N6686
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
							
CR APP NO.  37 OF 2016

BETWEEN

MICHAEL KINGSTON
Appellant

AND

RAY PAUL - Commissioner of Customs
Respondent

Lae  	:    Murray, J
      2017   :    01st March & 11th April

APPEAL- Appeal to the National Court- application to set aside ex parte orders - failure to consider relevant principles & evidence - Principle of fairness- failure to give reasons.
	Inferior Court - District Court - Magistrates are bound by the National & Supreme Court- Breach of Sch 2.8 & 2.9 Constitution.

PNG Cases Cited:
Fleming vs. Gwale Dau [1983] PNGLR 339
Mission Asiki vs. Manasupe Zurenuoc & The State (2005) SC797
Public Prosecutor vs. Eremas Wartoto (2015) SC1340
Pius Sankin vs. PNG Electoral Commission (2002) N2257
Ombudsman Commission vs. Peter Yama (2004) SC747

Overseas case cited:
Hunter vs. Transport Accident Commission (2005) 43 MVR 130 at [21]

Counsel:	
P. Tabuchi, for the Appellant
J. Waine & Mr. Katu, for the Respondent

DECISION

11 April, 2017

1.	MURRAY J:  This is an appeal by the Appellant, Michael Kingston, 
against a decision of the District Court (Magistrate Singomat) in Lae of 11 August 2016, whereby the learned Magistrate upheld a Motion by the Respondent (Informant in the District Court), setting aside his previous order of 6 June 2016 and further ordered that the trial of the original, (CR2239 OF 2013) proceeding before him be stalled until end of September.

Background 
 
2.	The Appellant was charged in 2012 with certain offences under the 
Customs Act.  When the matter went before the District Court, Magistrate Singomat overruled objections raised by the Appellant against the admission into evidence of certain items, thus allowing the items to be admitted into evidence.

3.	An appeal was then filed against that decision of Magistrate Singomat to allow into evidence the items that were objected to, by the Appellant.  The Appeal was registered as CR App 13 of 2015.

4.	On 16 February 2016, the appeal came before this Court for hearing.
Mr. Michael Kingston who is also the Appellant in that Appeal sought the following orders:

(1)	  The ruling of the District Court of the 11th May 2015 on the voir dire be 
  quashed.

(2)	  The evidence of the Prosecution and exhibits objected to in the voir dire 
  be ruled to have been obtained in breach of the Defendant’s rights under 
  the Constitution and the law and be ruled to be inadmissible.

(3)	  The matter be remitted to the District Court for continuation of the trial 
  in accordance with the orders of this Court. 

(4)	  Any other orders the Court deems fit.

5.	Mr. Waine who appeared for the Respondent in that Appeal (who is also the respondent in this appeal), in submission consented to the orders sought in the Appeal.
 
6.	Based on that and the submission by Mr. Tabuchi, lawyer for the appellant, this Court on the same date, upheld the appeal and made the following orders:

(1)	  The Appeal is allowed.

(2)	  The Ruling of the District Court of 11th May 2015 on the voir dire is 
  quashed. 

(3)	  The evidence of the Prosecution and exhibits objected to in the voir 
  dire were obtained in breach of the Defendant’s (Appellant) rights 
  under the Constitution, and are therefore inadmissible.

(4)	  The matter is remitted to the District Court for continuation of the 
  trial in accordance with the Orders of this Court.

(5)	  The costs of and incidental to this appeal are to be paid by the 
  Respondent.

(6)	  Time for entry of this Order is abridged to the time for settlement by   
  the Assistant Registrar which shall take place forthwith.

7.	On 29 April 2016, following the decision by this Court, the 
Appellant filed a Notice of Motion in the original District Court proceeding CR 2239 of 2013 to dismiss the Complaint against the Appellant on the basis that the proceedings were now an abuse of process in light of this Court’s decision.

