Anderson Agiru v The Electoral Commission and The Independent State of Papua New Guinea (2002) SC687

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Jalina J, Batari J
• Judgment Date: 24 June 2002
• Court: Supreme Court
• Judgement Number: SC687

Full Title: Anderson Agiru v The Electoral Commission and The Independent State of Papua New Guinea (2002) SC687

Supreme Court: Hinchliffe J, Jalina J, Batari J

Judgment Delivered: 24 June 2002

SC687

PAPUA NEW GUINEA

[In the Supreme of Justice ]

SC Appeal No. 49 of 2002

BETWEEN:

ANDERSON AGIRU

Appellant

AND:

THE ELECTORAL COMMISSI0N

First Respondent

AND:

THE STATE

Second Respondent

Waigani: Hinchliffe, Jalina, Batari JJ

2002: 21 & 24 June

Constitutional Law – Constitutional right – Enforcement of – Right of review of conviction and sentence by higher court or tribunal according to law – Whether the right extends to Leadership Code offence - Constitution s. 37 (15).

Practice and Procedure – Application under s. 57 Constitution to enforce constitutional rights – Application following unsuccessful application for review under Constitution s. 155 (2) (b) before differently constituted Supreme Court – Earlier application was made concurrently under s.155 (2) (b) and s.155 (4) – Application under s. 155 (4) withdrawn – Subsequent application before the National Court under s. 57 an abuse of process - Constitution secs.37 (15) & 57.

Cases cited

Peipul v Justice Sheehan, Orim Karapo and Iova Geita, Unreported Supreme Court Judgment dated 24 May, 2002

SCR NO.1 of 1981 Re: Inter-Group Fighting Act 1977 [1981] PNGLR 151

Ronney Wabia v BP Exploration Operating Co. Ltd & Ors Unreported National Judgement N1697

The State v Peter Painke [1976] PNGLR 210

National Excutive Council v Public Employees Association [1993] PNGLR 264

Ipatas v Enga Interim Provincial Government & Anor, Unreported National Court Judgment N1491 dated 24 October 1996;

Aro Investments Pty Ltd v Fly River Provincial Government, Unreported National Judgment N1519, dated 6 February 1997;

Pukari & Oro Cable Television v Seeto Unreported National Judgment N1490 dated 6 September, 1996.

Counsel

Mr. G. Sheppard, for the Appellant

Dr. J. Nonggorr, for the First Respondent

Mr. D. Cannings, for the Second Respondent

24th June, 2002

BY THE COURT: This is an appeal against the judgment of Gavara-Nanu J dated 12th June, 2002 refusing to grant the Appellant’s application under Constitution s. 57 to enforce his rights under s. 37(15). Section 57 provides:

“57. Enforcement of Guaranteed Rights and Freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section—

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”

Section 37 provides:

“37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall...