Police v Caspar [2010] PGDC 49; DC1085 (24 March 2010)

DC1085

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DCR 282 AND 283 /2010

BETWEEN

POLICE
Informant

AND

JUNIOR CASPAR AND SAMUEL CASPER
Defendant

Madang: J. Kaumi
2010:19th 24th March

CRIMINAL LAW-Summary offence-Summary Offences Act, Part III, Protection of Persons-Section 7 subsection (b) and (c)- Threatening Words and Insults.

CRIMINAL LAW- Practice and procedure-where an information charging defendants with Threatening Behaviour contrary to Section 7 (b) of the Summary Offences Act Ch.262 is dismissed and eight days later the same defendants are charged with the same offence arising out of the same set of circumstances-Whether abuse of process of court

CRIMINAL LAW-Practice and Procedure-Where an information charging defendants with Use of Insulting Words contrary to Section 7 (b) of the Summary Offences Act Ch.262 is withdrawn for reason of incomplete wording of charge upon application by prosecutor-Whether the use of the same information that was withdrawn to recharge the defendants by the informant three days later without diligently preparing a new information and no identifiable change to wording against them amounts to an incorrect use of court machinery, a major defect in the information and as a result an abuse of the process of the court

Two young men were recharged with same offence that was withdrawn for incomplete wording and the wording of the new charge was an exact duplicate of the former and another offence arising out of the same set of facts for which a previous charge was dismissed. The question arose whether an abuse of the process of court had occurred in both instances.

Held:

(1) The phrase “abuse of process” connoted that the process of the Court must be used properly and bona fide and are not to be abused. Further that where the Court’s machinery is improperly and incorrectly used, the Court has a duty to prevent such abuse of its process. Nagari v Rural Development Bank [2007] N3295 (16/04/07) Gavara Nanu.J.

(2). Abuse of Process’ of the court as an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations. Painke, The State v [1976] PNGLR 210 (24 May 1976) AJ.O’Leary.

(3). Basically what this means is that the Police cannot have a second bite of the cherry. Going by what Cannings.J stated in Toap v The Independent State of Papua New Guinea [2004] N2766, it was incumbent upon them to carefully choose what information to lay against the defendants arising out of the given set of facts. They cannot lay new informations arising out of the same set of facts against the defendants after the initial informations were dismissed whilst purporting to be carrying out their Constitutional function.

(4). It would appear that the Police informant First Constable Solomon William used an extra copy of the information in DCR 284/2010 to lay the charge against the defendant in DCR 284/2010 without diligently preparing a new information against him and this I consider to be an incorrect use of the court’s machinery, a major defect in the information and an abuse of the process of the court. What has transpired here begs the question, when exactly was the defendant charged in relation to DCR 284/2010?

Cases Cited

Painke, The State v [1976] PNGLR 210 (24 May 1976) AJ.O’Leary;
National Excutive Council v Public Employees Association [1993] PNGLR 264.
Watinga, The State v [1994] PNGLR 255 (9 December 1994) AJ.Sawong;
Agiru v Electoral Commission [2002] PGSC 5; SC687 (24 June 2002);
Toap v Independent State of Papua New Guinea [2004] N2766 (21 December 2004) Cannings.J;
Nagari v Rural Development Bank [2007] N3295 (16/04/07) Gavara Nanu.J
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906 (28 March 2008) Injia DCJ, Kirriwom, Cannings JJ;

Legislation
Constitution of PNG
Summary Offences Act, Chapter 262

Abbreviations
The following abbreviations appear in the judgment
AJ Acting Justice
DCJ Deputy Chief Justice
DCR District Criminal
J Justice
M Magistrate
N National
PNGLR Papua New Guinea Law Report
S C Supreme Court
V Versus

Counsel
First Constable Police Woman Rose Bussil for the Informant
Defendant in person.

INTRODUCTION

1. KAUMI M. The defendants were charged with one count of Threatening Behaviour contrary to Section 7 (b) of the Summary Offences Act and both were also charged with using Insulting Words contrary to Section 7 (b) of the Summary Offences Act.

