Kepas Hiviki v the Independent State of Papua New Guinea (2015) SC1449

• Jurisdiction: Papua New Guinea
• Judge: Makail J,
• Judgment Date: 05 August 2015
• Court: Supreme Court
• Citation: (2015) SC1449
• Docket Number: SC Review No. 38 of 2015
• Year: 2015
• Judgement Number: SC1449

Full Title: SC Review No. 38 of 2015; Kepas Hiviki v the Independent State of Papua New Guinea (2015) SC1449

Supreme Court: Makail J,

Judgment Delivered: 5 August 2015

SC1449

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 38 OF 2015

BETWEEN:

KEPAS HIVIKI

Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Makail J,

2015: 24th July & 05th August

SUPREME COURT – PRACTICE & PROCEDURE – Leave to review – Leave sought to review National Court decision – Refusal to quash indictment following a demurrer to indictment – Ex-officio indictment – Applicant charged with one count of wilful murder and five counts of attempted murder – Demurrer – Proposed grounds of review – Defective indictments – Constitution – Section 155(2) (b) – Criminal Code – Sections 526 & 567 – District Courts Act – Sections 95 & 100.

Cases cited:

Application by Anderson Agiru (2003) SC704

Avia Aihi v. The State (No. 2) [1982] PNGLR 44

The State v. Cain Wosae (2010) N3996

Re: Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR Charles Bougapa Ombusu v. The State [1996] PNGLR 335

Commission (2011) SC1118

The State v. Elias Subang (No. 1) [1976] PNGLR 141

433

Eremas Wartoto v. The State (2015) SC1411

Eremas Wartoto v. The State (2013) SC1298

Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ombudsman

Application by Herman Joseph Leahy (2006) SC855

The State v. Jeffrey Ava (2010) N4161

The State v. Michael Nama (1999) N1884

The State v. Nelson N. Ngasele (2003) SC731

Rimbink Pato v. Anthony Manjin [1999] PNGLR 6

The State v. Robin Panu (2010) N4087

The State v. Tolly Saun and Standley Saun (2011) N4390

Counsel:

Mr S Soi, for Appellant

Mr P Bednall, for Respondent

RULING ON LEAVE TO REVIEW

05th August, 2015

1. MAKAIL, J: This is an application for leave to review the decision of the National Court of 28th May, 2015 refusing to quash indictments in a Criminal Proceeding No 222 of 2013 between the State and the Applicant.

Brief Facts

2. The uncontested facts are; the Applicant was initially charged with one count of wilful murder of one Louis Matamon and two counts of attempted murder of Elma Tigi and Boby Brit under Section 299(1) and Section 304 of the Criminal Code respectively. On 17th May, 2013 the District Court struck out the charges for “want of sufficiency of evidence”. He was, accordingly, discharged and released from custody.

3. On 24th March, 2014 in the exercise of his powers under Section 526 of the Criminal Code, the Public Prosecutor presented two ex-officio indictments against the Applicant; one charging him with one count of wilful murder and the other with five counts of attempted murder under Section 299(1) and Section 304 of the Criminal Code respectively. On 14th May, 2015 the Applicant applied through his counsel to quash the indictments or what is commonly referred to in criminal proceedings as a “demurrer” under Section 567 of the Criminal Code. On 28th May, 2015 the National Court refused the application.

Principles of Leave

4. At the outset, let me address the submission of counsel for the Respondent that the application is an abuse of process because it has been made before the criminal process in the National Court has finished. This submission is based on the Supreme Court decision in Eremas Wartoto v. The State (2015) SC1411. See also my dissenting judgment in Eremas Wartoto v. The State (2013) SC1298.

5. The general proposition is that the Court should not easily and readily intervene early in the criminal justice process. This principle has been extended to quasi judicial investigations such as Ombudsman Commission investigation and referral: see Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ombudsman Commission (2011) SC1118.

6. The proposition, in my view, raises a competency issue, which counsel for the Applicant has submitted should be raised upon adequate notice given to the Applicant. That was not done and it comes as a surprise. I agree. I consider that this issue was not fully argued by counsel, particularly, the Applicant’s counsel within the context of a demurrer under Section 567 (supra) and it is not necessary for me to express a view on it. I prefer to leave it for another occasion.

7. Accepting that it is open to the Applicant to seek review on the subject decision, this case falls within the third category of cases where leave for judicial review is sought under Section 155(2)(b) of the Constitution. This is where there is no other way of going to the Supreme Court except by way of a review: Re: Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433. For the first and second categories of cases, see Avia Aihi v. The State (No. 2) [1982] PNGLR 44 and Application by Anderson Agiru (2003) SC704. But for now based on the Central Banking case, the criteria or tests to be met by an Applicant seeking leave are:

7.1. There is an important point of law to be determined; and

7.2. It is not without merit.

Proposed Grounds of Review

8. The Applicant relies on three grounds which his counsel submits raise important points of law which justify grant of leave. They are:

8.1. The District Court did not refuse to commit the Applicant to the National Court but struck out the charges for “want of sufficiency of evidence”. The primary judge misconstrued the striking out of the charges for lack of evidence as being refusal to commit the Applicant to the National Court under Section 526 of the Criminal Code.

8.2. Section 526 of the Criminal Code authorises the Public Prosecutor or a State Prosecutor to present one ex-officio indictment against the Applicant after the District Court struck out the charges against him. The Public Prosecutor, instead, presented two ex-officio indictments against the Applicant. The primary judge misapplied the application of Section 526 when he held that it was open to the Public Prosecutor to present multiple ex-officio indictments.

8.3. The primary judge did not give reasons for refusing the application to quash the ex-officio indictments.

Consideration of Submissions

9. I have heard counsel for each party on the application and also have considered the Respondent’s in-depth written submission in relation to the relevant principles and their application to the case at hand and I thank counsel for their invaluable assistance. I propose not to repeat the submissions here save to refer to them in my consideration of the issues raised in this case.

10. The competing arguments come down to firstly, whether the Public Prosecutor has power to present ex officio indictments after the District Court had struck the charges out for “want of sufficiency of evidence” and secondly, power to present two ex-officio indictments. I will address the issue of lack of reasons separately.

Want of Sufficiency of Evidence/Refusal to Commit

11. It is beyond argument that Public Prosecutor, in the discharge of his powers, has discretion to present an ex-officio indictment under Section 526 of the Criminal Code. Section 526 states:

“526. Indictment without committal.

(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may —

(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and

(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.

(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer —

(a) copies of the depositions taken at the committal proceedings; and

(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,

within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.” (Emphasis added).

12. The submission by counsel for the Applicant that there is no order by the District Court refusing to commit the Applicant to the National Court consistent with the expressed terms of Section 526(1) (supra) can be put to rest by reference to Section 95 of the District Courts Act. It states:

“95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(2) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”...