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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 252 OF 2012
ALOIS KINGSLEY GOLU
Plaintiff
V
REGETT MARUM, KOKOPO DISTRICT COURT (COMMITTAL) MAGISTRATE
First Defendant
SYLVESTAR KALAUT, POLICE INFORMANT
Second Defendant
Waigani: Cannings J
2013: 15, 18, 22 March
JUDICIAL REVIEW – decision of District Court to commit person for trial – District Courts Act, Part VI (proceedings on case of indictable offences) – whether District Court erred by stating opinion on interpretation and application of the Constitution – whether breach of principles of natural justice – whether decision to commit plaintiff for trial unreasonable.
The plaintiff applied for judicial review by the National Court of the decision of a District Court Magistrate to commit him for trial on a charge of misappropriation under Section 383A(1)(a) of the Criminal Code. Three grounds of review were relied on: (1) excess of jurisdiction due to the Magistrate basing the decision on his own interpretation of Section 209 of the Constitution, a matter that falls within the exclusive jurisdiction of the Supreme Court; (2) denial of natural justice due to refusal to hear two preliminary issues that were being agitated by the plaintiff; (3) unreasonableness due to considering irrelevant matters, making a decision contrary to the evidence, shifting the burden of proof to the plaintiff and taking into account a significant matter not raised by the parties on which he did not invite submissions.
Held:
(1) The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law and by Section 18(2) generally obliges the District Court to refer such questions to the Supreme Court. The District Court is nonetheless permitted to form an opinion on constitutional issues that arise before it as part of deciding whether there is a prima facie case against an accused, sufficient to put him on trial; and the duty to refer such questions to the Supreme Court is not absolute: if a constitutional question is trivial, vexatious or irrelevant the District Court is not obliged to refer the matter to the Supreme Court.
(2) Here the Magistrate expressed the opinion having regard to Section 209 of the Constitution and provisions of the Public Finances (Management) Act 1995 and the Treasury Bills Act Chapter 135 that the money allegedly misappropriated by the defendant was the property of the State, as it was money raised by the National Government pursuant to Section 209(1) of the Constitution. The expression of that opinion was permissible as it was incidental to the decision to commit the accused to trial. It was not a necessary part of the decision as all that the Magistrate had to be satisfied of was that there was prima facie evidence that the money was the property of the State, that being one of the elements of the charge that was the subject of the information. The Magistrate did not exceed his powers in the manner argued, and it was not necessary to refer any constitutional questions to the Supreme Court. Ground 1 of the review was dismissed.
(3) The District Court is obliged when conducting committal proceedings to comply with the principles of natural justice, so it has a general duty to afford the accused a fair hearing and in particular must comply with the provisions of Division VI.1 (proceedings on case of indictable offences) of the District Courts Act.
(4) Here there was no failure to comply with the principles of natural justice as the two preliminary issues that the accused wanted to raise prior to the actual committal hearing were in fact heard by the District Court at the committal hearing and adjudicated upon when the Court delivered its ruling that the plaintiff would be committed for trial. The Magistrate was under no obligation to hear and determine them before determining whether the evidence was sufficient to put the accused person on trial.
(5) The District Court is obliged when deciding whether to commit an accused to trial to act rationally and to take into account relevant matters and to disregard irrelevant matters.
(6) Here the District Court did not take into account irrelevant matters, make a decision contrary to the evidence, shift the burden of proof to the plaintiff or improperly take into account a significant matter not raised by the parties on which he did not invite submissions. The decision to commit the plaintiff to trial could not fairly be described as unreasonable, let alone a decision that no reasonable Magistrate could have made. On the contrary given the evidence before it, it was open to the District Court to conclude that there was a prima facie case that the plaintiff was guilty of the offence the subject of the information.
(7) As none of the grounds of review were upheld the relief sought by the plaintiff was refused and the order of the National Court staying the criminal proceedings pending determination of the judicial review was dissolved.
