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Lewis v Yaplin [1995] PGNC 10; N1304 (17 March 1995)

Unreported National Court Decisions

N1304

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 4 OF 1995
Between:
JEFFREY LEWIS - Plaintiff
And:
RAPHAEL APPA - 1st Defendant
And:
DAVID YAPLIN -2nd Defendant

Waigani

Salika J
17 March 1995

DISTRICT COURT PRACTICE AND PROCEDURE - Jurisdiction of National Court to review Magistrate’s conduct of a case.

Counsel:

Mr I Molloy for the Plaintiff

Mrs H Kiele for the defendants

17 March 1995

SALIKA J: This is an cation by way oway of judicial review for an order in the nature of a mandamus directing a District Court Magistrate to proceed with the trial of summary charges brought against the plaintiff under the Firearms Act.

The applicant in this matter was charged by the police for being in possession of firearms. The e had attempted to addo adduce evidence which was objected to. was a voire dire hearing ring and the Magistrate upheld the objections raised and refused cept the evidence sought to be adduced.

The Magistraistrate then adjourned further proceeding on the basis that the prosecution seek a judicial review of his ruling in the National Court.

JURISDICTION

I am satisfied that this is not a case where the plaintiff is seeking a judicial review of a ruling on the evidence. There is nisdictioin by waby way of judicial review to control a Magistrate in the conduct of the case or to prescribe him the evidence which he shall receive or reject.& See R v Garden [1879] UKLawRpKQB 70; (1879) 5 QBD 1.

This is a case wherewhere a procedure adopted by the Magistrate is being sought to be reviewed. I am of the view that thur Court has the jurisdiction to review what has happened in this case.

The applicant contends that the Magistrate wrongly adjourned the case in that his ruling on the evidence was not a matter which could be subject of a judicial review.

From my own experience as a former Prosecutor and Magistrate the usual procedure is that where after a voire dire hearing the Court refuses to allow any evidence to be adduced, the prosecution is stuck with the ruling until the case finishes. The Court will require of e of the prosecution whether it has any further evidence to call. If there is no furevidencedence the prosecution closes its case and the defendant opens its case. The Court may an after itsr its ruling on oire dire to allow the prosecution to recall any witness or to review its evidence but the the Court in my experience should not adja case sine die to allow the prosecution to seek a judicialicial review of the ruling on the question of admissibility of evidence. That is a question that would usually be a matter of appeal. The appellant would argue that the Court wrongly admitted or refused to admit the evidence. is the usual way of dealinealing with evidence that is wrongly admitted or wrongly refused.

The only time a Magistrate could adjourn proceedings of s of this nature is when he is faced with a question relating to interpretation or application of a provision of any Constitutional Law and he is of the view that the question is not trivial or vexatious or irrelevant then in my view he is duty bound to refer the question to a higher Court. (See (2) of the Constituttitution).

As it has happened in this case the reason for which the learned Magistrate adjourned proceedings sine die in my view wasneous. He was duty bound to com tete the trial. #160; He could rn to allow llow prosecution to call further witnesses but not to allow the prosecution to seek a judicial review of his ruling. By adjourning the matter for the reason he did tantamounthis non-performance of his his duty.

I would grant the order sought in the notice of motion namely that an order of mandamus rected to the first defendant, a Grade 5 Magistrate, requirequiring him to continue with the hearing of the charge under the Firearms Act against the plaintiff presented at the Goroka District Court.

I further order that the matter be heard on the 23rd of March 1995 at 9.30 am at the Goroka District Court.

I award costs to the plaintiff in these proceedings.

I however do not certify for a southern Counsel.

Lawyer for the plaintiff: Blake Dawson Wa

Lawp>Lawyer for the defendant: Solicitor-General