N1950

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 190 of 1999

BETWEEN:

ROBERT LAK
Plaintiff

AND:

DAISY MAGARU, 
Presiding Magistrate at Waigani District (Grade V) 
Committal Court
First Respondent

AND:

THE STATE
Second Respondent

Waigani: Sheehan, J.
1999: 20th May

Judicial Review - application for leave - Plaintiff challenging committal of Plaintiff to National Court for trial on indictable offence - claim of lack of evidence for prima facie case. 

Mr. M. Murray for Plaintiff
Mr. M. Makail for 1st and 2nd Respondent 

DECISION

On 8th April 1999 the Plaintiff Robert Lak was committed to the National Court for trial on a charge of abduction of a girl under the age of 18 years with intent to have carnal knowledge, contrary to s. 220 of the Criminal Code. The committal was made by Mrs Daisy Magaru Presiding Magistrate at the Waigani District (Grade 5) Committal Court who declared that she was satisfied that there was evidence to support the charge.

The Plaintiff now applies to this the National Court for Judicial Review of that committal and by way of relief, a declaration that the decision of the Presiding Magistrate to commit the Plaintiff is wrong in law and should be set aside; that the charge and information laid under s. 220 of the Criminal Code against the Plaintiff be dismissed and the order for Committal by the Waigani District Court be quashed. 

The grounds cited in the Statement in Support of the application are as follows (underlining added):

3.1. "Error in law

3.1.1. The finding by the presiding magistrate that there is evidence to commit the defendant to stand trial at the National Court is miscarriage of justice as there is simply no evidence as required under section 94B (2) (b) of the District Courts Act to satisfy the crucial elements of the charge (to be proven beyond reasonable doubt) under section 220 of the Criminal Code. 

3.1.2. The Presiding Magistrate has placed weight on irrelevant considerations in arriving at the conclusion that there is evidence by which to commit the defendant to stand trial at the national Court. Had her mind been placed on relevant considerations, in particular the crucial elements of the charge under section 220 of the Criminal Code, the Presiding Magistrate will make a finding that there is simply no evidence or prima facie evidence on which to lawfully try and convict the defendant at the National Court. 

3.1. Denial of Natural Justice 

3.2.1. The statements contained in the file does not disclose prima facie evidence against the defendant as they relate to the information and charge under section 74(1) of Classification of Publication (Censorship) Act which has been quashed by the National Court for both the defendant and the girl alleged to have been involved in the production of the alleged sex tape. To pursue the matter (s. 37(8) Constitution) at the National Court is to carry out a "fishing expedition" on evidence and is tantamount to serious denial of natural justice.

3.3 Error in Principle

3.3.1. Considering the case in its entirety, no reasonable tribunal of fact and law acting fairly and justly can make a finding on the statements evidence as contained in the police file as being sufficient or of prima facie value to commit the defendant to stand trial at the National Court. In the circumstances the Committal Court has proceeded its jurisdiction.

3.4. Unreasonableness 

3.4.1. Considering the case in its entirety, no reasonable tribunal of fact and law acting fairly and justly will make a finding on the statements/evidence as contained in the police file as being sufficient or of prima facie value to commit the defendant to stand trial at the National Court. Therefore the decision of the presiding magistrate in committing the defendant to stand trial was very unreasonable under the circumstances in that there is simply no evidence, and furthermore irrelevant considerations was given weight in making that ruling. 

Applications for leave for judicial review are made ex parte and must be by Originating Summons pursuant to O 16 R. 3 of the national Court Rules. The State must be notified of the application not less than two days prior to the application being heard and has the right to be heard on application for leave (Claims by and against the State Act). In the present case although there has been no such Originating Summons seeking leave and the whole application was therefore open to challenge for the breach of the rules, Counsel for the State offered no objection to the application nor sought to make any submissions on it. In the result this omission was not pursued. The Court, in absence of objection, itself took no exception, there being sufficient formality in all documentation to identify the nature of the application. 

An applicant for leave for judicial review must first establish the necessary standing or interest in the matter which the application relates. He must also establish that he has an arguable case that a private right accorded to him by public law has been infringed, and that the case raised and the relief sought is such that this Court should exercise its discretion to intervene. 

The application must also show that there is no other avenue of appeal or review that he might properly pursue other than Judicial Review. That said, the fact that there might remain prescribed appeal procedures or opportunities for review do not themselves make judicial review unobtainable.

