Alois Kingsley Golu v Regett Marum, Kokopo District Court (Committal) Magistrate and Sylvestar Kalaut, Police Informant (2013) N5104

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2013
• Court: National Court
• Citation: (2013) N5104
• Docket Number: OS (JR) NO 252 OF 2012
• Year: 2013
• Judgement Number: N5104

Full Title: OS (JR) NO 252 OF 2012; Alois Kingsley Golu v Regett Marum, Kokopo District Court (Committal) Magistrate and Sylvestar Kalaut, Police Informant (2013) N5104

National Court: Cannings J

Judgment Delivered: 22 March 2013

N5104

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 252 OF 2012

ALOIS KINGSLEY GOLU

Plaintiff

V

REGETT MARUM,

KOKOPO DISTRICT COURT (COMMITTAL) MAGISTRATE

First Defendant

SYLVESTAR KALAUT, POLICE INFORMANT

Second Defendant

Waigani: Cannings J

2013: 15, 18, 22 March

JUDICIAL REVIEW – decision of District Court to commit person for trial – District Courts Act, Part VI (proceedings on case of indictable offences) – whether District Court erred by stating opinion on interpretation and application of the Constitution – whether breach of principles of natural justice – whether decision to commit plaintiff for trial unreasonable.

The plaintiff applied for judicial review by the National Court of the decision of a District Court Magistrate to commit him for trial on a charge of misappropriation under Section 383A(1)(a) of the Criminal Code. Three grounds of review were relied on: (1) excess of jurisdiction due to the Magistrate basing the decision on his own interpretation of Section 209 of the Constitution, a matter that falls within the exclusive jurisdiction of the Supreme Court; (2) denial of natural justice due to refusal to hear two preliminary issues that were being agitated by the plaintiff; (3) unreasonableness due to considering irrelevant matters, making a decision contrary to the evidence, shifting the burden of proof to the plaintiff and taking into account a significant matter not raised by the parties on which he did not invite submissions.

Held:

(1) The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law and by Section 18(2) generally obliges the District Court to refer such questions to the Supreme Court. The District Court is nonetheless permitted to form an opinion on constitutional issues that arise before it as part of deciding whether there is a prima facie case against an accused, sufficient to put him on trial; and the duty to refer such questions to the Supreme Court is not absolute: if a constitutional question is trivial, vexatious or irrelevant the District Court is not obliged to refer the matter to the Supreme Court.

(2) Here the Magistrate expressed the opinion having regard to Section 209 of the Constitution and provisions of the Public Finances (Management) Act 1995 and the Treasury Bills Act Chapter 135 that the money allegedly misappropriated by the defendant was the property of the State, as it was money raised by the National Government pursuant to Section 209(1) of the Constitution. The expression of that opinion was permissible as it was incidental to the decision to commit the accused to trial. It was not a necessary part of the decision as all that the Magistrate had to be satisfied of was that there was prima facie evidence that the money was the property of the State, that being one of the elements of the charge that was the subject of the information. The Magistrate did not exceed his powers in the manner argued, and it was not necessary to refer any constitutional questions to the Supreme Court. Ground 1 of the review was dismissed.

(3) The District Court is obliged when conducting committal proceedings to comply with the principles of natural justice, so it has a general duty to afford the accused a fair hearing and in particular must comply with the provisions of Division VI.1 (proceedings on case of indictable offences) of the District Courts Act.

(4) Here there was no failure to comply with the principles of natural justice as the two preliminary issues that the accused wanted to raise prior to the actual committal hearing were in fact heard by the District Court at the committal hearing and adjudicated upon when the Court delivered its ruling that the plaintiff would be committed for trial. The Magistrate was under no obligation to hear and determine them before determining whether the evidence was sufficient to put the accused person on trial.

(5) The District Court is obliged when deciding whether to commit an accused to trial to act rationally and to take into account relevant matters and to disregard irrelevant matters.

