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Korowi v Aron [2016] PGNC 36; N6215 (3 March 2016)

N6215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (APP) NO. 41 OF 2015

BETWEEN

PHILEMON WASS KOROWI
Appellant

AND

SERGEANT ELIZAH ARON
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

&

CIA NO. 50 OF 2015

BETWEEN

HARVEY NII
Appellant

AND

SERGEANT ELIZAH ARON
Respondent

&

CIA NO. 55 OF 2015

BETWEEN

JACOB YAFAI
Appellant

AND

SENIOR CONSTABLE PIUS PENG
Respondent

&

CIA NO. 56 OF 2015

BETWEEN

PAUL OTHAS
Appellant

AND

SENIOR CONSTABLE BASI SOPATA
Respondent

Waigani: Makail, J
2016: 1st & 3rd March

PRACTICE & PROCEDURE – Application for disqualification of judge – Apprehension of bias – Pre-judging of an issue in dispute – Judge deciding an issue decided in an earlier case by the judge – Whether proper ground for disqualification – Doctrine of stare decisis – Judicial precedents – Constitution – Schedules 2.8 & 2.9.

Cases cited:

PNG Pipes Pty Ltd & Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592
Gobe Hongu Limited v. The State & Ors (1999) N1964
Zachery Gelu v. Maurice Sheehan & Ors (2011) N4345
Tzen Pacific Limited v. Innovest Limited (2012) N4713
The State v. Peter Sari [1990] PNGLR 48

Counsel:

Appellant, in person in CR (APP) No. 41 of 2015
Mr. A. Kongri, for Appellant in CIA No. 50 of 2015
Mr. M. Kombri, for Appellants in CIA Nos. 55 & 56 of 2015
Mr. F. Luvi, for Respondents in CR (APP) No. 41 of 2015 & CIA No. 50 of 2015
Ms. B. Kulumbu, for Respondents in CIA Nos. 55 & 56 of 2015

RULING ON APPLICATION TO DISQUALIFY JUDGE

3rd March, 2016

1. MAKAIL J: The appellants have been charged with various criminal offences under the Criminal Code relating to monies paid to Paul Paraka Lawyers as legal costs. Amongst other things, police alleged that they were part of and were involved with Mr. Paul Paraka of Paul Paraka Lawyers in illegally obtaining these monies from the State. The offences are indictable, and are pending committal proceedings in the District Court and will have to be referred to the National Court, if the District Court, is satisfied that there is a prima facie case against the appellants. Mr. Paraka was also charged for the same offences. He appealed against an interlocutory ruling of the District Court to the National Court which refused his application to join the charges.

2. Some of the appellants applied for an order to stay or have the hearing of the charges adjourned generally pending either the hearing of the charges against Mr. Paraka or the determination of Mr. Paraka's appeal. Others applied for an order to join the charges laid against each of them. In each case, the District Court constituted by different Magistrates dismissed the applications. The appellants appealed against these decisions to the National Court.

3. On 17th November 2015 I heard an application by the respondents to dismiss Mr. Paraka's appeal. One of the two issues raised by the application required a consideration of section 219 of the District Courts Act. On 20th November, I ruled in the respondents favour dismissing the appeal on the ground that no appeal lies to the National Court from an interlocutory ruling or order of the District Court in a criminal proceeding before that Court. It was on this ground that I held that the appeal by Mr. Paraka was incompetent.

4. Given this at directions hearing, I raised with parties the issue of jurisdiction of the National Court to deal with these appeals as they arose from interlocutory rulings or orders of the District Court. The proper issue for consideration then was whether it was open to the appellants to appeal to the National Court against an interlocutory ruling or order of the District Court in a criminal proceeding pending in that Court.

5. However, I am now being asked by the appellants to disqualify myself from continuing to sit in these appeals because they alleged that I had pre-judged the issue in dispute. The respondents opposed the application. From what I have heard and read from the appellants' affidavits and parties' written submissions, I agree with Ms. Kulumbu of counsel for the respondents that there are two grounds for my disqualification. They are:

5.1. I raised the issue of jurisdiction and not the parties. If this issue were to be raised, it should have been raised by the respondents; and

5.2. I had ruled on the same issue in the Paul Paraka appeal. The ruling was against Mr. Paraka and the same issue will be considered in these appeals.

6. Given this there is an apprehension that I might be bias in my consideration of the issue and it is only proper and in the interests of justice that I cease presiding over these appeals. The issue then is, is it a proper ground to disqualify a judge because the judge deciding an issue has decided the same issue in an earlier case? Mr. Korowi who appeared in person and counsel for the other appellants cited numerous cases on disqualification of a judge. The main ones were PNG Pipes Pty Ltd & Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Gobe Hongu Limited v. The State & Ors (1999) N1964 and Zachery Gelu v. Maurice Sheehan & Ors (2011) N4345. These cases identified the different categories of cases where a judge may disqualify from a case.

7. They relied on the statement by the Supreme Court in PNG Pipes case that:

"If a judge's knowledge of the subject matter of legal proceedings is contended to be the basis for apprehension of bias, there must be a real connection between the judge's knowledge and the issues for adjudication in those proceedings, for example if the judge has expressed a prior opinion on the issues for adjudication."

