SC2352

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 9 OF 2023

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

APPLICATION BY JURGEN RUH

Waigani: Cannings J
2023: 13th, 14th February

REVIEW – application for leave to apply for review under Constitution, s 155(2)(b) – decision of National Court to refuse motion to quash indictment – whether leave should be granted to apply for review of interlocutory decision of National Court in criminal proceedings. 

The applicant applied for leave to apply for review under s 155(2)(b) of the Constitution of a decision of the National Court in a criminal trial, in which he is the accused, to refuse his motion to quash the indictment. On the day the application for leave was made, the trial in the National Court was continuing; it had reached the stage where the evidence was closed and the Court had adjourned for submissions. The applicant, on the same day he filed his application for leave, filed an application for a stay of the National Court trial pending determination of the review. He indicated that the stay application would be made immediately, if leave was granted. The grounds on which the applicant sought leave were that: he was being unlawfully prosecuted in his personal capacity, when it was the company of which he is a shareholder and director that ought to have been charged; he has never been arrested or charged with the offences that are now the subject of the indictment; there has been a miscarriage of justice in the National Court due to the trial judge’s refusal to hear the motion under s 558 of the Criminal Code prior to arraignment; and generally he has been denied the full protection of the law under s 37 of the Constitution, and in particular the right under s 37(4)(b) to be informed promptly in a language he understands and in detail of the nature of the offence with which he is charged. 

Held: 

(1)	The decision of the National Court to refuse the motion to quash the indictment is reviewable by the Supreme Court under s 155(2)(b) of the Constitution, with leave, there being no right of appeal and no other way the applicant may bring the matter to the Supreme Court.

(2)	In deciding whether leave should be granted, the applicant must show there is an important point of law to be determined, which is not without merit. 

(3)	Furthermore, where an applicant is applying for review of an interlocutory decision of the National Court in criminal proceedings, there is a heavy onus to show a strongly arguable case that the National Court has no jurisdiction. 

(4)	The proposed grounds of review, though appearing to raise important points of law, were unmeritorious as: it was unclear that the applicant was being unlawfully prosecuted in his personal capacity; it was incorrect to say that he had not been charged as he had been committed by the District Court for trial in the National Court and the fact that he has never been arrested is inconsequential and not in breach of any mandatory criminal procedure requiring an accused to be arrested before being committed for trial or tried in the National Court; the trial judge’s refusal to hear the motion under s 558 of the Criminal Code prior to arraignment may have been a procedural irregularity but gives rise to an issue that can be addressed as a ground of appeal in the event that the applicant is convicted; and there is no case that the applicant has been denied the full protection of the law under s 37 of the Constitution. 

(5)	Furthermore, there was no arguable case that the National Court lacked jurisdiction. Therefore, the application for review was dismissed. 

Cases Cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Eremas Wartoto v The State [2015] 1 PNGLR 26
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222
Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433

Counsel

J Nalawaku, for the Applicant 
A Mana, for the Respondent 

14th February, 2023

1.      CANNINGS J: The applicant, Jurgen Ruh, applies for leave to apply for review under s 155(2)(b) of the Constitution of a decision of the National Court in a criminal trial, in which he is the accused, to refuse his motion to quash the indictment. 

2.     The criminal trial is in the National Court in Kokopo. The proceedings are described as CR (FC) 189-192 of 2021, Bank of Papua New Guinea v Jurgen Ruh. The prosecution is being conducted by the Bank of Papua New Guinea (the Central Bank) with the approval of the Public Prosecutor. The trial judge is Justice Pitpit. 

3.     The applicant is charged with three offences under ss 76, 77 and 78 of the Superannuation (General Provisions) Act 2000 relating to alleged breaches of an employer’s obligations under Part XIV of that Act to make contributions to an authorised superannuation fund in respect of their employees, to deduct contributions from the employees’ pay and to remit contributions and deductions to an authorised superannuation fund. The indictment presented against him, containing four charges, also includes one charge under s 33 of the Act, relating to the applicant allegedly providing false information to authorised officers of the Central Bank. 

