State v Kombea [1997] PGNC 9; N1518 (11 February 1997)

Unreported National Court Decisions

N1518

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 1373 OF 1995
THE STATE
V
PAWA KOMBEA

Mendi

Lenalia AJ
10-11 February 1997

CRIMINAL LAW - Practice and procedure - Indictment - Public Prosecutor’s indictment - Criminal Code S. 526 (1) - Ex Officio indictment signed by a State Prosecutor.

CRIMINAL LAW - Practice and procedure - Signature of State Prosecutor on ex officio indictment - Whether State Prosecutor acted ultra vires his powers - Criminal Code SS. 524, 525 and 526 (1) - The State v Esorum Buruge (No.1) [1992] PNGLR 481 considered and applied.

CRIMINAL LAW - Practice and procedure - Indictment under S. 526 (1) formally signed and presented before another circuit Judge in 1995 - Whether or not State Prosecutor has power to present a second but amended indictment bearing the Public Prosecutor’s signature - What is meant to be “presented” or present” in Criminal Code SS. 525 (2) & 526 (2)

CRIMINAL LAW - Practice and procedure - Motion to quash indictment - Criminal Code S. 558

The State Prosecutor Mr Joseph Kesan in Hagen signed and presented an Ex Officio indictment before His Honour Woods J on 12th of September 1995. Four days before the trial was set to commence namely February 19, 1997, the Defence Counsel alerted the Public Prosecutor about the defective indictment. Theic Prosecutor’s O7;s Office replied that they would file a new but amended indictment. Thcussion on this interlocerlocutory ruling centres around the issue of whether or not the State could present an amended indictmeis time bearing the Public Prosecutor’s signature.

Held:

(1)&#16) ҈ It is o is only once thatnan indictment could be preferred on the basis of one committal. This would include both SS. 526 (2) and 526 (2)ctmenCrimiode Ch. 262.

(2) &##160;; Th0; The powe power to amend an d an indicindictment does not include the power to a a new but amended bill of indictment either under S.525 or25 or 526 of the Code.

Cases Cited:

The following cases are cited in judgement:

The State v Esorom Burege (No. 1) [1992] PNGLR 481

R v Thompson R v Clein [1975] All ER 1028

Counsel:

J Kesan for the State

J Shepherd for the Accused

INTERLOCUTORY RULING

11 February 1997

LENALIA AJ: The accused was originally charged with an information laid on 26th of March 1995 charging that on 15th of September, 1991 at Yombi Village in Ialibu, Southern Highlands Province, he abducted one Maria Semal and detained her against her will thereby taking her away from her parents custody. A second charge of was alss also laid. The accuset through a&#160 lengthy periodommittal prol proceedings in the Mendi District Court.; On 23 October 1992 His Worship Mr Uras refused to commit the accused for trial on the chae charge of rape. On 13 June 1995 a diffeconstituted court presided ided over by His Worship Mr Bepo also refused to commit the accused for trial on the charge of abduction -S. 100 (2) of the District Courts Act Ch. No. 40.

Following the dismissal and refusaefusal to commit the accused for trial a bill of ex officio indictment was drafted in accordance with S. 526 (1) of the Code and signed and formally presented by Mrn to His Hois Honour Woods J on September 21st 1995. Somehow thictment containitaining four charges, one for abduction, anee for raping the same victim were never proceeded with until this month when Mr Kesan addr addressed the Court at the commencement os circuit on February 3rd t3rd that he had decided to proceed with the case of Pawa Kombea on the second week of the circuit because it had been outstanding for a long time. This was despite act that,that, the second week of the circuit was already allocated with certain cases to be heard. The State Prosecutor then made arrangement with the defence counsel to appear on 10th bruary 1997 in readiness foss for the commencement of the trial.

Before the trial could start, Mr Shepherd for the accused indd that Mr Kesan had served rved him a notice of his intention to make an application to amend the indictment which was originally signed and presented in September 1995. Mr Shepherd also indi that that before the Court would hear the application to amend, he was filing an urgent Notice of Motion to quash the indictment under SS. 534 (2) and 558 of the Criminal Code. I allowe defeo file the mote motionotion and invited the defence counsel to address the Court on the Notice of Motion. The motion sough foll orde orders:

“(1) The indictment in these proceedings ings be quashed.

(2) ҈ The time service of Motionotion be abridged to the time of the hearing of this mhis motion”.

