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Kaputin, The State v [1979] PNGLR 532 (3 October 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 532 - SCR No 3 of 1979; The State v John Rumet Kaputin 

[1979] PNGLR 532

SC164

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 3 OF 1979 IN THE MATTER OF S. 20 OF THE SUPREME COURT ACT 1975 AND IN THE MATTER OF THE STATE

V

JOHN RUMET KAPUTIN

Waigani

Prentice CJ Saldanha Wilson JJ

3 October 1979

PRACTICE AND PROCEDURE - National Court - Reservation of question of law - Should only be made after issues decided - Supreme Court Act 1975, s. 20[dclxvi]1.

PRACTICE AND PROCEDURE - Supreme Court - Interrupted and adjourned trial in National Court - Power to direct early completion of trial - Constitution of the Independent State of Papua New Guinea, ss. 37(2), 57.

Held

(1)      A judge of the National Court should only reserve a question of law for consideration of the Supreme Court pursuant to s. 20 of the Supreme Court Act 1975 after he has decided the facts and issues involved in the case before him.

(2)      Where the trial of an accused has been prolonged and interrupted by reservation of questions of law, the Supreme Court may direct pursuant to s. 57 of the Constitution of the Independent State of Papua New Guinea, that the trial be completed forthwith, in order to protect the accused’s right to a fair trial within a reasonable time under s. 37(2) of the Constitution.

Reference

This was a reference by a judge of the National Court made pursuant to s. 20 of the Supreme Court Act 1975[dclxvii]², during the course of the trial of John Rumet Kaputin on charges relating to lodging of company documents.

The questions referred by the National Court were:

“1.      Are the terms of the order upon which the charge is based in themselves adequate to sustain a conviction.

2.       If not is the inadequacy curable by evidence.

3.       Is the indictment in its present form if amended as indicated in paragraphs 3 and 4 hereof adequate to sustain a conviction.”

Counsel

E.I.M. Nwokolo, for John Rumet Kaputin (accused).

G. Poole, for the State.

Cur. adv. vult.

3 October 1979

PRENTICE CJ SALDANHA WILSON JJ: The court is of the opinion that the words of the National Court in its order as followed in the indictment in this matter are plain, clear and unambiguous. What is being alleged is that the New Guinea Development Corporation Ltd. had failed in 1977 to comply with notices served on it requiring the lodging of certain documents; that the accused as Director and Secretary of the Corporation was required to make good those defaults of the Corporation by himself lodging those documents in 1978 within three months of the order of the National Court; and that he failed so to do. No other reasonable alternative meaning to the order is open. That the meaning of what was a consent order agreed to by counsel, was so obviously plain, is shown by the facts that no particulars of the court’s order were sought and that the actual documents required were filed, albeit late, in May 1979.

This is the second occasion that the trial of this accused in the National Court has been interrupted by a reference to this the Supreme Court. On the first occasion, on which two of the present members of this court and the trial judge himself constituted the court, counsel for the accused found himself quite unable to argue the point which had been referred. Indeed it was on its face unarguable and clearly had been referred without proper consideration. That reference purported to have been made under s. 18 of the Constitution of the Independent State of Papua New Guinea.

The present reference was initiated upon a point raised by the learned trial judge himself. It has been made under s. 20 of the Supreme Court Act 1975. Within our joint experience covering ten years adjudging in Papua New Guinea, and as far as we know from discussions with previous judges of the court, from the very institution of the Supreme Court Act’s predecessor, the Supreme Court (Full Court) Act; it has always been the view of the judges that the trial judge should decide the facts and issues involved in the case before him prior to making reference under s. 20. The reasons are obvious. The Supreme Court can be assembled only at monthly intervals. Accused persons cannot readily be transported across the country’s great distances. In many cases bail cannot be granted. Witnesses can be lost with the passage of time; and in Papua New Guinea frequently are. And of course, there is the principle that applies in all countries, that it is highly undesirable that a court of appeal (especially a final court of appeal such as this) should unnecessarily become seized of a matter before it had been argued in front of a judge of first instance and his study thereof (with the assistance of counsel) and his conclusions thereon become available for its assistance.

In this case there is the additional element that the accused is a Minister of the State. The alleged complaint is said to have arisen from delay and default. It is highly undesirable that a Minister of State should remain under a charge longer than necessary — unfair to all, the accused, the prosecution and to the State itself. The matter had received publicity of a nature highly important to the State and the administration of justice.

We know of no case where a point has been referred (other than Constitutional ones which must necessarily be) without the benefit of the trial judge’s opinion being first arrived at. If the procedures adopted in this case, and no criticism is offered of the accused of course or counsel; the evil of interminable delay to criminal process such as exists in the tortuous procedures of some other countries could become established in this country — which has enough difficulties of its own without having to suffer that additional burden. Justice delayed is justice denied.

It must be emphasized that s. 20 of the Supreme Court Act 1975 does not exist to shield the National Court from its plain duty of receiving the due assistance of counsel, and coming to decisions on the issues presented to it as quickly as is fairly and justly possible.

We have been informed unofficially that this trial has been adjourned until the last week in November. This would mean that the Minister would have to sit through yet another session of Parliament with a charge over his head. Section 37(3) of the Constitution provides that a person charged with an offence shall be afforded a fair hearing within a reasonable time. Indictment in this matter is dated June. The accused is entitled to have his name cleared, just as the prosecution is entitled to know whether its charge has been sustained. This court is of the opinion that action should be taken in the National Court immediately to have this trial completed within days not weeks, and it so directs under s. 57 of the Constitution.

We answer the questions referred as follows:

Question 1. Yes.

Question 2. It is not necessary to answer this question.

Question 3. In answering this question we note that his Honour’s reference apparently should have been to paragraphs 5 and 6 of his case stated. We answer the question “Yes but the matter of whether amendment to the indictment is sought should be left to the Prosecution.”

Questions answered accordingly.

Solicitor for John Rumet Kaputin: Ikenna Nwokolo & Co.

Solicitor for the State: K. B. Egan, Public Prosecutor.

[dclxvi] Section 20 of the Supreme Court Act 1975 provides as follows:

“RESERVATION OF POINTS OF LAW.

(1) When any person is indicted for an indictable offence, the Judge of the National Court shall, on the application of counsel for the accused person made before verdict, and may in his discretion, either before or after verdict, without such application, reserve any question of law which arises on the trial for the consideration of the Supreme Court.

(2) If the accused person is convicted, and a question of law has been so reserved before judgement, the judge may either pronounce judgement on the conviction and respite execution of the judgement, or postpone the judgement until the question has been considered and decided, and may either commit the person convicted to prison or admit him to bail on recognizance, with or without sureties, and in such sums as the Judge thinks fit, conditional to appear at such time and place as the Judge may direct, and to render himself in execution, or to receive judgement, as the case may be.

(3) The Judge shall thereupon state, in a case signed by him the question of law so reserved, with the special circumstances upon which it arose, and the case shall be transmitted to the Supreme Court.

(4) Any question so reserved shall be heard and determined as an appeal by the Supreme Court.

(5) Any question so reserved shall be heard and determined after argument by and on behalf of the prosecution and the convicted person or persons if they desire that the question shall be argued, and the Supreme Court may—

(a) affirm the judgement given at the trial; or

(b) set aside the verdict and judgement and order a verdict of not guilty or other appropriate verdict to be entered; or

(c) arrest the judgement; or

(d) amend the judgement; or

(e) order a new trial; or

(f) make such other order as justice requires, or the Court may send the case back to be amended or restated.”

[dclxvii] See footnote p. 532.