N9850

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1301, 1302 1303,1257 & 1258 OF 2021
THE STATE
-v-
GEORGE MANJIBAN, LINDEN KEARI, JOHNSON URINGKE

Madang:  Geita J
2022: 10th, 12th August

CRIMINAL LAW – Practice and Procedure – Committal Proceedings -Procedural irregularity – Failure to administer s. 96 District Courts Act. 

CRIMINAL LAW – Practice and Procedure – Committal Proceedings -District Courts are creatures of Statute – Breaches of mandatory procedures will render the process void and have no effect.

CRIMINAL LAW – Practice and Procedure – Committal Proceedings – Defendants fundamental rights to be heard denied 

CRIMINAL LAW – Practice and Procedure – Committal Proceedings – The affixing of wrong Court Seals on particular court documents renders that document wanting form. 

Cases Cited

Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208; N2568
Wama v Palme [2012] PGNC 85

District Court Case Cited

Henry v Arua [2020] PGDC; DC4048

Counsel:

Mr. Francis Popeu, for the State
Mr. Carl Kuira, for the Accused

INTERLOCUTORY RULING
12th August, 2022
1.    GEITA J:	The three accused appeared before me on allegations of false assumption of authority, personating public officers, uttering false documents and counterfeit seals. Charges were laid under ss 76 (b) and 97 (1) (a) and s 463 (1) (2) (a) (b) Criminal Code Act. 
2.	By way of introduction I set out the nature and circumstances under which the accused were arrested and prosecuted. They were all charged in relation to the same set of facts in which the prosecution alleged that on 11 March 2019 Johnson Uringke organized an election with the assistance of Linden Keari and George Manjiban and replaced the complainant, Neneti Tesai as the Chairman of Balimoia Landowners Association, herein referred to as BLA, on allegations of misconduct in office. They had no authority to conduct such elections and therefore no authority to conduct the business of the Association.    
3.	Upon settling on a pretrial review statements Counsel of defendant Mr. Kuira sought leave and was granted leave to file documents to move a motion seeking dismissal of the proceedings based on procedural defects during the committal proceedings at the District Court.
4.	His client’s motion amongst other orders seeks to have the Indictment quashed pursuant to section 155 (4) of the Constitution and section 585 of the Criminal Code Act.

5.	Linden Keari and George Manjiban allege that on 29 August 2021 they appeared for mention before Ramu Committal Court but were committed to the National Court. In their respective affidavits filed on 9 August 2022 they deposed that no proper committal hearings were conducted and that they both were not accorded their rights to be heard under Section 96 of the District Courts Act.	

6.	Johnson Uringke deposed in his affidavit filed on 9 August 2022 that on 31 August he appeared before the same court after a failed attempt for settlement between the parties the previous day. The Magistrate advised the parties that since his co-accused were committed to the National Court on 29 August 2021 he also must be committed. Johnson Uringke deposed that his Lawyer was not given an opportunity to respond to the findings nor were proper committal hearings conducted in accordance with the requirements of the District Courts Act.
 	 
7.	Mr Francis Popeu for the prosecution submitted that despite repeated attempts to obtain all necessary information from Ramu District Court to assist this Court, their attempts have been futile. The only document on hand were the three (3) Notice of Committals for Johnson Uringke dated 31 August 2021 with Committal Numbers 46,47 & 48 of 2021 and Notice of Committal for George Manjiban dated 30 August 2021 with Committal Number 41 of 2021.

8.	Upon a closer examination of the notice of committals they all bear signature and style of the Committing Authority. I take judicial notice of His Worship Nasaling Bingtau’s signature. What is baffling is that George Manjiban’s Notice of Committal bears the seal of Ramu Coroners Court. Only Johnson Uringke’s Notice of Committal bears the correct seal, District Court Ramu.

9.	What is more baffling is that under the Remarks section in Johnson Uringke’s Notice of Committal the Magistrate recorded 1: By the consent of the defence counsel and the prosecutor defendant committed to stand trial in the National Court in Madang for the three (3) counts…
As for George Manjiban’s remarks he was committed to stand trial in the National Court in Madang…

10.	I am at a loss to understand why the Ramu Coroner’s Seal was affixed to the District Court Committal Notice. To my mind that alone if contested is capable of rendering the defective indictment wanting form and a nullity. By convention, all courts take judicial notice of the signature and common seal of court documents. It follows that if there are defects or signs of variances in those documents, they are rendered void, in my view. As to the Magistrate’s remarks in the Indictment of both Defence Counsel and Prosecution consenting to committing the defendants to trial, again I consider it highly irregular and unheard off. No right-minded defence counsel would willingly consent to his client being committed to stand trial. I can only speculate that this irregularity was reflective of the Magistrate not in his right frame of judicial mind when he made those remarks. 