8.	That motion was made returnable on 12 May 2016.  However, on that day when parties appeared, the motion was adjourned to and fixed for hearing as a special fixture on 6 June 2016 at 9 am.  The lawyer representing the Respondent was fully aware of the special fixture.  However on 6 June 2016, no one appeared for the Respondent and so after being satisfied that the Respondent was not in the Court or within the vicinity of the court, Magistrate Singomat proceeded to hear the Appellant’s Notice of Motion.

9.	After hearing the Notice of Motion, the District Court made the following orders:

“(1)	The orders as per the Notice of Motion filed 29 April 2016 are 			granted.

(2)	The substantive charge against the Defendant is dismissed 			forthwith.

(3)	The exhibits ruled to be inadmissible by the National Court on 16 		February 2016 shall be returned to the Defendant forthwith.

(4)	The Defendant’s bail shall be refunded forthwith.

(5)	Costs of and incidental to these proceedings shall be paid by the 		Informant.”

10.	On 6 July 2016, the Respondent filed a motion to set aside the orders made on 6 June 2016 on the basis that the orders were made ex parte.  That motion was fixed for hearing on 25th July 2016 at 9.00 am.

11.	At the hearing of that motion on 25th July 2016, the Respondent relied on the following affidavits:

(1)		Affidavit of Ian Hering sworn 15th June 2016 and filed 27th June 	2016;

(2)		Affidavit of Joseph Thomas sworn 22nd June 2016 and filed 
27th June 2016;

(3)		Affidavit of Augustine Bosimbi sworn 22nd June 2016 and filed 	27th June 2016; and

(4)		Affidavit of Fred Katu sworn 7th July 2016 and filed 14th July 2016.

12.	The Notice of Motion was opposed by the Appellant, who relied on the affidavit of Phillip Tabuchi sworn 24 July 2016 and filed the next day.
Both filed written submissions and made oral submissions as well. A ruling on the motion was reserved to 11 August 2016 at 11 am.

13.	On 11 August 2016, Magistrate Singomat delivered a decision wherein, he set aside his orders of 6 June 2016, and ordered the trial be stalled until the end of September for the case to continue.  

14.	Aggrieved by that decision, the Appellant lodged this appeal on 
8th September 2016.

Directions Hearing and Listing of this Appeal

15.	At Directions Hearing on 21st November 2016, this Court adjourned the matter to 2nd December 2016 at 9.30am for Listing.  On 2nd December 2016 after confirming that the Appeal books were filed and served, this Court fixed the Appeal for hearing on 6th February 2016 at 1.30 pm.

16.	On 6th February 2016, Mr. Katu, the in-house lawyer for the Respondent applied to vacate the hearing. The application was opposed.  After considering both submissions, I granted the application for adjournment and asked whether costs of the adjournment, would arise as an issue here. Both counsel agreed that it does and further agreed that it be argued at a later date.  I then adjourned the hearing to 1st March 2017.

Hearing of Appeal

17.	On 1st March, I proceeded to hear the appeal in the absence of the Respondent after I was satisfied that there was no reason or explanation why the Respondent was not in Court when the matter was called.

18.	Then, whilst Mr. Tabuchi was addressing the Court, almost halfway through his  submission, Mr. Waine entered the Court Room and sat at the bar table.  After Mr. Tabuchi completed his submission, I invited Mr. Waine to respond, but he informed the Court that he had no response to the Appeal as he was not properly instructed by Mr. Katu, who also came into Court late but without saying anything to Mr. Waine, left, whilst Mr. Tabuchi was still making his submission. I then adjourned and reserved my decision to today.

Grounds of Appeal

19.	There are 4 grounds of appeal.  They are set out in paragraph 3.1 – 3.4 of the Notice of Appeal.  They are:

	(1)	The Learned Magistrate erred in both law and fact when he failed 		to:
		
(a)	properly and adequately state and consider the legal 			principles pertaining to an application to set aside orders 			properly obtained and entered in the absence of the 			Respondent;

  (b)		properly and adequately state, and consider the evidence to an application to set aside orders properly obtained and entered in 	the absence of the Respondent; and

(c)		apply the law to the facts as found on the evidence before the 		Court at the hearing of the application.

