DC8092

PAPUA NEW GUINEA
[IN THE MADANG DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]
Committal Cases Nos. 31 - 35 of 2021

BETWEEN
POLICE 
Informant / Applicant
AND
NIXON PHILIP DUBAN
HELEN KANIMBA
LAWRENCE PITOR
Defendants / Respondents

Madang: B. Kome
              2021: 22 September

COMMITTAL PROCEEDINGS – Charges – The three (3) Defendants are charged with various multiple charges of Misappropriation under section 383 A (1) (a), Conspiracy to Defraud under section 407 (1) (b) and Abuse of office under Section 92 (1) of the Criminal Code Act, 1974 (CCA). 
COMMITTAL PROCEDURE & PRACTICE – Application filed by the Police to disqualify presiding Magistrate for being Biased – Grounds of unnecessary delay/adjournments – persistency to have proceeding of Defendant, Nixon Duban transferred to Madang District Court from Waigani Committal Court.
COMMITTAL PROCEDURE & PRACTICE – Evidence of specific actions taken by presiding Magistrate to amount to actual bias or to create an apprehension of bias not provided by Applicant.

Cases cited
Kwame Okyere Boateng v The State [1990] PNGLR 342, SC391
Yabura v State [1984] PGSC 20; [1984] PNGLR 378 (27 November 1984)
Francis Karaie & Others v Kevinpuruno & Others OS (JR) No. 212 Of 2014

Overseas Cases

R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490

Text
Osborn’s Concise Law Dictionary, Eleventh Edition, Sweet & Maxwell, 2009.

Legislation
District Court Act, Chapter 40

Counsel
Police Prosecutor, Senior Sergeant John Wamugl for the Informant
Mr. B Wak for Defendant Helen Kanimba and also standing in for Nixon Duban’s Lawyer
Defendant Lawrence Pitor in Person

RULING ON APPLICATION BY POLICE TO DISQUALIFY PRESIDING MAGISTRATE BASED ON GROUNDS OF BEING BIASED 
22 October, 2021

Introduction
Kome, B.	The three (3) Defendants / Respondents were charged with various multiple charges of Misappropriation under section 383 A (1) (a), Conspiracy to Defraud under section 407 (1) (b) and Abuse of office under Section 92 (1) of the Criminal Code Act, 1974 (CCA). It is not necessary go into the details of the charges as this ruling concerns the application by the Police to disqualify the presiding Magistrate due to perception of being bias.
2.	Before proceeding any further the Court will point out here that Defendant Nixon Duban’s case had been initially filed at the Port Moresby Waigani Committal Court but was transferred here where the two (2) other related matters were already being heard by this Court. These two matters are; Helen Kanimba & Lawrence Pitor. 

3. 	In their Notice of Motion (NOM) filed by the Police, they had alleged bias and among other things, they have claimed that I, (referred here in onwards as presiding Magistrate/or Magistrate Kome) persisted to have Duban’s case transferred here so the reasons and background of the transfer will be discussed in the Court’s ruling. 
Notice of Motion

4. 	The NOM before the Court was filed by the Police Prosecutors on 25 August 2021 in which they alleged that the presiding Magistrate was biased and has to disqualify himself and to transfer the three (3) stated cases to another Magistrate. Their application is filed pursuant to Sections 22 (a) and 24 (1) of the District Court Act, Chapter 40.

5.	This NOM is supported by the affidavit of a Chief Sergeant David Saule, sworn and filed on the same date as the NOM. Their main grounds appear to be that presiding Magistrate is biased and not neutral and thus a new Magistrate from outside the province should be appointed to hear the case.
6.	The application was heard on 1 October 2021 where parties made submissions and matter was set for Ruling on 15 October 2021. Ruling was not ready and it was reset to 22 October 2021.

