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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]
COM 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158 & 159 of 2018
BETWEEN
Police
Informant
AND
Philip Siaguru
Defendant
Kokopo: SLavutul PM
2018: 23rd November, 04th, 18th December.
2019: 15th January, 14th February, 15th March, 31st May, 04th June.
CRIMINAL PROCEDURE AND PRACTICE- Committal Process Section 94B, 94C, 95 and 100 of the District Courts Act – Ruling on Sufficiency of Evidence on Twelve (12) Counts of Abuse of Office Contravening Section 92 (1) of the Criminal Code Act Chapter 262 of Papua New Guinea respectively. Defence raises abuse of process by police in recharging the defendant for the same 12 counts after defendant was discharged by the Committal Court from all 12 counts after police failed to serve and tender HandUp Briefs in court.
Cases Cited
1. The State v Paul Kundi Rape [1976] PNGLR 96
2. The State v Roka Pep [1983] PNGLR 19.
3. Backley Yarume –v- Sylvester Euga [1996] PGNC 24
4. The State v John Bill White (No.1) [1996] PNGLR 262,
5. The State v Melchior Ibor [2005] PGNC 39 N2896
6. The State v John Kule [2009] PGNC 32 N3619.
7. Liri v State [2006] PGNC 120 N3110 [17/11/06].
8. Regina v McEachern [1967-68] PNGLR 48;
9. State vs Tom Watinga – [1994] PGNC 35 N1295
10. State vs Wartoto [2015] PGSC 1 SC1411
References
District Court Act
Criminal Code Chapter 262
Counsel
Mr. Patrick Mandrei, for the Informant
Mr. Ralph Augustine Saulep, for the Defendant
RULING ON SUFFICIENCY OF EVIDENCE
04th June 2019
SLavutul: The defendant was charged under the Criminal Code Act with the following counts;
Facts
13. Defendant Professor Philip Siaguru was formerly employed in the Public Service as the Vice Chancellor of the Papua New Guinea
University of Natural Resources and Environment, Vudal, Gazelle District, East New Britain Province from 2005 to 2015. During his
term as Vice Chancellor he was also the Chairman of the Papua New Guinea University of Natural Resources and Environment Tenders
Board.
14. The defendant is allegedly charged with 12 counts of Abuse of Office under Section 92 (1) of the Criminal Code Act, of Papua New
Guinea for his role as Chairman of PNGUNRE Tenders Board in the awarding of contracts which are alleged to have in direct breach
of the provisions of the Public Finance Management Act, 1995 (PFMA) and awarded contracts beyond their legal limit of K500, 000.00.
These contracts were awarded to AP Engineering Limited, Manak Consultants & Project Managers, Handa Holdings Propriety Limited,
Kemkai Investment Limited and Profitable Properties Limited totalling K41, 890, 000. 00.
The functions of the Committal Court
15. I wish to state from the outset, the Committal Court has a quasi- judicial function and that is to examine the Police Hand up Briefs so as to determine whether the evidence contained therein is sufficient to warrant commitment of a defendant(s) to stand trial in the National Court.
16. The examination referred to herein is not equivalent to considering evidence as in a “No case to answer submission” as in the cases of The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Roika Pep [1983] PNGLR 19.
17. In the matter of Backley Yarume –v- Sylvester Euga, Paul Akuram AJ, as he was then; sets out the functions of the committal court in the following;
1. The Committal hearing is only an inquiry and whether the findings of a magistrate is against the weight of the evidence is not an important aspect. That is a matter to be decided in the trial proper at the National Court.
2. The purpose of Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence are present before he can commit the accused. Sections 94B, 94C, 95 and 100 of the District Court’s Act, Ch 40 to be read together.
3. Decision to indict by the Public Prosecutor after Committal hearing should not be interfered with by the Courts. That is the duty
and function of the Public Prosecutor”
18. It is trite law in criminal cases that all elements of a charge must be met by the evidence adduced by prosecution as observed and
affirmed in the following matters; The State v John Bill White (No.1) [1996] PNGLR 262, The State v Melchior Ibor (2005) N2896 and The State v John Kule (2009) N3619.
