SC855

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 34 0F 2005

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY
HERMAN JOSEPH LEAHY

Waigani: Kapi CJ, Cannings J, David J
2005: 1 December
2006: 15 December

APPEALS AND REVIEWS – Decision of National Court to refuse objection to, and accept, an indictment presented by the Public Prosecutor – Whether appeal or review appropriate –Review under Section 155(2)(b) Constitution – Criteria to be satisfied.

CRIMINAL LAW – Procedure –Presentation of indictment under Criminal Code, Section 526 – Refusal by court of summary jurisdiction to commit a person for trial – Whether refusal constitutes dismissal or acquittal.

CONSTITUTIONAL LAW– Whether Criminal Code, Section 526, inconsistent with Constitution, Section 155(6) – Constitution, Section 177 – Independence of Public Prosecutor – Freedom from direction or control.

The applicant was charged with conspiracy to defraud and misappropriation. He faced committal proceedings in the District Court, which concluded that there was insufficient evidence to support the charges and refused to commit him for trial. The Public Prosecutor then presented an ‘ex officio’ indictment in the National Court. The applicant raised an objection to the indictment and the National Court refused the objection and received the indictment. The applicant applied for leave from the Supreme Court to review the decision of the National Court. On the presumption that leave was granted, the applicant also argued the substantive case for review.

Held:

(1)	The decision of the National Court to dismiss an objection to and accept an indictment is reviewable by the Supreme Court under Section 155(2)(b) of the Constitution, there being no right of appeal and no other way an accused person may bring the matter to the Supreme Court; provided that the accused can show:

(a)	there is an important point of law to be determined; and
(b)	it is not without merit. Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433 applied.

(2)	The applicant satisfied both criteria and was granted leave for review.

(3)	Before proceeding with a review under Section 155(2)(b) of the Constitution there are three matters to be satisfied in relation to each argument advanced by the applicant:
(a)	Is it raised in one or more grounds of review?
(b)	Was it raised in the National Court?
(c)	Is it a proper review point?

If the answer is ‘yes’ to all questions, the Court is obliged to determine the issue raised by the argument. If the answer to any question is ‘no’, the Court will consider whether it is appropriate to address the argument or point of law being raised. 

(4)	The applicant advanced five substantive arguments; two of which were neither raised in the grounds of review nor in the National Court. The Court therefore determined only three of the arguments.

(5)	Section 526 of the Criminal Code allows the Public Prosecutor to present an indictment to the National Court notwithstanding the refusal by the District Court to commit a person for trial. Section 526 is not inconsistent with Section 155(6) of the Constitution and represents a lawful exercise of legislative power by the National Parliament.

(6)	The Public Prosecutor is not obliged to exhaust the State’s rights of appeal or review of a decision of the District Court not to commit a person for trial, prior to presenting an indictment under Section 526 of the Criminal Code.

(7)	The District Court’s decision not to commit a person for trial does not amount to a dismissal of the information containing the charge against the person. Committal proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal.

(8)	The Public Prosecutor is an independent constitutional office-holder, a prime function of whom is to control the exercise and performance of the prosecution function of the State. Section 526 of the Criminal Code is an important check and balance on the exercise of powers of the District Court in committal proceedings and facilitates the Public Prosecutor’s control of the prosecution function.

(9)	In the result, none of the applicant’s arguments succeeded and none of the grounds of review were upheld. There was no basis for making any of the orders sought by the applicant. The application for review was dismissed and the decision of the National Court affirmed.

Cases cited

Papua New Guinea Cases
R Toigen Tiolo and Others [1969-70] PNGLR 285
R v Topulumar and Others [1971-72] PNGLR 320
The State v Tanedo [1975] PNGLR 395
SCR No 1 of 1976 (P); Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537
Ex Constitutional Reference No 1 of 1978 [1978] PNGLR 345
Ex parte Smedley [1978] PNGLR 156
Van Der Kreek v Van Der Kreek [1979] PNGLR 185
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Smedley v The State [1980] PNGLR 379
Acting Public Prosecutor v Uname Aumane and Others [1980] PNGLR 510
Arthur Gilbert Smedley v The State [1980] PNGLR 379
Minister for Lands v William Robert Frame [1980] PNGLR 433
Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265
Avia Aihi v The State [1981] PNGLR 81
Keko Aparo and Others v The State (1983) SC249
Malipu Balakau v Paul Torato [1983] PNGLR 242
Danny Sunu v The State [1984] PNGLR 305
Robert Kaki Yabara v The State [1984] PNGLR 378
Ex parte Rush [1984] PNGLR 124
Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433
Wong, William Baptiste and David F Tau [1987] PNGLR 227
The State v Colbert [1988-89] PNGLR 138
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Enforcement of Rights Pursuant Constitution S57; Application by Karingu [1988-89] PNGLR 276
SCR No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337
Applications of Kasap and Yama [1988-89] PNGLR 197
David Toll v The State (1989) SC378
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479
SCR No 2 of 1990; Re interpretation and application of Constitution s37(4)(a), and Sections 327 and 333 of the Income Tax Act [1991] PNGLR 211
SCR No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239
The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1
The State v Esorom Burege (No 1) [1992] PNGLR 481
Pius Mark v Korali Iki [1995] PNGLR 116
Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26
Charles Ombusu v The State [1996] PNGLR 335
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572
Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437
Moi Avei and Electoral Commission v Charles Maino (1998) SC584
Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special
The State v Michael Nama and Others (1999) N1884
Robert Lak v Dessy Magaru and The State (1999) N1950
Jim Kas v The State (1999) SC772
Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956
Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686
Reference Pursuant to Constitution Section 19 by Morobe Provincial Government for and on behalf of The Morobe Provincial Executive Council (2002) SC693
The State v John Koma (2002) N2176
Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285
Robert Kopaol v Philemon Embel (2003) SC727
The State v Jimmy Mostata Maladina (2004) N2530
Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The State (2004) N2562
Jimmy Mostata Maladina v Principal District Court Magistrate Posain Poloh and The State (2004) N2568
Benny Diau v Mathew Gubag (2004) SC775
The State v Iori Veraga (2005) N2849
Tom Longman Yaul v The State (2005) SC803
The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812 
James Marabe v Tom Tomiape and Electoral Commission (2006) SC827
Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L 

Overseas Cases:
R v McConnon [1955] Tas SR 1
R v Dawson [1960] All ER 558
R v Webb (1960) QdR 443
Ex parte Cousens: Re Blackett (1964) 47 SR (NSW) 145
R v Fazzari unreported decision of the New South Wales Court of Appeal, 08.12.77
Barton v R (1980) 32 ALR 440
R v Torrtomano [1981] VR 31
Barton v The Queen (1990) 147 CLR 75

APPLICATIONS

This was an application for leave to seek review of a decision of the National Court refusing an objection to an indictment; and an application for substantive review of that decision.

Counsel:
G. J .Sheppard and N. Eliakim, for the applicant
C. Manek, for the State

15 December, 2006

1. BY THE COURT:	This case concerns the Public Prosecutor’s power to present an indictment to the National Court after the District Court has decided not to commit a person for trial. 

2. We have heard two applications concerning such an indictment:

•	an application for leave to seek review of a decision by Mogish J in the National Court to accept the indictment; and on the presumption that leave is granted,

•	the application for substantive review of the decision.

TERMINOLOGY

3. An indictment is the document by which an accused person is charged before the National Court with a criminal offence. Presentation of an indictment marks the beginning of a criminal trial. 

4. The Criminal Code provides for two sorts of indictments. Section 525 is used when the District Court commits an accused person for trial. Section 526 is used if the District Court has refused to commit but the Public Prosecutor decides nonetheless to present an indictment. The second sort is commonly known as an ‘ex officio indictment’. However, the Supreme Court has said previously that that is a poor choice of words. The power to present such an indictment derives from statute and not from any inherent powers of the Public Prosecutor (Arthur Gilbert Smedley v The State [1980] PNGLR 379, Kearney DCJ, Wilson J, Pratt J). We agree and will avoid using the term ‘ex officio indictment’. 

BACKGROUND

5. The applicant is Herman Joseph Leahy. The National Provident Fund (NPF) employed him in various capacities from 1993 to 1999. In November 2002 a Commission of Inquiry into the NPF made findings and recommendations adverse to him. On 25 July 2003 the police charged him with conspiracy to defraud the NPF contrary to Section 407(1)(b) of the Criminal Code and misappropriation contrary to Section 383A of the Criminal Code. 

6. Soon afterwards he faced committal proceedings in the District Court at Waigani, which continued for more than a year. The presiding magistrate was Mr Pinsson Pindipia. On 21 September 2004, Mr Pindipia decided that:

•	there was insufficient evidence against the applicant;

•	he should not be committed to stand trial in the National Court; and

•	he was discharged under Section 100(2) of the District Courts Act Chapter No 40.

7. Mr Pindipia issued a certificate of dismissal, which stated:

CERTIFICATE OF DISMISSAL

This is to certify that, on 21 September 2004, an information preferred by Michael Aluy of the Royal Papua New Guinea Constabulary, against Herman Joseph Leahy of Kou Kou village Baruni in the National Capital District, that being:

(i)	concerned together with one Jimmy Maladina dishonestly applied to your use or to the use of another person the sum of Seventy Thousand Kina (K70,000.00) the property of Kumagai Gumi Company Limited; and

(ii)	that you conspired together with Henry Fabila, Jimmy Maladina, Shuichi Taniguchi, Kazu Koboyashi, Roger Dalton and other persons to defraud National Provident Fund (NPF) of Papua New Guinea by fraudulently requesting further acceleration of the project by two million, six hundred and fifty thousand kina (K2,650,000.00);

was this day considered by the Committal Court in Waigani and was dismissed.

Dated the 21st day of September 2004.

8. In April 2005 the Public Prosecutor – the respondent in the present case – wrote to the applicant’s lawyers, saying that he intended to present a Section 526 indictment against the applicant under Section 526 of the Criminal Code. He did so on 16 May 2005 in the National Court at Waigani before Mogish J.

