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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 22 OF 2004
BETWEEN:
SAKAWAR KASIENG
Plaintiff
ANDREW BAIGRY,
Magistrate of Wewak District Court
First Defendant
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
WAIGANI: KANDAKASI, J.
2004 11th February and 23rd June
ADMINISTRATIVE LAW – Judicial Review – Committal by coronial court – Coronial inquest – Conduct of inquest in breach of the Coroners Act – Effect of – Decision ultra vires the Act and in excess of jurisdiction – Breach of natural justice - No reasonable tribunal could have arrived at the decision in the circumstances – Constitution s. 37 (4) (e) and (f) - Coroners Act ss. 7 (3), 10 (a), 19 (1) and (2), 23 (1) and (2) – s. 96 Criminal Code s.300.
Cases Cited:
Lawrence Bokele v. The Police Commissioner and The State (Unreported judgment on 28/06/01) N2105.
Lawrence Bokele to Review the Decision of The National Court Refusing Leave to Review Decision of Police Commissioner (Unreported
judgment delivered on 05/04/02) SC682.
Peter Ipu Peipul v. Sheehan J, Mr Ori Karapo and Iova Geita (Consisting of the leadership Tribunal) & Ors.(Unreported judgment)
N2096.
Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & The Independent State of Papua New Guinea (Unreported judgment
delivered on 24/10/03) N2478.
Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C. & Ors (Unreported judgment delivered on 14/05/03) N2369.
Simon Ketan v. Lawyers Statutory Committee & Anor (Unreported judgment delivered on 28/09/01) N2290.
Rimbink Pato v. Anthony Majin & Ors (Unreported judgment delivered 30/04/99) SC622.
The State v. Ex parte Rush [1984] PNGLR 124.
Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State (Unreported
judgment delivered on 20/05/99) N1950.
Justin Wayne Tkatchenko v. Dessy Magaru (Unreported judgment delivered on 04/05/00) N1956.
Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd (Unreported judgment delivered 28/03/01) N2071 and Samson Dacany v. Noah Taia of The National Fisheries Authority (Unreported judgment delivered on 13/12/02) N2316.
Honourable Bernard Hagoria v. The Ombusman Commission of Papua New Guinea (Unreported judgment delivered on 26/05/03) N2400.
Iambakey Okuk v. Fallsheer [1980] PNGLR 274.
Leo Nuia v. Benias Sabumai [1992] PNGLR 90.
Counsel:
Nablu for the Plaintiff
F. Cherake for the Defendants
23rd June 2004
KANDAKASI, J: This is an application for leave for judicial review of decision by the first defendant as coroner under the Coroners Act[1], which committed him to stand trial on a charge of murder after a coronial inquest. Initially, the defendant did not oppose the plaintiff’s application, but I had serious doubts as to whether judicial review is available to review a decision of a committal court on a criminal charge. I therefore asked the parties to provide me with written submission in relation to that question.
At the outset, it is necessary to note that there is no contest that the plaintiff has sufficient interest in this matter. There is also no contest on the timing of this application. I find these aspects in favour of the plaintiff.
Contention of the Parties
Turning then to the points in contest, I note that the plaintiff is raising a number of contentions and therefore his grounds for his application. Firstly, he argues that, the first defendant erred in assuming jurisdiction after the lapse of 12 months from the date of the incident giving rise to the inquest and more so without the approval of the Attorney General in terms of s.7 (3) of the Act. Secondly, he argues that neither the first defendant nor the prosecutor assisting the coroner formally charged and informed him of the charge in accordance with the requirements of s. 19 (1) and (2) of the Act. Thirdly, he argues that, the Coroner erred in failing to admit certain available evidence that were favorable to him, including his own which he says, was not taken in accordance with the provisions of s.23 (2) of the Act. Fourthly, the plaintiff argues that the coroner denied him his right to legal representation contrary to the guarantee under s. 37 (4) of the Constitution, by refusing an adjournment he sought for the purposes of securing the services of a lawyer. Finally, he argues that in all of the circumstances, no reasonable tribunal could have arrived at the decision the coroner arrived at.
