N8917

PAPUA NEW GUINEA
[IN NATIONAL COURT OF JUSTICE]

OS (JR) NO. 28 OF 2017

BETWEEN:
JANE ALUA
Plaintiff

AND:
BETTY JACOBS, Presiding Circuit Magistrate – Mendi District Court
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Ialibu:  Kassman J
2018:  11th April
2021: 9th July

JUDICIAL REVIEW – notice of motion – application for leave for judicial review – applicant sought leave to review decision of presiding magistrate to commit applicant to stand trial at National Court – leave for review granted in May 2017 – criminal matter decided and applicant acquitted while decision on substantive application for review still pending– notice issued to applicant and defendants lawyers to discuss on the utility of this application – no courtesy shown by the applicant to advise court on the outcome of her criminal proceedings -  application for judicial review dismissed

Counsel:

Eunice Kapu, for the Plaintiff
Jason Rotep, for the First and Second Defendants

DECISION

9th July, 2021

1.	KASSMAN J: By an originating summons filed in Mendi on 7 February 2017, the Plaintiff, Jane Alua (“Alua”) sought leave for judicial review of a ruling of the Presiding Circuit Magistrate Betty Jacobs in Mendi District Court on 8 November 2016, in committing Alua to stand trial in the National Court.  Leave for judicial review was granted on 23 May 2017.  

2.	The substantive review was heard on 11 April 2018 and reserved.  Before the court were the Originating Summons filed 7 February 2017 [document number 1], Affidavit of Jane Alua filed 7 February 2017 [document number 4], Statement filed 7 February 2017 [document number 5], Amended Notice of Motion filed 7 June 2017 [document number 17], Affidavit of Ofi Asilala filed 15 June 2017 [document number 18], Affidavit of Misek Rombo filed 16 June 2017 [document number 19], Affidavit of Reah Jack filed 16 June 2017 [document number 20], Affidavit of Satia Sangagkeo filed 16 June 2017 [document number 21], Affidavit of Jane Alua filed 16 June 2017 [document number 22], Affidavit of Dr Aisen Waike filed 16 June 2017 [document number 23], Affidavit of Dr Aisen filed 16 June 2017 [document number 24] and Extract of Submission filed 19 March 2018 [document number 27].  The Defendants relied on the written submission handed up in court on 11 April 2018 [document number 29].

3.	On 4 July 2021, I returned to the Southern Highlands Province and in a meeting with the Civil Officer Mr Henry Minape with a view to having the matter listed for decision, I was advised that the criminal proceeding in CR 1917/16, State v Jane Alua arising from the committal of Alua had been completed following the acquittal of Alua by His Honour Justice Kaumi on 11 June 2020.  The State offered no evidence and the accused Alua was acquitted and discharged from the charge of Murder under Section 300 of the Criminal Code. 

4.	Upon my request, Mr Minape signed a letter dated 6 July 2021 and delivered same to the Office of the Public Solicitor who are on record as acting for Alua in this matter.  That same letter was also delivered to the Office of the Solicitor General in Mt Hagen who are on record as acting for the State, informing the parties that this matter would be listed on Friday 9 July 2021 seeking the parties’ views as to the utility of this proceeding and the decision of the court.

5.	On 9 July 2021, the proceeding was mentioned, and the court noted the non-representation of all parties including Alua.

6.	I am of the view that there is no utility in this proceeding.  Most importantly, from the date Alua submitting herself to the criminal jurisdiction of the National Court at her trial, Alua abandoned her challenge to the committal court decision that committed her to stand trial in the National Court.  In my view, that is a significant act on her part in the context of these judicial review proceedings.  She subjected herself to the criminal court proceedings of the National Court and rendered no utility to these proceedings. 

7.	Further, Alua did not come back to court as a matter of professional courtesy to inform the court there was no need for this proceeding and there was no need for the court to expend judicial time in working on and delivering the decision of the court. 

8.	For these reasons, I will dismiss the proceeding.

Natural and man-made disasters – Southern Highlands Province, 2017 and 2018 

9.	The following circumstances have contributed to the delay in the delivery of this decision.  At the time of the hearing of the substantive review, the country was engaged in the National General Elections with nominations, voting and counting conducted from about May to December 2017 and for some seats, in the Southern Highlands Province, declarations were made in 2018.  In that period, there were no sittings of this court in the Southern Highlands Province on account of constant disruptions to law and order and the safety of people and their free and orderly movement within the province was constantly under threat.  Then on 26 February 2018, this province experienced major loss of life, personal injuries to many people and loss and damage to property and infrastructure including roads and bridges following a major earthquake reported to have been 7.5 on the Richter scale with the epicenter located within this province.  The building housing my chamber, courtroom and other critical functions of the National Court was severely affected and was declared structurally unsafe and unfit for human occupation.  A further three months of disruption was then experienced during which renovations were effected to the adjoining building from which the library was converted and used as my chamber and office for staff of the court reporting service.  The court server was relocated to the registry and courtroom 2 was renovated and made fit for use.  This court then resumed sittings in courtroom 2 in May and June until it was completely destroyed by fire and looting following delivery of the decision of the National Court in Waigani on 14 June 2018 in the election petition between Joseph Kobol, a candidate who contested the Southern Highlands Regional seat retained by Governor Honourable William Powi, MP.  In that event, other major State and provincial offices were destroyed by rioters who invaded the Mendi airport terminal and tarmac in broad daylight and set fire to a dash 8 aircraft operated by the national airline Air Niugini.  Fortunately, there was no reported loss of life to passengers and crew although they would have been severely traumatized in this event which was the first of its kind in this country.  In the same rampage in Mendi town, rioters looted and burnt completely a private residence and buildings occupied by the District Court and the provincial department of primary industries.  These buildings remain to be reconstructed.  The National Court and District Court have held sittings on an ad-hoc basis in the District Court in Ialibu in November and December 2018 and in February, May and June 2019.  On the directions of the Chief Justice, I left the Southern Highlands Province and took up duties as Senior Resident Judge in Kokopo, East New Britain Province in 2019.  In the year 2020, my term expired in early February 2020.  This was the period when the covid19 pandemic was at its height throughout the world and had set foot in PNG.  I remained in Australia until September when I returned and was sworn in to serve my current term as Judge of the National Court.  I have continued to be resident in Kokopo.  With the approval of the Chief Justice, I returned to Ialibu to deliver my decision in this matter among other civil matters.  

10.	The orders of the court are:

1.	This proceeding is dismissed.  

2.	The Plaintiff shall pay the Defendants’ costs of the proceedings, to be assessed on a party and party basis, to be taxed, if not agreed.

Judgement accordingly:
________________________________________________________________
Office of Public Solicitor: Lawyer for the Plaintiff	
Office of Solicitor General: Lawyer for the Defendants