|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1029 OF 2019
THE STATE
V
ROBERT AGEN
(No 8)
Waigani: Ganaii, AJ.
2023: 12th May
CRIMINAL LAW – Practice and Procedure – Application to reserve points of law pursuant to section 21 of the Supreme Court Act
Held:
enlivened to reserve points of law are firstly, when the counsel for the accused makes an application to the National Court before verdict and secondly, when the National Court reserves points of law either before or after verdict on its own motion.
law to the Supreme Court before verdict, the applicant had forgone his right to do so. This present motion is therefore, process-barred, post-verdict.
requirements of s 21 (1) of the Supreme Court Act, it amounts to an abuse of the Court’s process and is therefore refused.
by an Act of Parliament, and therefore must be complied with. Failure to do so renders the application an abuse of the Court’s process.
this instance without compliance with s 21 of the Supreme Court Act, unless the Court was reserving points of law on its own motion.
Cases Cited:
Papua New Guinean Cases
Poneiap Jonah, (2022) SC2248
Reservation Pursuant to Section 21 of the Supreme Court Act, The State v James
State v Robert Agen (No 1) [2021] PGNC 620; N9652
State v Robert Agen (No 2) (2022) N10276
State v Robert Agen (No 5) (2022) N10292
State v Robert Agen (No 7) (2022) N10294
State v Tanedo [1975] PNGLR 395
Wonom v The State [1975] PNGLR 311
Counsel
Ms M Tamate/Suwae, for the State
Mr D. Dotaona, for the Offender
RULING ON APPLICATION TO RESERVE QUESTIONS ON POINTS OF LAW
12th May, 2023
1. GANAII, AJ: On the 19th of April 2023, Defence filed a Notice of Motion pursuant to s 21 ss (1) and (2) of the Supreme Court Act[1], seeking that the trial Court reserve points of law to the Supreme Court for its consideration. The applicant through counsel relied on a draft reservation filed on the 19th of April 2023, and an affidavit of himself.
The relevant facts
2. The applicant was convicted on the 14th of December 2022, on two counts of Assault causing bodily harm contrary to s 340 (1) of the Criminal Code Act (CCA) and one count of Rape contrary to s 347 (1) of the CCA. Counts 1 and 2 relates to offences of Assault and Rape at Ower’s Corner, Sogeri, NCD. Count 3 relates to the offence of Assault at Waigani, NCD.
3. In relation to Counts 1 and 2, the relevant facts are that the offender had been unhappy with the victim for being with someone else the night before the offences were committed. He demanded to meet with her the next day. When they met outside at the car park space of her office, he insisted that they talk in private. Reluctantly, she got into his vehicle. They drove away. He then picked up two armed men. Believed to be his relatives. They sat on either side of her and she sat in the middle. The offender demanded for the victim’s phone and password which she gave to him. He read her messages in the phone and confirmed for himself that she had met with someone else.
4. Whilst driving to Ower’s Corner, Sogeri, the offender assaulted the victim by throwing punches at her. At Ower’s Corner, the two men took her to the edge of a cliff and threatened to kill her. They told her would they kill her, throw her body down the cliff and no one will ever know. The offender then told her that because she has been good to his family, they will spare her life. The offender said it will also be on the condition that she remain one of his many wives.
5. The offender then told the two men to leave. As they went out of sight, he demanded to have sex with the victim. He demanded that she would do as he said and she was his property. He forced the victim into a bent over position, and sexually penetrated her from behind without her consent. After sexually penetrating the victim, the offender sat the victim down and asked her if she understood the wrong she had done to him and his family. He then used his leather belt and assaulted the victim with whipping her several times on her back.
6. In relation to Count 3, on another occasion, after a night out at Red Rock bar, then later at the residence of a friend of theirs at Waigani, the offender assaulted the victim. He did so by throwing her onto the floor, dragging her, continuously punched with his hands and continuously kicking her with his boots all over her face and body. She lost consciousness. She bled profusely form the face and suffered pain and a broken jaw.
Background
7. The offender had, through three different counsels and on four separate
occasions throughout the course of this trial in the National Court, utilised processes available to him to argue several applications,
challenging the processes involved in his arrest and charge, the processing of his case through the committal court and the presentation
of the indictment in the National Court.
8. The applicant’s arguments were based on alleged breaches of his Constitutional rights as an accused person and alleged abuse of powers by the Police, the Public Prosecutor and the Committal Court.
8. All four applications were heard at different stages, namely, prior to the presentation of the indictment, when the indictment was presented, during submissions on no case, and after verdict was pronounced, ultimately seeking dismissal and discharge. All the applications were heard, considered and refused. Reasons for the decisions were given.
10. A fifth similar application is now being moved by Mr Dotaona in submissions on sentence, which is now pending the court’s
ruling. I will respond to this in a ruling on sentence which I am soon to deliver.
