Kambao v Bidar [2021] PGNC 302; N9061 (19 August 2021)

N9061

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 25 & 26 OF 2020

BETWEEN
LEO KAMBAO
First Plaintiff

AND:
BEN TREPI
Second Plaintiff

AND:
COSMOS BIDAR IN HIS CAPACITY AS THE WAIGANI COMMITTAL MAGISTRATE
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 11^th August

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 5 Application for Judicial review – Committal Rape Section 347 – Committal Proceedings – Criminal Process –Protection of Rights – Checks Balances in Criminal Process – Leave does not lie – Motion refused – Cost follow event indemnity Basis.

Cases Cited:

Wartoto v State [2015] PGSC 1; SC1411

Pruaitch v Manek [2019] PGSC 123; SC1884

Baker, Re [1971-72] PNGLR 78

Yabara v The State [1984] PNGLR 378

Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582

Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870

Counsel:

T. Yamarhai, for Plaintiffs
R. Mobiha, for Defendants

RULING

19^th August, 2021

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiffs of the 28^th January 2020 applying for leave for Judicial review of the decision of the First Defendant dated 17^th December 2019 in the Committal Proceedings CB 323 of 2019 Police v Leo Kambao, and CB No. 324 of 2019 Police v Ben Trepi to commit both plaintiffs to stand trial at the National Court.
   
2. That pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules that the grant of leave operate as a stay of the said decision dated the 17^th December 2019 CB 323 of 2019 Police v Leo Kambao and CB No. 324 of 2019 Police v Ben Trepi.
   
3. An order in the nature of certiorari to bring to this Court the decision of the First Defendant in the Waigani Committal Court in proceedings CB 323 of 2019 Police v Leo Kambao and CB No. 324 of 2019 Police v Ben Trepi and have both quashed.
   
4. The plaintiffs be discharged on the charge of Rape.
   
5. Their bail money of K1000 each be refunded forthwith.
   
6. Cost of the application against the defendants.
   
7. An Order for the abridgement of time to the date of the settlement by the registrar which shall take place forthwith.
   
8. Any other orders discretion by the Court.
   
9. Leo Kambao is a former policeman who held the rank of Senior Constable. He was dismissed from the Police Force currently residing at Bagita Police Barracks Waigani National Capital District. He was arrested and charged pursuant to section 347 for rape committed upon one Macklyn Moses on the 10^th January 2019 at the Police Station by inserting his fingers into her vagina.
   
10. Ben Trepi is a Chief Sergeant of Police currently based at Gordons Barracks Police Office. At the time of his arrest, he was the second in charge of the Hohola Police Station. He is a married man with three children from Baiyer in the Western Highlands Province. He joined the police Force since 1982 and has served it over 38 years. Currently he resides at Taison Barracks, Gerehu National Capital District.
    
11. Leo Kambao of Surug, Kombiam, Enga Province, and Ben Trepi of Kaleta, Baiyer Western Highlands Province, on the charge of Rape pursuant to section 347 of the Criminal Code Act, were each committed at the Waigani Committal Court in both cases on the 26^th June 2020 to stand trial for that charge in the National Court. That is a process in the criminal justice administration. The evidence is prima facie because a man can by law be tried once for his crime sections under 16 and 17 of the Criminal Code Act, Section 37 (7) (8) (9) Constitution. And therefore, to conduct examination and cross examination within a committal Court is not lawful by these provisions. What the Magistrate is concerned in a committal proceedings are to see on the face of it, here the identity of the principal witnesses, including the accused here the two plaintiffs, whether there was opportunity, whether there was absence of consent, whether there was penetration by either of the Plaintiffs. This is on the face of it, prima facie not as to the veracity of it, or credibility of it. That is the prerogative in a trial situation. That is why it is sufficiency of evidence, and not proof beyond all reasonable doubt.
    
12. The accused plaintiff must know why they are in the committal court on what charge against whom are they alleged to have committed the offence. And what place are they alleged to have committed the offence. They can state what they want when opportunity is given there in the committal court pursuant to section 96 of the District Courts Act. That section is in the following terms; Accused to be asked whether he desires to give evidence:

“(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect–

“Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.
“Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.”

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be–

(a) taken down in writing in the English language and read to him; and
(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and
(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.

13. It is very clear that the trial on the matter stands to the National Court. There is clear language by section 96 (3) that the defendants or their legal counsel shall not be permitted to subject any of the witnesses to cross examination of their evidence there. So whatever discrepancies in the evidence, here of the principal witnesses complaining, supporting medical evidence and any other evidence will be examined cross examined at trial in the National Court. That is clear language of the District Courts Act section 96 (3). Both will have to wait for the trial to take place to bring out the allegations that they raise against the evidence of the State.
    