	(2)	The Learned Magistrate erred in both law and fact when:

(a)			he refused to be bound by the Order of the National Court of 
					16 February 2016 in CR APP 13 of 2015 (Kingston v 						Customs) thereby engaging in contemptuous conduct and 					breaching Schedules 2.8 and 2.9 of the Constitution and the 					well-established principles of stare decisis;
 (b)		he found that CR APP 13 of 2015 should never have been 		lodged in the first place, when he ought to have found 			instead that his hands were tied and that he was legally 			bound by the Order of the National Court in compliance with 		schedules 2.8 and 2.9 of the Constitution;

(b)		when he stalled “the trial and left it back to the parties to 	question themselves as to whether or not an appeal should  	be lodged against a certain decision of a judge of the National Court”, in circumstances where he had no jurisdiction to do so and in any event, the appeal period had expired.

	(3)	The Learned Magistrate erred in both law and fact when he relied 		on a case authority concerned with an election petition to justify his 		actions or support his reasoning when:
		
(a)		he could not even cite the case authority in full in open Court 	but referred to it as a decision of the Chief Justice;

(b)		admitted in open Court that he was still trying to “get hold of 	that decision”; and

(c)		such case authority is concerned with an area of law that has 	its own peculiar Rules and specific legislation governing this 	area of the law, namely the Organic Law on National & Local 	Level Government Elections and the National & Supreme Court Rules on Election Petitions and he could not rely on it in the circumstances of this case.

	(4)	The Learned Magistrate erred in fact and law, notwithstanding the 		appeal grounds raised above in respect of the principles of stare 		decisis, when he expressed an opinion that he needed the firearms 		to be in evidence as that had contributed to him convicting one 			Yoshikuni Ikeda, when he ought instead to have remained neutral 		and conducted the hearing in accordance with the Orders of the 			National Court.  Such opinion expressed by the Learned Magistrate 		in open court has therefore demonstrated that:
		
(a)			there is actual bias or an apprehension of bias against the 	Appellant such that he would never have a fair hearing before this Magistrate;

(b)			the Learned Magistrate intends to convict the Appellant 	notwithstanding the Orders of the National Court and has no 	respect for Orders made by Superior Courts; 

(c)			a substantial miscarriage of justice will occur regardless of 	what happens and the matter is remitted to the District Court.

Issues

20.	Of the four grounds of appeal, the appellant raised three main issues. They are: 	

(1)	Whether the Learned Magistrate erred in law and fact when he failed to properly consider the application before him, the legal principles applicable to the application, the evidence presented by each party and the application of the law to the facts in the application before him.

(2)	Whether the Learned Magistrate erred in law, when he failed to give reasons for arriving at the decision he made.

(3)	Whether the Learned Magistrate erred in law when he failed to 	give effect to the decision of this Court made on 16 February 2016.

		Issue 1:
	
21.	Whether Magistrate Singomat erred in law and fact when he failed to properly consider the application before him, the legal principles applicable to the application, the evidence presented by each party and the application of the law to the facts in the application before him.

22.		Mr. Tabuchi for the appellant argued that, a Court, in making a decision 
is obliged in the interests of fairness and justice, must consider all relevant 
issues, the basis of an application before it and if necessary make a finding of 
fact, make a decision and give reasons for the decision made.

23.		He argued further that if the Magistrate in this case had applied his mind 
to the principles peculiar to the application and the evidence  before him he
would not have made a decision as he did.

24.		In Pius Sankin vs. PNG Electoral Commission (2002) N2257, the 
National Court per Kandakasi J said:

"It is settled law that a discretion that is vested in a decision maker in a democratic society such as ours, must be exercised on proper consideration as to the relevant facts and the law.  There is no such thing as an unfetted discretion."
	
