Sevese Junior v Cutmore [2020] PGDC 12; DC4047 (8 October 2020)

DC4047

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 146 of 2020
BETWEEN

SERGEANT ANTHONY SEVESE JUNIOR

Informant

AND

DAVID JOHN CUTMORE
Defendant

Waigani: L Wawun-Kuvi

2020: 11, 25 August, 1, 4, 8, 11 September, 2, 8 October

CRIMINAL LAW-PRACTICE AND PROCEDURE-Information-Variance between words used and section which charge created-words to prevail- Customs Act (Chp 101), s 150 & s 151 (2) (a) and section 30 District Courts Act (Chapter 40)- Essential element of offence not disclosed in statement of offence.

CRIMINAL LAW- PRACTICE AND PROCEDURE -requirement to identify informant and specify authority to lay charges- authority by police to prosecute under Customs Act (Chapter 101)

CRIMINAL LAW-PRACTICE AND PROCEDURE- power to prosecute under Customs Act- Whether there was power to delegate to persons outside of the Papua New Guinea Customs service- Customs Act (Ch 101), s 20 (3) & s 166 (ab).

Cases Cited
State v Paraka (2020) N8229
Wartoto v The State (2015) SC144
Wama v Palme [2012] PGNC 85; N4714 (22 May 2012)
Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3112
Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20
Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001)
William Moses v. Otto Benal Magiten (01/12/00) N2023
Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022
Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PGNC 20; N1702
ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577
State v Tulong [1994] PGNC 165; [1995] PNGLR 329
Koai Keke V Papua New Guinea Colour Laboratories Pty Limited (1992) NI056
The State v Esorom Burege (No 1) [1992] PNGLR 481
The State v Gene [1991] PNGLR 33
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
John Worofang v Patrick Wallace [1984] PNGLR 144
The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43
Buka v Lenny [1978] P.N.G.L.R 510
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR
Asia v Eko (1972) No708

Overseas Cases
Bell v MIM Ltd & Ors [2012] QMC 28
Director of Public Prosecutions v Peter Ionnis Kypri [2011] VSCA 257

Constitutional Laws
Constitution of the Independent State of Papua New Guinea

Legislations
Arrest Act (Chapter 339) consolidated to number 17 of 2015
Criminal Code Act (Chapter 262) consolidated to number 34 of 2016
Customs Act (Chapter 101) consolidated to number 65 of 2015
Customs (2007 Budget Amendment) Act 2006
Dangerous Drugs Act (Chapter 228)
District Court Act (Chapter 40) consolidated to number 8 of 2000
Interpretation Act (Chapter 2) consolidated to number 52 of 2015
Papua New Guinea Customs Service Act 2014 (No 29 of 2014)
Public Prosecutor (Office and Functions) Act (Chapter 338)

References
N.K.F O’neill and R.N Desailly ,The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982

Counsel

Inspector Binuali Boas for the Police

Ms Agnes Peter for the Applicant

8 October 2020

RULING

L Wawun-Kuvi, Magistrate:

JURISDICTION OF THE COURT GENERALLY

1. This is an application by the Defendant challenging the authority of the police to prosecute under the Customs Act (Ch 101).
2. The Application is general and merely copies and pastes relevant sections of the customs laws and concludes that there is no power of delegation to police. There is no citation of relevant case laws or whether the District Court has jurisdiction to determine such an application.
3. As a Magistrate, I derive my powers from the District Court Act 1963 and from any other law that expressly gives me powers.^[1]
4. It is well established that the Magistrates Courts or District Courts are created by statue and are therefore bound by the laws that govern them. To act outside of any powers conferred by law renders any decision or order null and void.^[2]
5. The defendant has been charged for an offence that arises out of Central Province. This matter is properly before the Central Province District Court. In fact, the defendant’s other charge under the Pandemic Act 2020 was already transferred.
6. This is a preliminary application by the Defendant. It has been filed before Principal Magistrate Dessie Magaru. Principal Magistrate Maguru became ill during the course of the mentions of this matter and then subsequently left for District Court circuit. There is nothing that prevents this Court to determine preliminary applications^[3].
7. Furthermore, the defendant has been charged for an offence that arises out of Central Province. In fact his other matter under the Pandemic Act 2020 was already transferred to me to determine.
8. Other than the geographically jurisdiction and change of Magistrates, certain Acts of Parliament prescribed for the category of magistrates that are empowered to determine a matter. Examples of which can be found under section 20 of the District Court Act 1963 and section 420 of the Criminal Code Act (Chapter 262) as it relates to what is termed as schedule 2 offences. And s 57 of the Fisheries Management Act 1998. These Acts expressly provide that only a Grade 5 Magistrate shall determine the proceedings.
9. No such provision exists under the Customs Act (Chapter 101) or the Papua New Guinea Customs Service Act 2014. Both customs laws mention only the District Court and not a specific designation of Magistrate. As it stands any District Court Magistrate may determine offences under the Customs Act and related customs laws.
10. I therefore have jurisdiction to proceed with this matter as a Grade 4 Magistrate of the District Court.

