|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO. 241 OF 2019
BETWEEN:
MANUELA MARGO
Applicant
AND:
BEN NENEO, PROVINCIAL POLICE COMMANDER MADANG
First Respondent
AND:
ROYAL PNG CONSTABULARY
Second Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
AND:
MADANG (MODILON) GENERAL HOSPITAL
Fourth Respondent
Madang: Narokobi J
2020 : 17th & 24th July
PRACTICE AND PROCEDURE – application to dismiss proceedings under Order 12 Rule 40(1) of the National Court Rules – Applicant under duty to plead alternative grounds – Failure to – application refused but considered under courts inherent power to control proceedings.
COURTS INHERENT POWER TO CONTROL PROCEEDINGS – dismissal of proceedings for abuse of process – factors to consider – issue dealt with by a court of competent jurisdiction – not open to consider – proceedings dismissed
Facts:
The applicant is a prisoner at Beon Gaol. She is serving 10 years in hard labour for manslaughter for killing her husband. She claims that her rights were breached and she should not be criminally responsible for the death of her husband. She says that the husband died from excessive intake of alcohol and that the hospital did not attend to her husband quickly and as a result he died. The fourth respondent has filed a motion to dismiss the proceedings and alternatively to be removed as a party to the proceedings. The plaintiff has in response filed a motion to amend the statement of claim.
Held:
(1) Where a court of competent jurisdiction has found the applicant guilty, it is not open to this court to consider again the issue of criminal responsibility.
(2) The proceedings were therefore an abuse of process and should be dismissed.
(3) The claims for damages hinges on the basic claim that the applicant was not criminally responsible, and therefore no amendment would be able to cure this defect.
(4) Obiter – Considerations such as battered women syndrome are matters to be raised in a criminal proceeding.
Cases Cited:
The following cases are cited in the judgment:
Papua New Guinea Cases
Kindi v Guan (2020) N8408
Pruaitch v Manek (2019) SC1884
State v Tinpuar (2016) N6361
Timbers (PNG) Ltd v Kambori (2010) N4282
Overseas Cases
R v Woolsey (Unreported 19 August 1993, NSW Supreme Court
Counsel:
Mr. S. Asivo, with leave of the court for the Applicant
Mr B Wak, for the Fourth Respondent
Mr E Manihambu, for the First, Second and Third Respondent
RULING
24th July, 2020
1. NAROKOBI J: Before me are two Notices of Motion – one filed by the fourth respondent to dismiss the proceedings and alternatively to be removed as a party and the other by the applicant to amend the proceedings.
A BACKGROUND
2. I deal with the Notice of Motion filed by the fourth respondent to dismiss the proceedings first, because the outcome of that will determine the proceedings.
3. After considering the Notice of Motion filed by the fourth respondent and considering my ruling in Kindi v Guan (2020) N8408, I am of the view that the fourth respondent’s notice of motion is incompetent as all the grounds in Order 12 Rule 40(1) are lumped together. Having said that, it has not prevented me from considering the helpful submission of Mr Wak when I am exercising the court’s inherent power to control its proceedings. As I said in Kindi v Guan that however does not prevent the court’s inquiry into the utility of the proceedings under the inherent powers of the court to control its proceedings.
4. Taking this approach, I have looked at the file in detail, including the related proceedings in CR 192 of 2019, State v Manuela Margo to determine whether I should allow the proceedings to continue.
B ISSUE
5. I consider the issue to be whether the proceedings should be dismissed for being an abuse of process pursuant to the courts inherent power to control its proceedings and under Order 8 Rule 27(1)(b) of the National Court Rules?
C LAW AND APPLICATION OF THE LAW TO THE ISSUES
6. In the case of Timbers (PNG) Ltd v Kambori (2010) N4282, the court held that a proceeding is bound to fail if it would conflict with existing Supreme Court orders and would have the effect of overturning orders made by the Supreme Court. In this case, would the ultimate effect of orders sought in this proceeding contradict the orders given earlier by the National Court in CR 192 of 2019, State v Manuela Margo. The effect of the ruling in Timbers (PNG) Ltd v Kambori should apply to the facts of this case.
