N6486
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1552 OF 2010

BETWEEN

GUMA WAU
Applicant /Accused

AND:
HON. ANNO PALA, CGM, MP MEMBER FOR RIGO
AND MINSTER FOR JUSTICE AND ATTORNEY GENERAL
AND MEMBER OF JUDICIAL AND LEGAL SERVICES COMMISSION
First Respondent

AND:
SIR SALAMO INJIA, KT, GCL, CHIEF JUSTICE
AND MEMBER OF JUDICIAL AND LEGAL SERVICES COMMISSION
Second Respondent

AND:
SIR GIBBS SALIKA, CSM OBE, DEPUTY CHIEF JUSTICE
AND MEMBER OF JUDICIAL AND LEGAL SERVICES COMMISSION
Third Respondent

AND:
PHOEBE SANGETARI, CHIEF OMBUDSMAN
AND MEMBER OF JUDICIAL AND LEGAL SERVICES COMMISSION
Fourth Respondent

AND:
HON. PHILIP UNDIALU MP, MEMBER FOR LAKE KOPIAGO
AND APPOINTED MEMBER OF JUDICIAL AND LEGAL SERVICES COMMISSION
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Kundiawa: Liosi, AJ.
 2016: 26 July, 22 September

CRIMINAL LAW – Practice & Procedure – Applicant seeking Declaratory Orders – Constitution Section 41(1)(9) – Section 170(2) – Reappointment of Acting Judge whose term has expired –Non Justifiability –meaning of – Failure to name the appropriate party – effect of – Issue of costs discussed –Application dismissed.  

Cases cited:
Kila Wari v. Gabriel Ramoi and Kingsford Dibela [1986] PNGLR 112
Minister for Lands v. Frame [1980] PNGLR 433

Counsel:
Mr. G Gendua, for the Applicant
Mr. P Ifina, for the Second and Third Respondents
Mr. M Efi, for the Fourth Respondent 
Mr. J Kesan, for the State 
 
                                                                Ruling

22nd September, 2016

1.	LIOSI, AJ. This is a ruling on a Amended Notice of Motion filed by the Applicant on 10th May 2016 seeking the following declaratory orders:
1.	A Declaration pursuant to Section 41(1)(a) of the Constitution of Papua New Guinea that the departure of Mr. Regget Marum, former Acting Judge of the National Court of Justice from the judiciary and leaving the trial in the matter of The State -v- Guma Wau part-heard is harsh and oppressive to the accused in the circumstances of the cases. 
2.	An Order pursuant to Section 170(2) of the Constitution of Papua New Guinea that Mr. Regget Marum be re-appointed as Acting Judge of the National Court for a period of time as considered necessary by the Judicial & Legal Services Commission purposely to continue with the part-heard trial in the matter of The State -v- Guma Wau and complete it. 
3.	Any other further Orders as the Court deems fit and just.
 
2.	In support of the application the applicant relies on the following documents:
a.	Affidavit of Guma Wau sworn and filed on the 10th May 2016.
b.	Affidavit of Gabriel Gendua sworn 18th and filed on 19th April 2016. 
c.	Supplementary affidavit of Gabriel Gendua sworn and filed on 10th May 2016.

     	Background Facts 

3.	The Applicant/Accused was charged with one count of Attempted Murder. It was alleged that he on 13th June 2010, attempted to kill one John Agaundo with the use of a firearm, a pistol. At the close of the prosecution case the Applicant/Accused through his Lawyer made a No Case to Answer Submission. The written submission was filed on 02nd April 2015, to which the prosecution responded and filed its submission on 01st May 2015. At the end of June 2015, the trial judge’s term of judicial appointment as Acting Judge of the National Court expired. He left the judiciary without making the ruling on the No Case to Answer Submission. 

