Agiru v Electoral Commission [2002] PGSC 5; SC687 (24 June 2002)

SC687

PAPUA NEW GUINEA

[IN THE SUPREME OF JUSTICE]

SC Appeal No. 49 of 2002

BETWEEN:

ANDERSON AGIRU
Appellant

AND:

THE ELECTORAL COMMISSI0N
First Respondent

AND:

THE STATE
Second Respondent

Waigani: Hinchliffe, Jalina, Batari JJ

2002: 21 & 24 June

CONSTITUTIONAL LAW – Constitutional right – Enforcement of – Right of review of conviction and sentence by higher court or tribunal according to law – Whether the right extends to Leadership Code offence - Constitution s. 37 (15).

PRACTICE AND PROCEDURE – Application under s. 57 Constitution to enforce constitutional rights – Application following unsuccessful application for review under Constitution s. 155 (2) (b) before differently constituted Supreme Court – Earlier application was made concurrently under s.155 (2) (b) and s.155 (4) – Application under s. 155 (4) withdrawn – Subsequent application before the National Court under s. 57 an abuse of process - Constitution secs.37 (15) & 57.

Cases cited

Peipul v Justice Sheehan, Orim Karapo and Iova Geita, Unreported Supreme Court Judgment dated 24 May, 2002
SCR NO.1 of 1981 Re: Inter-Group Fighting Act 1977 [1981] PNGLR 151
Ronney Wabia v BP Exploration Operating Co. Ltd & Ors Unreported National Judgement N1697
The State v Peter Painke [1976] PNGLR 210
National Excutive Council v Public Employees Association [1993] PNGLR 264
Ipatas v Enga Interim Provincial Government & Anor, Unreported National Court Judgment N1491 dated 24 October 1996;
Aro Investments Pty Ltd v Fly River Provincial Government, Unreported National Judgment N1519, dated 6 February 1997;
Pukari & Oro Cable Television v Seeto Unreported National Judgment N1490 dated 6 September, 1996.
Counsel

Mr. G. Sheppard, for the Appellant
Dr. J. Nonggorr, for the First Respondent

Mr. D. Cannings, for the Second Respondent

24th June, 2002

BY THE COURT: This is an appeal against the judgment of Gavara-Nanu J dated 12th June, 2002 refusing to grant the Appellant’s application under Constitution s. 57 to enforce his rights under s. 37(15). Section 57 provides:

"57. Enforcement of Guaranteed Rights and Freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section—

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution."

Section 37 provides:

"37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence-

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No person shall be tried for an offence for which he has been pardoned.

(10) No person shall be compelled in the trial of an offence to be a witness against himself.

(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(13) Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority—

(a) is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or

(b) is by law empowered or required to do in the interests of defence, public safety or public order.

(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(19) Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.

(20) An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.

(21) Nothing in this section—

(a) derogates Division III.4 (principles of natural justice); or

(b) affects the powers and procedures of village courts.

(22) Notwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice."

APPEAL BACKGROUND

The background to this appeal is as follows. The Appellant was charged with 15 allegations of misconduct in office before the Leadership Tribunal under s. 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and Constitution secs. 27(1) (b), 27(1) (c), 27(1) (d) 27 (2) and 27(5) (b).

On 16th January, 2002 the Tribunal found the Appellant guilty on 12 allegations and not guilty on 3. Then on 18th January 2002 it recommended that the Appellant pay a fine on 7 of the allegations and that he be dismissed from office on 5. The Acting Governor General, acting in accordance with the advice of the Tribunal then dismissed the Appellant from office and imposed a fine of K7,000.00 on 20th January, 2002.

We make these general references to the allegations on which the Appellant was found guilty without specifying the particular allegation in respect of which a fine was imposed and those in respect of which recommendation for dismissal were made as we are not concerned here with the review of the decision of the Tribunal.

On 22nd January, 2002 the Appellant filed an originating summons in the National Court seeking leave to review the decision of the Tribunal pursuant to O 16 r 3 of the National Court Rules ("the NCR"). That application was heard on 12th February and refused on 14th February, 2002.

Then on 25th March, 2002 the Appellant filed two separate applications seeking two distinct remedies. The first application was for judicial review under Constitution s. 155 (2) (b) and the other application was for orders under s. 155 (4). Those two applications came before a five member Supreme Court Bench on 25th March, 2002 but the Appellant elected to abandon the application under s. 155 (4) and proceeded only under s. 155 (2) (b) when the Supreme Court raised a preliminary point concerning the propriety of making two distinct applications over the same issue.

On 24th May, 2002 the Supreme Court dismissed the s. 155(2) (b) application on the basis of abuse of process. Then on 29th May, 2002 the Appellant filed a further application in the National Court invoking Constitution s. 57(1) to enforce his rights to have his conviction and sentence reviewed by a higher court under s. 37(15) and his right to stand for public elective office under s. 50(1).

