SC2248

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRES NO. 1 OF 2016

RESERVATION PURSUANT TO SECTION 21 OF THE SUPREME COURT ACT

THE STATE

-V-

JAMES PONEIAP JONAH

Waigani: Gavara-Nanu ACJ, Cannings J, David J, Kariko J, Murray J
2022: 24th May

PRACTICE AND PROCEDURE – competency of proceedings filed as a reservation under Supreme Court Act, s 21 – whether the case stated is compliant with Supreme Court Rules, Order 8(3) and Form 12 – requirements in mandatory terms – jurisdictional basis of the reservation must be pleaded 

At the end of a criminal trial on 19 August 2013, the trial judge, pursuant to s 21 of the Supreme Court Act, Chapter 37 referred certain questions of law to the Supreme Court for its opinion. The following procedural issues arose before the Court from the reservation, which the Court decided to determine first: (a) whether the jurisdictional basis for the reservation was pleaded in the reservation and (b) whether the reservation was compliant with the relevant mandatory requirements of the Supreme Court Rules to properly invoke the jurisdiction of the Court. 

Held:

(1)	Section 21of the Supreme Court Act, confers power on the National Court to reserve points of law from a criminal trial to the Supreme Court for its opinion. 

(2)	Order 8 of the Supreme Court Rules governs reservations made under s 21 of the Supreme Court Act; and such reservations must strictly comply with the mandatory requirements of Order 8 to properly invoke the jurisdiction of the Court.

(3)	Failure for a reservation to comply with the mandatory requirements of Order 8 of the Rules, one of which is for a reservation to be in accordance with Form 12, is fatal.
  
(4)	In this case the trial judge failed to plead the jurisdictional basis for the reservation and the reservation itself is not in accordance with Form 12. 

(5)	The reservation not having complied with the mandatory requirements of Order 8 of the Rules has failed to properly invoke the jurisdiction of the Court and is incompetent. The reservation must therefore be dismissed. 

Case Cited:

Amet v. Yama [2010] PNGLR 87
Henry Yakam & Or v. Dr Stuart Hamilton & Ors (1998) SC533
The State v. Transferees (2016) SC1488
Tsang v. Credit Corporation [1993] PNGLR 112

Legislation:

Supreme Court Act, Chapter 37
Supreme Court Rules

Counsel:

Mr L Mamu, for the Accused
Ms H Roalakona, for the State

24th May, 2022

1.	BY THE COURT: On 24 May 2022, we gave an ex tempore decision dismissing this proceeding, which purports to be a reservation of questions of law under s 21 of the Supreme Court Act, Chapter 37 for being incompetent.  We now publish reasons for our decision.

BRIEF BACKGROUND

2.	At the conclusion of a criminal trial in the National Court at Lorengau on 19 August 2013, the trial judge referred questions arising out of the trial to the Supreme Court to answer. 

3.	The trial concerned three counts of rape alleged against the accused James Poneiap Jonah who the State charged under s 347 of the Criminal Code alleging he sexually penetrated (had sexual intercourse) with an adult female on three different occasions. The prosecution case was that the female suffered from mental illness and due to this, she was not capable of understanding the exact nature of the acts of sexual intercourse. By virtue of s 347A(f) of the Criminal Code therefore, she did not consent to the acts.  

4.	The trial judge dismissed the charges upon a no case submission and in doing so, his Honour posed several questions to the Supreme Court for its opinion. 

COMPETENCY 

5.	In the exercise of its inherent powers, the Court may in any proceeding before it, question whether its jurisdiction has been validly invoked (Amet v. Yama [2010] PNGLR 87). 

6.	Appearing for the accused, the Public Solicitor introduced his submissions by informing the Court that this is a reservation made pursuant to s 21(1) of the Supreme Court Act. The court then queried whether the Court’s jurisdiction had been properly invoked, and in particular: 

(a)	Whether the relevant provisions of the Supreme Court Rules under Order 8 (Reservation of cases or points of law), had been complied with; and 
(b)	Whether the jurisdictional basis for the reservation had been pleaded in the reservation by the trial judge.

