N938

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TOHIAN

V

GEITA AND MUGUGIA

Waigani
Los J

24 August 1990
31 August 1990

CONSTITUTIONAL LAW - Constitutional reference - Interpretation or application of constitutional law - Obligation to refer - Committing magistrate not exempt - Relevant considerations - Constitution, s 18(2).

INFERIOR COURTS - District Courts - Practice and procedure - Committal proceedings - Reference of interpretation or application of constitutional law - Committing magistrate not exempt - Relevant considerations - Constitution, s 18(2).

CRIMINAL LAW - Practice and procedure - Committal proceedings - Question relating to interpretation or application of constitutional law - Obligation to refer - Committing magistrate not exempt - Relevant considerations - Constitution, s 18(2).

CRIMINAL LAW - Practice and procedure - Committal proceedings - Control over by superior court - Discussion of.

Held:

A magistrate hearing committal proceedings under the District Courts Act (Ch No 40) is not exempt from the obligation imposed on "any court or tribunal" to consider whether grounds exist for referring a question allegedly relating to the interpretation or application of a provision of a constitutional law to the Supreme Court pursuant to s 18(2) of the Constitution. Relevant considerations include:

(a) whether the question relates to the interpretation or application of a constitutional law:

SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224, referred to.

(b) whether the question is "trivial, vexatious or irrelevant"; and

(c) whether there are sufficient findings of fact for the proper interpretation or application of the constitutional law:

SCR Nos 3 of 1982; Re ss 57 and 155(4) of the Constitution [1982] PNGLR 405, referred to.

Discussion of the power of superior courts to interfere in committal proceedings.

Cases Cited

The following cases are cited in the judgment:

Bourke v Hamilton [1977] 1 NSWLR 470.
Clayton v Ralphs (1987) 45 SASR 347.
Forsyth v Rodda (1989) 42 A Crim R 197.
Lamb v Moss (1983) 76 FLR 296.
R v Lynch [1903] 1 KB 444; [1900-3] All ER 688.
Roget v Flavel (1989) 51 SASR 313.
Sankey v Whitlam (1978) 142 CLR 1.
SCR No 3 of 1982; Re ss 57 and 155(4) of the Constitution [1982] PNGLR 405.
SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224.

Application for judicial review

This was an ex parte application pursuant to the National Court Rules, O 16, for leave to apply for judicial review.

Counsel:

L Gavara-Nanu, for the applicant.
P M Ume, for the respondent.
Cur adv vult

31 August 1990

LOS J.: The plaintiff/applicant was committed to the National Court by the District Court on two charges under the Criminal Code (Ch No 262). On the first, he was charged with a treasonable crime, under s 39(1)(b) in that he:

"Formed an intention to levy war against the Queen and Head of State within any part of her dominion in order, by force or constraint, to compel the Queen and Head of State to change her measures or counsels, or in order to put any force or constraint on, or to intimidate or overawe, any House of Parliament of any of her majesties dominions." (sic)

And on the second he was charged under s 37(e)(ii) of the Criminal Code in that he:

"having levied war against the Queen and Head of State —

(ii) in order, by force or constraint, to compel the Queen and Head of State to change her measures or counsels, or in order to put any force or constraint on, or to intimidate or overawe any House of Parliament of any of her Majesties dominions."

The penalty for the first offence is imprisonment for life and the penalty for the second offence is death.

If leave is granted the applicant will be seeking to remove into the National Court the decision of the District Court and quash it and, secondly, he will be seeking an order to command the District Court to decide on the application made by the applicant during the committal proceedings.

The decision by the District Court which the applicant will be reviewing if leave is granted is the decision by the learned magistrate not to make any reference under s 18(2) of the Constitution to the Supreme Court. At this stage no depositions on the committal proceedings have been received. But according to the notes, simultaneously taken by the defence counsel and annexed to his affidavit for the purpose of the application for leave, what the committing magistrate allegedly said was:

"Before I make the findings, I comment on the question of the referral. I am only a committal magistrate. I therefore refrain from considering the question of law and the constitutionality of the charges. I leave that to the other courts."

In the final analysis the question that would be decided by the National Court on review would be basically whether the magistrate was obliged by s 18(2) of the Constitution to refer the question to the Supreme Court. In other words, once an application for referral was made whether he had any choice at all.

The respondents have advanced some arguments against granting leave for judicial review. First, the respondents say that the applicant is causing unnecessary delay; two other accused who have been committed on similar charges are waiting to have their charges heard by the National Court. The applicant’s action in seeking review is holding them up. Secondly, the respondents say that the accused can always make references to the Supreme Court from the National Court. In summary, the respondents say: stop wasting time and let the case be heard by the National Court. If the applicant wants to raise any legal arguments then raise them before the National Court. As to the first submission there is no legal barrier to the two other accused proceeding before the applicant. As to the other claim, this is an historical case. It will be the first time ever that a case like this has come before any court in the country, and, secondly, if there is any conviction for treason it will be the first death penalty since this country gained independence. I acknowledge that, in R v Lynch [1900-3] All ER 688, it was said that infrequency of laying serious charges such as treason cannot be a reason for interfering with initial proceedings. In the application before me it is not a matter of infrequency but of being the first one. I think it ironical to press this argument when the respondents themselves were so concerned that they obtained the services of a Queen’s Counsel to appear in the committal proceedings. It is very well for one to argue that the applicant should not be wasting time on this kind of application when the person who says so is not faced with a charge of an offence, the penalty for which is death. If the applicant has to face death then he has every right to ensure that all the steps taken against him are correct and, at the end, if it is proved that all the steps taken are correct and lawful, he may face the legal consequences of his actions.