I granted the seorderfurthvited Mr Shepherd to address the Court on his motion on authority of the case of R v MR v McEachcEachern [ern [1967-68] PNGLR 48. The main conon put by the the defence was the indictment presented in September 1995 was a nullity and formally defective in form within thning of S. 558(1) (b) of the Code and was ultra vires the powers of the State Prosecutor anor and was an abuse of the process. rther argued that S. 535 d535 does not grant this Court the power to amend the indictment that was already presented on the circnces where at the commencement of the trial of his client, the prosecution seeks leave for for a copy of an amended indictment bearing the signature of the learned Public Prosecutor to be substituted for the defective original indictment. Mr Shepherd furargued that that the original indictment presented on 21st of September 1995 is completely null and void by virtue of S. 526 of ode. According to Mr Shepherd, the only person who can sign an ex officio indictment ment is the Public Prosecutor. That sectiy:

“#8220;526 Indictment without committal

(1) Where a Court of summary durisdi has refused to commit a person for an indictable offence, the Public Prosecutor may:

(a) & cer thdenceainedhe deionseions taken before tore the Cohe Court (urt (and aand any otny other relevant evidence); and

(b) &&#160nttiig ing indit a it a charge of any offence thae that thet the evid evidence ence appears to warrant.

(2) ټ Tde inayt mayresenoeseno the National Court by the Public Pros Prosecutoecutor or r or a State Prosecutor.

(3) ټ Wtere Plic Putor etor es a charge to writing in an indictmenttment unde under Subr Sub section (1) he shall cause to be served on the accused person or hiser:(a)& copies of the the deposdepositionitions taken at the committal proceedings; and

(b) copies of Statements taken from witnesses whom the prosecution intends to call at the trial, written such item before the commencementhe trs is nablerder low the accused person to prepare his defence.̶”

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In suIn supportpport of the contention that an ex officio indictment could only be signed by the Public Prosecutor I was referred to the case of The State v Esorom Buruge (No. 1) [1992] PNGLR 481 in which His Honour Jalina J held that unlike S. 525 of the Code providing for both the Public Prosecutor and a State Prosecutor to sign indictments only the Public Prosecutor may sign indictments brought under S. 526 (1) where there has been a refusal to commit for trial. The Court further held there that the State Prosecutor’s signature on the ex officio indictment was ultra vires his powers and the signature by the State Prosecutor on the ex officio indictment under S. 526 (1) was nly invalid but amounted toed to an abuse of the process.

It appears from the defence submission that the Public Prosecutor was only alerted by the defence counsel when Mr Shepherd made enquiries with the Public Prosecutor’s Office on Wednesday 5 February 1997 as to whether the prosecution was still intending to prosecute on trial upon the face of the original defective indictment. The Deputy Public Prosecutor advised Mr Shepherd that the original indictment signed and presented by Mr Kesan would be re-typed and signed by the Public cutor.

It is evident from the defence evidence that the initiative taken by the Publ Public Prosecutor to sign the proposed amended bill of indictment was necessitated by enquiries by the defence counsel into the status of the original defective indictment. It is also clear that ng wing was done by the Public Prosecutor’s Office since September 21, 1995 to rectify or remedy the defect created by their Hagen office.

In reply to the submission and address on the motion Mr Kesan for the State briefly replied that the application to amend was quite relevant to the nature of the indictment being an ex officio indictment. He submitted further that there were no new charges added, nor was there any insertion or deletion of any words or phrases on the proposed amended indictment bearing the Public Prosecutor’s signature. The only wadded was the sihe signature of the learned Public Prosecutor. san further argued that that the original indictment signed and presented by himself on 21s of September 1995 should be disregarded completely and thed the Court should accept the amended facsimile copy bearing the Public Prosecutor’s signature.

Mr Kesan argued that this Court has the power to amend an indictment under S. 525 of the Code. He argued further that despite the argument that the original indictment is defective because he signed it instead of the Public Prosecutor, the Court must use its inherent power under S. 155 of the Constitution to accept the indictment and the trial should proceed.

I am of the view that there are three issues involved. First what is the e of an f an indictment that has been presented but no plea has been taken. Secondly do I have twer toer to amend what appears to this court to be a defectx officio indictment incorrectly signed and presented by thby the learned State Prosecutor for and on behalf of the Public Prosecutor0; The third question is this that can this Court use the inherent powers given by S. 155 (3) & (4) of the Constitution to remedy a defect that is clearly outside the legislative intent and which is void “ab initio”.

Presentation of indictments are governed by SS. 525 and 526 of the Code. Sectio provides that no inno indictment may be presented in the National Court except in a accordance with SS. 525 and 526. The formeviso authorizes bzes both the Public Prosecutor and a Stateecutor to present indictmenctments in the National Court. The latterion specificallycally deals with indictments without commit#160; It provides for a sita situation where a committal court has refused to commit for trial pursuant to S. 100 (2) of the Districtts Act. Under this ciis circumss, ces, the Public Prosecutor may by overriding a refusal by the Court to commit present an ex officio indictment - see S. 526 (1) of the Code.