9. The indictment stated:

Count One:	HERMAN JOSEPH LEAHY of KOUKOU, PORT MORESBY, National Capital District stands charged that he between the 1st day of November 1998 and the 10th day of October 2000 at Port Moresby, National Capital District, Papua New Guinea, did conspire with Jimmy Mostata Maladina, Henry Fabila, Shuichi Taniguchi, Kazu Koboyashi and other persons to defraud the National Provident Fund of Papua New Guinea of the sum of two million five hundred thousand kina (K2,500,000.00) by fraudulently increasing the construction costs of the National Provident Fund of Papua New Guinea’s Tower at Allotment 16, Section 05, Douglas Street, Granville, Port Moresby, National Capital District.

Count Two:	AND ALSO THAT the said HERMAN JOSEPH LEAHY further stands charged that he, between the 26th day of February 1999 and the 30th day of July 1999 at Port Moresby, National Capital District, Papua New Guinea, dishonestly applied to the use of another person the sum of two million five hundred thousand kina (K2,500.000.00) the property of Kumagai Gumi Company Limited.

Count Three: AND ALSO THAT the said HERMAN JOSEPH LEAHY further stands charged that he between 9th day of April 1999 and the 22nd day of April 1999 at Port Moresby, National Capital District, Papua New Guinea, dishonestly applied to the use of another person the sum of seventy thousand kina (K70,000.00) the property of Kumagai Gumi Company Limited.

10. The applicant’s lawyers objected to the indictment on various grounds: that the charges were dismissed by the District Court and the applicant was acquitted; that the presentation of a Section 526 indictment offended against the principles regarding finality of litigation and finality of acquittals; and that it was unconstitutional and an abuse of process. The objection was heard on 25 May 2005. On 8 June 2005 Mogish J, in a written decision, refused the objection and accepted the indictment. That decision is the subject of the applications before this court.

THE NATIONAL COURT DECISION

11. Mogish J held that the role of a committal magistrate is not to decide whether to dismiss or acquit an accused person charged with an indictable offence or to determine the guilt or innocence of the accused. The magistrate’s function under Part VI (proceedings in case of indictable offences) of the District Courts Act is to consider whether the evidence adduced is sufficient to put the accused on trial in the National Court. His Honour cited with approval the following dicta of the Full Court of the Supreme Court of New South Wales in Ex parte Cousens: Re Blackett (1964) 47 SR (NSW) 145:

In substance a committing magistrate determines nothing except that in his opinion a prima facie case has been made out for committing the accused for trial. …

In relation to charges of offences which they have no jurisdiction to try or dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence against him and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function.

12. Section 526 of the Criminal Code allows the Public Prosecutor to file a Section 526 indictment if the District Court refuses to commit an accused for trial. When the District Court finds that the "evidence is insufficient" to commit, that is the same as a "refusal" to commit. There is no inconsistency between the provisions of the Criminal Code and those of the District Courts Act, his Honour held.

13. Mogish J concluded that there was no abuse of process or unconstitutionality and dismissed the applicant’s objection and accepted the Section 526 indictment.

APPLICATION FOR REVIEW

14. On 21 June 2005, the applicant filed an application under Section 155(2)(b) of the Constitution to review Mogish J’s decision. He did not appeal as, he says, he had no right of appeal.

15. The exercise of jurisdiction under Section 155(2)(b) is not automatic. Resolution of a case under Section 155(2)(b) consists of two distinct steps.

•	first, the court decides whether it is necessary for the applicant to be given leave (ie permission) of the Supreme Court for the application to be heard and, if it is necessary, whether leave should be granted to the applicant;

•	secondly – if leave is either not necessary or is granted – the court determines the substantive review.

16. If leave is necessary but is refused, the substantive review does not get determined.

17. When the present case was heard, it was agreed that it was necessary for the applicant to be granted leave, so submissions were made on both aspects of the application:

•	first, should leave be granted for review?

•	secondly, on the presumption that leave is granted, should the review be upheld?

18. The applicant submits that he should be granted leave and that the review should be upheld and the decision of the National Court should be quashed. The Public Prosecutor responded by arguing that leave should be refused but, if it is granted, the review should be refused as the National Court made no error of law in deciding to accept the indictment.

RELEVANT LAWS

19. We have considered the following laws in determining both the application for leave to review, and the substantive review:

•	Constitution of the Independent State of Papua New Guinea;

•	Criminal Code Chapter No 262;

•	District Courts Act Chapter No 40;

•	Interpretation Act Chapter No 2;

•	Public Prosecutor (Office and Functions) Act Chapter No 338; and

•	Supreme Court Act Chapter No 37.

Constitution: Sections 10, 11, 23, 37, 155(1) and (6), 155(2)(b), 156(1), 176 and 177

20. Sections 10 (construction of written laws) and 11 (constitution etc as supreme law) are the basis of the principle that an Act of Parliament that contravenes a provision of the Constitution is invalid and ineffective. The applicant relies on that principle to argue that Section 526 of the Criminal Code is inconsistent with Section 155(6) of the Constitution and therefore unconstitutional.

21. Section 10 states:

All written laws (other than this Constitution) shall be read and construed subject to—

(a)	in any case—this Constitution; and
(b)	in the case of Acts of the Parliament—any relevant Organic Laws; and
(c)	in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

22. Section 11 states: 

(1)	This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2)	The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit. 

23. Section 23 (sanctions) is referred to by the applicant to argue that the presentation of a Section 526 indictment exposes the Public Prosecutor to the risk of prosecution for breaching a constitutional duty. It states:

(1)	Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a)	impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b)	in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)	Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)	Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

24. Section 37 (protection of the law) confers rights on persons charged with offences. Sections 37(1), (3), (8) and (14) are relevant to the present case:

(1)	Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences. …

(3)	A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court. …

(8)	No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal. …

(14)	In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

25. Sections 155(1) and 155(6) (the national judicial system) and 156(1) (the law officers) are pivotal to the applicant’s constitutional argument.

26. Section 155(1) states which courts comprise the National Judicial System:

The National Judicial System consists of—

(a)	the Supreme Court; and
(b)	the National Court; and
(c)	such other courts as are established under Section 172 (establishment of other courts).

27. Section 155(6) imposes a duty on Law Officers to comply with decisions of the National Judicial System:

Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

28. Section 156(1) states who the Law Officers are:

The Law Officers of Papua New Guinea are—

(a)	the principal legal adviser to the National Executive; and
(b)	the Public Prosecutor; and
(c)	the Public Solicitor.

29. Section 155(2)(b) is the provision that allows the Supreme Court to review decisions of the National Court when there is no right of appeal or where the right of appeal has been lost. It states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

30. Sections 176 (establishment of offices) and 177 (functions of the Public Prosecutor and the Public Solicitor) provide for appointment of the Public Prosecutor (and Public Solicitor) and the powers, functions, duties and responsibilities of that office.

31. Section 176 states:

(1)	Offices of Public Prosecutor and Public Solicitor are hereby established.

(2)	The Public Prosecutor and the Public Solicitor shall be appointed by the Judicial and Legal Services Commission.

(3)	Subject to this Constitution—

(a)	in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but
(b)	nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization).

(4)	The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with the Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea.

(5)	Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.

32. Section 177 – disregarding the provisions dealing only with the Public Solicitor – states:

(1)	The functions of the Public Prosecutor are—

(a)	in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and
(b)	to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office. … 

(6)	An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Prosecutor or the Public Solicitor.

Criminal Code: Sections 524(1), 525(1) and 526(1) 

33. Sections 524(1), 525(1) and 526(1) provide for presentation of indictments to the National Court.

34. Section 524(1) (procedure: preliminary) states:

(1)	No indictment may be presented in the National Court except in accordance with Sections 525 and 526.

35. Section 525(1) (procedure for indictment) states:

(1)	Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may—

(a)	reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or
(b)	decline to lay a charge.

36. Section 526(1) (indictment without committal) was the provision relied on by the Public Prosecutor to present the Section 526 indictment against the applicant. The applicant contends that Section 526 is unconstitutional. It states:

(1)	Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may—

(a)	consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(b)	reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

District Courts Act: Sections 1, 95, 100, 162, 219 and 261

37. Section 1 (interpretation) provides a definition of "decision" relied on by the applicant in support of his constitutional argument. It states:

In this Act, unless the contrary intention appears … "decision" includes a committal for trial and an admission to bail, and a conviction, order, order of dismissal or other determination.

38. Part VI (proceedings in case of indictable offences) comprises Sections 93 to 121. It provides for the conduct of committal proceedings for indictable offences. Sections 95 (court to consider whether prima facie case) and s 100 (discharge or committal of defendant) are relevant to the present case. They are sister provisions that prescribe the functions of the District Court at the stage where:

(a)	all the evidence offered on the part of the prosecution has been heard or received (Section 95); or

(b)	an examination under Division VI.1 (general) has been completed (Section 100).

(See Jimmy Mostata Maladina v Principal District Court Magistrate Posain Poloh and The State (2004) N2568, for an excellent exegesis by Injia DCJ of how the two provisions relate to each other.)

39. Section 95 states:

(1)	Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2)	If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3)	If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

40. Section 100 states:

(1)	When an examination under this Division is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.

(2)	If, in the opinion of the Court, the evidence is not sufficient to put the defendant on trial, it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3)	Where—

(a)	in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or
(b)	the Court commits the defendant for trial under Section 94B(1)—

the Court shall—

(c)	by warrant commit the defendant to a corrective institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or
(d)	admit him to bail in accordance with Division 2.

41. Part IX (enforcement of decisions) comprises Sections 160 to 208. It provides for enforcement of District Court decisions. Section 162 (proceedings in case of dismissal) is relevant to the present case. It stipulates what happens when the District Court dismisses an information. 

42. Section 162 states:

(1)	If the Court dismisses an information, complaint or set-off, it shall make an order of dismissal and shall, on application, give to the defendant or complainant, as the case may be, a certificate of the order signed by one or more of the adjudicating Magistrates or the Clerk.

(2)	A certificate under Subsection (1) is, on its production, without further proof, a bar to any other information, complaint or legal proceeding in any Court in the country (other than proceedings on appeal) for the same matter against the same party.

43. Part XI (appeals from decisions of District Courts) comprises Sections 219 to 246. It regulates the right of appeal from the District Court to the National Court. Section 219 (appeal to national court) is relevant to the present case. It confers a general right of appeal but qualifies it in cases where the State wishes to appeal against dismissal of an information.

44. Section 219 states:

(1)	Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2)	Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3)	Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may—

(a)	appeal against a decision of a District Court on behalf of a party; or
(b)	intervene in an appeal to the National Court.

