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Goi v Sek [2014] PGNC 65; N5607 (23 May 2014)

N5607

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRA No.23 OF 2009

BETWEEN:

ALFRED GOI
Appellant/Respondent

AND:
ROBERT SEK, THOMAS ROBERT, JEFFERY WALEP, MICHAEL NGUNTS, ROBERT MUNDI, JOSEPH OKUN, JOSEPH OKUN, MANU PAUL, GEE SENGLEP, MICHAEL JAMES AND JUNIOR ROBERT MUNDI
Respondents/Applicants

Mt. Hagen: David, J
2014: 9 & 23 May

PRACTICE & PROCEDURE – appeal from District Court – dismissal of information – application to dismiss appeal - standing to appeal – respondent was complainant - respondent a person aggrieved by decision - application dismissed - District Courts Act, Section 219 - Public Prosecutor (Office and Functions) Act 1997, Section (4)(1)(e)(ii).

Cases cited:

Peter Rose v Yamu Samuel [1987] PNGLR 1
Kiau Ninkints v Moki Rumints [1990] PNGLR 123
Lamiller Pawut v Lim Men Bee [1996] PNGLR 26
Kemp Ada v Lin Wen Beau, Lin Mene Bee and Chen Chin Ti [1996] PNGLR 172
Anderson Agiru v The Electoral Commission and the State (2002) SC687
Samson Dacany v Noah Taia (2002) N2316
Application by Rodney Rakum (2005) N2901
Elison Javano v Samuel Lai (2010) N4140
Whagi Mek Plantations Limited v Aip Kondim, CIA No. 21 of 2009, Unnumbered & Unreported Judgment of David, J delivered on 6th of June 2011 at Minj
Re Application for extension of time re Appeal by Waghi Mek Plantations Ltd (2011) N4439
Whagi Mek Plantations Limited v Yekua Yap, CIA No. 22 of 2009, Unnumbered & Unreported Judgment of Poole, J delivered on 20th of June 2013 at Mt. Hagen

Counsel:

Paulus K. Kunai, for the Respondents/Applicants
Priscilla Tamutai, for the Appellant/Respondent

RULING

23rd May, 2014

1. DAVID, J: This application has been brought by a notice of motion filed by the Respondents/Applicants on 25th of July 2011 seeking to dismiss the appeal for being an abuse of the process of the Court pursuant to Section 219 of the District Courts Act and Section 4(1)(e)(ii) of the Public Prosecutor (Office and Functions) Act 1997.

2. The application is supported by the Affidavit in Support of Edward Wamp sworn on 28th of June 2011 and filed on 25th of July 2011.

3. The Respondent contests the application and relies on his affidavit sworn on 28th of April 2014 and filed on 30th of April 2014 in response to the application.

4. The evidence from these two affidavits in summary is this. On 28th of November 2008, an information was laid by Plamp Malt of the Mt. Hagen Police Station against the Applicants on the complaint of the Respondent alleging that on 26th of November 2008 at Banz, the Applicants each and severally assaulted him contrary to Section 341 of the Criminal Code. A copy of the information is annexed to the affidavit of the Respondent as annexure "A". On 13th of July 2009, when prosecution witnesses failed to turn up at the trial before the District Court sitting in Mt. Hagen, the court ordered the dismissal of the information. A copy of the relevant order is annexed to the affidavit of the Respondent as annexure "B". A copy of the Certificate of Dismissal dated 13th July 2009 is annexed to the affidavit of Mr. Wamp as annexure "A".

5. Aggrieved by the decision to dismiss the information, on 5th of August 2009, the Respondent lodged his appeal. The Respondent's lawyers served the Notice of Appeal, Recognizance on Appeal and Entry of Appeal on the Applicants' lawyers on 4th of September 2009 under cover of a letter bearing that date. A copy of that letter is annexed to the affidavit of Mr. Wamp as annexure "B". On 25th of November 2009, the Applicants through their lawyers requested the Respondent's lawyers by letter to discontinue the appeal for want of standing and that no consent or authorisation was obtained from the Office of the Public Prosecutor to prosecute the appeal. A copy of that letter is annexed to the affidavit of Mr. Wamp as annexure "C". The Respondent through his lawyers responded by their letter to the Applicants' lawyers of 26th of March 2010 advising that they did not agree that the Respondent should first seek the State's authorisation to appeal basically because the Respondent was an aggrieved person for purposes of Section 219(1) of the District Courts Act. A copy of that letter is annexed to the affidavit of Mr. Wamp as annexure "D5". An Appeal Book, in triplicate compiled by the Respondent's lawyers was forwarded to the Applicants' lawyers under the cover of that letter for endorsement. The Respondent's lawyers dispatched a number of follow up letters requesting the Applicants' lawyers to endorse the Appeal Book and have it returned to them. Copies of those letters are annexed to the affidavit of Mr. Wamp as annexures "D1" to "D4" and "F". By their letter of 12th of August 2010 to the Respondent's lawyers, the Applicants' lawyers advised that they; maintained their position on the Respondent's standing and lack of authority from the State to prosecute the appeal; refused to endorse the Appeal Book; and that they would file an application to dismiss the proceedings if the appeal were not withdrawn. A copy of that letter is annexed to the affidavit of Mr. Wamp as annexure "E". This application was filed thereafter. Further correspondence from the Respondent's lawyers following up on the return of the Appeal Book duly endorsed was sent to the Applicants' lawyers between 20th of August 2010 and 15th of April 2011 whilst maintaining that the Respondent was an aggrieved person for purposes of Section 219(1) of the District Courts Act. Copies of those letters are annexed to the affidavit of Mr. Wamp as annexures "G1" to "G4".

