State v Itaki [2021] PGDC 188; DC7044 (23 September 2021)

DC7044

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

COM.NO:.616--618/2021

BETWEEN

The State
[Informant]

AND

Joe Itaki
[Defendant]

Waigani: G Unjo
2021: 23 September

Criminal Law----District Court ---Indictable offence---Charged misappropriation, conspired to defraud and official corruption ---Requirement of Prima facie evidence – noncompliance with the vetting the vetting process—the police administrative requirement had been by passed—confirmed by Deputy Commissioner of not been going through the vetting process—defendant discharged as he is improperly brought before the court.

Appearances

Prosecutor Sergeant Chris Iga

Counsel: Kaiyok of Public Solicitors

Cases Cited
SCR No 2,3 & 5 on the Powers, Functions, Duties and Responsibilities of the Police Commissioner [PNGLR] 2014.

Legislation
Criminal Code Act

Introduction

1. The applicant /defendant is arrested and charged on one count of misappropriation, one count of conspire to defraud and one count of official corruption. He is making an application to have him discharged from the charge as the police information is been improperly brought before the court. The administrative process of vetting the evidence in the execution of the criminal process was not adopted and complied.

Background Facts

2. The defendant is 46 years old from Waeres Village, Wapenamanda, Enga Province. He is the Director General of Youth Development Authority. It is alleged that between August 2019 and the 24^th 2021, whilst in his capacity as the Director General of the National Youth Development Authority, he with the criminal intent abused his authority to defraud the authority and dishonestly applied to himself a sum of K9,719,685.00.
3. Upon complaint the defendant was arrested and charged under sections 383A(1)(a),407(1)(a) and 87(1)(a)(i)(ii) of the Criminal Code Act by the police. The defendant alleges that the complainant is one of the applicants of the position he holds. He is making a false allegation on something that he did not do. The facts disclosed in the complaint does not disclose a reasonable cause of action.
4. On the 14^th April 2021, he wrote to the Police Commissioner for the vetting of evidence to determine the merit of the complaint. On the 30^th April 2021, Assistant Commissioner of Police Hodges A. Etta responded to the defendant’s letter, stating the importance of the vetting of evidence and by passing the vetting process is seen as breaching the established process. On 28^th April 2021, the defendant was arrested and charged on one count of misappropriation, one count of conspire to defraud and one count of official corruption. On the 11^th May 2021, the defendant filed an application before this court, saying the police had not gone through the vetting process and as such the information is defective and this proceeding is improperly before the court.

Issue

5. Whether or not the bypassing the administrative vetting process constitute the police information null and void and the defendant is improperly brought before this court.

Law

6. The facts giving rise to the issue is, whether the police information is improperly before the court, as it had not gone through the vetting process. The Supreme Court reference on the power and duties of the Commissioner of the Police in the matter registered as SCR No 2,3 & 5 on the Powers, Functions, Duties and Responsibilities of the Police Commissioner [PNGLR] 2014 made number of observation and one of which is “whether the commissioner of police has the power to control member of the police without being seen as been motivated by his personal interest of such controls within the force. This call in my view, from the Supreme Court reference must be on merit for the preservation of justice against any improper conducts of the police.
7. The defendant/applicant submits that; he is a Departmental Head of a Statutory Organization. He acquired the position on merit and the complainant who laid a police complaint was an applicant to the same position that he holds. On the false allegations, he was arrested and charged by police. There is malice in the execution of the criminal process and wrote to the Police Commissioner to vet the evidence.
   8. The Assistant Police Commissioner Hodges. A. Etta responded that, there is a need for a vetting of the evidence to ensure that the investigative and arrest power of the police is not abused. It is a regulative measure to ensure credibility and establish the premafacie evidence before the matter is subject to the courts scrutiny. The office of the Police Commissioner had not responded to the letter, as to whether the evidence be going through the vetting process or not. Without going through the vetting committee, the police arrested and charged the defendant.
9. The prosecution submits that the Police Commissioner has no power and control over the police work. The criminal process had already been executed to the committal stage. The defendant been arrested and charged and police files are compiled and served on the defendant. This is a criminal matter and the question of whether exhausting the administrative process is applicable to civil matters. The application is misconceived and the application be dismissed.

