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Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)

N6555

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) No. 2 & 3 of 2016

BETWEEN:
MIKA MICHAEL AKIA & WILLIE SIMOI
Appellants

AND:

DERRICK FRANCIS
First Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu J.
2016: 18^th & 24^th August

PRACTICE & PROCEDURE – Appeal – Committal Proceedings – District Courts Act, Chapter No.40; Part VI – Appellants committed to stand trial in the National Court - Appeal not a proper mode to challenge finding of a prima facie case by the Committal Court – Judicial review should lie only where there is clear evidence of procedural errors or irregularities or substantive errors of law.

Cases cited
Bank of PNG v. Eddie Oruba Mai (2007) SC682
Blasius Tirupia v The Administration (Re Japlik and Vunapalading No 2) [1973] PNGLR 34,
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Okuk v The State & Fallscheer [1980] PNGLR 274
R v. McEachern [1967-68] PNGLR 48
R v. Simbene Dandemd [1969-70] PNGLR 207
The State v. Tanedo [1975] PNGLR 395
Wartoto v The State [2015] PGSC1; SC 1411.

Other cases cited
R v. Gee (1936) 2 All E.R 89

Counsel:
S. Ketan, for the Plaintiff
B. Kulumbu, for the Defendant

24^th August, 2016

1. GAVARA-NANU J: This is an application by the State which is the second respondent herein, made pursuant to a notice of motion filed on 6 June, 2016. The application seeks to dismiss the proceeding on the ground that it is frivolous or vexatious and an abuse of process and that it discloses no reasonable cause of action. The application is made under Order 12 r 40 (1) of the National Court Rules.
   
2. The thrust of the applicant’s argument is that it is an abuse of process for a criminal appeal to be brought before a Court of civil jurisdiction. For this argument reliance was placed on Wartoto v The State [2015] PGSC1; SC 1411. In that case, the Supreme Court among other things held that it is an abuse of process for a Court of civil jurisdiction to stay a criminal proceeding. The Court also held that issues regarding committal proceedings should be raised during committal hearings or if not, with the Public Prosecutor or the National Court at the trial.
   
3. The appellants argued that they have a right of appeal conferred by the relevant appeal provisions of the District Courts Act, Chapter No. 40 under PART X1, viz; ss. 219,220 and 221. Mr. Ketan of counsel for the appellants relied especially on s.219. He argued that the order by the Committal Court to commit the appellants to stand trial amounted to “adjudication” as stipulated under s.219, thus the order or adjudication is appealable.
   
4. Section 219 provides among other things that, a person aggrieved by a conviction order or adjudication of a Court may appeal to the National Court. The appellants claim as a ground of their appeal that the Committal Court erred in finding that there was sufficient evidence or a prima facie case against them. The other point raised by them is that the Information containing the charges was defective. This point goes to the jurisdiction of the Committal Court.
   
5. The committal proceedings are governed by Part VI of the District Courts Act, Division1. It is of fundamental importance to note here that a committal proceeding is not a trial or a substantive hearing where a guilty finding or an acquittal of a defendant charged with an indictable offence can be made, it is an administrative process in which an inquiry is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient: Bank of PNG v. Eddie Oruba Mai (2007) SC862. At the end of such an inquiry the Committal Court may either discharge the defendant for lack of evidence or for lack of a prima facie case or commit the defendant to either stand trial or sentence in the National Court. The latter would be an appropriate order if the defendant admitted the offence as stipulated under s. 103 (1).
   
6. Thus, given the nature of a committal proceeding, a challenge to a Committal Court decision or the proceeding itself, should be by way of a judicial review, not by way of an appeal.
   
7. It is important to note that what is reviewed in a judicial review is the process by which the decision to commit had been reached by the Committal Court not the decision itself and the purpose of the review is to see if the decision was properly or regularly reached. If the decision was improperly or irregularly reached or that there was an error of law made in such decision making process, then such a decision would be amenable to judicial review: Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122 and The State v. Tanedo [1975] PNGLR 395.
   
