Tohian v Geita (No 2) [1990] PGNC 137; [1990] PNGLR 479; N937 (20 November 1990)

N937

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TOHIAN

V

GEITA AND MUGUGIA (NO 2)

Waigani
Sheehan J

19-20 November 1990

ADMINISTRATIVE LAW - Judicial review - Application to committal proceedings - Available for jurisdictional error.

ADMINISTRATIVE LAW - Judicial review - Practice and procedure - Scope of review - Proof of order under review - Onus of proof - Remedies at discretion of court.

CONSTITUTIONAL LAW - Constitutional reference - Interpretation or application of constitutional law - Obligation to consider whether appropriate -Committing magistrate not exempt - Whether trivial, vexatious or irrelevant - Constitution, s 18(2).

CRIMINAL LAW - Practice and procedure - Committal proceedings - Constitutional reference - Committing magistrate not exempt from considering - Constitution, s 18(2).

INFERIOR COURTS - District Courts - Practice and procedure - Constitutional reference - Committing magistrate not exempt from considering - Constitution, s 18(2).

On an application for judicial review of an order for committal by a magistrate of the District Court on charges of treason, the ground of review was that the magistrate refused to refer 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. The substance of the question sought to be referred was that there could be no charge of treason by acts against the Queen.

Held:

(1) Judicial review is available in respect of committal proceedings, for jurisdictional error.

The State v Rush; Ex parte Rush [1984] PNGLR 124, followed.

(2) Judicial review is concerned solely with the validity of the decision-making process: questions relating to sufficiency of evidence are therefore excluded.

(3) Because judicial review is available to consider the validity of actual decisions, the actual decision and/or orders must be properly in evidence before the reviewing court or tribunal.

(4) An applicant for judicial review bears the onus of establishing his case and has therefore an obligation to formulate grounds of review.

(5) Judicial review provides remedies at the discretion of the Court granted only to avoid injustice.

(6) A magistrate hearing committal proceedings is obliged to make some assessment of whether grounds exist for referring a question under s 18(2) of the Constitution or whether the question is "trivial, vexatious or irrelevant".

(7) In the circumstances, the constitutional issues raised were trivial, vexatious and irrelevant; in the absence of evidence of the decision or orders of the District Court magistrate the application for review should be dismissed.

Cases Cited

The following cases are cited in the judgment:

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.
SCR No 3 of 1982; In re the Commissioner of Correctional Services [1982] PNGLR 405.
SCR No 5 of 1982; Berghuser v Aoae [1982] PNGLR 379.
State, The v John Rumet Kaputin [1979] PNGLR 532.
State, The v Rush; Ex parte Rush [1984] PNGLR 124.
Tohian v Geita and Mugugia [1990] PNGLR 353.

Judicial review

This was an application for judicial review of a ruling of a District Court magistrate in committal proceedings. The application for leave is reported: Tohian v Geita and Mugugia [1990] PNGLR 353.

Counsel:

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

20 November 1990

SHEEHAN J.: This is an application for judicial review of an order of committal to the National Court for trial made by a district magistrate Mr Iova Geita at Boroko, Port Moresby on 10 August 1990. [And see Tohian v Geita and Mugugia [1990] PNGLR 353].

No copy of the committal proceedings or the order of committal was filed in this application but, in affidavit evidence filed on behalf of the applicant, copies of the informations the subject of those proceedings were produced.

The substance of the two informations is as follows:

COUNT 1 STATES

"paul tarccicius tohian of Lungatan Village, Konos Sub Province New Ireland Province formed and intention to levy war against the Queen and Head of State in order by force to put force upon the Prime Minister and the Executive Government of the Independent State of Papua New Guinea and that the said paul tarccicius tohian manifested that intention by ordering the Mobile Squad Officers and Policemen to arm themselves and go with him to the Parliament House to have the Prime Minister under House Arrest for the purposes of the said paul tarccicius tohian to take over as the Prime Minister and the Executive Government of the Independent State of Papua New Guinea.

Thereby contravening Section 39(1)(b) of the Criminal Code Act Chapter No 262."

COUNT 2 STATES

"paul tarccicius tohian of Lungatan Village, Konos Sub Province New Ireland Province levied war against the Queen and Head of State in order by constraint or force to compel the Queen and Head of State to change her measures or counsels.