THE RELEVANT FACTS

2. The relevant facts giving rise to this charge of Threatening Behavviour are that on 8/11/09 at the Luship Compound, Madang the defendants used threatening behaviour towards another person namely Lawrence Narang by threatening to assault him with his folded fist whereby a breach of the peace was likely to take place.

3.The relevant facts giving rise to the charge of using Insulting Words are that on 19/10/09 at Luship Compound, Madang the both defendants used Insulting words namely “ Susan yu kaikai kan blong mama blong yu”, towards another person namely Susan Narang whereby a breach of the peace was likely to take place.

BACKGROUND

4. Prior to these current charges being laid against the defendants a series of charges had been laid against them and it is interesting to note what has transpired in the proceedings in relation to these previous charges as they have legal implications on the current charges they face and they also highlight a myriad of proceedings the defendants have had to endure. Therefore it is pertinent for me to set out in chronological order these previous matters and they are as follows:-

(i). In DCR 1262 and 1264/2009 First Constable Solomon William laid identical informations on the 24/11/09 against both defendants that on 8/11/09 at Luship Compound, Kranget Island, Madang both defendants were without lawful excuse in premises namely Luship compound contrary to Section 20 of the Summary Offences Act. On 24/11/09 both defendants were arraigned and entered respective pleas of not guilty prompting the Court to conduct a Pre Trial conference where its necessary ingredients resolved i.e. the issue was identified, number of witnesses for both Police and the defendants listed, duration of the trial calculated on the basis of the above factors and a trial date (14/01/10-9:30am) given in accordance with the bench diary. On 14/01/10 trial not reached and matter further adjourned to 29/01/10 and finally to the 8/03/10 for trial. On 8/03/10 Police Informant nor witnesses failed to materialize so Police offered no evidence and matter dismissed for want of prosecution.

(ii). In DCR 274 and 275/2010 the same First Constable Solomon William again laid identical charges on 16/03/10 against both defendants that on 8/11/09 at Luship Compound, Madang both defendants used threatening behaviour by threatening to assault the complainant with their folded fists whereby a breach of peace was likely to take place contrary to Section 7 (b). On 17/03/10 both matters were mentioned but due to the non appearance of both defendants they were stood over to the 18/03/10. On 18/03/10 the matters were mentioned in Court and Police applied for the withdrawal of the both charges due to incomplete wording of the charges so the Court granted the said application and ordered the charges withdrawn and the both defendants’ bail refunded to them.

(iii).In DCR 276/2010 First Constable Solomon William laid a charge on 16/03/10 against the defendant Junior Casper that on 16/10/09 at Luship compound, Madang he used Insulting words namely, “Susan yu kaikai kan blong mama blong yu” whereby a breach of the peace was likely to take place contrary to Section 7(c) of the Summary Offences Act. On 17/03/10 the matter first mentioned but stood over to 18/03/10 due to none appearance of the defendant. On 18/03/2010 Police applied for withdrawal of the matter due to incomplete wording of the charge and the application was granted and the court ordered the matter withdrawn and bail refunded.

(iv).In DCR 282 and 283 the same First Constable Solomon William again laid the current identical charges on 16/03/10 against both defendants that on 8/11/09 at Luship Compound both used threatening behaviour towards another person namely Lawrence Narang by threatening to assault the complainant with their folded fists whereby a breach of the peace was likely to take place contrary to Section 7(b). The matters were first mentioned on 19/03/10 and I adjourned them to 24/03/10 to consider a preliminary issue of whether there had an Abuse of Process in the manner the both defendants had been dealt with as a consequence of the continuing charging and recharging of them by First Constable Solomon William.

(v).In DCR 284 First Constable Solomon William again laid a information on the 16/03/10 against the defendant, Junior Casper that on 16/10/09 he had used insulting words namely, “Susan yu kaikai kan blong mama blong yu” towards another person namely Susan Narang whereby a breach of the peace was likely to take place. This matter was also mentioned on 19/03/10 and I adjourned it as well to 24/03/10 to consider the issue of whether or not an abuse of process had occurred.-16/10/09

PRELIMINARY ISSUE

5. The issue that arises here is:-

“Has an abuse of the court’s process occurred where:-

(i).the co- defendants were acquitted and later recharged with a new offence arising out of the same set of facts”; and

(ii) the informant has used the same information that was withdrawn to recharge the defendant three days later without diligently preparing a new information and there is no identifiable change to wording of charge against him.

