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Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208; N2568 (25 June 2004)

N2568


PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]]


OS NO. 178 OF 2004


Between:


JIMMY MOSTATA MALADINA
- Applicant -


And:


PRINCIPAL DISTRICT COURT MAGISTRATE POSAIN POLOH
- First Respondent -


And:


THE STATE
-Second Respondent-


Waigani: Injia, DCJ
2004: June 25th


JUDICIAL REVIEW – District Court committal proceedings – Failure to give opportunity to defendant’s counsel to make oral submission under S.96 of the District Court Act after written submission where filed – Denial of natural justice – Committal quashed – Matter remitted back to the District Court for re-hearing before another Magistrate.


DISTRICT COURTS ACT- Committal hearing – Defendant’s right to be heard orally and/or through written submissions – There is no right to be heard under S.95– There is a right to be heard under S.96 – Principles of natural justice - Duty of Magistrate to provide real and meaningful opportunity to defendant under S.96 discussed.


DISTRICT COURT – Committal hearing – Consideration of evidence under S.95, S.96 and S.100 – Courts and Court case management matters are irrelevant considerations for purpose of Magistrate’s opinion on the evidence under S.95 and S.100.


PRACTICE AND PROCEDURE – Written submissions to be followed by oral submissions – Rights of parties to make oral submissions is a fundamental right -Written submissions not a substitute for right to be heard orally on written submissions except where parties, with leave of the Court, waive their right to be heard and agree to proceed by way of written submissions only.


Cases cited:
Alotau Enterprises Pty Ltd & Another v Zuric Pacific Insurance Pty Ltd N1969 (1999).
Diro v Ombudsman Commission N1385 dated 16 July 1999.
Ex parte Moses Sasakila [1976] PNGLR 491.
Graham Kevi v The Teaching Services Commission Disciplinary Committee [1997] PNGLR 659.
In re Ketan N2290.
James Mileng v Alkan Tololo [1976] PNGLR 447.
Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122.
Lawrence Vetari v State SC156 dated 10 August 1979.
Justine Wayne Thatchenko v Dessy Magaru N1956 dated 4 May 2000.
Mollock v Aberdeen Corporation [1971] 2 ALL ER 1278.
Nanhutka Sambali v Sacred Heart Mission (New Britain) Property Trust [1973] PNGLR 590.
Okuk v Falsher [1980] PNGLR 101 279.
Pato v Manjin SC622 dated 3 April 1999.
Police v Tanos [1958] HCA 6; [1959] 98 CLR 383.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.
Regina v Mitchell and Ijabujo; Ex parte Alois Wafing [1973] PNGLR 590.
Regina v William Taupa Touonila & Others [1975] PNGLR 140.
Richard Moaitz v Tom Awasa & Electoral Commission N424 (1983).
Robert Lak v Dessie Magaru & The State N1950 dated 20 May 1999.
Rose Tarere v MVIT [1988] PNGLR 201.
Ryan v The State SC148 dated 3 May 1979.
SCR No. 12A of 1984 Re Paraka [1985] PNGLR 224
State v Rush Ex Parte [1984] PNGLR 124.


Counsel:
G. Shephard with H. Leahy for the Applicant
J. Bokomi for the Respondent


25 April 2004


INJIA, DCJ.: This is an application for judicial review under Order 16 of the National Court Rules, of the decision of Waigani District Court made on 31st March 2004 to commit the applicant to stand trial on seventeen (17) criminal charges. Leave to apply for review was granted on 23rd April 2004.


There are two (2) grounds of review, namely first, the committal proceedings were conducted in breach of principles of natural justice and secondly, the Court erred in law in failing to follow the mandatory procedure prescribed by s.94(1A) and 94(C)(1), (2)(b) of the District Court Act. By agreement of the parties, upon my invitation, the first ground only was argued. Any argument on the second ground will depend on the outcome of the first ground.


The first ground set out in clause 6(i), 6(ii) of the Statement filed under Order 16 r 3 states:


"(i) Breach of duty to act fairly and been seen to act fairly."


