State v Tanedo [1975] PGNC 6; N10 (16 October 1975)

Unreported National Court Decisions

N10

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
TANEDO

Port Moresby

Prentice DCJ
13 October 1975
15-16 October 1975

INTERLOCUTORY JUDGMENT

PRENTICE DCJ: Upon pration of indictmenttment herein, Mr. Nwokolo for the accused has moved under s.596 of the Criminal Code that the indictment be quashed. A number of reasons were urged why this should be done -arising from alleged irregurregularities in the committal proceedings. The matter was before me on 6th October on which day I fixed the date for hearing. I am now advised that the form of, and counts in, the indictment now presented, were put before Mr. Nwokolo, who had appeared for the accused during the lengthy committal proceedings; only last Wednesday, 8th October. This is sufficiently surprising; but no point has been taken on it. No fresh application for a further delay in the trial was made. Neither at that time, before, nor since, has defence counsel intimated that he wished to challenge the State’s right to proceed further against his client. The result is that the prosecutor has come to Court completely unprepared to argue a point, which has considerably troubled the Court, when raised previously in Papua New Guinea. I deprecate that defence counsel should have taken this point without notice to the prosecution. I remind defence counsel of his obligation as an officer of the Court to assist the Court as well as his client. The matter of justice to the State as well as to the individual is not something that should be treated in this cavalier fashion. The difficulty in meeting such a point unprepared, is underlined by the fact that despite the intervention of a luncheon adjournment of one and a half hours and the presence of the Public Prosecutor himself in Court throughout the defence argument, prosecuting counsel found himself obliged to ask for a further adjournment to consider the matter. Even after this adjournment he had available to him only one of the relevant Papua New Guinean cases - one which I had mentioned to him. It is disturbing to me to think that Mr. Nwokolo has supported his argument by reference only to the decision of Mann, C.J. in Burasep’s caseN10.html#_edn2" title="">[ii]¹ a decision from whis Honouronour partly resiled later in Ebulya’s caseN10.html#_edn3" title="">[iii]2. As a former lecturer in law at the University of Papua New Guinea he should havd have been aware of the other cases in which this point has been discussed and I would have expected him to assist the Court by bringing them forward and making submissions in regard to them.

The indictment as presented is an ex officio one, enumerating counts under s.430 and s.543 of the Code for conspiracy. The original charges laid against the accused were under s.87. At the conclusion of the committal hearing in the District Court the learned magistrate expressed the opinion that the evidence was sufficient to put the accused upon trial, and committed him on two charges under s.541 and s.543.

The argument in support of the motion to quash has three heads.

Firstly it is said that the magistrate having found there to be insufficient evidence to support the charges as initially laid, was in effect, functus officio - he could not commit for trial on any other charge. It will be seen that this submission if correct, has alarming implications, in that it will require persons originally laying charges to be of the highest ability and critical discernment, and possessed of almost magical power of prediction as to what evidence will be forthcoming, and regarded as credible, in the committal proceedings.

Secondly, it is said that irregularities occurred in the committal proceedings such as would render the committal invalid. These involve the failure to have the evidence of the witnesses read over in the hearing of the accused. The third submission is to the effect that the evidence on committal was insufficient to justify the accused’s being put on trial for the offences for which the magistrate actually committed. I am thereunder invited to make a preliminary scrutiny of the evidence on committal (which may not be that forth-coming on the trial) to see whether the magistrate has properly carried out his duty. That is to say, on the defence argument, that this Court must first conduct an appeal in effect from the finding and order of the magistrate.

All points are made in reliance upon the decision of Mann, C.J. in Burasep’s caseN10.html#_edn4" title="">[iv]³ (supra) to the effect irregirregularities in committal proceedings would invalidate a subsequent indictment. The indictment presented in that trial rted to be an ex officio one; but Mann, C.J. was then of the opinion that s.561 of the Code Code did not apply in New Guinea, and the only exceptions to there being initially valid committal proceedings, were to be found in the provisions of s.3 of the Criminal Procedure Act of 1889, these exceptions being of a very limited order, and having relation to ancient practice in England. As the circumstances there obtaining did not come within these limits, His Honour apparently considered the indictment could not be laid ex officio.

