Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017)

SC1582

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM No. 27 of 2015

BETWEEN:
WILLIAM SENT

Appellant

AND:
PRINCIPAL DISTRICT COURT MAGISTRATE COSMAS BIDAR

First Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Manuhu, Murray, Pitpit, JJ
2015: 16 December
2017: 21 April

SUPREME COURT APPEAL –Appeal against dismissal of judicial review proceeding against committal of the Appellant to stand trial in the National Court – Whether National Court in its civil jurisdiction can intervene in a criminal process – Consideration of civil and criminal processes.

Cases cited:
Eremas Wartoto v. The State (2015) SC144,
Yaip Avini v The State [1997] PNGLR 212.

Counsel:
N. Ako, for the Appellant

J. Mugugia, for the Respondents

21^st April, 2017

1. BY THE COURT: The Appellant obtained leave to apply for judicial review of the Committal Court’s decision to commit him to stand trial in the National Court on various fraud related charges. On application to dismiss the proceeding by the Public Prosecutor, the judicial review proceeding was dismissed on the basis that it did not disclose a reasonable cause of action, it was frivolous and vexatious and, it was an abuse of process. The Appellant appeals by way of a notice of motion against that decision. This is the ruling on the appeal.
   
2. The first ground of appeal is that the Judge erred in law and in fact and misapplied the ruling in the case of Eremas Wartoto v. The State (2015) SC144, when he held that the National Court sitting as a Civil Court having civil jurisdiction have no power to deal with criminal proceedings before the National Court exercising criminal jurisdiction when the Court in the Wartoto’s case held that it would be inappropriate, and abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it.
   
3. The second ground is that the learned Judge erred in law and in fact when he held that the only recourse for the Appellant is to use the process under the Criminal Court as outlined in Wartoto’s case, when the fact of this case is at variance with the cited case in that there are no avenues or recourse available to the Appellant except Judicial Review under Order 16 of the National Court Rules or appeal and the Appellant is entitled to institute judicial review proceeding to challenge his committal in circumstances where the Committal Magistrate failed to comply with Section 96 of the District Court Act and consequently denied the Appellant the right to be heard.
   
4. The third ground is that the learned Judge erred in law and in fact when he held that there are other processes or avenues available when this issue was already dealt with at the leave stage where the Court was satisfied that there were no avenues available to the Appellant and it is not open to challenge except by appeal.
   
5. The fourth ground is that the learned Judge erred in law and in fact when he held that the Judicial Review proceedings duplicates criminal proceedings when the judicial review proceedings does not deal with the criminal charges but rather the order of the District Court committing the Appellant to stand trial at the National Court and further that the issues raised in the criminal proceeding are not the same as issues raised in the judicial review proceeding.
   
6. The fifth ground is that the learned Judge erred in law and in fact when he held that the National Court is seized of the matter in that proceedings in the National Court can only be commenced by indictment upon committal and that no indictment has been presented against the Appellant.
   
7. The final ground is that the learned Judge erred in law and in fact when he held that the Appellant failed to inform the Court of the National Court proceedings when such facts have been made known to the Court by the Appellant’s counsel during exchanges with the bench on various occasions leading up to the hearing and grant of Leave.
   
8. The foregoing grounds of appeal show errors that were allegedly committed by the learned Judge in his finding that the judicial review proceeding was unmeritorious. It is our opinion that the merits or otherwise of the judicial review proceeding depends not only on the issues raised in the grounds of appeal but also on the initial basis upon which judicial review was sought. Relevantly, what were the errors that were allegedly committed by the Committal Magistrate?
   
9. The relevant facts are that the Appellant was charged on 9 September 2013 under sections 407 (1) (b), 383A (1), 87 (1) (a), 92 (1) and 34 (2)(a) of the Criminal Code. The case was allocated to Magistrate Pinson Pindipia who presided over the matter. Eventually, the Appellant filed his submissions on 17 February 2014. The prosecution filed its reply on 21 March 2014. On 7 April 2014, the matter was further adjourned and on 26 May 2014, submissions were made before Magistrate Pindipia.
   
10. Magistrate Pindipia was however, arrested, charged and was unable to preside over the matter and deliver his ruling. On 30 September 2014, the matter went before Magistrate Bidar who heard and refused the submission by the Appellant’s lawyer for further oral submissions. The matter was then adjourned for ruling. The ruling was delivered by Magistrate Bidar on 17 October 2014. The Appellant was committed to stand trial in the National Court in relation to all the charges.
    
11. The Appellant sought judicial review of his committal to stand trial in the National Court. The grounds upon which judicial review was sought were:
    
    • Breach of duty to act fairly and be seen to act fairly in circumstances where the Magistrate erred in law, including section 59 (2) of the Constitution, in that he did not give any opportunity to the Appellant to be heard on their oral submissions on no case to answer, and; secondly, the Magistrate erred in law in that he assumed the responsibility for determination of the Committal hearing without explanation or with inadequate explanation as to his involvement and without regard to the previous hearing already conducted by Magistrate Pindipia.
      
      • Magistrate Bidar erred in law in circumstances where he committed the Appellant to stand trial in the National Court without first giving him the opportunity to exercise his right to give evidence if he so desire pursuant to section 96 of the District Court Act.
        
12. The issues arising from the grounds for judicial review are:
    
    • whether Magistrate Bidar breached his duty to act or be seen to act fairly when he failed to give an opportunity to the Appellant to be heard on his oral submission?
      
    • whether Magistrate Bidar breached his duty to act or be seen to act fairly when he failed to explain or failed to give adequate explanation of his involvement in the case?
      
    • whether Magistrate Bidar erred in law when he committed the Appellant to stand trial in the National Court without first giving him the opportunity to exercise his right to give evidence if he so desire pursuant to section 96 of the District Court Act?
      
