Henry v Arua [2020] PGDC 3; DC4048 (28 May 2020)

DC4048

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 16, 17, 18 and 19 of 2018
BETWEEN

FIRST CONSTABLE JAMES HENRY

Informant

AND
JOHN ARUA, EMMANUEL RABAO, JOHN RABAO & KARE RAITSI
Defendants

Waigani: L Wawun-Kuvi

2020: 14, 21, 25 & 28 May
      

CRIMINAL LAW- PRACTICE AND PROCEDURE- Committal Proceedings- Procedural irregularity and defect-Matter remitted by National Court for failure to administer section 96 of the District Court Act process- Does the District Court have power to rehear a matter already committed? Whether a Defendant can be committed to stand trial in his absence?

Papua New Guinea Cases Cited

State v Paraka (2020) N8229
Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017)
Akia v Francis [2016] PGNC 3335; N6555 (24 August 2016)
Wartoto v The State (2015) SC144
Wama v Palme [2012] PGNC 85 N4714 (22 May 2012)
Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001)
Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022
William Moses v. Otto Benal Magiten (01/12/00) N2023
ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344
R v Little [1967-1968] PNGLR 63

Overseas Cases Cited

R v Plummer [2012] NTSC 30 (17 April 2012)
Higgins v Mr Comans, Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565
Leroy Clint v The State Criminal Appeal- de la Bastide, C.J [2001] TTA 20 (27 June 2001)
Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62.
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
R v Philip and Quayle [1939] 1 KB 63
R v Gee [1936] 2 All ER 89; (1936) 25 Cr App R 198; (1936) 2 KB 442

Papua New Guinea Legislations
Criminal Code Act (Ch 262)
District Court Act 1963
The Constitution Of The Independent State Of Papua New Guinea

Overseas Legislations
Northern Territory Justice Act 1928
Trinidad and Tobago Indictable Offences (Preliminary Enquiry) Act Chapter 12:01

Other Materials

Criminal Law and Practice of Papua New Guinea by Chalmers, D.R.C and Weisbrot, D
Commonwealth Caribbean Criminal Practice and Procedure by Dana S Seetahal

Counsel
Senior Constable George Vetari, for the Informant
Mr Leslie Mamu and Mr Bernard Popeu, for the Defendants

28 May 2020

RULING

L Wawun-Kuvi, Magistrate:

1. This is a matter that comes by way of a remittal by the National Court in its criminal jurisdiction.
   
2. I begin by saying that it has been long held in Papua New Guinea and other Commonwealth jurisdictions that the Magistrates Courts are creatures of statue. We can only act within our governing legislations.^[1]
3. The remittal of Committals within the criminal practice and procedures is not a common practice. It is on that basis that I called for submissions on jurisdiction from both the prosecutor and Mr Popeu for the defendants.

Background

4. On 13 December 2018, my brother Magistrate Marcus Nandape committed all the Defendants to stand trial in the National Court.
5. All defendants with the exception of John Arua were present. John Arua escaped from custody during the first mentions at the Committal Hearings.
6. The records reflect that although Magistrate Nandape ordered for the filing of the ‘section 96 statements’ by the defence counsel he did not administer it to the Defendants in compliance with the process under section 96 of the District Court Act 1963.
7. On 13 November 2019, the Public Prosecutor presented an indictment on a charge of Murder against the Defendants. The National Court then put the charge and facts to the Defendants. However prior to the Defendants giving their respective pleas, Mr Popeu for the Defendants made an Application pursuant to section 558 of the Criminal Code Act (Ch 262) (the Code).
8. On 22 November 2019 both Ms Tamate and Mr Popeu made submissions on the Application. His Honour Justice Mogish then ruled that (1) section 96 of the District Court Act was not complied with (2) the Committal and the Indictment were defective and (3) the matter be remitted back to the District Court for the District Court to comply with section 96 of the District Court Act (4) the Accused were further remanded.

Do I have jurisdiction to administer provisions of section 96 where the committal process has already been completed.

