A defendant who believes the committal went wrong has two possible routes to the National Court and a strong body of authority telling him when each will and will not work.
Judicial review: available for jurisdictional error
Orders in the nature of certiorari to quash for excess or want of jurisdiction are available in respect of committal proceedings (Rush). Judicial review is available in respect of committal proceedings for jurisdictional error; it is concerned solely with the validity of the decision-making process, and questions relating to sufficiency of evidence are therefore excluded (Tohian).
The application is made under Order 16 of the National Court Rules, with leave, and the general principles in Kekedo v Burns Philp [1988–89] PNGLR 122 apply. The mechanics are in what is judicial review and applying for leave.
Grounds that have succeeded
| Case | Ground |
|---|---|
| Rush [1984] PNGLR 124 | Non-compliance with the mandatory time limit for service of the committal documents |
| Tkatchenko v Magaru (2000) N1956 | Failure to give the defendant the opportunity to exercise his rights under ss 95(3) and 96: breach of natural justice |
| Maladina v Poloh (2004) N2568 | Refusal to hear counsel’s oral submissions under s 96 after written submissions were filed: denial of natural justice; committal quashed and remitted to another magistrate |
| Nagira v Besasparis [1986] PNGLR 199 | Refusal to allow cross-examination of a witness whose affidavit was tendered |
| Kai Wabu [1994] PNGLR 498 (principle) | Failure to conduct and record the s 94C inquiry may void the committal |
Grounds that have failed
In Lak v Magaru [1999] PNGLR 572 the applicant contended that no magistrate acting reasonably could have found a prima facie case on the evidence. Sheehan J refused leave: these are not matters going to the jurisdiction of the committal court; they are matters that may be raised at the trial before the National Court. In Golu v Marum (2013) N5104 a challenge based on the magistrate’s treatment of a constitutional point and alleged unreasonableness also failed. And Tkatchenko itself held that the civil court should decline to intervene where the complaint can properly be dealt with by the criminal court, and that mandamus to dismiss the charges is not available on review of a committal.
Appeal: technically available, practically not
Section 1 defines “decision” to include a committal for trial, and Yawari v English (1996) N1433 accepted that the definition is wide enough to support an appeal under Part XI. But in Akia v Francis (2016) N6555 Gavara-Nanu J held that an appeal is not a proper mode to challenge a finding of a prima facie case by the committal court, and that judicial review should lie only where there is clear evidence of procedural error or irregularity or substantive error of law. The same judge in Yarume v Euga (1996) N1476 heard a committal appeal but held that whether the findings were against the weight of evidence was not an important aspect.
The Supreme Court’s warning
A five-judge Supreme Court dismissed an appeal against the refusal of a permanent stay of criminal proceedings sought in a separate civil action after committal. The Court held that it is against good order and the due administration of justice for civil courts to intervene in criminal cases; that the criminal process contains a larger range of safeguards for the accused, so that a person committed to stand trial should have no reason for concern; and that it is in the public interest to allow the due process of criminal proceedings to take its normal course.
Akia relied on Wartoto in dismissing a purported appeal as an abuse of process. The message from the highest court is that complaints about the strength of the case, the conduct of the investigation or the fairness of prosecuting at all belong to the trial judge, who can rule on evidence, stay for abuse, or acquit.
Practical guidance
| Complaint | Route |
|---|---|
| Documents served late or not at all; s 94C inquiry not done; s 96 not complied with; no chance to make submissions | Judicial review, promptly, with leave |
| Magistrate lacked jurisdiction (wrong grade, no election, arrest without a required warrant) | Judicial review |
| The evidence does not add up; witnesses are unreliable; the charge is oppressive | Raise at trial: no case submission, objections to evidence, application to the trial judge |
| Discharged, but the Public Prosecutor indicts anyway | No challenge to the indictment on that ground; see the ex officio indictment |
Section 8 of the Claims By and Against the State Act requires the State to be heard before leave for review is granted where it is a defendant, and a committal review names the State. Bail continues to be available in the National Court while a review is pending.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.