Duban v Kome [2022] PGNC 376; N9872 (9 September 2022)

N9872

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. (JR) NO. 55 AND 56 OF 2022

BETWEEN:
NIXON PHILIP DUBAN AND HELEN KANIMBA
Plaintiffs

AND:
HIS WORSHIP BEN KOME as SENIOR PROVINCIAL MAGISTRATE OF MADANG DISTRICT COURT
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Narokobi J
2022: 11^th August, 9^th September

ADMINISTRATIVE LAW - Judicial review - Application for leave - Need to establish an arguable case

Facts

The Plaintiffs seeks to review the decision of the Committal court committing them to stand trial in the National Court on the basis that the process under ss 95, 96 and 100 of the District Court Act were not complied with. They further sought to have their committal to the National Court to stand trial quashed and that they be discharged of all charges against them on the basis that had the learned magistrate properly applied his mind to the evidence he would have determined that there was insufficient evidence on the charges and that the Plaintiffs ought to be discharged and their bail money refunded.

Held

(1) The grounds of natural justice is peripheral to the overall objective of the Plaintiffs’ application for judicial review which is to have them exonerated of the charges on the basis that no proper tribunal considering the evidence would come to the conclusion that there was a prima case against them. This goes beyond the question of jurisdiction and considers the exercise of discretion by the learned magistrate.

(2) The proceedings seek to terminate the proceedings and have the Plaintiffs discharged. This would be venturing into the terrain of the National Court criminal trial process which the Plaintiffs still have the right to be heard there. Their right to presumption of innocence remains. They can also make a no case submission at the proper trial if the evidence is lacking or to test the State’s case through cross-examination and be acquitted after trial. It would be contrary to public policy if the proceedings are terminated.

(3) The application for leave for judicial review is therefore refused as there is no arguable case.

Cases Cited

Kekedo v Burns Philip PNG Limited and Ors [1988-89] PNGLR 122
Lak v Magaru [1999] PNGLR 572
Maladina v Poloh (2004) N2568

Statutes Cited

Constitution
District Court Act, Chapter 40

Counsel

Mr B Wak, for the Plaintiffs
Mr E, Manihambu, for the Defendants

RULING

9^th September, 2022

1. NAROKOBI J: The Plaintiffs Mr Nixon Duban and Ms Helen Kanimba are seeking leave of the National Court under Order 16 Rule 3 of the National Court Rules to review a decision of the District Court to commit them to stand trial in the National Court.
   
2. The Plaintiffs have agreed for the court to consider their leave applications for judicial review together as their grounds of judicial review are similar.
   
3. Both Plaintiffs were charged with official corruption under the Criminal Code. Their case was considered by the committal court and the learned District Court magistrate committed Mr Nixon Duban and Ms Helen Kanimba to stand trial in the National Court on 12 January 2022.
   
4. The main issue in relation to whether the applicant should be granted leave to apply for judicial review is whether the applicants have an arguable case. This is one of the four grounds usually considered by the court as to whether leave for judicial review should be granted (Kekedo v Burns Philip PNG Limited and Ors [1988-89] PNGLR 122).
   
5. There is no contest that the applicants have standing, they have come to court within time and there is no other available administrative avenues to seek redress before coming to court.
   
6. As to whether the Plaintiffs have an arguable case, is determined by consideration of the grounds for judicial review pleaded in the Statement pursuant to Order 16 Rule 2(a) of the National Court Rules. The grounds of review of both plaintiffs are similar if not identical so I repeat the grounds relied on by Mr Duban:
   

“a) The First Defendant failed to give his reasons for his decision under Section 95 of the District Courts Act made on the 06th December, 2021 which is contrary to principles of natural justice and the rights of the Plaintiff be heard which the right to know the reasons for the decision that was made against him contrary to Section 59 of the Constitution and principles of natural justice.

b) The First Defendant failed to provide his written reasons for his decision under Section 95 of the District Courts Act made on the 06th December, 2021 despite the First Defendant undertook openly in court undertook to the parties specifically the Plaintiff and the Prosecutor that he would provide a formal written decision which he did not provide despite several request by the Plaintiff and his lawyers which amounted to breaching the principles of natural justice as stipulated under Section 59 of the Constitution.

