Nii v Aron [2021] PGNC 419; N9127 (7 September 2021)

N9127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 958 OF 2017

BETWEEN:
HARVEY NII
Plaintiff

AND:
SERGEANT ELIZAH ARON OF POLICE
First Defendant

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

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 07^th September

PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 3 Application for Leave for Judicial review – Committal Stealing Section 372 & Conspiracy to Defraud Section 407 & Money Laundering Section 34 (2) (a) Proceeds of Crime Act – 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:

Pato v Manjin [1999] PGSC 9; SC622

Mai and Avi, The State v [1988-89] PNGLR 56

Wartoto v State [2015] PGSC 1; SC1411

Pruaitch v Manek [2019] PGSC 123; SC1884

Avia Aihi v The State (No 1) [1981] PNGLR 81

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

Paraka v Peng [2016] PGSC 86; SC1622

Counsel:

J. Simbala, for Plaintiff
R. Uware, for Defendants

RULING

07^th September, 2021

1. MIVIRI, J: This is the ruling on the originating summons of the 11^th December 2017 by plaintiff pursuant to Order 16 Rule 3 (1) of the National Court Rules applying for leave for Judicial review against the decision of the Second Defendant dated 31^st October 2017 in the Comm No. 323 of 1038/2013 also referred as CB No. 7670/13 Sergeant Elizah Aron of Police v Harvey Nii where the Court dismissed the application by the plaintiff:
   
   • (i) A notice of motion of the 04^th September 2017 seeking orders to reject evidence in the Police Hand up brief which had been obtained illegally without a search warrant in breach of the Search Act, in effect breaches sections 44 and 49 of the Constitution which guarantees the right to freedom of arbitrary search and entry and right to privacy.
     
   • (ii) A further notice of motion filed the 22^nd June 2015 seeking orders for the applicant’s affidavit filed 06^th November 2014 to be accepted by the court as part of the evidence on the Police hand up brief pursuant to section 94(B) of the District Courts Act.
     
2. He relies on his originating summons supported by the Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules, a notice of motion, affidavits filed by himself of the 11^th December 2017, an affidavit verifying facts that he has sworn complying with Order 16 Rule 3 (2) (b) of the Rules, and a notice to the Secretary for Justice & Attorney General fulfilling Order 16 Rule 3 of the Rules.
   
3. Service of all documents upon the defendants in particular on the first and third defendants on the 12^th February 2018 has been effected. The Second defendant was affected on the 12^th December 2017. Including the service of an amended Statement in support upon the Solicitor General on the 21^st March 2019.
   
4. The plaintiffs is charged with the criminal offences of Stealing pursuant to section 372 (1) of the Criminal Code of K 6.1 million the property of the Independent State of Papua New Guinea. He is further charged with Conspiracy to defraud pursuant to section 407 (1) (b) of the Criminal Code Act. And further pursuant to section 34 (2) (a) of the Proceeds of Crimes Act.
   
5. The facts therein in the information are that he is a 47-year-old man from Kupibaut village in the Baiyer River District of the Western Highlands Province. He was and is the principle of the law firm Harvey Nii Lawyers. It is alleged that in around February 2012, Paul Paraka of Paul Paraka Lawyers submitted a false claim for the sum of K 6.0 million to the Department of Finance in the pretext of outstanding court payments. He conspired with the applicant to allow the Department of Finance to pay the false claim into the trust account of the Harvey Nii Lawyers account number 1000138465 held at Bank of South Pacific Port Moresby Branch.
   
6. Accused applicant allowed this to happen knowing that fact and so the Department of Finance raised K 6.0 million in cheque number 0108661 dated the 17^th February 2012 payable to Harvey Nii Lawyers Trust Account, P. O. Box 152, Port Moresby. It was deposited into that account 1000138465 on the 20^th February 2012. And the applicant/accused wrote to the Business Relations Manager, Corporate & International, Bank of South Pacific on the 24^th February 2012 and authorized debit of the account and transfer of K 5.5 million to Paul Paraka Lawyers operating Account. They carried out that request leaving K 500, 000.00 in the account of Harvey Nii Lawyers Solicitors Trust Account. He was not engaged by the State in any matter entitling that payment of K 6.0 million.
   
7. There was conspiracy to defraud between the applicant accused and Paul Paraka. And also, it was money laundering within the meaning of section 34 (2) (a) of that Act and so he was charged accordingly including conspiracy to defraud and stealing pursuant to the Criminal Code set out above.
   
8. The Criminal Process is a complete process on its own. It has started as here set out. What is before the Magistrate is prima facie and does not extend to minute and detailed examination of the evidence sought to be relied in the proceedings. The veracity of the evidence, its credibility can only be assessed once only in the trial in the National Court. A man is tried only once as per section 37 (8) Constitution. The challenge to the ruling of the magistrate really has no basis for leave to be accorded the applicant. He will have that at trial time when the matter is before the National Court: Pato v Manjin [1999] PGSC 9; SC622 (30 April 1999). The observations of the Supreme Court there are relevant and applicable here; “Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution.

If he claims such rights are violated, he has recourse pursuant to s.57 Constitution. We can’t see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act.”

9. The Ruling by the Magistrate now challenged is a multiplication of that process because that is not the ambit of a committal proceedings. Section 94B and Section 95 is sufficiency of the evidence. That is not the same as proof beyond all reasonable doubts, it is prima facie, on the face value, not as to its credibility veracity or otherwise. That is a matter confined to the trial when it takes place and not before.
   