    	Recourse under the Criminal Code – Section 576

4.	Section 576 of the Criminal Code sets out the procedure where a trial is left incomplete due to the Judges incapacity. It provides: 

	“Incapacity of Judge
	
1.	If in the course of the trial the presiding Judge becomes incapable of proceeding, a Judge may, on application by the accused person or his counsel, or by a State Prosecutor, order that the trial be discontinued. 

2.	If an order is made under Subsection (1), the accused person- 

a.	Shall remain in custody and may be again put on his trial on the same indictment; and 
b.	Has the same rights with respect to admission to bail on an original committal for trial for the offence with which he is charged, and a Judge or Magistrate may, in a proper case, admit him to bail accordingly. 

3.	If after an accused person has been convicted of an offence but before sentence the presiding Judge becomes incapable of proceeding, some other Judge may, on application by the accused person or his Counsel, or by a State Prosecutor, proceed to sentence as though the accused person has been convicted by him”

5.	Due to the expiration of the Acting Judges term of appointment, he is now incapable of completing the trial. Pursuant to Subsection (1) the matter will have to go before another Judge who may on application by the accused person or by his lawyer or by a State Prosecutor order the trial to be discontinued.

6.	Although this process is available, there hasn’t been any formal application done by any party to discontinue the trial. However, at the Criminal Call Over on the 4th April 2016, the Court was advised of the applicant’s desire/instructions to see the matter continued to its completion rather than having it declared a mistrial due to expenses it has incurred already. The Court then directed the applicant’s lawyer to file its formal application which it has done now the subject of this application.

    	Jurisdictional basis of the Application

7.	The application for declaratory orders is made pursuant to Section 41(1) of the 
    Constitution. It provides:- 
	
	“41. Proscribed Acts 

1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

a.	Is harsh or oppressive; or

b.	 Is not warranted   by,   or  is  disproportionate  to,  the requirements  of  the  particular circumstances or  of  the particular case: or 

c.	Is otherwise  not, in  the  particular   circumstances,  reasonably  justifiable   in  democratic  society  having  a  proper  regard for the rights and dignity of mankind, is an unlawful act. 

2)	The burden of showing that Sub-section (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities. 
3)	Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid. 

  4.2 The applicant /accused bears the onus to prove his claim of “harsh or oppressive” on the balance of probabilities by reason of sub-section (2) of Section 41. 

	Issues 

8.	The first issue is, whether or not the trial Judge’s conduct is harsh and oppressive to the applicant/accused. That is, did his departure from the Judiciary on account of the expiry of his term as Acting Judge without completing the trial harsh and or oppressive to the accused in the circumstances of the case. 

9.	The applicant through his counsel argues that to determine the issue one needs to look at the circumstances the accused/ applicant was placed in and put through and the Judge’s conduct. Further to look at the evidence filed in support of the applicant’s claim upon which he asserts the Acting Judge’s action to be harsh and oppressive. 

10.	The affidavit of the applicant Guma Wau sworn and filed on 10th May 2016, states the following. He was interviewed and arrested by Police on 6th August 2010. On 17th December 2010, he was committed to stand trial in the National Court. He made many Court appearances in answer to bail after 17th December 2010 and waited to get his trial date. The trial started on 8th April 2014 and prosecution closed it’s case on 13th March 2015. The applicant says he has spent about K150,000.00 to K200,000.00 in the last 5 years in case related costs. 

11.	The  affidavit of Gabriel Gendua filed on 19th April 2016, states the following: The trial Judge had 3 months to read the No Case Submission from the applicant’s lawyer filed on 2ndApril 2015. He had two months to read the submission in response by the State which was filed on 1st May 2015. 

12.	The supplementary affidavit of Gabriel Gendua filed on 10th May 2016 states. A 38 page no case to answer submission was filed signifying legal costs involved after analysing the evidence. 
	
	Effect of invoking Section 576 of the Criminal Code

13.	Mr. Gendua of counsel argues that this is not a case of the matter been part heard at a preliminary stage of the trial after one or two prosecution’s witnesses are called. The trial had reached the half way mark with the State closing its case. If the Court was to invoke Section 576 of Criminal Code to declare a mistrial then in the light of the facts highlighted it will be a denial of Justice.

