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State v Yangi [2001] PGNC 22; N2211 (24 July 2001)

N2211

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 156 OF 2001

Between:

THE STATE
Applicant

And:

ETEPE YANGI
Respondent

Wabag : Jalina, J.
2001 : 8 May
24 July

CRIMINAL LAW – Judicial Review – Application for Leave after acquittal of Respondent by District Court – Effect of grant of leave on a person’s constitutional right not to be tried twice for same offence – Constitution s.37 (8).

There are no cases cited in the judgment.

Counsel:
J. Kesan for the Applicant
No appearance for the Respondent

24 July 2001

JALINA, J. This is an application for leave to apply for judicial review under O16 r3 of the National Court Rules following acquittal of the Respondent by the Wabag District Court on 1st March 2001 for a traffic offence.

Mr. Kesan for the Applicant has intimated during submissions that he had taken the present course as the State did not have the right of appeal against an acquittal under the District Courts Act.

The relief that are sought upon review in the event that leave is granted are as follows:

"(a) The decision of the Wabag District Court referred to in paragraph 2 above be quashed.

(b) The verdict of Not guilty, be substituted with a verdict of guilty.

(c) And or in the alterative; the matter be referred to the District Court for retrial.

(d) Any other such orders that the court deems appropriate to do justice in this particular case."

The grounds of the application are set out in the affidavit of the informant Max Anekale which shows among other things that the acquittal of the Respondent was done in the face of clear evidence against the Respondent as well as relationship between the Respondent and the magistrate which raised suspicions of bias due to bribery. Mr. Kesan submitted therefore that the Applicant had sufficient interest in the matter thus warranting grant of leave.

The determination to grant or refuse leave to apply for judicial review is based on four (4) major principles which are:

1. Whether the Applicant has "sufficient interest" or locus standi.

2. Whether the Applicant has an arguable case.

3. Whether the Applicant has exhausted administrative remedies before applying for judicial review.
4. Whether there has been a delay by the Applicant to apply for leave.
   

There is no doubt in my mind that the Applicant has "sufficient interest" since as an informant, he has direct interest in the result of the case he investigated. There is no doubt also that being prevented by the District Court Act from appealing against an acquittal, there are no other administrative remedies for the Applicant to exhaust. There is also no doubt that this Application has been brought without undue delay. The issue now is whether the Applicant has an arguable case. Bearing in mind that one of the relief sought is a retrial, I consider that the effect of a grant of leave and subsequent grant of the relief sought would result in the Respondent being tried twice for an offence he has been acquitted. This would obviously breach the Respondent’s right under s.37 (8) of the Constitution not to be tried twice for the same offence. It provides:

"37. Protection of the law.

(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal."

I therefore do not consider that the Applicant has an arguable case. I accordingly refuse leave.

May I point out in conclusion that if the magistrate misconducted himself or accepted bribes then Constable Max Anekale should raise the matter with the Chief Magistrate or the Judicial and Legal Services Commission the Chairman of which is the Minister for Justice. The Applicant shall bear its own costs.
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Lawyer for the Applicant : Public Prosecutor
No appearance by or for the Respondent