8. An irregularity or an error of law may lie in a situation where the Committal Court failed to comply with a mandatory statutory requirement. For example, the Committal Court committing a defendant to stand trial without asking him if he had anything to say or whether he wished to give evidence as stipulated under s. 96 of the District Courts Act, or where the Committal Court failed to express an opinion that there was sufficient evidence or a prima facie case against a defendant as required under s. 95, when committing the defendant to stand trial, or where wrong principles of law were applied by the Committal Court.
   
9. Consequently, a finding of sufficiency of evidence or a prima facie case by a Committal Court against a defendant is in my view not amenable to judicial review. What is amenable to judicial review is irregularity in the decision making process or an error of law made in that decision making process. There is sound legal basis for this view viz; the Public Prosecutor has power to still obtain or collect further evidence when considering the Committal Court depositions, after the committal, as part of his preparation to prosecute the case before the National Court. This is part of Public Prosecutor’s prosecutorial functions, which is available to him to exercise if he felt that such evidence was relevant and was required for the prosecution.
   
10. For these reasons, if a challenge is mounted by a defendant against a finding of sufficiency of evidence or a prima facie case by the Committal Court even by a judicial review, such a challenge would in my view amount to circumvention of Public Prosecutor’s prosecutorial powers and functions. This would also be a ground for the Court to refuse such review applications, bearing in mind also that the Public Prosecutor is not subject to control by anyone in the exercise of his powers and functions. See ss. 176 (3) and 177 (1) of the Constitution.
    
11. It is also instructive to bear in mind that after a defendant is committed to stand trial in the National Court the matter is no longer under the jurisdiction of the Committal Court, it automatically falls within the Public Prosecutor’s prosecutorial powers and functions. Therefore, the Court should as a matter of law be generally loath in intervening even where a decision was amenable to judicial review, especially where there is no clear evidence of an irregularity or an error of law in the decision. The Public Prosecutor should be allowed to exercise of his powers and decide whether to prosecute the matter or not.
    
12. If the Public Prosecutor decided not to prosecute, then he has to either file a Declaration or a Nollie Prosequi depending on the state of the evidence and the stage the matter has reached. See ss. 525, 526 and 527 of the Criminal Code Act, 1974 (Chapter No. 262).
    
13. But if the Public Prosecutor decided to prosecute the matter, then as I said he has power to obtain other or further evidence beside those considered by the Committal Court, but such evidence must be made available to the defendant and his counsel before trial. This requirement is akin to the requirement under s. 526 of the Criminal Code, where the Public Prosecutor has power to present an ex-officio indictment after the Committal Court had refused to commit the defendant to stand trial (indictment without committal).
    
14. It follows from the foregoing that the issue of whether there is sufficient evidence or a prima facie case against a defendant is a matter which should be left to the National Court to determine at the trial. The exception is where there is clear evidence of procedural irregularity or an error of law made in the committal hearing which would warrant judicial review of the decision of the Committal Court. An appeal cannot lie to the National Court in such a situation: The State v. Tanedo (supra).
    
15. Likewise, in this case the Committal Court having found that there was sufficient evidence or a prima facie case against the appellants of the offence charged, if the appellants do not agree with such a finding, then that is a matter which should go to trial and the appellants will have their opportunity before the National Court to demonstrate insufficiency of evidence or lack of a prima facie case against them. There is no allegation of procedural irregularity or an error of law made against the Committal Court decision by the appellants that would warrant a judicial review.
    
16. The appellants have also raised the issue regarding deficiency of the Information laid. In my view that is an issue which the appellants should have raised at the outset, right at the beginning of the committal hearing. Because the appellants have failed to do so, the proper time for the appellants to raise the issue is before the National Court by way of a demurrer to an indictment charging an offence. See, Okuk v The State & Fallscheer [1980] PNGLR 274 and Blasius Tirupia v The Administration (Re Japlik and Vunapalading No 2) [1973] PNGLR 34. See also R v. Mc Eachern [1967-68] PNGLR 48; R v. Simbene Dandemb [1969-70] PNGLR 207 and R v. Gee (1936) 2 All E.R 89.
    
17. For the foregoing reasons the appeal is misconceived and is an abuse of process. The appeal is therefore dismissed with costs.
    

_______________________________________
Ketan Lawyers: Lawyers for the plaintiff
State Solicitor: Lawyers for the State