14.	It is apparent from the evidence that the trial Judge had knowledge himself that his term of appointment as Acting Judge was to expire at the end of June 2015. He had more than ample time to have made a decision. The trial Judge’s action in the circumstances was unfair, harsh and oppressive. 

15.	Based on the above, the applicant has discharged the onus and proved his claim on the balance of probability and the Court should find for him. 
	
          Issue two
 
16.	The second issue is, whether or not Judicial & Legal Services Commission should be ordered to re-appoint Mr. Regget Marum as Acting Judge to complete the part heard trial.

17.	The applicant submits that, the order sought herein is consequential in nature to the first issue. This order is been sought pursuant to Section 170(2) of the Constitution. Although the order is been sought under Section 170(2) counsel submits it is worth noting that Subsection (3) empowers Judicial & Legal Services Commission to extend an Acting Judges term for a further period of less than 12 months.  

“170 Appointment of other Judges

(1)	An office of Deputy Chief Justice of Papua New Guinea is hereby established.

(2)	The Deputy Chief Justice and the other Judges of the National Court (other than the Chief Justice) and acting Judges shall be appointed by the Judicial & Legal Services Commission.

(3)	No appointment of an acting Judge shall continue for a period of more than 12 months, but one extension for a period of not more than 12 months may be granted by the Judicial & Legal Services Commission.

(4)	The question, whether the occasion for the appointment of an Acting Judge has arisen or has ceased, is non-justiciable” 

18.	The circumstances under which such an extension of an Acting Judge’s term should be granted is not known as it is not spelt out under Section 170 of the Constitution. Counsel argues it is most unfortunate no evidence has been filed by the respondents to elaborate on when an extension can be given to an Acting Judge’s term for a further 12 months. I can only conclude that because Judicial & Legal Services Commission is not subject to any direction and control by anybody it is not obliged to respond.

19.	That in the absence of evidence from any of the respondents this Honourable Court will not commit an error by invoking commonsense. Further that the onus is on the particular Judge who has cases outstanding to complete them. 

20.	The applicant argues that it was incumbent on the Judicial & Legal Services Commission to enquire with the particular Acting Judge as to outstanding matters he had requiring his attention for completion. That it was apparent Judicial & Legal Services Commission did not care and likewise the Acting Judge did not care. 

21.	In its argument, the applicant further raises the issue of whether Judicial & Legal Services Commission should be protected by section 170(4) of the Constitution. 
“Subsection (4) provides:-
		
“The question whether the occasion for the appointment of an acting Judge has arisen or has ceased is non justiciable”

22.	The applicant argues that whilst this maybe so Section 170(4) refers to “the occasion for the appointment of an acting Judge” This is not the occasion for the reappointment of an Acting Judge but rather an extension of an Acting Judge’s 12 months appointment and therefore it is justiciable. He submits Judicial & Legal Services Commission should not hide behind Section 170(4).

	Second and Third Respondents Submission 

23.	Counsel for the second and third respondents submits that there is nothing harsh and oppressive about the departure of Acting Judge Regget Marum. The matter was part heard and whilst this was pending Acting Judge Marum’s term expired. That is not the end of the matter. This is a criminal trial. Rightfully this matter should be governed by the Criminal Practice Rules and the Criminal Code. Naturally in the circumstances the only recourse available to the applicant is under Section 576 of the Criminal Code. That is to apply to have the case declared a mistrial and the matter to start a fresh. 

24.	As to whether the Judicial & Legal Services Commission can be directed to reappoint the former Acting Judge to complete the matter, this question is clearly answered by section 170 (4) of the Constitution. Counsel submits the term “non justiciable” simply means that any issues relating to such cannot be settled by law or by the action of a Court. He argues that that settles the issue that the Court cannot direct Judicial & Legal Services Commission to reappoint the former Acting Judge for whatever purpose. This point is also enunciated in Schedule 1.7 of the Constitution. 
 	