c) The First Defendant acted in breach of Section 95 of the District Courts Act when he failed to give reasons for his decision after considering evidence offered by the Prosecution including the submissions presented by the Plaintiff on sufficiency of evidence which amounted to breaching the principles of natural justice as stipulated under Section 59 of the Constitution.

d) The acted in breach of Section 96 of the District Courts Act when the First Defendant failed to give the Plaintiff opportunity to be heard which amounted to breaching of the principles of natural justice as provided under the Section 59 of the Constitution.

e) The First Defendant misapprehended and acted in breach of Section 96 of the District Court Act when he invited the Plaintiff to either deny or admit the commission of the alleged offence based on the fact that he made his findings on the 06th December, 2021

that there was sufficient evidence under Section 95 of the District Courts Act.

f) The First Defendant committed error of law and acted in breach of Section 96 of the District Courts Act when did not invite the Plaintiff or lawyers to oral and written submissions after receiving statements both written and oral from the Plaintiff under Section 96 of the District Courts Act.

g) The First Defendant acted in breach of principles of natural justice that after considering the evidence and statements presented by the Plaintiff under Section 96 of the District Courts Act, the First Defendant failed to give his reasons for his decision made under

Section 100 of the District Court Act which amounts to breaching the Plaintiff's rights to be heard and the First Defendants duty to give reasons as provided under Section 59 of the Constitution and principles of natural justice.

h) The First Defendant acted in breach of Section 100 of the District Courts Act and acted unfairly and unreasonably when he repeated his own decision made on the 06^th of December, 2021 under Section 95 of the District Courts Act to commit the Plaintiff rather than considering the evidence and statements presented by the Plaintiff.

i) The First Defendant made his decision on the 12th January, 2022 in a manner that no reasonable magistrate or tribunal would not have reached such decision when he failed to provide his reasons for his decision made under Section 100 of the District Courts Act

showing the legal basis and reasons behind his decision to commit the Plaintiff to stand trial before the National Court which amounts to breaching the principles of natural justice as well as principles of unreasonableness.

j) The First Defendant acted unfairly and in breach of the procedures and process provided under Sections 95, 96 & 100 of the District Courts Act when the First Defendant misapprehended and failed to appreciate that there the two (2) processes that are provided under a committal proceeding as set out in the case of Maladina v Principal District Magistrate Posain Poloh 120041 N2586 after making his findings under Section 95 of the District Courts Act informed the Plaintiff in open court that she was already

committed and the process under Section 96 of tire District Courts Act not necessary and was irrelevant for purposes of committal proceedings.

k) The finding by the First Defendant that there was evidence to commit the Plaintiff to stand trial at the National Court is miscarriage of justice as there is simply no evidence as required under Section 94B (2)(b) of the District Courts Act to satisfy the crucial elements of the charges which the Plaintiff was charged with at the material time.

l) The First Defendant has placed weight on irrelevant considerations in arriving at the conclusion that there is evidence by which to commit the defendant to stand trial at the National Court. Had his mind been placed on relevant considerations, in particular the crucial elements of the charges which the Plaintiff was charged with, the presiding magistrate will make a finding that there is simply no evidence or prima facie evidence on which to lawfully try and convict the defendant at the National Court.

m) Considering the case in its entirety, no reasonable tribunal of fact and law acting fairly and justly can make a finding on the statements evidence as contained in entire police file as being sufficient or of prima facie value to commit the defendant to stand trial at the National Court. In the circumstances tire Committal Court has proceeded its jurisdiction.

n) Considering the case in its entirety, no reasonable tribunal of fact and law acting fairly and justly will make a finding on the statements/evidence as contained in the police file as being sufficient or of prima facie value to commit the defendant to stand trial at the

National Court. Therefore, the decision of the First Defendant in committing the defendant to stand trial was very unreasonable under the circumstances in that there is simply no evidence, and furthermore irrelevant considerations was given weight in making that ruling.”