9. Section 5 of the District Courts Act 1963 empowers a Magistrate to act within the powers stipulated within the Act itself and any other law.
10. Senior Constable Vetari simply submitted that the copy his file was still with the Office of The Public Prosecutor and in any event he left it to the Court to decide. I quite understand his predicament as not only does he not have the resources available to conduct the necessary research being based in Kwikila, Rigo, Central Province, but also that he does not have the necessary legal qualifications to argue such a point in law.
11. The Public Solicitor appeared in person and submitted that there are no provisions in law relating to remittals of Committals. He says that intends to file a Supreme Court Reference.
12. Although it is all good and well for the Public Solicitor to file a Reference I must still consider what happens to the matter presently before me. He answers that I have the power to adjourn the case generally under section 18 of the Constitution pending the interpretation by the Supreme Court.
13. I do not accept that the question of my jurisdiction lies within the ambits of an interpretation or application of a constitutional law. The issue here is not the powers of the National Court to remit the matter. My question is statutory being a creation of statute.

What does the Law say?

14. There are no express provisions empowering me as the Committal Court to administer the section 96 process where my brother Magistrate has already committed the defendants?
15. The District Court Act does not provided for the remittal of a Committal once committed nor does the Criminal Code Act. Both being the primary laws that deal with criminal practice and procedure. The Criminal Practice Rules is also silent.

Are there any case laws?

16. Remittals were common under Judicial Review Proceedings. As the nature of the proceedings were deemed to be an exercise of executive power rather than judicial.
17. However, Wartoto v The State (2015) SC144 provided that criminal practice and procedure had constitutional safeguards to protect the rights of persons arrested and charged for offences and were not subject to the civil jurisdiction.
18. This however did not entirely prevent parties from seeking redress in the civil courts.
19. In Akia v Francis [2016] PGNC 3335; N6555 (24 August 2016) the Appellants filed an appeal against the decision to commit them to stand trial. His Honour Justice Gavara-nanu made reference to Wartoto and held that a case for Judicial Review could be made where there was clear evidence of procedural irregularities or defects in the Committal process. Review was not open on a decision to commit or not to commit. The decision to commit or not is a matter that is left to review by the Public Prosecutor who is empowered under law to do so. Nonetheless any Judge sitting in its capacity in Judicial Review should be slow to exercise such power as it may infringe on the unfettered power of the Public Prosecutor as prescribed under the Constitution. The Appeal was dismissed for being an abuse of process.
20. In 2017, Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017) finally lay to rest the issue of whether a committal decision should be subject to Judicial Review when the three member bench unanimously ruled that criminal cases have their own set process and procedures and cannot be brought before the civil courts.
21. In my limited research I have not been able to locate any specific criminal case discussing the issue of remittal by a Judge in the exercise of its criminal powers. That does not go to say that it does not happen or has not happened previously.

Is there any case law that discusses the process of committal defects or irregularities?

22. The case of Sent and recently in the National Court case of State v Paraka (2020) N8229 reiterated the statement in Wartoto where it was held that:

““[A]ny issue around irregularity, defect or otherwise an abuse of process, must be raised promptly at the appropriate level. If it concerns any abuse at the Police investigation or District Court committal stages, they must be first raised and resolved at those levels. Any matter beyond the reach of the District Court can be raised and sorted out with the Public Prosecutor at the first instance or failing that, the National Court when the matter enters the National Court in accordance with the process and procedure stipulated under the Criminal Code and Criminal Practice Rules of the Court. Finally, if the abuse is at the National Court level, again it must first be raised and dealt with at that level. If the issue is appropriately raised at the National Court level and the Court fails to deal with, it would properly be a subject for appeal or review. Finally, the Supreme Court would deal with any abuse or improper use of its process, including any appeals or reviews on point and abuse of the National Court process which could not be corrected at that level by the National Court.”