THE CHARGE

11. The defendant is charged as follows:

Did without reasonable excuse, convey on board an aircraft Cessna 402C twin engine craft smuggled goods namely 611kg of cocaine bound for Australia, thereby contravening section 151(2)(a) of the Customs Act (Chapter 101).

12. The law is clear that the statement of offence is created by the words of the Act.^[4]
13. During submission, I had enquired with the prosecutor whether the charge was smuggling in general or smuggling of Narcotics. The prosecutor had made it clear that the charge related to Narcotics. Hence, the charge under section 151 of the Customs Act.
14. There are three different issues relating to this charge:
    1. the charge or statement of offence contains the word ‘convey’ which is not found under s 151 of the Act;
    2. the charge or statement of offence contains the words ‘smuggled goods’ which is also not contain in section 151 of the Act; and
    3. Cocaine is not a narcotic drug within the definition of the Customs Act.
15. In relation to the first and second issues, the words ‘convey’ and “smuggled goods’ are found under the offence created under s150 namely use of conveyance for smuggling. Whist the present charge provision is for having in possession prohibited imports whilst on board an aircraft.
16. In the Queensland case of, Bell v MIM Ltd & Ors^[5] , Callaghan CJ followed Tate JA in Director of Public Prosecutions v Peter Ionnis Kypri^[6] and held that no prejudice existed and an amendment was permitted where:
    1. The criminal conduct with which the defendant has been charged is clear; or
    2. The details of the charge although defective are enough to disclose the charge of the offence; or
    3. The charge contains a mistaken reference to one section rather than a different section but the wording or the statement of the offence is clear what the offence is.
17. The second principal is relevant in the present case, as on the face of it one may assume that there is a variance between the charge provision and the words of the Act. However, it is clear that although the statement of the offence has been poorly drafted, it enough to disclose that the charge is one of having in possession prohibited imports namely Narcotic drugs whilst on board an aircraft.
18. There is no significant difference in the words ‘smuggled goods’ and ‘prohibited goods’. It appears that they are used interchangeably in the Act. There is no definition specifically of smuggled goods or prohibited goods under the 1951 and the 2014 Acts. Smuggling is defined as “any unlawful importation, introduction or exportation or attempted unlawful importation, introduction or exportation of goods subject to duties or any goods the importation or export of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament”^[7].
19. The defects in relation to issues 1 and 2 of the charge or information are not fatal as s 32 of the District Court Act expressly provides that no objection shall be taken or allowed to amendment to an information if it appears to the Court that there is a defect therein in substance or form.
20. As to the final issue, relating to police specifically electing to charge that cocaine is a narcotic drug, s 1 of the Customs Act specifically provides that narcotic drug is “any goods consisting of, or of a mixture containing, bufotenine, dimethyltryptamine, lysergide, mescaline, psilocin or psilocybin, or any goods declared under Section 2 to be narcotic drugs for the purposes of” the Act.
21. Cocaine is therefore not a narcotic drug for the purposes of the Customs Act.
22. That is not to say that it is not a prohibited good. It is because section 1 of the Customs Act makes it clear that anything which his prohibited under other laws are also prohibited under the Customs Act. Cocaine in the amounts exceeding 0.1% is prohibited under the Dangerous Drugs Act (Chapter 228).^[8]
23. However the police have specifically chosen to charge that the defendant was in possession of a narcotic drug namely Cocaine.
24. Narcotic drug is an essential element of the offence because it attracts a specific penalty. When an information does not contain all the elements of the offence as stipulated by the section than it is defective. No conviction could ever occur if this matter went to trial because an essential element of the offence would not be established.
25. Whilst amendments are permissible under s 32 it is not permissible for an amendment to create a new offence.
26. This is therefore a fatal defect.

