N4091

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 538 OF 2008

BETWEEN

GERARD PHILIP
Applicant

AND

PAUL NDRAN'OH, DISTRICT COURT MAGISTRATE
First Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2010: 15th & 22nd July

ADMINISTRATIVE LAW - Leave to apply for judicial review - Principles of - Sufficient interest - Arguable case - No delay - Exhaustion of alternative remedies.

ADMINISTRATIVE LAW - Leave to apply for judicial review - Review of decision of District Court to commit applicant to stand trial in National Court - 3 charges of rape - Jurisdiction of - Grounds of - Alleged error of law - Breach of natural justice - Arguable case established - Leave granted - District Courts Act, Ch 40 - Sections 94, 95, 96, 100 & 103.

Cases cited:

Robert Lak -v- Daisy [Dassie] Magaru Magistrate at Waigani District Court (Grade V) Committal Court and The State (1999) N1950
Justin Wayne Tkatchenko -v- Dessy Magaru (2000) N1956
Sakawar Kasieng -v- Andrew Baigry Magistrate of Wewak District Court and The State (2004) N2562
Jimmy Mostata Maladina -v- Principal Magistrate Posain Poloh & The State (2004) N2568

Counsel:

Mr K Peri, for Applicant
No appearance, for Respondents

RULING ON APPLICATION FOR LEAVE FOR JUDICIAL REVIEW

22nd July, 2010

1. MAKAIL, J: The applicant runs a number of businesses including wholesale and retail shops in Kundiawa town in the Chimbu Province. On 29th October 2007, he was arrested and charged by police for 3 counts of rape of a national female between 23rd June and 24th July 2007. On 13th June 2008, he appeared before the Kundiawa District Court for committal proceeding and the first respondent in his capacity as the presiding magistrate found him to have a case to answer for each charge and committed him to stand trial in the National Court. Aggrieved by that decision, he applied to review that decision in the National Court. The matter that is before the Court for ruling is the question of leave. Should leave be granted?

2. In the amended statement in support made pursuant to Order 16, rule 3(2)(a) of the National Court Rules, he relies on five grounds which are set out below:

"5. The District Court erred in law in dismissing the Plaintiff's No Case Submission when the District Court and the First Defendant were restrained from arresting, charging and hearing four charges of rape against the Plaintiff when the Court was aware of the existence of a National Court Restraining Order.

6. The Court erred in law in proceeding to commit the Plaintiff to stand trial on four counts of rape when the District Court should have made a decision on the No Case Submission.

7. The Court erred in law in committing the Plaintiff to stand trial on four counts of rape when no opportunity was given to the Plaintiff to cross-examine the Defendant's witnesses or choose matter of committal thereby contravening Section 94B of the District Courts Act.

8. The Court erred in law when it committed the Plaintiff (sic) stand trial when the Court failed to follow the statutory test established under Section 94C of the District Courts Act.

9. The Court erred in law when it failed to follow the mandatory requirement under Section 96 of the District Courts Act."

3. In further support of the application, the applicant relies on his own affidavit sworn on 09th September 2008 and filed on 11th September 2008 and an affidavit of Koeya J Peri sworn on 09th September 2008 and filed on 11th September 2008. From these affidavits, it is noted the committal proceedings in relation to the 3 charges of rape commenced in Mt Hagen District Court before senior Provincial Magistrate Mr Patrick Baiwan. The applicant made a no case submission before his Worship Mr Baiwan by filing a written submission. On 20th May 2007, a National Court order was brought to the attention of his Worship. The Court order restrained the police from arresting and charging the plaintiff for same or similar offences in which he was previously exonerated. This was because he was previously arrested and charged for sexual penetration of two under aged national females. These charges were dismissed by the District Court on 08th April 2004.

4. That Court Order was made on 9th April 2004 in OS No 180 of 2004 between the applicant, police and the State and remained in force until it was set aside by the National Court on 07th March 2008. On 20th May 2007, his Worship Mr Baiwan refused to deal with the no case submission and transferred the committal proceeding to Kundiawa District Court as the alleged offences occurred in Kundiawa and also to await the determination of the National Court proceeding in OS No 180 of 2004. 

5. Following the setting aside of the Court order of 09th April 2004, on 13th June 2008, the first respondent travelled to Kundiawa and without conducting a committal hearing, went ahead and made a decision on the no case submission which was filed at Mt Hagen District Court before his Worship Mr Baiwan. In his ruling, the first respondent stated that the ruling was in relation to the no case submission. The first respondent ruled that the applicant had a case to answer to the charges and committed him to stand trial in the National Court. 