6. The main issue arising from the application for my determination is whether the filing of this appeal by the Respondent amounts to an abuse of the process of the Court? A collateral issue that requires resolving in order to determine the main issue is whether the Respondent has standing to lodge an appeal under Section 219 of the District Courts Act and Section 4(1)(e)(ii) of the Public Prosecutor (Office and Functions) Act 1997?

7. Mr. Kunai for the Applicant submitted that the appeal should be dismissed because the plaintiff has no standing under Section 219(1) of the District Courts Act. He states that the Applicant was not a party to the criminal proceedings which was prosecuted by the police with whom he had lodged his complaint so he could not be deemed to be an aggrieved person for purposes of Section 219(1) of the District Courts Act. It was also submitted that the Respondent was precluded from appealing under Section 219(2) of the District Courts Act. Mr. Kunai further submitted that as the appeal arises from a police prosecution, it was the State and not the Respondent who should have appealed with leave of the Court under Section 219(3) of the District Courts Act if aggrieved by the District Court's decision.

8. Ms. Tamutai for the Respondent submitted that the Applicants' application was misconceived and should be dismissed on the sole basis that the Respondent qualified as or was deemed to be an aggrieved person for purposes of Section 219(1) of the District Courts Act because the Respondent laid the complaint which led to the arrest and the subsequent charging of the Applicants by way of the information which was dismissed by the District Court. Counsel drew my attention to Samson Dacany v Noah Taia (2002) N2316, Application by Rodney Rakum (2005) N2901 and Elison Javano v Samuel Lai (2010) N4140 which she said were some case authorities supporting the proposition that Section 219(1) preserves to a person aggrieved by a conviction order or adjudication of a Court, including any adjudication or order dismissing an information or complaint the right to appeal to the National Court. Thus, the appeal was properly before the Court and not an abuse of process counsel further submitted.

9. Both counsel did not address me on the relevance and application of Section 4(1)(e)(ii) of the Public Prosecutor (Office and Functions) Act 1997.

10. The basic principles that are applied when the Court is considering whether or not there has been an abuse of its processes were summarised by the Supreme Court in Anderson Agiru v The Electoral Commission and the State (2002) SC687. There, the Supreme Court said:

"The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes have been succinctly put before us by Mr. Cannings in his submissions. Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process. (see, generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697 dated 28 March 1998)."

11. The District Court is a creature of statute and its practice and procedure is prescribed by statute: see Peter Rose v Yamu Samuel [1987] PNGLR 1; Kiau Ninkints v Moki Rumints [1990] PNGLR 123. The statute in this case is the District Courts Act. The practice and procedure relating to appeals from decisions of the District Courts is set out in Part XI - Appeals from decisions of District Courts (Sections 219 — 246) of the District Courts Act.

12. Section 219 of the District Courts Act explicitly states who should appeal from the District Court to the National Court. That provision states:

"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.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code 1974." (My emphasis)

13. An appeal against the dismissal of an information would usually be brought by the Secretary for Justice with the leave of the National Court under Section 219 (2) and (3) of the District Courts Act if the matter were of such public importance: for example, Lamiller Pawut v Lim Men Bee [1996] PNGLR 26; Kemp Ada v Lin Wen Beau, Lin Mene Bee and Chen Chin Ti [1996] PNGLR 172. The reference to the "Secretary for Justice" in Section 219(3) would now be the Attorney-General: see Attorney-General Act 1989.

14. It appears that the State does not have any power to appeal a dismissal of an information. The reason for the restriction placed by Section 219 (2) and (3) is explained by Injia, DCJ as he then was in Application by Rodney Rakum where his Honour observed:

"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)."

15. Section 219 (4) of the District Courts Act only gives the Public Prosecutor a discretion to decide whether or not to appeal a sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code.

16. This appeal is against a decision to dismiss an information and not against sentence. It is a private matter concerning an allegation of assault against the Respondent and not a matter of public importance where the intervention of the Attorney-General may be required under Section 219(2)(3) of the District Courts Act. So the Applicants' reliance on Section 4(1)(e)(ii) of the Public Prosecutor (Office and Functions) Act 1997 to support this application is misconceived.

17. Section 219 (1) of the District Courts Act clearly states that a person who should appeal is "a person aggrieved" by a conviction, order or adjudication of a District Court, including an adjudication or order dismissing an information or complaint. At first glance, the phrase "a person aggrieved" would mean a party against whom an unfavourable decision is made. The Applicant was arrested and charged on the complaint of the Respondent. He has a personal interest or interest of a private nature in the matter. I accept Ms. Tamutai's submissions. The Respondent is "a person aggrieved" by the decision of the District Court, the subject of this appeal. The cases cited by Ms. Tamutai are on point and explain the meaning of that phrase. Some others are; Whagi Mek Plantations Limited v Aip Kondim, CIA No. 21 of 2009, Unnumbered & Unreported Judgment of David, J delivered on 6th of June 2011 at Minj; Re Application for extension of time re Appeal by Waghi Mek Plantations Ltd (2011) N4439; Whagi Mek Plantations Limited v Yekua Yap, CIA No. 22 of 2009, Unnumbered & Unreported Judgment of Poole, J delivered on 20th of June 2013 at Mt. Hagen.

18. The Respondent has standing to lodge the appeal under Section 219(1) of the District Courts Act. The lodgement of this appeal therefore does not amount to an abuse of the process of the Court.

19. The formal orders of the Court are:

1. The Applicants' application is dismissed.
2. No order as to costs.
   

_____________________________________________________

Kinai & Co. Lawyers: Lawyers for the Respondents/Applicants
Tumatai Lawyers: Lawyers for the Appellant/Respondent