It appears to me that this application cannot succeed. The proceeding in this Court is by way of ex officio information of the Law Officer. I am of the opinion that as such it cannot depend for its validity upon the regularity or irregularity of the committal proceedings, in fact carried out in this case before a District Court magistrate.

In Burasep’s caseN10.html#_edn5" title="">[v]⁴ (supra) the then Chief Justice held that failure to comply with s.104A of the then District Courts Act invalidated committal proceedings. As pointed out abthe indictment presented before him was an ex officio one but Mann, C.J. was of the opinioninion that such an indictment could not be presented unless there had been a proper preliminary investigation. He regarded s.560 and s.561 of the Code as not part of the law of New Guinea. His Honour was called upon to make his decision at a time when there was no appeal from a single Judge except by leave to the High Court of Australia. In Regina v. EbulyaN10.html#_edn6" title="">[vi]⁵ (supra). onour resiled some some what from the position he had taken in Burasep’s caseN10.html#_edn7" title="">[vii]⁶ (supra) as to s.561. Itotewnoteworthy that he had said in Burasep’s case (supra)N10.html#_edn8" title="">[viii]⁷:

&#Whether the accused were validly committed for trial or notr not, an authorised representative of the Crown has in Queensland a statutory right to bring them to trial if s.561 is applicable.”

The opinions of Smithers, J. and Minogue, J. (as he then was) in that case, were that the ex officio indictment procedure under s.561 remained open. Ollerenshaw, J. formed an opinion similar to that of the Chief Justice. In Regina v. DwyerN10.html#_edn9" title="">[ix]⁸ Frost, J. (as hn was) was owas of the opinion that s.561 of the Code and s.3 of the 1889 Act had to be read together and apparently at that time was prepared to adhere to the views of Mann, C.J. and Ollerenshaw, J. That s.561 was available to support ex officio indictments was assumed by Kelly, J. in Reg. v. Francis Topulumar & Ors.N10.html#_edn10" title="">[x]⁹ and speally decided by him him in The Queen v. Toigen Tiolo & Ors.N10.html#_edn11" title="">[xi]¹⁰ Minogue, in The Queen v.en v. Wi Taupa Tovarula & 13 Or13 Ors.N10.html#_edn12" title="">[xii]¹¹ adhered e vie had expressedessed in Ebulya’s caseN10.html#_edn13" title="">[xiii]^{up> (supra) and ruled that s.561 was available to support ex officio indictments. He w He was of the view that the adoption of the Code should be regarded as ambulatory, that as conditions changed provisions would be able to take effect and form part of the law. Since the last-mentioned decision in February 1972, it is my understanding that all the Judges of the then Supreme Court accepted ex officio indictments without demur. There must have been many dozens of them - such are the inadequacies of the legal framework in Papua New Guinea and the difficulties presented by geography, that the ex officio indictment seems to have become recognized as an essential part (perhaps regrettably), and certainly a useful part of the practice of the law.}

If, as I think has been assumed to be the position by the Judges for some years, s.561 is applicable, then an ex officio indictment may be presented whether a person has been committed for trial or not. A fortiori I would infer that the procedure may be used where there has been a purported committal, even if the proceedings were invalid. I adopt with respect, the decisions of Smithers and Minogue, JJs in Ebulya’s caseN10.html#_edn14" title="">[xiv]¹³ (suprd would if necessary fary form the conclusion that to the extent that s.561 of the Code may be inconsistent with s.3 of the 1889inal Procedure Act - the adoption in 1902 by the Criminal Code Act of that Queensland Code,Code, worked an implied amendment to the 1889 Act, whereby an enlargement of the powers of the Law Officers to lay ex officio indictments was worked.

For these reasons I would discharge the motion. In deference to the argument of counsel I think I should nevertheless express my opinion on the matters put.