11. Of the four previous rulings, none of them have been challenged and remain intact. These rulings are: State v Robert Agen (No 1) [2021] PGNC 620; N9652, ruling on an application for dismissal of proceedings before presentation of an indictment, under s 155 (4) of the Constitution; State v Robert Agen (No 2) 2022: 13th , 25th, 26th, April, a ruling on an application seeking to quash the indictment under section 558 of the Criminal Code Act; State v Robert Agen (No 5) 2022: 14th July; a ruling on application on a no-case to answer submissions and State v Robert Agen (No 7) 2022: 14th December, a ruling on verdict, addressing similar issues raised in defence submissions on verdict.
Motion to reserve points of law
12. In the present motion, these are the questions from the draft reservations that the applicant is seeking the court to grant and transmit to the Supreme Court:
the Constitution (Protection of the Law) when he was never charged by the Police for any criminal offence before appearing in the committal court and subsequently, the National Court?
the jurisdiction to commit the accused to stand trial at the National Court?
jurisdiction to try and convict the offender/accused?
s 21 (5) (b) of the Supreme Court Act to quash the verdict and acquit the offender?
dishonesty who stands dismissed from the Police Force pursuant to s 33 (2) of the Police Act have legal standing to be a police investigator in a criminal case?
powers to arrest and charge the offender? If not, is the Police hand up brief void and of no legal effect from the beginning?
prosecute and or withdraw charges in respect of offences), if the offender has not been charged by the Police, did the Public Prosecutor have powers to indict the convicted person?
Constitution been denied by both the Committal Court and the National Court when committing and convicting the offender respectively, if the answers (2) and (3) are in the affirmative.
13. From the above, the points of law referred to in paragraphs (1), (2), (3), (5), (6), (7) and first part of paragraph (8) relate to the powers and functions of the Police, the Public Prosecutor and the District Court and these have been addressed by the trial court in four separate rulings as mentioned above in paragraph 11.
14. From the above, points of law referred to above in paragraph 4 and second part of paragraph 8 relate to the court’s decision on conviction and are matters for appeal.
Submissions
13. The present application is moved pursuant to s 21 (1) and (2) of the Supreme Court Act, where counsel for the applicant argued that this Court can postpone judgement until questions of law have been considered and decided, and the offender’s bail can be extended.
15. Alternatively, the applicant argues that pursuant to s 155 (4) of the Constitution, that these criminal proceedings in the National Court be ‘stayed’ until further or other orders of the Supreme Court are made in the reservation proceedings.
16. Mr Dotaona submitted that firstly, pursuant to s 21 (2) (a) and (b) of the Supreme Court Act, the Court can exercise discretion to postpone the judgment until the questions have been considered and decided and extend the offender’s bail. Secondly, in the alternative, pursuant to s 155 (4) of the Constitution, these criminal proceedings in the National Court can be stayed until further or other orders of the SC in the Reservation proceedings.
17. Ms Suwae for the State submitted that s 21 (1) of the Supreme Court Act gives counsel for the accused the opportunity to move such an application before verdict is pronounced. Where that opportunity has not been utilised, the applicant cannot make such an application post-verdict, as the application will have become process -barred.
18. Any reservations on points of law, after verdict can be made only by the National Court. This present motion is therefore not one where points of law are reserved by the court, on its own initiative, using the powers conferred by it under s 155 (4) of the Constitution and s 21 of the SC Act.
19. In citing the case of Reservation Pursuant to Section 21 of the Supreme Court Act, The State v James Poneiap Jonah, (2022) SC2248, and in distinguishing that case to the present case, Ms Suwae submitted that the National Court in the Jonah case used the powers conferred on it by s 21 of the Supreme Court Act to make the reservation and that was proper. In the present matter, the National Court did not make these reservations on the points of law, and therefore, it cannot be proper.
20. As such, the motion is an abuse of the Court’s process and the application should be dismissed.
Issue
21. The issue is whether, at this stage it is proper for the trial Court to reserve the applicant’s points of law to the Supreme
Court?
Law
22. Section 21 of the Supreme Court Act is in this term:
“21. RESERVATION OF POINTS OF LAW
(1) When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.
(2) If the accused person is convicted, and a question of law has been reserved under Subsection (1) before judgement, the National Court may–
(a) pronounce judgement on the conviction and respite execution of the judgement; or
(b) postpone the judgement until the question has been considered and decided,
and may–
(c) commit the person convicted to prison; or
(d) admit him to bail on recognizance, with or without sureties, and in such sum as the Court thinks proper, conditioned to appear
at such time and place as the Judge directs, and to render himself in execution, or to receive judgement, as the case may be.
(3) The National Court shall state, in the case signed by the Judge or Judges exercising the jurisdiction of the Court, the question of law reserved under Subsection (1), with the special circumstances on which it arose, and the case shall be transmitted to the Supreme Court.
(4) Any question reserved under Subsection (1) shall be heard and determined by the Supreme Court.