Schedule 1.7 of the Constitution states;

Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purpose of Division III.2 (leadership code).

25.	In the case of Kila Wari v Gabriel Ramoi and Kingsford Dibela [1986] PNGLR 112, the term “non-justiciable” was discussed. This case was an appeal from a decision of McDermott AJ refusing an injunction to restrain the defendants/respondents from acting to terminate the appointment of the plaintiffs as members of the Post and Telecommunications Commission. Members of the Post and Telecommunications Commissions apprehensive that their appointments to the Commission were about to be terminated under the Post and Telecommunications Act, sought an injunction to restrain notices being served on them to that effect, naming as the defendants to the proceedings the Minister responsible for the Post and Telecommunications Act and the Governor-General as Head of State. One of the questions raised was whether any questions relating to the advice given by NEC to the Head of State (the Governor General) was immune from judicial proceedings. The Supreme Court held that: 

“Although there are no specific constitutional (or statutory) provisions to the effect that the Head of State may or may not be sued or proceeded against in Court for an official act performed by him or her on advice, the Head of State is nonetheless by virtue of the Constitution, s86 (2), s94 (1)(a) and s247(2), immune from judicial proceedings with respect to the exercise and performance of the powers, duties and responsibilities of his or office”.
    
26.	This is so because by virtue of his functions, there is no discretion whatsoever vested in the Head of State. See the Minister for Lands v Frame [1980] PNGLR 433. The Head of State cannot act otherwise other than on advice of the NEC or a body prescribed by law. Therefore section 86(4) of the Constitution ensures that whatever advice the Head of State is given and by whom is non-justiciable.
 
	Fourth Respondent’s submission  

27.	The fourth respondent says the law on whether “the Judicial & Legal Services Commission can be compelled to make a reappointment of a Judge whose term has expired, is clear from the following provisions: 

1.	Section 183(4) of the Constitution provides that the Judicial & Legal Services Commission is not subject to direction or control by any person or authority. 

2.	Section 170(3) states that no appointment of an Acting Judge shall continue for a period of more than 12 months, but one extension for a period of not more than 12 months may be granted by the Judicial & Legal Services Commission.

3.	Section 170(4) provides that the question, whether the occasion for the appointment of an Acting Judge has arisen or has ceased, is non-justiciable.

4.	Schedule 1.7 provides that where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any Court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for purposes of the Leadership Code. 

28.	The fourth respondent submits that the Commission (JLSC) cannot be directed or controlled by another person or authority. In this case, it appears the plaintiff is attempting to impose on the Commission to make a decision regarding the reappointment of the former Acting Judge, a matter that is clearly in contravention of Section 183(4) of the Constitution. 

29.	Further, the reappointment of a former Acting Judge to return and complete a part heard trial is non-justiciable. That means it is a question that this Court cannot entertain nor deliberate on. To do so would be an invalid act. 

30.	However, having pointed out the constitutional provisions giving effect to the independence of the Judicial & Legal Services Commission, the plaintiff’s trial may be discontinued or an order for a fresh trial to recommence. It is a matter that can still be continued and thereby non-prejudicial to the plaintiff. 

31.	As to the question of reappointment of the trial judge, it submits that that question is non-justiciable. Consequently, it submits that Judicial & Legal Services Commission cannot be directed or controlled by another person or authority.