6. In order to highlight this issue I pose the following questions:-

(i).What does the term ‘Abuse of Process’ mean?

(ii).What situations have been viewed as ‘Abuse of Process’ by the Court?

Question (i).What does the term ‘Abuse of process’ mean?

7. The National Court has described “abuse of process” in the following manner:-

(a). In Nagari v Rural Development Bank Gavara-Nanu J [1] held that the phrase “abuse of process” connoted that the process of the Court must be used properly and bona fide and are not to be abused. Further that where the Court’s machinery is improperly and incorrectly used, the Court has a duty to prevent such abuse of its process.

(b). In the leading case of The State v Painke AJ O’Leary [2] defined ‘Abuse of Process’ of the court as an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations.

Question (ii).What situations have been viewed as ‘Abuse of Process’ by the Court?

8. The situations involving abuse of the process have been well documented and canvassed in numerous cases such as:-

Telikom PNG Ltd v Independent Consumer and Competition Commission Injia DCJ, Kirriwom, Cannings JJ [3]:.Agiru v Electoral Commission [4];Watinga, The State v [1994] AJ.Sawong [5]: Toap v Independent State of Papua New Guinea Cannings.J [6];.Painke, The State v AJ.O’Leary [7]).

9. Some of the principles emerging from these cases are as follows:-

(i) The Court has a duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits; (Toap v Independent State of Papua New Guinea [8] Cannings J ) and Anderson Agiru v Electoral Commission and The State [9] Hinchcliffe J, Jalina J, Batari J.

(ii) The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding. This has been clearly set out by the Supreme Court in National Executive Council v Public Employees Association [10]

(iii) The laying of the subsequent information containing the same charges, founded on the same facts as those on which the previous information was based and which was previously ordered to be withdrawn by the Court, amounted to an abuse of the court process Watinga, The State v [11] AJ.Sawong
(iv) Parties trying to have a second bite at the cherry or in other words parties who go back to court again in a second attempt after failing the first time are abusing the process. (Toap v Independent State of Papua New Guinea) [12] Cannings J.
10. The principle in the case of State v Peter Painke [13]emphasized by O’Leary AJ which has been adopted by other cases was that:

"mere motive, however reprehensible, will not be sufficient" (to constitute abuse of process "it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable".

RELEVANT LAW
11. The relevant legislation pertinent to the issue at hand is Section 37 (8) of the Constitution and it provides as follows:-

CONSTITUTION OF PAPUA NEW GUINEA

Section 37. PROTECTION OF THE LAW.

(8). No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

DETERMINATION OF ISSUE

12. In the immediate matter before me the defendants are charged with two offences.

13. In relation to the first charge in DCR 282 and 283 one count each of Threatening Behaviour contrary to Section 7 (b) of the Summary Offences Act and;

14. In relation to the first charge the relevant facts giving rise to this charge of Threatening Behavviour are that on 8/11/09 at the Luship Compound, Madang the defendants used threatening behaviour towards another person namely Lawrence Narang by threatening to assault him with his folded fist whereby a breach of the peace was likely to take place.

15. In DCR 1262 and 1264/2009 the relevant facts giving rise to the new informations were that the defendants were without lawful excuse in premises namely at Luship Compound, Kranget Island, Madang on the 8/11/09. This matter was dismissed on 8/03/10 by this Court.

16. In DCR 274 and 275 eight (8) days later the same First Constable Solomon William again laid identical charges on 16/03/10 against both defendants that on 8/11/09 at Luship Compound, Madang both defendants used threatening behaviour by threatening to assault the complainant with their folded fists whereby a breach of peace was likely to take place contrary to Section 7 (b). Both matters were ordered withdrawn by this court upon application by Prosecutions on 18/03/10.

17. In DCR 282 and 283/2010 the same First Constable Solomon William again laid the current charges on 16/03/10 against both defendants that arose out of the same set of facts that gave rise to the charges in DCR 1262 and 1264/2009 that as I’ve indicated above were dismissed on 8/03/10.

18. I consider that First Constable Solomon William’s laying of these later charges in DCR 282 and 283/2010 against the defendants, founded on the same facts ( an incident on 8/11/09 at the Luship Compound, Kranget,Madang ) giving rise to the charges in DCR 1262 and 1264/2010 that I dismissed, amounts to a blatant abuse of process and a breach of the defendants’ Constitutional rights as mandated by Section 37 (8). Basically what this means is that the Police cannot have a second bite of the cherry. It was incumbent upon them to carefully choose what informations to lay against the defendants arising out of a given set of facts. They cannot lay new informations arising out of the same set of facts against the defendants after the initial informations were dismissed whilst purporting to be carrying out their Constitutional function.

19. In relation to the second charge Junior Casper were also charged with using Insulting Words contrary to Section 7 (b) of the Summary Offences Act.

20. In relation to the second charge the relevant facts giving rise to the charge of using Insulting Words are that on 19/10/09 at Luship Compound, Madang the defendant used Insulting words namely “ Susan yu kaikai kan blong mama blong yu”, towards another person namely Susan Narang whereby a breach of the peace was likely to take place.

21. In DCR 276/2010 First Constable Solomon William laid a charge on 16/03/10 against the defendant Junior Casper that on 16/10/09 at Luship compound, Madang he used Insulting words namely, “Susan yu kaikai kan blong mama blong yu” whereby a breach of the peace was likely to take place contrary to Section 7(c) of the Summary Offences Act and this matter was ordered withdrawn by this court upon application by Police on 18/03/2010 due to incomplete wording of the charge and bail refunded.

22. In DCR 284/2010 First Constable Solomon William again laid a information dated 16/03/10 against the defendant, Junior Casper that on 16/10/09 he had used insulting words namely, “Susan yu kaikai kan blong mama blong yu” towards another person namely Susan Narang whereby a breach of the peace was likely to take place. This matter was also mentioned on 19/03/10 and I adjourned it as well to 24/03/10 to consider the issue of whether or not an abuse of process had occurred.-16/10/09

23. In relation to this second charge I find two matters that I consider are abuses of the process of the court, firstly, the date of laying of information. in DCR 276/2010 was 16/03/10 and this matter was withdrawn on 18/03/10. The next day 19/03/10 the defendant appeared in this court on an identical charge with the same wording of charge and the date of laying of the information is 16/03/10. It would appear that the Police informant First Constable Solomon William used an extra copy of the information in DCR 284/2010 to lay the charge against the defendant in DCR 284/2010 without diligently preparing a new information against him and this I consider to be an incorrect use of the court’s machinery, a major defect in the information and an abuse of the process of the court. What has transpired here begs the question, when exactly was the defendant charged?

DETERMINATION

24. The issue in this matter is as follows:-

“Has an abuse of process occurred where:-

(i).the co- defendants were acquitted and later recharged with the new offence arising out of the same set of facts; and

(ii). the informant has used the same information that was withdrawn to recharge the defendant three days later without diligently preparing a new information and there is no identifiable change to wording of charge against him”.

25. I find that in relation to questions (i) and (ii) an abuse of process of court has occurred.

26. In view of these determinations I order both informations against the defendants dismissed.

Police Prosecution for the Police
Defendants in Person.

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[1] [2007] N3295 (16/04/07) Gavara Nanu.J

[2] [1976] PNGLR 210 (24 May 1976) AJ.O’Leary

[3] [2008] SC906 (28 March 2008) Injia DCJ, Kirriwom, Cannings JJ

[4] [2002] SC687 (24 June 2002)

[5] [1994] PNGLR 255 (9 December 1994) AJ.Sawong

[6] [2004] N2766 (21 December 2004) Cannings.J

[7] [1976] PNGLR 210 (24 May 1976) AJ.O’Leary

[8] Supra Note 6

[9] Supra Note 4

[10] [1993] PNGLR 264

[11] Supra Note 5

[12] Supra Note 6

[13] Supra Note 2