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Hehona v Waigani Committal Court Magistrate Joe Posi [2025] PGNC 160; N11292 (31 March 2025)

N11292

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 14 OF 2024

BETWEEN:
DONALD HEHONA
Applicant

AND:
WAIGANI COMMITTAL COURT MAGISTRATE JOE POSI
Respondent

WAIGANI: DINGAKE J
20, 31 MARCH 2025

JUDICIAL REVIEW –– PRACTICE & PROCEDURE - District Court committal proceedings - Consideration of evidence under S.94, S.95, S.96 and S.100 of the District Court Act - Process of committing the Accused to stand trial as charged - Arguments without merit - Judicial Review is dismissed

Cases cited
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
Yarume v Euga [1996] PGNC 24; N1476

Counsel
Ms. G. Kogora for the plaintiffs
Ms. R. Mobiha for the defendant

JUDGMENT

1. DINGAKE J: INTRODUCTION: On the 27th of February 2024, by way of an Originating Summons, the Plaintiff sought leave of this Court to review the decision of the First Defendant to commit him to stand trial in the National Court.
   
2. Leave was granted on the 12^th of March 2024 and the judicial review trial took place on the 20^th March 2025.
   
3. The Plaintiff complains that the aforesaid committal was done on the 5^th of July 2023 and on the 14^th of February, 2024, without the Hand Up Brief and that the process stipulated by Sections 94, 95, 96 and 100 of the District Court Act was not followed.
   
4. The Plaintiff relies on two affidavits he deposed to, appearing at page 23 – 27 and pages 63 – 67 of the Review Book.
   
5. The Defendant has not filed any affidavit in rebuttal.
   
6. The dispositive facts are that the Plaintiff and his wife were charged with murder contrary to Section 300 (1)(a) of the Criminal Code and appeared in Court on several occasions to process the charge culminating in their committal to stand trial before the National Court.
   
7. Although the Originating Summons (pages 3-4) of the Review Books) mentions the 5^th of July, 2023 and 14^th of February 2024, the Committal Order was signed on 22^nd of February 2024 (see page 99 of the Review Book).
   
8. Essentially, the Plaintiff seeks to quash or set aside his committal to stand trial because the process of his committal was flawed as there was no compliance with Sections 94, 95, 96 and 100 of the District Court Act.
   
9. The evidence of the Plaintiff with respect to when he and his wife were committed to stand trial is confusing in so far as the Plaintiff alleges that on the 5^th of July 2023 he was committed to stand trial. There is no record suggesting that he was committed to trial on this date. Further, to the extent that the Plaintiff alleges that he was not furnished or did not have access to the “Police Hand Up Brief” same seems to have been furnished to him and or his lawyer on the 24^th of October, 2023, because at paragraph 14 of his affidavit filed on the 27^th February, 2024, (page 25) he says his lawyer filed submissions challenging the sufficiency of the evidence contained in the “Police Hand Up Brief”.
   
10. It would also seem that much earlier, on the 28^th of September 2023, the only issue, if at all, was that the “Police Hand Up Brief” was ostensibly short served on him (see paragraph 12 of the Plaintiff’s affidavit filed on the 19^th of September 2024, page 65 of the Review Book). This in my mind explains why on the 24^th of October 2023 his lawyer was able to challenge the sufficiency of the evidence in the “Police Hand Up Brief”.
    
11. I find on the evidence that any suggestions that the “Police Hand Up Brief” was denied or that the provisions of Section 94 of the District Court Act – as argued by the Plaintiff’s Counsel, were not complied with, to be without merit.
    
12. On the evidence it is clear that the First Defendant considered submissions on sufficiency of evidence (see paragraph 17 of the affidavit filed on the 19^th of September 2024 page 66) of the Review Book) and adjourned the ruling to the 2^nd of November 2023.
    
13. It is also clear on the evidence that the First Defendant found there is indeed sufficient evidence to commit the Plaintiff to stand trial in the National Court, because there was a prima facie case to do so.
    
14. In my opinion the First Defendant complied with Section 95 of District Court Act in so far as finding that there was sufficient evidence to commit the Plaintiff to trial was concerned.
    
15. The Plaintiff also argued that Section 96 statement of the District Court Act was not administered or was denied by the First Defendant (see paragraph 30 of the affidavit filed on the 19^th of September 2024) page 67 of the Review Book). However, paragraph 33 of the same affidavit states that the matter was adjourned to the 22 February 2024 at 1:30pm for the Court to administer section 96 Statement. The Plaintiff avers in the said paragraph that “on the same day (22^nd of February 2024) I was committed to stand trial in the National Court”. The Plaintiff does not say that the Section 96 Statement was not administered. Additionally, the Ruling of the First Defendant of the 22^nd February, 2024 (page 93 - 99 of the Review Book) suggests that the Section 96 Statement was administered, but it did not affect the Court’s decision that there was sufficient evidence to commit the Plaintiff to stand trial in the National Court.
    
16. On the evidence there is no sufficient evidence that the Section 96 Statement was not administered or made as argued by learned Counsel for the Plaintiff.
    
17. In the matter of Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208, His Honour Injia DCJ; indicated that the Committal process consists of two phases: the preliminary phase, where the prosecution gathers and files evidence for disclosure to the defense, and the determination phase, where the magistrate assesses whether the evidence establishes a prima facie case warranting committal to the National Court. Maladina challenged the committal proceedings, arguing that his right to procedural fairness was breached, as he was not given a proper opportunity to respond and the magistrate assumed control of the hearing without following due process. The case underscores the importance of procedural fairness in committal proceedings, ensuring that an accused person has a fair chance to contest the evidence before being committed to trial.
    
18. Furthermore, in the case of Yarume v Euga [1996] PGNC 24; N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused.
    
19. In conclusion, I find that the process of committing the Plaintiff to the National Court to stand trial for murder as charged was not flawed.
    
20. In the result, the judicial review is without merit and liable to be dismissed.
    
21. The Court orders that:
    
    1. The Judicial Review is dismissed
    2. There is no order as to costs.

__________________________________________________________________
Lawyers for the plaintiff: Holingu Lawyers
Lawyers for the respondent: Solicitor General