In SCA 49 of 1988 Kekedo v Burns Philip PNG Limited and Ors the Supreme Court confirmed: 

1.	"That the National Court judicial review jurisdiction exists even where appeal procedures are provided by the Parliament. This jurisdiction can only be taken away be express provision. 

2.	Save in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where other remedies are available. 

3.	Whether the statutory procedure would be quicker, or slower then procedure by way of judicial review, whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellant body are amongst the matters which a court may take into account when considering the exercise of discretion. The fact that judicial review is quicker and convenient is of itself not sufficient ground for the exercise of jurisdiction. 

4.	The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which to reasonable tribunal could have reached or abuses its powers. 

5.	The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process."

Notwithstanding that Committal proceedings do make determination effecting a persons rights thus enabling courts to consider applications for review, the fact is that a committal nonetheless makes no determination of liability or penalty. It is a preliminary process in the system of Criminal justice where the prosecutor makes public disclosure to a Committal Court of evidence relied on to support an application for committal for trial of a charge. The National Court is where that evidence is to be tried, where it is to be tested. Thus upon committal the National Court is seized of a matter in its criminal jurisdiction. And there in the National Court on accused has all the rights protections and appeal procedures that the criminal justice system provides. Because of this, Courts have long been disinclined to intervene in complaints regarding committal proceedings by use of a civil action of review when the matters may properly dealt with under the criminal jurisdiction itself. 

Nonetheless where there are issues going to jurisdiction as outlined in the fourth proposition in Kekedos case, the civil jurisdiction of review may well be invoked. 

There is no doubt that the Plaintiff has standing. He brings a claim challenging the lawfulness that he be committed for trial on an indictable offence. The matter therefore turns on whether there is an arguable case established that this Court should enquire into the decision to commit and whether the relief sought is appropriate. In considering whether the Plaintiff can show an arguable case any examination of the application at the leave stage, does not call for a close examination or testing of all facts and matters and evidence. But there must nonetheless be grounds with sufficient facts duly sworn to, or matters of relevant law cited that show that the complaint has a basis warranting enquiry.

Here the grounds stipulated are complaints of want of jurisdiction. Essentially the Petitioner contends that the evidence tendered by the prosecution in an otherwise normal - and therefore procedurally correct - committal hearing was such that even when taken as a whole no authority properly directing itself on relevant law and acting reasonably could have come to the conclusion that it establishes prima facie case. 

The facts that the Plaintiff relies on to establish the grounds set out in the statement are not readily determined from the affidavit filed in support and it has been necessary for the Court to enquire and clarify the facts basis which the Plaintiff claims gives raise to the grounds pleaded. 

Commencing with the Plaintiff's affidavit he disposes that on the 18th October 1998 he was charged by Police with two offences. The first was an allegation that the Plaintiff had "involved himself in making of an objectionable publication" an offence under s. 74(1) of the Classification of Publication (Censorship) Act 1989. The second was the charge of abduction with intent, for which he has now been committed. 

On 18th February 1999 the Plaintiff successfully challenged the committal proceedings in respect of the first charge. The National Court (Los, J. OS 43 of 1999, 182 of 99) held that the Committal Court was without the jurisdiction on a matter stipulated for summary jurisdiction and which was in any case an offence that was time barred for prosecution. That review followed an earlier review (OS 733/98) of Andrew, J. in respect of Regina Tibol the alleged other party, who had also been charged with the "making of an objectionable publication". The Court in that case made similar orders for same reason. 

The Plaintiff says that following the presentation of evidence by prosecution in the committal proceeding in respect of the abduction charge on 17th March 1999 his Counsel made a submission of "no case". His statement in support says that his was a submission. 

"in which a number of preliminary issues were raised to show that the State does not have any evidence or prima facie evidence upon in which to commit the applicant/defendant to stand trial at the National Court"

Those issues are set out in the Statement filed in Support as follows:

"The first issue relates to the jurisdiction of the District (Grade V) Committal Court as provided for under section 94B, 94C, 95 and 100 of the District Court Act in that the presiding magistrate has the powers to make a ruling on the defendant's no case submission. 