Cases cited
The following cases are cited in the judgment:
Ex parte Rush [1984] PNGLR 124
Haiveta v Wingti (No 1) [1994] PNGLR 160
Isaac Lupari v Sir Michael Somare (2008) N3476
Jimmy Mostata Maladina v Posain Poloh and The State (2004) N2568
Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956
Lowa v Akipe [1992] PNGLR 399
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Pato v Manjin (1999) SC922
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
Re Herman Joseph Leahy (2006) SC855
Robert Kaki Yabara v The State [1984] PNGLR 378
Robert Lak v Dessy Magaru and The State (1999) N1950
Sakawar Kasieng v Andrew Baigry (2004) N2562
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379
The State v Tanedo [1975] PNGLR 395
Counsel
W Donald, for the Plaintiff
R Gelu, & G Akia, for the Defendants
22 March, 2013
1. CANNINGS J: This is a ruling on an application by the plaintiff Alois Kingsley Golu for judicial review of the decision of the Kokopo District Court to commit him for trial on a charge of misappropriation. The defendants are the Magistrate who constituted the District Court, his Worship Mr Regett Marum, and the informant, the member of the Police Force who presented the information containing the charge, Superintendent Sylvestar Kalaut.
2. The plaintiff was charged with one count of misappropriation of K6,577,600.00, the property of the State, under Section 383A(1)(a) of the Criminal Code. He had been investigated by a special investigation team that had been appointed by the National Executive Council in August 2011. The investigation team was directed to investigate allegations of criminality concerned with the administration of amongst other monies the Sovereign Community Infrastructure Treasury Bill issued under the Treasury Bills Act 1974 to the value of K125 million, which has been purchased by National Superannuation Ltd (NasFund). The purpose of that Bill was to provide funding for infrastructure projects in the Kokopo District of East New Britain Province. The informant's case put to the Kokopo District Court in the form of a police hand-up brief was that the plaintiff obtained K6,577,600.00 from the Sovereign Community Infrastructure Treasury Bill funds, specifically that he obtained the money from NasFund's fund manager, National Capital Ltd, through a company he owned and controlled, Kokopo Earthmoving Ltd, for the purposes of a water supply project. The informant alleged that that money was the property of the State, required to be applied to a specified water project, but that it was not applied in that manner; instead the plaintiff deposited it into a Maybank bank account and proceeded to withdraw it over a period of several months during 2010, most of it in cash sums of K70,000.00 to K200,000.00, thereby dishonestly applying the money to his own use.
3. After conducting a committal hearing on 23 December 2011 Mr Marum on 9 March 2012 committed the plaintiff for trial and published a written judgment setting out the reasons for his decision. The plaintiff's application for review of that decision is based on three grounds:
(1) excess of jurisdiction due to the Magistrate deciding questions of constitutional interpretation and application;
(2) denial of natural justice; and
(3) unreasonableness.
(1) EXCESS OF JURISDICTION DUE TO DECIDING QUESTIONS OF CONSTITUTIONAL INTERPRETATION AND APPLICATION
4. The plaintiff contends that Mr Marum exceeded his jurisdiction as he based his decision to commit him to trial on his own interpretation of Section 209(1) (parliamentary responsibility) of the Constitution, a matter that falls within the exclusive jurisdiction of the Supreme Court. Section 209(1) states:
Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament.
5. Section 209(1) was relevant because the plaintiff's counsel Mr Donald wanted to raise as a preliminary issue in the District Court the question of ownership of the money allegedly misappropriated by the plaintiff. Mr Donald wanted his Worship to appreciate that the plaintiff disputed the proposition that the money was the property of the State, as alleged in the information. Mr Donald asserted that there was evidence before the District Court that demonstrated that the money was not State property as the State, through the Treasury Secretary Mr Simon Tosali, was denying any liability to repay NasFund any of the K125 million. Mr Tosali in a letter to NasFund dated 19 October 2010 stated he had received legal advice from the State Solicitor that the Sovereign Community Infrastructure Treasury Bill arrangement breached Section 209 of the Constitution as:
6. There was evidence that on 12 November 2010 Mr Tosali wrote a similar letter to National Capital Ltd. He stated that the Sovereign Community Infrastructure Treasury Bill arrangement was illegal as it was an attempt to raise funds that were not appropriated in the 2010 National Budget and that under Section 209 of the Constitution the State could not enforce an illegal contract.
