Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ Cannings J David J
• Judgment Date: 15 December 2006
• Citation: (2006) SC855
• Docket Number: SCR No 34 Of 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC855

Full Title: SCR No 34 Of 2005; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855

Supreme Court: Kapi CJ, Cannings J, David J

Judgment Delivered: 15 December 2006

SC855

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 34 0F 2005

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY

HERMAN JOSEPH LEAHY

Waigani : Kapi CJ, Cannings J, David J

2005: 1 December

2006: 15 December

APPEALS AND REVIEWS – Decision of National Court to refuse objection to, and accept, an indictment presented by the Public Prosecutor – Whether appeal or review appropriate –Review under Section 155(2)(b) Constitution – Criteria to be satisfied.

CRIMINAL LAW – Procedure –Presentation of indictment under Criminal Code, Section 526 – Refusal by court of summary jurisdiction to commit a person for trial – Whether refusal constitutes dismissal or acquittal.

CONSTITUTIONAL LAW– Whether Criminal Code, Section 526, inconsistent with Constitution, Section 155(6) – Constitution, Section 177 – Independence of Public Prosecutor – Freedom from direction or control.

The applicant was charged with conspiracy to defraud and misappropriation. He faced committal proceedings in the District Court, which concluded that there was insufficient evidence to support the charges and refused to commit him for trial. The Public Prosecutor then presented an ‘ex officio’ indictment in the National Court. The applicant raised an objection to the indictment and the National Court refused the objection and received the indictment. The applicant applied for leave from the Supreme Court to review the decision of the National Court. On the presumption that leave was granted, the applicant also argued the substantive case for review.

Held:

(1) The decision of the National Court to dismiss an objection to and accept an indictment is reviewable by the Supreme Court under Section 155(2)(b) of the Constitution, there being no right of appeal and no other way an accused person may bring the matter to the Supreme Court; provided that the accused can show:

(a) there is an important point of law to be determined; and

(b) it is not without merit. Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433 applied.

(2) The applicant satisfied both criteria and was granted leave for review.

(3) Before proceeding with a review under Section 155(2)(b) of the Constitution there are three matters to be satisfied in relation to each argument advanced by the applicant:(4)

(a) Is it raised in one or more grounds of review?

(b) Was it raised in the National Court?

(c) Is it a proper review point?

If the answer is ‘yes’ to all questions, the Court is obliged to determine the issue raised by the argument. If the answer to any question is ‘no’, the Court will consider whether it is appropriate to address the argument or point of law being raised.

(4) The applicant advanced five substantive arguments; two of which were neither raised in the grounds of review nor in the National Court. The Court therefore determined only three of the arguments.

(5) Section 526 of the Criminal Code allows the Public Prosecutor to present an indictment to the National Court notwithstanding the refusal by the District Court to commit a person for trial. Section 526 is not inconsistent with Section 155(6) of the Constitution and represents a lawful exercise of legislative power by the National Parliament.

(6) The Public Prosecutor is not obliged to exhaust the State’s rights of appeal or review of a decision of the District Court not to commit a person for trial, prior to presenting an indictment under Section 526 of the Criminal Code.

(7) The District Court’s decision not to commit a person for trial does not amount to a dismissal of the information containing the charge against the person. Committal proceedings do not determine the innocence or guilt of a defendant and cannot result in an acquittal.

(8) The Public Prosecutor is an independent constitutional office-holder, a prime function of whom is to control the exercise and performance of the prosecution function of the State. Section 526 of the Criminal Code is an important check and balance on the exercise of powers of the District Court in committal proceedings and facilitates the Public Prosecutor’s control of the prosecution function.

(9) In the result, none of the applicant’s arguments succeeded and none of the grounds of review were upheld. There was no basis for making any of the orders sought by the applicant. The application for review was dismissed and the decision of the National Court affirmed.

Cases cited

Papua New Guinea Cases

R Toigen Tiolo and Others [1970] PNGLR 285

R v Topulumar and Others [1971-72] PNGLR 320

The State v Tanedo [1975] PNGLR 395

SCR No 1 of 1976 (P); Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537

Ex Constitutional Reference No 1 of 1978 [1978] PNGLR 345

Ex parte Smedley [1978] PNGLR 156

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448

Smedley v The State [1980] PNGLR 379

Acting Public Prosecutor v Uname Aumane and Others [1980] PNGLR 510

Arthur Gilbert Smedley v The State [1980] PNGLR 379

Minister for Lands v William Robert Frame [1980] PNGLR 433

Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265

Avia Aihi v The State [1981] PNGLR 81

Keko Aparo and Others v The State (1983) SC249

Malipu Balakau v Paul Torato [1983] PNGLR 242

Danny Sunu v The State [1984] PNGLR 305

Robert Kaki Yabara v The State [1984] PNGLR 378

Ex parte Rush [1984] PNGLR 124

Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Chapter No 138) [1987] PNGLR 433

Wong, William Baptiste and David F Tau [1987] PNGLR 227

The State v Colbert [1988] PNGLR 138

New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Enforcement of Rights Pursuant Constitution S57; Application by Karingu [1988-89] PNGLR 276

SCR No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337

Applications of Kasap and Yama [1988-89] PNGLR 197

David Toll v The State (1989) SC378

The State v Jack Gola and Mopana Aure [1990] PNGLR 206

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

SCR No 2 of 1990; Re interpretation and application of Constitution s37(4)(a), and Sections 327 and 333 of the Income Tax Act [1991] PNGLR 211

SCR No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239

The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

The State v Esorom Burege (No 1) [1992] PNGLR 481

Pius Mark v Korali Iki [1995] PNGLR 116

Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26

Charles Ombusu v The State [1996] PNGLR 335

Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572

Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437

Moi Avei and Electoral Commission v Charles Maino (1998) SC584

Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special

The State v Michael Nama and Others (1999) N1884

Robert Lak v Dessy Magaru and The State (1999) N1950

Jim Kas v The State (1999) SC772

Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956

Supreme Court Reference No 13 of 2002: Review Pursuant to Section 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC686

Reference Pursuant to Constitution Section 19 by Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693

The State v John Koma (2002) N2176

Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285

Robert Kopaol v Philemon Embel (2003) SC727

The State v Jimmy Mostata Maladina (2004) N2530

Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The State (2004) N2562

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

Benny Diau v Mathew Gubag (2004) SC775

The State v Iori Veraga (2005) N2849

Tom Longman Yaul v The State (2005) SC803

The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812

James Marabe v Tom Tomiape and Electoral Commission (2006) SC827

Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L

Overseas Cases:

R v McConnon [1955] Tas SR 1

R v Dawson [1960] All ER 558

R v Webb (1960) QdR 443

Ex parte Cousens: Re Blackett (1964) 47 SR (NSW) 145

R v Fazzari unreported decision of the New South Wales Court of Appeal, 08.12.77

Barton v R (1980) 32 ALR 440

R v Torrtomano [1981] VR 31

Barton v The Queen (1990) 147 CLR 75

APPLICATIONS

This was an application for leave to seek review of a decision of the National Court refusing an objection to an indictment; and an application for substantive review of that decision.

Counsel:

G. J .Sheppard and N. Eliakim, for the applicant

C. Manek, for the State

15 December, 2006

1. BY THE COURT: This case concerns the Public Prosecutor’s power to present an indictment to the National Court after the District Court has decided not to commit a...