N4510

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

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2011: 02nd November
2012: 17th January

ADMINISTRATIVE LAW - Judicial review - Review of decision of District Court - Decision to commit applicant to stand trial in National Court - 3 charges of rape - Grounds of - Alleged error of law - Breach of natural justice - Right of defendant to be asked to give evidence in committal proceedings prior to order to stand trial - Whether mandatory - Judicial review upheld - Decision of District Court quashed - District Courts Act, Ch 40 - Sections 94, 95, 96, 100 & 103.

Facts

Following grant of leave, the applicant applied for judicial review seeking an order of certiorari to quash the decision of the first respondent in his capacity as the presiding magistrate to find a case to answer 3 charges of rape against him and commit him to stand trial in the National Court. The applicant raised two grounds. First, the first respondent committed an error of law when he proceeded to dismiss the no case submission when he was restrained by the National Court from hearing the charges. Secondly, the first respondent breached the principles of natural justice when he was denied or not afforded a right to be heard under section 96 of the District Courts Act, Ch 40 after being found by the first respondent to have had a case to answer to 3 charges of rape.

Held:

1.	On the evidence, the first respondent committed an error of law as there was a National Court order restraining the police from arresting and charging the applicant for the same or similar offence after the District Court dismissed similar charges involving two under aged national females. When it was in force, the police arrested and charged the applicant with 3 counts of rape and were in breach of the National Court order and the breach invalidated the committal proceeding and ultimately, the first respondent's decision to find a case to answer against the applicant and commit him to stand trial in the National Court.

2.	The right under section 96 of the District Courts Act, Ch 40 is mandatory and requires a Court in committal proceedings to give a defendant an opportunity to be heard before committing the defendant to stand trial in the National Court. Jimmy Mostata Maladina -v- Principal Magistrate Posain Poloh & The State (2004) N2568 referred to.

3.	After the first respondent found a case to answer against the applicant, the first respondent failed to give the applicant an opportunity to be heard before committing him to stand trial in the National Court under section 96 of the District Courts Act, Ch 40 and was in breach of the principles of natural justice.

4.	The application for judicial review was upheld and the decision of the first respondent to commit the applicant to stand trial in the National Court was quashed.

5.	The respondents were ordered to pay the applicant's cost of the proceeding to be taxed if not agreed.

Cases cited:

Gerard Philip -v- Paul Ndran'oh, District Court Magistrate & The State (2010) N4091
Jimmy Mostata Maladina -v- Principal Magistrate Posain Poloh & The State (2004) N2568

Counsel:

Mr K Peri, for Applicant
No appearance, for Respondents

JUDGMENT

17th January, 2012

1.	MAKAIL, J: This is an application for judicial review, leave having been granted on 22nd July 2010: see Gerard Philip -v- Paul Ndran'oh, District Court Magistrate & The State (2010) N4091.

Background

2.	Reciting the brief facts as stated in the ruling on the application for leave, 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 that he had a case to answer for each charge and committed him to stand trial in the National Court. This is the decision that is the subject of review.

Grounds of Review

3.	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:

"1.	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.

2.	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.

3.	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.

4.	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.

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

Evidence

4.	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 applicant 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.

5.	That Court Order was made on 09th 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. 

6.	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. 

Submissions

7.	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.

8.	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.

Consideration of the Grounds

9.	In relation to the first ground, on the evidence, I am satisfied there is 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, the police have breached the Court order of 09th April 2004 and the breach invalidated the committal proceeding and ultimately, the first respondent's decision of 13th June 2008 to find a case to answer against the applicant and commit him to stand trial in the National Court. 

10.	I am satisfied an error of law has been committed by the first respondent when he proceeded to deliberate on the charges against the applicant. I would uphold the application for judicial review and quash the decision of the first respondent of 13th June 2008.

11.	In relation to the second ground, there are two phase of 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 on 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 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.

12.	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."

13.	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. 

14.	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."

15.	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 seem to be done. 

 16.	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 it 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.

17.	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 is 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. In my view, the procedure adopted by the first respondent to commit the applicant to stand trial was not fair. 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. 

18.	I consider the right under section 96 of the District Courts Act, Ch 40 is mandatory and must be observed by the Court at all times. It is a distinct process from the process of a no case submission and is not dependent on whether or not a no case submission is refused. In other words, in a case where a no case submission by a defendant is refused and the defendant is committed to stand trial in the National Court, the committal magistrate is duty bound by section 96 (above) to give the defendant an opportunity to be heard before committing him to the National Court.

19.	This process may be seen or may be argued as a repetition of the no case submission as where a defendant elects to make a no case submission in relation to the charge or charges, he or she would have exercised his or her right to be heard before a decision is made by the Court in relation to whether to uphold or refuse the no case submission. In making the no case submission, the defendant would have put before the Court and the Court would have had the benefit of the reasons as to why the no case submission should be upheld, the charge or charges dismissed and defendant discharged.

20.	That may be so, but, in my view, the fundamental consideration that makes this process distinct and mandatory for a committal magistrate to observe this right is that, in the subsequent section, section 97, it provides that on trial in the National Court, a statement made by a defendant under section 96 may be given in evidence without further proof regardless of whether it is exculpatory or self-serving as long as it is signed by the magistrate. 

21.	For these reasons, I conclude the process under section 96 is distinct from a no case submission and is mandatory. Thus, in my view, 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. I am therefore satisfied the applicant has established that there has been a breach of natural justice and I would also uphold the application for judicial review on this ground and quash the decision of the first respondent of 13th June 2008. I order the respondents pay the applicant's cost of the proceeding to be taxed if not agreed and time shall be abridged.

Judgment and orders accordingly.

____________________________________

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