Police v Tepend [2018] PGDC 1; Criminal Case 1418 of 2018 (4 April 2018)

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

Case reference number 1418 of 2018

BETWEEN

RESERVE CONSTABLE JASON ALU
Informant

AND

ALLEN TEPEND
Defendant

Boroko: L Wawun-Kuvi

2018: 4 April

CRIMINAL LAW- - Summary Trial-Resisitng Arrest, s 60(1) Summary Offences Act- Statement of Offence does not particularise what constiutes resisting-Whether statement of offence must identify the defendant's conduct? Whether failure to charge on the face of the information amounts to a defect? Whether the Court has jurisdiction?

Overseas Cases Cited

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales (Inspector Childs[2010] HCA 1(3 February 2010)

Legislations
Constitution Of The Independent State Of Papua New Guinea
District Court Act
Summary Offences Act

Counsel

Constable Bernard Kilei, for the Informant

Defendant In Person

4 April 2018

DECISION

[1] L Wawun-Kuvi : Today is Mr Tepend first day in Court following his arrest and detention by Police.
[2] The information that has been laid says that Mr Tepend resisted one Reserve Constable Joe Harry who was acting in the execution of his duty.
[3] Constable Kilei provided verbal particulars of the charge; that Mr Tepend was selling betel nut in a public place. And when Reserve Constable Harry tried to apprehend him he resisted. Constable Kilei could not provide any further particulars as to the nature of the resisting.

Issues

[4] I have identified the issues as follows?

1. Whether the statement of offence must identify Mr Tepend’s conduct?
2. Whether failure to charge amounts to a defect?
3. Whether I have jurisdiction to proceed?

Offence

[5] Section 60 (1) of the Summary Offences Act is in the following terms:

60. OBSTRUCTING, ETC., A MEMBER OF THE POLICE FORCE.

(1) A person who resists, obstructs or hinders a member of the Police Force acting in the execution of his duty, is guilty of an offence.

Ruling

[6] The Constitution and the common law are the starting point for the premise that a person charged with a criminal offence must not only know the charge against him but also what the police say was his criminal conduct, that is, the factual elements of the offence.^[1]
[7] The rationale for particularising is explained in John L Pty Ltd v Attorney-General (NSW)^[2] and restated in the High Court of Australia case of Kirk v Industrial Relations Commission.^[3] Both cases explain that earlier cases found informations to be defective or ‘insufficient in law’ because the Court was not informed of the nature and the way the offence was committed. In recent times as said in Kirk and has been so in the District Courts in Papua New Guinea^[4], the reason for particularising is so that the Courts knows the offence which it is dealing with and for informing the defendant of the charge.
[8] As such the statement of the offence in the present case must state the act or conduct that is said to amount to resisting under section 60 (1).

Whether failure to charge amounts to a defect?

[9] The subsidiary issue then is whether the failure to particularise is fatal to the prosecution case.
[10] Section 30 of the District Court Act does provide that the description of the offence “is sufficient in law”. This however in my view does not dispense with both the Constitutional requirement and the common law requirement that a person must know with reasonable particularity the nature of the charge.
[11] It is not fatal to the prosecution case as Section 31 and 32 of the District Court Act permits the Court to exercise discretion and grant an adjournment for particulars to be obtain and for the information to be amended.
[12] In the present case, the circumstance is different because Constable Kilei does not have the particulars. That is the reason he concedes that the case be struck out.
[13] Even so, had there be such an application for adjournment, it would have been refused as Mr Tepend has been detained by police since 28 March 2018 and was only brought to Court today. To allow an adjournment would have been unfair and prejudicial to the defendant. The prosecution had sufficient time to remedy the information but had not done so for reasons known only to them.
[14] The information is therefore defective.

Whether I have jurisdiction to proceed?

[15] Having said that, I find that I do not have jurisdiction to proceed any further in this matter.
[16] The jurisdiction of this Court follows from the information. The information is defective because it does not contact the offending conduct.

Orders

[17] The information is struck out.
[18] Defendant is discharged.
[19] Defendant is released forthwith.

Lawyer for the Informant Police Prosecution

Defendant In Person

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^[1] Section 37(4) (b) Constitution. For the common law requirement see See Kirk v Industrial Relations Commission of New South Wales Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1(3 February 2010) referring to Johnson v Miller (1937)59 CLR 467 at 489 per Dixon J: [1937]HCA 77

^[2] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519.

^[3] Kirk v Industrial Relations Commission of New South Wales Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1(3 February 2010) at paragraph 26
^[4] Magistrates Manual of Papua New Guinea, Chapter 8