(4)	The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code.

45. Part XIII (costs) comprises Sections 260 to 266. The applicant refers to Section 261 (no costs on dismissal of charge of indictable offence) to support his argument that the District Court has power to dismiss indictable offences.

46. Section 261 states:

This Act does not empower a Court to adjudge the payment by the complainant to the defendant of costs on an adjudication of dismissal of a charge of an indictable offence.

Interpretation Act: Section 12

47. Section 12 (provision where no time prescribed) is a useful guide when an issue arises about the time taken for doing something under an Act. In the present case the applicant argues that the Public Prosecutor was guilty of unreasonable delay in presenting the Section 526 indictment.

48. Section 12 states:

Where no time is prescribed or allowed within which an act is required or permitted by a statutory provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.

Public Prosecutor (Office and Functions) Act: Section 4(1)

49. This Act has been made under Section 177(6) of the Constitution. It confers functions on the Public Prosecutor additional to those in Section 177(1). Section 4(1) (functions etc of Public Prosecutor) is relevant to the present case. It states:

The Public Prosecutor—

(a)	shall control the Office; and
(b)	is administratively responsible for the efficient performance of the functions of the Office; and
(c)	shall control and exercise the prosecution function of the State; and
(d)	may, and shall when requested to do so by the relevant person or body, advise—

(i)	the State or any statutory authority or instrumentality of the State; and
(ii)	the Minister; and
(iii)	Departmental Head of the Department responsible for National Justice Administration; and
(iv)	the State Solicitor; and
(v)	the Law Reform Commission; and
(vi)	any other person or body declared by the Minister, by notice in the National Gazette, to be a person or body to which this section applies,

on matters related to or concerning the commission of offences against any law; and

(e)	shall provide Counsel—

(i)	to prosecute persons charged with any criminal offence at their trial before the National Court; and
(ii)	to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and
(iii)	to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest; and

(f)	may, in his absolute discretion, provide Counsel, to appear for and on behalf of the State, in any other proceeding before the National Court or Supreme Court in which the State has an interest; and
(g)	shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required; and
(ga)	may, in his absolute discretion, elect the method of proceeding under Section 420 of the Criminal Code, including the withdrawal of an information; and
(h)	may, in his absolute discretion, provide assistance, either by provision of legal representation or otherwise, where—

(i)	it is requested by the State; or
(ii)	in his opinion, it is necessary to do so in the interests of justice, or in the public interest,

in the prosecution of offences or the conduct of committal proceedings before any court other than the National Court or the Supreme Court; and
(i)	may advise the National Executive Council, through the Minister, to exercise its power under Section 151(2) (grant of pardon, etc.) of the Constitution to advise the Head of State to grant pardons, free or conditional, to accomplices who give evidence leading to the conviction of principal offenders.

Supreme Court Act: Sections 1(1), 4, 21(1), 22, 24 and 25

50. This Act regulates the right of appeal from a judgment of the National Court and provides for reservation of questions of law for the Supreme Court’s consideration.

51. Section 1(1) (interpretation) states:

In this Act, unless the contrary intention appears … "judgment" includes a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule. 

52. Section 4 (right of appeal from National Court) states:

(1)	An appeal in accordance with this Act lies to the Supreme Court from a judgement of the National Court.

(2)	An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—

(a)	on a question of law; or
(b)	on a question of mixed fact and law; or
(c)	with the leave of the Supreme Court, on a question of fact.

53. Section 21(1) (reservation of points of law) states:

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.

54. Section 22 (criminal appeals) states:

A person convicted by the National Court may appeal to the Supreme Court—

(a)	against his conviction, on any ground that involves a question of law alone; and

(b)	against his conviction, on a question of mixed fact and law; and

(c)	with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal—

(i)	that involves a question of fact alone; or
(ii)	that appears to the Supreme Court to be a sufficient ground of appeal; and

(d)	with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.

55. Section 24 (appeals by Public Prosecutor against sentence) states:

(1)	In this section "sentence" includes any order made on conviction with reference to the person convicted or his property.

(2)	The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper.

56. Section 25 (appeal against quashing of conviction) states:

Where the National Court has given a judgment quashing a conviction, or any count or part of a charge, the Public Prosecutor may appeal to the Supreme Court against the judgement, and the Supreme Court may—

(a)	determine the appeal; and

(b)	if the appeal is sustained make such order for the prosecution of the trial as it thinks necessary or desirable.

SHOULD THE APPLICANT BE GRANTED LEAVE FOR REVIEW UNDER SECTION 155(2)(b) OF THE CONSTITUTION?

57. The nature of the Supreme Court’s jurisdiction under Section 155(2)(b) was explained by Kapi DCJ, as he then was, in Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686. In dicta adopted by other members of the court (Los J, Salika J, Sakora J and Injia J), it was stated:

Section 155(2)(b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State … held that the Court may in its absolute discretion allow a limited class of cases for review under Section 155(2)(b). 

There are three categories of cases where judicial review has been exercised under this provision:

(1)	Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (No 2) [1982] PNGLR 44).
 
(2)	Where a right of appeal is prohibited or limited by law (eg election petition cases where an appeal is prohibited).

(3)	Where there is no other way of going to the Supreme Court (see SCR No 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433).

58. Whether leave for review under Section 155(2)(b) is necessary and, if it is necessary, what criteria apply when deciding whether to grant leave, depend on the category of the case.

Category 1: where there is a right of appeal

59. If there is a right of appeal but it has not been invoked (eg due to expiry of the statutory time limit of 40 days under the Supreme Court Act, Sections 17 (civil appeals) or 29 (appeals by persons convicted in criminal cases), three criteria have to be satisfied before leave can be granted:

1	) It is in the interests of justice to grant leave; and

2	) there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

3	) there are clear legal grounds meriting a review of the decision.

60. In deciding whether there are cogent and convincing reasons, the following matters are relevant:

(a)	the reasons for not filing an appeal within time; and

(b)	the merits of the case sought to be argued.

61. The above principles are based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J. They have subsequently been developed and applied in many cases, eg Danny Sunu v The State [1984] PNGLR 305, Pratt J, McDermott J, Woods J; The State v Colbert [1988] PNGLR 138, Kapi DCJ, Bredmeyer J, Amet J; David Toll v The State (1989) SC378, Bredmeyer J, Woods J, Konilio J; New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522, Bredmeyer J, Amet J, Barnett J; and Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437, Amet CJ, Kapi DCJ, Los J. They apply to both civil and criminal cases.

Category 2: where an appeal is prohibited or limited by law

62. In these cases, leave is not necessary. For example, the Organic Law on National and Local-level Government Elections prohibits appeals against decisions of the National Court on election petitions. Nevertheless the Supreme Court can review such decisions under Section 155(2)(b). The Supreme Court has decided that, as an appeal is prohibited, it is not necessary for leave to be sought. (Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, Kapi DCJ, Sheehan J, Injia J). 

Category 3: where there is no other way of coming to the Supreme Court

63. If an appeal is not expressly prohibited or limited by law but the applicant has no way of coming to the Supreme Court except under Section 155(2)(b), leave is necessary. But the Avia Aihi criteria do not apply. The only criteria to be satisfied are:

1)	there is an important point of law to be determined; and 

2)	it is not without merit.

64. Those principles were developed by the Supreme Court in Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433, Kidu CJ, Kapi DCJ, Amet J. 

65. In some cases it has been suggested that those principles also apply to the election petition scenario, ie the category 2 cases. (See Applications of Kasap and Yama [1988-89] PNGLR 197, Kidu CJ, Kapi DCJ, Woods J; Moi Avei and Electoral Commission v Charles Maino (1998) SC584, Hinchliffe J, Sheehan J, Jalina J; SCR No 72 of 2003; Robert Kopaol v Philemon Embel (2003) SC727, Sawong J, Kirriwom J, Batari J). Though it is not necessary to decide the issue here, we think the better view is as stated in Schulze: the two Foreign Exchange & Gold) Regulations case criteria do not apply if an appeal is expressly prohibited.)

Competing arguments

66. In the present case Mr Sheppard, for the applicant, submitted that leave to seek review was necessary and should be granted as the case falls within category No 3 identified in Anderson Agiru’s case – an appeal is not prohibited but there is no other way the applicant can come to the Supreme Court. The Avia Aihi criteria do not apply and the two criteria in the Foreign Exchange and Gold Regulations case are satisfied – there is an important point of law to be determined and it is not without merit – Mr Sheppard submitted.

67. The Public Prosecutor, Mr Manek, representing the State as respondent, submitted that leave to seek review should be refused as the present case falls within the first of the Anderson Agiru categories – there was a right of appeal, which was not invoked, and the Avia Aihi criteria are not satisfied. Mogish J’s decision to accept the indictment was a judgment of the National Court and under Section 4(1) of the Supreme Court Act the applicant had a right to appeal against it. Furthermore, the applicant could have approached the court under Section 21 of the Supreme Court Act and will, in the event that he is convicted at a trial, be able to appeal, Mr Manek submitted.

Was there a right of appeal?

68. We agree with Mr Manek that Mogish J’s decision was a "judgment" as defined by Section 1(1) of the Supreme Court Act, as it was a finding or ruling on a question of law. However, we agree with Mr Sheppard that there was no right of appeal against it.

69. The applicant had no constitutional right that he could invoke, to appeal against the National Court’s judgment. The only right of appeal (or review) the Constitution gives is for persons convicted of an offence; and then it is a right that has to be exercised according to law (Jim Kas v The State (1999) SC772, Amet CJ, Kapi DCJ, Woods J, Los J, Sakora J).

70. The Constitution, Sections 37(15) and (16) (protection of the law) state:

(15)	Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16)	No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

71. The appellant was not convicted of any offence, so he had no constitutional right to appeal. Any right of appeal had to be founded in statute.

72. Section 4(1) of the Supreme Court Act provides that an appeal from a judgment of the National Court lies to the Supreme Court, but only "in accordance with this Act".

73. In Malipu Balakau v Paul Torato [1983] PNGLR 242 Kidu CJ suggested that Section 4(1) gives a general right of appeal from any judgment of the National Court to the Supreme Court. However, his Honour did not have the benefit of full argument on the point; and it was not necessary for that view to be expressed to decide that case, which was about the power of the Supreme Court to hear reviews, as distinct from appeals, from decisions of the National Court in election petition cases. We do not agree that Section 4(1) by itself confers a right of appeal. 

