Gitua v Weleilakeba [2022] PGDC 72; DC8075 (9 May 2022)

DC8075

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 150 OF 2022
CB NO 205 OF 2022

BETWEEN:

TIMOTHY GITUA
[Informant]

AND:

SITIVENI WELEILAKEBA
[Defendants]

Waigani: Paul Puri Nii

9^th May 2022

COMMITTAL PROCEEDINGS: Pending Substantive hearing-File served-issue on service.

PRACTISE AND PROCEDURE:

Breach of serves protocols and mode

PNG Cases cited:

Nil

Overseas cases cited:

NIL

REFERENCE

Legislation

Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Chris Iga For the Informant
Wariniki Lawyers: Mr Wariniki For the Defendant

CONCLUSION ON NOTICE OF MOTION

9^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. Pending the substantive hearing on police evidence, defendant has filed an application through a Notice of Motion dated 5^th May 2022 for the charges against the defendant be struck out for want to proper service on the defendant

CHARGES

1. The Accused is charged with Dishonestly Applying under Section 383A 1(a), Forgery under Section 462(1) and Fraudulently Uttering under Section 464(2) of the Criminal Code Act.
   

BRIEF PARTICULARS

2. Defendant was arrested on the 25^th of January 2022 and was arraigned on 31^st January 2022. Since then the matter was adjourned for police to establish the allegations or to have the evidence provided to the court and on 4^th May 2022 evidence was served on the defendant. However, the defendant took issue on the process of service that it was not properly effected and thus asked the court to strike out the information.
   

ISSUE

3. Whether or not the information should be struck out in the circumstances.

THE LAW

4. Defendant has pleaded Section 22 of the District Court Act and Order 4, Rule 36(1) of the National court rules.
   

APPLICATION

Defendant

5. Defendant argues that he who seeks equity must come with clean hands or simply to say the doctrine requires the court to deny equitable relief to a party who has violated good faith with respect to the subject of a claim.
   
6. Defendant argues he is entitled to the full protection of the Law under Section 37 of the Constitution and thus the manner of service was not in line with the standard process and procedures of service of court file.
   
7. Defendant argues service was affected by a third party without the knowledge and consent of the prosecutor and was highly improper.
   
8. Defendant argues that Matters in the could be dismissed if correct mode of service was not effected and also argues that Wariniki Lawyers has filed a Notice of Appearance and thus could file should be served on the defendant by the prosecutor and no other persons without the approval of the prosecutor.
   

Prosecutor

9. Prosecutor argues that the issue of service is irrelevant as any policemen including the arresting officer and the prosecutor can serve court files on the defendant either through his legal representative or on the defendant personally.
   
10. Prosecutor also argues that court files can be served anywhere either in the court, outside or on the streets so long as service was effected.
    

BACKGROUND INFORMATION

11. A similar application was filed on the 4^th May 2022 by the defendant to have the information struck out for want of time limitation but the applicant was dismissed for being defective and wants of legal basis.
    
12. However, after when the application was dismissed, the court noted that police file was served on the defendant by an officer of the police upon the case informants instructions. However, defendant took issue that he was not properly served with the file and there was no proof of service to indicate service was effected on the defendant.
    
13. I then summonsed the case informant to appear in court and explain the process involved in the service of court files. The case informant appeared in court on the 5^th May 2022 and says, any policemen including the arresting officer and prosecutor can effect service on the defendant anywhere anytime and thus he says he had instructed a Police Personnel to effect service on the defendant.
    
14. Police informant has also provided proof of service to the court as evidence that the defendant was served
    
15. Defendant argued that service was improperly effected on the him. The National rules provides for the mode of service in the National court and it should be complied with by Lawyers and parties in the National court. By implication of Section 22 of the District Court Act the adoption of the National court rules may seem necessary in the District court.
    

SERVICE PROCESS

16. Section 94(1)(a)(b)(c)(d)(e) and (f) of the District Court Act is very clear about the service of court file. The Law under this provision says it shall be served either on the defendant or his legal representative. However, the Law does not evidently demonstrate who shall serve the court file and where it shall be served.
    
17. For defendants who are in custody, service of court files may be effect on them through the CIS officials but more importantly on their legal representatives and Defendants personally and for bail matters, service may be effect on the defendant through their legal representatives or the defendant personally and nothing is wrong with that so long as there is evidence of service. Pursuant to Section 94(4) of the District Court Act, the person effecting service and person receiving should endorse the Proof of service to effect service of the court file and this piece of evidence should be attached to the court file. Without evidence of any proof of Service file is not yet served on the defendant or his/her legal representative.
    
18. The District Court Act does not specify where and who shall effect service of Police file but only says whom it should be served with and how court should consider file after it had been served on the defendant or their legal representative. Any policeman or women upon instructions from any NCO or commissioned officers who are in the Prosecution or investigations and have an interest in the allegation may with the authority from the Arresting officer and the Prosecutor may effect service on the defendant. Service of the court file may be effected anywhere and anytime so long as it is served on the defendant or his/her legal authority.
    
19. Section 22 of the District Court Act is only relevant if the District Court Act or any other legislation that regulates proceedings in the District Court does not unmistakably specify service of Police file. However, the District Court Act provides for Service of police file and thus there is no need to adapt the National Court Rules under Section 22 of the District Court Act.
    
20. Therefore, I am satisfied that with the authority of the Arresting officer, the court file was served on the defendant by a nominated person and there is an evidence of Proof of service that the file was served on the defendant inside the court house and thus service of the police file was effected. Defendant’s Notice of Motion is therefore dismissed and the matter shall proceed by way of Defense submission on police evidence.
    

ORDERS

1. The Notice of Motion filed on 5^th May 2022 disputing Service of Police file on the defendant and his legal representative is dismissed.
   
2. Matter adjourned to the 23^rd of May 2022 for Submission of police evidence.
   

100. Prosecution should serve a copy of the court file on the court and defendant’s bail is extended.
     

Police Prosecutor: Chris Iga
Defendant: Wariniki Lawyers