7. Mr Donald submitted to the National Court that his urging to his Worship to have the argument about ownership of the money dealt with as a preliminary issue was ignored (something that is directly relevant to the second ground of review) and that as a result his Worship placed himself in a position where he determined matters of constitutional interpretation, something that he was not permitted to do.
8. I find as a fact that his Worship did engage in constitutional interpretation. This is evident from the following passage in his judgment, where after acknowledging Mr Donald's argument that the money did not belong to the State as evidenced by the Treasury Secretary's denial of liability and quoting Section 209(1), his Worship stated:
For the purposes of this committal, on this constitutional law, the Parliament controls the raising and expenditure of finance, and including the raising of loans, subject to the authorisation and control by Parliament, and shall be regulated by Parliament. Under Section 209 one of the Parliament's responsibilities is to raise loans. Parliament has spoken through Section 209 of the Constitution by the enactment of the Treasury Bills Act of 1974 in giving the powers to the Minister to raise loans under Section 2 of the Act. Section 2 states:
Notwithstanding any other law, the Minister may borrow, by the issue in Papua New Guinea of securities to be known as Treasury Bills, such amounts in any financial year as the Minister considers appropriate.
Section 2 had no restriction for the loan to only supplement the National Budget for any financial year, but open to the Minister to make borrowing on behalf of the State for any financial year. Further, under Section 35(1) of the Public Finances (Management) Act it also authorised the State to borrow money. Section 35(1) states: ...
The State may not borrow any money except under and in accordance with an Act of the Parliament.
The enactment of this provision in the Public Finances (Management) Act is authorised by Section 209 of the Constitution, and not only restricted to borrowings in topping up the National Budget for a fiscal year. Therefore, for the purpose of this committal, I find as a matter of law that the Minister can borrow money from any financial institution, and in this case from NasFund, and to secure the repayment against the Government Consolidated Revenue Fund basket, in paying off the loan. If the loan is not repaid within the prescribed maturity period, including interest, then pursuant to Section 35(3) of the Public Finances (Management) Act, the State has no option, and must repay back to NasFund her money as a matter of law ...I find that the Government through the Secretary for the Department of Finance cannot remove away administratively the State's liability under this SCITB [Sovereign Community Infrastructure Treasury Bill] loan, but by law only, unless for other reasons that against the law. And therefore the money borrowed at that time was made according to law, and remains public money for the State, and continued to be [the] State's property for the purpose the money was borrowed and allocated for, and subject to the Public Finances (Management) Act. ...
The Treasury Bill or promissory terms and condition, [sic] the State was to repay SCITB, the borrowed money within 364 days with interest. And the SCITB is to be kept by the Fund as a security for the loan, and to be presented to the State on maturity date, to demand the State to repay the borrowed money, plus interest. Therefore, upon this SCITB the Minister for Finance, under Section 209 of the Constitution, Section 2 of the Treasury Bills Act and Sections 35(1) and 35(3) of the Public Finances (Management) Act, was responsible in law to include in the fiscal year budget for Appropriation out of the Consolidated Revenue Fund, the money borrowed from the Fund to be repaid to NasFund. I am satisfied that the process in law was completed, and the State cannot divert from her responsibilities under the SCITB to repay.
9. The question now to be decided is not whether the above opinion of his Worship is legally correct but whether by interpreting and applying the Constitution he exceeded his jurisdiction. The argument that he did is based on Section 18 (original interpretative jurisdiction of the Supreme Court), which states:
(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
10. Mr Donald submits that by expressing his opinion on matters of constitutional law and drawing conclusions of constitutional law as part of his finding that the State was liable to NasFund and that the money allegedly misappropriated was the property of the State, his Worship was purporting to exercise jurisdiction on matters that fell within the exclusive domain of the Supreme Court.
