Department to represent its highest ranking officer and support all those accused - including the prime minister - instead of siding with the Police officers who were upholding the law.
"….disgraceful intimidation of Mr Aloysius Hamou."
So what evidence did Merrell provide to support Fraud disgracefully intimidating Mr Hamou.
None, other than that they fronted up outside Mr Hamou’s home at 7am, ignored the prime minister's lawyers’ claims that Mr Hamou was not compelled to accompany them to the police station and that he had no authority to provide the police with any Treasury documents.
Every member of the Police Force has constitutional powers to arrest, lay, prosecute, or withdraw charges against any person they suspect of committing an offence. The constitution (section 198(2) also provides that members of the Police Force are not subject to direction or control by any person outside the Force.
So the advice by the Prime Minister's lawyers was clearly misconceived and a lie. A person accused of committing an offence is obligated to accompany Police to be interviewed. Should they refuse, Police may compel them by exercising their constitutional powers to effect their arrest, taking them into custody to lay formal charges against them.
"In spite of the fact that Mr Desmond Kipa of Twivey Lawyers informed Mr Gitua and other police that Mr Hamou was precluded, legally, from giving them information they interviewed him anyway. (Mr Kipa also gave them of copies of the Supreme Court order from SCA83 of 2014 which restrains the Police from investigating any matter concerning the Prime Minister and Police from harassing, intimidating, threatening or assaulting the Prime Minister’s lawyers) and it is well known that the Fraud squad was investigating the Prime Minister on the turbine matter.
"Mr Hamou said nothing (at least one lawyer was with him all the time and can attest to that) and signed nothing – he was charged anyway."
Correct, an accused reserves the right to remain silent and is not obliged to produce any evidence that may be used against him. However Police have every right to interview an accused including requesting information.
Most innocent people are only too willing to assist police with their investigation. Any self-respecting citizen would be happy to provide any evidence in their possession. It may also serve to exonerate them of the charges. While if you are guilty of a crime it is certainly not in your interest to co-operate with Police.
So what does the Supreme Court order SCA83 have to do with the arrest of Deputy Mr Aloysius Hamou? Absolutely nothing! Peter O'Neill obtained a temporary stay in the Supreme Court proceedings SC87 after he filed statements claiming that he and his staff were being threatened by members of the Fraud Squad. The Fraud Squad were never afforded the right to appear and dispute those claims. In my view they were nothing more than lies. However the Supreme Court late last year granted the Fraud Squad request to join those proceedings as a party and they have since filed an application to dismiss the entire proceedings for abuse of process.
Vele and Hamou are not staff members of the Prime Minister, they are staff members of the Department of Treasury. On account that O'Neill is implicated in this unlawful transaction, I can understand why his lawyers would make such a dimwit claim.
"He was charged with breaching section 92(1), which is a misdemeanour (a summary offence dealt with by the District Court) and is a charge that is NOT the jurisdiction of the Fraud Squad. Nevertheless the Fraud Squad had taken an inordinate interest in prosecuting (and persecuting) Mr Hamou."
False. Misdemeanour is not a summary offence but an indictable offence. Section 3 of Criminal Code explicitly states ‘Crimes and misdemeanours are indictable offences’."
There are typically three types of offences; "Simple or Summary" offences where the penalty is less than 1 year and typically tried in the District Court; "Misdemeanour" offences are more serious where the penalty is between 1 and 3 years and the most serious "Crimes" where the penalty can be anywhere between 3 to life imprisonment or death. Misdemeanour and Crime offences being more serious are typically tried in the National Court.
While Section 420 of the Criminal code provides that some indictable offences may be summarily tried in District Court, the Code also provides a list of such offences (schedule 2) and Section 92(1) is not one of them.
So Merrell and Twivey’s assertion that Fraud had no jurisdiction to charge Mr. Hamou under section 92(1) and the charge should be have been tried as a summary offence confirms both lack of any basic understanding of criminal law. This is concerning on account Ms Twivey is a practising lawyer and former law lecturer at the University of PNG.
"The Officer in Charge of the police station was timidly reluctant to give Mr Hamou own recognisance bail as the amounts he said were “too large” and referred the matter to senior officers. Really? For a misdemeanor – an issue that should have seen bail granted as a matter of course?"
In this instance it was the sole discretion of the arresting officer whether or not to grant bail. While at this stage Mr. Hamou has only been charged under Section 92(1) of criminal code it’s my view he may also face further charges of misappropriation and official corruption.
“These rogue cops are merely shaking the tree hoping the Prime Minister will land at their feet, never considering that he may not be up the tree in the first place.”
So what evidence was produced to establish the Fraud squad were rogue cops?? None. Not one iota of evidence. The Prime Minister and his Lawyer Ms Twivey made the same claims against the Fraud squad back in June 2014 hoping to convince the National Court to stay his arrest.
However the Court ruled that, "I find no such evidence of this. There is in fact no evidence that the current criminal investigations of the plaintiffs are the work of rogue policemen or that the investigations are politically-motivated as described by the Prime Minister in his affidavit."
So between Ms Twivey, a lawyer, and Ms Merrell, who boasts of holding two degrees and PhD in Political Science, both struggle to submit a simple logical argument to support their claims.