National Court of Papua New Guinea

G. Sheppard for Plaintiff

A. Iwais for Defendant

4 May 2000

SEVUA J: The plaintiff was charged with two counts of indecent and unlawful assault, and two counts of carnal knowledge against the order of nature, commonly referred to as sodomy. These charges were laid on 15th January, 1999 by Inspector Hodges Ette of Boroko Police station.

On 30th April, 1999 the defendant, presiding as the Waigani Committal Court, committed the plaintiff to the National Court to stand trial on these charges. The defendant declared she was satisfied that there was sufficient evidence to support the four charges.

The plaintiff applied for leave to review the defendant’s decision, and leave was granted on 2nd July, 1999.

The grounds of review set out in the statement pursuant to Order 16 Rule 3(2)(a) are: error of law on the face of the record; want of jurisdiction; breach of the rules of natural justice, and unreasonableness under the Wednesbury Principles.

The Plaintiff seeks the following relief in this review:-

“(a) &#16 ordethe nate nature ofre of certiorari bringing up to this Court and quashing the decision of the defendant made on 30th April 1999, to commit the plaintiff to the National Court to stand trial in respect of the charges.

(b) An order in tte naofre ndamandamus requiring the defendant to:

(i) &ـ d6smisssmiss the cthe charges, and

(ii) & discharge the plaintiff

(c) ;ټ Costs &sts &#82p> 82p>

In respect of s.94, the plaintiff relied on a decision of Injia, J., The State -v- Kai Wabu [1994] PNGLR 498. His Honour in that case considered the combined effect of s.94(1A) and 94C(2) and observed that the requirements are mandatory and must be complied with. Whilst I agree that the requirements of these provisions are mandatory, the circumstances in which these provisions were considered in that case ought to be distinguished from the present case. When the distinction is made, the plaintiff’s submissions in the present case would be appreciated in its proper context.

In Kai Wabu, the accused had already been committed to stand trial in the National Court. The trial Judge on that occasion was considering the evidentiary aspects of the trial before him, and therefore the issue of mandatory requirements arose. The present case involves a committal procedure, which is not the same as a trial. The circumstances of both cases are different that I consider that Kai Wabu can be clearly distinguished on the facts.

The plaintiff contended that there was an error of law on the face of the record and relied on s.94C. Arguments raised in respect of the affidavit of the complainant, Stanley Kembo, included the issue of the language used in the preparation of his affidavit; whether it was read over to him; his illiteracy, etc, etc. The issue of credibility was also raised. In my view, these matters go to the evidentiary value of the case, which would come within the normal criminal jurisdiction of the National Court in a trial proper.

The plaintiff has attacked the credibility and validity of the complainant’s statement and evidence, however, with respect to counsel for the plaintiff, this Court is not concerned with the review of the evidence in the committal proceedings. That is not the purpose of a judicial review. The plaintiff’s arguments are tantamount to arguments in an appeal and this is not an appeal. There is now a tendency of raising issues and arguments appropriate in an appeal in a judicial review application and this is quite improper. Whether or not the complainant’s evidence is credible or valid or sufficient, the defendant had jurisdiction. The criminal charges are indictable offences that cannot be tried summarily. That is why the charges proceeded by way of committal hearing. It is a misconception to say that the defendant lacked jurisdiction because the evidence was not credible or valid. The issue of credibility or insufficiency of evidence does not go to jurisdictional issue. Of course the defendant had jurisdiction to deal with the charges.

The law on judicial review has been succinctly stated by the Supreme Court in Kekedo -v- Burns Philp (PNG) Ltd & Ors [1988 - 89] PNGLR 122. The principles confirmed by the Supreme Courts are these:

“1. ;ټ That that the Nati National Court judicial review jurisdiction exists even where appeal procedures are provided by the Parliament. This jurisdiction cay be away by express provisions.

2. &#160  t&##160; Save in the mthe most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where other remedies are available.

3. ;ټ&##160; Whethehethehether ther the statutory procedure would be quicker, or slower than procedure by way of judicial review; whether thter depends on some particular or technical knowledge which is more readily available to thto the alternative appellant body are amongst the matters which a Court may take into account when considering the exercise of discretion. The fact that judicial review is quicker and convenient is of itself not sufficient ground for the exercise of jurisdiction.

4. & The circumstauces under wher which judicial review may be available are where the decision-making authority exceeds its p, coman erf lawmits ach of natural justice, reaches a decision which isch is no r no reasoneasonable able tributribunal could have reached or abuses its powers.

5. ҈& T60; The pure purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision, but with the decisionng process.”