PARTICULARS

(i) The defendant exhorted and ordered the members of the Mobile Squads, Police Officers and other policemen to arm themselves and to go with him to Parliament House to install himself the said defendant as Prime Minister and to put the Prime Minister under house arrest and to depose the Constitutional Government of the Independent State of Papua New Guinea and he led them to carry out the above mentioned purpose.

(ii) The defendant also exhorted members of the Defence Force to join in an insurrection against the Constitutional Government of Papua New Guinea.

(iii) The defendant armed himself with a submachine gun 9mm Hecklar Koch Serial NO C305473 with two magazines completed with fifteen rounds for purposes above mentioned; and the submachine gun was loaded with one magazine for the said purposes.

Thereby contravening Section 37(e)(ii) of the Criminal Code Act Chapter No 262."

The applicant contends that the committal proceedings were invalid. Serious constitutional issues were raised before the District Court, with the request that these be referred pursuant to s 18(2) of the Constitution to the Supreme Court for interpretation, but the learned magistrate failed to make the reference sought and indeed ignored the constitutional issues altogether. Because of this the applicant seeks the following orders.

The plaintiff claims:

1. An order that he be allowed leave to make an application for judicial review of the decision of the first defendant sitting as a committal magistrate of the Boroko District Court, National Capital District given on 10 August 1990, to commit him to stand trial in the National Court.

2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the first defendant given on 10 August 1990 whereby the first defendant refused to address and rule on the constitutional issues raised by the plaintiff during the committal proceedings on the said date and his failure to rule whether or not he would refer the said issues to the Supreme Court pursuant to s 18(2) of the Constitution before committing the plaintiff to stand trial in the National Court on the charges laid against him under s 37(e)(ii) and s 39(1)(b) of the Criminal Code Act (Chapter No 262).

3. A declaration that the legal and or constitutional issues raised by the plaintiff were and are not trivial, vexatious or irrelevant.

4. An Order in the nature of mandamus requiring the first defendant to address and rule on the constitutional issues raised by the plaintiff and to rule as to whether he would refer such issues to the Supreme Court as required under s 18(2) of the Constitution.

5. Such other and further Orders as the Court thinks fit.

Counsel for the applicant argues that while proceedings in committal hearings are regulated by ss 93-103 of the District Courts Act (Ch No 40), the provisions of the Constitution must also be strictly observed.

Starting from the position that the Constitution is the Supreme Law of Papua New Guinea (s 11 of the Constitution) and that all acts and actions that are inconsistent with the Constitution are to the extent of the inconsistency invalid, the committal of the applicant on the charges laid must be invalid and ineffective. Because the learned magistrate failed to refer constitutional issues raised in the District Court proceedings to the Supreme Court the orders of committal were actions inconsistent with a constitutional directive.

It was submitted that referral was mandatory on the learned magistrate, because s 18(2) of Constitution provides:

"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".

Therefore once a question of interpretation of constitutional issues arises, s 18 demands that the question be referred to the Supreme Court which has sole jurisdiction to interpret such questions (s 18(1)).

In the committal proceedings now challenged, the learned magistrate was made aware, through both written and oral submissions, that challenge to the informations was being made on constitutional grounds. The magistrate was therefore under an obligation to refer those questions "unless the questions (were) trivial, vexatious, or irrelevant". It was submitted that the issues raised could not be treated as trivial, vexatious or irrelevant and the applicant seeks a declaration from this Court to that effect.

Counsel for the applicant says that the learned magistrate had full opportunity to consider his submissions and to determine whether the issues raised fell within the exceptions or not, but he did not do so. Counsel’s note of the proceedings show that in fact the learned magistrate declined to consider them at all. Counsel recorded that the learned magistrate in committing the applicant said:

"I am only a Committal Magistrate. I therefore refrain from considering the question of law in the Constitutionality of charges. I leave that to other Courts ..."

On these grounds the applicant says that the learned magistrate fell into a jurisdictional error and acted inconsistently with the Constitution in that he had ignored the directions of s 18. His action, his order, in committing the applicant therefore was invalid and ineffective. For this reason, this Court is asked to make an order of certiorari removing the committal proceedings into the National Court and quashing them.

As to the availability of an order of certiorari, counsel for the applicant referred the court to The State v Rush; Er parte Rush [1984] PNGLR 124. This was a decision of McDermott J in April 1984 where he reviewed a magistrate’s functions in committal proceedings and the availability of certiorari and judicial review in the Court’s supervisory jurisdiction over the District Court.