The Facts:

7.	The facts and progress of these three (3) files can be clearly seen from the file endorsements. The two (2) stated files, viz, Kanimba and Pitor (which are related to Mr. Duban’s charges) were heard in the Madang Committal Court while Duban’s case was filed at the Waigani Committal Court.
8.	On 31 March 2021, Kanimba and Pitor’s matters were heard here and Kanimba’s counsel, Mr. Wak made mention of the related file of Duban and that it would be appropriate for the same Magistrate to make a Ruling on these files since they are related.
9.	The Prosecutor commented that Duban was the principle Defendant in these proceedings and that the matter was at the submission stage. 
10.	Court took into consideration the concern of Counsel and factors like geographical jurisdiction (area of alleged offences), costs of travel of Defendants if Trial is ordered in Waigani and for a consistent Ruling to be done for all related files.
11.	In making it’s orders, Court also took into consideration the fact that Duban is also a resident of Madang as the other two (2) Defendants. Court then made it’s orders (in particular paragraph 3); which is quoted below; 
“Prosecutor to confirm instructions whether Mr. Duban’s related charges can be transferred here & if so, to file and move a proper application before Her Woship (then) Ms. Ganaii at Waigani Committal Court before the 5 May 2021.”  
(Emphasis mine).

12.	From Waigani Committal Court file endorsement, it is noted that on 8 April 2021, Prosecutor Wamugl attended with Duban’s counsel, Sasingian before Ganai (then Committal Court Magistrate). That Defendant’s counsel raised concerns that matter should be heard in Waigani but Wamugl contended that matter should be heard in Madang because of the same witnesses (in Madang) and that Committal and trial can be run there.
13.	Wamugl also stated that for a consistent ruling, the same Magistrate should preside.
14.	Ganaii took into consideration that the same witnesses will be involved and for consistency of the ruling, among other factors, and ordered for the file to be transferred to Madang. Duban’s file was accordingly transferred to Madang and was heard with the two related files on 5 May 2021.
15.	On 5 May 2021, Duban’s case with the two (2) matters were mentioned in Court in Madang for Submissions and the Court ordered for submissions to be filed and for the matter to return to Court on 30 June 2021 for oral presentation of submissions.
16.	On 30 June 2021, presiding Magistrate accompanied Madang resident Judge, His Honor Justice Geita upon his Honor’s request to Karkar Island, Sumkar District for the National Court inaugural sitting. Based on that the matter was adjourned to 14 July 2021. 
17.	On 14 July, 2021, it was further adjourned to 26 July 2021 since the Duban’s lawyers advised that they would not be available. It is believed that the Prosecutors were advised accordingly.
18.	On 26 July, 2021, submissions were heard and matter was adjourned to 23 August 2021 for Ruling. 
19.	On Saturday 21 August 2021, presiding Magistrate was advised by the Clerk of Court (COC) that due to the closure of the airport, Defendant Duban would find it hard to go to Nadzab airport at Lae to get his Lawyer.
20.	Having realized that the ruling may not be ready, taking into consideration the evidence contained in all three (3) bulky files, presiding Magistrate advised COC to advise the Lawyers not to come and that we would reset another date.
21.	By then, it appears that Prosecutor Wamugl and his team of investigators had already travelled to Goroko, EHP where they probably attended to some other Police work there and were on their way to Madang for these cases. 
22.	On the morning of Monday, 23 August 2021, out of courtesy, presiding Magistrate brought Prosecutor Wamugl into Chambers and explained the situation to him but Prosecutor expressed his disappointment in coming all the way from the highlands, for the Ruling.
23.	The presiding Magistrate then addressed the Court as to the situation and that if the costs were a concern, the local Prosecutors can attend to get the Ruling. Ruling was then reset to 22 September 2021 by consent of all parties present. 

Issue

24.	In the case of Boateng v. The Sate [1990] PNGLR 342, the Court adopted the test in the case of R v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490. This Court also notes the test applied in relation to bias and states it as the issue here. 

25.	The issue would therefore be:

Whether a reasonable and fair – minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial (for the Accused) was not possible. 

26.	The Law:

The applicable laws are stated by the Police as:

District Court Act.

Section 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) …
as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

Section 24. TRANSFER OF PROCEEDINGS.
(1) Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court.
THE PROSECUTION SUBMISSION
27.	In support of their application, the affidavit of Chief Sergeant David Saule basically states the facts, which the Court has stated above (paragraphs 6 – 22), but with certain contradicting facts.