Enquiries of the nature here suggested, as to whether committal proceedings had been validly conducted, were undertaken on a motion to quash indictment, not only in Burasep’s caseN10.html#_edn15" title="">[xv]¹⁴ (supra) but in Mern̵’s caseN10.html#_edn16" title="">[xvi]¹⁵ (Clarkson, J.), Li#8217;8217;s caseN10.hedn17" title="">[xvii]<¹⁶ (Minogue, J.), Simbendemandemb’s case[xviiixviii]¹⁷ (O’Loghlen, and by W by Williams, J. in Nakaran Mandian’s casN10.html#_edn19" title="">[xix]¹⁸. With great respect to those having allowed suquiries, I consider the bete better view of the position to be that such an enquiry may not be undertaken. I consider the matter to be concluded by the opinion of the Supreme Court of New South Wales in Ex parte Cousens; Re Blacket and AnotherN10.html#_edn20" title="">[xx]¹⁹. Therein Sir Frederick Jordan for the Court, enumerated supervisory powers of a Supreme Court in regard to the magisterial committal function, as follows (at page 146):

“The functions of magistrates in criminal matters (leaving out of account those formerly exercised by them at Quarter Sessions) are of two kinds. Sitting as Courts of Petty Sessions, they determine whether persons are guilty of offences in respect of which jurisdiction to dispose of such matters summarily has been conferred upon magistrates by statute. Independently of this, in the case of charges that persons are guilty of offences triable at Quarter Sessions or by a superior Court, they determine whether the evidence against the persons charged is such as to warrant their being committed to prison, or admitted to bail, to await their trial. There is no doubt that the former function involves an exercise of judicial power by the magistrate sitting as a Court of Justice, and that superior Courts, by the prerogative writs of certiorari and prohibition, exercise a supervisory jurisdiction over the proceedings of those Courts. The books are full of instances of the exercise by superior Courts of this jurisdiction. The latter function of magistrates is of an entirely different nature. In relation to charges of offences which they have no jurisdiction to try and dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence adduced against him, and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a Court which has jurisdiction to try him. This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly four hundred years, no instance can be found of a superior Court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v. Coleridge ((1882) [1822] EngR 19; 1 B. & C. 37).

In substance, a committing magistrate determines nothing, except that in his opinion a prima facie case has been made out for committing the accused for trial. The examination has advantages both for the accused and for the Crown. If, in the magistrate’s opinion, no prima facie case is made out against him, he is set at liberty, so far as the proceedings before the magistrate are concerned. A contrary opinion does not convict him; but the depositions provide the Attorney-General with useful material to enable him to decide whether he will file an indictment, whatever the magistrate’s decision may have been. If the Attorney-General does file an indictment, this is his independent act, not a confirmation of anything done by the magistrate; and it does not necessarily follow that the accused will go to trial. The Attorney-General may at any stage enter a nolle prosequi. If the matter does go to trial, the accused may be acquitted.”

Minogue, J. in Little’s caseN10.html#_edn21" title="">[xxi]²⁰ (supra) was seemingly of the view that this Court was not entitled to act as a Court of Appeal from the magistrate’s finding on committal proceedings. I would concur in such a view.

The decision of R. v. G>N10.html#_edn22" title="">[xxii]²¹ has beeen to be an authorithority otherwise, for the proposition that such an examination may be conducted for the purpose of deciding whether the magisterial committa proper. Though the extent to which such examination shouldhould issue in the quashing of indictments has been shown to be restricted in Regina v. Norfolk Quarter Sessions. Ex parte BrunsonN10.html#_edn23" title="">[xxiii]²². If the decision in R. v. GeeN10.html#_edn24" title="">[xxiv]²³ (supra) ben to represent thnt the common law of England on 16th September, 1975 it would be incumbent upon me to decide whether it has been adopted by virtue of Schedule 2.2. of the Constitution. Sub-Section (1) thereof provides “that such common law principles and rules shall be applied except if and to the extent that they are inapplicable or inappropriate to the Constitution of the country from time to time”.