23. In essence the higher Courts are saying that the procedural issues must be raised at the level that it is before and not after it has left that jurisdiction. Once it has being completed it can only be raised on the level about it.
24. Whilst I fully grasp and appreciate the law in Wartoto relating to the Criminal Jurisdiction procedure for raising issues of irregularity, defect or otherwise an abuse of process, I face the predicament as a Court of limited jurisdiction being directed by Order of the National Court to revisit the process rather than the matter being taken up for appeal or review as outlined in Wartoto.

Is it open to imply my jurisdiction?

25. Berrigan J in State v Paraka (supra) briefly discussed the implied powers of the Committal Court as it relates to the staying of committal hearings. Her Honour did not extensively discuss the implied powers of the District Court. However it is clear both from her reasoning and in Higgins v Comans^[2] and Grassby v The Queen^[3] which she made reference to, that the implied powers of a Magistrate’s Court exist directly from express provisions that give jurisdiction and become necessary to enable a Magistrate to effectively carry out his or her statutory function. It is not all encompassing.
26. In Higgins v Comans on the issue of whether the committal court had the power to stay, it was held that the Committal Court did not. The reasoning being that not only was there no express provisions, it was not available to the Magistrate to make such a decision because it was not necessary to the function that he was performing being the examination of witnesses.
27. In the present case as there are no express provisions relating to remittals within any criminal law statute, there are therefore no implied powers.
28. The question I then ask is then, is it a power that I possess out of necessity? I am of the opinion that I do not because the matter arises out of a circumstance that does not expressly exist in law.

What would have been the appropriate recourse?

29. As I had stated I do not have the powers to revisit or question the decision of the higher court.
30. Nor do I have the powers to answer whether the process applied is correct in law or not. My endeavour here is only to show that lay available to counsels for the prosecution and the defence numerous authorities to properly argue the issue wherever the arguments may lie.
31. Committal defects and irregularities and there consequential effects are not rare in Papua New Guinea and other Commonwealth jurisdictions. What does not exist in my limited research, in criminal law is the remittal to the Committal Court.
32. Counsels must be diligent not only to ensure that justice is administer fairly for their clients whether it be the defendant or the State and must take proactive steps to ensure that challenges are done so that the law as we know it to be evolves and becomes clearer especially those of us who need to performs functions strictly by law.
33. The Application before his Honour was made before section 558 of the Criminal Code (the Code. Section 558 allows an application only on two basis, firstly then the indictment is defective and secondly if it is calculated to prejudice or embarrass the defendant. Following from which there are only three consequences available (1) the indictment is quashed (2) the indictment is amended or (3) the motion is refused and the trial continues.
34. As submitted by Mr Popeu, the motion was moved on the reliance upon the case of R v Little which allows for the motion under section 558 where the committal process is deemed defective by the failure of the committing magistrate to comply with the law. As to which leg of section 558 the application was relied upon I am unsure nor it is necessary for me to explore this aspect.
35. Mr Popeu derived R v Little^[4] from the book Criminal Law and Practice of Papua New Guinea^[5]. Had there been more diligence to read the actual case it would have been noted R v Little in fact forms the premise that a matter can proceed to trial regardless of procedural defect in the Committal.
36. In R v Little, the defendant was charged on one information with more than one stealing offence. He was unrepresented at Committal. On the trial counsel sought to quash the indictment on the basis that the indictment was defective because without a proper committal the whole process was defective. His Honour ruled that although the information was poorly drafted it was proper. The Court held that the circumstances did not fall within the category listed in R v Gee^[6]
37. R v Gee(supra) is the relevant law which captures the basis for the actual quashing of an indictment. It has been used across many jurisdictions in the Commonwealth as the case on point relating to procedural defects in the committal.
38. Other cases in Papua New Guinea as well as other jurisdictions that discuss R v Gee and irregularities in the committal can be found in Schedule 1 of this Judgement.

