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

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 June 2004
• Court: National Court
• Citation: (2004) N2562
• Year: 2004
• Judgement Number: N2562

Full Title: Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The Independent State of Papua New Guinea (2004) N2562

National Court: Kandakasi J

Judgment Delivered: 23 June 2004

1 ADMINISTRATIVE LAW—Judicial Review—Committal by coronial court—Coronial inquest—Conduct of inquest in breach of the Coroners Act (Ch32)—Effect of—Decision ultra vires the Act and in excess of jurisdiction—Breach of natural justice—No reasonable tribunal could have arrived at the decision in the circumstances—Constitution s37(4)(e) and s37(4)(f)—Coroners Act s7(3), s10(a), s19(1) and s19(2), s23(1) and s23(2)—s96 Criminal Code s300.

2 Lawrence Bokele v The Police Commissioner (2001) N2105, SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682, Re Alleged Misconduct in Office by Honourable Peter Ipu Peipul: Peipul v Sheehan (2001) N2096, Dan Kakaraya v The Ombudsman Commission (2003) N2478, Wilson Kamit v Marshall Cooke (2003) N2369, Simon Ketan v Lawyers Statutory Committee (2001) N2290, Rimbink Pato v Anthony Manjin (1999) SC622, The State v Rush; Ex parte Rush; Application of Allan Douglas Rush [1984] PNGLR 124, Robert Lak v Dessie Magaru (1999) N1950, Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956, Aviat Social and Sporting Club (Lae) Inc v Anthony Meehan Ltd (2001) N2071, Samson Dacany v Noah Taia (2002) N2316, Bernard Hagoria v The Ombusman Commission (2003) N2400, Iambakey Okuk v Fallsheer [1980] PNGLR 274, Leo Nuia v Benias Sabumai [1992] PNGLR 90 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 22 OF 2004

BETWEEN:

SAKAWAR KASIENG

Plaintiff

AND:

ANDREW BAIGRY, Magistrate of Wewak District Court

First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WAIGANI: KANDAKASI, J.

2004 11th February and 23rd June

ADMINISTRATIVE LAW – Judicial Review – Committal by coronial court – Coronial inquest – Conduct of inquest in breach of the Coroners Act – Effect of – Decision ultra vires the Act and in excess of jurisdiction – Breach of natural justice - No reasonable tribunal could have arrived at the decision in the circumstances – Constitution s. 37 (4) (e) and (f) - Coroners Act ss. 7 (3), 10 (a), 19 (1) and (2), 23 (1) and (2) – s. 96 Criminal Code s.300.

Cases Cited:

Lawrence Bokele v. The Police Commissioner and The State (Unreported judgment on 28/06/01) N2105.

Lawrence Bokele to Review the Decision of The National Court Refusing Leave to Review Decision of Police Commissioner (Unreported judgment delivered on 05/04/02) SC682.

Peter Ipu Peipul v. Sheehan J, Mr Ori Karapo and Iova Geita (Consisting of the leadership Tribunal) & Ors.(Unreported judgment) N2096.

Dan Salmon Kakaraya v. The Ombudsman Commission of Papua New Guinea & The Independent State of Papua New Guinea (Unreported judgment delivered on 24/10/03) N2478.

Wilson Kamit & The Bank of Papua New Guinea v. Marshall Cook Q.C.& Ors (Unreported judgment delivered on 14/05/03) N2369.

Simon Ketan v. Lawyers Statutory Committee & Anor (Unreported judgment delivered on 28/09/01) N2290.

Rimbink Pato v. Anthony Majin & Ors (Unreported judgment delivered 30/04/99) SC622.

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

Robert Lak v. Daisy [Dessie] Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) & The State (Unreported judgment delivered on 20/05/99) N1950.

Justin Wayne Tkatchenko v. Dessy Magaru (Unreported judgment delivered on 04/05/00) N1956.

Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd (Unreported judgment delivered 28/03/01) N2071 and Samson Dacany v. Noah Taia of The National Fisheries Authority (Unreported judgment delivered on 13/12/02) N2316.

Honourable Bernard Hagoria v. The Ombusman Commission of Papua New Guinea (Unreported judgment delivered on 26/05/03) N2400.

Iambakey Okuk v. Fallsheer [1980] PNGLR 274.

Leo Nuia v. Benias Sabumai [1992] PNGLR 90.

Counsel:

Nablu for the Plaintiff

F. Cherake for the Defendants

23rd June 2004

KANDAKASI, J: This is an application for leave for judicial review of decision by the first defendant as coroner under the Coroners Act

Chp.32.

1, which committed him to stand trial on a charge of murder after a coronial inquest. Initially, the defendant did not oppose the plaintiff’s application, but I had serious doubts as to whether judicial review is available to review a decision of a committal court on a criminal charge. I therefore asked the parties to provide me with written submission in relation to that question.

At the outset, it is necessary to note that there is no contest that the plaintiff has sufficient interest in this matter. There is also no contest on the timing of this application. I find these aspects in favour of the plaintiff.

Contention of the Parties

Turning then to the points in contest, I note that the plaintiff is raising a number of contentions and therefore his grounds for his application. Firstly, he argues that, the first defendant erred in assuming jurisdiction after the lapse of 12 months from the date of the incident giving rise to the inquest and more so without the approval of the Attorney General in terms of s.7 (3) of the Act. Secondly, he argues that neither the first defendant nor the prosecutor assisting the coroner formally charged and informed him of the charge in accordance with the requirements of s. 19 (1) and (2) of the Act. Thirdly, he argues that, the Coroner erred in failing to admit certain available evidence that were favorable to him, including his own which he says, was not taken in accordance with the provisions of s.23 (2) of the Act. Fourthly, the plaintiff argues that the coroner denied him his right to legal representation contrary to the guarantee under s. 37 (4) of the Constitution, by refusing an adjournment he sought for the purposes of securing the services of a lawyer. Finally, he argues that in all of the circumstances, no reasonable tribunal could have arrived at the decision the coroner arrived at.

In relation to the question I raised with the parties, the plaintiff argues that, judicial review is available as a remedy to him because the Coroner acted in excess or ultra vires his jurisdiction, in view of the foregoing argument. The plaintiff cites a number of case authorities in support of his argument. I will refer to those in the course of the judgment.

The Defendants have now changed their mind from one of agreeing to the relief sought by the plaintiff to arguing that, judicial review is not available to review a decision to commit a person to stand trial before the National Court on a criminal charge. The essence of that argument is that the criminal process has not come to its finality and as such, this Court being a civil court cannot interfere with that process. This argument also relies on a number of case authorities, which I will also refer to in the course of this judgment. In relation to the grounds the plaintiff relies on for his application, there is no argument against them. This does not mean an automatic grant of leave, if the Court answers the first question in the affirmative. Instead, the Court must consider these...