7. The basic facts are not disputed. On 23 September 2021 the Plaintiff Nixon Duban was arrested and charged with three counts of official corruption. The Plaintiff Helen Kanimba was arrested and charged on 22 January 2021 on five counts of official corruption. The charges relate to funds allocated for the Yagaum Hospital in Madang.
   
8. Both Plaintiffs were served the police file and time were given to prepare submissions on whether there was sufficient evidence for purpose of s 95 of the District Court Act, Chapter 40. After submissions the Committal Court on 6 December 2021 made his decision that there was sufficient evidence but undertook to provide reasons for the decision at a later date. He has not provided those reasons. After the decision on sufficiency of evidence, the case was adjourned to 16 December for both Plaintiffs to address the court as per the requirements of s 96 of the District Court Act. At that time, the learned magistrate was of the view that since he had already found that the Plaintiffs have a case to answer, it was not necessary to hear them. But at the insistence of their counsel, he heard them, and the Plaintiffs provided a written statement of facts to the District Court. The learned magistrate then adjourned the case to 12 January 2022 for a decision pursuant to s 100 of the District Court Act. On the anticipated date of 12 January 2022, the learned magistrate committed both Plaintiffs to stand trial in the National Court. There were no oral or written reasons provided for his decision.
   
9. I have considered the grounds advanced to support the review and the orders sought for the substantive judicial review. Whilst the question of whether natural justice was afforded to the Plaintiffs by the First Defendant’s failure to provide reasons for his decision, the rest of the grounds are to the effect that had the learned magistrate considered the evidence, he would have come to the conclusion that there was insufficient evidence and should have discharged both Plaintiffs. This is further supported in the final order being sought in the Statement that the Plaintiffs ought to be discharged from the charges.
   
10. In my view, this circumstance of this case is similar to what the court encountered in the case of Lak v Magaru [1999] PNGLR 572. In that case, the plaintiff applied to the National Court for judicial review of the committal court decision and by way of relief, sought a declaration that the decision of the presiding magistrate to commit the plaintiff is wrong in law and should be set aside; that the charge and information laid under s 220 of the Criminal Code against the plaintiff be dismissed and the order for committal by the Waigani District Court be quashed. Justice Sheehan refused the application for leave for judicial review and went on to hold that:
    

“These are not matters going to the jurisdiction of the Committal Court, rather these are specifically matters that may be raised at the trial before the National Court. That being so, this application for leave is declined.”

11. In the Lak case, Sheehan J in the National Court made this useful observation:
    

“In SCA 49 of 1988 Kekedo v Burns Philip PNG Limited and Ors [1988-89] PNGLR 122 the Supreme Court confirmed:

‘1. That the National Court judicial review jurisdiction exists even where appeal procedures are provided by the Parliament. This jurisdiction can only be taken away be express provision.

2. Save in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where other remedies are available.

3. Whether the statutory procedure would be quicker, or slower than procedure by way of judicial review, whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellant body are amongst the matters which a court may take into account when considering the exercise of discretion. The fact that judicial review is quicker and convenient is of itself not sufficient ground for the exercise of jurisdiction.

4. The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which to reasonable tribunal could have reached or abuses its powers.

5. The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.’

Notwithstanding that committal proceedings do make determination effecting a persons rights thus enabling courts to consider applications for review, the fact is that a committal nonetheless makes no determination of liability or penalty. It is a preliminary process in the system of criminal justice where the prosecutor makes public disclosure to a Committal Court of evidence relied on to support an application for committal for trial of a charge. The National Court is where that evidence is to be tried, where it is to be tested. Thus upon committal the National Court is seized of a matter in its criminal jurisdiction. And there in the National Court, an accused has all the rights protections and appeal procedures that the criminal justice system provides. Because of this, Courts have long been disinclined to intervene in complaints regarding committal proceedings by use of a civil action of review when the matters may properly be dealt with under the criminal jurisdiction itself.

Nonetheless where there are issues going to jurisdiction as outlined in the fourth proposition in Kekedos case, the civil jurisdiction of review may well be invoked.”

