Watinga, The State v [1994] PGNC 152; [1994] PNGLR 255 (9 December 1994)

PNG Law Reports 1994

[1994] PNGLR 255 - State v Tom Watinga 

[1994] PNGLR 255

N1295

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

TOM WATINGA

Mendi

Sawong AJ

14 July 1994

9 December 1994

CRIMINAL LAW - Practice and procedure - Laying of fresh information five months after previous information had been ordered to be withdrawn - Whether abuse of process of court.

Facts

The applicant was charged in December 1991 with the offence of dangerous driving causing grievous bodily harm. Following a series of adjournments and non-appearances, he was successful in his application, made in March 1993, to be discharged on grounds that he had not been brought to trial within a reasonable time. Some five months later, the applicant was charged again with the same offence and was committed to stand trial in the National Court. He sought a discharge on the grounds that (1) in all the circumstances, the laying of the subsequent information upon which he was committed to stand trial in the National Court was an abuse of the process of the court, and (2) his committal to the National Court was not in accordance with s 94B(2)(a) of the District Courts Act.

Held

N1>1.       The National Court, as a suprerior court of record, has an inherent jurisdiction to take steps to prevent any abuse of Court process.

N1>2.       The laying of the subsequent information containing the same charges, founded on the same facts as those on which the previous information was based and which information was previously ordered to be withdrawn by the Court, amounted to an abuse of the court process.

N1>3.       The committal proceedings were struck out and the accused discharged.

Cases Cited

State v Painke [1976] PNGLR 210

State v Painke (No 2) [1977] PNGLR 141

Counsel

S Ketan for the applicant

R Auka for the State

9 December 1994

SAWONG AJ:  In this case, the accused was committed to stand trial on a charge of dangerous driving causing grievous bodily harm. As a result of that committal, the District Court granted him bail of K100 and imposed several conditions. He appeared before me today in answer to that bail. The State Prosecutor has not presented an indictment against the accused.

I am now to rule upon an application made by counsel for the accused that the accused be discharged. The application is made on two grounds.

Firstly, it urges that the information laid against him by the police at the District Court on 3 August 1993 be struck out as being an abuse of the process.

Secondly, it contends that his committal by the District Court in Mendi on 31 August 1993 to stand trial in the National Court was in contravention of s 94B(2)(a) of the District Courts Act Ch 40, and, accordingly, the committal should be struck out.

THE HISTORY

In order to understand these submissions, I propose to set out in chronological order of events that which led to this application being made.

The accused was originally charged upon an information in the District Court at Mendi. That information was numbered CB 87/91. It was laid on 9 December 1991, charging the accused with one count of dangerous driving causing grievous bodily harm, contrary to s 328(5) of the Criminal Code Ch 262.

He first appeared before the District Court at Mendi on 10 December 1991. On that day, the charge was read and put to him, and he denied the charge. The matter was adjourned to 30 December 1991 for a mention.

On 30 December 1991, the matter came up before the District Court. The accused appeared before the Court and the matter was further adjourned to 15 January 1992. No reasons are given for the adjournment. The matter came up again before the District Court on 15 January 1992, and it was adjourned to 29 January 1992 for a hearing date to be given. The accused also appeared before the Court.

On 29 January 1992, the accused appeared and the matter was then fixed for hearing on 26 February 1992. On 26 February 1992, the matter was further adjourned, as the prosecution had not yet received the election certificate from the Public Prosecutor to have the matter prosecuted summarily. It was then adjourned to 13 March 1992 for a call over. The accused also appeared.

On 13 March 1992, the defendant did not appear, and the matter was adjourned to 2 April 1992. On 2 April 1992, the accused appeared before the Court. It was then further adjourned to 26 April 1992 to set a date.

On 26 April 1992, the accused appeared. As there was no lawyer from the Public Solicitor to represent the accused, the matter was adjourned to the next day. On 27 April 1992, the accused appeared with a lawyer from the Public Solicitor's Office. As a result of an application for adjournment by his counsel, the matter was adjourned to 18 May 1992.

On 18 May 1992, both the prosecutor and the accused appeared, but the accused's counsel did not appear. The case was then adjourned to 27 July 1992. The accused did not appear before the Court on 27 July, and the case was adjourned to 29 July. On 29 July, the accused did not appear and the matter was adjourned to 21 September 1992.

When the case came up on 21 September 1992, the accused did not appear. A bench warrant was issued for his arrest.

The next time the case came up was on 23 March 1993. On that day, the accused appeared before the Court. It is not clear whether he appeared on his own or as a result of being arrested pursuant to the warrant of arrest. In any case, on that day, the prosecutor applied to have the case further adjourned because their key witness was not available and the prosecution needed time to have him brought in from Kainantu. The defendant objected to the application for adjournment. He then applied under s 37 of the Constitution to be discharged on the basis that he had not been brought to trial within a reasonable time. On 29 March 1992, the Court upheld the defendant's objection. It ordered that the information be withdrawn and the defendant was discharged.