The Magistrate erred in law, including Section 59(2) of the Constitution, in that he did not give any opportunity to the Plaintiff or the Plaintiff’s counsel to be heard in accordance with prior direction that were issued by the Committal Court that required the counsel for the Plaintiff and the Police Prosecutor to make oral submissions in Court with regard to the Plaintiff’s application that there was no case to answer.


"(ii) The Magistrate erred in law in that he assumed the responsibility for the determination of the Committal hearing of the Plaintiff without explanation or with inadequate explanation to counsels appearing in the matter for the Plaintiff and the Police Prosecutor as to his involvement and without regard to the previous directions of the Committal Court."


The Plaintiff relies on his two (2) affidavits sworn on 7th April 2004, 22nd April 2004 respectively; and the affidavit of Mr Francis Griffin sworn on 13th April 2004.


The Respondents contests the application. They rely on two (2) affidavits of the presiding Magistrate Mr Posain Poloh sworn on 29th April 2004 and 9th June 2004 respectively.


The history of the proceedings before the District Court are as follows. On 19th March 2004, the matter was mentioned before His Worship Mr A. Kopi. Mr Griffin of counsel appeared for the Applicant with the Applicant. Senior Police Prosecutor T Eluh appeared for the prosecution. By this time, the prosecution file had been completed and served on the Applicant. Parties had agreed to file written submissions. The Applicant had filed his submission. He made a no case submission. The Police Prosecutor had also filed his written submissions. On 19th March, the Applicant wanted further time to file submissions in reply. As to what transpired before Mr Kopi is found in His Worship’s notes recorded in the Court Worksheet. It states:


"Defendant requests for further adjournment to file rebuttal to Pros reply submissions. Pros. No objection instead concede to adj. Both consent to adj to 31/3/04 for (m). Adj. for (m) or alternatively by hearing of submissions by another Magistrate. Clerk to confirm Hearing of Submission by the 29/3/04.....

(Signed)


Remarks - Clerk on the 29/3/04 to confirm with the Pros & Defence of the hearing of submissions on 31/3/04 by another Magistrate

(Signed)."


There is no evidence that the Clerk confirmed with both the Applicant’s counsel and the Prosecutor on 29th March 2004.


On 31st March 2004, His Worship, Principal Magistrate Posain Poloh, the First Respondent herein, presided over the matter. He is based in Lae but flew down to Port Moresby the previous day to deal with this case. The file was with him from 30th March. His Worship’s notes of what transpired on 31st March 2004 is recorded in his notes on the Worksheet. It states:


"Court: After having read the files, I find that there is sufficient evidence to put the defendant on trial before the National Court of Justice on 10 counts of misappropriation, 5 counts of conspiracy to defraud, 1 count of making documents without authority and 1 count of demanding property by oral threats.


"Section 96 of the District Courts Act administered.


"Defendant through his lawyer says: I have nothing to say.


COURT ORDER


Defendant committed to stand trial before the National Court of Justice at Waigani and to appear on Thursday 5th April 2004 at 9a.m. for listing....


(sealed & signed)."


The Applicant’s case in terms of the evidence is this. On 31st March 2004, the Applicant and his counsel attended court pursuant to Court directions issued on 19th March 2004 by Mr Kopi. The Applicant in his affidavit sworn on 07th April 2004 gives details of what happened. Mr Eluh and Mr Shephard sat at the bar table. His Worship Posain Poloh entered the Courtroom. Without calling for appearances, he called Mr Shephard’s name. He said he was making a ruling after having reviewed all the submissions in the case. He did not want to hear anymore submissions on the matter and that he was going to make a ruling. He said he was not supposed to sit in Port Moresby and that his trip to somewhere (not named) had been interrupted to enable him to sit for this case. He hurried to return to Lae the next day where he resides and works and that he would make a ruling today on the case. He did not want to adjourn or delay the matter saying words to this effect "this case has been dealt with since April last year; I do not want to waste anymore time on this case." He said it was his duty to "establish whether or not this is a substantial case". He did not give any opportunity to both counsels to make oral submission on the no case submissions when all parties were before the Court to make those submissions. He did not proceed with the hearing of submissions on the Applicant’s written no case submissions filed earlier, consistent with directions issued on 19th March 2004. At the time the Magistrate entered the Courtroom, it appeared he had already made up his mind to commit the Applicant. He gave no opportunity to Mr Shephard to say anything about the no case submission filed. According to Mr Sheppard, (from the bar table), there was no point in speaking to him because he had already made-up his mind. Therefore, there was a denial of the Applicant’s fundamental right to be heard on the matter before a decision was made.