GROUNDS OF APPEAL

As we have indicated above, the application under Constitution s. 57 was dismissed by Gavara-Nanu J on 12th June, 2002. The Appellant now appeals against that decision on the following grounds:

(1) His Honour erred in law in finding that s.27 of the Constitution does not constitute "an offence"

(2) Alternatively, if His Honour did not err in finding that s. 27 does not constitute "an offence", then

1. he erred in law in not granting the applicant relief because the penalty of dismissal from office was imposed on the applicant only for convictions of offences of misconduct in office under s. 27 of the Constitution, and for no other.
   
2. the Applicant cannot be found guilty or penalized of something that is not an offence, but "merely spells out the responsibilities of leaders".
   
3. His Honour should instead have found that s.27 of the Constitution (is) an offence.
   

(3) His Honour erred in law in not finding that

(a) an offence under s. 27 of the Constitution was not criminal in nature, given the sanction provided in s.27 of the Constitution for a contravention of s.27, and 28(1A)(2) of the Constitution.

(b) that the protection of s.37(15) of the Constitution extends to convictions and penalties for offences under s.27 because of the sanction prescribed in s. 23of the Constitution.

(4) His Honour erred in law in finding that s.37(15) is not absolute. He should have found that it is an absolute fundamental right which cannot be restricted.

(5) His Honour erred in law in finding that the provision of O16 R3 (a) are regulating. He should have found that they are prohibitive.

(6) His Honour erred in law in finding that s.57 "can only be invoked when application is made according to law". He should have found instead that the ambit of s.57 is not restricted to such cases, but can be invoked at any time.

(7) His Honour erred in finding that because the Applicant had invoked O16 R3, his s. 57 application are abuse of process.

(8) His Honour erred in law in not referring the question of interpretation raised in the matter in the court below to the Supreme Court for its determination.

The Notice of Appeal reveals a number of grounds but in essence, his grounds can be summarized into two basic categories:

1. that, His Honour erred in his finding that the protection accorded by Constitution s. 37(15) does not extend to offences and penalties under Constitution s. 27.
   
2. that, His Honour erred in his findings that the application under Constitution s. 57 was an abuse of process of the court.
   

We propose to consider the two categories in the order set out above.

The Right under s. 37(15) of the Constitution.

As we have quoted earlier, s. 37 (15) gives a person convicted of an offence the right to have his conviction and sentence reviewed by a higher court or a tribunal according to law.

It has been submitted by the Appellant that s. 37 (15) affords him a right of review for which no leave was necessary and so the requirements of O.16 r.3 of the NCR to obtain leave to seek what was his constitutionally guaranteed right was prohibitory in nature and not merely regulatory. He submitted that he should be granted his right to have his conviction and sentence reviewed by a higher court or tribunal and the courts should not suffer a breach of a person’s fundamental right without remedy merely because of procedural error. He further submitted that since Constitution s. 27 imposes a duty on "leaders", it creates an offence of misconduct in office for a contravention of that office. Therefore, the right accorded by s. 37(15) extends to an offence under the Leadership Code. He relies on the meaning of "offence" which was defined in SCR NO.1 of 1981 Re: Inter-Group Fighting Act 1977 [1981] PNGLR 151 at 154 as, any act or omission in consequence of which a person may be imprisoned immediately or upon non-payment of a fine.

Alternatively, Mr. Sheppard submitted that the protection of s. 37(15) extended to certain constitutional offences and restrictions and are therefore subject to the penal sanctions of s. 23 as for example, those offences under secs. 27 and 28 because s. 23 empowers the National Court to impose a sentence of imprisonment upon failure to pay the fine imposed under s. 28 (1A).

The Appellant also made submissions in respect of his right to stand for public elective office under Constitution s. 50(1) but since the exercise of that right is dependent, in our view, upon our decision in respect of s. 37(15), we consider that it is not necessary for us to deal with it at this stage.

It has however been submitted by Dr. Nonggorr for the First Respondent that a "misconduct" offence under the Leadership Code was not a "criminal" offence as is usually understood. He submitted that the decision of Kapi DCJ in Peipul v Justice Sheehan, Orim Karapo and Iova Geita, Unreported Supreme Court Judgment dated 24 May, 2002 correctly stated the law on this aspect. His Honour said on page 50:

"The final ground of appeal on penalty relied upon by counsel for the appellant alleges that the trial judge erred in law in holding that the argument under s.37 (15) of the Constitution is not relevant. There is no merit in this ground. Section 37(15) is applicable to criminal offences and has no application to Leadership Code offences. Even if this section was applicable (which it is not) any such penalty would be reviewed in accordance with the law."

We have carefully considered the submissions of both parties and we find that the grounds of appeal mounted by the Appellant on the basis of s. 37(15) have no merit. We fully endorse the law regarding the application of s. 37(15) to Leadership Code offences to be as expressed by Kapi, DCJ in Peipul v Justice Sheehan, Orim Karapo and Iova Geita (supra). Furthermore, even if s. 37(15) were to apply, (which it does not) we are of the view that the Appellant having first exercised his right of review by a higher court namely, the National Court under O.16 r.3 and then subsequently choosing not to appeal from the decision of the National Court to the Supreme Court which is the final court in our land, he cannot now say that O.16 r.3 is unconstitutional because he was denied the right of review. This is not a case where the Appellant sought to apply to have the decision of the Leadership Tribunal reviewed and the National Court at the first instance "shuts its door" as it were, in his face. The Appellant has exercised his right of review by going to the National Court under O.16 r.3 and also exercised his right to a further review by deciding deliberately to waive his right to appeal the decision of the National Court refusing leave to review the Leadership Tribunal decision.

