Nii v Aron [2022] PGSC 148; SC2529 (28 April 2022)

SC2529

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 60 OF 2021

HARVEY NII
Appellant

V

SERGEANT ELIJAH ARON
First Respondent

COSMOS BIDAR, PRINCIPAL MAGISTRATE,
WAIGANI COMMITTAL COURT
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J, Pitpit J, Dingake J
2022: 25^th, 28^th April

JUDICIAL REVIEW – criteria for granting leave to apply for judicial review – application for leave to review decision of District Court to refuse applications as to contents of police hand-up brief in committal proceedings – appeal against refusal of leave by National Court – whether arguable case for judicial review.

CRIMINAL LAW – practice and procedure – whether judicial review available to review decisions of District Court in committal proceedings.

The District Court, in committal proceedings, refused applications by the appellant, who was charged with various offences, regarding the contents of a police hand-up brief. The appellant applied for leave to the National Court for judicial review of the District Court’s refusal of the applications. Leave was refused. The appellant appeals to the Supreme Court against the National Court’s refusal of leave for judicial review.

Held:

(1) The National Court did not err in refusing to grant leave as there was no arguable case for review and no serious issue to be tried, in view of the principle that the civil processes of the National Court, including judicial review, cannot be used to stop or delay criminal proceedings (^{Wartoto v The State [2015] 1 PNGLR 26,} Pundi v Rupen [2015] 1 PNGLR 361 applied).

(2) The effect of the leave application was to stop or delay the criminal proceedings against the appellant and was tantamount to an abuse of process. Appeal dismissed, with costs.

Cases Cited

The following cases are cited in the judgment:
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Digicel (PNG) Ltd v Miringtoro [2015] 1 PNGLR 529
Kimas v Boera Development Corporation Ltd (2012) SC1172
Pundi v Rupen [2015] 1 PNGLR 361
Wartoto v The State [2015] 1 PNGLR 26

Counsel
J Simbala, for the Appellant
R Uware, for the Respondents

28th April 2022

1. BY THE COURT: This is a contested ^{appeal against the refusal of the} National Court to grant leave to apply for judicial review.

2. The appellant, Harvey Nii, was charged with various offences under the Criminal Code. In the course of committal proceedings before the second respondent the appellant brought two applications, which were dismissed. These were:

• an application by notice of motion filed on 4 September 2017, seeking orders to reject evidence in the police hand-up brief which was obtained illegally without a search warrant in breach of the Search Act, which in effect was a breach of ss 44 and 49 of the Constitution, which guarantee the right of freedom from arbitrary search and entry and right to privacy; and
  
• an application by notice of motion filed on 22 June 2015, seeking orders for the applicant’s affidavit filed on 6 November 2014 to be accepted by the court as part of the evidence in the police hand-up brief pursuant to s 94B of the District Courts Act.
  

3. Being aggrieved by the refusal of those applications by the second respondent, the appellant applied to the National Court for leave to apply for judicial review of each refusal by the second respondent. The application for leave was refused by the National Court, hence this appeal.

4. The appellant relies on seven grounds of appeal, which may be crystalized into one: that the National Court erred in fact and in law in failing to grant leave.

CONSIDERATION

^{5. We are alive to the fact that this is an appeal from the exercise of} judicial discretion by the National Court. ^{It is trite learning that an appellate Court will not interfere with a} discretionary judgment on a procedural matter within its jurisdiction, unless the exercise of discretion is clearly wrong, or the resulting judgment or order is unreasonable or plainly unjust (Curtain Bros (PNG) Ltd v UPNG (2005) SC788).

^{6. For an application for leave for judicial review to be granted, the} applicant must satisfy four requirements. These are that the applicant:

(a) has locus standi,
(b) raises arguable grounds;
(c) has not delayed the application; and
(d) has exhausted administrative remedies.

7. The fate of this appeal does not turn on considerations (a), (c) or (d), but on (b), whether the application raises arguable grounds, or whether there is a serious issue to be tried. The National Court is not required to engage in an exhaustive analysis of the merits or demerits of the case. It is sufficient if on a quick perusal of the materials before it, there is a prima facie case or a serious issue to be tried, which on further investigation by the Court might favour the grant of the claim or the relief sought by the plaintiff (Kimas v Boera Development Corporation Ltd (2012) SC1172; Digicel (PNG) Ltd v Miringtoro [2015] 1 PNGLR 529).

^{8. The appellant seeks to be granted leave to challenge the decision of a} committal court in the course of processing a criminal matter and determining whether he would be committed for trial in the National Court. ^{In the case of Wartoto v The State [2015] 1 PNGLR 26 this Court held} that civil proceedings in the National Court cannot be used to stop or delay criminal proceedings.

9. We agree with the primary judge that the criminal process should not be stopped or delayed by a civil process, such as a judicial review. ^{The learned primary judge was correct when he held} that there is no arguable case because the criminal process has not been exhausted. ^{The appellant failed to} establish that there was a serious issue to be tried, which on further investigation by the court might favour the grant of the relief sought.

10. We endorse the primary judge’s reasoning that piecemeal approaches intended to frustrate or arrest the progression of criminal proceedings should not be entertained by the court. Criminal proceedings should be allowed to run their natural course without unnecessary disruption (Pundi v Rupen [2015] 1 PNGLR 361).

11. It is our considered view that the review process embarked upon by the appellant in this matter was unnecessary and undesirable and has the effect of delaying the criminal process that was under way and amounted, in effect, to an abuse of court process.

12. We are satisfied that the primary judge did not fall into error when he held that the appellant failed to show that there was an arguable case to warrant leave for judicial review being granted. In all the circumstances of this case, we are satisfied that this appeal is without merit and must be dismissed.

ORDER

1. The appeal is dismissed.
   
2. The appellant shall pay the respondents’ costs of and incidental to the appeal.

_____________________________________________________________
Harvey Nii Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the Respondents