1.6.2. The second issue relates to section 37(1), (3) and (8) of the Constitution. Under section 37(1) it was submitted for the defendant that he had the right to make a no case submission. Under section 37(3) it was submitted for the defendant that he be afforded a fair hearing within a reasonable time by an independent and impartial court. This was raised because the prosecution applied to further adjourn the matter to exercise an election to have the matter forwarded to the Public Prosecutor's office for an opinion. Under section 37(8) it was submitted for the defendant that he had earlier been charged under section 74(1) of the Classification of Publication (Censorship) Act. The presiding magistrate ruled at the Waigani District (Grade V) Committal Court that it has the power to proceed hearing the matter even though he agreed with the defence submission that the matter was summary offences matter and one that attracted the application of statutory limitation of six months. The defendant applied for judicial review of the decision of the District Committal Court and the National Court quashed that decision. That being the situation the Applicant/Plaintiff should not be tried for any other offence of which he could have been convicted at the trial for that offence except upon the order of a superior court made in the course of appeal or review proceedings. 

1.6.3.	The third issue relates to the key elements of the charge under section 220 of the Criminal Code. In particular the elements of: 

(a)	intention, and 
(b)	taking her or causes her to be taken out of the custody or protection of her father or mother or other person having the lawful care of charge of her, and against the will of that father or mother or person. 

It is submitted for the defendant it would be very difficult for the State to prove intent when the defendant had been acquitted on the charge under section 74(1) of Classification of Publication (Censorship) Act. As to the second element it would also be extremely difficult for the State to prove that the defendant took the girl out of the custody or protection of her father when his own statement states that he and his wife were divorced in 1976 and the girl (Regina) was under the care of the mother. There would in fact be no abduction at all.

1.6.4. The fourth issue raised relates to section 5 of the Criminal Code as it involves the element of carnal knowledge. It was submitted for the defendant that in order for the State to prove carnal knowledge it must prove that penetration did take place. The State simply cannot prove that because the girl (Regina) is not a party anymore by reason of the decision of the review court when the matter went for judicial review. 

1.6.5. The fifth issue raised relates to section 7 of the Criminal Code. It was submitted for the defendant that inorder for the State to be successful in prosecuting this matter, the girl must be brought in as a principal offender. This is very difficult now that the girl had been acquitted. 

1.7. Proceedings against the defendant and the girl (Regina) alleged to have been involved in the making of or producing an objectionable publication was brought under section 74(1) of Classification of Publication (Censorship) Act 1989. Both matters were dealt with by the Waigani District (Grade V) Committal Court of which both decision were challenged in the National Court under the review jurisdiction O.S. 733 of 1998 which came before Justice Andrews was the review in Regina's case and she was acquitted of her involvement in the production of an objectionable publication which decision was delivered on 26/27 January 1999. Similarly, O.S. 43 of 1999 which came before Justice Los was the review in the defendant's case and he too was acquitted of his involvement in the production of an objectionable publication which decision was delivered on 18 February 1999. The alleged video sex tape is therefore no longer in evidence and cannot be relied on by the presiding magistrate in arriving at the decision that there is evidence to commit the defendant to stand trial at the National Court. 

1.8. Her Worship, Daisy Magaru, at the Waigani District (Committal) Court on 17 March 1999 directed the prosecution to file their written submission on 31 March 1999. On 8 April 1999 the presiding magistrate delivered her decision that she was satisfied that there is evidence and committed the defendant to stand trial at the National Court. No reasons were given on the issues raised in the defendant's no case submission."

Shortly stated the Plaintiff contends that there is no evidence that can be brought against him because of the failure of the charge on the making of an objectional publication. Because that charge was struck out, because of it being brought out of time, the Plaintiff contends that all the evidence in that committal, including documents statements and tapes, could no longer be brought before a committal court in respect of the abduction charge. 

There is no arguable case in law here. 

The other contentions, in regard to the possible difficulty of the prosecution proving intent, or that a sexual offence was committed, are matters of evidence. There is no arguable case there either. Nor is there in the contentions that the "other party" needed to be joined as co-offender.

Thus the only issues raised by this application indicate possible challenges to the admissibility of certain evidence and contentions that the evidence is not sufficient. These are not matters going to the jurisdiction of the Committal Court there are specifically matters that may be raised at the trial before the National Court. That being so, this application for leave is declined.
_____________________________________________________________
Lawyer for the Plaintiff: Murray & Associates
Lawyer for the 1st & 2nd Respondent: Solicitor General