4.     When the application for leave was made before me in the Supreme Court, the trial in the National Court was continuing; it had reached the stage where the evidence was closed and the Court had adjourned to today at 1.30 pm for submissions. 

5.     The applicant had, before the indictment was presented in July 2022, attempted to move a motion, filed by notice of motion on 12 July 2022, seeking orders that:

1.	the investigation of the applicant and the private prosecution that followed were in breach of s 81A of the Superannuation (General Provisions) Act and therefore unlawful;

2.	the information that was the basis of the District Court committal proceedings was defective; 

3.	the prosecution was a proscribed act for the purposes of s 41 of the Constitution and in breach of his right to the full protection of the law under s 37 of the Constitution;

4.	the prosecution is in breach of s 37(4)(b) of the Constitution and ss 3, 8 and 14 of the Arrest Act and therefore a nullity;

5.	the indictment is null and void pursuant to ss 37(1) and (2) of the Constitution and ss 526(1), 528(1)(a) and (b) of the Criminal Code;

6.	the prosecution conducted by Corrs Chambers Westgarth Lawyers is contrary to s 177(1)(a) of the Constitution and s4(1)(g) of the Public Prosecutor (Office and Functions) Act Chapter 338 and is void and unlawful;

7.	the private prosecution conducted by Corrs Chambers Westgarth Lawyers and the Bank of Papua New Guinea are proscribed acts within the meaning of s 41 of the Constitution;

8.	the indictment is calculated to prejudice him in his defence and is defective and ought to be quashed under s 558 of the Criminal Code; and 

9.	the information, the indictment and the charges against him are quashed and he is discharged. 

6.     The applicant states that the trial judge refused to hear the motion by which the above orders were sought and indicated that the issues could be raised at the trial, and the indictment was then presented. The applicant was arraigned and pleaded not guilty. That all happened in July 2022.

7.     The trial proper commenced in February 2023 and according to the applicant, another attempt was made to move the motion seeking the above orders. The applicant states that the trial judge heard only parts of the motion and then dismissed it entirely in an oral decision made on 7 February 2023.

8.     It is his Honour’s decision of 7 February 2023 that is the subject of this application for leave.  

9.      The applicant has also filed an application for a stay of the National Court trial pending determination of the review. His counsel, Mr Nalawaku, indicated that the stay application will be made immediately, if leave is granted. 

10.     The Bank of Papua New Guinea has not been named as respondent in the present Supreme Court proceedings, but it is the natural respondent and is to be so regarded, and I granted leave to Mr Mana, of  Corrs Chambers Westgarth Lawyers, to represent it. Unsurprisingly, the Bank opposes leave. Mr Mana submits that the form of the leave application is defective, that the trial process should not be interrupted and that the fact that the applicant has never been arrested (which is one of the main grounds on which leave is sought) is inconsequential. 

11.      I will address the question of the form later. I will focus first on the merits of the leave application.

THE LEAVE APPLICATION

12.      It is clear that there is no right of appeal under the Supreme Court Act or any other law against an interlocutory decision in criminal proceedings, such as the trial judge’s decision of 7 February 2023. However, the Supreme Court can review that decision under s 155(2)(b) of the Constitution, subject to the proviso that leave to do so is granted (Avia Aihi v The State [1981] PNGLR 81). 

13.     Section 155(2)(b) states:

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

14.     The criteria to be considered when hearing a leave application vary according to whether there is a right of appeal that has been lost or whether there is no right of appeal at all, such as in this case.

15.     Where there is no right of appeal at all, leave should be granted only if 
there is an important point of law to be determined, which is not without merit (Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433, Application by Herman Joseph Leahy (2006) SC855).

16.     Furthermore, there is an extra consideration that is relevant where an applicant is an accused person applying for leave to review an interlocutory decision of the National Court in criminal proceedings: there is a heavy onus to show a strongly arguable case that the National Court has no jurisdiction, due to the overwhelming public interest, reinforced by the Supreme Court in its seminal, five-Judge decision in Eremas Wartoto v The State [2015] 1 PNGLR 26,  in seeing that criminal trials are conducted from beginning to end without interruption, due to the right of an accused person to appeal against conviction and his right to apply for leave to appeal against sentence. 

DO THE GROUNDS HAVE MERIT?

17.     The grounds on which the applicant seeks leave are that: 

1.	he is being unlawfully prosecuted in his personal capacity, when it is the company of which he is a shareholder and director, Islands Salvage and Towage Ltd, that ought to have been charged; 

2.	he has never been arrested or charged with the offences that are now the subject of the indictment; 

3.	there has been a miscarriage of justice in the National Court due to the trial judge’s refusal to hear the motion under s 558 of the Criminal Code prior to arraignment; and 

4.	generally he has been denied the full protection of the law under s 37 of the Constitution, and in particular the right under s 37(4)(b) to be informed promptly in a language he understands and in detail of the nature of the offence with which he is charged. 

18.     In my view, those grounds, though appearing to raise important points of law, are unmeritorious for the following reasons.

19.     It is unclear that the applicant is being unlawfully prosecuted in his personal capacity as the definition of “employer” and “entity” in s 3 of the Superannuation (General Provisions) Act seem sufficiently broad to warrant prosecution of an individual director and shareholder of a company for offences that may have also been committed by the company.

20.     It is incorrect to say that the applicant has not been charged as he was committed by the District Court for trial in the National Court. And, though it appears to be a fact that he has never been arrested, this is inconsequential. It is not in breach of any mandatory criminal procedure requiring an accused to be arrested before being committed for trial or tried in the National Court. It is unusual that he has not been arrested, but not unlawful and the fact that he has not been arrested has not resulted in any prejudice. The “private”” prosecution by the Bank of Papua New Guinea appears to have been conducted in a regular manner, compliant with the procedures explained in Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222.

21.     The trial judge’s refusal to hear the motion under s 558 of the Criminal Code prior to arraignment may have been a procedural irregularity but gives rise to an issue that can be addressed as a ground of appeal in the event that the applicant is convicted.

22.     I see no arguable case that the applicant has been denied the full protection of the law under s 37 of the Constitution. 

23.     Significantly, I see no arguable case that the National Court lacks jurisdiction. To allow the applicant leave would run the risk of creating a dangerous precedent, which would allow an accused person to apply for leave to review many contentious decisions that are invariably made in the course of a criminal trial. The Supreme Court in Wartoto warned us of the dangers of allowing collateral proceedings, whether conducted in the National Court or as in this case in the Supreme Court, interrupt the flow and momentum of criminal trials. We must place confidence in the capacity of our criminal justice system, which gives every person convicted of a criminal offence the right to appeal against conviction, to deliver justice and afford the full protection of the law to everyone. Any errors made by the National Court can be corrected on appeal to the Supreme Court.

24.     For the above reasons, I refuse leave to review.

THE FORM

25.     I uphold Mr Mana’s submission that the form of the application for leave to review is defective. It should be in form 7 of the Supreme Court Rules 2012, by virtue of Order 5 rule 1 of the Rules. Some other form, non-compliant with form 7, is used. Leave to dispense with the requirements of the Rules has not been sought, and I do not grant leave. The application for leave could have been dismissed for this reason alone. 

COSTS

26.     Criminal proceedings in the National Court do not often result in an order for costs and I have not heard the parties on the question of costs, so I will order the parties to bear their own costs.

ORDER 

1.	The application for leave to apply for review of the decision of the National Court of 7 February 2023 in CR (FC) 189-192 of 2021 to refuse a motion to quash the indictment is refused.

2.	These proceedings are wholly dismissed.

3.	The parties shall bear their own costs of the proceedings.
_____________________________________________________________
Namani & Associates Lawyers: Lawyers for the Applicant	
Corrs Chambers Westgarth Lawyers: Lawyers for the Respondent