Application by Leahy [2009] PGSC 17; SC994 (27 October 2009)

SC994

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 1 0F 2009

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY
HERMAN JOSEPH LEAHY

Waigani: Batari J, Cannings J, Kariko J
2009: 27 October

APPEALS AND REVIEWS – decision of National Court to allow amendment of indictment that had been presented under Criminal Code, Section 526 – application for leave to seek review under Section 155(2)(b) Constitution – criteria to be satisfied.

The applicant applied for leave to seek review under Constitution, Section 155(2)(b) of a decision of the National Court to grant leave to the Public Prosecutor to amend an ex officio indictment, ie an indictment that had been presented under Section 526 of the Criminal Code.

Held:

(1) The decision of the National Court is reviewable by the Supreme Court under Section 155(2)(b) of the Constitution, there being no right of appeal and no other way the applicant could bring the matter to the Supreme Court provided that the applicant can show:

(a) there is an important point of law to be determined; and

(b) it is not without merit. (Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433; Re Leahy (2006) SC855.

(2) The applicant satisfied both criteria and there being no abuse of process detected the Court exercised its discretion by granting leave for review.

Cases cited

The following cases are cited in the judgment:

Re Leahy (2006) SC885
Smedley v The State [1980] PNGLR 379
Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433

APPLICATION

This was an application for leave to seek review under Constitution, Section 155(2)(b) of a decision of the National Court ordering an amendment to an indictment that had been presented under Section 526 of the Criminal Code.

Counsel

I Molloy and S Nepel, for the applicant
P Kelly and A Bray, for the respondent

27 October, 2009

1. BY THE COURT: Herman Joseph Leahy has applied for leave to seek review by the Supreme Court of a decision of the National Court constituted by Justice Kirriwom. His Honour decided to grant leave to the Public Prosecutor to amend an indictment that had been presented under Section 526 of the Criminal Code. The application for leave is made under Section 155(2)(b) of the Constitution to review Kirriwom J’s decision. The applicant did not appeal as, he says, he had no right of appeal:

2. The exercise of jurisdiction under Section 155(2)(b) is not automatic. Resolution of a case under Section 155(2)(b) consists of two distinct steps:

- first, the court decides whether it is necessary for the applicant to be given leave (ie permission) of the Supreme Court for the application to be heard and, if it is necessary, whether leave should be granted to the applicant;

- secondly – if leave is either not necessary or is granted – the Court determines the substantive review.

3. If leave is necessary but is refused, the substantive review does not get determined.

SHOULD THE APPLICANT BE GRANTED LEAVE FOR REVIEW UNDER SECTION 155(2)(b) OF THE CONSTITUTION?

4. In Re Leahy (2006) SC885, the Supreme Court followed its decision in Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433 and held that if an appeal is not expressly prohibited or limited by law but the applicant has no way of coming to the Supreme Court except under Section 155(2)(b), leave is necessary, but the only criteria to be satisfied are:

1 there is an important point of law to be determined; and

2 it is not without merit.

5. In the present case an appeal against a decision of the National Court to allow an amendment to an ex officio indictment – more correctly called an indictment under Section 526 of the Criminal Code – is not expressly prohibited or limited by law and the applicant has no way of coming to the Supreme Court except under Section 155(2)(b). Therefore the two criteria set out above must be satisfied.

6. As to the first criterion, we are satisfied that the application raises the important question of whether the Public Prosecutor is able to amend a Section 526 indictment after its presentation and before the accused is arraigned, ie before the commencement of a trial. This issue has never been authoritatively settled and it is arguable that there are competing National Court decisions on the point.

7. As to the second criterion, we have heard from counsel for both parties what the general nature of the arguments will be if leave is granted and we consider that the arguments proposed to be raised by the applicant are not without merit. Mr Kelly, for the respondent, submitted that the cases the applicant wants to use as the basis for his argument that amendments to Section 526 indictments are prohibited are distinguishable. But he has not convinced us that the applicant’s arguments are devoid of merit. They need to be fully tested.

8. We are thus satisfied that both criteria have been met. We are therefore in the position where we can properly exercise our discretion to grant leave.

9. At this point it is timely to note that the granting of leave is always a matter of discretion. If there were to be a case in which, for example, an accused person was seeking to challenge under Section 155(2)(b) a series of decisions of the National Court prior to or during trial, on a piecemeal basis, such a situation might give rise to an abuse of process. It is possible that the two criteria we have outlined might be satisfied but the Court would nevertheless refuse leave in order to protect its processes or the processes of the National Court against abuse.

10. In this case, however, we detect no abuse of process and, the two criteria having been satisfied, we have decided to grant leave to the applicant to argue the grounds of review set out in the application filed on 14 January 2009.

11. The Supreme Court will therefore order that:

1. the application of Herman Joseph Leahy for leave to seek review of the judicial act of the National Court at Waigani on 11 December 2008, ordering the amendment of the indictment presented against him by the Public Prosecutor, is granted; and

2. the application of Herman Joseph Leahy for review of that judicial act will proceed to hearing forthwith;

3. the question of costs is reserved, pending further argument.

Judgment accordingly.

___________________

Young & Williams: Lawyers for the applicant
Public Prosecutor: Lawyer for the respondent