The Respondents’ evidence is this. The Magistrate’s notes made on 31st March 2004 do not record any of the things referred to above by the Applicant. There is no note on the matter of compliance with directions issued on 19th March 2004 for parties to confirm with the Clerk of Court on 29th March 2004, being addressed by the Court on 31st March 2004.


Mr Poloh responds to the Applicant’s claim in his affidavit sworn on 29th March 2004 by explaining the proceedings on 31st March 2004 at para 8 – 13 as follows:-


"8. On 31st March 2004 when I made a ruling to commit the defendant before the National Court of Justice, the same parties to the proceedings, i.e Mr Sheppard, his client and Mr Eluh (Prosecutor) were all present.


  1. I made it clear to the parties from the outset that I would be making a ruling. That there would no delay or adjournment. That I do not want to waste any more time because the case had been dragging on since April 2004.
  2. After having said all that Mr Eluh and Mr Sheppard were still sitting down. If they had anything to say, they would normally stand up (one at a time). This would indicate to me that they had something to say. By sitting down I took it that they have nothing to say and continued on. I did not shut them out.
  3. I note from the Court record that police files have been completed. There were written submissions on file. The written submissions consisted of "No case to answer submissions, a Reply to the "No Case to Answer Submissions and the Rebuttal.
  4. As a Presiding Magistrate, I consider there was sufficient materials before me to make a ruling. I am of the view there was and there is sufficient evidence before me to put the defendant on trial before the National Court of Justice, Before I committed him, I administered Section 96 of the District Courts Act to the Plaintiff and asked his lawyer Mr Sheppard if he has anything to say which he replied that he has nothing to say. After that, I committed him. That was exactly what I did.
  5. I believe, I am not bound by Kopi’s direction to hear oral submissions. I consider, written submissions as sufficient. Oral submissions would only be a repetition to what has been covered in written submissions and of course would be a waste of time."

From the above evidence and records, I find that the basic primary facts are not in dispute. On 19th March 2004, His Worship adjourned the matter to 31st March 2004 for either mention or alternatively for hearing of submissions. The Clerk of Court was to confirm with the parties of the hearing of submissions by 29th March 2004. It is significant to note that Mr Kopi did not say he was fixing the matter for oral hearing of submissions. Mr Sheppard submits the matter was fixed for oral hearing of submissions on 31st March 2004. Mr Poloh acknowledges this.


When the Court commenced on 31st March 2004, Mr Poloh did not invite or ask or enquire of counsel or the Clerk of Court, whether the matter was proceeding before him for mention or by "hearing of submissions." He made it clear to both parties he would be making a ruling to commit the Applicant to stand trial in the National Court that day, that there would be no delay or adjournment, that he did not want to waste time because the case had been dragging on since April 2003, that neither Mr Eluh or Mr Sheppard said anything in response; and he made his ruling that there was sufficient evidence to put the Defendant on trial before the National Court and that in arriving at this decision, he considered the written submissions filed by both parties. He was aware of Mr Kopi’s direction "to hear oral submissions" but he considered written submissions to be sufficient because oral submissions would only be a repetition to what has been covered in written submissions and of course would be a waste of time.


After deciding there was sufficient evidence to put the Defendant on trial, he administered S.96 to the Applicant and asked Mr Sheppard if his client had anything to say, to which Mr Sheppard replied in the negative. Thereupon, he committed the Applicant to stand trial.