19. The process here is much to do with ensuring that the evidence contained in the hand-up brief is sufficient to at least touch on each of the elements of the offence (s) charged as pleaded in the Information (s) laid against a defendant (s). And moreover, to ensure that the requirements set out under Part VI of the District Courts Act is met.
20.The duty of the court here (which parties are obliged to assist the court in) is to ascertain whether the evidence/statements/ materials contained in the police hand-up brief filed herein has met all of the elements of the offence (s) or if the mandatory requirements under Section 94 of the District Courts Act has been met.
21. In addition, Section 95 of the District Courts Act provides the function of the court and excludes the determination of innocence or guilt and the committal process does not deny the defendant from his constitutional rights as in Liri v State (2006), N3110 [17/11/06]. In which His Honour, Lay J as he was then held that;
“Nothing is finally decided by the committal proceedings. The applicant’s constitutional rights will be protected on trial from any deficiency in the evidence”
22. Moreover, the standard of proof in a committal proceeding is one that the court has only to form a bona fide opinion as the view in the case of Regina v McEachern (1967-68) PNGLR 48; which stresses;
“To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial...The court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.”
23. The measure of bona fide standard is less than the trial standard which is a standard of proof beyond reasonable doubt.
Issues
24. Now for our purposes in the matter before me, I am required to resolve the following issues;
(1). whether police had abuse the process by re-arresting and charging of the Defendant with the 12 charges after the defendant was discharged from all the Informations by the Committal Court on the 23rd of January 2019 due to failure by prosecution to tender the copies of Police Hand Up Briefs.
(2). whether there is sufficient evidence which would support all the elements of the 12 counts the defendant is charged with and would it warrant the court to commit the Defendant to the National Court for trial.
25. In answering the 01st issue on, whether police had abuse the process by re-arresting and charging the Defendant with the current 12 charges after the defendant was discharged from all the Informations by the Committal Court on the 23rd of January 2018 due for failure by prosecution to serve to the Defendant and tender the copies of Police Hand Up Briefs. I wish to give a background on what transpired between the 19th of October 2017 and 23rd of January 2018.
26. As per the record the Defendant was previously arrested and charged on the 09th October 2017 with 12 counts of abuse of office under Section 92 (1) of the Criminal Code Act and first appeared for mention on the 19th of October 2017. However due to failure by the Police Investigator to complete and tender files on the last and final adjournment on the 23rd of January 2018; the Defendant was discharged by the Committal Court from all Informations and had his bail monies refunded. The defendant was then re-arrested and charged with the current 12 counts of abuse of office and fresh Informations were laid before the Committal Court on the 23rd of November 2018.
27. I place on record the actual wording of the Committal Court Orders of the 23rd of January 2018 pertaining to the first arrest was that;
“1. Defendant discharged from the Informations
2. Bails refunded.”
28. I wish to highlight here that the Defendant after his first arrest was allowed initial police bail of K2, 000.00 and released from custody. However upon his appearance in the Committal Court his bail was raise by K3, 000. 00 with the following conditions attached to his bail;
(a). That the Defendant is to report to OIC CID between 8. 00am and 4. 00pm
each Wednesday at the Kokopo Police Station.
(b). Defendant not to interfere with State Witnesses.
(c). Defendant not to travel out of ENBP without the Court’s permission.
1. George Bopi’s Statement – main witness at page 21 of the Police HandUp Brief
(1). In what capacity George Bopi make his statement? He was no longer the Deputy Chancellor at the time of the Police Complaint.
(2). George Bopi’s statement post-dates all the witness statements. It is dated the 02nd February 2018. How did the police act, or upon whose information and complaint did the police act, before George Bopi made his statement? (With reference to page 21 paragraph 8 of the HUB).
(3). And if the complainant was not George Bopi, who was it and where was that complaint? It is not in the HUB. The Defendant has every right to know the identity of the actual person that made the complaint.