11. Mr Donald is correct in asserting that as a general principle Section 18(1) of the Constitution confers original jurisdiction on the Supreme Court to the exclusion of other courts as to any question relating to interpretation or application of a provision of a Constitutional Law – and that obviously includes Section 209(1) of the Constitution. Section 18(2) generally obliges the District Court to refer such questions if they arise in proceedings in that Court to the Supreme Court. However the conferral of jurisdiction on the Supreme Court by Section 18(1) and the duty of referral imposed on other courts by Section 18(2) are not absolute. They are qualified by the words "subject to this Constitution" at the beginning of each sub-section. Moreover Section 18(2) provides that if a question of constitutional interpretation or application arises the duty to refer the question to the Supreme Court does not arise if the question is trivial, vexatious or irrelevant.
12. What was the question 'relating to the interpretation or application of a provision of a Constitutional Law' that arose in the District Court? I consider that the principal questions of interpretation and application were:
13. Those questions are not properly regarded as questions relating to the interpretation or application of a provision of a Constitutional Law, in particular Section 209(1) of the Constitution. This means that those questions could comfortably be addressed by the District Court without traversing the exclusive jurisdiction of the Supreme Court under Section 18(1) of the Constitution and without being subject to any duty of referral under Section 18(2) of the Constitution.
14. To the extent that it can be said that questions as to the interpretation and application of Section 209(1) of the Constitution did arise in the District Court, the questions were very simple, such as:
15. The answers were also simple: the National Parliament, and by an Act of the Parliament. I uphold the submission of Mrs Gelu for the defendants that those questions were trivial and irrelevant in the sense intended by Section 18(2). It was unnecessary to refer them to the Supreme Court and the District Court did not exceed its jurisdiction by addressing and resolving them (SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476).
16. That conclusion is reinforced by recognition that the District Court is an integral part of the National Judicial System. It must as a matter of necessity from time to time form an opinion on constitutional issues that arise before it as part of deciding whether there is a prima facie case against an accused, sufficient to put him on trial. Here his Worship expressed the opinion having regard to Section 209 of the Constitution and provisions of the Public Finances (Management) Act 1995 and the Treasury Bills Act 1974 that the money allegedly misappropriated by the plaintiff was the property of the State, as it was money raised by the National Government pursuant to Section 209(1) of the Constitution. The expression of that opinion was permissible as it was incidental to the decision to commit the plaintiff to trial. It is not a binding opinion. It does not determine the question of ownership of the money or the question of the liability of the State to NasFund. It was not even a necessary part of the decision as all that the Magistrate had to be satisfied of was that there was prima facie evidence that the money was the property of another person, that being one of the elements of the charge that was the subject of the information.
17. It must also be appreciated that committal proceedings do not determine the innocence or guilt of an accused and cannot result in an acquittal. If the District Court refuses to commit a person for trial Section 526 of the Criminal Code allows the Public Prosecutor to present an indictment to the National Court (Re Herman Joseph Leahy (2006) SC855).
18. The learned Magistrate did not exceed his powers in the manner argued, and it was not necessary to refer any constitutional questions to the Supreme Court. Ground 1 of the review is dismissed.
(2) DENIAL OF NATURAL JUSTICE
19. Mr Donald submits that the plaintiff was denied natural justice due to his Worship's failure to consider as preliminary issues two important jurisdictional points: one was that the District Court had no jurisdiction to commit the plaintiff to trial as it could only do so by determining constitutional issues (the issues that are the subject of ground 1); and the other was an argument that it was premature for the plaintiff to face a committal hearing as the terms of reference set by the National Executive Council for the special investigation team had not been satisfied. Mr Donald submitted that he argued vigorously but in vain to his Worship that it was imperative that these be dealt with as preliminary issues. His Worship refused to deal with them as preliminary issues and gave no reasons for his refusal except to say that it was convenient for him to deal with all relevant issues together.
20. It is an uncontentious proposition that the District Court is obliged when conducting committal proceedings to comply with the principles of natural justice. It has a general duty to afford the accused a fair hearing and in particular must comply with the provisions of Division VI.1 (proceedings on case of indictable offences) of the District Courts Act (Ex parte Rush [1984] PNGLR 124; Robert Lak v Dessy Magaru and The State (1999) N1950; Justin Wayne Tkatchenko v Dessy Magaru (2000) N1956; Sakawar Kasieng v Andrew Baigry (2004) N2562; Jimmy Mostata Maladina v Posain Poloh and The State (2004) N2568).