I shall now move to consider whether, if leave is granted, there is anything to review. Under O 16, r 3 of the National Court Rules, the only prohibition against granting leave is when an applicant does not have a sufficient interest in the matter to which his application relates (sub-r (5)). In this application the applicant has more than sufficient interest to make this application for leave and I have already mentioned the interests under different aspects of the application.

Turning to the question of reference I quote s 18(2) of the Constitution:

"Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate."

It is apparent from subs (2) that I have just quoted that, whenever a question arises in any court or a tribunal in relation to the interpretation or application of a constitutional law, that court or tribunal has no alternative but to refer the question to the Supreme Court for its determination. The apparent exception provided by the subsection is where a proposed question is "trivial, vexatious or irrelevant".

It is not my function as "screening" judge to decide on any substantive issues that a reviewing judge may determine. But as the application before me is of a special character and magnitude I have to decide whether there are any aspects of the committal proceedings which may require review. No doubt a reviewing judge may eventually find that the committing magistrate had made no error.

From the notes I quoted earlier, the learned magistrate seems to suggest that the obligation under s 18(2) of the Constitution did not apply to him. His obligation to commit, given to him under the District Courts Act (Ch No 40), overrode the provisions of s 18. He therefore refused to consider the question of a reference under that section. If he had considered himself bound he would have had to decide:

(a) whether the proposed question related to an interpretation or application of any constitutional law. If he answered the question in the negative he would have been entitled to refuse to refer: SCR Nos 12 and 12A of 1984; Re Parakas v The State [1985] PNGLR 224;

(b) he would also have been required to decide whether the question was "trivial, vexatious or irrelevant". He would have been entitled to refuse to refer the question if it was "trivial, vexatious or irrelevant";

(c) or he would have considered whether to decline to refer on the basis that he had not made any sufficient findings upon which the Supreme Court could deliberate, hence a basis of refusal to refer: Supreme Court Reference No 3 of 1982; Re ss 57 and 155(4) of the Constitution [1982] PNGLR 405.

The learned magistrate refused referral simply because, as he put it, he was only a committal magistrate. There is a line of judicial opinion in Australia to which I have been referred and I am grateful for the helping hands in this respect. The view is that committal proceedings must be left alone. In Lamb v Moss (1983) 76 FLR 296 at 308, the court said:

"... there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle as Gibbs CJ pointed out in Sankey v Whitlam (1978) 142 CLR 1 at 26."

In Forsyth v Rodda (1989) 42 A Crim R 197, Lamb v Moss was followed. One of the strongest arguments against granting leave is raised in a New South Wales case. I note similar argument is raised by the respondents. In Bourke v Hamilton [1977] 1 NSWLR 470 at 474, it is said:

"Committal proceedings are executive, not judicial: Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145. In that case Jordan CJ, for the Full Court, said (at 146):

‘In relation to charges of offences which they (that is, magistrates) have no jurisdiction to try and dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence adduced against him, and if they think there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function, and although magistrates have been exercising this authority for nearly four hundred years, no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function’."

In South Australia a similar view is taken but that is a matter of discretion: see Clayton v Ralphs (1987) 45 SASR 347. In Roget v Flavel (1989) 51 SASR 313, following the Australian High Court decision in Sankey v Whitlam (1978) 142 CLR 1, the court said that committal proceedings could be reviewed in exceptional cases. I cite a balanced statement by Gibbs ACJ (as he then was) (at 26):

"I am not intending to criticize those concerned with the conduct of Bourke v Hamilton, or to show any disrespect for the careful judgments delivered in that matter — indeed I have derived much assistance from them — when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration — in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P (as he then was) in Shapowloff v Dunn [1978] 2 NSWLR 468 at 470, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere "administrative cautions" (cf Ibeneweka v Egbuna [1964] 1 WLR 219 at 224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion."

I have had referred to me an English view in R v Lynch [1900-3] All ER 688. This was to support the learned magistrate’s view that the application and arguments on law may be better dealt with at the National Court level; hence the magistrate declined to consider and rule on the defence submissions.

I think the judicial views in Australia and England are helpful. They give us guidance as to the difficulties or a mess that we could get ourselves into. All these cases however did not have to deal with any mandatory provisions of a constitution such as s 18(2) of our Constitution. They were dealing with the provisions of the legislations like Justices Acts under which the committing magistrates derived their powers and the supervisory powers given to the superior courts by various legislation such as the Supreme Court Act (Ch No 37). In our case where the Constitution dictates, we have to act accordingly, unless there are some provisions in the Constitution that exempt us from those dictates. In my view therefore there is an arguable/reviewable point in this application. I would therefore let the applicant argue before a reviewing judge. Accordingly, I grant leave.

Leave granted

______________

Lawyers for the applicant: Gavara and Associates.
Lawyer for the respondents: Public Prosecutor.