Australia

39. In R v Howard Mungaribi [1988] NTSC 49; 55 NTR 12; 92 FLR 264, the effect of non-compliance by a Justice with ss110 and 111 of Justice Act 1928 was discussed. These are the provisions which require the committing Justice to ascertain from the defendant whether he wishes to answer the charge and call witnesses, and to advise him of his rights, if the Justice "proceeds with the examination". Section 110 and 111 of the Justice Act mirrors section 96 of the District Court Act.
40. Mr Mungaribi was represented by counsel as was this case. The Application by him was made after the presentation of the indictment and before evidence was led. The questions raised by the Judge were (1) whether or not the requirements of the Act are mandatory or directory? (2) If it is mandatory, does failure to follow those provisions vitiate the committal proceedings? (3) Can counsel for an accused person, by his conduct, dispense with compliance with those requirements?
41. It was held that the requirements are mandatory, that the failure to comply therefore nullified the process and that counsel by his conduct does not dispense with the requirement to comply with the requirements. The findings by the Court were that “the committal proceedings were void. Essential steps, required by statute to be undertaken, to ground the magistrate' jurisdiction to commit Mungaribi for trial were not taken.” The indictment was stayed. It must be noted that the Supreme Court of Northern Territory is the equivalent of the National Court.
42. Before proceeding past R v Mungaribi, I do note that under the handwritten notes of my brother Magistrate dated 13 September 2018, he did order for the filing of section 96 by the defendant’s lawyers who was in fact the same lawyer that moved the motion to quash the indictment.
43. I must state that there is nothing in law whether express or implied that provides for the statement of the defendant to put be in written submissions. As provided for by R v Mungaribi this is a mandatory role by a Committing Magistrate who has to put the statement to the defendant. The Magistrate must ensure that the defendant clearly understands and then write the response. To not physically put the words of section 96 and write it down in open court, in my humble view as supported by R v Howard Mungaribi amount to a procedural defect. See also R v Plummer [2012] NTSC 30 (17 April 2012) and Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62.

Commonwealth Caribbean

44. Like the Chalmers Criminal Law and Practice (supra), the Commonwealth Caribbean criminal law and practice is captured in the book titled Commonwealth Caribbean Criminal Practice and Procedure by Dana S Seetahal^[7]. However unlike Chalmers, Seetahal covers or encompasses the whole of the criminal process from arrest, to committal, to trial and finally appeal or review.
45. The committal process in Papua New Guinea and the Commonwealth Caribbean like other Commonwealth jurisdictions have been sourced from the English Criminal Justice Act 1967. That is the reason why the wording of the statement to the defendant under section 96 of the District Court Act is essential word for word.
46. Seetahal discusses procedural errors and their effect on Committal^[8] and motions to quash indictments as a result of procedural defects at Committals^[9]. Seetahal identifies a number of cases in the Commonwealth Caribbean in which defendants have moved for the quashing of an indictment on the basis that the committal on which the indictment were founded were defective and the magistrate’s failed to follow the process under law. The argument being that “only upon a valid committal for trial can an indictment founded, if a committal is invalid, the indictment constitutes a nullity and is liable to be quashed.” R v Gee was relied upon as the principle that where “the preliminary enquiry was not held in accordance with the statutory provisions which stipulated the procedure. The committal was thus invalid.”
47. The discussions by Seetahal relating to recent challenges in Trinidad and Tobago between 1998-2000,^[10] are relevant to any discussion relation to Papua New Guinea’s committal process because their Indictable Offences (Preliminary Enquiry) Act almost mirrors Part VI of the District Court Act relating to Proceedings in case of Indictable Offences. The challenges relate to failure of committing magistrates to comply with mandatory statutory provisions especially informing the defendant of his right to give evidence.
48. The United Kingdom Privacy Counsel in Tiwari v Trinidad and Tobago (Trinidad and Tobago) (supra) settled the law relating to the consequential effects of committal irregularities when it held that procedural irregularities does not necessarily affect conviction and the circumstances of each case must examined to determine the consequence. For instance, where the defendants are represented by counsel, the irregularity may not be as fatal where the defendant was unrepresented. Either way the trial Court must enquire and make a decision as to the effect of the breach of procedure. Their Lordships agreed that the circumstances and the laws as they were under R v Gee are no longer applicable.
49. I attach in schedule 2 the case of Leroy Clint v The State Criminal Appeal- de la Bastide, C.J [2001] TTA 20 (27 June 2001) for ease of reference. Schedule 3 Tiwari v Trinidad and Tobago (Tirinidad and Tobago) [2002] UKPC 29 (29 May 2002)
50. I am left only to suffer the faith of deciding what I should do with a matter that the law has not specifically provided for.

