Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855

• Jurisdiction: Papua New Guinea
• Citation: (2006) SC855
• Date: 15 December 2006
• Docket Number: SCR No 34 Of 2005
• Court: Supreme Court
• Year: 2006

Full Title: SCR No 34 Of 2005; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855

Supreme Court: Kapi CJ, Cannings J, David J

Judgment Delivered: 15 December 2006

APPEALS AND REVIEWS—Decision of National Court to refuse objection to, and accept, an indictment presented by the Public Prosecutor—Whether appeal or review appropriate—Review under s155 (2)(b) Constitution—Criteria to be satisfied.

CRIMINAL LAW—Procedure—Presentation of indictment under Criminal Code, s526—Refusal by court of summary jurisdiction to commit a person for trial—Whether refusal constitutes dismissal or acquittal.

CONSTITUTIONAL LAW—Whether Criminal Code, s526, inconsistent with Constitution, s155 (6)—Constitution, Section 177—Independence of Public Prosecutor—Freedom from direction or control.

The applicant was charged with conspiracy to defraud and misappropriation. He faced committal proceedings in the District Court, which concluded that there was insufficient evidence to support the charges and refused to commit him for trial. The Public Prosecutor then presented an ‘ex officio’ indictment in the National Court. The applicant raised an objection to the indictment and the National Court refused the objection and received the indictment. The applicant applied for leave from the Supreme Court to review the decision of the National Court. On the presumption that leave was granted, the applicant also argued the substantive case for review.

Held:

(1) The decision of the National Court to dismiss an objection to and accept an indictment is reviewable by the Supreme Court under Section 155(2)(b) of the Constitution, there being no right of appeal and no other way an accused person may bring the matter to the Supreme Court; provided that the accused 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 applied.

(2) The applicant satisfied both criteria and was granted leave for review.

(3) Before proceeding with a review under Section 155(2)(b) of the Constitution there are three matters to be satisfied in relation to each argument advanced by the applicant:(4)

(a) Is it raised in one or more grounds of review?

(b) Was it raised in the National Court?

(c) Is it a proper review point?

If the answer is ‘yes’ to all questions, the Court is obliged to determine the issue raised by the argument. If the answer to any question is ‘no’, the Court will consider whether it is appropriate to address the argument or point of law being raised.

(4) The applicant advanced five substantive arguments; two of which were neither raised in the grounds of review nor in the National Court. The Court therefore determined only three of the arguments.

(5) s526 of the Criminal Code allows the Public Prosecutor to present an indictment to the National Court notwithstanding the refusal by the District Court to commit a person for trial. s526 is not inconsistent with s155 (6) of the Constitution and represents a lawful exercise of legislative power by the National Parliament.

(6) The Public Prosecutor is not obliged to exhaust the State’s rights of appeal or review of a decision of the District Court not to commit a person for trial, prior to presenting an indictment under s526 of the Criminal Code.

(7) The District Court’s decision not to commit a person for trial does not amount to a dismissal of the information containing the charge against the person. Committal proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal.

(8) The Public Prosecutor is an independent constitutional office-holder, a prime function of whom is to control the exercise and performance of the prosecution function of the State. s526 of the Criminal Code is an important check and balance on the exercise of powers of the District Court in committal proceedings and facilitates the Public Prosecutor’s control of the prosecution function.

(9) In the result, none of the applicant’s arguments succeeded and none of the grounds of review were upheld. There was no basis for making any of the orders sought by the applicant. The application for review was dismissed and the decision of the National Court affirmed.

Cases cited

Papua New Guinea Cases;

R v Toigen Tiolo [1969–70] PNGLR 285; R v Topulumar and Others [1971-72] PNGLR 320; The State v Tanedo [1975] PNGLR 395; SCR No 1 of 1976 (P); Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537; Ex Constitutional Reference No 1 of 1978 [1978] PNGLR 345; Ex parte Smedley [1978] PNGLR 156; Van Der Kreek v Van Der Kreek [1979] PNGLR 185; Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448; Smedley v The State [1980] PNGLR 379; Acting Public Prosecutor v Uname Aumane and Others [1980] PNGLR 510; Arthur Gilbert Smedley v The State [1980] PNGLR 379; Minister for Lands v William Robert Frame [1980] PNGLR 433; Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265; Avia Aihi v The State [1981] PNGLR 81; Keko Aparo and Others v The State (1983) SC249; Malipu Balakau v Paul Torato [1983] PNGLR 242; Danny Sunu v The State [1984] PNGLR 305; Robert Kaki Yabara v The State [1984] PNGLR 378; Ex parte Rush [1984] PNGLR 124; Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433; Wong, William Baptiste and David F Tau [1987] PNGLR 227; The State v Colbert [1988] PNGLR 138; New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522; Enforcement of Rights Pursuant Constitution S57; Application by Karingu [1988-89] PNGLR 276; SCR No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337; Applications of Kasap and Yama [1988-89] PNGLR 197; David Toll v The State (1989) SC378; The State v Jack Gola and Mopana Aure [1990] PNGLR 206; Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479; SCR No 2 of 1990; Re interpretation and application of Constitution s37(4)(a), and Sections 327 and 333 of the Income Tax Act [1991] PNGLR 211; SCR No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239; The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1; The State v Esorom Burege (No 1) [1992] PNGLR 481; Pius Mark v Korali Iki [1995] PNGLR 116; Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26; Charles Ombusu v The State [1996] PNGLR 335; Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572; Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437; Moi Avei v Charles Maino [2000] PNGLR 157; Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special; The State v Michael Nama and Others (1999) N1884; Robert Lak v Dessy Magaru and The State (1999) N1950; Jim Kas v The State (1999) SC772; Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956; Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru [2002] PNGLR 567; Special Reference Pursuant to Constitution s19 by Morobe Provincial Government [2002] PNGLR 333; The State v John Koma [2002] PNGLR 115; Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285; Robert Kopaol v Philemon Embel (2003) SC727; The State v Jimmy Mostata Maladina (2004) N2530; Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The State (2004) N2562; Jimmy Mostata Maladina v Principal District Court Magistrate Posain Poloh and The State (2004) N2568; Benny Diau v Mathew Gubag (2004)...