In relation to the question I raised with the parties, the plaintiff argues that, judicial review is available as a remedy to him because the Coroner acted in excess or ultra vires his jurisdiction, in view of the foregoing argument. The plaintiff cites a number of case authorities in support of his argument. I will refer to those in the course of the judgment.
The Defendants have now changed their mind from one of agreeing to the relief sought by the plaintiff to arguing that, judicial review is not available to review a decision to commit a person to stand trial before the National Court on a criminal charge. The essence of that argument is that the criminal process has not come to its finality and as such, this Court being a civil court cannot interfere with that process. This argument also relies on a number of case authorities, which I will also refer to in the course of this judgment. In relation to the grounds the plaintiff relies on for his application, there is no argument against them. This does not mean an automatic grant of leave, if the Court answers the first question in the affirmative. Instead, the Court must consider these on their merits and come to a decision. That is the law now per my judgment in Lawrence Bokele v. The Police Commissioner and The State[2] as approved by the Supreme Court in Application by Lawrence Bokele to Review the Decision of The National Court Refusing Leave to Review Decision of Police Commissioner.[3]
Issues
These arguments present a number of issues for this Court to determine. The issues are:
The Evidence and Relevant Facts
The relevant facts giving rise to these issues are set out in the affidavit of the plaintiff sworn on 05th and filed 23rd of January 2004 as well as the plaintiff’s verified statement in support also dated the 05th and filed on the 23rd January 2004.
From this material, it is clear that the plaintiff holds the rank of an Inspector with the Royal Papua New Guinea Constabulary after joining the Constabulary in 1978. In the year 2000, he was the officer in charge of the Police Task Force in Wewak. On 16th March 2000, a Biga Koni (deceased) was apprehended and brought into the Wewak Police Station for interrogation. After the interrogation on 24th March 2000, the deceased died from assaults he allegedly received during the interrogation. A coronial inquest seeking to establish the cause of the deceased death came three years and 7 months after the incident and the death of the deceased. No approval under s. 7 (3) of the Coroners Act was sought and obtained from the Attorney General. Notwithstanding that, the Coroner proceeded with the inquest and arrived at his decision to commit the plaintiff to stand trial before the National Court on a charge of murder under s. 300 of the Criminal Code.
At the outset of the inquest, the plaintiff asked the Coroner for an adjournment to enable him to secure legal representation at the inquest. The Coroner declined that application saying it was only an inquiry and not a trial requiring legal representation and as such, there was no need for any legal representation. The inquest then proceeded without the plaintiff having legal representation.
At the hearing, the plaintiff gave evidence generally testifying in terms of not having any idea about the assault on the deceased. Despite that, the Coroner asked the plaintiff at one stage of the proceedings to disclose the names of the police officers who assaulted the deceased. However, because the plaintiff had no idea about the assault on the deceased, he was not able to name any names and instead asked the Coroner to subpoena other police officers who might have some idea. Later as the inquest progressed, the plaintiff told the police prosecutor that a number of police officers were prepared to give evidence on the question of whether he (plaintiff) assaulted the deceased. The prosecutor refused to call any of these witnesses. A statement from one of the police officer’s who was prepared to give evidence is annexed to the plaintiff’s affidavit. The statement is from the police officer who carried out the interrogation of the deceased. He says nothing about the plaintiff being involved.
When it came to the decision, the plaintiff says the Coroner gave an oral ruling. He recalls the Coroner saying in his reasons for deciding to commit him:
"This youth would not have died if you had not arrested him. Since you were in charge of the Task Force and also commanding the operation at the time, you were responsible for his arrest, took him to the station and as a result he died a week later. I therefore find that you have much knowledge on the death of the deceased. That is why I find that there is a prima facie case against you. I therefore commit you to stand trial at the National Court."
However, a search of the records by him for the purpose of this application revealed a different version of what the Coroner said in Court. They read in so far as is relevant as follows:
"...[T]here is sufficient evidence which establishes a prima facie case against the officer namely, Sakwar Kasieng ... did on or about the 16th of March 2000 at Wewak police station Negligently inflict serious (sic) to the head and body of late BIGA KONI, who as a result of which died at the Boram General Hospital on the 24th of March 2000. Thereby contravening section 300 of the criminal code."
At the end of the decision, the plaintiff recalls being cautioned under s. 96 of the Criminal Code. His response was, "I know that I am innocent. The Court has made a serious mistake in implicating me." Again, a search of the records show his response being stated in terms of "I feel I am innocent. This Court has made a serious mistake in implicating me." The underlining in the quotation signifies the difference between what was said in Court and that, which was recorded in the records.
The plaintiff goes on to say that soon after announcing the decision to commit the plaintiff, the Coroner looked at Leo Kabilo, the Provincial Police Commander (PPC) the East Sepik Province and asked him as to where should the plaintiff be locked up. The PPC responded by saying, lock the plaintiff up at the police station until grant of bail. The plaintiff says he is not able to understand why there is a variation in the decision and the Coroner looking at the PPC and asking him as where he (plaintiff) should be locked up, instead of asking the prosecutor who was assisting in the inquest.
To date, the plaintiff has not been served with a formal charge under s. 300 or at all under the Criminal Code. All he knows is that he was to be charged under s. 300 of the Criminal Code from what was put to him at the time of the Coroner making his decision on 16th December 2003.
The Relevant Law
The principles generally governing judicial review are well settled in our jurisdiction. I re-stated them in Peter Ipu Peipul v. Sheehan J, Mr Ori Karapo and Iova Geita (Consisting the leadership Tribunal) & Ors[4] in these terms:
"It is well settled law now that, the purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting, with the Court’s own decision. Instead, judicial review is concerned with the decision making process, not the decision itself. The circumstances under which judicial review may be available are, whether decision making authority lacks, exceeds or abuses its powers, commits an error of law, breaches the principles of natural justice and reaches a decision, which reasonable tribunal could have not reached. This position has been made clear in large number of cases, decided by both this and the Supreme Court. A recent example of that, is the case of John Nemembo –v- Peter Peipul and the State SC 475, a decision of the Supreme Court, delivered on the 21st December 1994. See also the case of Kekedo –v- Burns Philip (1998-99) PNG LR 122 DCJ at 124." [5]
Where the subject of a review concerns a decision in the criminal process, the civil courts have generally showed reluctance in granting the relief sought. The main reason for this is the fact that, the committal process in our criminal justice system is only a preliminary process. By its nature, a committing authority does not make any decision that finally determines criminal liability or penalty. It is thus a preliminary process in our criminal justice system where the State makes public disclosure to a committal authority, evidence it relies on to support an application for committal for trial of a charge. The ultimate trial of the charge and therefore the evidence takes place at the National Court. It follows therefore that, upon committal, the National Court is seized of a matter in its criminal jurisdiction. That is where an accused has all his rights with the appropriate safeguards including the appeal process.
This appears clearly from a good number of decisions of both the National and Supreme Court. I referred to most of the cases on point in Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & The Independent State of Papua New Guinea.[6] This include my judgments in Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C.& Ors,[7] Simon Ketan v. Lawyers Statutory Committee & Anor[8] and the Supreme Court judgment in Rimbink Pato v. Anthony Majin & Ors.[9]
Both counsels have referred the Court to all of these and other cases. In the last of these cases, the Supreme Court had before it a case in which the appellant applied for and obtained interim orders against the police, effectively preventing them from conducting criminal investigations against him for complaints against him. On lifting of those orders, Mr. Pato appealed to the Supreme Court. In dismissing the appeal, the Supreme Court said, police should carry out their investigative function. No injunction can stop it because it is a constitutional function, which was merely a preliminary function.