IS THIS MATTER A COMMITTAL OR A MATTER TO BE TRIED SUMMARILY?

27. A further issue that requires addressing prior to the determination of the application is whether the charge is to be prosecuted summarily or proceed by committal?
28. Cannings J in Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3112 at paragraph 129 and 130 sufficiently address this when he says:

“130. Subject to the exceptions specifically created by the Criminal Code, prosecution of an indictable offence must, because of the nature of the offence, be preceded by committal proceedings in the District Court. It is the nature and categorisation of the offence that determines whether it must be tried summarily or by indictment (ie subject to committal proceedings) or whether there is a discretion. In most cases the Public Prosecutor has no discretion. He cannot, for example, decide to summarily prosecute a person for murder. It is an indictable offence. The law does not allow it to be tried summarily in any court. The prosecution must be by indictment. There must be a committal proceeding in the District Court. If the District Court refuses to commit, the Public Prosecutor can indict under Section 526 of the Criminal Code. But the requirement for a committal proceeding cannot be avoided.........

.......the distinction between indictable and summary offences is drawn by Sections 21 and 22 of the Interpretation Act. If an offence is punishable by imprisonment for a term exceeding 12 months, it is an indictable offence. Any offence that is not an indictable offence is punishable on summary conviction.

133. It is necessary to look at the nature of an offence – more particularly its penalty provision – to determine whether it is an indictable offence (tried by an indictment, following committal proceedings) or a summary offence (tried summarily). The prosecuting authority’s decision whether to prosecute by indictment or summarily is driven by the categorisation of the offence, which is determined by operation of law. An indictable offence can only be tried summarily, if the law expressly provides for it.

29. This statement by Cannings J was confirmed, three months later in the Supreme Court case of Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862. In discussing section 21 and 22 of the Interpretation Act^[9], it held that Indictable offences must be preceded by a committal proceeding.
30. In the case of this defendant, he has been charged for possession whilst on board an aircraft of prohibited goods namely narcotics; the penalty for which is found under section 160 of the Customs Act (Chapter 101). The maximum penalty under s 160 (1) (2) is ten years.
31. Even if the charge was smuggling, it would still be an indictable offence as the penalty under section 149 is also ten years.
32. Therefore the charge for which the defendant is presently charge with is an indictable offence and must be precede by a committal hearing.

CAN THE MATTER STILL PROCEED SUMMARILY EVEN THOUGH THE CHARGE IS AN INDICTABLE OFFENCE?

33. Yes.
34. Section 160 (5) (a) provides specifically that where the matter is brought before a District Court, the Court may commit him for trial or with his consent determine the matter.
35. The phase with the consent of the defendant is quite inconsistent with the scheme of our laws in particular to the Constitutional powers of the Public Prosecutor. As Cannings J stated in Kamit v Aus-PNG Research & Resources Impex Ltd, an acceptance that the Governor of the Central had the powers to elect the mode of proceedings would lead to “unusual result”.
36. In this case it would mean that the defendant has power that is normally enjoyed by the Public Prosecutor.
37. As his Honour stated “The court should be slow to sanction such an anomaly. Electing to proceed either summarily or on indictment is a special power vested only in the Public Prosecutor.
38. The general rule in statutory interpretation is that where two laws conflict, the latter is taken to impliedly repeal the former. In this case it would be said that the Public Prosecutor’s (Office and Functions) Act 1997 being the latter repeals the requirement for the Defendant to give consent under section 160 (5) (a) of the Customs Act (Chapter 101) for summary prosecution.
39. However, this is not a matter that I have powers to determine. It is left to the Public Prosecutor to challenge in the higher Courts. Presently, as creatures of statute it appears that as Magistrates we require the consent of the Defendant to proceed summarily in a case that involves the possession, dealing, importation and exportation of Narcotics substances prohibited under the Customs Act.
40. At the end, the requirement under section 160 (5) (a) is not mandatory as the decision still vests on the Magistrate as to the manner of proceedings. That discretion is of course based on law. The law as stated above is clear that an indictable matter as is the charge against the defendant must proceed by committal.