25.	And in the case of Public Prosecutor vs. Eremas Wartoto (2015) 
SC1340, the case cited by Mr. Tabuchi, the Supreme Court, per Kandakasi J at 
	paragraph 25, in determining one of the ground of appeal in that case, said, where the trial judge failed to give consideration to the evidence before him, that meant the learned trial judge erred in law.

26.		In that case, one of the appeal grounds considered by the Supreme Court
 was:  whether the trial judge erred in law, when he failed to have regard to the 
material before him, in particular an affidavit crucial to the appellant's case.

27.	In this case, the application that went before Magistrate Singomat on 25 July 2016 was to set aside orders he made on 6 June 	2016 on the basis that it was made exparte.

28.		The relevant principles in an application to set aside exparte orders are:

1.	Whether there is a reasonable explanation as to why judgment was 	entered in the absence of the party applying to set aside;
2.	Whether there is a delay in making the application and if so, 		whether there is a reasonable explanation for the delay;

3.	Whether there is a serious issue to be tried; and

4.	Whether there will be no prejudice to the opposing party if the ex-		parte order is set aside.

29.	Both parties before the Learned Magistrate accepting those being the applicable principles and relying on their respective affidavits filed, addressed each of those issues in their respective submissions. 

30.	At the end of submissions, the Learned Magistrate reserved his decision and delivered it on 11th August 2016.

31.	I have perused the decision (a transcript of it is set out on pp 81-84 of the 
AB) by Magistrate Singomat, granting the application by the respondent to set 
aside the orders of 6 June 2016 and am totally in agreement with Mr. Tabichi's 
submission that the learned Magistrate did not consider the application that was 
before him at all. 

32.	Based on the principles discussed in the Supreme Court Judgment 
referred to by Mr. Tabuchi as to the need to consider a material relevant to a case, (in that case, an affidavit), I am of the view that, it is trite law, that a Court in making a decision is obligated in the interests of Justice to firstly hear the application before it, then consider the applicable law and or the principles and the evidence that supports each case, then taking into account each party’s case, apply the law accordingly and decide in whose favour, should it apply its 
discretion. If Magistrate Singomat, had properly considered the application and the evidence led by each party, he would have found against the respondent and refuse the application. 

33.	In this case, there was no doubt what the application was before Magistrate Singomat on 25th July 2016.  A number of affidavits were relied upon by each party and both oral and written submissions were made.  However, as it can be seen from the decision, none of those were considered by the Learned Magistrate.  The failure to do that is clearly an error of law.  

Issue 2

34.	Whether the Learned Magistrate erred in law when he failed to give reasons for arriving at the decision he made.

35.		This issue is related to the first issue, but because it was argued 
separately, I have considered it separately.

36.		Mr. Tabuchi, for the appellant argued that, by deciding in favour of the 
respondent's application, the learned magistrate had clearly rejected the 
appellant's argument opposing the application.  As such he is required by law to 
give reasons why he accepted the respondent's argument and not the appellant's 
argument, but he did not do that.  The failure to do that is an error of law, 
another reason why this appeal must be upheld. 

37.		In support of this argument, Mr. Tabuchi relied on the case of Hunter vs. 
Transport Accident Commission (2005) 43 MVR 130 at [21] where Nettle JA 
(as he then was) with whom Batt and Vincent JJA agreed, held:

“But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without advertising to and assigning reasons for the rejection or exclusion of that material.  Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.
…
Failure to expose the path of reasoning is an error of law.”

38.		The case cited is an overseas case which I find is helpful.  However, I am 
of the view that this issue of failure to give reasons is settled in our jurisdiction 
and one need not go overseas for guidance, as it is now settled in our jurisdiction that, the principles of fairness require that reasons be given by a decision maker.

39.		In Pius Sankin vs. PNG Electoral Commission (supra), the Court held 
that:
	
	"a failure to provide any reason for a decision on a seriously disputed matter may have the effect of a decision being arrived at without any good reasons".