8. Further, they relied on the statement by Hartshorn J in Tzen Pacific Limited v. Innovest Limited (2012) N4713 that:

"I note that the law as to apprehension of bias in respect of a Judge is similar in the United Kingdom, Australia, New Zealand and this jurisdiction; though the governing principle is that, subject to disqualifications concerning waiver or necessity, a judge is disqualified ..... if a fair minded lay observer reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

9. Mr. Kongri for the appellant Mr. Nii cited the criminal case of The State v. Peter Sari [1990] PNGLR 48, where late judge Jalina AJ (as he then was) in deciding to disqualify himself voluntarily, after the accused changed his plea from guilty to not guilty said that in the interest of avoiding anyone raising doubts about the integrity and impartiality of the office he held, the most appropriate course of action to take is to disqualify from the matter.

10. The appellants submitted that a fair-minded lay observer with knowledge of the material facts in these appeals might entertain a reasonable apprehension of bias that I might not bring an impartial and unprejudiced mind to the resolution of the question in issue. But none of them were able to refer to a case directly on point.

11. As to the first ground, I do not think it is an issue because the appellants quite correctly conceded that it was within the Court's inherent jurisdiction to raise the issue as part of its duty to control its own processes. The real issue is what the second ground raises. In my view the cases cited by the appellants do not assist them because they are distinguishable and do not apply. In this case, we are dealing with a specific issue and that is whether I should disqualify myself because I decided the same issue in dispute in an earlier case.

12. With respect, the statement in PNG Pipes cited at [7] above has been taken out of context. It was made in a case where a judge in the National Court consistently made unreasonable and unjustified rulings, and orders and refused to entertain applications and submissions. The judge's actions favoured one party. He refused to disqualify himself and on appeal, the Supreme Court held that his actions created the perception that he was biased and ordered the judge to disqualify himself. The point here is that the parties were the same and the actions of the judge which gave rise to grounds for disqualification were in the same proceeding. The same distinction can be made in Gobe Hongu case.

13. The cases of Zachery Gelu and Tzen Pacific Ltd are different from those two cases and this case because in the former case the judge was named in a previous proceeding issued by one of the applicants which was defended by the judge while still a lawyer. That first proceeding was still pending delivery of decision. Subsequently she became a judge and presided over a second case of the applicant. The point to bring home is that it had nothing to do with a judicial consideration of an issue previously decided by the judge. In the latter case the judge concerned refused to disqualify himself because he found that the mere fact that he had previously decided cases in favour or against a party did not provide a foundation for a reasonable apprehension of bias.

14. Finally, the facts in the case of The State v. Peter Sari are totally different to this case and must be appreciated in the context in which the decision was made. It was a criminal case and the judge voluntarily stood down because the accused changed his plea from guilty to not guilty. This is common in criminal cases because the liberty of the subject is at stake. In a case where an accused enters a guilty plea, the judge would consider the evidence offered by the State and if satisfied, would confirm the plea of guilty. It is the consideration of the evidence by the judge that gives rise to this consideration when the accused changes his plea from guilty to not guilty. The judge then accords the accused the opportunity to be tried before another judge by voluntarily disqualifying himself.

15. From the consideration of these cases, I find that they are of no assistance and relevance to the case at hand. On the other hand, I think the reason why the appellants and even the respondents were not able to refer to a case on point is that the mere fact that a judge has decided an issue in an earlier case and the same issue is raised in a subsequent case does not provide a foundation for a reasonable apprehension that the judge might be biased. In my view this proposition is based on a very sound legal principle. Where a judge decides a case, it is a judicial pronouncement of an issue in dispute between the parties. It has a binding effect on the parties in the dispute. It can also be used as a reference to resolve future disputes of the same kind. The binding effect of the Court's decision is referred to as a judicial precedent or appropriately in the legal sense, doctrine of stare decisis. It forms part of our law pursuant to Schedules 2.8 and 2.9 of the Constitution. Lawyers and judges have been applying this doctrine for centuries and in this jurisdiction, it is fair to say for decades.

16. I decided the issue of jurisdiction in the Paul Paraka appeal. It was a judicial pronouncement of the law as it were in section 219 of the District Courts Act in relation to the appropriate mode of commencing proceedings in the National Court to challenge an interlocutory ruling or order of the District Court in a criminal proceeding. It was fundamental to the invoking of the National Court's jurisdiction to hear Mr. Paraka's grievance. As it was a Court decision, it was binding on the parties in that case. It may be adopted by parties in future cases based on the doctrine of stare decisis. In this instance parties will have the opportunity to address me as to why I should or should not follow my earlier decision. In my view, a reasonable fair-minded lay observer properly informed of the material facts of these cases would not apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide.

17. On the other hand, if I accede to the appellants' application, I would be doing a de-service to the doctrine of stare decisis and will be driven from the judgment seat by a group of dissatisfied litigants. I add by respectfully adopting what late Sevua J said in Gobe Hongu case "I believe that a litigant, by his conduct or assertion, should not be permitted to influence the choice of a Judge. If that is allowed, it would, in my view, impugn and impeach the principle of judicial independence. The independence of the judiciary must never be influenced by a group of litigants or a section of the community."

18. The application is refused with costs.

Ruling and Orders accordingly.
_______________________________________________________________
Harvey Nii Lawyers: Lawyers for Appellant CIA No. 50 of 2015
Kombri & Associates Lawyers: Lawyers for Appellants in CIA Nos. 55 & 56 of 2015
Solicitor-General: Lawyers for Respondents