(6) Here the District Court did not take into account irrelevant matters, make a decision contrary to the evidence, shift the burden of proof to the plaintiff or improperly take into account a significant matter not raised by the parties on which he did not invite submissions. The decision to commit the plaintiff to trial could not fairly be described as unreasonable, let alone a decision that no reasonable Magistrate could have made. On the contrary given the evidence before it, it was open to the District Court to conclude that there was a prima facie case that the plaintiff was guilty of the offence the subject of the information.

(7) As none of the grounds of review were upheld the relief sought by the plaintiff was refused and the order of the National Court staying the criminal proceedings pending determination of the judicial review was dissolved.

Cases cited

The following cases are cited in the judgment:

Ex parte Rush [1984] PNGLR 124

Haiveta v Wingti (No 1) [1994] PNGLR 160

Isaac Lupari v Sir Michael Somare (2008) N3476

Jimmy Mostata Maladina v Posain Poloh and The State (2004) N2568

Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956

Lowa v Akipe [1992] PNGLR 399

Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60

Pato v Manjin (1999) SC922

Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479

Re Herman Joseph Leahy (2006) SC855

Robert Kaki Yabara v The State [1984] PNGLR 378

Robert Lak v Dessy Magaru and The State (1999) N1950

Sakawar Kasieng v Andrew Baigry (2004) N2562

SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405

SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379

The State v Tanedo [1975] PNGLR 395

Counsel

W Donald, for the Plaintiff

R Gelu, & G Akia, for the Defendants

22 March, 2013

1. CANNINGS J: This is a ruling on an application by the plaintiff Alois Kingsley Golu for judicial review of the decision of the Kokopo District Court to commit him for trial on a charge of misappropriation. The defendants are the Magistrate who constituted the District Court, his Worship Mr Regett Marum, and the informant, the member of the Police Force who presented the information containing the charge, Superintendent Sylvestar Kalaut.

2. The plaintiff was charged with one count of misappropriation of K6,577,600.00, the property of the State, under Section 383A(1)(a) of the Criminal Code. He had been investigated by a special investigation team that had been appointed by the National Executive Council in August 2011. The investigation team was directed to investigate allegations of criminality concerned with the administration of amongst other monies the Sovereign Community Infrastructure Treasury Bill issued under the Treasury Bills Act 1974 to the value of K125 million, which has been purchased by National Superannuation Ltd (NasFund). The purpose of that Bill was to provide funding for infrastructure projects in the Kokopo District of East New Britain Province. The informant’s case put to the Kokopo District Court in the form of a police hand-up brief was that the plaintiff obtained K6,577,600.00 from the Sovereign Community Infrastructure Treasury Bill funds, specifically that he obtained the money from NasFund’s fund manager, National Capital Ltd, through a company he owned and controlled, Kokopo Earthmoving Ltd, for the purposes of a water supply project. The informant alleged that that money was the property of the State, required to be applied to a specified water project, but that it was not applied in that manner; instead the plaintiff deposited it into a Maybank bank account and proceeded to withdraw it over a period of several months during 2010, most of it in cash sums of K70,000.00 to K200,000.00, thereby dishonestly applying the money to his own use.

3. After conducting a committal hearing on 23 December 2011 Mr Marum on 9 March 2012 committed the plaintiff for trial and published a written judgment setting out the reasons for his decision. The plaintiff’s application for review of that decision is based on three grounds:

(1) excess of jurisdiction due to the Magistrate deciding questions of constitutional interpretation and application;

(2) denial of natural justice; and

(3) unreasonableness.

(1) EXCESS OF JURISDICTION DUE TO DECIDING QUESTIONS OF CONSTITUTIONAL INTERPRETATION AND APPLICATION

4. The plaintiff contends that Mr Marum exceeded his jurisdiction as he based his decision to commit him to trial on his own interpretation of Section 209(1) (parliamentary responsibility) of the Constitution, a matter that falls within the exclusive jurisdiction of the...