In The Matter of an Application pursuant to Section 155(4) of the Constitution; Richard Liri and Philip Kit Kinomen v The State (2006) N3110

• Jurisdiction: Papua New Guinea
• Date: 17 November 2006
• Citation: (2006) N3110
• Docket Number: OS No 420 Of 2006
• Court: National Court
• Year: 2006

Full Title: OS No 420 Of 2006; In The Matter of an Application pursuant to Section 155(4) of the Constitution; Richard Liri and Philip Kit Kinomen v The State (2006) N3110

National Court: Lay J

Judgment Delivered: 17 November 2006

APPLICATION TO QUASH INDICTMENT - nature of application - judicial review - magistrates failure to comply with s94 C(2) of District Courts Act -3 years delay in making application -delay prejudicial to good administration - relief refused.

Facts

The accused were committed for trial on a charge of wilful murder in May 2003. In June 2006, the applicants sought to quash the committal by application pursuant to s155(4) of the Constitution. There was no evidence that the committing magistrate had made the enquiry required by s94C(2) of the District Courts Act.

Held

The application was one for judicial review. The application would be treated as an application for leave. It was not an application pursuant to s155(4) of the Constitution. There is an arguable case that the committing magistrate had not complied with the requirements of s94C(2) of the District Courts Act to make enquiry that the persons making written statements had read and understood them. However the unexplained 3 year delay in making the application was prejudicial to good administration. Nothing is finally decided by the committal proceeding. The applicants’ constitutional rights will be protected on trial from any deficiency in the evidence. The best course is for the Court in its civil jurisdiction not to interfere with the ordinary course of the criminal jurisdiction. For those reasons leave to proceed with judicial review is refused.

Cases Cited

Papua New Guinea Cases

State v Tanedo [1975] PNGLR 395; SCR No 2 of 1981; Re s19(1)(f) Criminal Code [1982] PNGLR 150; National Airline Commission trading as Air Niugini [1983] PNGLR 1; Ombudsman Commission v Dohonue [1985] PNGLR 348; NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70; Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122; Papua New Guinea Pilots Association v Director of Civil Aviation and Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153; Application of Demas Gigimat [1992] PNGLR 322; Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22; State v Kai Wabu [1994] PNGLR 498; Robert Lak v Dessie Magaru [1999] 572; N1959 Steamships Trading Co Ltd v Garamut Enterprises Ltd; Jimmy Mostata Maladina v Posain Poloh (2004) N2568; referred to

Overseas cases

Ex parte Cousens; Re Blacket and Anor (1947) 47 SR (NSW) 145; Inland Revenue Commissioners v National Federation of Self Employed and Small Business Limited [1982] AC 617; Council of Civil Services Unions v Minister for the Civil Service [1984] 3 ALL ER 935;

1. LAY J: The Applicants make application to quash their committals to stand trial for wilful murder. The Applications are made on the basis of procedural irregularities alleged on the part of the Police in preparing the written statements of the witnesses and procedural irregularities on the part of the committing magistrate.

2. The Applicants intimated that this application would be made when they came before me for the purpose of the State presenting an indictment against them. The indictment was not presented and the proceedings were adjourned in order that this application could be made.

3. There is no right of appeal given by statute from the decision of a magistrate to commit for trial. The Applicants submit that this is an application pursuant to s155(4) of the Constitution. They submit that it is similar to a human rights application where the applicants are seeking to...