I

In the recent past, there have been cases, where persons charged with indictable offences and undergoing committal proceedings have disputed and challenged the decisions of Committal Courts, and have applied for judicial review utilising the National Court’s inherent power to review the exercise of judicial authority pursuant to s.155(3)(a) of the Constitution, the mechanism of which is Order 16, National Court Rules.

Speaking for myself, I am concerned that these cases appear to amount to attempts to short-circuit the criminal jurisdiction of the National Court. I do not wish to be accused of being an advocator of curtailing one’s right to apply for judicial review. However, whilst s.155(3)(a) of the Constitution confers an inherent power to the National Court to review any exercise of judicial authority, and whilst the Committal Courts do make determinations affecting a person’s rights thus enabling an affected person to apply for a judicial review, it is trite law that the Committal Courts do not determine liability or penalty. It is also tribe law that a Committal Court merely determines if there is a prima facie case or sufficient evidence for an accused person to stand trial in the National Court.

I am in agreement with the views expressed by Sheehan, J at page 5 of his judgment in Robert Lak -v- Dessy Magaru, (OS 190/99, unreported), 20^th May, 1999. In that case, His Honour expressed the view that the committal proceedings is a preliminary process in our criminal justice system where the prosecutor publicly discloses to the Committal Court the evidence he wishes to rely on to support a charge against a defendant, then seeks an order committing the defendant to stand trial in the National Court. His Honour said, “the National Court is where that evidence is to be tried, where it is to be tested. Thus upon committal, the National Court is seized of a matter in its criminal jurisdiction. There in the National Court, an accused has all the rights, protection and appeal procedures that the criminal justice system provides. Because of this, Courts have long been disinclined to intervene in complaints regarding committal proceedings by way of a civil action to review when the matters may properly be dealt with under the criminal jurisdiction itself.”

With respect, I agree with that view and I consider it to be the fundamental consideration in this type of application. In my view, a civil Court should not be used to circumvent the normal criminal jurisdiction procedure. The constitutional rights and protection, including the right of appeal, are not extinguished upon an order for committal of an accused person. All these are available to him in the National Court. There, in the criminal jurisdiction of the National Court, any question in relation to the sufficiency or otherwise of the evidence, the value of evidence, probative or prejudicial, and many other issues can be raised.

To my mind, it is not proper for a civil Court to intervene by way of a civil procedure, that is, an application for a judicial review, to circumvent what is strictly a criminal proceeding which ought to be determined and disposed of by a criminal Court, which is the appropriate forum dealing with criminal prosecutions. This raises the question whether a civil Court should intervene to restrain a criminal proceedings from reaching a finality through the normal criminal procedure from a committal proceeding to the trial stage in the National Court.

It is my view, and I propose to state this as a statement of law that, a civil Court, in its review jurisdiction, should not intervene to stop what is purely a criminal proceeding to reach a finality at the National Court in its criminal jurisdiction. To do so would, in my view, amount to an interference by a civil Court in the criminal jurisdiction of the National Court. I consider that Courts, in particular, civil Courts, must decline to intervene in its judicial review jurisdiction to entertain complaints relating to decisions of the Committal Court, particularly where an accused person has been committed to stand trial in the National Court in respect of a criminal charge. An accused person who has been committed to stand trial in the National Court is not left without constitutional protection. His rights are available, even after the Court has made a decision.

The Supreme Court has already expressed a view in a similar issue where the plaintiff had sought an injunction to restrain the Police Force interviewing and arresting him in relation to criminal allegations relating to the 1997 National Elections. The plaintiff had gone before a civil Court to obtain an injunction against what was strictly a constitutional function of the Police Force: See: Rimbink Pato -v- Anthony Manjin & Ors, SC 622, 30^th April, 1999.

The Supreme Court was of the view that the most important consideration in that case was whether a civil Court should restrain a criminal investigation by Police in the exercise of their constitutional function to investigate, charge and prosecute a person suspected of having committed a crime. The Court further said that the plaintiff’s rights are protected by the Constitution. By implication, the Supreme Court was of the view that a civil Court should not have issued an injunction restraining Police investigations. The Court also considered that the plaintiff’s rights were protected by the Constitution and could not see any basis for preventing a Police criminal investigation by injunctive relief.

I consider that, that is the correct approach to adopt in the present application. The question is, how far should a civil Court go in intervening in a criminal complaint? I think there must be a dermacation line drawn between the jurisdiction of a civil Court and a criminal Court otherwise we will establish a dangerous precedent where, a person charged with an indictable offence will go to a civil Court to obtain an injunction so that the criminal charges against him do not proceed to a criminal Court for final determination and disposition. In my view, that should never be allowed to happen because we may well be compromising and undermining the purpose of criminal law and impede the operation and administration of criminal justice.