What are then my powers?

51. In my limited research there is nothing on point in the Higher Courts or in any Court similar in nature in the Commonwealth sitting their Criminal Jurisdictions for the remittal of a Committal for the correction of a procedural irregularity. What the cases show is that there are many arguments that may be advanced and varying outcomes but the consequences as already said do not involve a remittal.
52. The only recourse I find is that section 4 of the District Court Act stipulates that a Magistrate is subject to the authority and powers of the National Court and that section 249 of the Act further protects me from doing any act in obedience to an order of the National Court or a Judge.
53. In that regard I proceed by stating that the above cases have demonstrated that:
    1. District Courts are creatures of Statue and can act only within their governing laws and any other law that confers powers upon it;
    2. For the exercise of discretion in the District Court there must first been express powers to act;
    3. The Committal Court power is to only form an opinion to commit or not to commit on the evidence before it
    4. There is no specific or express provision in criminal law or the criminal jurisdiction that provides for the referral of a matter already committed
    5. A magistrate is subject to the powers and authority of the National Court in the exercise of its powers.
    6. A magistrate is not liable for any act done under an Order of the National Court.
54. In compliance therefore with His Honours Order dated 22 November 2019, I shall proceed now to administer the process under section 96 of the District Court Act only for Defendants Emmanuel Rabao, John Aihi Rabao and Kare Raitsi.
55. In relation to John Arua he was committed in absentia. A warrant of arrest was issued under the hand of Magistrate Vogusang on 8 March 2018. The warrant was extended up until the Committal date indicating that the Defendant was never present at the Committal. Therefore it would appear that in the application of the reasonings’ in R v Mungaribi, R v Plummer and Ebatarinja v Deland especially so in R v Plummer where the Defendant was not present, the Committal of defendant John Arua is invalid. There is no express provisions in the District Court to commit a defendant in his absence. See also R v Philip and Quayle [1939] 1 KB 63. However, I am neither a Review or Appellant Court. My only function as stipulated above it administer the process in accordance with law. As there is no defendant so therefore the matter is adjourn sine a dire until the defendant is arrested.
56. I close by saying that it would be very useful and helpful whether for legislative amendments or case law by the higher Courts to clearly provide the process for referral backs in order to assist the Committal Courts not only in the exercise of its limited jurisdiction but for uniformity in its approach across Papua New Guinea.
    

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Office of The Public Solicitor

---

^[1] See Wama v Palme [2012] PGNC 85; N4714 (22 May 2012); Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001); Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022; William Moses v. Otto Benal Magiten (01/12/00) N2023; ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349

^[2] Per Keane, JA in Higgins v Mr Comans, Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565

^[3] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 17.
^[4] [1967-1968] PNGLR 63
^[5] Chalmers, D.R.C and Weisbrot, D 2009, Criminal Law and Practice of Papua New Guinea, University of Papua New Guinea, Port Moresby
^[6] [1936] 2 All ER 89; (1936) 25 Cr App R 198; (1936) 2 KB 442
^[7] 4 Ed, Routledge, Taylor and Francis Group, London and New York, Published in 2014 by Routledge, 2 Park Square, Milton Park, Abingdon, Oxon, Ox14 4rn

^[8] Refer to foot note 2 @ page 175
^[9] Refer to footnote 2 @ page 200
^[10] Refer to footnote 5