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Avini v The State [1998] PGNC 113; N1786 (17 November 1998)

Unreported National Court Decisions

N1786

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 99 OF 1998
YAP AVINI - APPLICANT
V
THE STATE - RESPONDENT

Waigani

Woods J
3 November 1998
17 November 1998

CONSTITUTION – enforcement of human rights – Constitution Section 57 – role of National and Supreme Courts – no jurisdiction to further review judicial act of National Court after Supreme Court has already reviewed by an appeal.

Counsel

C Narokobi for the Applicant

J Kawi for the Respondent

17 November 1998

WOODS J: This is an application for the enforcement of human rights guaranteed by the Constitution Section 57.

Section 57: A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

The application itself is made pursuant to section 155 of the Constitution.

In the application the applicant is seeking certain declarations relating to a trial heard in the National Court in its criminal jurisdiction and the outcome of the trial whereby he was convicted and sentenced to 8 years imprisonment on an indictment for misappropriation.

The declarations sought are that the conviction and sentence was unreasonable, that the trial judge erred in law, and that the applicant’s constitutional rights to a fair hearing and protection of the law were breached.

As this application appeared on its face to be in effect a review of the criminal trial before the National Court and a review of the judgement of the Supreme Court in the Appeal from that National Court trial I felt that there should be preliminary argument and submissions on whether this Court had jurisdiction to receive and consider such an application.

It is submitted on behalf of the applicant that Section 57 gives a person further access to the courts independently of the normal laws such that if it is claimed that constitutional rights have been ignored or avoided by normal court procedures then it is open to a person to seek adjudication of those rights by another court.

However what are the rights guaranteed by section 57. That section refers to ‘a right or freedom referred to in this Division’. This Division includes section 37 ‘protection of the law’ and section 42 ‘liberty of the person’ and the rights in those sections have already been protected by the operation of the criminal trial in the National Court and the appeal to the Supreme Court which by virtue of the Supreme Court Act section 6 is by way of a rehearing on the evidence given in the court the decision of which is appealed against. So in effect the Appeal to the Supreme Court was a complete review of all aspects of the trial in the National Court.

Reference here should be made to Section 23 of the Supreme Court Act for the extent of the powers of the Supreme Court:

S. 23 (1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that –

(a) ټ the vere verdict should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)&ـ҈ the judgement of the Court before fore which the appellant was convicted shod should buld be set aside on the ground of a wrong decision on any question of law; or

(c) ـ&#1here were was a ms a material irregularity in the course of the trial.

(2) &##160;ithtwanditanding thag that the Supreme Court is of the opinion that the point rain theal might be deciddecided ined in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

Therefore in exercising its powers and responsibilities under the Supreme Court Act the Court has clearly considered all the protections accorded to an accused person under the Constitution so how can it be said that there are further rights and protections available. Section 57 of the Constitution does not of itself give any further rights wherever they may be found. With reference to the declarations sought in the Originating Summons the Supreme Court, in accordance with the provisions in the Supreme Court Act for the determination of appeals, has already considered;

the reasonableness of the conviction and sentence,

the justice of any irregularity in the matter of the no case submission,

whether any error of law occurred,

whether the decision was against the weight of the evidence,

the right to a fair hearing.

I cannot find that the Constitution and the Organic Laws or the Laws made by Parliament, and in particular the National Court and Supreme Court Acts give a single Judge of the National Court the power to review or override the decisions of another Judge or a decision of the Supreme Court. The National Judicial System is established by Section 155 of the Constitution and pursuant to that Section only the Supreme Court has the inherent power to review the judicial acts of the National Court. And in the case before me now it has done that. Neither Section 57 nor Section 155 gives a person a second chance to review the decisions of the National or the Supreme Court once the normal rights of appeal have been exercised.

In this case before me now the applicant is in effect asking me to review the judicial act of the National Court. The judicial act of that court has already been reviewed by the Supreme Court in the appeal. I find that I have no jurisdiction to further consider or in effect review that judicial act.

I dismiss the application.