Having alluded to these matters, let me return to the issues in the present application.

I consider that the plaintiff’s complaint against the complainant’s evidence, is an issue that should be left to a criminal Court to determine. The plaintiff says that the non-compliance with some mandatory requirements of the District Courts Act amounts to an error of law. Whilst I agree that the defendant failed to consider some provisions of the Act, it is my view that such non-compliance relate to the issue of evidence and the plaintiff is not left without any protection here. Whether or not a criminal case proceeds to trial in the National Court, the Public Prosecutor has the overall discretion. The Public Prosecutor may decline to proceed with the case if he thinks he may not secure a conviction. Alternatively, he may proceed with an indictment, but advise the Court that he would offer no evidence against the accused. In that case, the accused is discharged from the charge. The accused is therefore not prejudiced in anyway. His rights have not been deprived in anyway. That is the proper forum for the criminal proceedings to take place. The accused’s rights are accorded up to the final disposition of his case, howsoever such disposal comes about.

Therefore, although there may appear to be error on the face of the record because some provisions of the District Courts Act were not followed, the fact that judicial review is quicker and more convenient is of itself, not sufficient ground for the exercise of jurisdiction. In my view, such an error of law does not deny the plaintiff his constitutional rights and protection. For his rights and protection are readily available up to the point he is convicted, if found guilty, by the National Court. And his right of appeal is still available to him at that point in time.

I have already adverted to the issue of error of law as it directly relates to the state or value of the prosecution’s evidence, particularly the evidence of the complainant, which the plaintiff complained of. In my view, the issue of breach of natural justice is the most important issue in this application. The fourth principle in Kekedo’s case provides that a judicial review may be available if there is a breach of natural justice.

I consider that there was indeed a breach of natural justice when the defendant failed to give an opportunity to the plaintiff to exercise his right under ss.95(3) and 96 of the District Courts Act. That is, the defendant committed the plaintiff to stand trial without giving him the opportunity to exercise his right to give evidence if he so desire pursuant to s.96 of the Act. That is a fundamental error, which cannot be overlooked in this application. That alone, can be the basis of granting this application.

Having said that it is not necessary to consider the issue relating to reasonableness under the Wenesbury principle. I think it’s sufficient to say that error of law and indeed breach of natural justice may lead a Court to invoke the civil jurisdiction of review. Whether a decision of the Committal Court is reasonable or not, in my view, is a question which should not be determined in a civil Court, but should be left to a criminal Court. In my view, we must appreciate the function of the committal Court. If that Court commits an accused to trial, but the evidence is insufficient, the accused is entitled to the usual constitutional protection available in the National Court in its criminal jurisdiction.

I find therefore that there has been a breach of natural justice, and that alone is cause to allow the plaintiff’s application.

In conclusion, let me address the relief sought by the plaintiff. Counsel for the plaintiff submitted that if the Court accepts the plaintiff’s submissions then it should dismiss the charges and discharge the plaintiff unconditionally. In fact the plaintiff seeks an order in the nature of mandamus requiring the defendant to dismiss the charges and discharge the plaintiff unconditionally.

I consider that the nature of that relief and the submissions relating to it are misconceived. The plaintiff sought a review of the decision of the defendant made on 30^th April 1999, in which the defendant committed the plaintiff to stand trial in the National Court. The plaintiff was not seeking a review of the procedures involved in the investigation and charging of the plaintiff. In my view, the relief of mandamus does not relate to a review of the procedures adopted by the Police in their investigations of the charges against the plaintiff. There is nothing before this Court which shows that the plaintiff was challenging police procedures in relation to police investigations and their decision to charge him. Therefore, in my view, granting the order in the nature of a mandamus would be tantamount to reviewing of police procedures in the investigations and the laying of these charges against the plaintiff. The plaintiff would then be discharged by an erroneous and irregular order. I consider therefore that mandamus is not available in this application for the purpose sought by the plaintiff.

For the reasons I have given, I consider that the plaintiff is entitled to an order for centiorari but not an order for mandamus. Accordingly, I make an order in the nature of centiorari in respect of the defendant’s decision made on 30^th April, 1999. I order that, that decision be brought to this Court and be quashed. I also order that this matter be remitted to the Waigani Committal Court to be dealt with by another Magistrate, according to law. I further order that the plaintiff appear before the Waigani Committal Court on Monday, 15^th May, 2000 at 09:30 am. I decline to issue an order for mandamus.

Costs will follow the event, but are to be taxed.

Lawyer for the Plaintiff: Maladinas Lawyers

Lawyer for the Defendant: Acting Solicitor General