N5303
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 22 OF 2009

BETWEEN:

WAHGI MEK PLANTATION LIMITED
Appellant
 
AND:

YEKUA YAP
Respondent

Mount Hagen: Poole, J
2013: 21 May & 20 June

APPEAL FROM DISTRICT COURT – Section 219 of District Courts Act – Standing to Appeal – "Person aggrieved" may appeal without being party to District Court proceedings – Private person can lodge Appeal from decision in criminal proceeding.

WORDS AND PHRASE – "Person aggrieved" – Section 219 District Court Act – need not the party to action giving rise to Appeal to National Court. 

Cases cited:

Elson Tavano v Samual Lai, (N4140)
Samson Dacany v Noah Taia (N2316)

Counsel:

Ms P. Tamutai, for Appellant
Mr D. Gonol, for Respondent

20 June, 2013

Decision

 1. POOLE J: Background: The Respondent instituted this Application by Motion, filed on 8th April 2011, to dismiss the Appeal under the provisions of Order 12 rule 40 of the National Court Rules as frivolous, vexatious and an abuse of process, and, in particular, the respondent argues that the Appeal does not comply with section 219 of the District Courts Act.

2. The Motion is supported by an affidavit by the Applicant's lawyer in which he asserts the Appeal cannot be sustained because:

(i) the District Court decision was made when the Court was exercising its criminal jurisdiction in considering a charge laid under Section 16 of the Summary Offences Act; and 

(ii) The Appellant was not a party named in the proceedings under appeal.

3. The undisputed facts are that, on the information of David Kongua, the respondent was tried in the District Court that he "had in his possession property namely some sawn rough timbers reasonable suspected of having been stolen a total volume of 6 cubic metres". 

4. Evidence before the Court was that police witnesses attended Kupulan village with a search warrant and seized some sawn timber and interviewed a number of people.

5. The Respondent was arrested, charged under section 16 of the Summary Offences Act, but discharged after the magistrate ruled that the wording of the Information was defective and there was "insufficient evidence to continue the trial".

6. This Motion by the Respondent raises just the two points of law referred to above.

7. The first point turns on the wording of section 291 of the District Courts Act.

That section provides:

 219. Appeal to National Court

(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may-

(a) appeal against a decision of a District Court on behalf of party; or 

(b) intervene in an appeal to the National Court.

(4) The public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summary under Section 420 of the Criminal Code.

8. Sub section 2 is explicit and the only appeal which subsection 1 authorises by the State (my emphasis) from an adjudication or order dismissing an information is (as provided in subsection 3) as instituted by Leave and brought by the Secretary for Justice in a matter of public importance.

9. Subsection one preserves to "a person aggrieved" the right to "Appeal to the National Court". See Elson Tavano v Samual Lai (N4140).

10. The wording of section 219(1), by giving a right of appeal to "a person aggrieved" and not restricting it to "a party," plainly demonstrates that the legislative intent was not to restrict that right to parties to the District Court proceedings, but to enlarge that right to parties who can demonstrate that they are not officious intermeddlers or vexatious litigants, but parties with an interest which, when viewed objectively by the Court, can be said to be effected by the District Court decision. I respectfully agree with the reasoning on this point in Samson Dacany v Noah Taia (N2316).

11. The Respondent's argument that "private person cannot lodge an Appeal in a Criminal case" is contrary to the clear and explicit wording of section 219 of the District Court Act and to published Papua New Guinea authorities on this point. This should have been clear to the Respondent when he filed this Application.

12. The first ground of objection to the Appeal fails.

13. The second ground the respondent states to support his contention that the Appeal is frivolous, vexatious and without merit is that, as the Appellant was not a party to the District Court proceedings, it has no standing to appeal from the decision.

14. I have already stated my reasons for rejecting this argument, in reference to the Legislature's use of the term "person aggrieved" rather than "party" in section 219(1).

15. The question of whether the Appellant has sufficient interest in the outcome of the National Court proceedings to qualify as a person aggrieved is not raised in the Application before the court, and it is not necessary to rule on it.

16. It is, however, to be noted that, in his decision, the learned District Court Magistrate made several explicit references to evidence that the timber in question was sawn from logs from Waghi Mek Plantation – including a statement that the Respondent "admitted that the timbers were sawn from logs from Waghi Mek Plantation" and that a small boy had said "Uncle the logs are from Waghi Mek".

17. The District Court, because it was required to be satisfied beyond reasonable doubt of the guilt of the Respondent on the Information filed against him, found the evidence insufficient for the presentation to discharge the onus of proof to the criminal standard.

18. That finding does not preclude the Appellant having, on the balance of probability, sufficient interest in the District Court proceedings to be a person aggrieved - but the sufficiency of that interest must be a matter to be determined on another occasion, as it is not raised in the pleadings presently before the Court.

19. For these reasons, the Formal Orders of the Court are:

1. The Respondent's motion filed on the 26th April 2011 is dismissed;

2. The Appellants' costs of and incidental to these proceedings shall be paid by the Respondent on a Solicitor/Client basis, such costs to be taxed if not agreed;
 
 3. Time is abridged.

________________________________________________________
Tamutai Lawyers: Lawyer for the Appellant
Paulus Dowa Lawyers: Lawyer for the Respondent