In Papua New Guinea we are faced and may continue to be faced for some years, with an insufficiently trained police force from which District Court prosecutors must be drawn, and with a magistracy of uneven education and experience - few of whom may for years have legal degrees. It would I conceive, be highly inappropriate to apply to this background, procedural rules or interpretations that might cause a complete holdup to committals and trials of indictable offences. The expertise to ensure absolutely correct procedure and committals, cannot, perhaps, be hoped for in the years immediately ahead. I proceed now to the points raised by Mr. Nwokolo. In regard to the failure to read over the depositions as required by s.101(1) of the District Courts Act; it was not challenged that the procedure actually adopted was to hand the typed evidence of each witness to the accused, who apparently speaks and reads English and is an educated person, for him to read and have corrected. This was done in the presence of, and it must be presumed with the consent of, Mr. Nwokolo. No objection was taken to it. The Courts will always be astute to prevent the lying by in silence while an irregularity of which advantage is later sought to be taken; being availed of. I find it almost incredible that such a point should be sought to be raised. There are occasions when a reading over by the accused would be more effective to safeguard his rights, than a reading over to him in the hearing of another person. This would seem to be so (as was the case here) when an accused is literate and has a legal adviser present during the whole of the proceedings whom he can consult if necessary, as to the accuracy of the record. I am satisfied that there has been a substantial compliance with s.101(1) of the District Courts Act in the circumstances of this case. One may by analogy to s.246 of the Act regard the procedure adopted as failing to constitute a substantial (if any) miscarriage of justice. I am satisfied that it would be quite unfair to the State to allow the agreed procedures of the District Court in the case now to invalidate the committal. (Mr. Ryan for the prosecution, at this stage informed the Court that the procedure objected to was not that of Mr. Tanedo reading the depositions, but of allowing the witnesses concerned to read their depositions instead of having them read over to them).

Defence counsel has urged that once the magistrate had decided that there was not sufficient evidence to put the defendant upon trial for the offences for which he initially stood charged; then under s.102(2) of the District Courts Act, he was constrained to discharge the accused without committal. Such a narrow reading of the magistrate’s powers under the Act is in my experience, novel. To my knowledge it has always been held within the magistrate’s power to commit for whatever offences he regarded as sufficiently disclosed at the close of evidence - no matter what the nature of the original charges. S.102(1) reads as follows:

“Where all the evidence offered upon the part of the prosecution has been heard, the court shall consider whether it is sufficient to put the defendant upon his trial.”

It is I think, significant that the sub-section does not say “upon his trial for the offence with which he has been charged”. Sub-section (2) reads as follows:

“If the court is of opinion that the evidence is not sufficient to put the defendant upon his trial for an indictable offence, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.”

It will be noted that this refers in the most general terms “to an indictable offence”. The same general phrase without limitation to the offence with which he has already been charged, occurs in sub-section 3. To my mind, the Section clearly gives the magistrate power which he purported to exercise, viz. of committing on charges supported by the evidence, but differing from those originally laid.

In the time available to me, I have endeavoured to read the depositions taken, as intelligently as I can. I would point out that the magistrate is merely required by the Section (102(2)) to “form an opinion”. In my quick reading, he was prima facie, justified in the opinion he apparently formed. He appears to have done so bona fide. It appears that the Public Prosecutor now forms the opinion that the evidence which had been called supports different charges.

The fact that justices who have jurisdiction to carry out a certain enquiry, may make an erroneous decision in doing so, does not necessarily mean that they have acted without jurisdiction; and prohibition for example, would not lie to them on that behalf. When jurisdiction is given to decide a question there is power to decide it, rightly or wrongly, and not only power to decide it rightly. (Parisienne Basket Shoes Propriety Limited and Others v. WhyteN10.html#_edn25" title="">[xxv]²⁴ (Latham, C.J. 369 at 374rketarke, J. at 384, Dixon, J. at 392). I would be unable here to conclude otherwise than that the learned magistrate has bona found an opinion justifying a committal for an indictable offence. In committing thereon he n he was, I think, acting with jurisdiction, even if his opinion was erroneously formed.

In summation I am of the opinion that even if it were open so to challenge an ex officio indictment, the grounds taken are without substance. The motion is dismissed.

Solicitor for the Accused: I. Nwokolo.

Counsel for the Accused: I. Nwokolo.

Solicitor for the State: B.W. Kidu, Crown Solicitor.

Counsel for the State: B.M. Ryan. B.T.J. Sharp.