6. The first issue which I consider relevant and crucial to the entire application for leave for judicial review is the jurisdiction of the National Court to review actions and/ or decisions of criminal Courts, especially committal proceedings in the District Court. There is no doubt that the National Court has jurisdiction in its inherent and supervisory powers under section 155(3)(a)&(4) of the Constitution to review actions and/ or decisions of subordinate decision making bodies including criminal proceedings in the District Court. However, traditionally civil Courts have been reluctant to interfere with the proceedings and/ or decisions of criminal Courts because it has been said, criminal proceedings must be allowed to progress expeditiously to completion without unnecessary interference as liberty of persons are at stake.

7. In Papua New Guinea, the National Court has at least in two cases that I know of, held that the National Court may review decisions of District Court arising from committal proceedings: see Robert Lak -v- Daisy [Dassie] Magaru Magistrate at Waigani District Court (Grade V) Committal Court and The State (1999) N1950 and Justin Wayne Tkatchenko -v- Dessy Magaru (2000) N1956. In Sakawar Kasieng -v- Andrew Baigry Magistrate of Wewak District Court and The State (2004) N2562, the National Court heard and granted leave to the applicant, a police officer based in Wewak to review the decision of the first respondent in his capacity as coroner inquiring into a death of a youth held in the police station cell at Wewak where the applicant was alleged to have been the assailant. The first respondent found that the applicant was the assailant and committed him to stand trial in the National Court on a charge of murder under section 300 of the Criminal Code. From these three cases, it is noted, the last one dealt with a decision of a coroner as opposed to the other two.

8. Further, in each case, it was held that decisions of District Court arising from committal proceedings and coroner are reviewable by the National Court if the committal Court or coroner acted in excess of their powers, committed an error of law, their decisions or actions were unreasonable or there was breach of natural justice. I am therefore satisfied the Court has jurisdiction to review decisions of District Court arising from committal proceedings and may do so in cases where one or more of the grounds of review stated above are present.

9. Turning therefore, to the main issue in this case, has the applicant established a case for grant of leave? In an application for leave for judicial review, there are four major legal requirements that must be satisfied for the Court to exercise its discretion in favour of the applicant. These legal requirements are:

1. whether the applicant has sufficient interest in the matter that is the subject of the application, 

2. whether the application is brought within a reasonable time or there is no delay in bringing the application,

3. whether the application raises any fundamental or serious legal issues to be tried that would found an arguable case, and

4. whether the applicant should be required to pursue further administrative remedies before bringing the matter to Court.

10. In relation to the first principle, the applicant's counsel Mr Peri submits that the applicant has an interest in the matter because he is the person affected by the decision of the first respondent to commit him to stand trial in the National Court in relation to the 3 charges of rape. I agree with Mr Peri's submission and find that the applicant has met this legal requirement. In relation to the second principle, Mr Peri submits that the application for leave has been filed within a reasonable time following the decision of the first respondent on 13th June 2008. He said, it was filed on 11th September 2008. This was about 3 months after the decision. Again, I agree with Mr Peri's submission and find that there is no delay in bringing this application. The applicant has therefore, met this legal requirement.

11. In relation to the third principle, Mr Peri submits the five grounds in the amended statement in support can be broken down to essentially two grounds which the applicant seeks to rely upon to seek judicial review of the first respondent's decision to commit him to stand trial in the National Court. These two grounds raise serious legal issues which in turn show that there is an arguable case for judicial review. The first ground is that, the first respondent committed an error of law when he proceeded to rule on the no case submission when there was in existence a National Court order of 09th April 2004 restraining the police from arresting and charging the applicant for the same or similar offences. The subsequent arrest and charging of the applicant which led to the decision of the first respondent to find that he had a case to answer to the charges and commit him to stand trial in the National Court is defective and irregular because the actions of the police in arresting and charging him during the currency of the Court order of 09th April 2004 were in breach of it.

12. The second ground is that, there was breach of natural justice because the applicant was not given an opportunity to make oral submissions on the no case application before the first respondent ruled on it and found that he had a case to answer to the charges, and committed him to stand trial in the National Court. To support this submission, Mr Peri referred me to the decision of Injia, DCJ (as he then was) in Jimmy Mostata Maladina -v- Principal Magistrate Posain Poloh & The State (2004) N2568 where his Honour held inter-alia, that the filing of written submissions in a no case application in committal proceedings is no substitute to oral submissions under section 94 of the District Courts Act, Ch 40. As no oral submissions were made before the Court before it ruled on the no case application, it was a denial of natural justice when the applicant in that case was not given the opportunity to make oral submissions on a no case before the Court found that he had a case to answer to the charges and committed him to stand trial in the National Court.

13. In my view, these two grounds do raise an arguable case. In relation to the first ground, I am satisfied that the evidence presented suggest that there was a National Court order of 09th April 2004 in OS No 180 of 2004 restraining the police from arresting and charging the applicant for the same or similar offences after the District Court dismissed similar charges involving two under aged national females. While it was in force, on 13th June 2007, police arrested and charged the applicant with 3 counts of rape. In my view, there is an apparent breach of the Court order of 09th April 2004 by police. The alleged breach affects the lawfulness of the first respondent's decision of 13th June 2008 to find the applicant had a case to answer and committed him to stand trial in the National Court. 