74. Section 4 falls within Part III (appeals to the Supreme Court), which consists of three divisions:

•	Division III.1 (general), Sections 4 to 12;

•	Division III.2 (additional provisions relating to appeals in civil cases), Sections 13 to 19; and

•	Division III.3 (additional provisions relating to appeals in criminal cases), Sections 20 to 32.

75. Section 4(1) does not by itself confer a right to appeal against a judgment of the National Court. It is not a self-executing provision. Recourse must be had to other provisions of Part III to source that right. In a criminal case, the right to appeal is only conferred in the following situations:

•	where the National Court has decided an appeal (eg against a conviction by the District Court) – in which case either party to the National Court proceedings has the right to appeal to the Supreme Court in accordance with Section 4(2);

•	where a person has been convicted by the National Court – in which case that person has the right of appeal against conviction in accordance with Section 22; 

•	where a person has been sentenced by the National Court – in which case either that person or the Public Prosecutor has the right of appeal under Sections 22 and 24 respectively; 

•	where the National Court has given a judgment quashing a conviction – in which case the Public Prosecutor has a right of appeal in accordance with Section 25. 

76. Mogish J was not sitting on an appeal, did not convict or sentence the applicant and did not quash a conviction. There was no right of appeal against his judgment of 8 June 2005. Therefore the case does not fall within category No 1.

Was an appeal prohibited?

77. An appeal against Mogish J’s decision was not expressly prohibited. Therefore the case does not fall within category No 2.

Was there no other way of bringing the case before the Supreme Court?

78. We have considered the issue of whether Section 21 of the Supreme Court Act was available to the applicant. It obliges the National Court, on application by counsel for an accused person made before verdict, to reserve a question of law that arises in a trial for consideration by the Supreme Court. However, in this case the trial had not commenced so Section 21 was not applicable.

79. We conclude that yes, there was no way for the applicant to get the decision reviewed except via Section 155(2)(b). That means the only criteria applicable are those set out in the Foreign Exchange and Gold Regulations case: Is there an important point of law to be determined? Is it not without merit?

80. First, the applicant has challenged the Public Prosecutor’s power to present Section 526 indictments and relies on grounds that have not been adjudicated on previously by the Supreme Court. The application raises constitutional issues. They are important questions of law. 

81. As to the second criterion, all we need to be satisfied of at this stage is that the questions raised by the applicant are not devoid of merit. If the questions of law were frivolous or trivial the Supreme Court would be justified in refusing leave. That is not the case here.

Conclusion as to leave 

82. Both of the Foreign Exchange and Gold Regulations case criteria are satisfied. Therefore we grant leave under Section 155(2)(b). We will now determine the application for review.

THE GROUNDS OF REVIEW

83. The application for review sets out seven grounds:

1	The learned Judge erred in law in failing to recognize that a determination under Sections 95 or 100 of the District Courts Act ("the Act") as to the sufficiency of evidence to commit a defendant for trial is a "decision" within the meaning of that expression as it is defined in Section 1 of the Act, and as that term is used in Section 155(6) of the Constitution.

2	His Honour erred in law in failing to hold that the decision not to commit the defendant was final, subject only to the right of appeal or review referred to in Section 155(6) of the Constitution.

3	The learned Judge ought to have held that there had been no appeal from, or review of, the decision of the Magistrate of 21 September 2 004 within the meaning of those terms in Section 155(6) of the Constitution.

4	The learned Judge failed to hold that Section 526 of the Criminal Code (the "Code") is inconsistent with Section 155(6) of the Constitution and therefore invalid to the extent of the inconsistency, by operation of Section 11 of the Constitution.

5	His Honour erred in law in failing to hold that, in consequence of Section 155(6) of the Constitution, subject to the right of appeal and review referred to in that provision, a decision not to commit a defendant made under either Section 95(2) or Section 100(2) of the District Courts Act is final, and has effect as an acquittal.

6	The learned Judge ought to have rejected the indictment presented by the Public Prosecutor.

7	The tender of the indictment by the Public Prosecutor amounted to a denial of the defendant’s entitlement to the protection of the law guaranteed him by Sections 32, 37, 57, 155(6), 23 and 11 of the Constitution, and Sections 95(2), 100(2), 162 and 219 of the District Courts Act.

84. The applicant relies on those grounds to seek orders that the Section 526 indictment be quashed and that the Public Prosecutor be restrained from presenting any further indictment against him in relation to the matters included in the ex officio indictment.

THE APPLICANT’S SUBMISSIONS

85. We will now summarise the arguments raised by the applicant, both in written and oral submissions, and scrutinise them to see whether we should deal with them. It is important to do this for a number of reasons.

Why summarise and scrutinise?

86. First, the written submissions were not structured in the same way as the grounds of review; and the oral submissions were not structured in the same way as either the grounds of review or the written submissions. A similar state of affairs faced the Supreme Court (Los J, Davani J, Cannings J) in The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812, and drew the following remarks:

This appeal has taken longer than expected to resolve because the appellant’s notice of appeal was not clearly drafted and its written submission did not mesh with the grounds set out in the notice of appeal. …

It defeats the purpose of having a controlled appeal, in which an appellant is expected to concisely state the grounds of appeal and the orders sought on the appeal and is subject to constraints as to when and whether leave is to be sought to amend the notice of appeal, if the appellant makes submissions that seem to forget about the grounds of appeal. An appellant’s written submission is constrained by and should dovetail into the grounds of appeal. The primary task of the Supreme Court, which is to identify and expeditiously resolve the issues in dispute, is made harder when, as in this case, the respondents also do not follow the grounds of appeal. When this happens the hearing of the appeal is at risk of becoming a confabulation about the merits of the case rather than a rigorous and intense determination of clearly defined issues. It makes the task of the Supreme Court unnecessarily burdensome and time-consuming. 

87. The applicant’s written submissions did not dovetail into the grounds of review and the oral submissions failed to follow the structure of the written submissions or grounds of review. This has made it more difficult than it should have been to follow the submissions and crystallise the issues requiring determination.

88. Secondly, just as in an appeal an appellant is generally confined to the grounds of appeal set out in the notice of appeal – except where leave is sought and obtained to amend the notice – in an application for review under Section 155(2)(b) of the Constitution the applicant is confined to the grounds of review set out in the application for review, except where leave is granted to amend the application or exceptional circumstances exist and a point of law is debated before the court and to ignore it would amount to a miscarriage of justice (The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812; Keko Aparo and Others v The State (1983) SC249, Supreme Court, Pratt J, Bredmeyer J, Gajewicz J). We need to check whether the applicant’s submissions can be pigeonholed into one or more of the grounds of review. If they cannot be, we need to check whether new grounds have been raised without leave of the court. If they have been, we will be hard-pressed to consider them.

89. Thirdly, the respondent submitted that some of the arguments raised by the applicant raise new points of law that were not put to the National Court. If that is so, we need to be convinced that it is proper to consider them. The general rule is that leave of an appellate or review court is necessary before it will consider new points of law not raised in the court below and special circumstances must be shown to exist (The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812; Van Der Kreek v Van Der Kreek [1979] PNGLR 185, Supreme Court, Prentice CJ, Pritchard J, Andrew J; Charles Ombusu v The State [1996] PNGLR 335, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J).

90. Finally, the jurisdiction under Section 155(2)(b) is a review, not an appellate, jurisdiction. The practical effect of this was explained in Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, where the Court (Kapi DCJ, Sheehan J, Injia J) stated:

The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised are much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State (No 2)… [and] conveniently set out in PNG v Colbert [1988] PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

(a)	it is in the interest of justice;
(b)	there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and
(c) 	there are clear legal grounds meriting a review of the decision.

91. In the present case the above criteria did not have to be satisfied in order for the applicant to be granted leave. However, having granted him leave, and now that it is about to embark on a substantive review of the National Court decision, the Supreme Court needs to be satisfied of those criteria before it will uphold the review and consider granting any of the orders sought by the applicant. (SCR No 55 of 2004; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827, Supreme Court, Hinchliffe J, Batari J, Cannings J.) In SCR No 19 of 2003; Benny Diau v Mathew Gubag (2004) SC775 the Supreme Court (Kapi CJ, Los J, Gavara-Nanu J) expressed the point that the grounds of review must be scrutinised in these terms:

To convince the court that the applicant is not a busybody, it must be shown that there is an issue (or are issues) to be tried or reviewed.

Summary of applicant’s arguments

92. After considering the seven grounds of review and both the written and oral submissions, we can identify five discrete arguments that the applicant has agitated.

93. The applicant has argued that:

1. Section 526 of the Criminal Code – the provision relied on by the Public Prosecutor to present the Section 526 indictment – is inconsistent with Section 155(6) of the Constitution and therefore invalid and ineffective and unconstitutional; thus the indictment based on it is void; 

2. if Section 526 is not unconstitutional, its use in this case was unlawful and an abuse of process for two reasons: 

(a)	the Public Prosecutor had not first exhausted the State’s rights of appeal and review, as required by Section 155(6) of the Constitution; and

(c)	the District Court had not refused to commit the applicant for trial; thus exposing the Public Prosecutor to the risk of sanction under Section 23 of the Constitution for breaching a duty imposed by Section 155(6); 

3. the District Court’s decision not to commit the applicant, made under Section 100(2) of the District Courts Act, was final, and had effect as an acquittal or dismissal and the presentation of the Section 526 indictment was, in the absence of an appeal under Section 219 of the District Courts Act, a fresh prosecution contrary to the autrefois acquit principle enshrined in Section 37(8) of the Constitution and Section 162 of the District Courts Act, and therefore void;

4. the State and in particular the Public Prosecutor was guilty of unreasonable delay, culminating in the unreasonable manner in which the Section 526 indictment was presented, the consequence being that the applicant’s rights to the full protection of the law under Sections 37(1), (3) and (14) of the Constitution were breached, and accordingly the indictment should be quashed;

5. the Public Prosecutor acted unreasonably by combining a conspiracy charge with a substantive charge in the one indictment, contrary to the principles in R v Dawson [1960] All ER 558, thereby denying the applicant the full protection of the law under Section 37(1) of the Constitution; thus the indictment should be quashed.

94. The applicant contends that each of the above arguments independently supports upholding the application for review, quashing the indictment and restraining the Public Prosecutor from presenting any further indictment against him in relation to the matters included in the Section 526 indictment.

Scrutiny

95. Before proceeding with the review there are three questions to ask about each of the five arguments:

(a)	Is it raised in one or more grounds of review?

(b)	Was it raised in the National Court?

(c)	Is it a proper review point? 

96. If the answer is ‘yes’ to all questions, we are obliged to determine the issue raised by the argument. If the answer to any question is ‘no’, we will consider whether it is appropriate to address the argument or point of law being raised.

97. The results of this scrutiny are summarised in table 1. The first column contains the five arguments. The next three columns correspond to the three questions or criteria to be asked about each argument, eg ‘(a) satisfied?’ means ‘is this argument raised in one or more of the grounds of review?’ The answers, appearing in the table, are shown as Y (yes) or N (no) respectively. A "no" answer indicates that there is an issue to be addressed as to whether the argument to which it relates should form part of the review; and that issue is addressed below.

TABLE 1: SCRUTINY OF APPLICANT’S FIVE ARGUMENTS

Argument being raised
by the applicant 	(a) satisfied?	(b) satisfied?	(c) satisfied?	
1	Criminal Code, s 526 inconsistent with Constitution, s 155(6)	Y	Y	Y	
2	If s 526 not unconstitutional, its use was unlawful and an abuse of process	Y	Y	Y	
3	District Court decision was final and in effect was an acquittal and dismissal	Y	Y	Y	
4	Undue delay, contrary to applicant’s right to full protection of the law	N	N	Y	
5	Combination of conspiracy charge with substantive charge	N	N	Y	

98. The first three arguments pass muster but the last two do not. Though they are proper review points neither argument was raised in the National Court; and neither is included in the grounds of review. The applicant did not apply for leave to include them so we will not deal with them as part of the review. We say in passing that we see no injustice by not determining them as neither appeared to raise strong points of law.

99. As for argument No 4, the time it took for the Public Prosecutor to present the Section 526 indictment does not, on the face of it, appear to be an unreasonable or oppressive delay, such as to warrant the court quashing the indictment. The Criminal Code does not prescribe a time limit for presenting such an indictment. Section 12 of the Interpretation Act would apply. The indictment could be presented "with all convenient speed". What is convenient speed depends on all the circumstances of the particular case (Acting Public Prosecutor v Uname Aumane and Others [1980] PNGLR 510, Supreme Court, Kidu CJ, Kearney DCJ, Greville-Smith J, Andrew J, Kapi J). The circumstances of the present case do not suggest that the Public Prosecutor failed to act with all convenient speed. 

100. As for argument No 5, the combination of a conspiracy charge with a substantive charge in the indictment does not, by itself, make the indictment defective. No local authority was provided in support of the proposition advanced. As the Public Prosecutor pointed out in submissions, there is a recent example of the National Court convicting a person on an indictment containing both a conspiracy and a misappropriation charge, and it concerns a prosecution generated by the NPF Inquiry: The State v Iori Veraga (2005) N2849, Sakora J. We agree with Mr Manek’s submission: this sort of argument would be better made before a trial judge.

101. The application for review will therefore be confined to the applicant’s first three arguments.

ARGUMENT NO 1: CRIMINAL CODE, SECTION 526 IS INCONSISTENT WITH CONSTITUTION, SECTION 155(6) 

102. Section 155(6) of the Constitution states:

Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System. [Emphasis added.]

Applicant’s submission

103. The applicant argues that a decision of the District Court under Section 100(2) of the District Courts Act to discharge a person from an information on the ground that there is insufficient evidence is a "decision" of the National Judicial System. It falls within the definition of "decision" in the District Courts Act. The District Court forms part of the National Judicial System under Sections 155(1) and 172 of the Constitution. Law Officers, including the Public Prosecutor, are obliged to comply with and put into effect such a decision, subject to any right of appeal or power of review. Section 526 of the Criminal Code neither confers a right of appeal nor a power of review on the Public Prosecutor as those words in Section 155(6) mean judicial review. Section 526 purports to allow the Public Prosecutor not to comply with the decision and put it into effect, but to ignore or override it without recourse to a right of appeal or power of review. Section 526 is a legislative act inconsistent with Section 155(6), which is part of the Supreme Law of Papua New Guinea. It is invalid and ineffective under Sections 10(a) and 11(1) of the Constitution. Thus an indictment based on it is void. 

104. The applicant submits that that construction of Section 155(6) would not deprive the Public Prosecutor of capacity to appeal against or seek review of a District Court decision. An appeal can be made under Section 219 of the District Courts Act, if leave of the Secretary for Justice is obtained. Striking down Section 526 would be consistent with the constitutional imperative of respecting court decisions conveyed by Section 155(6). It would curtail the potential for abuse of the committal system that exists if the Public Prosecutor has unfettered power to indict notwithstanding the District Court’s decision that there is insufficient evidence. Committal proceedings are an important and integral part of the criminal justice system. 

105. The applicant refers to a number of decisions of Australian courts that highlight how significant committal proceedings are in giving full protection of the law to accused persons and how Section 526 indictments should be used sparingly: R v Webb (1960) QdR 443 (Court of Criminal Appeal, Queensland); R v Fazzari unreported decision of the New South Wales Court of Appeal, 08.12.77; and Barton v The Queen (1990) 147 CLR 75 (High Court). The judicial concerns expressed in those cases apply with even greater force in PNG, given the constitutional imperative of Section 155(6).

106. To sum up, the applicant’s argument is based on five (5) propositions. First, the District Court’s committal decision is a decision of the National Judicial System. Secondly, the Public Prosecutor has a duty under Section 155(6) to comply with and give effect to it, subject to a right of appeal or power of review. Thirdly, Section 526 does not confer a right of appeal or power of review. Fourthly, Section 526 allows the Public Prosecutor to not comply with and not give effect to the District Court’s decision, so it is inconsistent with Section 155(6). Finally, striking down Section 526 of the Criminal Code would confer the full protection of the law on an accused person, while leaving intact the State’s right to appeal against a decision to discharge an accused. The fact that Section 526 indictments have been presented without question over a number of years is of no consequence as it seems that the constitutional issues now being argued were never raised before.

Respondent’s submission

107. The respondent does not take issue with the proposition that he has a duty to give effect to decisions of the National Judicial System. He agrees that the District Court is part of the National Judicial System. However, he submits that the District Court’s decision to commit or not to commit is an administrative decision, and that he does not have a duty under Section 155(6) of the Constitution to comply with such a decision. He contends that Mogish J was correct in holding that the committal decision is an administrative – not a judicial – decision; and therefore not a "decision of the National Judicial System" for the purposes of Section 155(6). No inconsistency exists between Section 155(6) and Section 526, the Public Prosecutor submits. Alternatively, he argues that Section 526 confers on him a power of review.

108. As for the usefulness of Section 526, it has been invoked on numerous occasions over many years without question. There is a long line of PNG authority that demonstrates its importance to the administration of justice: R Toigen Tiolo and Others [1970] PNGLR 285; R v Topulumar and Others [1971-72] PNGLR 320; The State v Tanedo [1975] PNGLR 395, National Court, Prentice DCJ; Smedley v The State [1980] PNGLR 379, Supreme Court, Kearney DCJ, Wilson J, Pratt J; and The State v Esorom Burege (No 1) [1992] PNGLR 481, National Court, Jalina J. These cases show how the Public Prosecutor’s power to indict notwithstanding an irregular committal proceeding complements the powers and functions of his office under the Constitution and the Public Prosecutor (Office and Functions) Act.

Points of issue

109. The applicant and the respondent agree that the District Court is part of the National Judicial System but disagree on almost everything else, so the issues to be resolved are:

•	Is the District Court’s committal decision a decision of the National Judicial System for the purposes of Section 155(6) of the Constitution?

•	Does the Public Prosecutor have a duty to comply with and give effect to such a decision?

•	Does Section 526 not confer a power of review on the Public Prosecutor?

•	Does it follow that Section 526 of the Criminal Code is inconsistent with Section 155(6) and therefore unconstitutional?

110. The applicant argues that all these issues should be answered yes. The Public Prosecutor argues they should all be answered no.

Is the District Court’s decision a decision of the National Judicial System?

111. There is considerable support for the view that the District Court’s decision to commit or not to commit is an administrative, not a judicial, decision. Mogish J’s citation, with approval, of the classic statement in Ex parte Cousens: Re Blackett (1964) 47 SR (NSW) 145 – that "a committing magistrate determines nothing except that in his opinion a prima facie case has been made out for committing the accused for trial", which is "essentially an executive and not a judicial function" – was an affirmation of the view expressed by Prentice DCJ in The State v Tanedo [1975] PNGLR 395.

112. However, we have reservations about labelling the District Court’s decision in that way. The Supreme Court (Pratt J, Bredmeyer J, Kaputin J) pointed out in Robert Kaki Yabara v The State [1984] PNGLR 378 that it is notoriously difficult and sometimes unhelpful to label decisions made by judicial officers so finely. In that case the appellant appealed against his conviction under Section 119 of the Criminal Code for corruptly giving a benefit to a judicial officer to get something done by that judicial officer. He argued that the magistrate before whom he was appearing in committal proceedings on false pretence charges, and on whose table he placed K140.00 cash, was only a committal magistrate not exercising judicial functions. Pratt J and Bredmeyer J dismissed the argument and the appeal and in the process expressed scepticism about the Ex parte Cousens approach. Bredmeyer J stated:

In the course of a committal, the magistrate has to perform a number of tasks. Although one may, if one follows the New South Wales cases, regard the overall task as an administrative inquiry, because he does not determine the rights of any persons, nevertheless, in the course of that inquiry, there are a number of judicial functions to be exercised. Whether evidence is admissible or not is a judicial function and at the end of the committal the decision to commit or not is very much a judicial function. The magistrate must only have before him evidence which is admissible. He must reflect on the elements of the offence. He must weigh the evidence, the evidence for the prosecution and for the defendant, and come to a decision whether there is sufficient evidence to put the defendant upon his trial for that charge or for some other charge. When he does that task, he is very much performing a judicial task, acting in a judicial capacity.

113. Recently in Jimmy Mostata Maladina v Posain Poloh and The State (2004) N2568 Injia DCJ highlighted the need for committal magistrates to observe the principles of natural justice – in other words to act judicially – when making decisions under Sections 95 and 100 of the District Courts Act. In Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The State (2004) N2562, Kandakasi J noted the traditional reluctance of the National Court to intervene when judicial review is sought of committal proceedings, but added:

… judicial review is not a readily available remedy for a review of a committal court’s decision to commit a person to stand trial before the National Court. However, in a clear case of error, particularly where a committing court obviously acts in excess of or without jurisdiction, judicial review is an available remedy to avoid further unnecessary costs and anxiety.

114. In both Maladina and Kasieng the National Court quashed the District Court’s decision to commit the accused person for trial on the ground of denial of natural justice or excess of jurisdiction. There was ample precedent in cases such as Ex parte Rush [1984] PNGLR 124, McDermott J; Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479, Sheehan J; Robert Lak v Dessy Magaru and The State (1999) N1950, Sheehan J; and Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956, Sevua J. 

115. These cases show that though for some purposes it might be profitable to regard a committal proceeding as an administrative inquiry – as the exercise of an essentially executive or administrative function – it is still susceptible to judicial review and has, at the least, a strong quasi-judicial character. We think Bredmeyer J’s dicta in Yabara is the most apt description of the District Court’s role and the nature of its committal decision:

… at the end of the committal, the decision to commit or not is very much a judicial function.

116. We conclude that the decision of the District Court to either commit or not commit an accused person for trial involves the exercise of a judicial function. Such a decision is therefore a decision of the National Judicial System for the purposes of Section 155(6) of the Constitution.

Does the Public Prosecutor have a duty to comply with and give effect to a committal decision?

117. In arguing that Section 526 is unconstitutional the applicant places great store in the duty imposed by Section 155(6) on the Public Prosecutor, so it is instructive before going further to clarify what the duty is, and on whom it is imposed.

118. The duty is to:

•	comply with; and

•	to put into effect (so far as is within the respective lawful powers of those subject to the duty),

•	all decisions of the National Judicial System.

119. The duty is imposed on:

•	all persons (including Law Officers – such as the Public Prosecutor – and other public officers in their respective official capacities); and

•	all bodies and institutions (note that this is not restricted to governmental bodies, so it includes every body, governmental or non-governmental, public or private, eg companies and other bodies incorporated under an Act of the Parliament).

120. Two things immediately stand out about the duty imposed by Section 155(6).

121. First, it is not a duty that really needs to be expressly stated in the Constitution. All Section 155(6) says is that everyone has a duty to comply with and put into effect court decisions. In a constitutional democracy such as Papua New Guinea’s, where the judicial authority of the People is vested in the National Judicial System, which (alongside the National Parliament and the National Executive) is one of the three principal arms of the National Government, it would seem to go without saying that everyone has that duty. (See Constitution, Sections 99(2), 158(1)). It is a duty enforced generally by the law of contempt (see, eg, Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville-Smith J; Pius Mark v Korali Iki [1995] PNGLR 116, National Court, Akuram AJ; and see generally E L Kwa, Constitutional Law of PNG, Lawbook Co ©2001, par (7.8): Obedience to Court Decisions, pp, 126-127).

122. Sakora J correctly reflected on the constitutional authority of the Supreme Court and the National Court to demand compliance with and the giving effect to their decisions in Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285:

The Constitution vests contempt powers on the two superior courts (the Supreme and National Courts of Justice) to punish offences against themselves under ss 160(2) and 163(2) respectively. Similar language is employed in these provisions to describe the power:

The [Supreme/National] Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.

This is of course inherent power translated into statutory form under the Constitution … . The courts, therefore, have undoubted powers to compel observance of their processes and obedience of and compliance with their orders and directions. These powers are inherent … in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary. The contempt power enables the courts to perform their functions without interference, to control courtroom behaviour and to enforce orders and compel obedience.

123. The duty is also reflected in the principle that the plain and unqualified obligation of every person in respect of whom a court order is made, to obey it unless and until it is discharged, even if they do not agree with or think it is invalid or irregular. As long as a court order exists it has to be obeyed (Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227, National Court, Hinchliffe J).

124. The duty imposed by Section 155(6) is thus unremarkable. Without the express injunction of Section 155(6), the duty would exist by necessary implication.

125. The second thing that stands out about Section 155(6) is that it does not impose a special duty only on the Public Prosecutor or Law Officers. The duty is imposed on every human person (citizen or non-citizen) and every body or institution in the country. No one is immune. It is all encompassing.

126. Nevertheless, having already decided that a decision to commit or not commit a person is a decision of the National Judicial System, the Public Prosecutor does have a duty to comply with such a decision and give effect to it.

127. We answer the question posed by saying yes, the Public Prosecutor does have a duty to comply with and give effect to a decision of the District Court to commit or not to commit an accused person for trial.

Does Section 526 NOT confer a power of review on the Public Prosecutor?

128. We agree with the applicant on this issue also. When Section 155(6) speaks of the duty to comply with and give effect to a judicial decision and makes that duty subject to a right of appeal or power of review it plainly means a power of judicial review. The other subsections of Section 155 circumscribe the powers and jurisdiction of the Supreme Court and the National Court and provide for the establishment of other courts. It follows that Section 155(6) is referring to appeals and reviews determined by the Supreme Court or the National Court.

129. So, yes, Section 526 of the Criminal Code does not confer a power of review on the Public Prosecutor.

Is Section 526 of the Criminal Code inconsistent with Section 155(6) of the Constitution?

130. We have agreed with the applicant so far: Yes, the District Court’s committal decision is a decision of the National Judicial System. Yes, the Public Prosecutor has a duty to comply with and give effect to it. Yes, Section 526 does not confer a power of review on the Public Prosecutor. 

131. Does it follow that Section 526 is inconsistent with the Public Prosecutor’s duty under Section 155(6)? If it is inconsistent, the Supreme Court will declare that it is an invalid exercise of legislative power and ineffective, to the extent of the inconsistency, by virtue of Section 10(a) and 11(1) of the Constitution. Kapi J, as he then was, explained why that is so in Minister for Lands v William Robert Frame [1980] PNGLR 433:

The legislative power is vested in the National Parliament (s. 100 of the Constitution). This power, however, is made subject to the other provisions of the Constitution. Where restrictions or limitations are placed by the Constitution, the Parliament may only legislate within these bounds; or where the Constitution provides for something, no Act of Parliament may be passed so as to be inconsistent with that provision. Where there is such inconsistency the Act, as to the inconsistency, is invalid and ineffective. This is because the Constitution is the Supreme Law.

132. Likewise, in Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265, Miles J, when discussing the role of the Supreme Court in determining the validity of laws made by the National Parliament, stated that there are two principles basic to the constitutional law of Papua New Guinea:

The first principle is that the powers of the National Parliament are limited by the Constitution itself. The Constitution s. 11(1) provides that the Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and, subject to the Constitution, s. 10, (construction of written laws), all acts (whether legislative executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective. …

The second basic principle is that where the National Parliament has exceeded its powers, then the Supreme Court is entitled to say so.

133. The cases are legion in which the Supreme Court has struck down legislation for being inconsistent with the Constitution. For example:

•	SCR No 1 of 1976 (P); Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537, Frost CJ, Prentice DCJ, Kearney J: Section 131 of the District Courts Act, which allowed simple offences to be tried in the absence of the defendant, was held to be inconsistent with Constitution Section 37(5) (protection of the law), which provides generally that the trial of an accused person shall not take place in their absence; 

•	Enforcement of Rights Pursuant Constitution S57; Application by Karingu [1988-89] PNGLR 276, Kapi DCJ, Bredmeyer J, Amet J, Los J, Hinchliffe J: the Lawyers Act, Section 9, which compelled all lawyers to join the Law Society contravened Constitution, Section 47 (freedom of assembly and association), which gives every person the right to belong or not belong to industrial organisations or other associations;

•	SCR No 2 of 1990; Re interpretation and application of Constitution s37(4)(a), and Sections 327 and 333 of the Income Tax Act [1991] PNGLR 211, Kidu CJ, Kapi DCJ, Amet J, Hinchliffe J, Salika J: Sections 327 and 333 of the Income Tax Act 1959, which allowed taxation prosecutions to be commenced by writ of summons in accordance with the usual practice and procedure of the National Court in civil cases and an averment to be evidence, was inconsistent with the Constitution Sections 37(3) (right to a fair hearing); 37(4)(a) (the presumption of innocence) and 37(10) (right of an accused person to be a witness against himself);

•	The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1, Kidu CJ, Kapi DCJ, Amet J, Woods J, Barnett J: the Television (Prohibition and Control) Act 1986, which prohibited television broadcasting until 31 January 1988, which restricted exercise of basic rights under Constitution Section 46 (freedom of expression), failed to comply with the requirements of Constitution, Section 38 (general qualifications on qualified rights) and was therefore invalid and of no effect;

•	Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuant to Constitution Section 19 by Morobe Provincial Government for and on behalf of The Morobe Provincial Executive Council (2002) SC693, Amet CJ, Salika J, Kandakasi J: the VAT Act had no constitutional foundation and is therefore invalid and of no effect.

134. To ascertain whether there is an inconsistency, we will first consider the preconditions to the presentation of an indictment under Section 526. They are:

•	a court of summary jurisdiction has refused to commit a person for trial on an indictable offence;

•	the Public Prosecutor has considered the evidence contained in the depositions taken before the court (and any other relevant evidence);

•	the Public Prosecutor has reduced into writing in an indictment a charge of any offence that the evidence appears to warrant.

135. Once those pre-conditions exist, the Public Prosecutor or a State Prosecutor may present the indictment to the National Court.

136. It is significant that the power to present an indictment is not unfettered. The Public Prosecutor cannot (as was the case prior to the enactment of Section 526 in its present form) present an indictment without there first being a committal proceeding. There must be a proceeding and there must be either:

•	a decision to commit (in which case the Public Prosecutor may present an indictment or decline to lay a charge, under Section 525); or

•	a refusal to commit (in which case the Public Prosecutor may present an indictment under Section 526).

