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Dowa v Independent State of Papua New Guinea [2009] PGNC 184; N3819 (16 December 2009)

N3819

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 188 OF 2009

BETWEEN

PAULUS M DOWA
Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mount Hagen: Makail, J
2009: 14th & 16th December

APPEALS - Criminal law - Appeal from District Court - Committal proceedings - Transfer of - District Court locations - Indictable offences - Jurisdiction - Exercise of discretion - Factors relevant to exercise of discretion discussed - Constitution - Section 37 - District Courts Act - Sections 24, 122 & 123.

Cases cited:

The State -v- Vele Veole (1990) N902
The State -v- Mathias Robert (2009) N3606
The State -v- Michael Marabe (2009) N3637

Counsel:

Appellant in person
Mr P Kaluwin, for Respondent

JUDGMENT

16th December, 2009

1. MAKAIL,J: In this appeal, the appellant, a private lawyer and proprietor of the law firm of Paulus Dowa Lawyers based in Mt Hagen was charged by police with several charges of misappropriation of monies and conspiracy to defraud under sections 383A(1)(a) and 407(1)(b) of the Criminal Code, following his arrest on 04th November 2009 in Mt Hagen. On 5th November 2009, he appeared before the Mt Hagen District Court for committal hearing to take place since the alleged offences were indictable and would require determination by the National Court if he is committed to stand trial. Without prior notice to him, the police prosecutor applied to the Court to have the committal proceeding transferred from Mt Hagen to Waigani on the basis that the alleged offences were committed in Port Moresby.

2. The appellant was “caught by surprise” by this application. Nonetheless, he argued that the committal proceeding should remain in Mt Hagen as the alleged offences were committed in Mt Hagen and that it would be inconvenient and costly for him and his witnesses to attend the committal proceeding at Waigani as he resides and works in Mt Hagen so as his witnesses. The learned magistrate ruled that the committal proceeding be transferred from Mt Hagen to Waigani. The reason he gave was that, he did not have the jurisdiction to deal with the committal hearing as the alleged offences were committed in Port Moresby, hence the committal proceeding should be transferred to Waigani for further hearing.

3. In his notice of appeal filed on 11th November 2009, the appellant raised 6 grounds of appeal and argues that, first the learned magistrate erred in law when he held that he did not have jurisdiction to deal with the committal proceeding in Mt Hagen. He argues that the learned magistrate did have jurisdiction to deal with the committal hearing in Mt Hagen. In that respect he argues that, whilst there are no expressed provisions in the District Courts Act (“Act”), for transfer of committal proceedings from one location or place to another, there is section 24 of the Act which authorizes the District Court to transfer proceedings from one District Court to another. He submits that this includes committal proceedings.

4. Secondly, and proceeding on the premise that the learned magistrate did have jurisdiction to deal with the committal proceeding in Mt Hagen, he submits that the learned magistrate fell into error in the exercise of his discretion in law and fact when he decided to transfer the committal proceeding from Mt Hagen to Waigani. He argues that the learned magistrate failed to take into account matters relevant to the exercise of discretion such as, the alleged offences were committed in Mt Hagen, location of witnesses in Mt Hagen and it would be inconvenient for him to travel to Waigani to attend the committal proceeding. It is inconvenient because it would be too costly for him to travel to Port Moresby in terms of airfares, hire car and accommodation including other living expenses if the committal proceeding is to take place at Waigani and he would also be absent from work.

5. In terms of the location of the offences, he argues that the alleged offences were committed in Mt Hagen because the charges rose from cheques collected from the State through the Solicitor General’s office at Waigani in satisfaction of a judgment debt of K3,854,995.15 as damages for unlawful destruction of properties of villagers in Tari of the Southern Highlands Province by police in August of 1995 in proceeding WS No 1185 of 1996. The cheques, 8 in total were paid by installments and collected and deposited in his firm’s account established at Mt Hagen BSP bank and funds were subsequently dispersed to the recipients. These facts establish that that the alleged offences took place in Mt Hagen, thus the committal proceeding should remain in Mt Hagen.

6. Finally, he argues that the learned magistrate erred in law when he did not give him an opportunity to be heard in that, the application was made without prior notice, thereby giving him no or less time to prepare and respond to it. This was in breach of his right to be heard.

7. Mr Kaluwin of counsel from the Public Prosecutor’s Office appearing for the respondent concedes that the learned magistrate made an error in law when he held that he did not have jurisdiction to deal with the committal proceeding against the appellant in Mt Hagen and transferred it to Waigani. He says that the District Court has always had jurisdiction to deal with committal matters in any given location or place and it would be wrong to suggest otherwise. He refers to a National Court decision of The State -v- Vele Veole (1990) N902 to support his submission where Salika, J (as he then was) held that there was no statutory requirement for the proposition that the Court in the particular area where the offence was committed should be the only Court to commit the accused to the National Court.