Some five months later, on 3 August 1993, an information was again laid against the accused, charging him with the same offence. He appeared before the Madang District Court on Monday 3 August 1993. He informed the learned Magistrate of what happened to his case in March. In any case, the prosecution applied to have the case transferred to Mendi District Court. The Court, accordingly, transferred the matter to Mendi District Court, and it was then listed to come up there on 17 August, 1993.

On 17 August 1993, the matter came up before the District Court at Mendi. The accused appeared before the Court. The case was then adjourned to 31 August 1993 for a ruling. On that date, he was committed to stand trial at the National Court.

A perusal of the National Court file shows the following information. The National Court conducted circuit sittings in Mendi on several months. On each of those dates, the accused did not answer his bail and his counsel did not appear. As a result, in February 1994, the Public Prosecutor quite properly applied for a bench warrant for the accused's arrest. The Court granted the application, and a bench warrant was issued for the arrest of the accused.

Subsequently, the police did not execute the bench warrant, and it was only a few days ago that the State Prosecutor, Mr Auka, was aware that the accused was working in Madang. Telephone conversations were then had and, as a result, the accused and his lawyer, Mr Ketan, appeared before me today.

I have set out in detail the facts surrounding the application, as I am of the view that these facts are necessary in order to consider this application.

GROUNDS FOR STRIKING OUT INFORMATION

I now consider each of the grounds in support of this application. Firstly, Mr Ketan submits that the information laid against the accused on the 3 August 1993 should be struck out and the accused be discharged as he says that that information was an abuse of the court process. He submits that the first information was ordered to be withdrawn by the District Court in Mendi after a delay of 14 months since the date of the alleged committal of the offence. During that period, there had been 18 or 19 adjournments for the matter. As the chronological sequence of events shows, during that time the prosecution did not file an election certificate for the matter to be tried summarily in the District Court. This election certificate finally was filed on the 23 March 1993. Even after the election certificate had been filed, the matter was adjourned several times.

The matter first came up before the District Court at Mendi on 10 December 1991. Between that date till the election certificate was filed, there were 15 adjournments. On 23 March 1993, the accused applied to the court to be discharged pursuant to s 37(3) of the Constitution. He submitted to the Court that 14 months had elapsed since the offence was alleged to have been committed, that he had not been brought to trial within a reasonable time, and that there were numerous unreasonable adjournments made at the request of the prosecution. The Court upheld his application and ordered that the information be withdrawn.

Since he was re-committed to stand trial on 31 August 1993, there had been several National Court circuits in Mendi during 1993 and early 1994. In any case, it appears that his lawyers wrote to the registry staff of the National Court at Waigani inquiring when this matter may be heard in Mendi. Unfortunately, there is no reply to those correspondences.

On 23 February 1994, the State Prosecutor applied for a bench warrant to be issued, as the accused did not appear at that time. A bench warrant was issued by His Honour Mr Justice Los on that date.

Subsequently, the accused's lawyer again wrote to the circuit judge in April 1994 as to when the matter was to be heard. The lawyer was informed the matter was not listed for hearing by the National Court during the circuit in April 1994.

As I have said earlier, in the July sittings of the National Court in Mendi, the accused did not appear at the commencement of the circuit, but as a result of enquiries made by the police investigator, he was informed that if he did not appear, he would be arrested pursuant to the warrant of arrest.

Mr Ketan submitted that the second information the police laid against the accused was an abuse of the court process. He submitted that a delay of 14 months was occasioned in this case before the prosecution elected to have the matter heard by a Grade 5 Magistrate. Furthermore, as the minutes of the proceedings that took place during that period show, the prosecution filed the election only on 23 March 1993, the same date that the accused applied to the Court to have the information struck out as he had not been afforded a fair trial within a reasonable time, pursuant to s 37(3) of the Constitution. He submitted that the District Court at Mendi on that date considered the matter and ordered that information be withdrawn.

Subsequently, as the record indicates, the accused was again charged on the same offence on the same facts on 3 August 1993. He submitted that the laying of the second information against the accused is an abuse of the court process, particularly so when, on the face of the record, the District Court had found that there had been a breach of s 37(3) of the Constitution in that the accused had not been afforded a fair hearing within a reasonable time.

He submitted that, accordingly, the second information on which the committal proceedings had been purportedly completed and upon which the accused was purportedly committed to stand trial should be struck out.

ABUSE OF PROCESS OF THE COURT

Mr Ketan has referred me to the case of the State v Painke [1976] PNGLR 210 and the State v Painke (No 2) [1977] PNGLR 141.