(5) Any question reserved under Subsection (1) shall be heard and determined after argument by and on behalf of the prosecution, and of the accused or convicted person or persons, if they desire that the question shall be argued, and the Supreme Court may–
(a) affirm the judgement given at the trial; or
(b) set aside the verdict and judgement and order a verdict of not guilty or other appropriate verdict to be entered; or
(c) arrest the judgement; or
(d) amend the judgement; or
(e) order a new trial; or
(f) make such other order as justice requires,
or the Court may send the case back to be amended or restated”.
Consideration
23. The two specific ways in which s 21 of the Supreme Court Act can be enlivened are firstly, when the counsel for the accused makes an application to the National Court to reserve points of law before verdict and secondly, when the National Court reserves points of law before and after verdict without such application. The reservation of points of law by the Court without any application involves the use of the Court’s inherent and discretionary powers, upon its own initiative.
24. The first of the two ways involves a motion to be moved before the trial court by the accused’s counsel. This will then require a ruling by the trial court as to whether or not to reserve the points of law.
25. Where, by the exercise of the Court’s inherent and discretionary powers, the court is reserving points of law, the trial judge is required to comply with Order 8 of the Supreme Court Rules 2012 which governs reservations made under s 21 of the Supreme Court Act and to plead the jurisdictional basis for the reservation under s 21. (See Jonah case, supra). In the present, case, the Court is not reserving points of law.
26. Where these are the only two ways in which s 21 applications are enlivened, what appears wrong with the instant application moved by counsel for the applicant is that it is made post-verdict by the applicant through counsel and that is not in compliance with s 21 (1) of the Supreme Court Act.
27. Due to failure by the applicant to comply with the specific requirement of s 21 (1) of the Supreme Court Act renders the application improper and an abuse of the court’s process.
28. Where the applicant had chosen not to make such an application for reservation on points of law before verdict, the offender had forgone his right to do so at that stage of the criminal proceedings. Doing so now amounts to an abuse of the court’s process.
29. The applicant through counsel argued further, in the alternative that despite s 21 of the Supreme Court Act, the Court can make reservations on points of law by the exercise of the Court’s discretion pursuant to s155 (4) of the Constitution.
30. I respond to this in this way. The present reservation on pints of law is not reserved by the trial court. The motion seeking to reserve the questions of law was made the applicant through counsel. As such, the requirement is that such an application should have been made before verdict.
31. The requirements of s 21 are statutorily based, by an Act of Parliament, and therefore must be complied with. Failure to do so renders the application an abuse of the Court’s process and therefore, in my respectful view, the Court cannot use its powers under s 155 (4) of the Constitution in this instance unless the Court was reserving the points of law on its own motion, in compliance with s 21 of the Supreme Court Act.
32. I need not discuss ss 2 of s 21 of the Supreme Court Act because it only becomes operational if the Court is reserving points of law.
Obiter
33. In obiter, I say this. If my reading, understanding and application of s 21 (1) of the Supreme Court Act, is wrong, so that I should consider the application and make a reservation on questions of law in the instant matter, the issue of whether the trial court should proceed to pronouncing sentence will and must arise. Hence, the application of s 21 (2) of the Supreme Court Act will come into play.
34. For completeness’ sake, I will go on to say this. The law in s 21 (2) is clear. The trial court may pronounce judgement on the conviction and respite or postpone execution of the judgement; or postpone the judgement until the question has been considered and decided. Further, the trial court may commit the person convicted to prison; or admit him to bail on recognizance, with or without sureties, and in such sum as the Court thinks proper, conditioned to appear at such time and place as the Judge directs, and to render himself in execution, or to receive judgement, as the case may be.This means that it becomes a discretionary matter for the Court, based on the circumstances of each case, to decide whether to continue and complete the trial.
35. On this issue, the Courts will be guided by the case of State v Tanedo [1975] PNGLR 395, per judgement of Prentice DCJ. In this case, where a question of law has been referred to the Supreme Court, the Court said it was
not necessary to adjourn the trial pending a decision on the reference, considering that if such a practice were established, it
would of course, be highly inconvenient and could in reality, prevent trials from ever being concluded.
36. In the case of Wonom v The State [1975] PGSC 43; [1975] PNGLR 311 (6 October 1975), for similar reasons, despite a challenge to the indictment, the trial court proceeded to sentence after conviction
and before referring the case on reservations on points of law to the Supreme Court.
37. Hence, where points of law are reserved, a main consideration for the trial court is that the pending trial must be concluded.
Conclusion
38. In light of the above reasonings, I conclude by saying that this instant application, by the applicant’s counsel, post-conviction
to reserve points of law is process barred, amounts to an abuse and is hereby refused.
Orders
39. These are the orders of the Court:
Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Dotaona Lawyers: Lawyers for the Offender
[1] Chapter No 37 of 1975
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/205.html