We now turn to the Appellant’s alternate submission on the basis of Constitution s. 23, which provides:

"23. Sanctions.

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1)."

It was submitted by Mr. Sheppard that Leadership Code offences are criminal in nature because in the event that, for example in this matter, the K7,000.00 fine was not paid then the Appellant could be imprisoned for up to 10 years or fined up to K10,000.00 pursuant to Constitution s. 23. The said section is headed "Sanctions". We are of the view that that argument is, with respect, misconceived. As we have already said, from our reading of the whole of Constitution s. 37, sub-section (15) does not apply to Leadership Code offences. Such offences are not criminal in nature because they do not attract a conviction as occurs in a court of competent jurisdiction and that the Leadership Tribunal is not a court of law. Tribunals are outside the National Judicial System as specified in Constitution s. 159. After carefully reading s. 23, we are satisfied that the said section is not referring to a situation where a person has failed to pay a fine handed out by a Leadership Tribunal.

In a criminal case where a person has been convicted and fined by a court and then has not paid the fine he may well be imprisoned for a certain period but in a non-criminal case we are satisfied that where a fine has not been paid it follows that there would be "in default distress". That is, that proceedings would be commenced to recover the unpaid fine monies for instance, by seizing and subsequently selling some of the person’s property. Again we are of the view that the said s. 23 is not relevant here because we are satisfied that it does not cover fine defaulters in non-criminal cases.

Abuse of Process

The Appellant has alleged in respect of this ground that the trial judge erred in finding that because the Applicant (now the Appellant) had invoked O.16 r. 3 of the NCR, his s. 57 application was an abuse of process. He addressed this ground briefly on pages 19 to 20 of his submissions. We note, with respect, that he does not refer to any case law to support his contention that the trial judge made an error. In other words he does not refer us to any authority or statute law to demonstrate to us that the course adopted by him whereby he made the application under Constitution s. 57 to enforce his rights under secs. 37(15) and 50(1) after the number of earlier proceedings in both the National Court and the Supreme Court did not amount to an abuse of process of the court. He has submitted that there was no abuse of process because no substantive issues were determined in the Supreme Court in respect of his application under s. 155(2)(b) but was dismissed purely on procedural grounds and that the issues raised in the application under secs. 57 and 50(1) before Gavara-Nanu J had nothing to do with review applications. The issues raised before Gavara-Nanu J were matters which had not been considered or determined in previous proceedings and that legal technicalities such as issue estoppel cannot prevent someone enforcing his constitutional rights.

Submissions on behalf of the Respondents on this aspect were made by Mr. Cannings who appeared, on instructions from the Public Prosecutor, for the Second Respondent.

The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes have been succinctly put before us by Mr. Cannings in his submissions. Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process. (see, generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697dated 28 March 1998)

In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:

"mere motive, however reprehensible, will not be sufficient" (to constitute abuse of process) "it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable".

The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding. This has been clearly set out by the Supreme Court in National Excutive Council v Public Employees Association [1993] PNGLR 264 where it was held:

"An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1 (1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis."

(See also Ipatas v Enga Interim Provincial Government & Anor, unreported National Court Judgment N1491 dated 24 October 1996; Aro Investments Pty Ltd v Fly River Provincial Government, Unreported judgment N1519, dated 6 February 1997; Pukari & Oro Cable Television v Seeto Unreported judgment N1490 dated 6 September, 1996.)

In determining whether or not there has been an abuse of process of the court by the Appellant, the whole history of the case commencing from the decision of the Leadership Tribunal to the present, needs to be considered and not only the application under Constitution s. 57 the subject of this appeal. From the history of the various proceedings instituted by the Appellant in both the National and Supreme Courts and the case law we have alluded to, there are no doubts in our minds that the application the subject of this appeal was an abuse of process. The decision not to appeal to the Supreme Court against the order of the National Court refusing to grant leave under O.16 r.3 of the NCR but to make a double barreled application directly to the Supreme Court under Constitution secs. 155(2)(b) and 155(4) was a calculated and deliberate choice by the Appellant. For him to then seek to obtain the same remedy eventually through an application under Constitution s. 57 cannot be permitted. His submission that he was not accorded an opportunity to argue the merits of his review is not something that anyone else can be blamed for. As we have said, he deliberately chose not to avail himself of his right of appeal to the Supreme Court in the first instance against the refusal to grant leave under O.16 r.3 so the Appellant has no one but himself to blame.

For the foregoing reasons we find not only that the rights under s. 37(15) do not extend to Leadership Code offences, but also that the application under s. 57 was an abuse of process. We can find no error in the decision of the trial Judge from whom this appeal has been brought.

We accordingly dismiss the appeal, with costs to the Respondents.

Lawyer for the Appellant: Maladinas, Lawyers
Lawyer for the First Respondent: Nonggorr & Associates

Lawyer for the Second Respondent: Public Prosecutor