DO I HAVE JURISDICTION TO DETERMINE THE APPLICATION RELATING TO PROCEDURAL IRREGULARITY OR DEFECT?

41. Yes.
42. The Application by the Defendant through Ms Peter as I can gather from the submissions is twofold, (1) the Chief Commissioner of Customs does not have the power to delegate prosecution powers under the various Customs laws and (2) the police cannot prosecute on behalf of the Customs Service
43. The Application does not address the issue of whether this Court has jurisdiction to determine matters of procedural irregularity and defect.
44. As I had stated District Courts are creatures of statue. Before proceeding to making an application, counsels must always identify the relevant law or laws that confers jurisdiction.
45. In the present case, the statement by Brunton, J in The State v Gene [1991] PNGLR 33, resonates true for informations although it was made in regard to indictments, when he said :

“In my view, it is improper for this Court to close its eyes to defect, to say well, defence counsel did not raise it, and we ignore it, on Appeal, the Supreme Court may well say no substantial miscarriage of Justice. An Accused is entitled to the full protection of the law (Constitution, s 37 (1), and that includes the proper application of the rules of criminal procedure and practice.”

46. In the present matter, the Supreme Court in Wartoto v The State (2015) SC144 and recently in State v Paraka (2020) N8229 empowers the District Court to deal with issues of defect and procedural irregularity when it arises before it.
47. Sakora J and Kandakasi J as he was then stated at paragraph 41:

“When an information is presented, the District Court has the power to deal with any issue that concerns both the form and substance of the information presented before it. If for example, an information is defective for whatever reason, this can be raised and dealt with by the District Court. If it can be corrected it could be done by way of an amendment to the information. But if it is so serious that no amendment could fix the problem, the information can be struck out. This would apply to both indictable and summary offences. It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.”

48. I therefore have jurisdiction to determine issues of defect and irregularity both at the Investigation stage and District Court stage.
49. I will now proceed to determine the defendant’s application on two fronts (1) the authority to lay the information (2) the appearance in Court by Police Prosecution.

THE POWER OF ARREST, CHARGE AND PROSECUTION UNDER THE CUSTOMS ACT (CHAPTER 101) AND OTHER RELATED LAWS

50. As I have already said at the outset, District Courts are creatures of statute and can only act within the specific laws that confer it power. As was clearly stated by Kirriwom J in Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20 at page 2117:
51. “The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute”.
52. This must always be in the minds of Magistrates as we deal with matters. I now proceed to the heart of the Application.

Can the Chief Commissioner of Customs delegate his powers to persons outside of the Papua New Guinea Customs Service?

53. No.
54. The letter of delegation by the Chief Commission of Customs dated 5 August 2020 makes reference to section 20 (3) of the Papua New Guinea Customs Service Act 2014 as the provision conferring such a power.
55. Section 20 (3) in fact is not the delegation provision. The delegation provision is found under section 22 of the 2014 Act.
56. The only reference to delegation under section 20(3) is found under paragraph (c).
57. Both section 20 (3) (c) and section 22 of the 2014 Act, provide that the Chief Commissioner can delegate to appointed officers of the Customs Service only.

Who has the authority to arrest and lay charges under the Customs Act and related laws?