Decision 

32.	Firstly, it is important to set out the background of the matter. 

a.	The applicant was charged with 1 count of attempted murder on 8th August 2010. On 23rd November 2010, the Kundiawa District Court committed him to stand trial.

b.	The trial was completed and a no case submission was filed on 2nd April 2015.

c.	The State filed its submission in response on 1st May 2015.

d.	In June 2015, the trial Judges term of Judicial appointment as Acting Judge of the National Court expired and left without making a ruling on the No Case Submission. 

e.	The Kundiawa National Court did not have a Provincial Judge until February 2016. 

f.	The matter was mentioned at several Criminal Callovers.

g.	On 4th April Callover, the applicant’s lawyer indicated filing this motion rather than following recourse under Section 576 of the Criminal Code.

h.	Applicant’s lawyer was directed to file its motion and serve it on appropriate parties and the matter was adjourned to 2nd May 2016 for further directions. 

i.	On 2nd May, the applicant’s lawyer was directed to amend its Notice of Motion including naming the appropriate parties, filing and serving the amended Notice of Motion within 3 weeks and the matter was adjourned to 6th June 2016, to get a hearing date. 

j.	On 6th June 2016, the matter was listed for hearing on 6th July 2016 with directions that applicant’s Lawyer advice all parties by letter and to file an affidavit to that effect.

k.	On 6th July, the matter could not proceed as the applicant’s undertaking to deliver the said letter did not happen as he fell ill. Mr. Gendua was directed to serve the amended notice of motion and to advise parties of the hearing date. 

l.	Further directions were issued for written submissions to be filed by 18th July, 2016.

m.	The matter was then relisted for hearing on 26th July at 9:30 am. 

33.	On 26th July 2016, the motion came on for hearing. After perusing the amended Notice of Motion, I raised a preliminary issue. The person at the very centre of the proceedings, the former trial Judge Marum AJ was not named as a party in the proceedings. I raised this noting that serious allegations of incompetency and no care attitude were levelled against both him personally and the Judicial & Legal Services Commission. 

34.	Having raised the issue, the applicant’s lawyer realising the significance of the issue promptly responded by alluding to an over sight on his part and applied for a further adjournment to name Acting Judge Marum as a party and to serve him the documents. This was refused for obvious reasons. The applicant’s lawyer was already advised on two occasions to name the appropriate parties when directions were issued to file his amended notice of motion. This was not done.

35.	The applicant raises two issues. The first issue is whether the actions of both the trial Judge and the Judicial & Legal Service Commission were harsh and oppressive in the circumstances. Secondly, whether the Judicial & Legal Services Commission can be ordered to reinstate the former acting Justice Marum to complete the matter. 

36.	Before I address the two issues, there is a preliminary issue which is of equal importance that needs to be addressed. That is the issue of whether the former Acting Justice Marum ought to have been named and served as a party in the proceedings.

37.	It is clear that the main player in this proceeding is Mr. Regget Marum the former Acting Judge of Kundiawa National Court. Both declaratory orders been sought refer to him and will affect him. The first order in particular refers to his departure as been harsh and oppressive to the accused. The second order seeks to compel the Judicial & Legal Services Commission to reappoint him to complete this particular case and not any other case. (my underlining)

38.	In its submission at paragraph 5.5 Mr. Gendua says: 

1.	The trial Judge had three (3) months to read the submissions from the lawyer for the applicant/accused as the submission was filed on 2nd April 2015. 

2.	The trial Judge had two (2) months to read the submissions in reply from the lawyer for the prosecution as the submission was filed on 01st May 2015. 

39.	At paragraphs 6.4 of the submission Mr. Gendua says that: 

(a)	The trial judge knew that his term of appointment as Acting Judge was to expire at the end of June 2015; 

(b)	After receipt of the submissions from both parties the trial Judge had 3 months which was more than ample time to have made decision. 

(c)	The fact that the trial Judge sat on the submissions for three (3) months and not make a ruling after almost five (5) years knowing that his term as acting judge would be up at the end of June 2015 is unreasonable and unfair. It is these actions or inactions of the trial judge which amounts to been harsh and oppressive. 

(d)	The trial judge has left the applicant/accused wanting for justice after five (5) years at enormous expense apart from mental stress and emotions. The trial judge knew or ought to have known that for him to leave the trial part-heard would result in the trial being declared a mistrial and this would cause further delay and injustice and would be harsh and oppressive to the applicant. 

