James Yali v The State (2005) N2999

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 09 August 2005
• Court: National Court
• Citation: (2005) N2999
• Docket Number: OS 450 of 2005
• Year: 2005
• Judgement Number: N2999

Full Title: OS 450 of 2005; James Yali v The State (2005) N2999

National Court: Injia DCJ

Judgment Delivered: 9 August 2005

N2999

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 450 of 2005

Between:

James Yali

-Plaintiff-

And:

The State

-Respondent-

Waigani : Injia, DCJ

2005 : August 5th, 9th

Judicial Review – District Court – Committal proceedings – Leave application – Arguable case - Error of law – Whether Committal Court failed to conduct an inquiry under s.94(c)(2) of the Districts Act (Ch. No. 40) in respect of police witnesses’ statements.

P. Kingal for the Plaintiff

F. Kuvi for the Respondent

9th August 2005

INJIA, DCJ: The plaintiff applies for leave to apply for judicial review of the decision of the First Respondent, sitting as the Magistrate of the District Court at Madang, made on 16 February 2005, to commit the Plaintiff to stand trial on three (3) charge of sexual offences. If leave is granted, the plaintiff intends to apply for certiorari to quash the said decision. The application is made under Order 16 r 3 of the National Court Rules.

The Plaintiff relies on the statement in support filed under O16 r 3(1) and his affidavit sworn on 15 June 2005. The Respondent contests the application. It relies on the affidavit of the Public Prosecutor Mr. Chronox Manek sworn on 05 August 2005.

Arguments by counsel were made on the four (4) requirements for leave in the following order – locus standi, exhausting of other statutory remedies, delay and arguable case. Locus standi and exhausting of other statutory remedies are not in issue.

On the issue of delay, the relevant undisputed facts are that since the decision to commit made on 16 February 2005, the plaintiff filed this application on 15/6/05, which is on the second last day of the 4 months period allowed by Order 16 r 4(2). The application made now is more than 5 months after committal date. In this period, the National Court has per-trialed the matter and the trial of the criminal matter is now fixed for Monday 8th – 12th August 2005 at Waigani. Under s.557 of the Criminal Code, the actual trial will commence when the indictment is presented by the Public Prosecutor and the accused (the plaintiff) is called upon to plead to the indictment.

Mr. Kingal for the plaintiff submits that there is no delay in making the application because his client filed the application within time. He submits by virtue of s.557, the criminal trial in the National Court has not yet commenced. The proceedings in the National Court after committal and before commencement of the trial under s.557, is administrative. For that reason, even if there is undue delay in making this application, the “good administration of the criminal process” in the National Court will not be affected: Order 16 r 4(1).

Mr. Kuvi for the Respondent submits that eventhough the application was filed within time, the actual application is now made on the 11th hour and it is an attempt by the plaintiff to sabotage the criminal trial which will commence on Monday 8th. The State has made preparation for witnesses to be brought in and it is ready to proceed with the trial.

The issue for determination before me is whether there has been a delay in making this application. The answer to this issue lies squarely in the wording of Order 16 r 4 which provide:

4. Delay in applying for relief. (UK 53/4)

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

(1) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.(My emphasis)

In my view, no question of delay arises because the application is made within the four (4) months allowed. I take the phrase “the application for leave under Rule 3 is made” in rule 4(1) to mean or include “filing” of the application for leave. The application for leave in the present case was filed within time. Therefore, I am of the view that the question of delay or undue delay does not arise for my consideration. Also the issue of whether the grant of leave will sabotage the criminal process or trial and therefore, it would be “detrimental to good administration of the criminal justice process” does not arise. Further, it is also not necessary to decide if the National Court proceedings conducted after committal and before the process under s.557 of the Criminal Code is commenced is “administrative” only and therefore, the committal decision is amendable to judicial review by the National Court. I leave these issues to be decided in an appropriate case by another Court in the future.

On the issue of arguable case, the plaintiff sets out six (6) proposed grounds of review, which allege errors of law or breach of prescribed procedure under s.94 of the District Court Act. Essentially, he says the Magistrate failed to conduct an inquiry to satisfy himself as to the correctness and truthfulness of the witnesses’ statement as required by s.94(c)(2): The State v Kai Wabu [1994] PNGLR 498. If he had conducted the inquiry, the plaintiff would have shown that the victim gave two (2)...