I followed the import of the Supreme Court’s decision in my judgments in Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & The Independent State of Papua New Guinea,[10] Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C .& Ors[11] and Simon Ketan v. Lawyers Statutory Committee & Anor.[12] Strictly speaking however, these are not cases seeking to review a decision to commit.
There are other cases specifically on point. These cases repeat the foregoing and then go on to say that, where the committing authority or court exceeds or acts without jurisdiction, it would be appropriate for the National Court to intervene by way of judicial review. One of the earliest cases on point is the judgment of McDermott J., in The State v. Ex parte Rush.[13] In that case, the Daru District Court committed an accused to stand trial before the National Court despite non-compliance statutory time limits within which affidavits containing evidence against the accused had to be served. In the circumstances, the Court found that the committal was without jurisdiction and was therefore invalid from the outset and quashed the committal.
Sheehan J, (as he then was) repeated this in Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State.[14] The main issue in that case was, whether there was sufficient evidence to support the committal and eventually a trial. The Court ruled that, that did not concern the jurisdiction of the committal court, but a question of evidence which could adequately be dealt with at the National Court with all the available safeguards including the appeal process. Accordingly, an application for judicial review was declined.
Subsequently, Sevua J., in Justin Wayne Tkatchenko v. Dessy Magaru[15] reiterated the dangers of readily granting judicial review following a committal. His Honour then decided to grant an application for judicial review because of a denial of the applicant’s natural justice, in that he was not given the opportunity to give evidence if he wished before the decision to commit him.
I agree with the observations of Sevua J in the above case and all the statements of the law todate and the rational for the reluctance of the National Court in granting judicial review over committal court decisions in favour of a committal. The criminal court must be allowed to take its normal course unhindered. No right or interest of a person committed to stand trial before the National Court is finally determined or adversally affected by such a decision. At the same time however, I agree with the observations of Sheehan J in Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State.[16] There, His Honour said and I agree that, were a committal court has clearly exceeded or acted without jurisdiction, it is appropriate for the National Court to intervene. This proceeds on the basis that, where the committal court lacks jurisdiction, whatever it does, whether rightly or wrongly is at nullity because it has no power to act in either case. I consider it would be most unfair in terms of costs, and anxiety, to force a person affected by such a decision merely because it is a criminal process.
If the National Court were not ready and unwilling to act in such clear cases, it would lend itself to an abuse of the process by those who might be inclined to using them for reasons other than a proper exercise of the powers vested in the committing authorities. For if they know that their decisions are not open to judicial review, it might give them the courage to abuse it. After all, amongst others, judicial review is about safeguarding abuse, acting in excess of or usurping of powers by a decision maker.
On these bases, we could safely conclude in answer to the first issue raised in this case that, judicial, review is not a readily available remedy for a review of a committal courts decision to commit a person to stand trial before the National Court. However, in a clear case of error, particularly where a committing court obviously acts in excess of or without jurisdiction, judicial review is an available remedy to avoid further unnecessary costs and anxiety.
Present Case
In the present case, the decision deciding to commit the plaintiff to stand trial before the National Court was by the Coroner under the Coroners Act. It is settled law that, a statutory authority must act within the parameters of its enabling legislation: Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd[17] and Samson Dacany v. Noah Taia of The National Fisheries Authority.[18] Accordingly, in order to amount to a proper assumption of jurisdiction and exercise of it, there must be adherence to the requirements of the Coroners Act. A decision arrived at outside the parameters of the Act would amount to a decision that is ultra vires the Act, which is the subject of the first sub-issue under the second main issue in this case.
Section 7 of the Act provides for the conduct of coronial inquests into deaths in a wide range of circumstances. Subsections (2) and (3) provide in particular that:
"(2) Subject to this section, a Coroner shall inquire without delay into the manner and cause of a death occurring under any of the circumstances specified in Subsection (1).