40.		In Ombudsman Commission vs. Peter Yama (2004) SC747, the Supreme 
Court, per Amet CJ as he then was said:

	"A decision maker has a duty to accord natural justice.  As such there is a duty to give reasons.  If no reasons are given, this means there are no good reasons."

41.		In Mission Asiki vs. Manasupe Zurenuoc & the State (2005) SC797, the 
Supreme Court said two things on this issue:

	" 1. 	the failure to give reasons means there was no good reasons &

		2. 	failure to give reasons amounted to an error of law and denial of 	    	natural justice"

42.	In this case, as submitted by Mr. Tabuchi, the application before the 
Magistrate was an application to set aside exparte orders of 6th June 2016.
The principles that apply to such an application is settled in this jurisdiction. 
The application was opposed with evidence presented by the appellant. 
However, when the decision was delivered on 11th August 2016, Magistrate Singomat granted the orders sought by the respondent but gave no reasons why he rejected the appellant's argument and made a decision as he did.

43. 		Based on the principles of fairness, Magistrate Singomat had clearly 
made an error of law.

		Issue 3

44.	Whether the Learned Magistrate erred in law when he failed to give effect to the decision of this Court made on 16 February 2016

45.		Mr. Tabuchi argued that the Magistrate, with respect, erred in fact and 
law when he upheld and granted the Informant’s motion to re-instate 
proceedings which had been properly dismissed.  He argued further that His Worship erred as follows: 

(a)		he refused to be bound by the Order of the National Court of 16 	February 2016 in CR APP 13 of 2015 (Kingston vs. Customs) 	thereby engaging in contemptuous conduct and breaching 	Schedules 2.8 and 2.9 of the Constitution and all the well-	established principles of stare decisis;

(b)		he found that CR APP 13 of 2015 should never have been lodged 	in the first place, when he ought to have found instead that his 	hands were tied and that he was legally bound by the Order of the 	National Court in compliance with schedules 2.8 and 2.9 of the 	Constitution;

(c)		when he stalled “the trial and left it back to the parties to question 	themselves as to whether or not an appeal should be lodged 	against the certain decision of a judge of the National Court”, in 	circumstances where he had no jurisdiction to do so and in any 	event, the appeal period had expired.

46.	Schedule 2.8 and 2.9 of the Constitution are set out in Part 5, and is titled Judicial Precedent and are in the following terms:

Schedule 2.8     -     EFFECT OF PART 5.

(1)		   Nothing in this part affects or is intended to affect, except     
   to the extent specifically set out in this part – 

(a)	  the legal doctrine of judicial precedent (also known as 
  stare decisis); (underline mine) or

(b)	  the principles of judicial comity; or

(c)	  the rules of private international law (also known as 
  conflict of laws); or

(d)	  the legal doctrine known as res judicata, 
or the further development and adoption of those doctrines, principles and rules in accordance with Part 3 of this Schedule (development of an underlying law for Papua New Guinea).

(2)	   Except as provided by or under an Act of the Parliament, 
   this Part does not apply to or in respect to village courts.

And Schedule 2.9   -   SUBBORINATION OF COURTS.

	     (1)	   All decisions of law by the Supreme Court are binding on 		   all other courts, but not on itself.     

     (2)	  Subject to Section Sch.2.10 (conflict of precedents), all 
   decisions of law by the National Court are binding on all   
   other courts (other than the Supreme Court), but not on 
   itself (except insofar as a decision of the National Court 
   constituted by more Judges than one is of greater authority 
   than a decision of the Court constituted by a lesser  number).

(3)	  Subject to this Part, all decisions of law by a court other 	     
  than the Supreme Court or the National Court are binding   
  on all lower courts.     

(4)	  In Subsection (3), ‘lower court’, in relation to a matter   
  before a court, means a court to which proceedings by way 
  of appeal or review (whether by leave or as of right) lie 
  from the first – mentioned court in relations to the matter. 