7. I turn to the statement of claim filed by the applicant. I am prepared to give the applicant the benefit of the doubt, and amend the proceedings, if the gist of the claim read from the perspective that it was prepared by a non-lawyer discloses a reasonable cause of action and is not an abuse of process.
8. What is the applicant’s story? The applicant is presently a prisoner at Beon Gaol serving 10 years in hard labour for manslaughter for killing her husband, Charles Kukari (and I use the term “husband” loosely).
9. The applicant and the deceased husband were residing in Port Moresby. Both the applicant and the deceased husband were previously married. Their previous marriages did not work out, and the applicant and deceased husband were living together for some two (2) years when the death occurred. The deceased husband and the applicant then came to Madang for some police investigative work.
10. The applicant says in her statement of claim, that her deceased husband died from having too much alcohol in his body. The applicant says that the circumstances in which she killed her husband was that her husband had a gun, and she had a knife, and what she did was in self-defence.
11. Prior to the death of the husband, the applicant says that she laid complaint with the police in relation to the assault she received from her husband. Her complaint was not attended to. Nothing was done when she reported her grievances to the police.
12. The applicant also says that the abusive behaviour of the husband was also reported to their superior, and again, nothing was done to alleviate the situation. The relevant authorities again turned a blind eye to her plight.
13. As I understand her claim, she appears to be saying that if the police had performed their duty when she first laid her complaint, her husband Charles Kukari would not have been killed. At paragraph 16 and 17 of her statement of claim she states:
“The first defendant is liable in his decisions and being criminally negligent by not allowing late Charles Kukari to be investigated, arrested and processed effectively for violence, assaults, threats, wife bashing and illegally using Second and Third Defendants issued fire arms in public places against the applicant.”
14. She also says that the cause of the death of her late husband was due to the medical negligence of the doctors and medical personnel and not her doing.
15. As a result of the actions of the police and the hospital she says her rights under the Constitution have been breached. These rights are:
16. She claims damages comprising of loss of future salaries and general damages as a result of the actions and or omissions of the respondents and or their servants and agents.
17. Finally, the applicant claims that pursuant to Section 26 of the Criminal Code, she is not responsible for the death of her husband, and instead those persons who failed to do their job properly, should be held responsible.
18. I have taken the liberty to check the court records in respect of this matter, and I note that the applicant was charged for wilful murder contrary to Section 299 of the Criminal Code. She was afforded full protection of the law under Section 37 of the Constitution, before she was found guilty of manslaughter (Section 302, Criminal Code), and sentenced to prison, 10 years in hard labour.
19. I note from the court records that the applicant had a lawyer on record representing her and would or could have raised any defence under Section 26 of the Criminal Code. The court proceeded and did not find her guilty on the more serious charge of wilful murder, but for manslaughter.
20. I therefore conclude that the applicant’s rights, especially under Section 37 of the Constitution, were fully observed throughout the process, and the court has performed its lawful functions and found the applicant guilty.
21. Because the basic thrust of the applicant’s claim hinges on this court being asked to absolve her from criminal liability and thereby paving the way for her to seek damages, no amount of amendment will be able to make good her claim. Whatever claim the applicant has, she should not seek to challenge the finding of the criminal court in a civil court.
22. The applicant is presumed to have all powers of self-control and a person of sound mind, and she was free to walk away from this disastrous relationship with her deceased husband. It is not proper at this stage to shift the blame to the defendants for her actions. It would have been appropriate if she brought the claim for breach of human rights against her husband and the respondents instead of taking the law into her own hands.
23. But I also understand that sometimes it may not be possible to walk away from an abusive relationship. The battered women syndrome came about to answer the often- asked question – “why didn’t she leave the relationship?” The applicant has complained of abuse for a period of time by her deceased husband. I have taken the liberty to make some obiter remarks on this psychological condition. In some countries, battered women syndrome is being advocated for legislative reform to be a complete defence to murder or at least to mitigate severity of penalty (Family Violence – A National Legal Response (ALRC Report 114)<https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/list-of-recommendations-7/>).