(3) An inquest shall not be held after the expiration of 12 months from the date of a death, or after the expiration of 12 months from the date of finding a dead body, whichever is the later, unless the Principal Legal Adviser otherwise orders."
(Emphasis supplied)
There is no contest in the present case that, the death occurred on 24th March 2000. However, the relevant coronial inquest did not take place "without delay" as required by subsection (2) above and in any case within a period of 12 months from the date of the deceased death. Instead, the inquest got under way in September 2003, which was 3 years and 6 months after the deceased died on 24th March 2000. This could only happen with the approval of the Principle Legal Advisor (Attorney General). There is no contest that, the inquest proceeded without the required approval.
As will be apparent from the wording in both subsections (2) and (3), the legislature chose to use the mandatory shall. It follows therefore that a coronial inquest must take place without delay following a death in the kind of circumstances subsection (1) lists. If this does not take place and a period of 12 months lapses, no inquiry can take place without first obtaining the approval of the Attorney General. Clearly, on the evidence before me, neither of these mandatory requirements were met. It follows therefore, that the Coroner had no jurisdiction to conduct the inquiry. Consequently, it would mean that the Coroner fell into clear error when he assumed jurisdiction and proceeded in the way he did. This alone should be sufficient to grant leave to the plaintiff to proceed to judicial review.
There are however, a number of additional reasons supporting the decision to grant the plaintiff leave to proceed to judicial review. One of the notable on is the requirements under s. 19 (1) and (2) of the Act. These provisions, once again in mandatory language, requires a Coroner to do a number of specific things if it decides to charge a person for wilful murder, murder or manslaughter. The first of these things is to read the charge to the person charged and explain the nature in ordinary language. The second thing required is for the Coroner to say to the person charged these words or words to the like effect:
"Do you wish to be sworn and give evidence or do you wish to say anything? You are not obliged to give evidence or to say anything and you will not be prejudiced in any way if you decide to remain silent. If you do wish to be sworn and give evidence or if you wish to make a statement, whatever you say, whether on oath or not, will be taken down in writing and may be given in evidence at your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, that may have been held out to you to induce you to make any admission or confession of your guilt, but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat."
Thirdly, the coroner is required to put into writing, or cause to be put in writing, whatever the person charged says in response. Fourthly, if no warrant has been previously issued for arrest or detention of the person charged, issue one and commit the person for trial. Fifthly, he is required to bind on their own recognizance all persons examined by him to appear before the National Court to give evidence against the person charged. Finally, read back to the person charged his response to the charge and have it signed and if the person charged wishes, have him also sign it. The last requirement by implication requires the Coroner to ask the person charged if he wishes to sign his statement.
On the evidence before me, it is not clear whether the Coroner charge the plaintiff. The plaintiff says he was not charged and asked to answer to a charge. He is therefore waiting service on him a charge. The parts of the record before this Court shows that, the Coroner reached a decision to charge the plaintiff with murder, which is not consistent with the findings of the Coroner. The findings were that the plaintiff negligently inflicted serious, something that is not specified in the decision. I am unable to find that this is the same as charging and reading the charge to the plaintiff. The findings supported a charge of manslaughter under s. 302 and not murder under s.300 of the Criminal Code.
Further, the caution that was purportedly administered was under s. 96 of the District Court, which applies to a committal by a District Court. This was not a committal by a District Court. Instead, it was under the Coroners Act. Whilst the effect of these two different provisions is the same, it at least, shows a casual consideration of the relevant provisions of the relevant and applying legislation.
Furthermore, whilst the evidence reveals at the least, a recording of a statement purportedly in response by the plaintiff, her contests the accuracy of it. This is significant to the extent that, if it was read out to the plaintiff, it would have been corrected and the plaintiff would have been given the opportunity to sign it. There is no indication that the plaintiff was asked if he wanted to sign his statement in reply.
