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
• Judge: Lay J
• Judgment Date: 17 November 2006
• Citation: (2006) N3110
• Docket Number: OS No 420 Of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3110

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

N3110

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 420 OF 2006

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 155(4) OF THE CONSTITUTION

BETWEEN

RICHARD LIRI AND PHILIP KIT KINOMEN

Applicants

AND

THE STATE

Respondent

Kokopo: Lay J

2006: 17 November

APPLICATION TO QUASH INDICTMENT - nature of application - judicial review - magistrates failure to comply with s 94 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 s 155(4) of the Constitution. There was no evidence that the committing magistrate had made the enquiry required by s 94C(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 s 155(4) of the Constitution. There is an arguable case that the committing magistrate had not complied with the requirements of

s 94C(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 Philip (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;

Counsel

J. Isaac, for the Applicants

L. Rangan, for the Respondent

17 November, 2006

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 s 155(4) of the Constitution. They submit that it is similar to a human rights application where the applicants are seeking to enforce their rights to a fair hearing pursuant to s 37(3) of the Constitution. It is submitted that the Court should invoke s 185 of the Constitution. It is also submitted that judicial review is not available, as it is only available where there is a breach of natural justice.

4. First, I reject the submission that this is an application pursuant to s 155(4) of the Constitution. The Supreme Court has said on numerous occasions that the section does not grant original jurisdiction. The provision is an enabling one to extend the powers to make orders suitable to the circumstances of any case. It is a secondary power to make orders. But there must first be a primary right founded in some other law which can be enforced by making an order pursuant to s 155(4). The powers granted by s 155(4) are powers to make orders “in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.” That is not a power to make up the law or to create new causes of action or new relief not founded on an existing right.

5. In SCR No 2 of 1981; Re s 19(1)(f) Criminal Code

1 [1982] PNGLR 150 at p.171

1 Chief Justice Sir Buri Kidu said about s 155(4):

“It does not however, vest in the National Court or the Supreme Court, the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law.”

6. Kapi J, (as he then was) said:

“In my view the words “such other orders” are to be interpreted to relate to orders of a similar character as referred to in the first limb of s. 155(4) of the Constitution. The use of the word “such” in the provision compels me to come to such conclusion. As to what are these specific orders it is wise not to attempt an exhaustive list. However, these orders must have some resemblance in character or in nature to the prerogative writs. An essential character of prerogative writs in this context is that they are remedial in nature. That is to say they are processes by which the rights of parties are protected or enforced. The existence of a right is essential to the availability of a prerogative writ. The orders in the second limb must have these characteristics. That is the limitation to the types of orders that can be made under the second limb of s. 155(4). It cannot be read to mean any type of order whatsoever. This is a conclusion reached by a pure construction of the provision itself. The section does not set out such matters as persons who are entitled to apply for such orders (locus standi) and grounds upon which such orders may be given. These are matters which can be determined by reference to the principles of common law and equity under Sch. 2 of the Constitution.

7. Whilst there was some divergence of approach by other members of the Court Kearney DCJ agreed that:

“s 155(4) is directed solely to the power of the court to issue preventative or remedial judicial process for the purpose of protecting or enforcing a party’s primary rights. It is concerned with a party’s secondary rights.”

2 at page 158

2

8. Greville-Smith J said considered “other orders” meant:

“procedural orders and such orders as may be necessary to enforce the substantive law in a particular case.

3 at page 169

3

9. And Pratt J said:

“…if a person has any rights at all, such rights must find there genesis in either statute or the underlying law…The rights vested in a citizen by the law are there to be enforced by the courts and not to be created by the courts, save in the limited way I have already outlined.”

10. The relief sought by the Applicants in this case is inter alia “An order in the nature of certiorari to remove into this Court and quash the orders of the Kokopo District Court…” and “An order in the nature of mandamus to have the committal order of the District Court quashed…”

11. Order 16 of the National Court Rules provides that:

1(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of application for judicial review in accordance with the provisions of this order.”

12. The grounds relied upon are alleged breaches of s 94(1A) and

s 94C (2) of the District Courts Act. These are identical grounds to those raised in Jimmy Mostata Maladina v Posain Poloh (2004) N2568, an application for judicial review decided on another ground. I have no doubt that this is an application for judicial review and consequently it should have been brought in the form and following the procedure required by O16. However, the State took no issue with the form of the proceeding, nor was it suggested by the State that it was disadvantaged by not understanding the issues raised by the application. It is a similar situation to the procedural situation in Robert Lak v Dessie Magaru [1999] 572, except that in that case there was also no originating summons. The Court went on to treat the application as an application for leave for judicial review. I will treat this application as an application for leave for judicial review.

13. On an application for leave the Court must be satisfied that the applicant has sufficient interest in the subject matter of the application: See O16 r 3(5)....