N6568

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.740 OF 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO SECTION 155 (4) OF THE CONSTITUTION AND ORDER 16 OF THE NATIONAL COURT RULES
BETWEEN
HAVILA KAVO
Applicant/Defendant

AND
DERRICK FRANCIS (POLICE/STATE)
Police/Informant/Respondent

Waigani: Makail, J
2016: 9th December

JUDICIAL REVIEW – Review of decision of District Court – Decision to commit Applicant to stand trial in the National Court – Grounds of – Breach of right to be heard – Mandatory – Effect of – District Courts Act – Section 96 

Cases cited:

EremasWartoto v. The State(2015) SC 1411
Gerard Philip v. Paul Ndran’oh, District Court Magistrate &The State (2012) N4510
Jimmy MostataMaladina v. Principal Magistrate PosainPoloh&The State (2004) N2568
Counsel:

Messrs D. Yariyari& F. Yangwari, for Applicant
Mr.E. Geita, for Respondents

JUDGMENT
9th December, 2016

1.	MAKAIL J: The Applicant is applying to review the decision of the District Court of 9th June 2016 which committed him to stand trial in the National Court on a charge of misappropriation of public funds contrary to Section 383A (1) (a) of the Criminal Code.It is alleged that he misappropriated a sum of K783,195.70, money belonging to the State (Gulf Provincial Government). 
2.	Pursuant of the Originating Summons filed on 3rd November 2016, he seeks the following relief:
“1. 	An Order pursuant to Order 16, rule 3(1) of the National Court Rules 1983 and Section 155(4) of the Constitution that, leave be granted to make an application for Judicial review of the Ruling of 9th June 2016 by the Committal Court at Waigani.
2.	A declaration that the Committal Court made a substantive error of law in not giving the accused/defendant his right to be heard under Section 96 of the District Court Act before its ruling, and;
3.	A declaration that the Committal Court made a substantive error of law and in fact in refusing to consider or hear the accused/defendant unsworn statement pursuant to section 96 of the District Court Act thus contravened Section 59 of the Constitution, hence denial of the accused/defendant to a just and fair hearing.
4.	A declaration that the Committal Court having denied hearing of the accused/defendant’s unsworn statement constitutes breach of national justice accorded under the Constitution and further actual prejudice was caused against the accused/defendant to a fair hearing.
5.	A declaration that the Committal Court had made a substantive miscarriage of justice and error of both law and fact.
6.	A declaration that the Ruling of 9th June 2016 by the Committal Court in stating that having performed its committal function required under Section 95 District Court Act Chapter 40 and the Magistrates Manual of PNG, which is primarily to investigate and not to adjudicate is null and void.
7.	A declaration that the Committal Court having refused to hear the accused/defendant’s unsworn statement accorded under Section 96 of the District Court Act and further ordering the accused/defendant to give his unsworn statement after its ruling of 9th June 2016 constitutes an abuse of proper court process and procedures.
8.	An order in the nature of certiorari quashing the Ruling of 9th June 2016 by the Committal Court in finding that there was sufficient evidence in the Police Handup brief  establishing a Prima Facie case to commit the Defendant to stand trial in the National Court for purposes of Section 95, of the District Court Act.
9.	An order in the nature of certiorari quashing the Ruling of 09th June 2016 in finding that the witnesses statements and documentary evidence satisfied existence of prima facie evidence on the essential elements of the charge of misappropriation contrary to Section 383 A(1)(a) against the Defendant, committed the Defendant to stand trial in the National Court.
10.	Costs be in the course (sic) of this proceedings.
11.	Such further or other Declarations and Orders as the Court sees fair and proper.”
3.	The first order, namely, leave was granted by this Court on 17th November 2016 following an ex parte hearing as is usually the case in leave applications: refer to Order 16, rule 3 (3) (2) of the National Court Rules.  Leave was granted on the first ground only, that the Applicant was denied the right under Section 96 of the District Courts Act.  Thus, it is the sole ground for judicial review.  
4.	The Respondents submit that there is no evidence to prove that the District Court reached the decision in question in breach of Section 96 of the District Courts Act.  Thus, any findings of fact that the Court will make will be unsupported by evidence.  However, on the Applicant’s sworn affidavit of 24th October 2016 which was not contradicted, I am satisfied and find that on 9th June 2016 the Waigani District Court ruled that the Applicant be committed to stand trial in the National Court on a charge of misappropriation under Section 383A (1) (a) of the Criminal Code.The charge arose from an allegation that the Applicant had dishonestly applied to his own use the sum of K783,195.70, property belonging to the State (Gulf Provincial Government).  
5.	Further, I find that he was not given the opportunity to be heard by the learned Magistrate under Section 96 of the District Court Act,before decision in that, he had an unsworn statement to present but was refused by the learned Magistrate.  However, there is no evidence except as assertion that the District Court found in favour of the Respondents on the question of sufficiency of evidence following submission by the Plaintiff’s lawyers.
6.	The Applicant contends that the learned Magistrate’s failure to afford him the opportunity to be heard under Section 96 of the District Courts Act before ruling to commit him to stand trial in the National Court was a serious procedural breach in the decision-making process and rendered the decision unlawful and should be quashed in its entirety.  