Finally, there is no indication in the evidence before me as to whether the Coroner bound the witnesses he had examined. Similarly, there is no indication of issuing a warrant for his arrest and or commitment following the decision to commit the plaintiff. The plaintiff’s uncontested evidence is that no warrant has ever been issued against him.
These are important procedural requirements the Coroner was obliged to adhere to, in order to properly commit the plaintiff. On the evidence as noted in the foregoing, the Coroner appears to have substantially failed to adhere to them in fact. Putting this together with the Coroner proceeding to conduct the inquest without first securing an approval from the Attorney General, leads in my view, to a ready conclusion that the Coroner, the first defendant acted ultra vires the Coroners Act.
The other reason warranting a grant of leave concerns a denial of the plaintiff’s natural justice in terms of denying him adequate and or reasonable opportunity to secure the services of a legal counsel. The Coroners Act is silent on the question of legal representation. The plaintiff relies on s. 37 (4) (e) and (f) of the Constitution to argue that he was denied his right to be represented by a lawyer in the coronial proceedings. A close examination of the provision makes it clear that, the provision concerns a person charged with a criminal offence. In this case, the plaintiff was not yet charged. The decision to charge the plaintiff came after the coronial inquest.
This does not mean, in my view, that this argument fails. Section 59 of the Constitution adopts the principles of natural justice. In Honourable Bernard Hagoria v. The Ombudsman Commission of Papua New Guinea,[19] I observed that:
"... [J]ust like a commission of inquiry or police conducting investigations into certain allegations or issues of concern to the public, the Ombudsman has wide powers to investigate, gather evidence, collate them and present them to the appropriate authority to take further action. The only requirement for these investigating authorities to adhere to is to appropriately note and grant those affected the right to be heard in their defence before arriving at a decision or conclusion."
I make the same observations here because a coronial inquiry is also an investigative process. It follows therefore that, all persons whose interest are likely to be affect by such an inquiry should be given every reasonable opportunity to be represented and be heard in there defence. This is a very basic right. Both the Supreme and this Court have long recognized and applied this principle. They have done so, even in cases where there is no requirement for a person to be heard. This is based on the principles of natural justice which requires a person whose right or interest is to be affected must be first heard unless expressly excluded: Iambakey Okuk v. Fallsheer[20] and Leo Nuia v. Benias Sabumai.[21]
Given this position of the law, persons whose rights or interest might be affected by commissions of inquiry, the Ombudsman Commission inquiries, and committal courts have invariably allowed legal representation after giving such persons reasonable opportunity to secure legal counsel and or representation.
In this case, the plaintiff, specifically asked the first defendant to grant him an adjournment so he could secure the services of a lawyer. The first defendant declined that application reasoning as he did that, the proceedings before him was not a trial but only an inquiry. In so deciding, I find that the first defendant fell into error. The reason he provided was not a valid reason to deny the adjournment and the decision ignored the fact that the plaintiff was entitled to legal representation if that was his choice. I take the liberty to observe that, if the first defendant granted the adjournment sought, the plaintiff could have secured the services of a lawyer. If he did that, the lawyer could have drawn to the first defendant’s attention the requirements of the Coroner’s Act, more importantly the ones noted above. That could have given the first defendant an opportunity not to committee those errors. In these circumstances, I find that the first defendant failed to fully accord the plaintiff his natural justice.
The final consideration on which the cases turns in terms of the reason to grant the leave sought is the claim by the plaintiff that, there were witnesses who were available to give evidence but were not given the opportunity to do so. This goes into the last and remaining issue of whether a reasonable tribunal could have arrived at the decision, the subject of this application in the particular circumstances of this case.
