DC2072 

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

B. No. 3359-3365/2015

BETWEEN

POLICE
Respondent/Police Informant

AND

PHILIP MARSHALL
Applicant/Defendant

BOROKO, Summary Offences Court: T. GANAII

2015: 22nd October, 04th November

CRIMINAL LAW- Practice and Procedure – District Court – Application to dismiss charges–Basis for application to dismiss charge prior to trial proper - Section 22 of the District Court Act– Section 22 relates to Civil Jurisdiction of the Court

CRIMINAL LAW– Practice and Procedure –Section 5 of the District Court Act – Magistrate's exercise of powers and authorities - Section 131 of the District Court Act - Use of the practice in the National Court in relation to a trial in a summary matter 

CRIMINAL LAW – Practice and Procedure - When is it appropriate for a Court to hear an application for a Dismissal of case for breach of requirements under the Search Act? – Breach of Constitutional Right to freedom of arbitrary search and entry

Held:

1.	The District Courts have jurisdiction to hear an application seeking a
Dismissal of a charge. Section 5 of the District Court Act (DCA)gives magistrates the basis to exercise power and authority within their jurisdictions. 

2.	Where there is no rule of law or practiceregardingthe specific conduct of summary proceedings, s131 DCAwhen read in conjunction with s5 and in respect of the proper conduct of trial practice and procedure on the hearing of an information of a simple offence or an indictable offence triable summarily, shall be done in accordance, and as nearly as practicable, with the practice for the time being in the National Court on the trial of an issue of fact in an action at law.
3.	In reading s131 in conjunction with s5, the District Court can adopt the practice in the National Court on the trial of an issue of fact or law when trial commences, and witnesses are called in examinations and cross examination; the right of addressing the court on case in reply; and the practice before a Court on the hearing of an information of a simple offence. 

4.	The practice in the National Court in relation to dealing with preliminary applications of breach of Search Act and Constitutional right to freedom form arbitrary search and entry is to hear the application after the calling of evidence or close of prosecution case. 

5.	Where an application was made by the defence seeking a dismissalof charges for breach of the requirements of the Search Act, and in contravention of the defendant's Constitutional Right to freedom from arbitrary search and entry, the fair and proper trial practice and procedure process requires that evidence is adduced during trial proper, and a determination can then be made. To hear such an application at the preliminary stage and prior to trial is premature.

Cases Cited

1.	The Police v Joel Luma, NCC No 268-322 of 2012
2.	St v James Bero Popo[1984] PNGLR 286
3.	Alex John v. MartinGolu [1993] PNGLR 117
4.	R v YofiaAbone [1967-68] PNGLR 277
5.	St v PolauSamol [2008] PGDC 20
6.	R v. AngoroEvu [1996-70] PNGLR 274. 

References
1.	District Court Act of 1963
2.	Summary Offences Act of 1977
3.	Criminal Code Act 2002

Counsel

Prosecutor:		Senior Constable Felix Singo
Defendant:		MrDonald Wesley 

Ruling on Notice of Motion

T. Ganaii: The defendant applicant Mr Philip Marshall was charged with the followingseven (7) charges: 3 x charges of Having in his possession a pistol without a licencecontravening section 27 (1) (a) of the Firearms Act (FA); 2 x charges of Did threaten to discharge and point a pistol contravening section 65B(a) and (b) of the FA; 1 x charge Having in his possession live ammunition, contravening section 65A (a) of the FA; and 1 x charge of Without reasonable excuse have in his possession in a public place to a police issue gas grenade capable of discharging an irritant gas capable of causing bodily harm, contravening section 61 of the FA.

Background

2. 	The applicant/defendant pleaded not guilty to all seven (7) charges. Charges one (1) and five (5) were laterwithdrawn by consent from the prosecutions on the basis that the applicant/defendant had produced licences in respect of the two firearms subject of these two charges. On the remaining five (5) charges, the matter was pre-tried and a trial date was given. 

3. 	After arraignment and pre-trial, and pending the calling of prosecution witnesses to give evidence, MrWesley Donald of Counsel for the applicant/defendant filed and argued a Notice of Motion (NOM) seeking the dismissal of the remaining five charges. The NOM sought to have the remainder of charges dismissed on the basis that the chargesare calculated to prejudice and or embarrass the applicant/defendant in his defence.

4. 	The applicant/defendant relied on his own affidavit. The applicant/defendant asserted that the Police had unlawfully obtained the firearms and the hand grenade, subject of all of the charges against him when they unlawfully entered his club premises without a search warrant.

5. 	The applicant/defendant contends that his constitutional right to freedom from arbitrary search and entry was violated. He therefore sought that all remaining charges be dismissed. The applicant defendant sought further that consequent to a dismissal, the Court makes orders that the properties of the applicant/defendant namely the firearms; and the ammunition and hand grenade be returned to him; bail be refunded and his passport be released to him. 

6. 	The issues arisingtherefore are:

1.	Does the District Court have the jurisdiction to hear an application seeking dismissal of charges? What is the proper or legal basis for making such an application?

2.	Whether or not at this juncture, it is proper to hear an application for a charge to be struck out based on the allegation that provisions of the Search Act have been violated? And

3.	Whether or not the charges laid against the applicant/defendant are calculated to prejudice and embarrass him in his defence 

The Law:

7.	Division 2.	Jurisdiction of Magistrates.

5. JURISDICTION OF MAGISTRATES.
Magistrates have and may exercise within and for their jurisdictions the several powers and authorities conferred on them by this or any other law.

8. 	Division 2.Jurisdiction of District Courts

22. GENERAL ANCILLARY JURISDICTION.
Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–

(a)	grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b)	………..

9.	131. CONDUCT OF SUMMARY PROCEEDINGS.

In respect of the examination and cross-examination of witnesses and the right of addressing the Court on the case in reply, or otherwise, the practice before a Court on the hearing of an information of a simple offence or an indictable offence triable summarily shall be in accordance, as nearly as practicable, with the practice for the time being in the National Court on the trial of an issue of fact in an action at law.

Application of law to facts

10.	Issue 1:	Does the District Court have the jurisdiction to hear an application seeking the dismissal of charges?

11.	Answer:	Yes

12.	There is no precise provision in either the Summary Offences Act (SOA) or the District Court Act (DCA) either authorizing or prohibiting the District Court from entertaining an application or a motion relating to the conduct of summary trial. More specifically, there is no rule of law or practice and procedure on hearing of a motion for the dismissal of charges after the defendant had been arraigned, case pre-tried and matter set for trial.

13.	There is also no provision empowering only the National Court to hear such an application where a trial had commenced in the District Court and a preliminary or procedural issue had arisen during the conduct of the trial. 

14. 	Despite that, on many occasions, defence counsels, on behalf of defendants have invoked s22 of the DCAin Criminal proceedings as their basis for seeking orders on preliminary or procedural motions being moved. On this point,in the DC case of The Police v Joel Luma, NCC No 268-322 of 2012, a decision byBidar, C, it was held that:

"…Section 22 is concerned with the general ancillary jurisdiction of a court regarding a "cause of action" in the time being. And the phrase 'cause of action' usually refers to civil cause of action."

15. 	Bidar, C. held that s22 motions are civil in nature and this section should not be used in criminal cases. 

16. 	Under Part III, Division 2 of the DCA, entitled Jurisdiction of Courts, the specific sections that relate to criminal jurisdictions are ss20, 23 and 25. By looking at these provisions, the words used obviously relateto matters that are criminalin nature. Words such as 'offences, criminal convictions and criminaltrials in the National Court and indictable offences' are used. On the other hand, s22 does not contain words relating to criminal proceedings but rather contains words such as "causes of action; relief, redress or remedy, and defence or counterclaim". Hence, in support of the view held in Lama'scase,it is this Court's view that s22 strictly relates to civil matters and cannot be invoked in criminal proceedings. 

17. 	Despite the above, what is clear though is that s5 of theDCAwhich is entitledJurisdiction of Magistrates,empowers District Court magistrates to exercise certain powers within their jurisdiction by stipulating that:

"Magistrates have and may exercise within and for their jurisdictions the several powers and authorities conferred on them by this(the DCA) or any other law." [Emphasize mine].

18. 	This provision provides the basis that magistrates are statute barred by the DCA and or any other enabling jurisdictional legislation to exercise certain powers that come within those laws they operate under. And so, with respect to powers of magistrates relating to specific trial practice and procedure, the DCA makes provision in s131 for specific Conduct of Summary Proceedings by stipulating as follows:

"In respect of the examination and cross-examination of witnesses and the right of addressing the Court on the case in reply, or otherwise, the practice before a Court on the hearing of an information of a simple offence or an indictable offence triablesummarily shall be in accordance, as nearly as practicable, with the practice for the time being in the National Court on the trial of an issue of fact in an action at law."

19. 	It is this courts understanding that s131 when read in conjunction with s5 can mean that the District Court can adopt the practice in the National Court on the trial of an issue of fact or law when trial commences, and witnesses are called in examinations and cross examination; the right of addressing the court on case in reply; and the practice before a Court on the hearing of an information of a simple offence. 

20. 	Hence, in the absence of any law dealing with specificpowers of the District Court relating to the conduct of a summary trial, where as in this instance inthe hearing of a Motion to dismiss proceedings for breach of Constitutional rights, the practice of the National Court must be adopted.This brings on the next issue: What has been the practice in the National Court in relation to assertions of police impropriety during investigations and calling of evidence. 

