Jimmy Mostata Maladina v Principal District Court Magistrate Posain Poloh and The State (2004) N2568

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 25 April 2004
• Court: National Court
• Citation: (2004) N2568
• Year: 2004
• Judgement Number: N2568

Full Title: Jimmy Mostata Maladina v Principal District Court Magistrate Posain Poloh and The State (2004) N2568

National Court: Injia DCJ

Judgment Delivered: 25 April 2004 or 25 June 2004

1 Judicial Review—District Court committal proceedings—Failure to give opportunity to defendant's counsel to make oral submission under s96 of the District Courts Act after written submission where filed—Denial of natural justice—Committal quashed—Matter remitted back to the District Court for re–hearing before another Magistrate.

2 District Courts Act– Committal hearing—Defendant's right to be heard orally and/or through written submissions—There is no right to be heard under s95—There is a right to be heard under s96—Principles of natural justice—Duty of Magistrate to provide real and meaningful opportunity to defendant under s96 discussed.

3 District Court—Committal hearing—Consideration of evidence under s95, s96 and s100—Courts and Court case management matters are irrelevant considerations for purpose of Magistrate's opinion on the evidence under s95 and s100.

4 Practice and Procedure—Written submissions to be followed by oral submissions—Rights of parties to make oral submissions is a fundamental right –Written submissions not a substitute for right to be heard orally on written submissions except where parties, with leave of the Court, waive their right to be heard and agree to proceed by way of written submissions only.

5 Alotau Enterprises Pty Ltd v Zurich Pacific Insurance Pty Ltd (1999) N1969, Edward Ramu Diro v Ombudsman Commission (1991) N1385, Ex parte Moses Sasakila [1976] PNGLR 491, Graham Kevi v The Teaching Services Commission Disciplinary Committee [1997] PNGLR 659, Simon Ketan v Lawyers Statutory Committee (2001) N2290, James Mileng v Alkan Tololo [1976] PNGLR 447, Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Launce Vetari v The State (1979) SC156, Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956, Mollock v Aberdeen Corporation [1971] 2 All ER 1278, Simbali, Nambumutka v Sacred Heart Mission (New Britain) Property Trust [1973] PNGLR 590, Okuk v Falsher [1980] PNGLR 101, Rimbink Pato v Anthony Manjin (1999) SC622, Police v Tanos (1959) 98 CLR 383, Premdas v Independent State of Papua New Guinea [1979] PNGLR 329, R v Mitchell and Ijahujo; Ex parte Alios Wafing [1973] PNGLR 461, R v ToVarula [1973] PNGLR 140, Richard J Moaitz v Tom Awasa (1983) N424, Robert Lak v Dessie Magaru (1999) N1950, Tarere v ANZ Bank [1988] PNGLR 201, Ryan v The State (1979) SC148, SCR Nos 12 and 12A of 1984; Joe Parakas v The State [1985] PNGLR 224, The State v Rush; Ex parte Rush; Application of Allan Douglas Rush [1984] PNGLR 124 referred to

___________________________

N2568

[IN THE NATIONAL COURT OF JUSTICE

AT WAIGANI PAPUA NEW GUINEA]

OS NO. 178 OF 2004

Between:

JIMMY MOSTATA MALADINA

- Applicant -

And:

PRINCIPAL DISTRICT OCURT MAGISTRATE POSAIN POLOH

- First Respondent -

And:

THE STATE

-Second Respondent--

Waigani : Injia, DCJ

2004 : June 25th

Judicial Review – District Court committal proceedings – Failure to give opportunity to defendant’s counsel to make oral submission under S.96 of the District Court Act after written submission where filed – Denial of natural justice – Committal quashed – Matter remitted back to the District Court for re-hearing before another Magistrate.

District Courts Act- Committal hearing – Defendant’s right to be heard orally and/or through written submissions – There is no right to be heard under S.95– There is a right to be heard under S.96 – Principles of natural justice - Duty of Magistrate to provide real and meaningful opportunity to defendant under S.96 discussed.

District Court – Committal hearing – Consideration of evidence under S.95, S.96 and S.100 – Courts and Court case management matters are irrelevant considerations for purpose of Magistrate’s opinion on the evidence under S.95 and S.100.

Practice and Procedure – Written submissions to be followed by oral submissions – Rights of parties to make oral submissions is a fundamental right -Written submissions not a substitute for right to be heard orally on written submissions except where parties, with leave of the Court, waive their right to be heard and agree to proceed by way of written submissions only.