In State v Painke [1976] PNGLR 210, the Court was concerned with an application for adjournment. The State applied for adjournment of the hearing of a charge of stealing as a servant on the ground that the State was not ready at that time to proceed to trial. The application for adjournment was refused. The State then sought to present a nolle prosequi in respect of the indictment before the Court. This application was objected to by counsel for the accused. The Court held that any further adjournment of the case would be to deny the accused his right "to be afforded a fair hearing within a reasonable time", under s 37(3) of the Constitution. The Court accepted the nolle prosequi. It held that presentation of nolle prosequi before the commencement of the trial, reserving as it did the right of the State to present another indictment, was not an abuse of the process of the Court, "abuse of the process of the Court" meaning, any use of the process or procedures of the Court for an improper purpose or in an improper way.

In that case, O'Leary AJ said at p 212:

"There is no doubt that this court, as a superior Court of record, has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has to 'ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice.... may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.' Tringali v Stewardson Stubbs & Collett Ltd. [1965] NSWR 418. See also Cox v Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713, and Winfield, Present Law of Abuse of Legal Procedure, pp 238-243.

Abuse of the process of the court is an expression used to describe any use of process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations."

Subsequently, in the State v Painke (No 2) [1977] PNGLR 141, the State presented a new indictment against the accused. The new indictment charged the accused with new offence of fraudulent accounting. After the new indictment was presented, the accused moved the Court to be discharged on two grounds, namely (1) that in all the circumstances, the presentment of the new indictment was an abuse of the process of the court and, secondly, that the accused had not been afforded a fair trial within a reasonable time as required by s 37(3) of the Constitution.

The Court upheld the application on the second ground, taking into account the time that had lapsed since the last hearing and the time that had lapsed since the date of committal. It viewed the delay as very long, having regard to the standard adopted under s 37(4) of the Constitution of trials being heard within four months of a committal. In regard to issue of abuse of process, Frost CJ said at p 144:

"It is well-established that a superior court has the power inherent in its jurisdiction to prevent any abuse of its process, and to control its own procedure.... The rule was applied by the pre-Independence Full Court in relation to the Supreme Court of Papua New Guinea (in R v Tambule [1974] PNGLR 250). O'Leary AJ had no doubt this Court 'as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process' (The State v Peter Painke [1976] PNGLR 210) and I agree with that opinion.

... The extent of the Court's powers at common law on any application of this nature was laid down in Connelly v DPP [1964] AC 1254. It was held that the Court has a discretion (outside the limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay, a subsequent indictment containing charges founded on the same facts as those on which a previous indictment is based or forming or being part of a series of offences based on the one incident. In my opinion that rule is fully applicable to the circumstances of Papua New Guinea."

I agree with the opinion expressed by Frost CJ. The Painke cases dealt with the presentment of an indictment. In the present case, the State has not presented an indictment against the accused. The present case can be distinguished from Painke in several respects. Firstly, the motion is in relation to an information. Secondly, the information contains the same charge, with the same facts as those on which a previous information was based on, and that the previous information had been ordered by the District Court to be withdrawn.

Although, Painke's case dealt with the issue of abuse of court process on the presentation of subsequent indictment, I am of the view that the principles set out in that case are equally applicable to a charge contained in a subsequent information. In my view, there is no question that the Court has an inherent jurisdiction to strike out a subsequent information contrary to the charge or charges founded on the same facts as those on which a previous information is based or forming or being part of a series of offences based on the one information. There is also no question that this Court has the jurisdiction to prevent any abuse of its process, where a litigant uses the court process in an improper way.

In the present case, the second information charging the accused presents the same charge and is based on the same facts as the previous charge. That is not the ground on which this Court could release or find that this was an abuse of the process of the Court. However, I must look at, and take into account, all of the circumstances in this particular case to see whether the subsequent information was an abuse of the court process.

I am clearly of the view that the second information charging the accused with the same offence, with the same set of facts on 3 August 1993, some five months after the previous charge was ordered to be withdrawn, was clearly an abuse of the court process. I have set out in detail the circumstances or the factual circumstances surrounding this particular matter leading up to the District Court in Mendi ordering that the first information be withdrawn, and subsequent events. It clearly demonstrates the very long delay that was occasioned. Even after the matter was ordered to be withdrawn, the prosecution did nothing immediately thereafter. Instead, they chose to wait for some five months to lapse to do this again. The whole circumstance of the case clearly demonstrates to me that this was clearly an abuse of the court process.

Accordingly, I would uphold the application to have the second information struck out. In view of my conclusion, I do not consider it necessary to deal with the second leg of Mr Ketan's submission.

My order is that the committal proceeding which is based on the information dated 3 August 1993 be struck out and the accused be discharged forthwith.

Lawyer for the applicant: Blake Dawson Waldron

Lawyer for the State: Public Prosecutor