SC1065

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SC APP 16 of 2009

Enforcement Pursuant to Section 57 Constitution
Application by Francis Gem to enforce Constitutional Rights

Waigani: Injia CJ, Gavara Nanu and Hartshorn JJ.
2010: 1st, 30th July

SUPREME COURT – Practice and Procedure – Matters within the Court's original jurisdiction - Directions as to the taking of Evidence – Constitution, s. 57; s. 18 and s. 19; Order 3 Rule 3 Supreme Court Rules

Facts:

The applicant was prohibited from conducting a protest march in Madang in October 2009 by the Police Commissioner. Aggrieved by the prohibition, the applicant has applied to this Court in its original jurisdiction to enforce his constitutional rights pursuant to s.57 Constitution. In the course of considering directions to progress this application, the taking of evidence and its consideration by this Court were the subject of submission by counsel. After hearing counsel on these issues, the Court reserved its ruling on those considerations. This is a ruling on those issues.

Held: 

1. The Supreme Court can direct a single Judge to take evidence pursuant to Order 3 Rule 3 Supreme Court Rules. Notwithstanding that the wording of the Rule permits a Judge of the Court that gives the direction to be so directed, the Judge to be directed, who shall be a Supreme Court Judge, should be someone other than any of the Judges constituting the Court that gives the direction, to avoid issues of prejudice.

2. The Judge directed shall take evidence concerning the facts that are disputed, as deposed to in the affidavits and as detailed in the Statement of Agreed and Disputed Facts filed herein.

3. After taking the evidence as directed in (2) above, the Judge shall state the facts as found by him and provide his statement of those facts to this Court by 4th October 2010.

Cases cited:

Papua New Guinea Cases

Special Reference by the Ombudsman Commission (2010) SC1027

Overseas Cases
New Jersey v New York 523 U.S.767, 118 S. Ct 1726 (1998) 

Counsel:

R. William, for the Applicant 
A. Amet, for A. Kulit
F. Alua, for the Attorney General 

30th July, 2010

1. BY THE COURT: The applicant, Francis Gem was prohibited from conducting a protest march in Madang in October 2009 by the Police Commissioner. Aggrieved by the prohibition, Mr. Gem has applied to this Court in its original jurisdiction to enforce his constitutional rights pursuant to s.57 Constitution.

2. In the course of considering directions for the progression of this application, the taking of evidence and its consideration by this Court were the subject of submission by counsel. After hearing counsel on these issues we reserved for consideration. We now deliver our ruling on those issues.

3. As to the taking of evidence in proceedings before this Court in its original jurisdiction, Order 3 Rule 3 Supreme Court Rules is apposite and is as follows:

"Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of the fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it."

4. As far as we are aware this Rule has not been considered by this Court. This is notwithstanding that in addition to applications such as the present, this Court has original jurisdiction as to, amongst others, any question relating to the interpretation or application of any provision of a Constitutional Law, s. 18 Constitution; and gives its opinion on Constitutional Law questions when application is made by Special Reference under s. 19 Constitution, as recently occurred in Special Reference by the Ombudsman Commission (2010) SC1027. Counsel were unable to assist us with relevant authority from this jurisdiction as to the interpretation of Order 3 Rule 3, or with authority from other jurisdictions concerning the interpretation of similar provisions.

5. As to a final Court taking and considering evidence in proceedings before it in its original jurisdiction, our own researches have revealed that the Supreme Court of the United States of America, the final court in that jurisdiction, has original jurisdiction in respect of amongst others, disputes between States.

6. In such proceedings, although the United States Supreme Court has original jurisdiction to gather and hear evidence, it has adopted the practice of appointing a Special Master, who is usually a well qualified lawyer or lower court judge, to hear the evidence and prepare factual findings. Those findings are then presented to the Supreme Court. The Supreme Court then hears oral argument and issues a decision.

7. As it is the highest court in the United States, the Supreme Court's decision in its original jurisdiction is final with no right of appeal. An example of such a case is New Jersey v. New York 523 U.S. 767, 118 S.Ct 1726 (1998), in which the Supreme Court took evidence and determined which State had claim to Ellis Island.

8. Reasons for the Supreme Court adopting the practice of appointing a Special Master to take evidence and prepare a factual finding include, that with nine Justices constituting the Supreme Court, the Court is not well-suited to conducting pre-trial proceedings or trials and it would to be too unwieldy for the nine Justices to promptly rule on evidentiary objections as they arise.

9. It appears to us that Order 3 Rule 3 Supreme Court Rules was drafted with the knowledge that a court consisting of more than one Judge would face similar impediments to the taking and consideration of evidence in its original authority, to those that led the United States Supreme Court to adopt the practice that it has in appointing a Special Master.

10. We are of the view that if this Court directs a single Judge to take evidence pursuant to Order 3 Rule 3, although the wording of the Rule permits a Judge of this Court that gives the direction to be so directed, the Judge to be directed, who shall be a Supreme Court Judge, should be someone other than any of the Judges constituting the Court that gives the direction.

11. This will avoid issues of prejudice of the Judge so directed for amongst others, forming a view of the proceedings before the Supreme Court hears argument by having a more detailed knowledge of the proceedings by virtue of taking the evidence and making factual findings.

12. It also ensures that each of the Judges constituting the Court equally hear the proceedings. This would not be the case if one of the Judges had already taken evidence and made factual findings.

13. Consequently, in light of the above considerations we make the following directions pursuant to Order 3 Rule 3 Supreme Court Rules:

a) Subject to (b) below, Justice Cannings is directed to conduct a hearing for the purpose of taking evidence in this proceeding pursuant to Order 3 Rule 3 Supreme Court Rules,

b) The evidence that Justice Cannings shall take will be concerning the facts that are disputed, as deposed to in the affidavits and as detailed in the Statement of Agreed and Disputed Facts filed herein,

c) After taking the evidence as directed in (a) and (b) above, Justice Cannings shall state the facts as found by him and provide his Statement of those Facts to this Court by 4th October 2010.

14. Further, we order that the costs of and incidental to the hearing held on 1st July 2010 are reserved. 

_______________________________________________
Nonggorr & William Lawyers: Lawyers for the Applicant 
Amet Lawyers: Lawyers for Mr. Anton Kulit 
Office of the Solicitor- General: Lawyers for the Attorney General