28.	These contradictory facts with other concerns and/or beliefs of the Prosecution basically forms the basis of their application and are stated as follows;

a)	That Magistrate Kome made remarks in the Madang Committal Court regarding the Duban case and persistently sought for Duban’s file to be transferred to Madang so that he can hear it with the two related files.
b)	 That Kome also said that if Duban’s file was not transferred here, the two related files would be transferred to Waigani Committal Court and because of that, the Police had no choice but to make an application to transfer Duban’s file here.
c)	That on 30 June 2021, Magistrate was away at Karkar Island for a Court Circuit and did not inform the Police Prosecutor. 
d)	That the matter was further adjourned to 20 July 2021 and was further adjourned to 26 July 2021, for unknown reasons.
e)	That all these adjournments are seen as un-necessary by the Informants.
f)	That on 23 August 2021, Magistrate Kome brought Prosecutor Wamugl into Chambers and said that Duban’s lawyers had advised that they won’t be present and Prosecutor expressed his disappointment in coming all the way there for Ruling.
g)	That Kome then advised him that the Ruling was not ready and Prosecutor said the Clerk of Court (COC) should have advised him as he had all their numbers.
h)	That Magistrate Kome then advised the Court of non-appearance of Duban’s counsel and that he was not ready with his Ruling and that if the costs were a concern, the local Prosecutors can attend to get the Ruling.
i)	The matter was then adjourned to 22 September 2021for Ruling which the Prosecutor thought was not a genuine reason for adjournment.
j)	Police also stated in their affidavit that Defendant Kanimba didn’t attend on 23 August 2021 and that Magistrate Kome was not taking the case seriously as another suspect in this case was arrested already.
k)	Police then stated that they believed some sort of delay play regarding the matter before the Madang Committal Court and element of bias is at work. That thus the presiding Magistrate should disqualify himself and another Magistrate appointed from outside Madang to hear the case to ensure that the ruling is neutral and is in the interest of justice.

29.	The Court noted from the Prosecution evidence filed and their submissions in Court that there were no other evidence of any instances or events of actual bias or any other dubious actions/or connections between presiding Magistrate and any of the Defendants, aside from the adjournments.
30.	The Court found this to be of some concern as that would be the actual basis of their application and took both the Prosecutor and Saule to task to give any evidence of such nature, if there were any, and they said they had none.
31.	The Prosecutor further stated that the adjournments did not go down well with them and their superiors were not happy and thus they had filed the application.
Defence Submission
32.	Counsel, Mr. Wak made submissions Court regarding the Prosecutor’s application where he raised three (3) issues. The issue raised by Counsel were that the provisions relied upon by Prosecution was wrong because it was for civil proceedings and not for criminal matters.
33.	Secondly, Mr. Wak raised the concern that such applications to disqualify Magistrates and Judges were very serious and there has to be evidence of actual bias to support their application. Mr. Wak submitted that in this case, Prosecution had no evidence that the presiding Magistrate was biased.
34.	 They further submitted that the evidence of the Prosecution was based on speculations and assumptions and their opinions which should not have been put in their affidavits as evidence.
35.	Mr. Wak went further to say that the Prosecution’s application was mainly based on (unreasonable) adjournments but it should be realized that adjournments are part of the process and procedures of the Courts used within their discretions to assist them.
36.	The last point raised by Counsel was that the proceeding was already at its final stage where the Court was looking at making its ruling and thus this application is late and will only frustrate the proceeding and delay it.
37.	Mr. Wak submitted that this application was therefore misconceived and should be dismissed with costs to be ordered against the person who filed (sponsored) the application.   
Discussion of Law & Facts 
38.	 In the Osborn’s Concise Law Dictionary, the definition of “Bias” is put as “Natural Justice.” 
39.	Under “Natural Justice” it is stated that (and I quote): 

“The Courts in the interest of fairness impose certain obligations upon those with power to take decisions affecting other people. These obligations arise from the rules of natural justice, which, although, sadly lacking in precision have generally been subsumed under two heads: audi alteram paternrule; and the nemo judex in re sua rule. 

By virtue of these rules, decision makers must act fairly, in good faith and without bias and must afford each party the opportunity to adequately state his case…” 

40.	Audi alteram paternrule: Basically means to hear the other side. The law dictionary further states; That no one shall be condemned unheard nor without prior notice of allegation against him is one of the principles of natural justice.
   
Nemo judex in re sua: The law dictionary here states: “[No man a judge in his own cause] See natural justice.”

(Emphasis mine).