13. In relation to the first issue, there is a 5-page handwritten note by Magistrate Pindipia on the oral submissions that were made on 26 May 2014. Magistrate Bidar would have had access to these notes. Magistrate Bidar also had before him the Appellant’s written submissions (as well as the prosecution’s written submissions). The Appellant’s submission was a comprehensive 63 page submission in a proceeding where the only issue was whether there was prima facie evidence supporting each charge.
    
14. In our view, Magistrate Bidar was in a better position to determine whether further submissions were necessary or not. If he required further oral submission, he would have requested for it. He advised the lawyers that he did not require any. When the Magistrate presided over the matter on 30 September 2014, there had been a delay of more than four months. In the circumstances, it was well within his judicial discretion to refuse further oral submission and avoid further delays.
    
15. In relation to second issue, it was obvious that Magistrate Pindipia was not able to preside over the matter. From the file notes, nobody sought an explanation from Magistrate Bidar or objected to his involvement in the matter. This ground is simply without any substance.
    
16. In relation to the third issue, the allegation that section 96 right was not accorded is simply not true. There is a section 96 statement on the file. In his affidavit sworn on 4^th September 2015, at page 105, the Appellant attached the section 96 statement where he stated that he “wishes to reserve his statement.” The file notes of 17 October 2014 clearly show that the Appellant was accorded his right under section 96. The contention that section 96 was not complied with is unfounded.
    
17. Therefore the grounds for judicial review are without merit.
    
18. Turning now to the grounds of appeal, the first five grounds relate to the learned judge’s interpretation and application of Wartoto’s case. The sixth ground does not raise a significant question of fact or law and is not worthy of any consideration.
    
19. The Wartoto case was an application for permanent stay of a criminal proceeding after committal. This case is a judicial review application on grounds of unfairness and procedural breach. The processes and facts are distinguishable but the fundamental question in both cases is whether the National Court in its civil jurisdiction can intervene in the conduct of a criminal proceeding.
    
20. There is a significant procedural difference between a judicial review process and a criminal process. In a judicial review proceeding, leave must first be granted. It is granted if the applicant has sufficient interest, if the application is brought within a reasonable time, if there is an arguable case or if the applicant has exhausted all other avenues. Upon grant of leave, the substantive review is then heard and the usual civil procedures, including the civil standard of proof, apply.
    
21. That is a totally different process to the criminal law practice and procedure. None of the mentioned requirements apply in the criminal process. In the criminal process, in addition to the much higher standard of proof, mere breach of procedure does not automatically render a judicial act a nullity. It has to be demonstrated that such an error has resulted in a miscarriage of justice.
    
22. Thus, under section 230 (2) of the District Court’s Act, an appeal against a decision of the District Court “shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.” Consistently, under section 23 (2) of the Supreme Court Act, the Supreme Court may dismiss the appeal if it considers that no miscarriage of justice has actually occurred notwithstanding that the point raised in the appeal might be decided in favour of an appellant.
    
23. In Yaip Avini v The State [1997] PNGLR 212, among numerous other case precedents, not permitting counsel to make a no case submission is an irregularity or a procedural breach but the appeal was unsuccessful because the procedural breach did not result in a miscarriage of justice. The outcome would be different in a judicial review proceeding.
    
24. The test for grant of leave and the whole nature of judicial review is totally different and incompatible with criminal law practice and procedure. Judicial review powers should never be used to circumvent a criminal proceeding.
    
25. One of the requirements in the judicial review process is that all avenues should first be exhausted. If this requirement is applied properly and strictly, no criminal process should ever be the subject of a judicial review. A criminal process begins with police investigation and gathering of evidence, including issuance of a search warrant and a warrant of arrest and then a formal charging of an accused person. In the case of an indictable offence, a formal interview is usually conducted and recorded. There are procedural laws governing all of these processes, all of which are reviewable by the Committal Court and or the National Court exercising criminal jurisdiction.
    
26. If the record of interview was conducted in breach of the Constitution, the National Court in its criminal jurisdiction has the power to deal with it. If a search warrant was defective, the National Court in its criminal jurisdiction can deal with it by excluding evidence that was illegally obtained. If the committal of an accused person to stand trial is not supported by evidence, the Public Prosecutor may file a declaration that he would not proceed with the charge or file a nolle prosequi. If he decides to proceed with preferred charges, a fair trial will be conducted and if found guilty, there is a right of appeal and review.
    
27. Judicial review powers are designed for review of administrative acts and decisions. Court decisions are not administrative acts. Criminal law practice and procedure is a complete process. It commences with the decision of a police officer to arrest and ends with a finding of guilt or innocence by the National Court. A person convicted has the right of appeal or review. In all of these, there is a duty to ensure that an accused person is given a fair trial, including finality within a reasonable time and there is no miscarriage of justice.
    
28. The facts in this case are distinguishable from the Wartoto case but the pronouncement of the law in the Wartoto’s case was not based on the facts – it was based on a fundamental procedural issue, that is, whether a criminal proceeding can be the subject of a civil proceeding, such as a judicial review proceeding. It is for this fundamental issue that a five member bench was empanelled to resolve the issue that should surely have an impact on cases such as this case. The decision was unanimously negative. It means that a criminal proceeding should never be the subject of a judicial review proceeding because the procedures and requirements are incompatible.
    
29. For the foregoing reasons, we have reached the same conclusion as Gavara-Nanu J. who correctly applied the principles in the Wartoto’s case. The judicial proceeding does not disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of process. On that basis, the entire appeal has to be dismissed and we so order with costs which, if not agreed, shall be taxed.
    

________________________________________________________________

Jema Lawyers : Lawyers for the Appellant

Faith Barton-Keene, Solicitor General : Lawyers for the Respondent