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Liri v State [2006] PGNC 120; N3110 (17 November 2006)

N3110

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 420 OF 2006

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 155(4) OF THE CONSTITUTION

BETWEEN

RICHARD LIRI AND PHILIP KIT KINOMEN
Applicants

AND

THE STATE
Respondent

Kokopo: Lay J
2006: 17 November

APPLICATION TO QUASH INDICTMENT − nature of application − judicial review − magistrates failure to comply with s 94 C(2) of District Courts Act −3 years delay in making application −delay prejudicial to good administration − relief refused.

Facts

The accused were committed for trial on a charge of wilful murder in May 2003. In June 2006, the applicants sought to quash the committal by application pursuant to s 155(4) of the Constitution. There was no evidence that the committing magistrate had made the enquiry required by s 94C(2) of the District Courts Act.

Held

The application was one for judicial review. The application would be treated as an application for leave. It was not an application pursuant to s 155(4) of the Constitution. There is an arguable case that the committing magistrate had not complied with the requirements of
s 94C(2) of the District Courts Act to make enquiry that the persons making written statements had read and understood them. However the unexplained 3 year delay in making the application was prejudicial to good administration. Nothing is finally decided by the committal proceeding. The applicants’ constitutional rights will be protected on trial from any deficiency in the evidence. The best course is for the Court in its civil jurisdiction not to interfere with the ordinary course of the criminal jurisdiction. For those reasons leave to proceed with judicial review is refused.

Cases Cited

Papua New Guinea Cases
State v Tanedo [1975] PNGLR 395;
SCR No 2 of 1981; Re s19(1)(f) Criminal Code [1982] PNGLR 150;
National Airline Commission trading as Air Niugini [1983] PNGLR 1;
Ombudsman Commission v Dohonue [1985] PNGLR 348;
NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70;
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122;
Papua New Guinea Pilots Association v Director of Civil Aviation and Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153;
Application of Demas Gigimat [1992] PNGLR 322;
Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22;
State v Kai Wabu [1994] PNGLR 498;
Robert Lak v Dessie Magaru [1999] PNGLR 572;
Steamships Trading Co Ltd v Garamut Enterprises Ltd; N1959
Jimmy Mostata Maladina v Posain Poloh (2004) N2568; referred to

Overseas cases
Ex parte Cousens; Re Blacket and Anor [1946] NSWStRp 36; (1947) 47 SR (NSW) 145
Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1981] UKHL 2; [1982] AC 617;
Council of Civil Services Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 ALL ER 935;

Counsel
J. Isaac, for the Applicants
L. Rangan, for the Respondent

17 November, 2006

1. LAY J: The Applicants make application to quash their committals to stand trial for wilful murder. The Applications are made on the basis of procedural irregularities alleged on the part of the Police in preparing the written statements of the witnesses and procedural irregularities on the part of the committing magistrate.

2. The Applicants intimated that this application would be made when they came before me for the purpose of the State presenting an indictment against them. The indictment was not presented and the proceedings were adjourned in order that this application could be made.

3. There is no right of appeal given by statute from the decision of a magistrate to commit for trial. The Applicants submit that this is an application pursuant to s 155(4) of the Constitution. They submit that it is similar to a human rights application where the applicants are seeking to enforce their rights to a fair hearing pursuant to s 37(3) of the Constitution. It is submitted that the Court should invoke s 185 of the Constitution. It is also submitted that judicial review is not available, as it is only available where there is a breach of natural justice.

4. First, I reject the submission that this is an application pursuant to s 155(4) of the Constitution. The Supreme Court has said on numerous occasions that the section does not grant original jurisdiction. The provision is an enabling one to extend the powers to make orders suitable to the circumstances of any case. It is a secondary power to make orders. But there must first be a primary right founded in some other law which can be enforced by making an order pursuant to s 155(4). The powers granted by s 155(4) are powers to make orders "in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case." That is not a power to make up the law or to create new causes of action or new relief not founded on an existing right.

5. In SCR No 2 of 1981; Re s 19(1)(f) Criminal Code[1] Chief Justice Sir Buri Kidu said about s 155(4):

"It does not however, vest in the National Court or the Supreme Court, the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law."

6. Kapi J, (as he then was) said:

"In my view the words "such other orders" are to be interpreted to relate to orders of a similar character as referred to in the first limb of s. 155(4) of the Constitution. The use of the word "such" in the provision compels me to come to such conclusion. As to what are these specific orders it is wise not to attempt an exhaustive list. However, these orders must have some resemblance in character or in nature to the prerogative writs. An essential character of prerogative writs in this context is that they are remedial in nature. That is to say they are processes by which the rights of parties are protected or enforced. The existence of a right is essential to the availability of a prerogative writ. The orders in the second limb must have these characteristics. That is the limitation to the types of orders that can be made under the second limb of s. 155(4). It cannot be read to mean any type of order whatsoever. This is a conclusion reached by a pure construction of the provision itself. The section does not set out such matters as persons who are entitled to apply for such orders (locus standi) and grounds upon which such orders may be given. These are matters which can be determined by reference to the principles of common law and equity under Sch. 2 of the Constitution.

7. Whilst there was some divergence of approach by other members of the Court Kearney DCJ agreed that:

"s 155(4) is directed solely to the power of the court to issue preventative or remedial judicial process for the purpose of protecting or enforcing a party’s primary rights. It is concerned with a party’s secondary rights."[2]

8. Greville-Smith J said considered "other orders" meant:

"procedural orders and such orders as may be necessary to enforce the substantive law in a particular case.[3]

9. And Pratt J said:

"...if a person has any rights at all, such rights must find there genesis in either statute or the underlying law...The rights vested in a citizen by the law are there to be enforced by the courts and not to be created by the courts, save in the limited way I have already outlined."

10. The relief sought by the Applicants in this case is inter alia "An order in the nature of certiorari to remove into this Court and quash the orders of the Kokopo District Court..." and "An order in the nature of mandamus to have the committal order of the District Court quashed..."

11. Order 16 of the National Court Rules provides that:

1(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of application for judicial review in accordance with the provisions of this order."

12. The grounds relied upon are alleged breaches of s 94(1A) and s 94C (2) of the District Courts Act. These are identical grounds to those raised in Jimmy Mostata Maladina v Posain Poloh (2004) N2568, an application for judicial review decided on another ground. I have no doubt that this is an application for judicial review and consequently it should have been brought in the form and following the procedure required by O16. However, the State took no issue with the form of the proceeding, nor was it suggested by the State that it was disadvantaged by not understanding the issues raised by the application. It is a similar situation to the procedural situation in Robert Lak v Dessie Magaru [1999] 572, except that in that case there was also no originating summons. The Court went on to treat the application as an application for leave for judicial review. I will treat this application as an application for leave for judicial review.

13. On an application for leave the Court must be satisfied that the applicant has sufficient interest in the subject matter of the application: See O16 r 3(5). Only questions of standing which are obvious should be resolved at the leave stage. Sufficient interest might be demonstrated by interests of property, legal or financial nature but can include civic (community) environmental, cultural interests and areas of special expertise: See Judicial Review of Administrative Action, de Smith, Woolf and Jowell 5th Ed 127 cited in N1595 Steamships Trading Co Ltd v Garamut Enterprises Ltd, Sheehan, J. Papua New Guinea Pilots Association v Director of Civil Aviation and National Airline Commission trading as Air Niugini [1983] PNGLR 1 at 3, Sakora, J.

14. The role of the Court on an application for leave to seek judicial review is simply to express a view as to whether or not the case might be arguable based on a quick review of the Plaintiff’s material. If the judge forms the view that on a closer examination it may turn out that there is an arguable case for granting the relief then leave should be granted: See Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1981] UKHL 2; [1982] AC 617 at 644 applied in NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70 Wilson, J. Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153, Sheehan, J. The Court need only be satisfied with the requirements of O16 r 2, r 3, & r 5. The Court is not required to address the matters in O16 1(2). Substantive issues should be considered at the substantive hearing: See Ombudsman Commission v Dohonue [1985] PNGLR 348 at 361 applied in Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22. The Court is not necessarily concerned with the merits of the decision but with the decision making process: See Application of Demas Gigimat [1992] PNGLR 322 Woods, J. Judicial review may be available where there is a lack of power, there is an error of law on the face of the record, there is a breach of the rules of natural justice, or in breach of the Wednesbury principles a power is exercised in an unreasonable manner, or a decision is made which no reasonable tribunal could have reached: See Council of Civil Services Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 ALL ER 935 per Roskil LJ; Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122 at 124 per Kapi DCJ.

15. There should not be undue delay in making the application: See O16 r 4(1). The application can be refused if the Court is of the opinion that to grant the relief would be "detrimental to good administration."

16. The first ground of the application is that the statements of evidence relied upon in the committal court was all in the English language and that there was no certificate of translation to pisin or another language which might be understood by the maker of the statement. Injia DCJ adverted to the need for an interpretation certificate "If the statement is recorded in a language different to the one used by the maker of the statement." : See State v Kai Wabu [1994] PNGLR 498. In this case the applicants do not know the witnesses and are unable to say whether or not they speak English, which is the language in which the statements were recorded. Detective Chief Sergeant David Anton Yapu gave evidence that each of the persons giving a statement understood the English language. The statements were taken in English. Each of the statements contains the acknowledgement required by s 94(1A) which provides:

"(1A) A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:—

'I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

Signed'."

17. That really disposes of that issue. There is no evidence to the effect that the acknowledgement required by s 94(1A) is insufficient and that an interpretation certificate was also required by reason of the makers of the statements not understanding the English language.