137. Section 526 does not authorise the Public Prosecutor to not comply with the decision to refuse to commit. It authorises him to consider the evidence contained in the depositions taken before the court (and any other relevant evidence) in light of the refusal and prepare an appropriate indictment. By doing so he gives effect to the District Court’s decision.

138. We do not discern any element of contempt or disobedience or disrespect of the District Court’s decision when the Public Prosecutor exercises the power in Section 526. What the District Court’s decision entails is the committal magistrate’s opinion that the evidence is not sufficient to put the defendant on trial. The decision is not that ‘no indictment as to the subject matter of the information shall be presented against the defendant’. The District Courts Act does not exclude an alternative way of presenting an indictment. It does not say ‘the only way an indictment can be presented is after a decision of the District Court to commit the defendant for trial’.

139. We therefore consider that Section 526 can be read harmoniously with Section 155(6).

140. Assuming for the sake of the argument, however, that Section 526 allows the Public Prosecutor not to comply with the District Court’s decision and not to give it effect, it is significant that the duty of the Public Prosecutor (and every other person in the country) under Section 155(6) is not expressed as an absolute, inviolable one. Section 155(6) does not expressly prohibit the Parliament from authorising or sanctioning non-compliance with a court decision. It does not on its terms impose a restraint on the legislative power of the Parliament.

141. Moreover, Section 155(6) must be read subject to and in the context of other provisions of the Constitution, particularly Sections 176 and 177. 142. These provisions establish the office of the Public Prosecutor and provide for the functions of the office, one of the most important of which is "to control the exercise and performance of the prosecution function … before the Supreme Court and the National Court". The Public Prosecutor (Office and Functions) Act fleshes out that function. Section 526 gives effect to it. It facilitates the exercise and performance of the prosecution function. It allows the Public Prosecutor to control it. It allows the Public Prosecutor to decide what cases are prosecuted in the National Court.

143. This interpretation is consistent with the role of the Public Prosecutor as an independent constitutional office-holder, free of direction and control by any person or authority, particularly the National Executive.

144. The Public Prosecutor is appointed by an independent constitutional institution, the Judicial and Legal Services Commission. The Public Prosecutor cannot be removed from office except for inability, misbehaviour or misconduct in office, by or in accordance with the recommendation of an independent and impartial tribunal.

145. Other provisions of Part IX of the Constitution (constitutional office-holders and constitutional institutions) and the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders and the Organic Law on Certain Constitutional Office-holders further guarantee the independence of the Public Prosecutor and protect the holder of the office from outside influences.

146. Constitutional office-holders in Papua New Guinea stand in a unique position in the structure of government. (See Constitutional Reference No. 1 of 1978 (s. 19) [1978] PNGLR 345, Supreme Court, Prentice CJ, Pritchard J, Wilson J; and generally, A J Regan, O Jessep and E Kwa, Twenty Years of the Papua New Guinea Constitution, Lawbook Co ©2001, A J Regan, Chapter 15: "Protection of the Independence of Constitutional Office-holders", pp 233-252). 

147. They are defined by Section 221 of the Constitution to be only the following office-holders:

•	Judges (of which there are presently 20);
•	Public Prosecutor and the Public Solicitor (2);
•	Chief Magistrate (1);
•	members of the Ombudsman Commission (3);
•	Electoral Commissioner (1);
•	Clerk of the Parliament (1);
•	members of the Public Services Commission (3);
•	Auditor-General (1);
•	the holder of any other office declared by an Organic Law or an Act of the Parliament to be a constitutional office.

148. Constitutional office-holders are few in number (presently 32) but great in power and independence and the Constitution demands that their critical roles be recognised and protected.

149. The Supreme Court has affirmed the independence of the Public Prosecutor in a number of cases. For example:

•	Ex parte Smedley [1978] PNGLR 156, National Court, Pritchard J: the National Court should respect the constitutional office of the Public Prosecutor to the extent that where criminal charges are pending against a person and the Public Prosecutor in the exercise of his constitutional responsibility objects to that person leaving PNG, any application that he be permitted to do so should be refused.

•	SCR No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337, Supreme Court, Kidu CJ, Kapi DCJ, Amet J, Los J, Barnett J: Section 52(5) of the Criminal Code, which prohibited prosecution of offences relating to quasi-military organisations without the written consent of the Prime Minister was inconsistent with Section 176(3) of the Constitution: in the performance of his functions, including controlling the exercise and performance of the prosecution function, the Public Prosecutor is not subject to direction or control by any person or authority subject to two exceptions, viz namely, Section 176(3)(b) (the Head of State acting with, and in accordance with the advice of the National Executive Council may give directions on any matter that might prejudice the security, defence or international relations of Papua New Guinea) and Schedule 1.19 which provides for regulation under a Constitutional Law or an Act of the Parliament of the exercise or performance of the powers, functions, duties or responsibilities of the Public Prosecutor, and neither exception applied;

•	The State v Jack Gola and Mopana Aure [1990] PNGLR 206, National Court, Brunton J: the Constitution insulates the Public Prosecutor from interference in prosecutions, so much so that a trial Judge has a limited role in questioning the Public Prosecutor or a State Prosecutor on what charges are laid and what plea will be accepted.

•	SCR No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239 (Kapi DCJ, Ellis J, Doherty J): the court refused to grant leave under Section 155(2)(b) to the Principal Legal Adviser to review the decision of the National Court to overrule a committal decision of the District Court, saying amongst other things that he lacked standing as the prosecuting function of the State before the National Court was vested in the Public Prosecutor, who is free of direction and control.

•	The State v Michael Nama and Others (1999) N1884, National Court, Kirriwom J: in overruling an objection to an indictment, his Honour stated:

… in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor … is not subject to any direction or control. He has a very wide discretion on what charge or charges to proceed with and what charges he discontinues. A Committal Court’s rulings do not restrict the powers of the Public Prosecutor which originate from the Constitution. It has been the practice and continues to be so that following committal the accused is indicted with the offence that the evidence in the depositions support – see s. 525 of the Criminal Code or the one negotiated and obtained for purposes of guilty pleas … The original charges do not determine the eventual charge in the indictment. 

•	The State v John Koma (2002) N2176, National Court, Davani J: in overruling an objection to an indictment, which the defence counsel submitted contained charges over and above those for which the accused had been committed for trial, her Honour held that the Criminal Code, Section 525 [and note that Section 526 is likewise] allows the Public Prosecutor to consider the evidence then, at his discretion, indict on a charge of any offence that the evidence appears to him to warrant. 

•	The State v Jimmy Mostata Maladina (2004) N2530, National Court, Davani J: her Honour refused an application to stay the criminal prosecution of the applicant in the National Court, as the prosecution of offences in the National Court and the exercise and performance of the prosecution function is placed in the Public Prosecutor by Section 177 of the Constitution; and in the performance of such function, the Public Prosecutor is not subject to direction or control by any person or authority, the only exception being under Section 176(3)(b), where the Head of State, on the advice of the NEC gives a direction to the Public Prosecutor. 

150. We cannot therefore detect any direct or indirect inconsistency between Section 155(6) of the Constitution and Section 526 of the Criminal Code.

151. As for the policy basis of Section 526 we appreciate the argument that if that section were over-used, in a non-discriminating way, there is the possibility of abuse of power by the Public Prosecutor. However, if Section 526 were struck down and the Public Prosecutor no longer had the power to indict after the District Court had refused to commit a person for trial, an important check and balance on the exercise of power by the District Court would be removed. 

152. Section 526 is not giving the Public Prosecutor of Papua New Guinea an unprecedented or unparalleled power, not enjoyed by directors of public prosecutions or attorneys-general in other jurisdictions. Section 526 is modelled on the ex officio indictment procedure available under the Queensland Criminal Code. Its’ historical roots are long indeed. True, there has been judicial disquiet expressed about the indiscriminate use of such indictments, eg in Barton v R (1980) 32 ALR 440, High Court of Australia; R v Webb [1960] Qd R (Supreme Court of Queensland). However, it has long been held that the discharge of an accused by a committal court is not a bar to presentation of an ex officio indictment for the same offence (eg R v McConnon [1955] Tas SR 1, Supreme Court of Tasmania; R v Torrtomano [1981] VR 31, Supreme Court of Victoria). 

153. The applicant argues that there is always the right of appeal under Section 219 of the District Courts Act. But Section 219 only allows the Secretary for Justice to appeal, and makes hearing of the appeal subject to the opinion of the National Court that the matter is of such public importance that leave to appeal be granted. This appears to cut across the constitutional independence and, we reiterate, one of the two main functions of the Public Prosecutor: to control the exercise and performance of the prosecution function. The Public Prosecutor cannot do that when his decision as to which matters to prosecute is subject to the discretion of the Secretary for Justice (whether to seek leave to appeal) and of the National Court (whether to grant leave to appeal).

Conclusion as to argument No 1

154. There is no inconsistency between Section 526 of the Criminal Code and Section 155(6) of the Constitution.

ARGUMENT NO 2: USE OF SECTION 526 WAS UNLAWFUL AND AN ABUSE OF PROCESS

Applicant’s submission

155. This is an alternative to argument No 1. The applicant submits that if Section 526 of the Criminal Code is not struck down for being unconstitutional, the Public Prosecutor’s use of it in this case was unlawful and an abuse of process for two reasons:

(a)	the Public Prosecutor had not first exhausted the State’s rights of appeal and review, as required by Section 155(6) of the Constitution;

(b)	the District Court had not refused to commit the applicant for trial.

156. They are claimed to be different ways in which the Public Prosecutor has breached the duty imposed by Section 155(6); thus exposing him to the risk of sanction under Section 23 of the Constitution for breaching a duty imposed by a Constitutional Law.

Respondent’s submission

157. The respondent does not take issue with the proposition that the State, through the Secretary for Justice, could have sought leave to appeal against the District Court’s decision of 21 September 2004, not to commit the applicant for trial. He concedes the fact that the State did not seek leave to appeal and in that sense did not exhaust its avenues of redress before he presented the Section 526 indictment. However, he submits that the rights of appeal and review did not have to be exhausted before exercising the power under Section 526.

158. As to the argument that there was no refusal to commit in this case, the respondent, Mr Manek, suggested that the applicant’s counsel, Mr Sheppard, was ‘just playing around with words’ as there was in substance a refusal to commit.