58. Only officers of the Papua New Guinea Customs Service.
59. The Prosecution seeks to rely on section 137 and 138 of the Customs Act (Chapter 101) in conjunction with section 28 of the District Court Act 1963. And further on s 2 and 3 of the Arrest Act and section 197 (2) of the Constitution.
60. Section 137 relates to detention and search and is not relevant for the present purposes.
61. Section 138 provides for Arrest by an officer who believes that a person is committing or has committed an offence against any custom related law.
62. I do not where the Prosecutor has obtained his provisions of section 138 of the Customs Act (Chapter 101) but it is not the correct wording of section 138. Section 138 only confers powers of arrest to an officer NOT a member of the Police Force.
63. Section 1 of the Customs Act (Chapter 101) defines officer as “includes all persons employed in the service of the Customs, and any officer of the Public Service appointed under Section 4 to be an officer for the purpose”.
64. Section 1 also provides the definition of authorised officer to mean ....”an officer of Customs authorised in writing by the Commissioner of Customs to exercise the powers or perform the functions of an office under the Act.”
65. Section 4 relates to the appointment of persons in the Public Service by the Minister concerned.
66. Section 2 of the 2014 Act defines officer as “a member of the staff of the Papua New Guinea Customs Service, including any casual or temporary staff, persons on secondment or attachment, or person under any exchange program”.
67. There no power of arrest conferred to a member of the police under both the Customs Act (Chapter 101) and the Papua New Guinea Customs Services Act 2014.
68. As to the reliance on the Arrest Act (Chapter 339), the Arrest Act is not an act specifically for Police. Section 2 of the Act provides that the Arrest is to be used for the process of Arrest under the Act itself and under any other Act [Emphasis mine]. Simply put, if any person is authorised to arrest under the Arrest Act or any other law, they are to be governed by the process of arrest under the Arrest Act.
69. The only two Acts which the Arrest Act is not applicable is the Civil Aviation Act 2000 and Migration Act (Chapter 16).^[10]
70. Persons empowered to do arrest under the Arrest Act are defined under section 1 as authorised persons. They are persons who are empowered to make an arrest under the Arrest Act or any other law or by a warrant.
71. Section 23 recognises that there are powers of arrest conferred by other laws. It specifically provides that where there are other laws that provide for arrest, they are in addition to and do not derogate from the Arrest Act.
72. Section 14 as such provides the process of arrest. It does not say where a policeman makes arrest but rather it says where an authorised person.
73. All this provisions under the Arrest Act show that an officer of Customs is empowered to do arrest both under the Customs Act and the Arrest Act. As said under s 23 the Arrest Act it is in addition to. Therefore upon arrest under section 138 of the Customs Act (Chapter 101) by the customs officer who is the authorised person, the customs officer must follow the process under section 14 of the Arrest Act.
74. As to the prosecutors contention that section 197 (2) of the Constitution provides for exclusive powers to lay, prosecute and withdraw, the learned prosecutor has failed to consider the first line of the provision which states “insofar as it is the function”. Section 197(2) does not confer exclusive powers of laying, prosecuting or withdrawing charges to police. It is merely stating that where it is the powers of police to do so they are not subject to the control or direction of anyone outside of the police force.
75. It is clear from Acts of Parliament such as Fisheries Management Act, Bank of Papua New Guinea, Internal Revenue Commission and the present Customs Act amongst others that specific legislation provides for bodies other than police to lay, prosecute and withdraw charges, see The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43 on discussion of s 197(2) of the Constitution.
76. The case of Kamit v Aus-PNG, reaffirms the position further that the originating process for a criminal prosecution must be signed and presented by persons who are lawfully authorised to do so.
77. Cannings J in Kamit v Aus-PNG referred to the case of The State v Esorom Burege (No 1) [1992] PNGLR 481 by Jalina J. In Esorom Burege the Court held that the law must confer power to a person who seeks to initiate criminal proceedings. In Esorom Burege it was held that Criminal Code expressly provides that only the Public Prosecutor can sign an ex-officio indictment, a state prosecutor does not possess that power.
78. Likewise, in Kamit v Aus-PNG, where a private lawyer engaged by the Bank signed the information, it was held that he did not have the authority to do so because it was not expressly provided for under law.
79. As to the contention that Section 28 of the District Court Act expressly confers powers to police to lay charges under the Customs Act, I find that it does not. The section prescribes for the category of persons who are permitted to lay an information in the District Court.
80. They are the Complainant, his legal representative or by an authorised person. Complainant has the same meaning as Informant.^[11]
81. In Buka v Lenny [1978] P.N.G.L.R 510, the Court stated that:

“It is a well-established general rule of law that any person may take proceedings to prosecute a person alleged to be guilty of a criminal offence. However, that right depends upon the intention of the legislature as expressed in the statute creating the offence.”