18. The second ground is that there is no evidence that the committing magistrate satisfied himself in terms of s 94C(2) of the District Courts Act which provides:

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

19. It has to be appreciated that this provision is contained in the District Courts Act in the context that a defendant may not cross examine the State witnesses: See s 96(3).The defendant’s rights are restricted to making a statement in his defence: See s 96(1), except where the Court considers it expedient to allow him to call oral evidence: See s 94(6)(b).

20. Consequently it is very important that evidence admitted against the defendant be admitted strictly in accordance with the provisions of the Act. Injia DCJ said in State v Wabu [1994] PNGLR 498:

"The combined effect of s94(1A) and s 94C(2) is that the committal court must conduct an enquiry to ensure that the statement was made by the maker of the statement whose signature appears on the statement. He must ensure that the maker of the statement has full knowledge of not only the contents of the written statement but also of the correctness and truth of the written statement. This requirement under s 94C(2) is mandatory and requires strict compliance. This enquiry is an independent one, which the court must conduct in the exercise of its judicial function. After having conducted the enquiry, the court then has a discretion to admit or reject the written statement, depending on the Court’s conclusion. The Court must then record the nature and extent of the enquiry conducted and record its findings. Failure to conduct such enquiry and record its finding may result in voiding of the committal."

21. In that case, the accused did not challenge the committal. In fact the indictment was presented and the accused on arraignment pleaded guilty to the charges.

22. In the case before me the evidence of Detective Sergeant Albert Mapo is as follows:

"3. In the committal court, the Prosecutor tenders the original file, as well as the other two copies (one for the state and one for the Defence).

4. This procedure is called the Hand Up Brief (HUB),and according to what Police Prosecutors and I have been doing, we do not require or call State witnesses for examination purposes because this has to be done at trial proper in the National Court.

5. When the Committal magistrate receives the original file, he then peruses it to make sure that there is prima facie case for the purpose of committing the persons concerned to the National Court for trial.

6. The procedure discussed in paragraphs 1-5 above is what I follow and also what the committal Magistrate did in relation to the wilful murder case of Richard Liri and Philip Kit Kinomen."

23. Prima Facie a person who has signed a s 94(1A) certificate has read and understood the statement to which it is attached. But if the role of the committing magistrate was simply to peruse the statement and make sure that it contained a s 94(1A) certificate then surely the legislature would simply have provided for that. For that reason I agree with Injia DCJ that the committing magistrate has to be satisfied on his own enquiry. Now to make that enquiry he has to have available to him evidence, either from the witness who made the statement or some person who was present when the statement was made on whose veracity the magistrate is prepared to rely to form his opinion. If evidence is taken there must be a record of it being taken. And there must be a record of the decision which the magistrate has made based on that evidence.

24. In this case there is no evidence on the Court worksheet that the magistrate took any evidence by which he could become satisfied, nor is there any record that he was satisfied in terms of s 94C(2).

25. I therefore find that:

1. The applicants have standing;

2. No other remedies are available to them;

3. There is an arguable case that the provisions of s 94C(2) of the District Courts Act were not observed.

26. However, the applicants in this matter were committed for trial in May 2003. This application was brought some three years later. No explanation has been offered for the delay. The application was brought when the application were being brought to their trial. It has disrupted the orderly listing of matters for trial. To grant the relief now and send the applicants back for a rehearing in the District Court, which I consider would be the proper result if relief was granted, will unduly delay the trial list.

27. Secondly as Sevua J observed in Justin Tkatchenko v Dessy Magaru; N1956, no rights are finally determined by a committal court. If there is a deficiency in the evidence, the applicant’s constitutional rights will be protected in the National Court. The best course is for the Court in its civil jurisdiction to avoid interfering with the exercise of its criminal jurisdiction. Although many applications for judicial review of committal court decisions have been heard and allowed in Papua New Guinea, the traditional view is that should not happen: See the discussion in State v Tanedo [1975] PNGLR 395 (Prentice DCJ) where his Honour refers to Ex parte Cousens; Re Blacket and Anor [1946] NSWStRp 36; (1947) 47 SR (NSW) 145 where Sir Frederick Jordan speaking for the court concluded in respect of the nature of committal proceedings and the attitude of superior courts to review of committal decisions:

"This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly 400 years no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v Coleridge [1822] EngR 19; (1882) 1 B & C 37".

28. That cannot be said to have been the practice in Papua New Guinea. However I take the view that such review should be confined to those cases which cry out injustice and where the application for review is made without delay.

29. For those reasons I decline to grant the relief sought as I consider that to grant relief after such a long delay would be prejudicial to good administration of the criminal list.

Paraka Lawyers: Lawyers for the Applicants
Public Prosecutor: Lawyers for the State

^[1] [1982] PNGLR 150 at p.171
^[2] at page 158
^[3] at page 169