SECOND INTERLOCUTORY JUDGMENT

PRENTICE DCJ: The accuas been arraigrraigned pleaded not guilty on two charges of conspiracy to defraud the Government. The conspiracy is alleged to heen entered into with one Tyszkiewicz and he alone. Tanedo alone is charged in the indictmeictment. After the prosecutor’s opening it was sought to call Tyszkiewicz (whom I shall call T) as the first witness. Preparatory to doing so, a document has been tendered and marked Exhibit A. This document under the hand of Mr. Kearney, Secretary for Law, is addressed to T, and it purports to be an undertaking that T will not be prosecuted:

“upon any charge or charges arising out of any evidence you may give in the committal hearing, or in any subsequent proceedings flowing therefrom, in respect of a charge against one EDUARDO BONDOC TANEDO alleging that he on the twelfth day of September 1974 committed an offence under Section 87 CRIMINAL CODE (New Guinea, Adopted), PROVIDED ONLY that you testify truthfully and fully to all matters within your knowledge in relation to such alleged offence.”

The undertaking was apparently given prior to, or during, certain committal proceedings against the accused.

Mr. Nwokolo for the defence objects to the reception of T’s evidence. It has been ruled as a matter of convenience that argument on the objection should be received at this point. It has been heard. Mr. Nwokolo’s objection is not primarily to the giving of evidence by T. His submission really rests on the consequences which he says flow from the nature of Mr. Kearney’s undertaking. He states that in law, the accused may not now be convicted. It is only secondarily, that the suggests that I have a discretion to, and should, reject T’s evidence.

Reliance is placed upon what is said to be the ancient law, that where two only are said to have conspired together, both must be acquitted or both convicted - that when one is acquitted, the other even if he has been convicted is entitled to have his conviction set aside. The decision of Regina v. Alley Ex parte MundellN10.html#_edn26" title="">[xxvi]²⁵ of the Fullt of Victoria goia governs the point it is said; and R. v. CosgroveN10.html#_edn27" titl[xxvii]²⁶ is to btinguished, as that that was a case where a co-conspirnspirator had been given a royal pardon. In Cosgrove’s caseN10.html#_edn28" title="">[xxviii]²⁷ (supra) the CJustice found ound the law to be “that if an agreement is alleged to have been made between two persons only, then since bf them must have been parties to the crime both must be found either guilty or not guilty.<y.” (I shall return later to this proposition and also to that of Holroyd, J. in Alley’s caseN10.html#_edn29" title="">[xxix]²⁸ (supra) where His Honour stated that “a charge of conspiracy must fail unless at least two persons are charged”). Morris, C.J. then proceeded to consider the nature of a royal pardon, and concluded that a royal p is in no sense equivalent lent to an acquittal. His Honour distinguished Alley’s caseN10.html#_edn30" title="">[xxx]²⁹ (supra) as one in which thch the discharge of one of two jointly-charged accused worked his acquittal and prevented the charge against his co-accused proceeding.

Mr. Nwokolo states that thertaking given in this case case makes it impossible to proceed against T, and that as he has also been given a nolle prosequi in respect of the original charge under s.87 laid against him; T has been “acquitted”. He would seek therefore the application of the law as stated by Morris, C.J. in Cosqrove’s caseN10.html#_edn31" title="">[xxxi]³⁰ (supra) in the passage from his judgment first quoted.

I would pause firstly to state that I cannot see that the filing of a nolle prosequi, against T can bear on the problem at all. S.563 of the Criminal Code states upon the presentation of a of a nolle prosequi in respect of an indictment (then pending in Court), the accused person “is to be discharged from any further proceedings upon that indictment”. It is clearly laid down that its entry does not establish the innocence of the accused or prevent a subsequent charge being laid (Davis v. GellN10.html#_edn32" title="">[xxxii]³¹).

I am of the opinion that the giving of the Secretary’s u;dertaking, cannot be construed as an “acquittal”, any more than a royal pardon can; and it is noteworthy that the right to withdraw the undertaking is expressly reserved if T does not testify truthfully and fully.

