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Paraka v Peng [2015] PGNC 219; N6120 (20 November 2015)

N6120

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO. 61 OF 2014

BETWEEN

PAUL PARAKA
Appellant

AND

SENIOR CONSTABLE PIUS PENG & CHIEF INSPECTOR TIMOTHY GITUA OF POLICE DEPARTMENT
First Respondents

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

&

CR (APP) NO. 12 OF 2015

BETWEEN

PAUL PARAKA
Appellant

AND

CHIEF INSPECTOR TIMOTHY GITUA OF POLICE DEPARTMENT
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2015: 16th & 20th November

PRACTICE & PROCEDURE – Application for dismissal proceeding – Grounds of – Incompetent – Interlocutory ruling or order of District Court – Whether interlocutory ruling or order of District Court appealable – Jurisdiction of – Failing to disclose a cause of action – Abuse of process – District Courts Act – Sections 1 & 219 – National Court Rules – Order 12, rule 40.

Cases cited:

Asoka Seneviratne v. Graham Chaffey (2000) N2014
Eremas Wartoto v. The State (2015) SC1411

Counsel:

Mr. R. Kasito, for the Appellant
Mr. N. Miviri, for the First Respondent
No appearance, for the Second Respondent

RULING

20th November, 2015

1. MAKAIL, J: In these cases, separate applications for dismissal of the appeals were heard and reserved for ruling to today. I propose to give one ruling for both matters because counsel for the parties had made same submissions in each case and further, except of Senior Constable Pius Peng, the rest of the parties are the same in both matters.

2. The first respondents' application to dismiss is based on the following grounds:

(a) incompetent because no appeal lies from an interlocutory ruling of the District Court;

(b) no reasonable cause of action disclosed;

(c) frivolous and vexatious;

(d) an abuse of process;

(e) failure to serve notice of appeal in the first respondents; and

(f) filing of notice of appeal, entry of appeal and recognizance of appeal are not genuine.

3. The first respondents also seek directions from the Court to bring this application because of lack of procedure in an appeal arising from a criminal proceeding in the District Court.

4. The appellant also filed and moved a counter-motion (Notice of Motion No. 1) seeking an order to dismiss the first respondents' application on the following grounds:

(a) want of prosecution;

(b) failure to seek directions by way of originating summons because of lack of procedure for bringing an interlocutory application in an appeal arising from a criminal proceeding in the District Court;

(c) undue delay on bringing the application;

(d) convoluted jurisdictional basis of the application;

(e) no objection raised by other respondents; and

(f) unauthorised legal representation by Mr. Miviri of counsel for the respondents.

5. Further, the appellant seeks an order to dispense with the requirement to file an originating summons to seek extension of time for service of the notice of appeal within 30 days and time be extended to serve the notice of appeal on the respondents.

6. Furthermore, he seeks an order to refer question of time to serve a notice of appeal within one months of the pronouncement of the decision of the District Court and question of legal representation of the respondents to the Supreme Court for interpretation pursuant to Section 18(2) of the Constitution.

7. Finally, he seeks an order to stay three related proceedings in the District Court pending the determination of the Constitutional Reference.

8. In CR (App) No. 61 of 2014, the interlocutory ruling or order of the District Court is the refusal of the appellant's application to join multiple charges in a number of proceedings and have them heard in one hearing. The charges are for misappropriation, false pretence, conspiracy to defraud and money laundering. The appeal is against this ruling or order. In CR (App) No. 12 of 2015, the interlocutory ruling or order of the District Court is the refusal of the appellant's application to stay the proceedings of the District Court pending the determination of the appeal in CR (App) No. 61 of 2014.

9. I have considered the submissions of counsel and evidence and I consider that the grounds and arguments made for and against the dismissal of the appeals and vice visa the counter-motion by the appellant comes down to two main issues. First, is the authority of Mr. Miviri of counsel for the first respondents to act for them in these appeals and secondly, the jurisdiction of the National Court to determine an appeal from an interlocutory ruling or order of the District Court. All the other grounds relied on by the parties, though important, are dependent on these two issues. So I deal with them first.

10. With regard to the first issue, in the case of CR (App) No. 61 of 2014 there is evidence in the Court file by way of a Notice of Appearance filed by "CHIEF/SUP NICHOLAS MIVIRI, DIRECTOR LEGAL SERVICES, ROYAL PNG CONSTABULARY......." on 03rd February 2015 on behalf of the first respondents. In the case of CR (App) No. 12 of 2015, an identical notice was filed on 06th June 2015 on behalf of the first respondent. There is no dispute Mr. Miviri is the Police Legal Officer and is admitted in this jurisdiction to practice law. Given this I am satisfied he is authorised to act for the first respondents.

11. The appellant's objection on the ground that Mr. Miviri is not authorised to represent the second respondent (The State) is misconceived because based on the Notice of Appearance does not state that he is and does act for the second respondent. Significantly, it was conceded by Mr. Kasito of counsel for the appellant during submissions that the second respondent has not been served the appeal in each case and so it is inconceivable to expect any representation by or on behalf of the second respondent at the hearing.