During argument, counsels for both parties, in particular for the Respondent, raised a number of procedural issues relating to the committal proceedings including under S.94(1A) 94B(2)(b) and 94C(2); S.95, S.96, S.97 and S.100. In my view, it is no necessary to address all these issues. A more fundamental issue to be determined is whether Mr Poloh erred in law in not inviting parties to make oral submissions before he made his decision to commit the Defendant to stand trial under S.100. These issues arises from what I would describe as a two-phase committal process prescribed in Ss. 95, 96 and 100 and 103. It is convenient to set out these sections:


"95. Court to consider whether prima facie case.


(1) Where all the evidence offered the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial. (Amended by No. 31 of 1980, s.4)
(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.
(3) 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.
  1. Accused to be asked whether he desires to give evidence.

"Having heard evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat."

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be –
  1. Discharge or committal of defendant.

(b) the Court commits the defendant for trial under Section 94B(1) the Court shall—

(c) by warrant commit the defendant to a corrective institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or

(d) admit him to bail in accordance with Division 2.

(Replaced by No. 31 of 1981, s.2.)


  1. Committal for sentence.

"You will now be committed for sentence instead of being committed for trial."

(2) The statement by the defendant in accordance with Subsection (1) shall be—
(3) In a case referred to in Subsection (1), the Court, instead of committing the defendant for trial, shall order him to be committed for sentence before the National Court, and in the meantime, shall –

In my opinion, the first phase of the committal process (apart from s.94B procedure on committal for trial without consideration of the evidence) takes place under S.95. The Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under S.96.


Phase two is the examination of the defendant by the Magistrate under S.96. The prescribed wording of S.96 statement, which the Magistrate puts to the defendant is part of that provision. The Statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under S.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.


Under the two phase committal process that I have alluded to, it is clear that the Magistrate is required to form an opinion or judgement on the sufficiency of the evidence at two stages – a preliminary one under S.95 and a final one under S.100 (and S.103). The first is made solely on the evidence offered by the prosecution and the second is made based on the whole of the evidence – the evidence for the prosecution and the evidence on submissions, if any, made by the defendant. It is a fundamental principle of justice and fair hearing enshrined in the principles of natural justice adopted under S.59 of the Constitution, that the opinion formed under S.95 and S.100 must not only be fair but seen to be fair – in that justice by the District court must be not only be done but seen to done. A decision made and reasons for the decision under S.95 of course is not expressly required to be communicated to the defendant under S.95, but implied by principles of natural justice - that it must be communicated to the defendant, so that he understands that a prima facie case for committal has been made out by the prosecution, to which he has a right to respond under S.96, before a final decision to commit is made under S.100 or S.103. Under S.96, if he chooses to give evidence or say something either admitting or exculpating himself, it is to be recorded. If the Magistrate is satisfied on the whole of the evidence that the evidence is not sufficient to commit him, he must discharge the defendant under S.100 on that information.


Under S.100(1), the Magistrate considers whether "the evidence" is sufficient to put the defendant on trial. The general reference to "the evidence" in S.100(1) must be distinguished from the "evidence offered on the part of the prosecution" in S.95. By implication, S.100(1) "evidence" must relate to the whole of the evidence before the Court, that is evidence for the prosecution under S.95 and the evidence, if any, and anything said by the defendant under S.96. The final decision whether to commit the defendant for trial, is made under S.100 (or S.103 Committal for Sentence).


Mr Sheppard submits that his client was denied his right to be heard on oral submissions. His client was not given an opportunity to present his oral submissions based on the written submissions. The matter was fixed for hearing of oral submissions by Mr Kopi, but the Magistrate shut them out of making oral submissions at the beginning and they could not make oral submissions at both at S.95 phase and S.96 phase because he had already made up his mind to commit the Applicant. He submits the right of the Applicant to be heard in his own defence is a fundamental and most elementary right and this right is available to a person charged with criminal offence and appears before a judicial of quasi-judicial proceedings such as a Committal proceeding. This principle is part of the principle of natural justice adopted in S.59 of the Constitution and applied in many cases in the jurisdiction. A number of local and overseas cases are cited including SCR No. 12A of 1984 Paraka [1985] PNGLR 224 Okuk v Falsher [1980] PNGLR 101 279. Premdas v Independent State of Papua New Guinea [1979] PNGLR 329; Police v Tanos [1958] HCA 6; [1959] 98 CLR 383; Mollock v Aberdeen Corporation [1971] 2 ALL ER 1278 and Graham Kevi v The Teaching Services Commission Disciplinary Committee [1997] PNGLR 659. He submits the prerogative Writ of Certiorari is available to quash a decision of a Committal Court on grounds of exercise of jurisdiction or breach of principle of natural justice; Justine Wayne Thatchenko v Dessy Maragu, Unreported National Court judgement N1956 dated 4 May 2000; State v Rush Ex Parte [1984] PNGLR 124.


Mr Bokomi submits the Applicant was given opportunity to be heard at both S.95 and S.96 stage but he either failed to use the opportunity or chose not to speak. Firstly under S.95, when the Magistrate "paused briefly after making his remark" that he had considered the written submissions of both parties, Mr Sheppard did not rise to the occasion to make oral submission and sat mute. Then under S.96, when the Magistrate after administering S.96, he asked the Applicant whether his client had anything to say, he said, through Mr Sheppard, he had nothing o say. He submits the Applicant cannot now complain of not being given the opportunity to be heard.


On the matter of written submissions, he submits written submissions were sufficient. The written submissions were exhaustive of what the counsel had to say and it was not open to counsel to make oral submissions, as it would amount to a waste of time. He submits the comment by the Magistrate that "oral submissions would only be a repetition to what has been covered in the written submissions and of course would be a waste of time", was an expression of his view to expedite the case to a finality and cannot amount to a refusal to hear the Applicant or his counsel.


Mr Bokomi submits the Magistrate was entitled to form an opinion as to the sufficiency of the evidence and it is not for a Criminal Court to review that opinion under judicial review: Robert Lak v Dessie Magaru & The State N1950 Unreported National Court judgement dated 20 May 1999 and Thatchenko v Magaru (supra). The Applicant is attempting to forestall or suppress the due process of law from taking its course by taking issue with the Committal proceedings and the office of the Public Prosecutor in acting on the committal. This should not be allowed: Pato v Manjin SC622 Unreported Supreme Court Judgement dated 3 April 1999; In re Ketan N2290 Unreported National Court Judgement. The Applicant has not demonstrated a case of justiciable error. The application should be dismissed.


In my view, in relation to phase one under S.95, I am satisfied that the provision is quite clear. The District Court is a creature of statute and its wording must be strictly construed. An opinion formed as there being sufficient evidence under S.95 is a preliminary opinion which goes with the special nature of committal proceedings. The final decision to commit is made under S.100 (or S.103) after considering the whole of the evidence or case for the prosecution and the defence. Committal Courts do not determine anything in relation to indictable offences. It is a quasi-judicial proceeding to determine the sufficiency of evidence to warrant a trial in the National Court. The right to be heard is not given in S.95. I would not go so far to imply principles of the common law developed as part of the principles of natural justice, to confer a right on the defendant to be heard under S.95 when the statute clearly does not provide such right under this Section.


In my view, there is no express provision in S.95 giving the defendant a right to be heard, before an opinion on the evidence is formed by the Court. There is also no provision for the defendant to give evidence and/or to make oral and/or written submissions. Likewise, there is no duty imposed on the Magistrate to afford a defendant or his counsel any such opportunity. His opinion on the sufficient of the evidence is formed purely on the basis of the evidence offered by the prosecution. At this stage where the Magistrate has formed an opinion that there is sufficient evidence for the defendant to stand trial in the National Court, the determination is preliminary only. No decision is yet made on whether to commit the defendant to stand trial.


In my view, under phase two (2) provision under S.96, there is no question of the defendant’s right to be heard, before a final decision is made under S.100 or 103. This would be the time for him or his counsel, to stand up and present his written submissions and speak orally or even give evidence.


The administration of S.96 statement must be meaningful and administered fairly, not only in the literal administration of the S.96 statement by the Magistrate but also the manner in which it is administered, so that there is no apprehension or misapprehension in the minds of the public and the parties, that S.96 administration is a mere formality; that the Magistrate already having decided on the sufficiency of the evidence under S.95 "to put the defendant to stand trial", the Magistrate is pre-disposed to making a decision under S.100 to commit the defendant to stand trial, irrespective of what the defendant says under S.96.


On the point of written submissions, it is the accepted rule or practice that a District Court hearing is a judicial or quasi-judicial hearing - an oral hearing which is conducted in public and decision pronounced in public. However, the practice has developed in this jurisdiction and other modern jurisdictions, that parties have filed written submissions on complex issues of law and fact, to assist the Court, either on the invitation of the Court or upon leave of the Court having been sought and granted. There are numerous reported and unreported cases in our jurisdiction which shows Courts have relied on counsels for assistance, by way of written submissions. The practice in this jurisdiction is reported as early as Regina v Mitchell and Ijabujo; Ex parte Alois Wafing [1973] PNGLR 146 and Regina v William Taupa Touonila & Others [1975] PNGLR 140. Courts have been openly acknowledged and appreciative of the assistance provided by counsels through written submissions in complex cases: Alotau Enterprises Pty Ltd & Another v Zuric Pacific Insurance Pty Ltd N1969 Unreported National Court Judgement dated 10 December 1999; Diro v Ombudsman Commission N1385 Unreported National Court Judgement dated 16 July 1991; Richard Moaitz v Tom Awasa & Electoral Commission N424 Unreported National Court Judgement dated 22 June 1983; James Mileng v Alkan Tololo [1976] PNGLR 447; Lawrence Vetari v State SC156 Unreported Supreme Court Judgement dated 10 August 1979; Ryan v The State SC148; Ex parte Moses Sasakila [1976] PNGLR 491; Rose Tarere v MVIT [1988] PNGLR 201.


But then there are those reported cases of parties abusing the privilege of assisting the Court with written submissions. For instance, filing written submissions after completion of oral arguments on appeal, unrelated to arguments raised in appeal and the practice being disapproved: Nanhutka Sambali v Sacred Heart Mission (New Britain) Property Trust [1973] PNGLR 590. There was also reported cases of counsels engaging in voluminous and complex submissions. Judges have expressed dissatisfaction with "extremely complex and lengthy submissions" which the Court won’t understand and have the time to read them all: Regina v Mitchell and Ijahujo; ex parte Alois Wafing [1973] PNGLR 461.


The Courts have increasingly sought assistance of counsel in filing written submissions, both in the National Court and Supreme Court and also increasingly so, in the District Courts. The practice of filing written submissions in a Committal Court is not new: Paul Tarcisius Tohian v Iova Geita & Francis Mugagia [1990] PNGLR 479. In the Supreme Court, written submissions are now provided for in the Supreme Court Rules, in appropriate cases, upon direction of the Court. Similar provisions do not exist in the National Court Rules, the National Court Criminal Procedure Rules and the District Court Act.


One thing about written submissions is clear – written submissions are not intended and should never replace, or be a substitute for oral submissions or hearing. Unless the parties with leave of the Court, expressly waive their right to be heard orally and agree to proceed by way of written submissions only, they should not be precluded, directly or indirectly, by the Court from exercising their right to make oral submission before the Court. It is a denial of a party’s fundamental right to be heard on the matter before a decision is made, to stop him or his counsel from making oral submissions with or without written submissions having been filed, under S.96.


In the present case, I am satisfied on the evidence that the circumstances in which and the manner in which the examination of the defendant was conducted under S.96 gave no real opportunity for the Applicant or his counsel to make his oral submissions on whether there was a case against him. It is clear to me from the evidence of Mr Poloh that he was a visiting Magistrate from an outside location, he came into the Courtroom on 31st March 2004 with a pre-determined mission – to waste no time, get on with the job, there and then, and finish it. The mission was prompt case disposition with no time wasted on further adjournments thereby inconveniencing his other commitments and the flow of other cases before the court. In my view Court and Court case management matters are an irrelevant consideration in the performance of his function in relation to this case. The length the case took is also an irrelevant consideration, in terms of forming an opinion under S.95 and S.100. Its approach in facilitating an opportunity to be heard to the parties must not be coloured by irrelevant considerations such as efficient Court or Court case management issues which sometimes tend to colour the merits of the case. Case management issues are a irrelevant consideration to the Court’s functions of forming an opinion under S.95 and S.100. Case management practices and priorities should not be given prominence in judicial or quasi-judicial proceedings at the expense of principles of justice and fairness.


Mr Poloh then chose to ignore or reject the direction given by Mr Allan Kopi for oral submission on the written submissions, as it would be a waste of time. These oral submissions would have been properly made in the context of a S.96 statement, if the administration of S.96 statement was meaningful and not coloured by his decision under S.95. He came to Court and announced his decision under S.95 there and then. He made no reference to the names and statements of which were before him. He sought no assistance from the prosecutor first and even defence counsel, on what he was required to do this day, the evidence before him, and reference to the submissions and the context in which these written submissions were to be made under S.96. Then under the S.96 statement, he simply read out the prescribed statement in the words prescribed in S.96(1). He failed to contexualize it with the written submissions filed on a no case to answer.


I am satisfied that the manner in which S.96 statement was administered in the circumstances of the present case, when parties have filed written submissions and they appeared before the Court expecting an oral hearing, that the Magistrate’s conduct resulted in a denial of the Applicant’s fundamental right to be heard on their oral submissions and also I may add, the prosecution’s fundamental right to be heard orally. I do accept that S.96 Statement was administered and the defendant through his lawyer chose not say anything. But I accept their explanation that, given what the Magistrate had said, about not being prepared to waste time to entertain oral arguments, they chose not to say anything at the S.96 stage. I appreciate that Mr Sheppard is an experienced advocate and he did not say why his client was refusing to say anything, but neither was he asked by the Magistrate why?


The Court has control of the conduct of proceedings in Court, to ensure that the case before him is properly and fairly conducted. The Court should not shift that onus to the parties or their counsels and expect them to set the agenda for the conduct of the proceedings. When the Court convenes, it must facilitate that opportunity, and not expect the parties to compete for time and opportunity and set the procedure and pace of the hearing. I am of the view that it was unreasonable to expect Mr Sheppard to stand up and say he wished to make oral submissions because the Magistrate had already ruled that he did not want to entertain oral submissions. If the Magistrate had asked him why, I am sure Mr Sheppard or his client, the Applicant or any fair-minded and reasonable person sitting in Court would have said – "What is the use of it? He does not want to hear any oral submissions. He has already made up his mind to commit the defendant to stand trial."


The circumstances in which judicial review is available is established in Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122. In summary, they are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. The purpose of review is not to examine the reasoning of the statutory authority and decide on the correctness of the decision but to examine the correctness of the decision-making process.


In the circumstances of the present case, I am satisfied that the decision to commit the defendant to stand trial in the National Court under S.100 was reached under a flawed process, in that the Court breached principles of natural justice by failing to provide a real, meaningful and reasonable opportunity under S.96 to the Applicant, as well as the prosecution, to be heard orally on the evidence for the prosecution and/or the whole of the evidence, when the matter was specifically listed for an oral hearing after written submissions had already been filed and when the parties attended the Court expecting an oral hearing before the Court.


Having reached this conclusion, it is not necessary to hear parties on the second ground of the application.


For these reasons, I am satisfied that His Worship conducted the proceedings in contravention of the principles of natural justice. I quash the decision to commit the Defendant to stand trial in the National Court. This decision however does not spell the end of the Committal proceedings in respect of the information(s) then under inquiry. I order that the matter be referred back to the District Court, before a different Magistrate, for a re-hearing under S.95, 96 and 100 of the District Courts Act. I will hear counsel on the question of costs. (After hearing both counsel, I awarded costs of the application to the Applicant against both respondents, to be paid by the Second Defendant, as the nominal defendant).
__________________________________________________________________
Lawyer for the Applicant : Maladina Lawyers
Lawyer for the Respondent : Solicitor General

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