A reading of the old cases raises the understanding in my mind that the reason for the law (as it was thought to be), was that two apparently inconsistent findings of fact and against two conspirators (charged with conspiracy with one another) ought not to be allowed to stand. As was explained by the Court of Appeal and the House of Lords in Shannon’s caseN10.html#_edn33" title="">[xxxiii]³² a case brought tattention aion after argument was concluded; the rule of law was devised to meet the situation where no appeal lay in criminal matters in the United Kingdom (until 1907) except by writ of errothe record. On such a motiomotion, the record only might be looked at. When two apparently repugnant decisions were seen, looking at the record only, to have been arrived at (the Court could not look at the evidence called in the respective cases), the disadvantaging decision (conviction) as a matter of prudence, should be quashed.

That the passages from the judgments of Morris, C.J. and Holroyd, J. do not fully set out the law, as it was understood in the nineteenth century, is illustrated by the Thody’s caseN10.html#_edn34" title="">[xxxiv]³³, cited with approval in The King v. J.S.S. CookeN10.html#_edn35" title="">[xxxv]³⁴, where Lord Hale said,

“If one be acquitted in an action of conspiracy, the other cannot be guilty; but where one is found guilty, and the other comes not in process, or if he dies hanging the suit, yet judgment shall be upon the verdict against the other.”

The modern law of conspiracy is said to have derived from the maxim quoted in the Kings Bench in 1664 as “ne poit estre conspiracy sans aucun overt act de plusors” (Holdsworth, History of English Law, Vol. 8, p. 378).

I have given my opinion that the entry of a nolle prosequi and giving of Mr. Kearney’s undertaking, do not amount to an acquittal, and do not therefore under the law as formerly understood, require an acquittal of this accused.

However, the law as to conspiracy involving joint trials and separate trials, has been exhaustively discussed (the judgments cover 42 pages) in R. v. ShannonN10.html#_edn36" title="">[xxxvi]³⁵ (supra), by the Cof Appeal peal and the House of Lords. Therein two accused were tried jointly on a conspiracy charge. One pleaded guilty, the gui the other the jury could not agree upon. The second person was re-tried by another jury anry and on being found not guilty on one charge, by consent of the prosecution a formal verdict of not guilty (which is to have by statute the effect of an acquittal) was entered on the conspiracy charge. The House of Lords held unanimously that the conviction of the first man should stand. Lord Morris stated at 1034:

“I think it is very desirable, where there is a charge of conspiracy against A and B, that they should be tried together. If however for any reasons this cannot be, then if A pleads guilty or is found guilty I see no reason why his conviction must be set aside if B on his later separate trial is acquitted.”

His Lordship thought the old rule that if both were tried together both should be convicted or both acquitted - should be retained. It was clear that he saw no intrinsic or fundamental objection or bar to the conviction of one only of two persons who are charged with conspiracy with each other. Lord Reid concurred in this judgment.

Viscount Dilhorne (at 1041) was of the opinion that if it were necessary to decide, he would hold the “old rule” (as to both guilty or both not guilty on a joint trial) - obsolete, and he stated:

“when conspirators are tried separately, it is, in my opinion, no ground for quashing the conviction of one of the two, whether following his plan of guilty or after verdict by a jury, that later his co-conspirator is acquitted or has his conviction quashed”

as being the appropriate modern law.

Lord Simon, while pointing out that the old learning was that:

“if B (one of two conspirators) were dead, or for any other reason could not be or had not been brought to trial, his presumption of innocence did not serve to exculpate A;”

went on to hold that even on a joint trial in view of the differing evidence admissible against each, it would be possible for a jury to convict one and acquit the other. At page 1047 he concluded, and I quote:

“I would therefore be in favour of a declaration that the whole body of rules whereby the acquittal of B of conspiracy with A must of itself be held to be inconsistent with A’s conviction of conspiracy with B has no subsisting validity.”

Lord Salmon was also of the opinion that the old rule (of both or neither, on a joint trial) should be pronounced dead; and was of the opinion that in the case of two conspirators separately tried, one being found guilty and one acquitted:

“B’s acquittal will no longer, of itself, give A the right in law to have his own conviction quashed.”