In order to prevent the application of the general rule, it must be shown that the statute in plain terms prevents anyone (except certain specified persons) from prosecuting for such an offence.”

82. In that case, the defendant was acquitted on appeal as it was held that the Magistrate had no jurisdiction because the person who laid the information was not a person defined by the law.
83. When an information is laid by someone who has no legal authority, the information cannot be cured by substituting the name of the person who does have authority. This was held by Prentice J in Asia v Eko (1972) No708.
84. In Asia v Eko the police officer laid the charge on the information. The Act provide that only the offended spouse or a near relative could lay the charge. The information showed on the face of it that an attempt was made to strike out the name of the police officer and replace it with the name of the offended spouse.
85. Prentice J held the view that it was not allowed by law, and that no power of amendment granted to a Magistrate could make the information lawfully laid.
86. Therefore Sergeant Anthony Sevese Junior does not have the legal authority to lay the information under the Customs Act or any related customs laws. The sole legal authority rests with the Chief Commissioner of Customs or an officer of the Papua New Guinea Customs Service.

Does the Papua New Guinea Customs Service or the Chief Commissioner of Customs have power to prosecute under the customs laws?

87. Yes.
88. Section 166 (ab) of the Customs Act (Chapter 101) Act confers powers for the prosecution of any offence under the Act or any other custom related law.
89. This amendment is not consolidated into the 1951 Act within the Paclii online website. It is found in the sessional legislation within the law that paved way for the amendment which is the Customs (2007 Budget Amendment) Act 2006.^[12]
90. Whilst in PNGINLAW it has been consolidated.

Do the police or the police prosecutors have authority to prosecute or make appearance in a customs case?

91. No.
92. The Supreme Court in The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor provides that there are other bodies that do prosecution other than the police. Pratt J with agreement from the other members of the Supreme Court held that:

........ “What s. 197(2) implies, quite apart from the common law position, is that the police will enforce the law not only by making arrests and bringing accused persons before the court as required under the law, but will also prosecute the matter so far as it is their function to do so, with all due speed.

There are certain Acts under which the prosecution of offences would not normally be a part of the functions of the police force. For example the Customs Act, the Health Acts and the Companies Acts give the prosecutorial function to certain other officers of government and are not police matters. [Emphasis mine]

93. Whilst police have the powers to prosecute, that power is also conferred by the law. They fall under section 59 of the District Court Act as authorised persons.
94. Section 59 (2) allows for a police officer to appear for the informant. This is not mandatory but discretionary. The discretion is permissible where authority to appear is conferred by law.
95. In Koai Keke V Papua New Guinea Colour Laboratories Pty Limited (1992) N1056, the General Secretary appeared for the complainant and prosecuted an information laid in the District Court. On appeal the National Court held that in Criminal prosecutions under the Industrial Relations Act either the complainant had to appear in person or he needed the professional expertise of a qualified lawyer who is conversant with practice and procedure of the court and the code of ethics and the duties and responsibilities to the client and to the court.
96. In this case, the law expressly provides that the Complainant is the Papua New Guinea Customs Services. The Act does not allow for the authority to be conferred or anyone else other than officers appointed by the Chief Commissioner of Customs.
97. The prosecution must be done by an authorised officer of the Papua New Guinea Customs Service.

IS PEMISSION OF THE PUBLIC PROSECUTOR REQUIRED?

98. In practice, yes.
99. The Constitution under ss 176 and 177 and s 4 of the Public Prosecutors (Office and Functions Act 1977 confers exclusive criminal powers to the Public Prosecutor.
100. The Public Prosecutor is the principal legal advisor to the State and all its instrumentalities. He is the person to provide advice to the Head of State, the Minister for Justice, the State Solicitor and the Law Reform Commission. He is also responsible for providing counsel in the National Court and Supreme Court for criminal matters, for any other matters that the State has an interest in, other than criminal matters and in committal matters.
101. There is nothing in the customs Act or related Acts that provides for the Commissioner’s criminal prosecution powers being subject to the consent of the Public Prosecution. However as stated in Kamit v Aus-PNG Research & Resources Impex Ltd in discussing the approaches taken in the cases involving prosecution by other statutory bodies^[13], Canning J said “whatever procedure is adopted, the constitutional authority of the Public Prosecutor to control and supervise the prosecution function of the State, must be preserved.”
102. And the only way that the constitutional authority of the Public Prosecutor can be preserved is where he considers each case on its own merits and expressly gives his consent to commence prosecution.