41.	Taking into consideration the legal definition of “Bias,” it is my view that the nature of the grounds raise by the Prosecutors involve questions on alleged breach of principles of natural justice, namely conflict of interest or perceived bias on the part of the presiding Magistrate. 
42.	In such cases, Magistrates must adhere to the principles of natural justice. They must handle the subject matter with care to avoid any suggestion or reasonable apprehension of bias resulting from a conflict of interest situation. 

43.	This Court also noted a number of case laws which include the case of “Boateng” (referred to in paragraph 23) and other cases. In the case of Boateng, the wife of the presiding Judge in a rape case was seen sitting with the prosecutrix and associating with her outside the Court precincts during the course of the trial.

44.	The Defendant appealed to the Supreme Court after he was convicted and the Supreme Court held that a reasonable person sitting in a Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the Accused was not possible. Thus the Court held that there was bias involved in the case.

45.	Another case is the case of Francis Karaie & Others v Kevin Puruno & Others OS (JR) No. 212 Of 2014. In this judicial review case, the appellants of a land case filed for review and the National Court held that the grounds of review included real or apprehended bias on the part of the Provincial Land Court Magistrate. 

46.	This was based on the fact that the first defendant who was the provincial treasurer funded the expenses for the Magistrate and court party through the provincial government funds. The Court was of the view that such actions of the first defendant can be deemed as reasons sufficient to conclude that there was an apprehension of bias from a reasonable person’s point of view.

Findings / Decision

47.	The Court has carefully noted the application of the Prosecution claiming that there was bias on the part of the presiding Magistrate and the facts of the three (3) files especially that of Duban has been taken into consideration in line with the Laws and case laws. 
48.	After careful consideration of the facts and the law with the evidence submitted by the Prosecution in support of their application, this Court is of the view that the Prosecution have not provided sufficient evidence in which a reasonable and fair – minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial (for the Accused) was not possible. 
49.	In this application, the Prosecution have merely argued that they and their superiors were not satisfied in the way the presiding magistrate was handling the case, in particular, that the adjournments were unreasonable and his attitude was not being serious.
50.	As correctly pointed out by the Defence counsel, adjournments are a discretionary tool of Courts that we use to assist us in managing our cases.
51.	Of course unnecessary adjournments and attitudes of not taking cases seriously may amount to us not discharging our duties properly as judicial officers and would also be a breach of natural justice.
52.	However, it can be seen clearly from the files, especially Duban’s that there were only a handful of adjournments after his file was transferred here. Also Court had provided reasons for the adjournments.
53.	The reasons for the transfer of Duban’s file here, which the Prosecution took issue to, is also clearly outlined in the file endorsements and there’s no need to restate them here as they were clearly stated in paragraphs 6 to 13 above.
54.	From Duban’s file, it can be clearly seen that the Court had simply noted the issues raised by Defendants’ counsel and had in fact asked Prosecution to raise these issues before Her Worship, Magistrate Ganaii, (as she then was) to see if her Worship would agree for Duban’s file to be transferred here or not.
55.	This was done by Prosecutor Wamugl and after hearing from both Wamugl and Duban’s counsel, the Court (Ganaii) made the ruling to transfer the file here. 
56.	In its research, this court could not find any cases where it was held that unnecessary adjournments and Magistrates not taking their cases seriously, on their own, amounted to bias. As stated already in this ruling, Court is of the view that these have not occurred.
57.	The onus is also on the Prosecution to provide these case laws in assisting the Court and to support their application but they have failed to do so.
58.	Also in considering the meaning of “Bias” and considering the facts of this case and how the Court had handled it so far, it is the view of this Court that its actions did not breach the principles of Natural Justice, that each Defendant and the case of the Police had been fairly conducted and heard so far and there is no evidence that a fair ruling will not be possible. 
59.	Thus this Court is satisfied that the Prosecution have not provided sufficient evidence to support their application that there was bias on the part of the presiding magistrate and the Court will therefore dismiss it.
60.	In regard to costs, the Court will not award it at this stage but will leave it to parties to argue it at the end of the proceedings.  

61.	Final Ruling

61.1	This application is dismissed as being incompetent and without any legal basis in law and fact.

61.2	Matter is adjourned to a further date for Ruling on Sufficiency of Evidence.

61.3	Issue of cost left to parties to discuss at the end of the proceeding.

61.4	Bail of each Defendant is extended with conditions.

 Police Prosecutor	 		For the Informant
Bradley & Company Lawyers 	For the Defendant 
_________________________