12. I consider that the grounds of natural justice in this case is peripheral to the overall objective of the Plaintiffs’ application for judicial review which is to be exonerated of the charges on the basis that no proper tribunal considering the evidence would come to the conclusion that there was a prima facie case against them. This goes beyond the question of jurisdiction and considers the exercise of discretion by the learned magistrate. In the case of Maladina v Poloh (2004) N2568, the non-compliance with ss 95, 96 and 100 of the District Court Act led the National Court to quash the committal and have the matter referred back to the District Court before another magistrate to hear the application and properly follow ss 95, 96 and 100 of the District Court Act. This is not entirely what is being sought here. The orders being sought by both Plaintiffs are similar and I quote what Mr Duban sought in his Statement:
    

(a) A declaration that the First Defendant failure to give reasons for his decision dated 12th January, 2022 amounts to breach of the principles of natural justice and duty of the administrative authority or tribunal to give reasons as set out under Section 59 of the Constitution and Section 155(4) of the Constitution and as per the principles outlines in the following Supreme Court decisions of Sir Arnold Amet v. Peter Charles Yania & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yania (2004) SC 747, Godfrey Niggints v. Henry Tokam & 2 Ors 119931 PNGLR 66 and Mission Asiki v. Manasupe Zurenoc & Ors (2005) SC797.

(b) A declaration that there were no good reasons or there was lack of reasons given by the First Defendant in making his decision on the 12th January, 2022 which amounted to breach the principles of natural justice and right to be heard as set out under Section 59 of the Constitution and Section 155(4) of the Constitution.

(c) A declaration that the decision of the First Defendant made on the 12th January, 2022 was made without any legal basis or justification in law contrary to principles of natural justice as provided under Section 59 of the Constitution and Section 155(4) of the Constitution.

(d) A declaration that the First Defendant acted unfairly and unreasonably in failing to allow the Plaintiff and their lawyers to make submissions after the close of the defence case in tendering of the statements and giving evidence as provided under Section 96 of the District Courts Act contrary to the principles of natural justice and right to be heard in law as per Sections 37(1) and 59 of the Constitution and Section 155(4) of the Constitution.

(e) A declaration that the First Defendant acted in a manner that was unreasonable and unfair that no reasonable magistrate sitting in his position would reached such decision as he did on the 12th January, 2022 when he failed to give and provide to the Plaintiff the reasons as to how he formed his determination and decision as to commit the Plaintiff to stand trial contrary to the principles of

Wednesbury principle' referred to is the principle laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 an administrative or judicial decision may be set aside by a superior court if it can be objectively determined to be unreasonable. An order in the nature of certiorari to bring up the decision of the First Defendant dated 12th January, 2022 to the National Court and have it quashed

pursuant to Order 16 Rule 1 of the National Court Rules and Section 155(4) of the Constitution and Order 12 Rule l of the National Court Rules.

(f) An order that all charges against the Plaintiff as contained in the respective information be dismissed and the Plaintiff be discharged forthwith pursuant to Order 16 Rule 2 of the National Court Rules and Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.

(g) An order that the Defendant cash bail of K2000.00 be refunded forthwith pursuant to Order 16 Rule 2 of the National Court Rules and Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.

(h) Costs of this action.

(i) Any other orders that the Court deems fit and proper.

13. There is no order being sought for the decision of the District Court to be quashed and sent to another magistrate to re-hear it, and this time complying with ss 95, 96 and 100 of the District Court Act. It seeks to terminate the proceedings and have the Plaintiffs discharged. This would be venturing into the terrain of the National Court criminal trial and the Plaintiffs still have the right to be heard there. Their right to presumption of innocence remains. They can also make a no case submission at the proper trial if the evidence is lacking or to test the State’s case through cross-examination and be acquitted after trial. It would be contrary to public policy if I terminate the proceedings before the criminal process commences. For these reasons, I would refuse the application and order that each party will bear its owns costs.
    

Bradley Wak Lawyers: Lawyers for the Plaintiffs
Solicitor-General- Lawyers for the Defendants