24. I note that this court in State v Tinpuar (2016) N6361 makes reference to the battered women syndrome as a mitigating factor on sentence. The following is a brief genesis and outline of the syndrome:
“The term Battered Women Syndrome was coined by Professor Lenore Walker after an extensive study of the behaviour of female victims of domestic violence. According to Walker, women suffering BWS, a form of Post-Traumatic Stress Disorder (PTSD), develop low self-esteem and dependence and are conditioned to feel that they cannot defend themselves against their abuser. Walker found that such victims exhibit ‘learned helplessness’ where they become unable to defend themselves and continue to submit to a cycle of violent abuse followed by contrition.
For women in this situation, fighting back against a physically bigger and stronger attacker during an assault is not realistic and such victims, if they do defend themselves, tend to strike during a period where they abuser is subdued and there is no immediate threat to them. (https://www.gotocourt.com.au/legal-news/battered-woman-syndrome/)
25. That article referred to above goes on to say:
“The theory of Battered Woman Syndrome has allowed the defence of self-defence to be extended to a situation where a woman kills an abusive partner, despite the act occurring at a time when no immediate threat was posed to her safety. The rationale for this goes back to the three stages of the cycle of domestic violence identified by Lenore Walker. Such relationships, according to Walker, go through a period of ‘tension building’, where verbal and emotional abuse occurs together with occasional physical violence; a period of intense physical abuse follows; then a period of ‘loving contrition’ on the offender’s part. A victim of BWS may be able to defend herself and escape the situation only during a moment when her abuser is being contrite rather than behaving violently or when he is subdued, for example, by being asleep.”
26. In the New South Wales case of R v Woolsey (Unreported 19 August 1993, NSW Supreme Court, per Newman J), the learned trial judge relevantly commented that the importance of a finding of a “battered women syndrome” is only relevant to the question of sentence.
27. These are all matter for the criminal court to delve into. It is therefore not open to this court to conduct the same enquiry, especially by a civil court after the applicant was lawfully convicted by a court of competent jurisdiction and she was afforded all her rights from the point of arrest, to the conducting of the trial and the finding of guilt and sentence.
28. It is trite law, that where a court of competent jurisdiction has dealt with an issue, the same party is estopped from relitigating the issue. See the case of Pruaitch v Manek (2019) SC1884. Relitigating the issue is an abuse of process. The applicant has also not disclosed the full facts surrounding her conviction in her affidavit material.
29. If the applicant alleges that she was not afforded full protection of the law in her arrest and conviction, she has two opportunities to raise it so that the court can consider whether it is sufficient to return a verdict of not guilty – at the trial and at an appeal of the decision of the trial court. Both opportunities were at the applicant’s disposal.
30. The applicant complains of not having a pre-sentence report before her sentence. Any issue with not having a pre-sentence report, should have been raised in the criminal proceedings, or raised as an appeal ground against the severity of her sentence.
31. As I said above, her main recourse is to appeal her conviction and sentence. This is the only way to deal with her criminal responsibility. The Supreme Court is the proper forum, seized with the jurisdiction to re-consider her conviction. If she is out of time to file an appeal, she will have to file a review, seeking leave to review the conviction and or sentence. The court will consider whether to grant leave to review on the merits of the case.
32. If there is no appeal or review, the applicant will have to serve her time until she becomes eligible for parole after serving the minimum required period of sentence.
33. After considering the facts and the law in relation to this matter, I have therefore come to the conclusion that this proceeding is an abuse of process and should be dismissed in its entirely.
D CONCLUSION AND ORDERS
34. I therefore order as follows:
Orders accordingly
Solicitor General: Lawyers for the First, Second and Third Respondents
Bradley Wak Lawyers: Lawyers for the Fourth Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/198.html