7.	The Court heard from both counsel who properly answered both questions in the negative.
	
SUPREME COURT ACT 

8.	Pursuant to s 21(1) of the Supreme Court Act, the National Court may reserve questions on points of law arising from a criminal trial. The provision reads: 

21.	RESERVATION OF POINTS OF LAW.
(1)	When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.
(Emphasis added)
9.	The stated case, signed by the National Court judge and setting out the question of law reserved and the special circumstances on which it arose, shall be transmitted to the Supreme Court; s 21(3).

10.	Any question reserved shall be heard and determined by the Supreme Court after argument for and on behalf of the prosecution. The accused or convicted person may argue the question if he so wishes; s 21(4) & (5).

11.	The National Court may also reserve questions on points of law when exercising jurisdictions other than criminal jurisdiction; s 15(1).

SUPREME COURT RULES

12.	Order 8 of the Supreme Court Rules governs reservations of cases or points of law and prescribes the procedural requirements for reservations made under s15 or s 21 of the Supreme Court Act. 

13.	Order 8 Rules 1 and 2 state that the referring Judge or in his absence another Judge, shall issue directions for drafting of the questions reserved and preparation of the documents for the court’s use. 

14.	Order 8 Rule 3 reads:

3.	The case to be stated shall— 

(a)	be entitled under the section of the Act by which it is made, the names of parties and the title of the proceedings from which the question arose; and 
(b) 	shall state the question; and 
(c) 	set forth such facts only as are relevant to raise the question of law reserved; and 
(d) 	if any question turns on the form of the pleadings, so much of the pleadings shall be set out as raises the question; and
(e) 	state whether -	
(i)	a judgment on the conviction was pronounced or respited, or was postponed; 
(ii) 	the convicted person was committed to prison or admitted to bail on recognizance to render himself in execution or receive judgment; and 
(f) 	be in accordance with Form 12; and 
(g) 	be signed by the Judge. 

	(Emphasis added)

15.	The remaining Rules in Order 8 provide as follows:

Rule 4 - the judge stating the case shall transmit it to the Registrar who shall compile an index to the Reservation Book within 40 days of receipt of the reservation. 

Rule 5 – the judge who has stated the reservation may amend the statement of the case before it is argued. 

Rule 6 - the Registrar shall serve a copy of the Reservation Book, if the reservation is under s 21 of the Supreme Court Act, on the Public Prosecutor, the accused or his lawyer.

16.	Form 12 is set out as follows: 

	Form 12 									O 8 r 3(f) 
GENERAL FORM OF RESERVATION
	
	IN THE SUPREME COURT 	SC Reservation No . . . of 20. . . 
	OF JUSTICE 	
		Reservation (pursuant to s 15 or 21 of the Supreme Court Act where applicable) 
		To be entitled as in proceedings from which question arose 

RESERVATION

1.	THIS RESERVATION is made for an opinion on (the case or point of law). 
2.	THIS Reservation arises (state briefly such facts or pleadings as necessary and circumstances in which question arises). 
3.	 State matters required by Order 8 rule 3(e). 
4.	THE QUESTION IS (to be stated). 

Dated: 			Signed (Judge) 

NOTICE: (Form 18)

THE RESERVATION BOOK

17.	In the case before us, the documents contained in the Reservation Book that are relevant to this discussion are:

(a)	 The written judgement of the court dated 19 August 2013 on the no-case application, which concludes with 4 questions posed to the Supreme Court for its opinion (the Judgement). 
(b)	The Order of the trial judge issued 19 August 2013 (the Order).
(c)	Minute dated 10 September 2013 from the trial judge addressed to the then Chief Justice (the Minute).   