I would venture the opinion that the ruling of the House of Lords in regard to retaining the “old rule” as to joint trials, might not be applicable to Papua New Guinea under the Constitution’s reception of laws provision, in that the rule is clearly based on the existence of a jury system and the possible difficulties inherent in directing juries that on a charge of A’s conspiring with B (which of course requires the finding against A that B conspired with A), there may be sufficient evidence to convict A, but not B on a joint trial (questions of admissibility and confessional evidence being involved). But apart from that the speeches of the noble Lords appear to indicate that the Common Law is now to be held to be such that even if the entry of a nolle prosequi and giving of an undertaking not to be prosecuted, be regarded as an “acquittal”; those facts do not prevent the Court proceeding to the conviction of the other alleged offender.

Mr. Nwokolo’s submission that a judicial discretion should be exercised against the reception of Tyszkiewicz’s evidence, was based firstly on a reference to the Acts Interpretation ActN10.html#_edn37" title="">[xxxvii]³⁶ which s that where in an Acan Act of Papua New Guinea a power is conferred on an officer or person by the word “may” it shall be a permission conferred. The Section goes on to pronounce &;but where the word ‘8216;shall’ is applied to the exercise of any such power the construction shall be that the power conferred must be exercised.” Section 23A he says, provides that aiders and abettors (and others) “shall be punishable accordingly”. He contends that the two Sections read together amount to imposition of a duty on the Secretary for Law to prosecute Tyszkiewicz. I am unable to understand the words “shall be punishable accordingly” as meaning “shall be punished”, or as conferring any power on the Secretary for Law. They appear to me to be merely enabling.

If I understand Mr. Nwokolo’s argument correctly, he contends it would be unfair or improper, and giving an appearance of injustice, that one only of the two alleged conspirators should be prosecuted. I note that in Federal Steam Navigation Co Ltd and another v. Department of Trade and IndustryN10.html#_edn38" title="">[xxxviii]³⁷, a case in which the house of Lords was concerned to construe a provision that allowed the prosecution of “the owner of the master of the ship” for pollution of navigable waters with spillage of oil, there did occur some phrases with which I think I should deal. (It is interesting to note that though Lord Reid stated, no doubt forthrightly representing Scotland, that “or” can never mean “and”, Lord Solomon who was in agreement with the majority of the Lords in the decision said “I don’t suppose that any two words in the English language have more often been used interchangeably than ‘and’ and ‘or’)”.

This case was cited by Lord Simon in the earlier case referred to in the 1974 reports, in support of the proposition that it is contrary to constitutional propriety that a person’s guilt should be at the choice of the Crown. I am unable to pick up with certainty the reference. The case cited might be thought to enlarge the Crown’s discretion rather than restraining it, by deciding that both parties mentioned in the Statute might be prosecuted despite the use of the disputed “or”. Lord Wilberforce stated:

“It is said that prosecutors, including the police and the Director of Public Prosecutions, have a discretionary right not to proceed against persons, or all of the persons, against whom a case has been or could be made and that the interpretation contended for here goes no further. But whatever the constitutional limits of the former discretion may be, and some limits there certainly are, there is a world of difference between it and a discretion quite uncontrolled, to fix an offence on one of two persons to the exclusion of the other.”

It will be seen that he is there arguing against a restriction of the prosecution’s powers and finds that the legislature did not require him to elect which of the two might be prosecuted.

Be this as it may; in the administration of criminal law it has always been considered necessary that the prosecution have the power to offer immunity to one of several alleged co-offenders to try to secure the conviction of another or others. “Turning Queen’s evidence” was the former popular phrase for the procedure involved. Perhaps such a proceeding may raise bitterness in the mind of the person or persons proceeded against but State authorities no doubt have to weigh the desirability of establishing a deterrent by at least securing some convictions, where many are alleged to have offended in concert. I would assume that the Public Prosecutor has properly considered the alternatives here in such a light.

I am unable to conceive that any factor has been established here why I should exercise a discretion against the reception of Tyszkiewicz’s evidence.

I therefore rule that no bar to the accused’s conviction has been set up, and that Tyszkiewicz’s evidence may be admitted.

Solicitor for the Accused: I. Nwokolo.

Counsel for the Accused: I. Nwokolo.

Solicitor for the State: B.W. Kidu, Crown Solicitor.

Counsel for the State: B.M Ryan. B.T.J. Sharp.

N10.html#_ednref2" title="">[ii]^{(1963) P. & N.G.L.R. 181}

N10.html#_ednref3" ti">[iii]^{(1964) P. & N.G.L.R. 200}

<

N10.html#_ednref4" title="">[iv]^{(1963) P. & N.G.L.R. 181}

N10.html#_ednref5" title="">[v]^{(1963) P. & N.G.L.R. 181}

N10.html#_ednref6" title="">[vi] ^{(1963) P. & N.G.L.R. 200}

N10.html#_ednref7" title="">[vii]^{(1963) P. & N.L.G.R. 181}

N10.html#_ednref8" title="">[viii]^{(1963) P. & N.G.L.R. 181}

N10.html#_ednref9" title="">[ix]^{(1967-68) P. & N.G.L.R. 104}

N10.html#_ednref10" title="">[x]^{Unreported 660}

N10.html#_ednref11" title="">[xi]^{Unreported 588}

N10.html#_ednref12" title="">[xii]^{Unreported 711}

N10.html#_ednref13" title="">[xiii]^{(1964) P. & N.G.L.R. 200}

N10.html#_ednref14" title="">[xiv]^{(1964) P. & N.G.L.R. 200}

N10.html#_ednref15" title="">[xv]^{(1963) P. & N.G.L.R. 181}

N10.html#_ednref16" title="">[xvi]^{(1967-68) P. & N.G.L.R. 48}

N10.html#_ednref17" title="">[xvii]^{(1967-68) P. & N.G.L.R. 63}

N10.html#_ednref18" title="">[xviii]^{(1969-70) P. & N.G.L.R. 207}

N10.html#_ednref19" title="">[xix]^{Unreported 699}

N10.html#_ednref20" title="">[xx]^{[1946] NSWStRp 36; (1947) 47 S.R.N.S.W. 145}

N10.html#_ednref21" title="">[xxi] ^{(1967-68) P. & N.G.L.R. 207}

N10.html#_ednref22" title="">[xxii] ^{(1936) 2 All E.R. 89}

N10.html#_ednref23" title="">[xxiii]^{[1876] UKLawRpKQB 54; (1953) 1 Q.B.D. 503}

N10.html#_ednref24" title="">[xxiv] ^{(1936) 2 All E.R. 89}

N10.html#_ednref25" title="">[xxv]^{[1938] HCA 7; 59 C.L.R. 369}

N10.html#_ednref26" title="">[xxvi]^{[1886] VicLawRp 14; (1886) 12 V.L.R. 13}

N10.html#_ednref27" title="">[xxvii]^{[1948] TASStRp 1; (1948) Tas.S.R. 99}

N10.html#_ednref28" title="">[xxviii]^{[1948] TASStRp 1; (1948) Tas.S.R. 99}

N10.html#_ednref29" title="">[xxix]^{[1886] VicLawRp 14; (1886) 12 V.L.R. 13}

N10.html#_ednref30" title="">[xxx]^{[1886] VicLawRp 14; (1886) 12 V.L.R. 13}

N10.html#_ednref31" title="">[xxxi]^{[1948] TASStRp 1; (1948) Tas.S.R. 99}

N10.html#_ednref32" title="">[xxxii]^{[1924] HCA 56; 35 C.L.R. 275}

N10.html#_ednref33" title="">[xxxiii] ^{(1974) 2 All E.R. 1009}

N10.html#_ednref34" title="">[xxxiv]^{[1726] EngR 840; 1 Vent. 234}

N10.html#_ednref35" title="">[xxxv] ^{5 B. & C. 539 at 541}

N10.html#_ednref36" title="">[xxxvi] ^{(1974) 2 All E.R. 1009}

N10.html#_ednref37" title="">[xxxvii]^{* 1949-1971}

N10.html#_ednref38" title="">[xxxviii] ^{(1974) 2 All E.R. 97}