He concluded that orders (in the nature) of certiorari will lie in respect of committal proceedings. With respect, I agree with the learned judge’s reasoning and with that conclusion, though I would add that arguments over whether committal proceedings are judicial, executive, or administrative functions, are now largely academic. Since the case of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, distinctions between these terms are meaningless so far as judicial review is concerned and in any case the range of orders (in the nature of certiorari) that are now available under O 16 of the National Court Rules are very wide.

Mr Ume, counsel for the defendants, conceded that committal proceedings can be the subject of judicial review pursuant to s 155 of the Constitution, but he opposed the applications contending that the complaints of the applicant were without foundation. He strenuously argued that to accede to the application would have serious constitutional consequences for this country.

In committal proceedings, he submitted, the prime issue was whether a case was made out on the evidence before the committing court. In this case there was ample. The finding of sufficient evidence to warrant committal to the National Court for trial on charges of treason, was he said, a legitimate course for the magistrate to have taken. Inconsistencies and questions of law, are matters for court of trial, the defence contended, so that the pursuit of judicial review when other avenues are open, rendered this application vexatious.

As for s 18 of the Constitution, the defendant’s counsel submitted that the only subjects of this section, are statutes, not contentions as to the meanings of particular words. The applicant, he said, had formulated no questions before the magistrate. He simply speculated on the status of Her Majesty the Queen as regards Papua New Guinea, but formulated no question or particular challenge.

Counsel for the defence also referred to the decision of The State v John Rumet Kaputin [1979] PNGLR 532 where it was held that a question as to the sufficiency of a complaint or charge is trivial and should not be referred to the Supreme Court.

In reply, Mr Gavara-Nanu, for the applicant, reiterated that the learned magistrate in the District Court had ignored s 18(2). He also submitted that it is not now open to defence to determine or attempt to define the status of Her Majesty the Queen in Papua New Guinea. That remains an issue for the Supreme Court; no-one else.

In summary, he stated, the applicant is not saying that the provisions of s 37 and s 39 of the Criminal Code (Ch No 262) relating to treason and treasonable offences are unconstitutional, what the applicant is saying is that he has the right to see if they are.

DECISION

In considering the merits of this application the first matter must be whether committal proceedings in a District Court are amenable to judicial review. I have already indicated that they are. Where there is jurisdictional error there should be no need for an aggrieved person to have to await trial to have an invalid order against him set aside.

But it must be remembered that judicial review is concerned solely with the validity of the decision-making process. The questions regarding the sufficiency of evidence are not within the scope of judicial review. In this case the decision of the committing court must be shown to be invalid. Here the proceedings and the order of committal that is challenged are not in fact before this Court; only counsel’s notes of what occured. I will return to this point later.

Next comes the challenge to the decision to commit. The applicant says that the learned magistrate failed to refer constitutional issues raised as required by s 18. It was conceded that the obligation to refer was conditional on the questions or issues not being either trivial, vexatious, or irrelevant, and in fact a declaration was sought that they were not exempted on this ground.

This Court therefore has had to form a view of the merits of the questions or issues raised, though it was not informed in precise terms just what they were. The Court was in fact only referred to the written submissions filed in the District Court at the time of committal. In my view this is quite inadequate. The applicant has the onus of establishing his case and therefore must have the obligation to formulate the points for consideration rather than have the Court sift the import of his submissions in the court below. Submissions in this Court did not clarify them any further. Under these circumstances the applicant must stand or fall by what the Court understands those submissions seem to be postulating.

Under the heading of constitutional and other legal issues, there appear these statements:

"Section 37 and 39 relate to crimes against the person and authority of the Queen ...

In order for the charge under Section 39(1)(b) to succeed, a prosecution must establish the Queen and the Head of State (‘The Queen, hereon) has power and authority over PNG ... PNG must be the Queen’s dominion to exercise such power and authority.

It is submitted that the Queen neither has power and authority over PNG and PNG is not a dominion of Her Majesty.

The Constitution says the power belongs to the people ...

The significance of the absence of Her power and authority is the fact that she cannot prosecute people who commit crimes under Her name ... the Queen is simply a figure head or the first person in PNG ... the Queen therefore is only a ceremonial figure with little and defined powers ...

The Queen therefore has no power and authority over PNG and its people. This means that the accused cannot be charged under Section 37(e)(ii) and 39(1)(b) of the Criminal Code. These sections are against the spirit of the Constitution and are hence unconstitutional.