14. There is no error in the procedure undertaken to commit both defendants for trial to the National Court. That is heed by the District Courts Act Part VI of the District Court here. It is not wrong in law to follow that part. It is compliance of the law in the criminal process by law. And that has been accorded the defendants Plaintiffs. Their day to test the evidence of the Prosecution the State will be on the date of trial not before that day. The evidence is prima facie sufficient by section 95 District Courts Act. It has committed both on that basis. It has not breached process and procedure in so doing. Likened to Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015). The criminal Justice system which comprises also the committal process is an integral part of that process. It will not be circumvented by applications that are likened to Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). Piecemeal applications not founded in law but intent on procrastinating proceedings must be stopped. The law gives rights that must be exercised in compliance, not against and here the process has started and it is now in the hands of the National Court.
    
15. The call overs in the National Court will settle in accordance with the criminal Practice rules a time and date for the committals of the defendants’/plaintiffs a trial date where they can examine all that the rise in accordance with the law by the Criminal Practise rules, to expedite their matters once and for all. The criminal process has started it will not be disrupted or stopped by an application as is the present. It must be allowed to run its natural course set out by the law: Baker, Re [1971-72] PNGLR 78. The accused was a deaf, mute and needed a translator capable so that the committal take place, he having been accorded hearing as to what was happening. This is not the same situation seen out in Yabara v The State [1984] PNGLR 378 where money in an envelope was placed on the table of the magistrate hearing the committal proceedings. That is not the case here by the evidence filed and relied by both applicants/plaintiffs. There is nothing for this Court to invoke in favour of the plaintiffs and their application will suffer the same position that was taken by the Supreme Court in Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017). Judicial review does not lie and has not been made out to the required balance of preponderance. This action is without merit in both cases and will suffer what is due by its fact’s and circumstances in law, dismissal forthwith with costs to follow the event.
    
16. Costs will be at the discretion of the Court. This is an action that was unnecessary and not warranted in law and facts. It simply was frustration and procrastination of a process of law that must in all relevance follow to the trial of that matter where the position of the defendants, plaintiffs can be examined in law to see where justice lays in the matter. What has happened here is unnecessarily abused the process to bring the State into the defence of this matter. Time money and logistics has been undertaken in the matter when the position in law is explicit and clear. Judicial time has been pulled into court unnecessarily when this matter is already by process of law in the National Court on the criminal list of matters pending in that list. It is now a matter of the Lawyers and parties on record to liaise at the call over secure a time and date for the trial. Justice has not been denied the plaintiffs they are posed on the list to have their say in court. This action is therefore a case where the law was clear and parties have brought to Court that action. They will bear the costs on an indemnity basis: Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019).
    
17. Judicial time must be taken by matters that are indeed by the law and the facts deserving of the time taken up. Where it is simply a clear case in law, it would in all reasonableness be a matter that should not occupy dig into Judicial time. Parties should not be unnecessarily dragged into Court. Procrastination of matters must be stopped. Accordingly, the costs will follow the event on an indemnity basis against the Plaintiffs for the defendants.
    
18. Experienced Policemen, Ben Trepi a Chief Sergeant of Police currently based at Gordons Barracks Police Office, and Leo Kambao former policeman who held the rank of Senior Constable ought to know what the Criminal Law and Process is. They should be the first persons to follow the process of the law at all times. The allegation is a very serious one committed allegedly in the Police Cells Hohola Police Station upon a female suspect taken into custody only to sustain the allegation. The good name of the Royal Papua New Guinea Constabulary is tarnished and brought into disrepute because of conducts like this that are unbecoming of officers of the law enforcement. It must stop and allegations levelled must be allowed the process of the criminal law and justice to see out and not hijacked by technicalities of the law. All men are equal under the Constitution of our Country Papua New Guinea, the plaintiffs with the complainant in the allegation are no different. The process of the law must and will be followed. Judicial review is not made out and is refused with Costs on an indemnity basis against the plaintiffs.
    
19. The formal orders of the Court are:
    
    • (i) The application for Judicial review is refused and dismissed forthwith.
    • (ii) The Plaintiffs shall pay the costs of the defendants on an indemnity basis incidental to these proceedings to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Supersonixs & Alu Lawyers: Lawyer for the Plaintiffs

Office of the Solicitor General: Lawyer for First and Second Defendant