Cases cited in the judgement:

Alotau Enterprises Pty Ltd & Another v Zuric Pacific Insurance Pty Ltd N 1969(1999).

Diro v Ombudsman Commission N 1385 dated 16 July 1999.

Ex parte Moses Sasakila [1976] PNGLR 491.

Graham Kevi v The Teaching Services Commission Disciplinary Committee [1997] PNGLR 659.

In re Ketan N 2290.

James Mileng v Alkan Tololo [1976] PNGLR 447.

Kekedo v Burns Philp (PNG) Ltd & Others [1988 – 89] PNGLR 122.

Lawrence Vetari v State SC 156 dated 10 August 1979.

Justine Wayne Thatchenko v Dessy Magaru N1956 dated 4 May 2000 .

Mollock v Aberdeen Corporation [1971] 2 ALLER 1278.

Nanhutka Sambali v Sacred Heart Mission (New Britain) Property Trust [1973] PNGLR 590.

Okuk v Falsher [1980] PNGLR 101 279.

Pato v Manjin SC 622 dated 3 April 1999..

Police v Tanos [1959] 98 CLR 383.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

Regina v Mitchell and Ijabujo; Ex parte Alois Wafing [1973] PNGLR 590.

Regina v William Taupa Touonila & Others [1975] PNGLR 140.

Richard Moaitz v Tom Awasa & Electoral Commission N424 (1983).

Robert Lak v Dessie Magaru & The State N 1950 dated 20 May 1999.

Rose Tarere v MVIT [1988] PNGLR 201.

Ryan v The State SC 148 dated 3 May 1979.

SCR No. 12A of 1984 Re Paraka [1985] PNGLR 224

State v Rush Ex Parte [1984] PNGLR 124.

G. Shephard with H. Leahy for the Applicant

J. Bokomi for the Respondent

25 April 2004

INJIA, DCJ.: This is an application for judicial review under Order 16 of the National Court Rules, of the decision of Waigani District Court made on 31st March 2004 to commit the applicant to stand trial on seventeen (17) criminal charges. Leave to apply for review was granted on 23rd April 2004.

There are two (2) grounds of review, namely first, the committal proceedings were conducted in breach of principles of natural justice and secondly, the Court erred in law in failing to follow the mandatory procedure prescribed by s.94(1A) and 94(C)(1), (2)(b) of the District Court Act. By agreement of the parties, upon my invitation, the first ground only was argued. Any argument on the second ground will depend on the outcome of the first ground.

The first ground set out in clause 6(i), 6(ii) of the Statement filed under Order 16 r 3 states:

“(i) Breach of duty to act fairly and been seen to act fairly.”

The Magistrate erred in law, including Section 59(2) of the Constitution, in that he did not give any opportunity to the Plaintiff or the Plaintiff’s counsel to be heard in accordance with prior direction that were issued by the Committal Court that required the counsel for the Plaintiff and the Police Prosecutor to make oral submissions in Court with regard to the Plaintiff’s application that there was no case to answer.

“(ii) The Magistrate erred in law in that he assumed the responsibility for the determination of the Committal hearing of the Plaintiff without explanation or with inadequate explanation to counsels appearing in the matter for the Plaintiff and the Police Prosecutor as to his involvement and without regard to the previous directions of the Committal Court.”

The Plaintiff relies on his two (2) affidavits sworn on 7th April 2004, 22nd April 2004 respectively; and the affidavit of Mr Francis Griffin sworn on 13th April 2004.

The Respondents contests the application. They rely on two (2) affidavits of the presiding Magistrate Mr Posain Poloh sworn on 29th April 2004 and 9th June 2004 respectively.

The history of the proceedings before the District Court are as follows. On 19th March 2004, the matter was mentioned before His Worship Mr A. Kopi. Mr Griffin of counsel appeared for the Applicant with the Applicant. Senior Police Prosecutor T Eluh appeared for the prosecution. By this time, the prosecution file had been completed and served on the Applicant. Parties had agreed to file written submissions. The Applicant had filed his submission. He made a no case submission. The Police Prosecutor had also filed his written submissions. On 19th March, the Applicant wanted further time to file submissions in reply. As to what transpired before Mr Kopi is found in His Worship’s notes recorded in the Court Worksheet. It states:

“Defendant requests for further adjournment to file rebuttal to Pros reply submissions. Pros. No objection instead concede to adj. Both consent to adj to 31/3/04 for (m). Adj. for (m) or alternatively by hearing of submissions by another Magistrate. Clerk to confirm Hearing of Submission by the 29/3/04…..

(Signed)

Remarks - Clerk on the 29/3/04 to confirm...