Unreported National Court Decisions
N1304
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO 4 OF 1995
Between:
JEFFREY LEWIS - Plaintiff
And:
RAPHAEL APPA - 1st Defendant
And:
DAVID YAPLIN -2nd Defendant
Waigani
Salika J
17 March 1995
DISTRICT COURT PRACTICE AND PROCEDURE - Jurisdiction of National Court to review Magistrate’s conduct of a case.
Counsel:
Mr I Molloy for the Plaintiff
Mrs H Kiele for the defendants
17 March 1995
SALIKA J:  This is an application by way of judicial review for an order in the nature of a mandamus directing a District Court Magistrate to proceed with the trial of summary charges brought against the plaintiff under the Firearms Act.
The applicant in this matter was charged by the police for being in possession of firearms.  The police had attempted to adduce evidence which was objected to.  There was a voire dire hearing and the Magistrate upheld the objections raised and refused to accept the evidence sought to be adduced.
The Magistrate then adjourned further proceeding on the basis that the prosecution seek a judicial review of his ruling in the National Court.
JURISDICTION
I am satisfied that this is not a case where the plaintiff is seeking a judicial review of a ruling on the evidence.  There is no jurisdictioin by way of judicial review to control a Magistrate in the conduct of the case or to prescribe him the evidence which he shall receive or reject.  See R v Garden (1879) 5 QBD 1.
This is a case where a procedure adopted by the Magistrate is being sought to be reviewed.  I am of the view that this Court has the jurisdiction to review what has happened in this case.
The applicant contends that the Magistrate wrongly adjourned the case in that his ruling on the evidence was not a matter which could be subject of a judicial review.
From my own experience as a former Prosecutor and Magistrate the usual procedure is that where after a voire dire hearing the Court refuses to allow any evidence to be adduced, the prosecution is stuck with the ruling until the case finishes.  The Court will then require of the prosecution whether it has any further evidence to call.  If there is no further evidence the prosecution closes its case and the defendant opens its case.  The Court may adjourn after its ruling on the voire dire to allow the prosecution to recall any witness or to review its evidence but the Court in my experience should not adjourn a case sine die to allow the prosecution to seek a judicial review of the ruling on the question of admissibility of evidence.  That is a question that would usually be a matter of appeal.  The appellant would argue that the Court wrongly admitted or refused to admit the evidence.  That is the usual way of dealing with evidence that is wrongly admitted or wrongly refused.
The only time a Magistrate could adjourn proceedings of this nature is when he is faced with a question relating to interpretation or application of a provision of any Constitutional Law and he is of the view that the question is not trivial or vexatious or irrelevant then in my view he is duty bound to refer the question to a higher Court.  (See s. 18 (2) of the Constitution).
As it has happened in this case the reason for which the learned Magistrate adjourned proceedings sine die in my view was erroneous.  He was duty bound to complete the trial.  He could adjourn to allow prosecution to call further witnesses but not to allow the prosecution to seek a judicial review of his ruling.  By adjourning the matter for the reason he did tantamounts to his non-performance of his duty.
I would grant the order sought in the notice of motion namely that an order of mandamus be directed to the first defendant, a Grade 5 Magistrate, requiring him to continue with the hearing of the charge under the Firearms Act against the plaintiff presented at the Goroka District Court.
I further order that the matter be heard on the 23rd of March 1995 at 9.30 am at the Goroka District Court.
I award costs to the plaintiff in these proceedings.
I however do not certify for a southern Counsel.
Lawyer for the plaintiff:  Blake Dawson Waldron
Lawyer for the defendant:  Solicitor-General