14. In other words, this ground raises questions over the validity of the subsequent decision of the first respondent to find the applicant had a case to answer and commit him to stand trial in the National Court on 13th June 2008. An apparent error of law has been committed by the first respondent when he proceeded to deliberate on the charges against the applicant. I am therefore satisfied that there is a serious legal issue raised by the applicant.

15. In relation to the second ground, there are two phase committal process prescribed in sections 95, 96, 100 and 103 of the District Courts Act, Ch 40. In section 96, the Court considers the prosecution brief and determines whether there is sufficient evidence to put a defendant on trial in the National Court. If the Court is of the opinion that the evidence is not sufficient to put the defendant in trial for an indictable offence, it shall immediately order the defendant if he is in custody to be discharged. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with Division 1 of Part VI (Proceedings in case of indictable offence) of the District Court Act, Ch 40.

16. Section 96 provides that the accused is to be asked whether he decides to give evidence. Where a Court proceeds with the examination of a defendant, the Court, or the chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall read to him these words or words to the same effect:

"Having heard evidence for the prosecution, do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so, but whatever you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on 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, which 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."

17. If the defendant says something in answer, it is taken down in writing in English language and read back to the defendant, signed by the Magistrate constituting the Court but if the defendant so desires and kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor. 

18. In the present case, it appears the applicant was denied a right to be heard before a decision was made by the first defendant to find that he had a case to answer to the charges and committed him to stand trial in the National Court. This is because there is evidence to suggest that the first respondent did not accord the applicant the right under section 96. This may be seen from his decision at p 4 where he said:

"Finally, I consider it not necessary to administer an inquiry to Section 94C (2) and the explanation and caution and hearing pursuant to section 96 of the District Courts Act as in my view, these requirements are by implication of a no case submission dispensed with by implied consent of the Defendant."

19. In Jimmy Mostata Maladina's case (supra), Injia, DCJ (as he then was) held that section 96 of the District Court Act, Ch 40 is mandatory. By reading to the defendant the words in section 96(1), the defendant knows the charge. The Magistrate gives the defendant an opportunity to give evidence and to say anything to the charges if he so wishes. His Honour said at p 10 of the judgment that it is a fundamental principle of justice and fair hearing enshrined in the principles of natural justice adopted under section 59 of the Constitution that the opinion formed under sections 95 and 100 of the District Courts Act, Ch 40 must not only be done but seen to be done. 

20. A decision made and reasons for the decision under section 95 of the District Courts Act, Ch 40 of course is not expressly required to be communicated to the defendant under section 95 but impliedly by principles of natural justice - that is must be communicated to the defendant so that a prima-facie case for committal has been made out by the prosecution to which he has a right to respond under section 96 before a final decision to commit is made under sections 100 and 103. Under section 96, if he chooses to give evidence, say something either admitting or exculpating, it is to be recorded.

21. In my view, the ruling of the first respondent that it is not necessary to administer an inquiry under section 94C (2), and the explanation and caution under section 96 are by implication dispensed with by the implied consent of the defendant appears wrong in law. It is a fundamental principle of justice that the defendant must understand the nature of the charge before he is committed to stand trial in the National Court. It appears the procedure adopted by the first respondent to commit the applicant to stand trial was not fair. It appears the first respondent should have read the exact words or words to the same effect in section 96 to the applicant and he did not. If he did, the applicant should have known why he was been committed to stand trial in the National Court. 

22. When the liberty of a person is at stake, and when the principles of natural justice have not been accorded to the applicant, the first respondent cannot waive the requirement of section 96 of the District Courts Act, Ch 40. I am therefore satisfied that the applicant have established that there is a serious issue to be tried in this case. These issues in turn establish that there is an arguable case in this application for leave for judicial review.

23. Finally, Mr Peri submits that there are no alternative administrative avenues available for the applicant to avail himself of, hence has come to Court by way of an application for judicial review to seek redress. The National Court is the only available venue for him to challenge the decision of the first respondent. I accept Mr Peri's submission because there are no alternative administrative avenues for the applicant to seek redress. This submission is also consistent with decisions of the Court in past cases which I have referred to above where the Court has entertained applications for judicial review arising from decisions of District Court's committal proceedings. This legal requirement is also made out.

24. For all these reasons, I am satisfied the applicant has made out the application for leave for judicial review. Leave is therefore granted to him to review the decision of the first respondent of 13th June 2008. I shall also order that the matter be adjourned for Directions hearing on 06th September 2010 at 9:30 am and cost shall follow the event.

Ruling and orders accordingly.

____________________________________
Warner Shand Lawyers: Lawyers for Applicant 
Acting Solicitor-General: Lawyers for Respondents