The levy of war against the Queen also not be made out by the prosecution for the same reason ... There is no evidence that they put force and constraint on the Queen as alleged ..."

The substance of the applicant’s contentions seem to be summarised in the second of the two-fold submission as follows:

"The two sections of the Criminal Code under which the accused was charged, namely Sections 37(e)(ii) and 39(1)(b) of the Criminal Code are unconstitutional in that they go against the Constitution. These sections give the power of the people under the Constitution to the Queen. The Queen has no power over PNG and its people including the accused and therefore the accused cannot be charged for levying war against the Queen even if he did ..."

If this is the applicant’s contention it can be readily disposed of. Section 37 and s 39 of the Criminal Code do not give the power of the people to the Queen. The Constitution, at s 82, states:

"Her Majesty the Queen—

(a) having been requested by the people of Papua New Guinea, through their Constituent Assembly, to become the Queen and Head of State of Papua New Guinea; and

(b) having graciously consented so to become, is the Queen and Head of State of Papua New Guinea ..."

Thus the Constitution itself, the Supreme Law (s 11) has created Her Majesty the Queen to be the Queen and Head of State of Papua New Guinea. Whatever the limits of the powers and functions of the Queen and Head of State (and these are to be found in s 86), that office, that position, represents the whole of the State for Papua New Guinea.

Therefore, defining treason or treasonable acts as being an offence against the Queen and Head of State, is the same as saying that treason is an offence aimed at the overthrow of the State or the Constitution. It seems clear to me that is the essence of the charges on which the applicant has been committed for trial. Accordingly, there were no serious matters or issues requiring referral to the Supreme Court. I have no hesitation in saying that the constitutional issues raised by the applicant in those proceedings are trivial, vexatious and certainly irrelevant.

I have dealt with the validity of these issues now, because in the first place, the application for review sought a declaration on the point and because their validity is essential to the applicant’s case. But even had there been no request for such a declaration, this Court, of necessity, would have had to form its own view on their validity in any case; not by way of usurping the jurisdiction of the Supreme Court, but simply as a matter of considering whether any fault had occurred and the appropriate order if any, that was required to remedy a breach.

Fault in this case lay, not with the learned magistrate’s failure to refer, but the failure to consider the submissions before it at all. In my view he certainly was obliged, at least, to make some assessment of whether he considered the issues raised were within the exceptions to s 18(2) or not. In failing to do so, the committal orders that he made may well have been open to review. But in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the committal proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice. In this case the failure to address the submissions, invalid as they were, has created no injustice to the applicant and accordingly the orders sought must be refused.

There remain two other considerations. The first of these relates to two previous decisions of the Supreme Court on issues arising under s 18(2). They were not referred by counsel but must be relevant in any question of referral of constitutional issues to the Supreme Court. In this case they are of no assistance to the applicant.

In SCR No 3 of 1982; In re the Commissioner of Correctional Services [1982] PNGLR 405 the Court said (at 407) that:

"We are of the opinion that a question which is referred to the Supreme Court (under Section 18) must arise out of a factual situation established by the lower court or tribunal."

Again, in SCR No 5 of 1982; Berghuser v J Aoae [1982] PNGLR 379, it was held that a reference under s 18 of the Constitution cannot be made on assumed or hypothetical facts. Here no fact situation has been established with regard to the matters raised by the applicant nor any specific question formulated.

But the most important matter to be considered is dealt with last. This is the failure of the applicant to produce or exhibit in this Court, the actual record of proceedings and order of committal. Judicial review is available to consider the validity of an actual decision of a court or tribunal, not copies of them taken down by counsel, no matter how carefully that may have been done. It is the applicant’s duty to prove his case and here it was open to him to seek directions and or orders of this Court seeking production or the record of copies of the proceedings and the order itself. In fact he elected to proceed on counsel’s notes. Certainly this procedure was not contested, but the best evidence of the order must be the document, the order itself, and there is no reason to suppose that it was not available. In the absence of that order the Court has been asked to give a decision on a hypothetical order and this it cannot do. On this matter alone it was inevitable that the application must fail. In the result the application for review is dismissed.

Application for review dismissed

_____________

Lawyers for plaintiff: Les Gavara-Nanu & Co.
Lawyer for defendants: Police Department Legal Officer.