Paul Tarccisius Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 20 November 1990
• Court: National Court
• Citation: [1990] PNGLR 479
• Year: 1990
• Judgement Number: N937

Full Title: Paul Tarccisius Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479

National Court: Sheehan J

Judgment Delivered: 20 November 1990

N937

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TOHIAN

V

GEITA AND MUGUGIA (NO 2)

Waigani

Sheehan J

19-20 November 1990

ADMINISTRATIVE LAW — Judicial review — Application to committal proceedings — Available for jurisdictional error.

ADMINISTRATIVE LAW — Judicial review — Practice and procedure — Scope of review — Proof of order under review — Onus of proof — Remedies at discretion of court.

CONSTITUTIONAL LAW — Constitutional reference — Interpretation or application of constitutional law — Obligation to consider whether appropriate -Committing magistrate not exempt — Whether trivial, vexatious or irrelevant — Constitution, s 18 (2).

CRIMINAL LAW — Practice and procedure — Committal proceedings — Constitutional reference — Committing magistrate not exempt from considering — Constitution, s 18 (2).

INFERIOR COURTS — District Courts — Practice and procedure — Constitutional reference — Committing magistrate not exempt from considering — Constitution, s 18 (2).

On an application for judicial review of an order for committal by a magistrate of the District Court on charges of treason, the ground of review was that the magistrate refused to refer a question allegedly relating to the interpretation or application of a provision of a constitutional law to the Supreme Court pursuant to s 18 (2) of the Constitution. The substance of the question sought to be referred was that there could be no charge of treason by acts against the Queen.

Held:

(1) Judicial review is available in respect of committal proceedings, for jurisdictional error.

The State v Rush; Ex parte Rush [1984] PNGLR 124, followed.

(2) Judicial review is concerned solely with the validity of the decision-making process: questions relating to sufficiency of evidence are therefore excluded.

(3) Because judicial review is available to consider the validity of actual decisions, the actual decision and/or orders must be properly in evidence before the reviewing court or tribunal.

(4) An applicant for judicial review bears the onus of establishing his case and has therefore an obligation to formulate grounds of review.

(5) Judicial review provides remedies at the discretion of the Court granted only to avoid injustice.

(6) A magistrate hearing committal proceedings is obliged to make some assessment of whether grounds exist for referring a question under s 18 (2) of the Constitution or whether the question is "trivial, vexatious or irrelevant".

(7) In the circumstances, the constitutional issues raised were trivial, vexatious and irrelevant; in the absence of evidence of the decision or orders of the District Court magistrate the application for review should be dismissed.

Cases Cited

The following cases are cited in the judgment:

Ridge v Baldwin [1964] AC 40.

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

SCR No 5 of 1982; Berghuser v Aoae [1982] PNGLR 379.

State, The v John Rumet Kaputin [1979] PNGLR 532.

State, The v Rush; Ex parte Rush [1984] PNGLR 124.

Tohian v Geita and Mugugia [1990] PNGLR 353.

Judicial review

This was an application for judicial review of a ruling of a District Court magistrate in committal proceedings. The application for leave is reported: Tohian v Geita and Mugugia [1990] PNGLR 353.

Counsel:

L Gavara-Nanu, for the applicant.

P Ume, for the defendants.

Cur adv vult

20 November 1990

SHEEHAN J.: This is an application for judicial review of an order of committal to the National Court for trial made by a district magistrate Mr Iova Geita at Boroko, Port Moresby on 10 August 1990. [And see Tohian v Geita and Mugugia [1990] PNGLR 353].

No copy of the committal proceedings or the order of committal was filed in this application but, in affidavit evidence filed on behalf of the applicant, copies of the informations the subject of those proceedings were produced.

The substance of the two informations is as follows:

COUNT 1 STATES

"paul tarccicius tohian of Lungatan Village, Konos Sub Province New Ireland Province formed and intention to levy war against the Queen and Head of State in order by force to put force upon the Prime Minister and the Executive Government of the Independent State of Papua New Guinea and that the said paul tarccicius tohian manifested that intention by ordering the Mobile Squad Officers and Policemen to arm themselves and go with him to the Parliament House to have the Prime Minister under House Arrest for the purposes of the said paul tarccicius tohian to take over as the Prime Minister and the Executive Government of the Independent State of Papua New Guinea.

Thereby contravening Section 39 (1) (b) of the Criminal Code Act Chapter No 262."

COUNT 2 STATES

"paul tarccicius tohian of Lungatan Village, Konos Sub Province New Ireland Province levied war against the Queen and Head of State in order by constraint or force to compel the Queen and Head of State to change her measures or counsels.

PARTICULARS

(i) The defendant exhorted and ordered the members of the Mobile Squads, Police Officers and other policemen to arm themselves and to go with him to Parliament House to install himself the said defendant as Prime Minister and to put the Prime Minister under house arrest and to depose the Constitutional Government of the Independent State of Papua New Guinea and he led them to carry out the above mentioned purpose.

(ii) The defendant also exhorted members of the Defence Force to join in an insurrection against the Constitutional Government of Papua New Guinea.

(iii) The defendant armed himself with a submachine gun 9mm Hecklar Koch Serial NO C305473 with two magazines completed with fifteen rounds for purposes above mentioned; and the submachine gun was loaded with one magazine for the said purposes.

Thereby contravening Section 37 (e) (ii) of the Criminal Code Act Chapter No 262."

The applicant contends that the committal proceedings were invalid. Serious constitutional issues were raised before the District Court, with the request that these be referred pursuant to s 18 (2) of the Constitution to the Supreme Court for interpretation, but the learned magistrate failed to make the reference sought and indeed ignored the constitutional issues altogether. Because of this the applicant seeks the following orders.

The plaintiff claims:

1. An order that he be allowed leave to make an application for judicial review of the decision of the first defendant sitting as a committal magistrate of the Boroko District Court, National Capital District given on 10 August 1990, to commit him to stand trial in the National Court.

2. An order in the nature of certiorari to remove into this Honourable Court and quash the decision of the first defendant given on 10 August 1990 whereby the first defendant refused to address and rule on the constitutional issues raised by the plaintiff during the committal proceedings on the said date and his failure to rule whether or not he would refer the said issues to the Supreme Court pursuant to s 18 (2) of the Constitution before committing the plaintiff to stand trial in the National Court on the charges laid against him under s 37 (e) (ii) and s 39 (1) (b) of the Criminal Code Act (Chapter No 262).

3. A declaration that the legal and or constitutional issues raised by the plaintiff were and are not trivial, vexatious or irrelevant.

4. An Order in the nature of mandamus requiring the first defendant to address and rule on the constitutional issues raised by the plaintiff and to rule as to whether he would refer such issues to the Supreme Court as required under s 18 (2) of the Constitution.

5. Such other and further Orders as the Court thinks fit.

Counsel for the applicant argues that while proceedings in committal hearings are regulated by ss 93-103 of the District Courts Act (Ch No 40), the provisions of the Constitution must also be strictly observed.

Starting from the position that the Constitution is the Supreme Law of Papua New Guinea (s 11 of the Constitution) and...