21. 	Issue 2:	Is it proper to hear at the preliminary stage of trial, an application for a charge to be struck out based on the allegation that provisions of the Search Act have been violated?

22.	The answer lies in what the practice in the National Court is where there is no rule of law or practice governing this in the District Court. The practicein so far as the National Court is concerned has always been that where there are allegations of impropriety by the Police, and where there is no rule of law or practice governing this in the summary court, relating to obtaining of evidence, or breach of arrest or search act, these are matters for the trial proper and should not be raised as preliminary issues.

23. 	At trial proper, parties will then call and adduce evidence during the processes ofexamination in chief, cross examination and re-examination. This is the trial process. And this is where a magistrate sitting to hear the case in a summary court can adopt as the practice in the National Court.

24. 	After or during the adducing of evidence, the court can then make a finding and determination based on the evidentiary burden of proof and the rules of practice and procedure. 

25. 	Cases such as the one cited by Mr Donald, of counsel for the applicant/defendant which isSt v James BeroPopo [1984] PNGLR 286 (in his submission on breach of the Search Act) is a case on point. In this case, it is noted that after the close of the prosecution case, and during a no case to answer submission, the court invited parties to argue if there was a breach of the Search Act. This was so done after the allegations of a violation of the defendant's right wereraised in or during the calling of evidence. The court did not strictly discuss the laws or practice and procedure in relation to"what stage of the trial should there be challenges raised on the Constitutionality of the police propriety", but the court did allow the issue to be raised after evidence. In my view, the court in so doing, had observed the rule of fairness to all parties and especially the prosecutions who have a duty of proving guilt beyond the high standard of proof beyond reasonable doubt.

26. 	The other often cited case is that ofAlex John v. MartinGolu [1993] PNGLR 117, or the famous 'blue bag'case. Thiswas a casein the summary court where on a charge of being in possession of dangerous drug, a 'blue bag' was said to have contained the said drugs. The magistrate received the 'blue bag'into evidence after prosecution called evidence and the defence objected to its admission raising an allegation that the "blue bag" was obtained after the Police unlawfully carried out a search and unlawfully seized the 'blue bag'. During trial, the applicant/defendant applied to the National Court to challenge the decision of the magistrate. 

27. 	In this case (Alex John v. MartinGolu) the assertion by the defence was not raised as a preliminary issue before the calling of the evidence, but rather during trial. It was during the calling of evidence that the assertion was raised. And when raised, the court did not allow parties to call evidence so it could make appropriate findings and rulings but rather accepted the 'blue bag' into evidence. This was challenged in an application to the National Court. The National Court ruled accordingly that the magistrate had erred. It is noted that the process of raising the contention occurred during the calling of prosecution evidence, and the magistrate made a ruling. This ruling was then the subject of an appeal.

28.	The Alex John v. MartinGolucase shows that the defence still has the opportunity to object to tendering of documents, during calling of evidence. The magistrate will have to use their discretion to consider the admissibility of such evidence. This is the trial process that this court must allow to take place, and where parties will properly and lawfully challenge evidence that go to determine guilt or innocence. 

29. 	In Alex John v. MartinGoluthe defendant wasseeking enforcement of the breach of Constitutional right contending that the Police acted improperly. The court found that there was a breach of defendant's Constitutional right to freedom from arbitrary search and entry and refused to admit into evidence the blue bag containing the drugs. 

30.	The other case ofR v YofiaAbone [1967-68] PNGLR 277 was a case where the defendant raised the defence of Double Jeopardy. The applicant/defendant was charged with a number of assault charges, and thedefence argued that this trial should not proceed and the indictment be quashed. The court held that to apply for a dismissal at the preliminary stage of the trial process was not proper. The Court held that parties can be called to give evidence and only after the close of the prosecution evidence, can the court consider and decide the likelihood of double jeopardy. 

Voir Dire

31. 	The practice of voir dire in the National Court re-iterates the fair process of trial where the calling of evidence occurs at trial proper in situations wherethe defence contends there was police impropriety during the conduct of a Record of Interview (ROI). 

32. 	Although, in the Summary Courts, the conduct of voirdire does not happen because ROIs are often if not never conducted, the practice in the National Court on numerous occasions has been thatduring trials and where it is raised by a defendant that a confessional statementwas made involuntarily, and so defence is contesting its admissibility, the challenge to this is conducted within a small trial of the main trial otherwise known as a voir dire. This is the law relating to common law Judges Rules and their discretion to reject evidence that has been obtained unlawfully or unfairly. 

33.	This case example shows that the challenge of tendering of a confessional statement is a matter for calling of evidence at trial proper and so it is premature to raise this during the preliminary stage of the trial. 

34. 	In the National Court, Notices of Voir Direas per the Criminal Practice Rules (1987) is served on the Prosecution so they have to prepare to challenge the impropriety raised. This is proper practice as it abides with the notion of justice and fairness to prosecution to prepare to rebut any allegations raised. The discussion here on Voir Dire is made to show that processes have been developed in the higher courts and must be adopted in the lower courts where there are absence of rules and laws to properly regulate criminal trial practice and procedure. 

35. 	It is this court's view that this principle in the number of National Courtcasesand the general National Court practice is applicable to the present case.To determine whether or not there was police improprietyrequires calling of evidence and to determine the issue at this stage in my view would be premature. 

36. 	Whilst a breach of the Search Act or Arrest Act for that matter may result in the exclusion of evidence adduced by the police, that will be a matter for the court to determine at trial proper and to decide on this issue now is premature. 

37. 	Counsel for applicant defendant Mr Donaldfurtherrelied on the DC case of St vSamol[2008] PGDC 20, by his Worship Monoluk, P.I makea brief remark relating to this. With the greatest respect to thecourt's view in that case, this court defers in opinion andis not bound by this decision or a decision of the same court. That is to say that the preliminary hearing of a NOM to determine admissibility of evidence in determining guilt or otherwise as a preliminary issue is not practice in the National Court and therefore should not be followed in the lower courts.
 
38. 	Having said that, regarding the principles discussed in relation to police impropriety and breach of the Search Act in that case (St v Supra), the reasoning given behind the discretion of the magistrate to refuse to admit evidence unlawfully obtained and in breach of s44 of the Constitution is good and so the case is good law in that regard. 

39. 	In response to the Defence NOM, Senior Constable Felix Singo, the learned Police prosecutor properly submitted that the Police have conducted investigations and have made arrest where it is in their prerogative to so do. He submitted that the arrest and laying of charges follow on from investigations and collection of evidence. This is not contested by the defence. 

40. 	Further, the learned prosecutor in his submission stated that the preliminary issue must be set aside. The Court with respect is of the view that thefirst two issues being raised this instant have been considered and the last issue on whether or not any charge in the information is 'prejudicial and may cause embarrassment' to the defendant is a matter pertaining to the trial proper process and hence can be determined in the trial proper. 

41. 	In this courts view, preliminary issues that could be determined before calling of evidence or that may not require that the court should enquire into evidence to determine guilt or other-wise, may be determined before the calling of the evidence. These may include issuessuch as:defectiveinformation on the basis that a wrong law or provision of a law is used; or the charges are not properly worded or the information is not clear enough as to the nature of the offence alleged so as to allow thedefendant an opportunity to plead to the charges. If these were the case here, the court could hear submissions and make preliminary and appropriate findings and orders. 

42.	There are case laws regarding the practice in the National Court in dealing with preliminary issues. I cite a few examples for appreciation: an application to quash indictments at preliminary stages of a trial (i.e. before calling of evidence) can be made wherethe defendant/applicant allege that the committal process was invalid due to irregularities (procedural or legal); or where on an indictment in the National Court was defective because the defendant/applicant was committed on a totally different charge to the one charged. R v. AngoroEvu [1996-70] PNGLR 274.

43. 	These examples of cases surmise this court's view that: preliminary issues can be determined before calling of evidence; but only in matters that do not relate to evidentiary burden of proof on guilt or otherwise on the charges brought. 

Conclusion:

44. 	In deciding theissues in the above, it is hereby this Court's ruling that:

1.	The District Courts have jurisdiction to hear an application seeking the
Dismissal of a charge. Section 5 of the DCA gives Magistrates the basis to exercise power and authority within their jurisdictions;

2.	The legal basis for making such an application is not pursuant to s22 of the DCAwhich in my view had on many occasions been misconstrued. Pursuant to s5 and in conjunction with s131 of the DCA, the summary courts can adopt proper and fair conduct of trial practice and procedure on the hearing of an information of a simple offence or an indictable offence triable summarily, in accordance, and as nearly as practicable, with the practice for the time being in the National Court on the trial of an issue of fact in an action at law;

3.	At the preliminary stage of a trial, it is not proper and fair to hear an application for a charge to be struck out based on the allegation that provisions of the Search Act have been violated. These are matters for trial proper and should best be left for that process; 

4.	It is only proper and fair that any issues relating to evidentiary matters are left for the proper trial process. The trial process will involve examination in chief, the most important testing process of cross examination and, and thereafter, any issues such as that of impropriety of police action upon a search conduct can be adequately determined in that process; 

5.	The answer in issue two(2) is in the negative, and so issue three (3) is not discussed; and

6.	The notice of motion is refused. Thismatter will proceed to trial.

Police Prosecutor:
Donald & Company Lawyers	For the Prosecution
For the defendant