A businessman was discharged by a magistrate, indicted anyway by the Public Prosecutor, and went to the Supreme Court to stop the trial. The Court refused, and in doing so wrote the rules for review arguments.
Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855
Supreme Court, Waigani — Kapi CJ, Cannings and David JJ, 15 December 2006. SCR 34 of 2005.
What happened
Mr Leahy was charged with conspiracy to defraud and misappropriation. At committal, the District Court found the evidence insufficient and refused to commit him for trial. The Public Prosecutor then presented an ex officio indictment in the National Court under section 526 of the Criminal Code. Mr Leahy objected to the indictment; the National Court overruled the objection and received it.
There is no appeal from such a ruling, so Mr Leahy applied to the Supreme Court for leave to review it under section 155(2)(b) of the Constitution, and argued the substantive review on the assumption that leave would be granted.
What was argued
He advanced five arguments: among them that section 526 was inconsistent with section 155(6) of the Constitution, that the Public Prosecutor should first have exhausted the State’s rights of appeal against the magistrate’s decision, and that the refusal to commit amounted to a dismissal or acquittal that barred further prosecution.
What the Court decided
A National Court decision to accept an indictment is reviewable under section 155(2)(b), there being no right of appeal and no other way to bring the matter to the Supreme Court, provided the accused shows an important point of law to be determined that is not without merit. SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 applied. Mr Leahy met both criteria and was granted leave.
Before a review proceeds, three matters must be satisfied for each argument the applicant advances. (a) Is it raised in one or more grounds of review? (b) Was it raised in the National Court? (c) Is it a proper review point? If all three are answered yes, the Court is obliged to decide it. If any is answered no, the Court considers whether it is appropriate to address the point at all. Two of Mr Leahy’s five arguments failed this filter and were not determined.
Section 526 lawfully allows the Public Prosecutor to present an indictment notwithstanding a refusal to commit; it is not inconsistent with section 155(6). The Public Prosecutor need not exhaust appeal or review of the District Court’s decision first. A refusal to commit is not a dismissal or an acquittal: committal proceedings do not determine guilt. The Public Prosecutor is an independent constitutional office-holder, and section 526 is a check and balance on the committal process. The review was dismissed.
Did it make new law?
Leahy affirmed the National Court’s ruling on the indictment, but its lasting contribution is procedural and came from the Supreme Court’s own reasoning. The three-question test for review grounds had not been stated in that form before. It also confirmed, for criminal interlocutory rulings, the leave criteria from the 1987 Central Banking reference, later described as requiring a heavy onus where an accused seeks to interrupt a criminal trial.
Why it matters
Every argument must trace back to a pleaded ground and to something actually put to the National Court. Points thought of afterwards, or raised in submissions but not in the grounds, are at the Court’s mercy.
For an accused person, Leahy is also the authority that a magistrate’s refusal to commit is not the end of the matter. The Public Prosecutor may still indict.
What it does not decide
Leahy does not say the Court can never hear a point not raised below; it leaves a discretion to do so where appropriate. Nor does it decide the separate question, addressed in Popuna v Owa (2017) SC1564, of what happens when a party seeks review after an appeal has been dismissed.
Recent cases applying it
- Application by Jurgen Ruh [2023] PGSC 10; SC2352 — Cannings J applied the Leahy leave criteria and added that an accused seeking to review an interlocutory criminal ruling bears a heavy onus to show a strongly arguable want of jurisdiction; review dismissed.
- Vanuga v Dopsie [2022] PGSC 117; SC2317 — grounds not argued in the National Court were summarily dismissed, citing Leahy with Papua Club v Nusaum Holdings.
- Maliso v Marape [2021] PGSC 119; SC2306 and Ahwong v Ane [2021] PGSC 43; SC2108 — Leahy cited for the categories in which review is available.
- Igime v Motor Vehicle Insurance Ltd [2021] PGSC 37; SC2111 — a review filed without leave dismissed, Leahy cited.
Sources
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (Kapi CJ, Cannings and David JJ, 15 December 2006)
- Constitution — ss 155(2)(b), 155(6), 176, 177
- Criminal Code (Chapter 262) — s 526
- SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PGSC 4; [1987] PNGLR 433
- Application by Jurgen Ruh [2023] PGSC 10; SC2352; Vanuga v Dopsie [2022] PGSC 117; SC2317; Maliso v Marape [2021] PGSC 119; SC2306; Ahwong v Ane [2021] PGSC 43; SC2108; Igime v Motor Vehicle Insurance Ltd [2021] PGSC 37; SC2111
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