7.	For this, he contends that the requirement to be heard under Section 96 is mandatory.  It was breached when the learned Magistrate failed to accord to him that opportunity.  He relies on the cases of Gerard Philip v. Paul Ndran’oh, District Court Magistrate & The State (2012) N4510and Jimmy MostataMaladina v. Principal Magistrate PosainPoloh& The State (2004) N2568where he submits held that according a Defendant an opportunity to be heard under Section 96 of the District Courts Act is mandatory and its breach would render the decision of the District Court to commit unlawful.

8.	The Respondents concedes that Section 96 is part of the committal process of the District Court and mandatory but submits that the proceedings are incompetent because the criminal process of which the committal process of the District Court is part of is yet to be completed, that it should be allowed to progress until its completion, that the Applicant’s right to a fair trial is preserved and will be accorded to him in the National Court and that by reason of this, the proceedings should be dismissed.  They rely on the decision of Supreme Court in EremasWartoto v. The State(2015) SC 1411which they say supports their submission.

9.	That may be so but the Respondents’ submission does acknowledge that the committal process in the District Court is part of the entire criminal process by which accused persons are subjected.  Section 96 is part of this process.  And it is necessary to set out Section 96.  It states:

	“96.	Accused to be asked whether he desires to give evidence.

(1)	Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—
	
"”Having heard the 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 evidence 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.".

(2)	Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be—

(a)	taken down in writing in the English language and read to him; and
(b)	signed by the Magistrates constituting the Court and by the defendant if he so desires; and
(c)	kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

(3)	In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.”

10.	The application of Section 96 was considered in Jimmy Mostata Maladina(supra).  In that case Injia DCJ (as he then was) examined the committal process in the District Court under Sections 95, 96, 100 and 103 of the District Courts Act. He explained that there is a “two-phase committal process” prescribed in these provisions.  

11.	The first phase takes place under Section 95 where “[t]he Magistrate “receives” or “hears” evidence offered by the prosecution only, considers the evidence, and decides whether the evidence “is sufficient to put the defendant on trial.”  If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information.  That is the end of the matter.  If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under S.96. 

12.	Phase two “is the examination of the defendant by the Magistrate under S.96.  The prescribed wording of S.96 statement, which the Magistrate puts to the defendant, is part of that provision.  The Statement implies that the defendant has “heard” the evidence for the prosecution, which the Magistrate has considered, and made his decision under S.95.  The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.  ”

13.	His Honour went on to hold that the Magistrate failed to accord the Plaintiff and found that the decision to commit the Plaintiff to stand trial in the National Court under Section 100 was reached under a flawed process in that the Court did not give “meaningful and reasonable opportunity” under Section 96 to the Plaintiff.  The decision was quashed but the matter was referred back to the District Court, before a different Magistrate to re-hear under Sections 95, 96, and 100 of the District Courts Act.

14.	That decision was followed in Gerard Philip case (supra) where the Court in that case upheld an application for judicial review of a decision by the Kundiawa District Court to commit the Plaintiff to stand trial in the National Court on three counts of rape without according the Plaintiff an opportunity to be heard under Section 96. The Court quashed the decision however, did not referred the matter back to the District Court, before a different Magistrate to re-hear under Sections 95, 96, and 100 of the District Courts Act as was done in Jimmy MostataMaladina case (supra).

15.	It is worthy to note what the Court said at [18] of the judgment:

“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.”

16.	The essence of these decisions is that the requirement to observe Section 96 is mandatory.  In my view, the competency issue brought up by the Respondents does not arise because Section 96 is part of the criminal process which was said to have been breached.Further, given the significance of Section 96 requirement, I distinguish the Wartoto case (supra) from this case because the issue of Section 96 requirement was not considered in that case.  

17.	A further reason is that in the Wartoto case (supra) the criminal proceedings were before the trial judge for directions hearing and awaiting the Public Prosecutor to provide a draft indictment to the Plaintiff and his lawyers.  The Plaintiff filed civil proceedings and sought a permanent stay of the criminal proceedings.  The Supreme Court dismissed the appeal which arose from the decision of the National Court to dismiss the civil proceedings on the grounds of abuse of process.  None of these matters occurred in this case and further that there is no evidence as to the status of the criminal proceedings to decide whether it is inappropriate to stop it.

18.	Based on the facts as found, I am satisfied that the decision in question was reached by following a flawed process.  I will uphold the application for judicial review on this ground and quash the decision in question.  However, as there is no contest by the Respondents as to the assertion by the Applicant that the District Court found in favour of the Respondents on the question of sufficiency of evidence following submission by the Applicant’s lawyers, I will order that the matter be referred to the District Court, before a different Magistrate to hear under Sections 96 and 100 of the District Courts Act.The hearing will give the Applicant the opportunity to respond to the evidence of the Respondents before a decision to commit is made under Section 100.  In addition to that, the committal process must be re-done and completed by the District Court, for it is not the role of the National Court to be a substitute decision-maker.  
19.	The Orders are:

1.	The application for judicial review is upheld in part.

2.	The orders sought in terms of paragraphs 2, 3, 4, 5 and 7 of the Originating Summons filed on 3rd November2016 are granted.

3.	The orders sought in terms of paragraphs 6, 8 and 9 of the Originating Summons filed on 3rd November2016 are refused.

4.	The matter is referred back to the District Court, before a different Magistrate to re-hear under Sections 96 and 100 of the District Courts Act.

5.	Each party to bear its own costs.

Judgment and orders accordingly.
____________________________________
Kumbari Lawyers	: Lawyers for Applicant
Solicitor-General	: Lawyers for Respondents