(4). Where is the Report of Findings of George Bopi’s statement? (See page 21 of the HUB)
33. I am of the view the facts regarding George Bopi’s statements was done and provided by Mr. George Bopi pertaining to the Defendant’s first arrest. The Court does not control and monitor how the police do their investigations or whose statement should be obtain first. Even if the police had obtained statements from George Bopi in February 2018, the Police Investigator or Mr. Bopi himself would in a better position to explain. I am of the view the facts in George Bopi’s statement could be fairly contested should the matter go to trial. I am also mindful of the fact George Bopi was a former Pro Vice Chancellor of PNGUNRE from 2013 to May 2016 and prior to that he was an ordinary council member as claimed in paragraphs 2 and 3 of his statement. I also note after paragraph 5 is an indication of an Annexure worded as “Annexed hereto and marked with the letter “B” is a true copy of the Findings of the Report which was not attached, probably an oversight by the Investigator. There is also an indication by George Bopi in paragraph 4 of his statement that in February of 2015 he was selected by the PNGUNRE Council to chair the Investigation into then Vice Chancellor Professor Philip Siaguru on 10 allegations raised on the floor of Parliament against him. Fellow council members, Mrs. Fiu Igara and Mr. David Tan, were selected to be other members of the Investigation Team.
2. Dismissal of the Information – First Arrest – Court Order 23. 01.18.
2.1. On 23rd January 2018, this Honourable Court dismissed the Informations against the Defendant
2.2. There was no written explanation offered to the Honourable Court
at that time as to:
(a) Why the HUB was not ready;
(b) Contrary to the Court’s own orders to ensure the HUB must be ready
(c) This highly disrespectful
2.3. 10 months later, without fresh information, Police decided to charge
the Defendant with the same offences, all over again
(a) Why did it take so long, given that George Bopi gave his statement on the 02nd of February 2018;
(b) Again, no explanation has been offered to the court
34. I will not elaborate any further on the discharge of the Defendant from all the Informations pertaining to the first arrest as I have discussed it in detail in my opening remarks. I am of the view the Police are at liberty to laid fresh charges as the alleged offences are indictable in nature and without any jurisdictional time limit as is the case in Summary Offences which carry a jurisdictional time limit of 6 months from the date of the commission of an offence.
35. The Defendant relies upon the case of State vs Tom Watinga – N1295 which
was decided by Sawong AJ as he was then in Mendi, Southern Highlands Province. Counsel for the Defendant submitted the Watinga’s case is almost a replica
of what has occurred in the present proceedings against Dr. Siaguru. Counsel submits there is no substantial difference in law. Hence, the Defence humbly submits that
this court follows the National Court decision in Watinga’s case.
36. However, despite counsel’s submission to follow Watinga’s case and Counsel’s persuasive remark in that Watinga’s case is almost a replica of what has occurred in the present proceedings against Dr. Siaguru; I cautioned myself to diligently explore and take a closer look at the merit in the facts surrounding Dr. Siaguru’s case and that of Tom Watinga.
37. In Tom Watinga’s case the Defendant took it upon himself and applied to the District Court after a total of about one year
and 3 months of continuous adjournments that is from the 09th of December 1991 to 23rd of March 1993. Thus in my view it was outright carelessness by the presiding magistrates who took carriage of Watinga’s case.
Defendant Tom Watinga raised and applied under Section 37 of the Constitution to the District Court to be discharged on the basis
that he had not been brought to trial within a reasonable time. Which then resulted in the court upholding his objection and ordered
that the Information be withdrawn and the Defendant discharged. In the Watinga case the National Court honoured and affirmed the
earlier decision of the District Court. I also acknowledge the fact that his Honour Sawong as he then held that;
(1) The National Court of Justice, as the Superior Court of Record has inherent jurisdiction to take steps to prevent any abuse of Court process.
(2) 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 information was previously ordered to be withdrawn by the Court, amounted to an abuse of process
(3) In all the circumstances the laying of subsequent information upon which the accused was committed to stand trial was an abuse of the Court process and the accused should be discharged.
38. In comparison with the matter before me the Defendant was first arrested and charged on the 09th of October 2017 and the Defendant was discharged or released from all the Informations on the 23rd of January, 2018 for failure by Prosecution to tender the Police HandUp Briefs. The court used its discretion to order the discharge of the Defendant. I am of the view the Defendant was discharged from all the Informations when the 3 months was up which was within reasonable time as per Section 37 (3) of the Constitution and as per our current practice and as opposed to that of Watinga’s case.
