N2999

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 450 of 2005

Between:

James Yali
-Plaintiff-

And:

The State
-Respondent-

Waigani : Injia, DCJ
2005 : August 5th, 9th

Judicial Review – District Court – Committal proceedings – Leave application – Arguable case - Error of law – Whether Committal Court failed to conduct an inquiry under s.94(c)(2) of the Districts Act (Ch. No. 40) in respect of police witnesses’ statements.

Counsel:
P. Kingal for the Plaintiff
F. Kuvi for the Respondent

9th August 2005

INJIA, DCJ: The plaintiff applies for leave to apply for judicial review of the decision of the First Respondent, sitting as the Magistrate of the District Court at Madang, made on 16 February 2005, to commit the Plaintiff to stand trial on three (3) charge of sexual offences. If leave is granted, the plaintiff intends to apply for certiorari to quash the said decision. The application is made under Order 16 r 3 of the National Court Rules.

The Plaintiff relies on the statement in support filed under O16 r 3(1) and his affidavit sworn on 15 June 2005. The Respondent contests the application. It relies on the affidavit of the Public Prosecutor Mr. Chronox Manek sworn on 05 August 2005.

Arguments by counsel were made on the four (4) requirements for leave in the following order – locus standi, exhausting of other statutory remedies, delay and arguable case. Locus standi and exhausting of other statutory remedies are not in issue.

On the issue of delay, the relevant undisputed facts are that since the decision to commit made on 16 February 2005, the plaintiff filed this application on 15/6/05, which is on the second last day of the 4 months period allowed by Order 16 r 4(2). The application made now is more than 5 months after committal date. In this period, the National Court has per-trialed the matter and the trial of the criminal matter is now fixed for Monday 8th – 12th August 2005 at Waigani. Under s.557 of the Criminal Code, the actual trial will commence when the indictment is presented by the Public Prosecutor and the accused (the plaintiff) is called upon to plead to the indictment.

Mr. Kingal for the plaintiff submits that there is no delay in making the application because his client filed the application within time. He submits by virtue of s.557, the criminal trial in the National Court has not yet commenced. The proceedings in the National Court after committal and before commencement of the trial under s.557, is administrative. For that reason, even if there is undue delay in making this application, the "good administration of the criminal process" in the National Court will not be affected: Order 16 r 4(1).

Mr. Kuvi for the Respondent submits that even though the application was filed within time, the actual application is now made on the 11th hour and it is an attempt by the plaintiff to sabotage the criminal trial which will commence on Monday 8th. The State has made preparation for witnesses to be brought in and it is ready to proceed with the trial.

The issue for determination before me is whether there has been a delay in making this application. The answer to this issue lies squarely in the wording of Order 16 r 4 which provide:

4.	Delay in applying for relief. (UK 53/4)

(1)	Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a)	leave for the making of the application; or
(b)	any relief sought on the application,

if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

(2)	In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.(My emphasis)

In my view, no question of delay arises because the application is made within the four (4) months allowed. I take the phrase "the application for leave under Rule 3 is made" in rule 4(1) to mean or include "filing" of the application for leave. The application for leave in the present case was filed within time. Therefore, I am of the view that the question of delay or undue delay does not arise for my consideration. Also the issue of whether the grant of leave will sabotage the criminal process or trial and therefore, it would be "detrimental to good administration of the criminal justice process" does not arise. Further, it is also not necessary to decide if the National Court proceedings conducted after committal and before the process under s.557 of the Criminal Code is commenced is "administrative" only and therefore, the committal decision is amendable to judicial review by the National Court. I leave these issues to be decided in an appropriate case by another Court in the future.

On the issue of arguable case, the plaintiff sets out six (6) proposed grounds of review, which allege errors of law or breach of prescribed procedure under s.94 of the District Court Act. Essentially, he says the Magistrate failed to conduct an inquiry to satisfy himself as to the correctness and truthfulness of the witnesses’ statement as required by s.94(c)(2): The State v Kai Wabu [1994] PNGLR 498. If he had conducted the inquiry, the plaintiff would have shown that the victim gave two (2) other prior statements which contradicted the third statement placed before the Court and relied upon by the Court to commit him. There was no evidence to show that she understood the statement, its correctness and truth before she signed it. Also, there was no medical certificate of birth to show the age of the victim because in two (2) of the charges, age of the victim was an element of the offence. If the Magistrate had conducted the inquiry, the plaintiff would have put these matters to the Court and tested the State case through cross examination of witnesses, etc, and the Court would have exercised its discretion differently.

Mr. Kuvi submits the victim was a 17 year old High School student and this is shown in her written statement. There is no reason for the Magistrate to conduct an inquiry under s.94(c)(2) to ascertain if she understood the content of the statement and knew them to be correct and true, before she signed. The other two (2) statements goes to her credibility and these can be put to the victim in the pending criminal trial to test her credibility. The Court was conducting a committal process under the hand-up brief procedure where it was obvious to him that all the witnesses’ statements were in order and there was no reason to conduct a further inquiry. For these reasons, the application should be dismissed.

I have read the Magistrate’s reasons for decision and the District Court Committal papers attached to the plaintiff’s affidavit. I am satisfied that all the deponents of the various statements, in particular the victim’s statement complies with the formal requirements of s.94c. I am satisfied that the victim is a High School student and her age was shown on her statement which was before the Court. The other State witnesses who gave statements were well versed in the English language. In the circumstances, there was no reason for the Magistrate to conduct an inquiry of the type I contemplated in Kai Wabu’s case. I also consider the issue of opening up the committal process for cross examination of deponents was not raised on its own but as part and parcel of the main submissions under s.94c(2). As such the Magistrate did not address this issue on its own. I agree with the Magistrate that in the circumstances of the present case, "the makers of the statements are well versed in English language and have read and understood the contents of their statements. They have certified to undergo the consequences of anything they said was knowingly false or misleading. The Court has no reason at all to doubt the accuracy of their statements." In the circumstances, I am not satisfied that the plaintiff has an arguable case on the proposed grounds of review.

I am of the view that the plaintiff also will not be without a remedy in using the two prior statements of the victim to his advantage, because at the criminal trial, it is open for him to challenge the victim’s credibility and the credibility of other State witnesses using the two (2) prior statements of the victim. 

For these reasons, I refuse leave to apply for judicial review.
_____________________________________________________________________
Lawyer for the Plaintiff			:	Pius Kingal & Associates
Lawyer for the Respondent			:	Public Prosecutors.