DID THE PUBLIC PROSECUTOR GRANT PERMISSION IN THIS CASE?

103. No.
104. There is no instrument of consent signed by the Public Prosecutor.

IS THE INFORMATION DEFECTIVE?

105. Yes.
106. The information is defective because:
     1. The information does not disclose an element of the offence being narcotic drug.
     2. The informant had not authority to lay the information.
107. These defects cannot be fixed by amendment.

ARE THERE PROCEDURAL IRREGULARITIES?

108. Yes.
109. The procedural irregularities are:
     1. The Police Prosecution do not have authority to prosecute; and
     2. The Public Prosecutor did not give his consent
110. These are not fatal irregularities and can simply be cured by an adjournment resulting in the relevant authorized persons appearing with the consent the of the Public Prosecutor.

WHAT IS THE CONSEQUENCE?

111. The analogy in this case can be drawn from cases where there is an express requirement in law and that requirement has not been met.
112. In the State v Tulong [1994] PGNC 165; [1995] PNGLR 329, where the defendant was arrested without a warrant when it was a mandatory requirement under the Criminal Code, Justice Doherty held that it is the duty of the court at committal to ensure that a person is arrested in accordance with the law. She stated that “the District Court committal proceedings are not automatic. It is incumbent on a Magistrate to check that the law has been complied with and not to rubber stamp every information before it.
113. It was held that there was an obligation of the District Court to discharge the defendant as he was not properly before the Court. The discharge of course meant that the defendant would still be arrested in accordance with correct process and be brought again before the Committal Court.
114. As Justice Doherty said “the Courts first duty is to the Constitution and to uphold the Constitution, and the Constitution makes it clear that a person can only be arrested in accordance with the law and held and deprived of their liberty in accordance with the law. That law was not complied with in this case and I am therefore obliged to find that the defendant is not properly before the Court...”
115. In applying that statement, the information is therefore struck out for defect and the defendant is discharged accordingly.
116. Because he has pending cases, he is remanded in custody until those matters are determined.

Lawyer for the Informant, Police Prosecution

Lawyer for John David Cutmore, Office of The Public Solicitor

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^[1] S 5 District Court Act 1963

^[2] Wama v Palme [2012] PGNC 85; N4714 (22 May 2012); Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001), William Moses v. Otto Benal Magiten (01/12/00) N2023; Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022; ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349.
^[3] See chapter 1.20 of N.K.F O’neill and R.N Desailly, in The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982
^[4] Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PGNC 20; N1702, Worofang v Patrick Wallace [1984] PNGLR 144
^[5] [2012] QMC 28. Note: This decision was appealed to the Industrial Court of Queensland which upheld the dismissal of the complaints see Bell v Hendry & Ors [2014] ICQ 018
^[6] [2011] VSCA 257
^[7] Section 1 Customs Act (Chapter 101)
^[8] See section 1 and section 4 (2) & (3) of the Dangerous Drugs Act (Chapter 228)
^[9] See Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862 at paragraph 29-32
^[10] Section 2(2) and 2(3) of the Arrest Act (Ch 339)
^[11] Section 1 District Court Act
^[12] See s 32 of the Customs (2007 Budget Amendment) Act 2006
^[13] Wilson Kamit v Michael Dowse Collins MP No 46 of 2002, 21.02.02, unreported, Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim SCRA No 13 of 1997, 29.10.97, unreported and BPNG v Eddie Orubu Mai, OS No 224 of 2004, 12.05.05 unreported. Note: The circumstances in Michael Collins and Palpal Seoul are found in Cannings J decision in Kamit v Aus-PNG. Eddie Oruba Mai was appealed and the Supreme Court unanimously upheld Mogish, J’s decision in Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862