Points of issue

159. The applicant and the respondent agree that the State, through the Secretary for Justice, could have sought leave to appeal against the District Court’s decision of 21 September 2004, not to commit the applicant for trial, but disagree on the other issues, which are:

•	Did the right of appeal and review have to be exhausted prior to the Section 526 indictment being presented?

•	Was there no refusal to commit in this case?

160. The applicant argues that both issues should be answered ‘yes’. The Public Prosecutor argues that both should be answered ‘no’.

Did the right of appeal and review have to be first exhausted?

161. We have already concluded that Section 526 of the Criminal Code is a valid exercise of legislative power by the National Parliament. It is not inconsistent with Section 155(6) of the Constitution. It is not unconstitutional. The only preconditions to the exercise of power Section 526 itself imposes are those in Section 526(1): refusal to commit; consideration of the evidence; and reduction of the charge into an indictment. Section 526 does not require the Public Prosecutor to first exhaust his right of appeal or power of review.

162. The applicant argues that such a requirement emerges from Section 155(6) of the Constitution. However, the argument must fail for similar reasons we gave for rejecting the argument that Section 526 was unconstitutional. Section 526 does not authorise the Public Prosecutor to not comply with the District Court’s decision to refuse to commit. Nor does it allow him not to give effect to the decision. To the extent that it does allow him not to comply or not to give effect to the decision, the Public Prosecutor’s exercise of power is not subject to exhaustion of appeal rights or review powers. Section 155(6) does not expressly prohibit the Parliament from authorising or sanctioning non-compliance with or not giving effect to a court decision other than by appeal or review.

163. The interpretation advanced by the applicant would mean that if the District Court refused to commit a person for trial, the Public Prosecutor would have to prevail upon the Secretary for Justice to seek and obtain leave from the National Court to appeal against the refusal (Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26, National Court, Andrew J). The Public Prosecutor would then wait until the appeal was resolved. If it were dismissed, he would present an indictment to the same court that had just dismissed an appeal against the refusal to commit. This would be a bizarre state of affairs. It would be an unworkable scenario, not one that the Supreme Court should promote. It would further derogate the constitutional independence of the Public Prosecutor.

164. What is at stake in this case is not the guilt or innocence of the applicant and his necessary exposure to criminal sanctions but the question of whether he should have to answer an indictment and his potential exposure to criminal sanctions. If his application for review is refused and he does eventually have to answer the indictment, he is still entitled to the full protection of the law under Section 37 of the Constitution. A person charged with an offence is entitled to be presumed innocent and must be given a fair trial. Sections 32(2) to 32(10) of the Constitution are the main provisions that give effect to those rights. They state:

(2)	Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3)	A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4)	A person charged with an offence—

(a)	shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b)	shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c)	shall be given adequate time and facilities for the preparation of his defence; and
(d)	shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e)	shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f)	shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5)	Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6)	Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7)	No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8)	No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

(9)	No person shall be tried for an offence for which he has been pardoned.

(10)	No person shall be compelled in the trial of an offence to be a witness against himself.

165. These rights are enforceable and every trial in the country must comply with the high standards of due process to which they give rise (Tom Longman Yaul v The State (2005) SC803, Supreme Court, Salika J, Mogish J, Cannings J).

166. A person convicted and sentenced of a criminal offence has another set of rights to protect them. They are mainly conferred by Sections 32(15) to (21) of the Constitution, for example: 

(15)	Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

167. Our consideration of those constitutional safeguards lends support for our conclusion that no, the Public Prosecutor does not have to exhaust his rights of appeal or powers of review before presenting an indictment under Section 526.

Was there no refusal to commit in this case?

168. The applicant’s argument is that the District Court’s decision was couched in the following terms:

•	there was ‘insufficient evidence’ against the applicant; 
•	he ‘should not be committed’; 
•	he was ‘discharged’; and 
•	the information against him was ‘dismissed’. 

169. Nowhere in the record of the District Court does it say that it "refused to commit" the applicant to stand trial – those being the critical words in Section 526(1) of the Criminal Code. There has been no refusal to commit. Therefore the first precondition to the exercise of the power to present an indictment under Section 526(2) has not been satisfied, and the indictment is a nullity.

170. This is a straightforward issue to resolve. We agree with Mr Manek that Mr Sheppard’s submission was focussed on the form of the District Court decision when what was much more important was its substance. In substance there was a refusal to commit. The District Court formed the opinion that the evidence was not sufficient to put the applicant on trial. By recording its decision in those words the District Court was being faithful to the wording of Section 100(2) of the District Courts Act. The Act does not provide for such a decision to be recorded as a refusal to commit.

171. We conclude, no, there was a refusal to commit.

Conclusion as to argument No 2

172. There was no improper exercise of power by the Public Prosecutor and no abuse of process. The Public Prosecutor did not breach the duty imposed upon him by Section 155(6) of the Constitution. He did not expose himself to sanctions under Section 23 of the Constitution.

ARGUMENT NO 3: DISTRICT COURT DECISION WAS FINAL, BEING AN ACQUITTAL AND DISMISSAL

Applicant’s submission

173. This is an alternative to argument Nos 1 and 2. The applicant argues that the District Court’s decision not to commit him for trial was final, and had effect as an acquittal or dismissal. The Public Prosecutor could not present an indictment against him on the same charges unless he was permitted to do so by an appeal or review process. 

174. The applicant advances four propositions in support of the argument. First, the District Court dismissed the information (ie the charge against the applicant). Secondly, the issuance by the Magistrate of a certificate under Section 162 of the Act prevented any proceeding in the National Court for the same matter. Thirdly, Section 261 of the Act confirms that the District Court has power to dismiss a charge for an indictable offence. Finally, as there was no appeal or review of the District Court’s decision, the presentation of the Section 526 indictment before the National Court was a fresh prosecution contrary to the autrefois acquit principle enshrined in Section 37(8) of the Constitution. 

Respondent’s submission

175. The respondent takes issue with all the applicant’s propositions, which he argues are based on a misconception of the nature of committal proceedings.

Points of issue

176. They are:

•	Did the District Court dismiss the information?

•	Did issuance of the Section 162 certificate prevent proceedings in the National Court?

•	Does Section 261 support the proposition that the District Court dismissed the information?

•	Is the applicant protected by Section 37(8) of the Constitution?

177. The applicant argues that all issues should be answered ‘yes’. The Public Prosecutor argues that all should be answered ‘no’.

Did the District Court dismiss the information?

178. We agree with the respondent that the applicant’s submission fundamentally misconceives the nature of committal proceedings before the District Court. The purpose of the proceedings, as emphasised by Mogish J, is not to determine the guilt or innocence of the defendant. The purpose is to determine whether in the opinion of the presiding magistrate there is sufficient evidence for the defendant to be committed to trial. If the magistrate’s opinion is that the evidence is insufficient, there is no committal and the defendant, if he is in custody, is discharged from custody. That is the end of the matter unless there is an appeal under Section 219, initiated by the Secretary for Justice, or the Public Prosecutor invokes Section 526 of the Criminal Code and presents an indictment to the National Court. 

179. In the present case a certificate was issued by the presiding magistrate, which stated:

This is to certify that, on 21 September 2004, information … against Herman Joseph Leahy … was this day considered by the Committal Court in Waigani and was dismissed.

180. Saying that something has happened does not mean that it has, in fact or law, happened. As Greville-Smith J put it in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510: 

The approach of the Queen in Alice in Wonderland — "Words mean what I want them to mean" — is not one open to this Court.

181. Neither is it an approach open to the District Court. Or the applicant.

182. No, the District Court did not dismiss the information.

Did issuance of the Section 162 certificate prevent proceedings in the National Court?

183. The Section 162 certificate issuance was issued without lawful authority. It was, to be blunt, not worth the paper it was written on. It is a nullity and incapable of being a bar to any other court proceedings.

184. No, the certificate did not prevent proceedings in the National Court.

Does Section 261 support the proposition that the District Court dismissed the information?

185. Section 261 states:

This Act does not empower a Court to adjudge the payment by the complainant to the defendant of costs on an adjudication of dismissal of a charge of an indictable offence.

186. The applicant argues that this section contemplates that the District Court can dismiss a charge of an indictable offence. Well, yes, it can, but only in limited cases.

187. Subdivision VI.1.I (summary trial for certain indictable offences) of the Criminal Code consists of Sections 420, 421 and 421A. It allows certain indictable offences to be dealt with summarily by a District Court constituted by a Grade Five (5) Magistrate. Those offences (more than 70) are specified in Schedule 2 of the Criminal Code Act. The procedure for hearing and determining such offences is prescribed by Part VII (proceedings in case of simple offences and indictable offence triable summarily) of the District Courts Act.

188. Neither of the offences the applicant was charged with (misappropriation under Section 383A and conspiracy to defraud under Section 407(1)(b)) fall within Schedule 2. The District Court proceedings were conducted as committal proceedings under Part VI (proceedings in case of indictable offences) of the District Courts Act. Those proceedings could in no way be regarded as a hearing under Part VII.

189. No, Section 261 does not support the proposition that the District Court dismissed the information.

Is the applicant protected by Section 37(8) of the Constitution?

190. The District Court did not dismiss the information or charge against the applicant. The applicant was not tried. He was not acquitted. No question of double jeopardy or autrefois acquit arises. 

191. No, he is not protected by Section 37(8) of the Constitution.

Conclusion as to argument No 3

191. The argument is rejected.

CONCLUSION

192. None of the applicant’s arguments have succeeded, so none of the grounds of review are upheld. There is no basis for making the orders sought by the applicant. The application for review will be dismissed.

COSTS

193. These proceedings resulted in one of the applicant’s applications (for leave to seek review) being granted over the opposition of the respondent, while his substantive application was refused. In the circumstances we will hear the parties before making an order for costs.

JUDGMENT

194. The Supreme Court will therefore order that:

1. the application of Herman Joseph Leahy for leave to seek review of the judicial act of the National Court at Waigani on 8 June 2005, dismissing an objection to, and accepting, a Section 526 indictment presented against him by the Public Prosecutor, is granted; and

2. the application of Herman Joseph Leahy for review of that judicial act is dismissed;

3. the question of costs is reserved, pending further argument.

Judgment accordingly.

Young & Williams: Lawyers for the applicant
Public Prosecutor: Lawyer for the respondent