21. I find there was no failure to comply with the principles of natural justice as the two preliminary issues that Mr Donald wanted to have heard and determined prior to the actual committal hearing were in fact heard by his Worship at the committal hearing and adjudicated upon when he delivered his ruling that the plaintiff would be committed for trial. His Worship was under no obligation to hear and determine the preliminary issues before determining whether the evidence was sufficient to put the plaintiff on trial. His Worship determined both issues in a considered and rational manner.
22. I have already found that his Worship did not err in the manner in which he addressed the constitutional issues. As to the argument about the special investigation team not completing its task, his Worship held that whatever the National Executive Council decided and whoever it gave its instructions to, no authority could interfere with the independent power of the Police to lay charges of criminal offences, which was exercised in this case by the informant Superintendent Kalaut. In that regard I uphold Mrs Gelu's submission that irrespective of the National Executive Council decision, the establishment of the special investigation team and the appointment of Superintendent Kalaut as the deputy chairman of that Team, the fundamental consideration was the principle of Police independence. The importance of this principle is underlined by the Supreme Court's decision in Pato v Manjin (1999) SC922, which arises from Sections 197(1) and (2) (functions of the police force) of the Constitution, which state:
(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—
(a) to preserve peace and good order in the country; and
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.
(2) Subject to Subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force. [Emphasis added]
There was no denial of natural justice. Ground 2 of the review is dismissed.
(3) UNREASONABLENESS
23. Mr Donald submits that the decision to commit the plaintiff was unreasonable due to his Worship considering irrelevant matters, making a decision contrary to the evidence, shifting the burden of proof to the plaintiff and taking into account a significant matter not raised by the parties on which he did not invite submissions. Mr Donald marshalled an array of arguments to support this ground of review, eg that no consideration was given to the evidence that the K125 million Kokopo Community Infrastructure projects especially the water project had been stopped because the Treasury Secretary refused to accept that the State was liable; that the K6,577,600.00 was for "mobilisation" but because of the Secretary's stance the water project could not be rolled out; that no account was taken of the plaintiff's explanation that cash drawings from Maybank were necessary as other banks did not accept Maybank cheques readily; that his Worship's concerns about failure to adhere to the public tender requirements of the Public Finances (Management) Act were irrelevant. However I have found none of those arguments persuasive. The National Court does not sit on appeal against a decision to commit a person for trial. This is a judicial review only.
24. The District Court is obliged when deciding whether to commit an accused to trial to act rationally and to take into account relevant matters and to disregard irrelevant matters. This is a fundamental obligation of the District Court irrespective of whether its decision whether to commit or refuse to commit an accused for trial is regarded as an administrative decision (The State v Tanedo [1975] PNGLR 395) or the exercise of a judicial function (Robert Kaki Yabara v The State [1984] PNGLR 378).
25. I find that in this case his Worship did not act irrationally or take into account irrelevant matters, make a decision contrary to the evidence, shift the burden of proof to the plaintiff or improperly take into account a significant matter not raised by the parties on which he did not invite submissions. The decision to commit the plaintiff to trial could not fairly be described as unreasonable, let alone a decision that no reasonable Magistrate could have made. On the contrary given the evidence before it, it was open to the District Court to conclude that there was a prima facie case that the plaintiff was guilty of the offence the subject of the information. Ground 3 of the review is dismissed.
WHAT ORDERS SHOULD THE COURT MAKE?
26. As all grounds of review have been dismissed all relief sought by the plaintiff will be refused. An injunction staying the criminal proceedings will be dissolved. Costs will follow the event.
ORDER
(1) The application for judicial review is dismissed.
(2) All relief sought in the notice of motion filed on 5 July 2012 is refused.
(3) The order of the National Court of 29 June 2012 staying criminal proceedings is dissolved.
(4) Costs of these proceedings shall be paid by the plaintiff to the defendants on a party-party basis, to be taxed if not agreed.
Judgment accordingly.
______________________________________________________
Donald & Co Lawyers: Lawyers for the plaintiff
Solicitor-General: Lawyer for the defendants
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