39. In further comparison to both scenarios I am of the view the Committal Court in Kokopo did managed and accorded Dr. Siaguru a reasonable time of three months prior to discharging him from all the Informations as per his first arrest in line with our current practice. I am of the view Section 37 (1) and (3) were not breached pertaining to his first arrest but was all the time observed by the Committal Court which resulted in his discharge from the Informations on the 23rd of January 2018.
40. On the 23rd of November 2018 Police laid fresh charges and the matter was set down for mention to the 04th December 2018, however due to the non – appearance by the Defendant except for his counsel at that time, Mr Epitta Paisat the matter was reset for the 11th of December 2018. The matter was further extended to 18th of December 2018 to allow for the Defendant to be physically present in court and in order for the fresh charges to be put to him. Upon the return date on the 18th of December 2018, the matter was then adjourned to the 15th of January 2019 a total of 30 days; this adjournment was to allow for Prosecution to tender the Police HandUp Brief. The Court allowed the 30 days adjournment as it was mindful of the fact that sufficient time had been accorded to police pertaining to the first arrest.
41. However due to some misunderstanding between all parties concern including the Court the matter did not return on the 15th of January 2019 until Counsel for the Defendant filed a Notice of Motion seeking the court to have the matters dismissed together with his submission on the 14th of February 2019. Similarly Prosecution then tendered a copy of the Hand Up Briefs which the Court received on the 14th of February, 2019. The court then allowed Counsel to present his submissions. At the conclusion of submissions the matter was then set for ruling to 15th of March 2019, however it was further set to 31st May 2019 due to the non- availability of the presiding magistrate due to work commitment outside of East New Britain Province. On the 31st of May 2019 it was further extended to the 04th of June 2019 due to non – availability of the presiding magistrate. I wish to place on record there are other external unexpected factors that may affect the smooth progress of especially committal cases that the presiding court must take into consideration together with that of the Defendant as in this case.
42. Counsel further submits that the Court considers Section 37 (1) and (3) Constitution.
“Section 37 (1) and (3) of the Constitution states:
“37, Protection of the Law
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(2) ...
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
43. Counsel argued when one applies the facts of Dr. Siaguru’s case, to S.37 of the Constitution, it is readily apparent that the Defendant’s rights have indeed been denied, with no explanation coming from the Arresting Officer, why the original HUB was not ready, resulting in the dismissal of the Informations, why George Bopi’s statement appeared on the 02nd of February 2018; why there was a 10 months gap between the 02nd of February 2018 and the re-arrest in November 2018.
44. Counsel added the Defendant’s reputation has suffered. His liberty has been denied and he is clearly the type of person, whose circumstances are prohibited by Section 37 of the Constitution. Counsel submitted that the Defendant’s rights under Section 37 (1) and (2) of the Constitution have been breached and/or denied.
45. From reading Section 37 (1) and (3) of the Constitution, this provision comes into play after a Defendant is formally charged with an offence. It is places a mandatory requirement on an independent and impartial court to accord the Defendant a fair hearing within a reasonable time. Our issue here is what amounts to reasonable time as stipulated by S. 37 (3) of the Constitution. I cannot find any clear defined time period for the calculation of reasonableness of time. However, the legal definition for reasonable time refers to the amount of time that is fairly required to do whatever is required to be done, conveniently the permitted circumstances. The Court is required to put meaning to reasonableness of time in light of the nature, purpose and circumstances of each case.
46. In the matter before me and in light of the volume of the Police Hand Up Brief tendered before the Court it is fair to say the Police Investigator had a challenging task to compile such a file which in my view it would take time and a lot of effort to put together. I also note from the witnesses’ statements, three (3) out of the total of 15 police witnesses, including the Informant are Port Moresby based, one (1) is Madang based, one (1) is Lae based, six (6) witnesses are Kokopo based and the remaining four (4) are Vudal PNGUNRE based. I am also mindful of the fact such manner of cases as the one before me requires a lot of time and effort to uncover and recover paper trails of evidence and documents and to a certain extent funding. Despite, the fact Prosecution did not assist the Court with any detailed submission in reply to the Defendant’s submission in light of S.37 of the Constitution I am duty bound to arrive at a fair and just ruling.