Ground 1 - Jurisdictional basis of committal proceedings

8. First, I deal with ground 1. It raises the issue of jurisdiction of the District Court in relation to committal proceedings. It is apparent that there are no corresponding provisions in the Act in respect of indictable offences providing for venue of committal proceedings and also transfer or adjournment to different locations or places, as in sections 122 and 123 where they make provision for venue and adjournment to different locations or places for summary offence cases. For the benefit of the parties, I set out these provisions in full below. Section 122 states:

“122. Venue of summary cases.

(1) Subject to this Part, informations of simple offences shall be heard and determined at a place appointed for holding court within the province in which the offence or breach of duty was committed or in which the defendant usually resides or is at the time when the information is laid.

(2) If the offence was committed outside a province, but within 33 km of the boundary of the province, the information may be heard and determined, subject to Subsection (6), at a place appointed for holding Court within that province or within the province in which the offence was committed.

(3) If the offence was committed on a vessel within the territorial sea, or in any case with the consent of the defendant, the information may be heard and determined at any place in the country appointed for holding Court.

(4) An information of a simple offence or an indictable offence triable summarily against a law relating to companies may be heard and determined, subject to Subsection (6), in the province in which the registered office of the company is situated, or at Port Moresby.

(5) An indictable offence triable summarily under Section 420 of the Criminal Code 1974 shall be heard and determined in a District Court constituted by a Principal Magistrate.

(6) For the purposes of Subsection (5), the sittings of the District Court for the hearing and determination of indictable offences triable summarily may be held at such time and place as determined by the Court.”

Section 123 states:

“123. Adjournment to different place.

Where an information of a simple offence or an indictable offence triable summarily may lawfully be heard and determined at any one of two or more places, if, on the hearing of the information at one of those places, it appears to the Court that the hearing would more conveniently take place at another of those places, the Court may -

(a) adjourn the matter to that other place; and

(b) commit the defendant in the meantime or discharge him on bail on recognizance, oral or in writing, conditioned for his appearance at the time and place to which the hearing is adjourned,

and the defendant and every witness summoned to give evidence is bound to attend at that time and place.”

9. The case of Vele Veole’s (supra), which Mr Kaluwin cited in his submission of which I am indebted was a case where Salika, J (as he then was) declined to quash an indictment on the accused’s application that it was invalid on the basis that, the Boroko District Court which committed the accused to stand trial in the National Court did not have jurisdiction as the alleged offence of misappropriation was committed in Tabubil. In reaching that decision, his Honour held that there was no statutory requirement for the proposition that the Court in the particular area where the offence was committed should be the only Court to commit the accused to the National Court.

10. The facts of the case before me are not the same as the case before his Honour. In this case, I am concerned with the decision of the learned magistrate to transfer the committal proceeding from Mt Hagen to Waigani on the basis that he did not have jurisdiction in relation to offences allegedly committed in Port Moresby. But the rational is the same and I must agree with his Honour’s observation that, “[I]n proceedings in cases of indictable offences there is no statutory requirement for laying of information only in the place where offence was committed and for committal proceeding to take place only at the place where the offence was committed. This is understandable for the reasons that Constitutional provisions be complied with that every person arrested or detained should be taken to court as soon as practicable.”

11. I might also add here that if it is intended that the laying of information is to take place in the location or place where the offence is committed and for committal proceedings to take place only at the location or place where the offence is committed, I am sure Parliament would have included an express provision to cover for these situations in the Act. Conversely, I also consider that there is no express provision in the Act prohibiting an information from been laid on a person accused of committing an offence in a totally different location or place to that of where the alleged offence took place and for the committal proceeding to take place because this would enable police to arrest and charge persons wherever they are located and once charged may be brought to the District Court where they are located for committal hearing to take place if the alleged offence is an indictable one.

12. This is to ensure that an accused person’s right to be brought to Court as soon as practicable under section 37 of the Constitution is upheld. So indeed, there is no statutory basis for the proposition that committal proceedings are to take place at the location or place where the alleged offence took place. In other words, committal proceedings may take place anywhere or at the place where the accused person is located even though the alleged offence is not committed there. This is where, with respect, I find the learned magistrate fell into error when he held that he did not have jurisdiction to hear the committal proceeding in Mt Hagen and transferred it to Waigani. This ground of appeal is upheld accordingly.

Grounds 2 & 6 - Relevant factors for exercise of discretion

13. Having found that the learned magistrate did have jurisdiction to hear the committal proceeding in Mt Hagen, it is noted that he went ahead and transferred it from Mt Hagen to Waigani. This decision raises the following issues; whether or not he did have power to transfer the committal proceeding from Mt Hagen to Waigani and if he did, whether or not he properly exercised that power. That is, how did he exercise that power or what factors did he take into account to rule that the committal proceeding be transferred to Waigani? These are the issues raised in grounds 2 & 6 of the notice of appeal.

14. In relation to the first issue, the nearest provision in the Act that might throw some light on this “grey area” in relation to jurisdiction and transfer of committal proceedings is section 24. It states:

“24. Transfer of proceedings.

(1) Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court.

(2) ..............” (Emphasis added).

15. I note that unlike summary offences cases or cases of indictable offences tried summarily under section 123 of the Act cited above, where the District Court is given discretion to transfer proceedings to another location or place if “it appears to the Court that the hearing would more conveniently take place at another of those places”, there is none under section 24 of the Act cited above. Section 24 refers to “proceedings” that have been commenced in a “Court”. The “Court” is defined by section 1 of the Act as “District Court”.

16. My interpretation of this provision therefore is that, a District Court may stay proceedings commenced before it. It may do that if an application for stay is made by an interested person or on its own volition. If it stays the proceeding, it may transfer the proceeding to another District Court for hearing and determination and must record the reasons for doing so. In my view, section 24 is a general provision giving jurisdiction to the District Court in terms of stay and transfer of proceedings before it.

17. I would venture on to say that, the word “proceedings” used in section 24 includes “committal proceedings”. I say this because committal proceedings are heard and determined by a magistrate of the District Court. They are proceedings whereby the magistrate of the District Court shall decide whether a person has a “prima facie” case to answer in the National Court in order to commit that person to stand trial there. Thus, I find that the learned magistrate did have the power to transfer the committal proceeding from Mt Hagen to Waigani under section 24 of the Act. But as noted above, section 24 is silent on how that power is to be exercised. This is the second issue which I shall turn to now.

18. The power of the Court to transfer proceeding in the District Court is indeed an exercise of judicial discretion. It has been held by the National Court in so many cases that where the Court is exercising its discretionary power, it must do so on proper legal principles so that justice is attained. I consider that the Court in exercising its discretion to transfer committal proceedings from one location or place to another may take into account the following factors:

1. Location of the accused;

2. Location of the commission of the alleged offence(s);

3. Location and accessibility of witnesses;

4. Costs; and

5. Security of parties’ witnesses.

19. I listed some of those factors in the context of applications for change of venue of trial in the National Court under sections 522 and 555(1) of the Criminal Code in The State -v- Mathias Robert (2009) N3606 and subsequently adopted them in The State -v- Michael Marabe (2009) N3637. In Mathias Robert’s case (supra), I said these at pp 9 &10:

“The law on place of trial as stated in section 522(1)(a)(i)&(ii) is a place where the accused has being committed to stand trial. From my reading of section 555(2), it is also clear to me that the place of trial can be changed and this can be done on appropriate application to the Court. The application maybe made by the State prosecutor or an accused at any time of the trial to have the trial continued at a different location regardless of whether the place is appointed as a place for the National Court to sit. In other words, an application to change a venue of trial under section 555(2) can be made at anytime after the commencement of the trial. But what is not clear is that, in section 555 it does not provide the circumstances by which the Court may exercise the power to change the venue of a trial after trial has already commenced.

Unlike section 555, section 522(2) gives the Court some idea as to how it should exercise the power to change a venue of trial before the commencement of trial and that is, on “good cause being shown”. So what amounts to “good cause”? In my view, the phrase should be given a wide and liberal interpretation rather than a restrictive one. It should take into account matters that affect the dispensation of justice under the administration of the criminal justice system.

In my view, some examples of matters which I consider relevant to constitute “good cause” are:

1. Availability and location of witnesses;

2. Costs of bringing witnesses to attend trial;

3. Security of witnesses;

4. Availability of judges;

5. Availability of accused’s lawyer; and

6. List of matters pending trial.

In giving this list of examples, it is by no means exhaustive. There maybe other considerations which have not come to my mind at this point in time that maybe relevant and applicable in a given case.”

20. I see nothing wrong in adopting the same factors in applications for transfer of committal proceedings in the District Court from one location or place to another. With these factors in mind, the question then is; were these factors sufficiently strong to make out a case for refusal of the respondent’s application for transfer of committal proceeding by the learned magistrate? To answer this question, I shall now consider each factor below:

1. Location of the accused

21. It is not disputed that, the appellant resides and works in Mt Hagen. This factor is a compelling one and favours the appellant, but it is not clear from the available materials including his brief ruling at p 43 of the appeal book if the learned magistrate did take it into account in his deliberation. But I note in his submissions to this Court, the appellant submitted that he did raise this factor during his oral submission in opposition to the application before the learned magistrate on 05th November 2009. Given this submission, I find that this factor was brought to the attention of the learned magistrate but he refused it.

2. Location of the commission of the alleged offence(s)

22. It is noted that the learned magistrate’s main reason for transferring the committal proceeding from Mt Hagen to Waigani is that, the alleged offences were committed in Port Moresby. But from my perusal of the various charges against the appellant, which may be found at pp 12-21 of the appeal book, it appears that the appellant and 3 other persons were involved in committing these alleged offences in Mt Hagen. This is because as rightly pointed out by the appellant, the charges rose from cheques collected from the State through the Solicitor General’s office at Waigani at different times.

23. These cheques were drawn to the appellant’s law firm in satisfaction of a judgment debt of K3,854,995.15 as damages for unlawful destruction of properties of villagers in Tari of the Southern Highlands Province by police in August of 1995 in proceeding WS No 1185 of 1996. The cheques, 8 in total were paid by installments and collected and deposited in his law firm’s account established at Mt Hagen BSP bank and funds were subsequently dispersed to the recipients. To my mind, these facts establish that the alleged offences took place in Mt Hagen, thus the committal proceeding should have remained in Mt Hagen. I therefore find that, although this factor was a valid and compelling one, brought to the attention of the learned magistrate, he refused it.

3. Location and accessibility of witnesses

24. In my view, location and accessibility of witnesses is a relevant factor because witnesses are an integral part of the dispensation of the criminal justice administration. Thus, I consider that where an application for transfer of proceeding is made, the Court must pay particular attention to the location and accessibility of witnesses. In this case, I note in his submissions to this Court, the appellant submitted that he did bring this factor to the attention of the learned magistrate during his oral submissions in opposition to the application on 5th November 2009.

25. There is also evidence before me by way of various charges which may be found at pp 12-21 of the appeal book that suggest that 3 other persons were also involved in the commission of the alleged offences with the appellant and they are either residents of Mt Hagen or Tari. To my mind, that should have put the learned magistrate on notice that if the committal proceeding were to be transferred to Waigani, it would not be convenient for these persons to appear in Court. To my mind, this is a valid and compelling reason for refusal of the application but the learned magistrate refused it and went on to grant the application.

4. Costs

26. Again, I note in the appellant’s submissions to this Court, he submitted that he did bring this factor to the attention of the learned magistrate during his oral submissions in opposition to the application on 5th November 2009. But it is obvious that the learned magistrate refused to accept that as a good reason against the transfer of the committal proceeding as he went on to order that the committal proceeding be transferred from Mt Hagen to Waigani. In my view, cost is a relevant factor because there is no doubt in my mind that it would cost the appellant and his witnesses a lot of money to travel to Port Moresby to attend the committal proceeding at Waigani. The costs would comprise of airfares, hire cars, accommodation and other living expenses. I find that despite this strong compelling reason, the learned magistrate ruled otherwise.

5. Security of parties’ witnesses

27. Both parties took no issue in relation to this factor because the learned magistrate did not consider it in his deliberation as it was not raised by either party. Therefore, I express no views in relation to it.

28. In summing up these grounds of appeal, I find that the appellant did put forward valid and strong compelling reasons sufficient to persuade the learned magistrate to rule against the transfer of the committal proceeding but he did not accept them and in so doing failed to properly exercise his discretion. For these reasons, I uphold these grounds of appeal.

Grounds 3, 4 & 5 - Breach of right to be heard

29. I now turn to grounds 3, 4, & 5 of the notice of appeal and address them together because they raise the issue of whether or not the appellant was given an opportunity to be heard on the application for transfer of the committal proceeding before decision. It is clear to me from the materials in the appeal book and also from submissions of the appellant that he was heard in relation to the application on 5th November 2009 although on very short notice. This means, this is not a case where he was not heard at all. At least he appeared before the learned magistrate and made brief oral submissions in opposition to the committal proceeding from been transferred from Mt Hagen to Waigani.

30. In this regard, I note he submitted before the learned magistrate which he repeated before this Court that the transfer of the committal proceeding would not be convenient for him because, first he resides and works in Mt Hagen, secondly, it would be costly for him and his witnesses to travel to and from Port Moresby to attend the committal hearing and finally, that the alleged offences were committed in Mt Hagen where witnesses for and against him are located and easily accessible. Given this brief but valid and compelling points raised by the appellant, the learned magistrate went on to rule against him. Ultimately, I find that he was heard on the application therefore, there is no basis for complain under these grounds of appeal. These grounds are dismissed accordingly.

Conclusion

31. As I have upheld grounds 1, 2 & 6 of the appeal, the appeal must be allowed and the decision of the District Court of 5th November 2009 should be quashed and I so order. I also order that the matter be remitted to Mt Hagen District Court for committal proceeding to commence forthwith and costs in favour of the appellant.

Judgment and orders accordingly.

____________________________

Appellant in person
Acting Public Prosecutor: Lawyers for the Respondent