10. Primarily the accused/plaintiff must know why he is in the committal court on what charge, against whom he is alleged to have committed the allegation. And what place he is alleged to have committed the offence. He can state what He wants 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.

11. 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 evidence illegally obtained that is a matter to be fully determined in the National Court. That is clear language of the District Courts Act section 96 (3). He will have to wait for the trial to take place to bring out the allegations that he raises against the evidence of the State. And this is clearly set out in various decisions of the Supreme Court including, Mai and Avi, The State v [1988-89] PNGLR 56 (3 June 1988). The record of interview was ruled inadmissible and could not form part of the prosecution evidence because of the question after the advice of the rights under section 42 (2) Constitution, the Police asked whether the accused wanted to exercise that right now, or later. It was a breach because what was required in law was suspension of the record of interview. The Accused to see out his section 42 (2) rights and to continue with the record of interview.
    
12. Because prima facie on the affidavit of Elizah Aron of the 14^th March 2019 is clear evidence of an investigations and search warrant obtained from the National Court. There were in fact two search warrants obtained on the 1^st July 2013 and which search warrant included the principal accounts of Paul Paraka and also his co accused including the present applicant. He is a co accused and therefore was included in that search warrant leading to by the paper trail. There is therefore prima facie sufficient evidence. And the Committal Magistrate had not erred. It is not an arguable basis mounted sufficient on the balance of preponderance to grant the application for leave.
    
13. Judicial review does not lie nor is it arguable per se in the way that the plaintiff/applicant has contended for the reasons set out above. It is not an error of law in the procedure undertaken to commit him 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. And that has been accorded the defendant Plaintiff. His 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 not breached process and procedure in so doing. Because section 100 of the Act says when all is completed the court will consider whether the evidence is sufficient to commit the defendant to trial. The learned Magistrate has heeded he has not committed an error of law prima facie arguable basis to grant leave.
    
14. 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 criminal process has not been completed, it will not be circumvented by civil procedure in judicial review. The applicant is not affected and does not have standing to bring the matter because there is still the process in the trial to go through before the applicant is affected, therefore giving him locus standi. The process has not completed he does not have standing here.
    
16. Meaning that the internal process accorded by the Criminal process has not closed so that he has resort as was the case of Avia Aihi v The State (No 1) [1981] PNGLR 81. There is no arguable case demonstrated on the balance and the process of the criminal justice system has not been exhausted hence the matter is not open before this court to review. His own affidavits are not determinative of the cause of action he poses here. Because he is not coming after the completion of the criminal process. He has not been found guilty of the allegation on the information currently stayed in the committal proceedings because of this proceedings. That will be accomplished at trial the institution of this proceedings for leave is premature to that proceeding yet to be completed. It follows that he has no standing, nor has he demonstrated an arguable case to be granted leave. The delay is not material because it will become more so when the procedures internally have been exhausted. That is not the case, there is no guilty verdict nor a sentencing order. It is too early in the process he does not demonstrate a case beyond the balance of preponderance that leave lies for Judicial review.
    
17. 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 defendant plaintiff a trial date where he can examine all that he raises in accordance with the law by the Criminal Practise Rules, to expedite his matter 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. There 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 the applicant plaintiff. There is nothing for this Court to invoke in favour of the plaintiff and his 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). Leave for Judicial review does not lie and has not been made out to the required balance of preponderance. This action is without merit and will suffer what is due by its fact and circumstances in law, dismissal forthwith with costs to follow the event.
    
18. 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 to frustrate and procrastination of a process of law that must in all relevance follow to the trial of that matter where the position of the defendant, plaintiff 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 leading. Justice has not been denied the plaintiff. This action is therefore a case where the law was clear and the applicant has 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).
    
19. 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 and dig into Judicial time. Parties should not be unnecessarily dragged into Court. Procrastination of matters must be stopped. This is a matter originating from a 2013 criminal complaint that culminated in this proceedings which was stayed because of this proceedings now since 2017. That complaint must see out its day in Court for the applicant the State. To grant will prejudice the rights of the State by its 8.5 million people against one individual the applicant. It would not par to accede to his application because he will have all in the criminal trial proper if the matter is committed. Accordingly, the costs will follow the event on an indemnity basis against the Plaintiffs for the defendants.
    
20. Technicalities of the law are to serve justice not without. There is no excess of jurisdiction here so that Paraka v Peng [2016] PGSC 86; SC1622 (29 March 2016) is applicable. Here is a committal proceedings that has been unnecessarily delayed because of a technicality that would be adequately addressed should the matter be committed. It is not a jurisdictional error rather it is an exercise of quasi administrative process to see out sufficiency of evidence to commit. And there is nothing apparent or identifiable to sway that leave lies pursuant.
    
21. Here it is not serving justice to continue on issues that can be adequately addressed to the accused in a proper criminal hearing if the matter is committed to stand trial. All men are equal under the Constitution of our Country Papua New Guinea, the plaintiff with the State in the allegation are no different. The process of the law must and will be followed. Leave for Judicial review is not made out and is refused with Costs on an indemnity basis against the plaintiffs.
    
22. The formal orders of the Court are:
    
    • (i) The application for Leave for Judicial review is refused and dismissed forthwith.
    • (ii) The matter will revert to the Committal hearing to progress at the next hearing date set.
    • (iii) The Plaintiff shall pay the costs of the defendants on an indemnity basis incidental to these proceedings to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Harvey Nii Lawyers: Lawyer for the Plaintiffs

Office of the Solicitor General: Lawyer for the Defendants