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Rumints v Minja [2024] PGNC 66; N10715 (12 April 2024)

N10715

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 101 OF 2019

BETWEEN:
KERUA RUMINTS
Appellant

AND:
FIRST CONSTABLE DOUGLAS MINJA
Respondent

Madang: Narokobi J
2023: 20th June
2024: 12th April

APPEAL FROM DISTRICT COURT – Appeal Against Conviction – National Court Power to Consider an Appeal from the District Court under the District Court Act – Grounds of Appeal – Breach of Natural Justice

Appellant appeals his conviction by the Ramu District Court on 23 September 2019. The appellant was charged under s 27(1)(a) of the Firearms Act 1978 for carrying a pistol without a licence and s 65(a) of the same Act for being in possession of 8x9mm bullets without licence. The appellant pleaded guilty to the charge. He was ordered to pay a fine in respect of both charges, and an additional order was made for the pistol and bullets to be forfeited. The appeal grounds were breach of natural justice, the sentence was harsh and oppressive, and it was unreasonable.

Held:

(1) Section 37(4)(c) of the Constitution affords a person charged with an offence the right to be given adequate time and facilities for the preparation of his defence. The fact that the court was conducted before the appellant’s witness was made available in his defence, suggest that no opportunity was provided to the appellant to properly defend himself. His right under s37(4)(c) of the Constitution was violated. The conviction was therefore not safe and should be set aside pursuant to s 230(1)(c) of the District Court Act 1963 and the appeal upheld pursuant to s 230(2) of the same Act as there was a substantial miscarriage of justice.

(2) Giving paramount consideration to the dispensation of justice under s 158 of the Constitution, it is not in the interest of justice to order a fresh trial again before another magistrate as the matter was commenced in 2019, and there is not much to be gained from such a course. Apart from the costs involved, the evidence may not be readily available for both the state and the appellant to enable a fair trial. The best course of action in the interests of justice is to quash the conviction and order that the bail money be refunded.

Cases Cited:

Wanpele v Sepa (1981) N292

Statutes Cited:
Constitution
District Court Act 1963
Firearm Act 1978

Counsel:

Mr B Lakakit, for the Appellant
No appearance for the Respondent

DECISION

12th April 2024

1. NAROKOBI J: This is an appeal against a decision of the Ramu District Court on 23 September 2019. The appellant was charged under s 27(1)(a) of the Firearms Act 1978 for carrying a pistol without a licence and s 65(a) of the same Act for being in possession of 8x9mm bullets without licence. The appellant pleaded guilty to the charge. He was ordered to pay a fine in respect of both charges, and an additional order was made for the pistol and bullets to be forfeited.
   
2. The uncontested facts are that the appellant was charged on 20 September 2019, and his case was set for trial on 23 September 2019 at 1.00pm. But his case was called at about 11am on 23 September 2019, whilst his witness was still making his way to court. At arraignment he pleaded guilty. He was ordered to pay a fine for each charge and a further order was made under s 72(2) of the Firearm Act for the pistol to be forfeited to the state.
   
3. It is also not in dispute that the Appellant is an employee of Kungus Limited trading as Hawkeye Security Professionals as an arms man overseeing the Madang Branch and based in Madang and his prime responsibility is to provide armed escort to individuals and corporate companies in Madang and Lae.
   
4. The Security company, Kungus Limited trading as Hawkeye Security Professionals is a registered firearm licensed holder and owns firearm including the pistol that is the subject of this court proceedings. Subsequent affidavits filed showed that they had license over the pistol in contention.
   
5. The appellant says that as an employee of Kungus Limited has permit to possess, carry and use specific firearms for the purposes of his engagement. Digicel (PNG) Limited is one of the major corporate clients of Kungus Limited. He was escorting a vehicle of one of their clients as part of his work, when he was apprehended and charged.
   
6. The appellant raises three grounds of appeal in his notice of appeal. I set out each ground and summarise each ground of appeal:
   
   • Denial of natural justice – the matter was heard without giving opportunity to the appellant to properly present his case;
   • Harsh and oppressive – the decision to forfeit the pistol and bullets to the state in addition to being fined was harsh and oppressive;
   • Ultra vires and unreasonable – the decision of the court to forfeit the court exhibit, the Amsco pistol bearing the serial number 911972 including its bullets to the state is unreasonable, ultra vires and contrary to s 72(2) of the Firearms Act 1978.
7. Section 230 of the District Court Act 1963 sets out the jurisdiction of the National Court when it hears appeals from the District Court. I set it out hereunder, and apply it in my consideration of the appeal:
   

“ 230. Power of National Court on Appeal.

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice”.

8. It is the appellant’s contention that s 72(2) of the Firearm Act only applies to unlicensed firearm. The pistol was licensed, and therefore he should have only been fined. Had he been allowed to produced evidence at trial he would have tendered the licence of the pistol into evidence showing the name of his employer as the licensee. He would therefore have been fined only.
   
9. The appellant also says that on a proper interpretation of s 72(2) of the Firearm Act relying on the case of Wanpele v Sepa (1981) N292, upon a finding of guilt under s 27 of the Firearm Act, the court can either fine the prisoner or forfeit the firearm. It cannot do both.
   
10. I will deal with the ground one of the appeal first. The contention is for breach of natural justice. The facts supporting this ground is not disputed. The case was dealt with before the appellant could have his witness appear before the court. He was charged on 20 September 2019. He says that his case was set for 1.00pm on 23 September 2019, but was called at 11.00am or thereabouts on the said date, while his witness was still making his way to the court on the understanding that the case would commence at 1.00pm. For this reason, he says that his right to natural justice under s 59 of the Constitution was breached. I agree with the appellant because s 37(4)(c) of the Constitution affords a person charged with an offence the right to be given adequate time and facilities for the preparation of his defence. The fact that the court was conducted before his witness was made available in his defence, suggest to me that no opportunity was provided to the appellant to properly defend himself. His right under s 37(4)(c) of the Constitution was violated. In my view this means that the conviction was not safe and should be set aside. The first appeal ground is therefore upheld as there was a substantial miscarriage of justice pursuant to s 230(2) of the District Court Act.
    
11. Given my finding on the first ground of the appeal, it is not necessary to consider the other grounds of appeal.
    
12. Giving paramount consideration to the dispensation of justice under s 158 of the Constitution, it is not in the interest of justice to order a fresh trial again as the matter was commenced in 2019, and there is not much to be gained for such a course. Apart from the costs involved, the evidence may not be readily available for both the state and the appellant to enable a fair trial. The best course to take is to quash the conviction under s 230(1)(c) of the District Court Act and order that the bail money be refunded.
    
13. The appellant also seeks costs and interest on the costs. This is a criminal matter, and in my view, not appropriate to order costs against the respondent. I will therefore make no order for costs against the respondent.
    
14. The formal orders of the court having said all I have discussed are therefore as follows:
    
    1. The appeal is upheld pursuant to s 230(2) of the District Court Act 1963 as there was substantial miscarriage of justice.
    2. Pursuant to s 230(1)(c) of the District Court Act, the decision of the District Court of 23 September 2019 is quashed.
    3. The firearm, Amsco Pistol with the serial number 911972 with its bullets, 8x9mm be returned to Hawkeye Security Services forthwith.
    4. The bail money of K2,000 be refunded to the appellant.
    5. No orders as to costs.
    6. Time is abridged.

Judgement and orders accordingly.

Lakakit and Associate Lawyers: Lawyers for the Appellant