11.	As can be seen from the above evidence and records Counsel of Defence was not invited to make submissions before His Worship made up his mind to commit the Defendants to stand trial under s.100 (1) (3) District Courts Act. 

Discharge or Committal of Defendant.
Section100 (1) When an examination under this Division is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.
(3) Where–
(a) in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or
(b) the Court commits the defendant for trial under Section 94B (1)
…

12.	Similarly, there is no evidence or court records to show that the Committal Magistrate, having formed the opinion that the evidence is sufficient to put the defendants on trial, accorded the defendants to be heard under Section 96 District Courts Act. This process gives an opportunity for the defendants to say anything in relation to the charge(s), if they so wish.

S. 96. 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.”

(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.	Courts have generally accepted s. 96 statements in a casual manner and this ought to be discouraged lest the spirit and intent of this Constitutional imperative of the right to be heard is flouted. The preferred form of recording such statements is found in s. 2 (2) of the District Courts Regulations: (Form 30). Neither the approved form or some statement encapsulating the intent and spirit of s. 96 shown in all three Notice of Committals.
14.	The former Deputy Chief Justice Sir Salamo Injia (as he was then) had this to say and I quote: “The administration of S.96 statement must be meaningful and administered fairly, not only in the literal administration of the S.96 statement by the Magistrate but also the manner in which it is administered, so that there is no apprehension or misapprehension in the minds of the public and the parties, that S.96 administration is a mere formality; that the Magistrate already having decided on the sufficiency of the evidence under S.95 "to put the defendant to stand trial", the Magistrate is pre-disposed to making a decision under S.100 to commit the defendant to stand trial, irrespective of what the defendant says under S.96.(  Page 10 of Judgement. (Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208; N2568 (25 June 2004)).
15.	As can be seen from the present case the decision to commit the defendants to stand trial in the National Court under s. 100 were reached with flawed process in that principles of natural justice were breached. There was no meaningful and reasonable opportunity to accord them their rights to be heard under s.96 when the Committal Court made up his mind to commit them for trial. The District Courts are creatures of statute and its practice and procedures must be strictly complied with. (Wama v Palme [2012 PGNC 85)

What powers do I have in such situations? 
16.     As opposed to judicial reviews this application has come before me by way of an ordinary motion with all necessary supporting affidavits and submissions and cited section 558 of the Criminal Code and section 155 (4) Constitution. For the moment it is not necessary to invoke section 155 (4) Constitution. I am satisfied that section 558 Criminal Code will suffice. 
Section. 558. Motion to quash Indictment.

The accused person may, before pleading, apply to the court to quash the indictment on the ground that–

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or
(b) it is formally defective.
(2) On a motion under Subsection (1), the court may–
(a) quash the indictment; or
(b) order it to be amended in such manner as the court thinks just; or
(c) refuse the motion.

17. 	Having heard both Counsel of this point, I am of the view that it will serve very little purpose to order the defective Indictment to be returned to the District Court to be amended and returned again. As I understood from submissions this matter has taken a new twist and is under mediation by orders of another National Court. Although I have been referred to a District Court case of Henry v Arua [2020] PGDC; DC 4048, in which the District Court remedied a supposedly defective indictment from orders of the National Court, I am not privy to that process and or what transpired at the National Court so I cannot comment. Put differently there is nothing before me. On his part Mr Kuira extensively relied on the case of Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208; N2568. This decision emanated from a Judicial Review process. I am satisfied that the pronouncements regarding section 96 application are equally applicable in this case. I adopt and apply them here.  To this end I am satisfied that S. 96 was not administered at all in this case resulting in the defendant’s denied their fundamental rights to be properly heard and will therefore order that the defective Notice of Commitments and all related Indictments be quashed.

COURT ORDERS

18.     The Court orders the following:

1.	All Notice of Committals are quashed;
2.	All Indictments are quashed;
3.	All bail to be returned to the accused.
_____________________________________________________________
Public Prosecutor: Lawyer for the State	
Kuira Lawyers: Lawyer for the Accused