18.	In the Judgment, the trial judge stated after acquitting the accused: 

	In doing so I refer the following questions to the Supreme Court for its opinion:

1.	Is it an offence under the Criminal Code Act or any other statute for a person to sexually penetrate another person believed to be or suspected to of being of unsound mind or intellectually retarded?
2.	Does s 347A(f) apply to a person charged with an offence under s 347(1) and (2) without there being a substantive offence specifically relating to persons with mental and intellectual disabilities for purposes of the criminal law? 
3.	Is the accused obliged to answer a criminal charge where at the close of the prosecution case there is: 
a.	No oral evidence from the alleged victim of the offence?
b.	No evidence of complaint of criminal nature?
c.	No oral evidence of eye-witness to the alleged crime?
4.	Is it miscarriage of justice where the Court stops the trial of the accused after the close of the prosecution case where the only evidence against the accused is his admission in the record of interview, which admissions are equivocal and already in evidence by consent of the defense?

19.	Term 3 of the Order referred the exact same questions to the Supreme Court. 

20.	The Minute apparently enclosed the Order, the Judgement and documents from the trial court file and by this, the trial judge briefed the Chief Justice of the case and his decision to pose the questions to the Supreme Court as a “case stated”. 

COMPLIANCE WITH THE RULES

21.	Order 8 prescribes the proper process by which a reservation under s 15 or 21 of the Supreme Court Act is brought to the Supreme Court. The terms of the Rule are in mandatory terms. 

22.	It is undisputed that the reservation has not complied with this Rule, particularly Rule 3(f) which requires the reservation to be in accordance with. Form 12. This Form contains provisions obviously intended to meet the other requirements listed in Order 8 Rule 3. No Form 12 was prepared and filed in the present case. This was not a mere technical requirement, the need for the reservation to be in accordance with Form 12 went to the jurisdiction of the Court and Order 8 Rule 3 made it mandatory for the reservation to comply with Form 12. See, Tsang v. Credit Corporation [1993] PNGLR 112 and Henzy Yakam and Or v. Dr Stuart Hamilton & Ors (1998) SC533.

23.	Neither the Judgment, the Order or the Minute, in which the questions for the purported reservation were pleaded could possibly be construed as satisfying the requirements of Rule 3, and while neither counsel argued substantial compliance, that submission would flatly fail. 

24.	This Court has on many occasions dismissed proceedings and applications as incompetent for non-compliance with mandatory provisions of the Rules. 

25.	The Supreme Court in considering an application for leave to make a slip rule application in The State v. Transferees (2016) SC1488, stated at [9] that: 

… the requirements under these rule(s) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetence and the Court lacks jurisdiction to hear it: Agiru v. Kaiabe [2015] PGSC2; SC 1412. 
(Emphasis added)

26.	The Court continued at [10]:

… The need for a slip rule application to conform to Form 4 under Order 13 r 15, as stated earlier is a mandatory requirement and therefore it is a pivotal consideration on the issue of the competency of such an application. … if the application did not conform to Form 4, the application would be incompetent of the basis of want of form: Barawa Ltd v. Mamalau [2013] PGSC 50; SC1301 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea (2014) SC1392….
(Emphasis added)

27.	We adopt and apply the relevant principles expressed in the cited judgment, and we accordingly determine this reservation to be incompetent. 

JURISDICTIONAL BASIS

28.	The jurisdiction of the Court may be found in law, a statute, rules of the court, or a cause of action, and the Supreme Court must be able to identify from the documents filed in respect of a matter before it (whether substantive or interlocutory), the jurisdictional basis for it coming to the Court. 

29.	Nearly all originating documents before this Court be they appeals, reviews, references, reservations, applications, and motions, require the filing of a Form prescribed by the Supreme Court Rules. Most Forms already contain a reference to the jurisdictional basis for the matter, while some require the jurisdictional basis to be stated when completing the document.

30.	Apart from want of the relevant Form (Form 12) in the present case, the principal documents relied upon by trial judge in transmitting the reservation to the Supreme Court (namely the Judgment, the Order, and the Minute), make no reference to the jurisdictional basis of the reservation, namely s 21 of the Supreme Court Act.    

CONCLUSION

31.	As there has been obvious non-compliance with the relevant Rules, and a complete failure to plead the jurisdictional basis for the reservation, the jurisdiction of the Court has not been properly invoked. The reservation is incompetent and must be dismissed. 

32.	Given the nature of the decision we have reached, it is not necessary for the Court to consider the merits. 
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused