N2901

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 90 OF 2005

In Re s.231(1)(b) of the District Courts Act (Ch. No. 40)
APPLICATION BY RODNEY RAKUM

Waigani : Injia, DCJ
2005 : April 18, May 16th

Inferior Courts – District Court – Appeal - Locus Standi – Fisheries Officer appointed under Fisheries Management Act 1998 – Appeal against decision in relation to prosecution under Fisheries Management Act 1998 – Dismissal of information – No standing to appeal under S.219 or to bring an application under s.231 of the District Court Act – District Courts Act (Ch. No. 40), s.219; S.231(1)(b); Fisheries Management Act 1998, s.58(1)(b).

Cases cited:
Kemp Ada v Lin Wen Beau, Lin Mene Bee & Chan Chin Ti [1996] PNGLR 172
Lamiller Pawut v Lim Men Bee [1996] PNGLR 26

Counsel:
J. Kawi for the Plaintiff
F. Kuvi for the State

16 May 2005

INJIA, DCJ: The Applicant is a Fisheries Officer with the National Fisheries Authority ("NFA") which is established under the Fisheries Management Act 1998 ("the Act"). He seeks an order extending time to appeal against the decision of the District Court made on 14 December 2004, dismissing an information laid by him against one Tan Joe Twee (also known as Marcus Tan), under S.58(1)(h) of the Act. The Magistrate upheld the defendant’s no case submission and dismissed the information. The time limited for appeal expired on 14 January 2004. The application is made under S.231(1)(b) of the District Court Act.

At the hearing of the application, I raised the issue of locus standi or standing of the Applicant to bring an appeal from a dismissal of the information. This issue arises from Section 219(1), (2) and (3) of the District Court Act which state:

S. 219 Appeal to National Court

(1)	Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2)	 Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3)	Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may –

(a)	appeal against a decision of a District Court on behalf of a party; or
(b)	intervene in an appeal to the National Court.

I directed the issue to be argued by the Applicant and the Solicitor- General representing the State and the Public Prosecutor. Only the Solicitor- General appeared to argue the case.

It is agreed between the parties that the Applicant is an officer of the State. As the NFA is an instrumentality of the State, he laid the information on behalf of the State. 

It is also agreed that as an officer of the State, he would be entitled to appeal against a conviction and sentence of the District Court pursuant to subsections (1) and (2). This is the interpretation given to these provisions by Andrew J in the two fishery prosecution cases cited by both counsel, namely Kemp Ada v Lin Wen Beau, Lin Mene Bee & Chan Chin Ti [1996] PNGLR 172 and Lamiller Pawut v Lim Men Bee [1996] PNGLR 26. The application of this principle is not in issue here. I adopt this principle as being consistent with subsection (1).

What is the situation in respect of an order dismissing an information laid by an officer of the National Fisheries Authority under the Act? The answer is provided by Subsections (2) and (3). In Lamiller Pawut’s case, the informant was a fisheries officer. He appealed against sentence for offences under the Act. Justice Andrew went on to say that in the case of an appeal "against dismissal of an information, the appeal would have to be brought by the Secretary For Justice with leave of the Court under S.219(3) of the District Court Act." In Kemp Ada, the informant appealed against dismissal of an information. His Honour re-iterated the same principle and was satisfied that the requirement of Subsection (3)(a) was met. His Honour said the Attorney-General, who is the Secretary for Justice "appears on the record and I am satisfied that the matter raised in this appeal are of public importance, that leave should be granted, within the meaning of subsection 219(3) of the District Courts Act for the State to appeal against the decision of the District Court in this matter." In my view, these principles are consistent with the letter and intention of subsection (2) and (3) and I adopt them.

In the present case, the Applicant filed this application in his capacity as a Fisheries Officer. The Secretary for Justice or Attorney-General is not a party or applicant in these proceedings. The Solicitor-General who represents the State and presumably the Attorney-General has opposed the application based on the principles enunciated by Andrew J in the above two cases. 

Mr Kawi’s submission is that because the National Fisheries Authority is an instrumentality of the State, the applicant being an officer of the State, is entitled to apply for extension of time to appeal the dismissal of the information on behalf of the State. The application he has lodged is an application by the State and he should be allowed to proceed to make the application for extension of time.

I reject this submission. The submission is inconsistent with the clear provision of subsections (2) and (3), as correctly interpreted by Andrew J in the two cases cited above. It is also inconsistent with S.4 of the Claims By and Against the State Act. It is clear from this provision that the State’s interest in Court proceedings is represented by the Attorney-General or Secretary for Justice. The Attorney-General is the Principal Legal Advisor to the National Government and the principal lawyer for the State. As submitted by Mr. Kuvi, under S.4 of the Claims By and Against the State Act, only the Attorney-General may bring proceedings on behalf of the State. 

There is good reason for the restriction placed by subsection (2) and (3), on appeal against dismissal of an information by the State. Dismissal of an information has not only public policy implications but also constitutional implications and only the State, by its principal legal officer, the Attorney-General, may, by leave applied for himself or herself and granted, appeal such decisions or intervene in an appeal that has been validly instituted by another person. The constitutional implication is that the State has accused the person of committing a criminal offence and had him arrested and charged and prosecuted before a Court of competent jurisdiction. He or she has been tried by a Court which found him or her not guilty of the charge. He or she is entitled to the protection of the law – to remain innocent of that offence. He cannot be re-tried for the same offence after an acquittal or dismissal of the charge except following a successful appeal against dismissal by the Attorney-General under Subsection (3).

Reading Subsections (1) and (2) together, in so far as they relate to the State or an instrumentality of the State or an officer of such instrumentality, they are precluded from appealing against the dismissal of an information. The same does not apply to a private information for a criminal offences where the State, its instrumentality or officer, is not a party. A private informant has a right of appeal against a dismissal of a private information under Subsection (1). 

In the present case, the Applicant was acting as a servant or agent of the State through its instrumentality, the National Fisheries Authority. Therefore, he is precluded by subsection (2) from bringing this appeal. Pursuant to subsection (3)(a) only the Attorney-General may bring an appeal on his behalf. 

It is then submitted by Mr. Kawi that if the application is granted and an appeal is instituted by the applicant, the Attorney-General may then intervene later in the course of the hearing under Subsection (3)(b), with leave. 

In my view, Subsection 3(b) does not by implication or otherwise, confer on him any right of appeal against a dismissal of an information laid by him, at the hearing of which the Attorney-General may seek to intervene. Pursuant to subsection (2), as an officer of the State, he cannot institute a valid appeal against the dismissal. In the case of a valid appeal against dismissal of an information, the Attorney General may, with leave, intervene at the hearing of the appeal. An example of this is in the case of dismissal of a private information where a private informant has instituted a valid appeal as of right under subsection 1.

For these reasons, I find that the applicant lacks locus standi to bring the application and dismiss it. I make no order as to costs.

_______________________________________________________

Lawyer for the Applicant		:	Kawi Lawyers
Lawyer for the Respondent		:	Acting Solicitor General