40.	This are conclusions arising from facts alleged in the affidavits filed. The allegations are serious. 

41.	From the foregoing, it is clear that the former Acting Judge ought to have been named as a party in the proceedings. It would clearly be injustice if orders were made in his absence without the court hearing his side of the story. It would be a breach of one of the most fundamental principles of Law in that of breach of Natural Justice. That is the right to be heard in any ones defence and the fairness that follow.

42.	I note that the Acting Judge Marum departed at the end of June 2015. After that there effectively was no Kundiawa resident Judge until February 2016. That may have contributed to the delay. However, I note that on the 4th April 2016, the applicant’s lawyer indicated its position to pursue this course of action. Given that he was directed to file the appropriate motion naming the appropriate parties and to serve them. 

43.	On the 2nd May 2016, the applicant’s lawyer was directed to amend its notice of motion and in particular to properly name the appropriate parties. 

44.	On the 26th July 2016, the motion came on for hearing. I noted counsels had flown in from Port Moresby. I then raised a preliminary point when I realised that the very person the subject of the proceedings was not named as a party.

45.	The applicant’s lawyer realising this promptly responded by alluding to an oversight on his part. He then applied for a further adjournment to amend the notice of motion again and to name former Acting Judge Marum as a party. I refused the applicant’s lawyers request given that he was directed twice to name the appropriate parties but failed. Adjournment of the matter would be a further setback and delay, the very reason for the complaint giving rise to this proceeding.

46.	The reality of the matter is this. In the event the court orders Judicial & Legal Services Commission to reappoint the former acting Judge Marum and he refuses or the circumstances don’t permit him to accept the reappointment what happens. After all any offers will have to be accepted before appointment. That is that you can either accept or refuse the offer which is the normal process.

47.	That is why it was incumbent on the applicant’s lawyer to have been more diligent in naming the appropriate parties to the proceedings but which he failed to do after the matter was adjourned twice for this very reason. 

48.	I also note the Public Prosecutor who is a party in the proceedings never made any formal submissions in respect of its position relating to the application. It only verbally stated that its desire was to see this matter completed.

49.	Given the foregoing, It is my view that the Court is at a disadvantage to properly deal with the issues raised in respect of the declaratory orders been sought. 

50.	Consequently, I dismiss the motion as been incompetent and an abuse of process. 

51.	Having said that, It is not necessary to address the other issues other than the issue of costs. 

52.	I note that the main factor in causing the applicant to pursue this cause of action is the issue of costs. In the applicant’s affidavit sworn and filed on 10th May 2016, the applicant at paragraph 14, 16(i) and 18 raises the issue of costs. At paragraph 16(i) he says he may have spent between K150, 000.00 – K200, 000.00 in the last 5 years in case related costs. This will have to be verified. 

53.	These sentiments are similarly expressed by Mr. Gendua in his affidavit filed on 19th April 2016, in particular at paragraphs 21, 23 and 26 of the same. 

54.	For the benefit and convenience of the applicant it is my view that the question of costs is a matter that can be properly argued at the conclusion of the trial proper. 

55.	The formal Orders of the Court are as follows: 
n.	The application is dismissed.
o.	The State is to make the necessary application pursuant to section 576 of the Criminal Code at the next Criminal Callover.
p.	The matter shall be listed for trial at the next Criminal Callover.
q.	Both the prosecution and the defence are to effectively prepare for the trial.
r.	There will be no further adjournments of the matter once a trial date is given.
s.	The applicant’s bail is further extended. 

Orders    accordingly, ________________________________________________________________
Gendua Lawyers				: Lawyers for the Applicant	       
Mr. P Ifina, Legal Counsel NJSS	: For the Second and Third Respondents
Mr. M Efi					: Counsel for the Fourth Respondent 
Public Prosecutor				: Lawyers for the State