47.	The principle of stare decisis or doctrine of precedent requires judges to follow the rulings and determinations of judges in higher courts, where a case involves similar facts and issues.

 48.		Complementing schedule 2.8 is schedule 2.9 which provides for the 
subordination of the Courts.  In essence, the lower courts are bound by 
decisions of a higher Court.

 49.		In Fleming vs. Gwale Dau [1983] PNGLR 339, at page 340, the Court 
per Kidu, CJ, as he then was said:

	"Magistrates are bound by the National and Supreme Courts.  They must adhere to any directions given by these courts."

50.		It is abundantly clear that a District Court is an inferior court to the
National Court.   As such a decision made by the National Court is binding on 
the District Court. 

51.	In this case, I agree with Mr. Tabuchi that Magistrate Singomat erred in law and fact when he granted the Respondent's application to set aside his orders of 6 June 2016 and held that the CR App 13 of 2015 should not have been lodged and therefore on that basis upheld the Informant’s motion to re-instate proceedings which had been properly dismissed earlier on.  Magistrate Singomat, acting in the manner he had done so, acted unconstitutionally.

52.	For the foregoing reasons, I would and do uphold this Appeal.

			Powers of this Court as an Appellate Court

53.	As the appeal has been upheld, what orders can this Court make. Apart from asking this Court to allow and uphold his appeal, the appellant also seek the following:

1.	The decision and Order made by the District Court on 11 August 2016 be quashed in its entirety forthwith;

2.	The charges and the entire proceedings against the Appellant remain dismissed, consistent with the Orders of the Court made 
6 June 2016;

3.	Costs of and incidental to these proceedings be paid for by the Respondent on a solicitor-client basis.

	 54.	Section 30 of the District Courts Act effectively provides that the National Court can make orders which the District Court ought to have made in the first place. 

	55.	With that in mind, I find firstly with respect to item 1, the order sought is a consequential order to the appeal being upheld and so I have no hesitation in granting that order.

 56.	As for the order sought in item 2 as set out above, I am mindful that Magistrate Singomat would be in a better position as the primary court than this Court to consider that order being sought. However, given this Court's powers under s. 30 of the District Courts Act and the evidence and the unopposed submission before this Court, I am satisfied that I can make such an order and do so on the following basis:

	(1) The orders of Magistrate Singomat of 6 June 2016 were essentially that, the charges and the entire proceeding (CR 2239 of 2013) against the appellant are dismissed.

	(2)  The application to set aside those orders were granted by Magistrate Singomat on 11 August 2016 but for no good reasons, as found by this Court. Because there was no good reason for setting aside his own orders of 6th June 2016, Magistrate Singomat ought to have refused the respondent's application and affirm his decision of 6th June 2016. But he did not, resulting in this appeal which has now been upheld, and quashing the decision of 11 August 2016.

	(3)  Consequently, it is only proper that Magistrate Singomat's Orders of 6 June 2016 be reinstated.

57.	With respect to costs, the appellant seeks an order for costs on a solicitor-client basis. This can be argued together on a date to be agreed to by parties, with the other application for costs made on 6th February 2016 following the respondent's application to vacate the hearing on that date, which application was granted. 

58.	Orders

	(1) 	Appeal is upheld.
	(2) 	The decision and Order made by the District Court on 11 August 		2016 is to be quashed in its entirety forthwith;
	(3) 	The charges and the entire proceedings against the Appellant 			remain dismissed, consistent with the Orders of the Court made 
			6 June 2016.
(5)	The issue of Costs is adjourned for argument at a later date to be 	agreed to by parties within 7 days from the date of this order. In the event that no agreement is reached, the Court will allocate a date for hearing and parties will be inform.

____________________________________________________________
Young & Williams Lawyers	: Lawyer for the Appellant
Public Prosecutor			: Lawyer for the Respondent