IN THE PITCAIRN ISLANDS SUPREME COURT T 1/2011 IN THE MATTER under the Constitution of Pitcairn and the Bill of Rights 1688 AND IN THE MATTER OF a challenge to the vires of parts of the Pitcairn Constitution being ultra vires the Bill of Rights 1688 AND IN THE MATTER OF a constitutional challenge and the refusal of the Magistrates Court to refer a constitutional challenge to the Supreme Court and the failure of the Supreme Court to consider an appeal from the Magistrates Court AND CP 1/2013 IN THE MATTER OF a judicial review of the Attorney General and Governor BETWEEN MICHAEL WARREN Applicant/Appellant AND THE QUEEN Respondent Hearing: 07 to 11 and 14 to 17 April 2014; 01 August 2014; 23 September 2014 Appearances: Kieran Raftery and Simon Mount for the Crown Tony Ellis and Simon Park (on 23 September 2014) for Applicant/Appellant Judgment: 28 November 2014 ______________________________________________________________________ JUDGMENT OF HAINES J ______________________________________________________________________ This judgment was delivered by me on 28 November 2014 at 10 am pursuant to the directions of Haines J Deputy Registrar Table of Contents Para Nr Introduction [1] Course of the hearing [11] The application for a stay on the grounds of abuse of process – the self- determination claim The submission [19] The right to self-determination – sources [22] Ius cogens [24] Internal self-determination – treaty obligations of the UK – the Charter of the United Nations [32] Internal self-determination – treaty obligations of the UK – the ICCPR [37] Internal self-determination of Pitcairn Island – context [47] The new governance structure which took effect on 1 April 2009 [49] The new 2010 Constitution – consultations leading to [59] The claim that the right to internal self-determination has been breached [61] Discussion – the evidence [64] The self-determination claim – overall conclusions [73] The application under the Bill of Rights 1688 The submission [78] Whether the Bill of Rights 1688 has application [82] The British Settlements Act 1887 [83] The application of English law in Pitcairn [91] The appeal against the Magistrate's committal decision Background [102] Whether a right of appeal [107] Whether appeal determined by Lovell-Smith J [109] Discussion – whether Magistrate has jurisdiction to determine admissibility of evidence [111] Discussion – the question of a reference under the Constitution [125] The application by the Crown under s 70AA of the Justice Ordinance Background [131] The four new challenges [136] Sgt Medland not validly appointed – no written notice of appointment [138] Appointment of Sgt Medland invalid as oath not administered by Magistrate [146] Sgt Medland not independent [149] Whether the Governor caused the oaths to be administered to the Island Magistrate [161] Overall conclusion on the Crown application under s 70AA of the Justice Ordinance [173] The challenges relating to the judicial office of Chief Justice [174] The facts relevant to the appointment of the Chief Justice [181] Whether Chief Justice swore an invalid judicial oath – preliminary issues – the validity of his appointment and the form of the oaths [185] The manner in which the oaths were to be sworn [192] Whether oaths required to be administered by a judicial officer in open court at a hearing held on Pitcairn [200] Oath taken before Governor’s seal attached to instrument of appointment [218] The alleged suppression of the announcement of the appointment of the Chief Justice [224] Failure to advise Constitution “unworkable” [227] Constitution s 43(4) – oral but not written advice [229] The “maverick” point [241] The Joint Minute of 12 July 2013 [244] Further challenges to the appointment and independence of the Pitcairn judiciary [246] The Bangalore Principles [249] Judges who are “part-time” [257] Community input in relation to judicial appointments [262] The “limited pool” challenge [271] The remuneration issue [279] The disqualification point [296] The application for a stay on the grounds of abuse of process – general [305] Abuse of process – the law [307] The application for a stay on the grounds of abuse of process – the balance of the claims The discrimination point [310] The Deputy Governor point [324] Whether Pitcairn Public Prosecutor properly appointed [334] The Pitcairn Public Prosecutor and the “corruption” of the Pitcairn judicial system [338] The prosecution guidelines point [350] Challenge to the appointment of Mr Raftery and Mr Mount as prosecutors [359] The “judicial colonialism” point [372] The complaint that the laws of Pitcairn are not accessible [380] The committal hearing – whether lawful for Magistrate’s Court to sit in New Zealand [389] Overall conclusion on abuse of process argument [399] The second constitutional and abuse of process challenge [400] The Public Prosecutor point – tainting [402] Independence compromised