Ruling on Evidence

10. Before, I make my determination on the issue, as to whether the police information is improperly before the court or not, it is essentially important that, I distinguish the criminal execution process. There are two processes that governs the committal processes, of which the prosecution is obligated to follow and observe. One of the requirement is that, the prosecutions must ensure that material evidence must be corroborate well to substantiate the charge. This is to assist the court to form an opinion that, the offence the defendant alleged to have committed has the sufficient weight to have him stand the trial. This requires the prosecution to ensure compiling the relevant evidences that relates to each other, to build a story on the offence the defendant alleged to have committed. Without it, would create doubts in the minds of the court, and the matter would be struck on insufficiency of evidence or want of form.
11. The second phase of the requirement is that, the prosecution must comply with the mandatory legal and procedural requirements in the execution of the criminal process. The laws governing and regulating the committal processes must be observed and followed. Some of these requirements are found under Sections 36,37,42 & 45 of the constitution. These provisions are to protect the accused from inhuman treatment and as they are innocent until proven guilty by a competent jurisdiction. The failing to comply with mandatory requirements would render the police information null and void and the defendant would seen to be brought improperly before the court to make the defendant stand the trial.
12. In my view, the administrative process of vetting is the established process within the Police Department. It is an administrative measure to ensure and control evidence within the police to some extent to avoid one being maliciously prosecuted. However, would the failing to comply with the vetting process constitute the police information before court defective, as such is improperly before the court, is the crucial issue that need to determine in consideration of the facts before this court.
13. The administrative law governs the administrative process of an organization including the administration process of vetting the evidence. It is an established process that cannot be bypassed.
14. The defendants letter dated the 14^th April 2021, made a call to vet the evidence, is a call for an administrative action to vet the evidence, the process of which is established within the Police Department. This letter was put to the Commissioner of Police before the defendant was arrested and charged on the 28^th April 2021. The copies were delivered to the Divisional Head of the Police.
15. The letter dated the 30^th April 2021, from the office of the Assistant Commissioner reveals that, there is a vetting committee established within the Police Department and as such is an essential requirement by the tone of the letter. The defendant was waiting for a response from the office of the Police Commissioner, when he got arrested and charged by the police.
16. The police administrative requirement for vetting of evidence is to determine, whether there is merit and weight on what put before the court, to have the accused committed to stand trial. The police officer had not followed the vetting process and it is for this reason the letter was written. However, the defendant is already being arrested and charged on the allegation and files been compiled and served on the defendant and is before the court. Should the information be struck out on the process had not been complied with?
17. The administrative law relates to how established processes be executed. It requires all the administrative processes are complied with. Failing in exhausting the administrative process would nullify the cause of action, whether it be a matter of criminal or civil in nature.
18. The Police Commissioner is yet to make a response to the defendant’s letter. The letter dated the 30^th of April 2021, from the office of the Assistant Commissioner of Police admits that the vetting process is necessary. The committee is established to ensure the investigating and arrest power of the police is not abused for purposes lawful, when it comes to a person with standing in society. It is a regulative measure to ensure credibility before the matter is subject to court scrutiny and determination.
19. Pending response from the office of the Police Commissioner, the police executed the criminal process and arrested and charged the defendant. By the tone of letter written by the 30^th April 2021, the vetting of evidence is an essential requirement. Since the defendant asked for the evidence to be vetted, a response from the office of the Police Commissioner is necessary. The defendant made this request, before he was arrested and charged. The police had bypassed the vetting process and executed the criminal process without even writing to the office of the Police Commissioner on the letter amounts to an abuse of process.
20. If so, is the police commissioner has the power to control and direct the police to withdraw the proceeding, when the defendant had been already arrested and charged and files been compiled served on the defendant. In order to answer this question, I must make reference to the SCR No 2,3 & 5 on the Powers, Functions, Duties and Responsibilities of the Police Commissioner [PNGLR] 2014.In this supreme court reference, it is noted that the Police Commissioner has the power to direct and control the police force or member of the police, unless the police are executing it at the order of the court. Any administrative orders, the Police Commissioner has the power to control and direct the members of the police, in relation to matter subject of scrutiny. The Police Commissioner had not excise its power to make a decision on the defendant’s letter, as to whether the defendants evidence would go through the vetting process. The matter is before the court without going through the vetting process as such is abuse of the process and is improperly before the court and the defendant is discharged from the charge.