12. For these reasons, the appellant's objection is dismissed.

13. As to the second issue, the answer lies in Section 219 of the District Courts Act. It states:

"PART XI.—APPEALS FROM DECISIONS OF DISTRICT COURTS.

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 a 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 summarily under Section 420 of the Criminal Code." (Underlining is mine).

14. My reading of Section 219 is this, in the first part of Sub-section (1), a person aggrieved by a conviction order or adjudication of a Court may appeal to the National Court. This includes an adjudication or order dismissing an information or complaint. In the second part, the reference to " appeal to the National Court from the conviction, order or adjudication....." must be read with reference to the first part of Sub-section (1).

15. When construed in this way, an appeal to the National Court from a "conviction" would be in relation to the "conviction order". Similarly, an appeal from an "order" would be in relation to the "order dismissing an information or complaint" and finally, an appeal from an "adjudication" would be in relation to the "adjudication of a Court".

16. This interpretation is fairly restrictive, one may argue, and an appeal would not lie to the National Court unless it is from a conviction order or order dismissing an information or complaint or adjudication of the Court.

17. In my view the use of the expressions "conviction order", "order dismissing an information or complaint" or "adjudication of a Court" strongly suggest that the order is a final order. This means that it is made after a hearing of the whole matter, including the evidence and submissions made.

18. In other words, with respect, to use the words of Injia J (as he then was) when speaking in the context of a civil appeal in Asoka Seneviratne v. Graham Chaffey (2000) N2014, it is not the intention of this provision "that an interlocutory ruling made by the District Court is appealable for to do so would cause unnecessary interruption and undue delay in the hearing process and cause unnecessary costs to the parties in the litigation."

19. And in criminal proceedings in the District Court, the view as expressed would make a lot of sense because if an appeal lies from an interlocutory ruling or order such as those under consideration here, it would only delay and disrupt the completion of the District Court proceedings, noting also that the offences to which the appellant is alleged to have committed are indictable offences for which the District Court is bound by law to satisfy itself if there is a prima facie case to refer the appellant to stand trial in the National Court.

20. My view is fortified by Section 1(1) of the District Courts Act which states that an order "means an order made on a complaint." As the charges are based on information laid by the police, respondents in this instance, before the District Court, an order made on information is by necessary implication excluded from Section 1(1) and when read together with Section 219, the order is not appealable unless it is a conviction order or order dismissing the information.

21. The reasoning for the view as expressed is consistent with the Supreme Court decision in Eremas Wartoto v. The State (2015) SC1411 which Mr. Miviri relied on to support his submission that the appeals are not only incompetent but also frivolous, vexatious and an abuse of process because the interlocutory ruling or order by the District Court is part of the criminal process by which accused persons such as the appellant go through before final decision on guilt by the National Court in cases where they are charged with indictable offences. For this reason the process must not be interrupted or halted when it is in progress. To use of the words of counsel, "the wheels of justice must not be stopped".

22. This is the gist of Mr. Miviri's submission in objecting to these appeals. Mr. Kasito made no submissions on this point. He focussed on the grounds for the counter-motion which I have highlighted at [4] above, more so on want of prosecution, failure to seek directions and objection to Mr. Miviri acting for the respondents. I have already in each case, ruled dismissing the appellant's application for want of prosecution at the time this application was heard as being belated. So it is a dead issue.

23. As to the failure by the first respondents to seek directions before bringing this application, it is inconceivable that there is lack of procedure for bringing interlocutory applications in an appeal filed in the National Court. In my view this is a trivial issue because the appeals are before the National Court and the National Court Rules ought to apply. Relevantly Order 18, rule 12(2) provides for Motions. A Notice of Motion is the prescribed form to be used in any interlocutory application in an appeal in the National Court. The first respondents' application is by notice of motion and I find it is compliant of Order 18, rule 12(2).

24. The jurisdictional grounds for dismissal of the appeals, amongst other things, are incompetent as no appeal lies from an interlocutory ruling or order of a District Court pursuant to Section 219, failure to disclose a cause of action, frivolous and vexatious, and abuse of process pursuant to Order 12, rule 40(1)(a),(b)&(c) of the National Court Rules. Save for the ground on incompetence, the others are straight forward and common grounds of dismissal of proceedings in the National Court and it is inconceivable that the appellant and his counsel contended that they are being confused and prejudiced by the manner in which the first respondents have set them out in the notice of motion. I am not satisfied that the appellant has been prejudiced. This ground is dismissed.

25. So this leaves only one view in relation to the question of jurisdiction of the National Court. I conclude that no appeal lies from an interlocutory ruling or order of the District Court in a criminal proceeding before that Court. It follows the appeals are incompetent. Given this I further find that they are frivolous, vexatious, and an abuse of process. They are accordingly, dismissed. The appellant's counter-motions are also dismissed. The appellant shall pay the first respondents' costs of the appeals, to be taxed, if not agreed.

Ruling and Orders accordingly.

_______________________________________________________________
Paul Paraka Lawyers: Lawyer for the Appellants
Police Legal Officer: Lawyers for the Respondents