47. I wish to stress that in committal proceedings the Committal Court is duty bound to observe and add meaning to Section 37 (3) of the Constitution from the date the Defendant’s Information or Informations is laid and registered with the Court and to ensure that reasonable time is accorded to the Defendant. In Dr. Siaguru’s second arrest the Committal Court gave meaning to Section 37 (3) Constitution by allowing an adjournment of 30 days. Which is in my view was reasonable time within the definition of the Section 37 (3) of the Constitution.
48. I am therefore of the view the Defendant’s constitutional rights has been all the time observed by the Committal Court in light of how it dealt with the second arrest as opposed to the unfortunate adjournments and delay in the ruling caused by circumstances beyond the Court’s control.
49. I acknowledge the view in the State vs Wartoto [2015] SC1411 case which the Defendant is also relying on in which, Sakora and Kandakasi JJ at paragraph 45 said:
“It is fair to say the Courts in PNG have been appropriately dealing with all instances of abuse of process that have come before the Courts. Going by the hierarchy of Courts and their respective jurisdictions as provided for under ss. 155 (1) and 172 of the Constitution and based on the experience to date, we are of the view that, any abuse of process at the Police Investigation staged would be appropriately dealt with by the Police. Failing that, the matter could be raised at District Court level at the first instant. The District Court has the necessary powers to deal with abuse or improper use of the Police Investigatory process. The District Court also has the necessary powers to deal with any abuse and or an improper use of its own processes at the first instance.”
“The Court must never be used by individuals for their personal battles. Only genuine claims must be filed and perused. If the claims are not genuine, they should rightly be stayed or dismissed or withdrawn or discontinued”
51. With due respect to the Defendant’s submission for the Court to use its powers to discharge the Defendant for abuse of process, I refused to do so and I will dwell on my earlier view. I do not find any hint of sinister motives in the charges being laid against the Defendant nor any abuse of process by the Police pertaining to the second arrest of the Defendant resulting in this proceeding. The matter of Tom Watinga may be similar to that of Dr. Siaguru but the facts surrounding the respective cases distinctively defers from each other.
51. Finally the Defendant through counsel was given the opportunity to make a submission to addressed the Court on the Insufficiency of Evidence pursuant to Section 94B (2) (b) of the District Courts Act.
52. Counsel submits that the basic considerations, we submit, of a submission of this nature is that, the Court should be satisfied that:
(1). the statements and exhibits in the Police Hand Up Brief contain sufficient evidence;
(2). the evidence discloses the offence the Defendant is charge with;
(3). and the evidence are sufficient enough to put the Defendant on trial for the alleged offence;
53. Whilst Prosecution briefly submits the evidence are in order in the Police HandUp Brief and the elements of the charges are sufficiently established by the evidence contained therein.
54. The Defendant is charged under Section 92 of the Criminal Code Act which states;
(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding
two years.
55. The Defendant is clearly identified in the evidence as Professor Philip Siaguru, former Vice Chancellor and Chairman of the PNGUNRE Tenders Board; he was a former employee of the Public Service at the PNGUNRE Campus at Vudal from 2005 to 2015.
56. I have given careful consideration to both submissions and have perused the respective statements of all witnesses and its contents including all the Exhibits contained therein.
57. I have also given careful consideration to the Defendant’s submission and I am of the view what the Defendant has raised in its totality would appropriately assist him in his defence against all charges before the National Court.
58. I also note the Defendant’s objection to witness George Bopi’s statement and the manner in which the statement was presented without the annexure of an Investigation Report including the dates of presentation. I wish to affirm that Section 95 of the District Court Act provides for the function of the Committal Court and excludes the determination of innocence or guilt and the committal process does not deny the Defendant from his constitutional rights as in the case of Liri v State (2006), N3110 [17/11/06]”. In which His Honor, Lay J as he was then held that;
“Nothing is finally decided by the committal proceeding. The applicant’s constitutional rights will be protected on trial from any deficiency in the evidence”.
59. Moreover, the standard of proof in a committal proceeding is one that the court has only to form a bona fide opinion as the view in the case of Regina v McEachern (1967-68) PNGLR 48; which stresses;
“To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial...The court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.”
Ruling
Court Order
......................
Prosecution appeared for by Sgt Patrick Mandrei of Kokopo Police Station
Defendant appeared for by Mr. Ralph Augustine Saulep of Saulep Lawyers
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