by legislation [403] Island Magistrate judge in own cause [414] Further allegations – overview [426] The separation of powers issue [427] The “part time judge” point [436] The “payment of money” point [437] The question of the Registrar’s independence [441] The submission that the Presiding Judge resign [448] The judicial review proceedings – determining the procedure Background [452] Discussion [456] Conclusion [466] Overall Conclusion [467] Introduction [1] Mr Warren lives on Pitcairn Island. He is charged with twenty counts of possessing child pornography contrary to s 160 of the Criminal Justice Act 1988 (UK). He also faces five charges under the Pitcairn Summary Offences Ordinance for possessing indecent articles. The Criminal Justice Act charges are triable only in the Supreme Court. [2] On 1 August 2011, Senior Magistrate RKM Hawk committed Mr Warren to the Supreme Court for trial. The Senior Magistrate rejected a submission by Mr Warren that he (the Senior Magistrate) had power to determine the admissibility of the evidence on which the Crown relied. He further rejected a submission that questions of admissibility should be referred to the Supreme Court pursuant to the provisions of s 5(7) of the Constitution of Pitcairn. [3] In a document dated 19 August 2011, Mr Warren appealed the decision to commit him for trial. He also filed a number of other proceedings, some of which were dealt with by Lovell-Smith J in her judgment given on 12 October 2012. On 26 October 2012, Mr Warren filed a notice of appeal in the Court of Appeal. Some, but not all, of the grounds of appeal have been dealt with by the Court of Appeal in decisions given on 12 April 2013, 12 August 2013 and 21 August 2013. [4] Apart from the matters yet to be determined by the Court of Appeal, there remain in the Supreme Court a number of proceedings and other matters which have not been resolved or addressed by the judgment given by Lovell-Smith J. [5] Clarification of the issues thought to be outstanding and awaiting determination either in the Supreme Court or in the Court of Appeal was provided on 11 September 2013, when counsel filed in the latter court a joint memorandum. It recorded there were then eight applications before the Supreme Court which had either not been determined formally or not determined at all. One has since been abandoned by Mr Warren (it has been deleted from the list which follows), while the last four have since been added, leaving the following: (a) Mr Warren’s appeal dated 19 August 2011 against the Magistrate’s committal decision. (b) Mr Warren’s application (undated but filed on 12 January 2012) for orders based on the Bill of Rights 1688. (c) The Crown’s application dated 10 April 2013 under s 70AA of the Justice Ordinance for a ruling on the admissibility of evidence. (d) Mr Warren’s application of 3 May 2013 for a stay of prosecution on the grounds of abuse of process. (e) Mr Warren’s application dated 3 May 2013 for a declaration that Blackie CJ, Lovell-Smith J and Senior Magistrate Hawk have not lawfully entered office or have vacated their office (“a Quo Warranto type application”). (f) In the alternative to (e), Mr Warren’s application dated 3 May 2013 for an order of mandamus requiring Blackie CJ, Lovell-Smith J and Senior Magistrate Hawk to swear their oaths in open court. (g) The application for a judicial review filed by Mr Warren on or about 11 September 2013 in this Court’s civil jurisdiction. The procedure to be followed must now be determined and, in particular, whether leave to bring the proceedings is required. (h) The submission dated 4 April 2014 that Haines J has a duty to resign. (i) The oral submission made on 7 April 2014 that Mr Raftery and Mr Mount have not been properly appointed as prosecutors and have no standing before the Court. (j) The second constitutional challenge and abuse of process challenge dated 29 May 2014. (k) The third constitutional challenge and abuse of process challenge dated 8 August 2014. [6] At different times during the hearing I expressed concern that some of the identified issues have either been addressed by Lovell-Smith J or are presently before the Court of Appeal. However, all counsel were in agreement that precise identification of the matters truly unresolved at Supreme Court level would be a difficult and potentially contentious exercise. It was said the abuse of process claim in particular made it inherently difficult to identify with any degree of precision what had been argued and determined in the course of the earlier hearings. It was necessary that the hearing before me (and the eventual judgment) should canvass each of the issues listed above so that when the judgment is appealed to the Court of Appeal, that Court will be in a position to address all issues between the parties without having to request the Supreme Court to determine any matter inadvertently overlooked.