The entire purpose of a coronial inquest in the case of a death is to inquire into the entire circumstances surrounding the death, the subject of the inquest. Unlike in a trial, where a Court normally does not, on its own volition call a witnesses, a coronial inquest is similar to a commission of inquiry which is at total freedom to inquire into all the possible factors that could have contributed to or caused the death of a deceased person, as in this case. This as of necessity requires a calling and examination of all relevant and available witnesses and a consideration of their evidence before arriving at a decision as to the cause of the death.
In this case, the plaintiff provided the necessary lead and assisted the inquiry by asking the first defendant to subpoena other police officers. Then subsequent to that, he disclosed the names of witnesses that were available and the kind of evidence they had to the prosecutor who was assisting the inquest. It is not clear whether the prosecutor informed the first defendant of the matters the plaintiff brought to the prosecutor’s attention. Again, if the plaintiff was legally represented, his lawyer may have sought to adduce these available evidences before the inquest.
Quite apart from whether or not the prosecutor notified the first defendant of the availability of these witnesses and the evidence they had, it is a clear indication that the inquest was not exhaustive in its inquiry. This resulted in the omission of relevant and available evidence critical to the defence of the plaintiff. Given these, I find that, no reasonable coroner could have arrived at the decision, the subject of this application particularly, when it excluded relevant evidence, which could have caused the first defendant to arrive at a different decision.
In summary, I answer each of the issues raised in these proceedings as follows:
For this reasons, I am satisfied that the plaintiff has made out a case for grant of leave for him to proceed to a judicial review of the decision, the subject of these proceedings. In the interest of saving the parties extra unnecessary costs and to avoid an unnecessary taking of the Court’s time, I direct counsel to careful consider the effect of this decision with a view to resolving the substantive review by agreement of the parties, within 7 days from today. Failing any such agreement, I further order that the parties attend on the Registrar of the National Court and secured a date for an expedited hearing of the substantive review. In the meantime, I order a stay of all criminal proceedings and any other step being taken on the bases of the decision of the first defendant dated 16th December 2003, until the substantive review is determined.
I order costs against the defendants.
_____________________________________________________________
Lawyers for the Plaintiff: Murray & Associates Lawyers.
Lawyers for the Defendants: Solicitor General.
[1] Chp.32.
[2] (Unreported judgment on 28/06/01) N2105.
[3] (Unreported judgment delivered on 05/04/02) SC682.
[4] (Unreported judgment delivered 25/05/01) N2096 at p.6. The outcome was reversed by the Supreme Court, which has not yet provided its reasons. But in it subsequent judgement
after the grant of leave by the Supreme Court, the Court upheld most of the reasons for the National Court’s decision in the
Context of an appeal against a decision of her Honour Justice Davani.
[5] I applied these principles in the subsequent cases of Aloysius Eviaisa v. Sir Mekere Morauta Prime Minister & Ors (09/11/01) N2144 (result overturned by the Supreme Court in Sir Mekere Morauta v. Aloysius Eviaisa & Ors, (08/05/02) SC 685, but the principles affirmed in effect); Lee & Song Timber
(PNG) Co Ltd v. Nathanael Burua & Ors (21/07/03)N2404 and several others.
[6] (Unreported judgment delivered on 24/10/03) N2478.
[7] (Unreported judgment delivered on 14/05/03) N2369.
[8] (Unreported judgment delivered on 28/09/01) N2290.
[9] (Unreported judgment delivered 30/04/99) SC622.
[10] Op ct n 6.
[11] Op ct n 7.
[12] Op ct n 8.
[13] [1984] PNGLR 124.
[14] (Unreported judgment delivered on 20/05/99) N1950.
[15] (Unreported judgment delivered on 04/05/00) N1956.
[16] Op ct n 14.
[17] (Unreported judgment delivered 28/03/01) N2071.
[18] (Unreported judgment delivered on 13/12/02) N2316.
[19] (Unreported judgment delivered on 26/05/03) N2400.
[20] [1980] PNGLR 274.
[21] [1992] PNGLR 90.
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