Justin Wayne Tkatchenko v Dessy Magaru

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 04 May 2000
• Court: National Court
• Judgement Number: N1956

National Court: Sevua J

Judgment Delivered: 4 May 2000

N1956

PAPUA NEW GUINEA

[ In the National Court of Justice]

OS 235 of 1999

BETWEEN: JUSTIN WAYNE TKATCHENKO

Plaintiff

AND: DESSY MAGARU

Defendant

Waigani: Sevua, J

2000: 29th February & 04th May

Administrative Law - Judicial Review - Review of Committal Court’s decision - Order to commit plaintiff to stand trial in National Court - Non-compliance with mandatory provisions of District Courts Act - Failure to give plaintiff opportunity to be heard - District Courts Act, Sections 94(1), 1A, 1B, 94A, 94B, 94C, 95 and 96.

Judicial Review – Review of Committal Court’s decision – Whether a Civil Court should intervene to circumvent a criminal proceeding.

Cases referred to:

The State -v- Kai Wabu [1994] PNGLR 498

Kekedo -v- Burns Philip(PNG)Ltd & Ors [1988 - 89] PNGLR 122

Robert Lak -v- Dessy Magaru,(Unreported) 20th May, 1999

HELD:

1. The National Court in its civil and review jurisdiction should decline to intervene in a complaint regarding committal proceedings by way of a judicial review when the matter, the subject of an application for judicial review, may be properly dealt with by a criminal Court, although a decision of the Committal Court is open to this review jurisdiction.

2. It is not proper for a civil Court to intervene by way of a judicial review, to circumvent what is strictly a criminal proceeding which ought to be determined and disposed of by a criminal Court which is the appropriate forum dealing with criminal prosecutions.

3. An Order in the nature of mandamus to have the charges dismissed and the plaintiff discharged unconditionally is not available in this application as the plaintiff is not seeking a review of police procedures in respect of their investigations and their decision to charge the plaintiff.

4. There was a breach of natural justice as the defendant failed to give an opportunity to the plaintiff to exercise his rights under ss.95(3) and 96 of the District Courts Act, therefore judicial review is available.

G. Sheppard for Plaintiff

A. Iwais for Defendant

04th May, 2000

SEVUA, J: The plaintiff was charged with two counts of indecent and unlawful assault, and two counts of carnal knowledge against the order of nature, commonly referred to as sodomy. These charges were laid on 15th January, 1999 by Inspector Hodges Ette of Boroko Police station.

On 30th April, 1999 the defendant, presiding as the Waigani Committal Court, committed the plaintiff to the National Court to stand trial on these charges. The defendant declared she was satisfied that there was sufficient evidence to support the four charges.

The plaintiff applied for leave to review the defendant’s decision, and leave was granted on 2nd July, 1999.

The grounds of review set out in the statement pursuant to Order 16 Rule 3(2)(a) are: error of law on the face of the record; want of jurisdiction; breach of the rules of natural justice, and unreasonableness under the Wednesbury Principles.

The Plaintiff seeks the following relief in this review:-

“(a) An order in the nature of certiorari bringing up to this Court and quashing the decision of the defendant made on 30th April 1999, to commit the plaintiff to the National Court

to stand trial in respect of the charges.

(b) An order in the nature of mandamus requiring the defendant to:

(i) dismiss the charges, and

(ii) discharge the plaintiff

(c) Costs “

Counsel for the plaintiff has advanced a number of submissions pertaining to various provisions of the District Courts Act. I think I can fairly conclude from those submissions that the plaintiff says the defendant failed to comply with Sections 94(1), 94(1A) & (1B), 94C, 95(3) and 96.

In respect of s.94, the plaintiff relied on a decision of Injia, J., The State -v- Kai Wabu [1994] PNGLR 498. His Honour in that case considered the combined effect of s.94(1A) and 94C(2) and observed that the requirements are mandatory and must be complied with. Whilst I agree that the requirements of these provisions are mandatory, the circumstances in which these provisions were considered in that case ought to be distinguished from the present case. When the distinction is made, the plaintiff’s submissions in the present case would be appreciated in its proper context.

In Kai Wabu, the accused had already been committed to stand trial in the National Court. The trial Judge on that occasion was considering the evidentiary aspects of the trial before him, and therefore the issue of mandatory requirements arose. The present case involves a committal procedure, which is not the same as a trial. The circumstances of both cases are different that I consider that Kai Wabu can be clearly distinguished on the facts.

The plaintiff contended that there was an error of law on the face of the record and relied on s.94C. Arguments raised in respect of the affidavit of the complainant, Stanley Kembo, included the issue of the language used in the preparation of his affidavit; whether it was read over to him; his illiteracy, etc, etc. The issue of credibility was also raised. In my view, these matters go to the evidentiary value of the case, which would come within the normal criminal jurisdiction of the National Court in a trial proper.

The plaintiff has attacked the credibility and validity of the complainant’s statement and evidence, however, with respect to counsel for the plaintiff, this Court is not concerned with the review of the evidence in the committal proceedings. That is not the purpose of a judicial review. The plaintiff’s arguments are tantamount to arguments in an appeal and this is not an appeal. There is now a tendency of raising issues and arguments appropriate in an appeal in a judicial review application and this is quite improper. Whether or not the complainant’s evidence is credible or valid or sufficient, the defendant had jurisdiction. The criminal charges are indictable offences that cannot be tried summarily. That is why the charges proceeded by way of committal hearing. It is a misconception to say that the defendant lacked jurisdiction because the evidence was not credible or valid. The issue of credibility or insufficiency of evidence does not go to jurisdictional issue. Of course the defendant had jurisdiction to deal with the charges.

The law on judicial review has been succinctly stated by the Supreme Court in Kekedo -v- Burns Philp (PNG) Ltd & Ors [1988 - 89] PNGLR 122. The principles confirmed by the Supreme Courts are these:

“1. That the National Court judicial review jurisdiction exists

even where appeal procedures are provided by the

Parliament. This jurisdiction can only be taken away by

express provisions.

2. Save in the most exceptional circumstances, the rule is that judicial review jurisdiction will not be exercised by the Court where other remedies are available.

3. Whether the statutory procedure would be quicker, or slower than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellant body are amongst the matters which a Court may...