Kaiwi’s application refused

THE Supreme Court has refused an application by Bhosip Kaiwi to appeal a National Court decision last year questioning the legality of his detention at Bomana prison.
Justice David Cannings granted leave yesterday on the grounds that the Supreme Court did not have the power and that it was not in the interest of justice.
“There’s got to be a pathway to seek leave to appeal,” he said.
“It’s not provided.”
Kaiwi filed an application by way of a notice of motion in the National Court last Oct 21 for the court to determine the legality of his detention given that he had not been charged with murder.
On Nov 19, the State argued that Kaiwi was legally detained because section 32 of the District Court Act allowed for the amendment of the charge from wilful murder to murder.
Therefore, Section 61A (3) of the District Court Act which required a discharge of Kaiwi was not applicable as he was legally detained under the new charge of murder.
Kaiwi through his lawyer Emmanuel Elison argued that the custody order was defective.
A National Court judge found that there was no evidence before the court supporting Kaiwi’s argument of the procedure taken and subsequently formed the view that the Committal Court magistrate was correct in her interpretation of the District Court Act. The National Court judge then dismissed Kaiwi’s notice of motion.
Elison by way of background submitted yesterday that Kaiwi was not discharged from custody when the Committal Court magistrate granted the application by police to withdraw the charge of wilful murder and substitute it with murder.
He further submitted that Kaiwi was unlawfully detained when the amendments were made to the charges.
Elison argued that Kaiwi should have been discharged and arraigned again for the charge of murder, however this was not done.
He added that the court needed to grant leave to appeal and order that Kaiwi be discharged and stay the proceeding pending determination of this appeal.
The State submitted among other grounds that leave could not be granted because there was no arguable case as per the transcript of the National Court, the judge was correct, and that Kaiwi did not provide transcript of the Committal Court proceeding.
Justice Cannings in refusing to grant leave said that there was an arguable case but it would not be in the interest of justice.
He added that Kaiwi needed to continue with trial in the National Court and appeal against conviction or sentence.
“I refuse to grant leave due to the Supreme Court having no jurisdiction to entertain the appeal in that position, contradicts the interest of justice.”
The court also ordered that the file be closed.