The Public Prosecutor can only do this after careful consideration of all evidence and any other relevant evidence that may become available to him. I note from the filt the othe original indictment was signed by Mr Kesan with the words “for the Public Prosecutor”. Quite apparently san did ndid not have the pto sign the ex officio indictment by authority of The StateState v Esorom Buruge. The original indic was caps captioned in capietters “EX OFFICIO INDICTMENT”. He howeveowever has the twer to present an ex officio indictments as required by S (2) of the Code.

It is obvious from the Court recorrecord that the original indictment in its defective form was formerly signd presented by Mr Kesan onan on 21st of September 1995. The qun posed is that what what is the effect of an ex officio indictment that has been signed and presented by the State Prosecutor. The learned authors of Criminal law and Practice of Papua& New Guinea (2nd Ed) say thay the following in relation to presentment of indictments at p. 572:

“The phrase ‘The tment may be presented to’ in subs. (2) of this sectisection and S. 526 implies a presentation in open court but without a plea being called for (see, e.g. R V Topulumar and Ors [1971] - 1972] PNGLR 320, 322). Previouin order for an indn indictment to be in fact an indictment it appears that it had to be physically presented in open court. Thhe prosecutor must redheredhe charge to writing (SS. 525 (1) and 526 (2). Per Prer Pratt J, Artilberilbert Suedley v St [198] PNGLR at 404 - 405.”The same learned authors further say at p. 574:

&#8p>“The State can, as of right, present one indictment (and one indic only) as a result of one cone committal. This does not permit ralitrality of indictments. Thiclusion is arrived at h at having regard to the intention of the legislature as appears from a reading of SS. 524 (10 and 526.”

The common lawtion different from wrom what the learned authors expressed in d in the above quotes. In R V ThompsV Clein [1975[1975] 2 All E R 1028. the Appellants were committed for trial by a magistrates&# Court on varn various charges. When the indictmas presented to the Crown Court, it did not include a singlsingle one of the charges on which the appellants had been committed. Theecutiught bstituttituteitute the indictment for other charges to which the defence moved to quas quash the indictment. The Circuit Jquashe indictndictment but granted an application by the Crown to present a new indictment.ment. Thel proceeded on the newc newctment and both appellants were convicted. They appealed against thenr convictions onns on the ground that the indictment was aity.

The Court said in p. 1028:

“It wast was only once that an indictment could be preferred on the basis of one ttal. If that indictmdictment f iled in toto, the remedy for the Crown, if it was desired to peruse the prosecution, was to obtain the leave of the Court of Appeal or of a High Court judge to prefer a bill of indictment...”

At p. 1031 it further said:

“The argument can be and is put in an alternative way - in our judgement it does not matter which way it is put for the purpose of this case - that the Crown is not entitled to prefer more than once an indictment based on a committal for trial...”

A further observation is made by looking at our next door neighbour case of R V Parker [1977] VicRp 3; [1977] V.R. 22 in which the Supreme Court of the State of Victoria held on the issue of presentment of indictment. In that case, the presentuent upon which an accused was arraigned was signed by the prosecutor for the Queen and was subsequently filed in Court on the don which that prosecutor commenced to hold office as an Acting County Court judge. Wh0; When anication for leor leave to appeal against conviction was made, the Appellate Court held that the trial was a nullity because the indictment had been invalidly pred as the prosecutor who signed it was disqualified from exom exercising the powers of a prosecutor by reason of his judicial appointment. At p. 42, line 18, Hnour Mour Murphy J observes:

“It appears to me to be quite clear that once presentment is made anyone may take up the prosecution in the Court. I made enquiries as to theo the practice followed by prosecutors in the matter of presentments. Ild appear that time-honouhonoured practice accords with the view of the meaning of S. 353 [quivalent of our SS. 525 (125 (1) and 526 (2)] which I have formed and stated above. The practice ist if one ofne of their number retires, or resigns, or dies, or is elevated to the Bench, all presentments signed by such a prosecutor are recalled if they are nt filed. I may say that I see npellmpelling reason whon why presentments are not filed in the Court on the first day of the sittings to which a person has been committed. This would avoid prs such such as that with which we are here concerned for once a presentment is filed, the same considerations no longer apply. ntment has been made and tand the Crown prosecutes.”

There are two main types ypes of indictments in our jurisdiction. are those taken under S. r S. 525 (2) following committal edings under SS. 94 (B) and) and 100 (1) (3) (a) of the District Courts Act. The second type is unde526. 526 (2) where there han a refusal to commit by thby the committal magistrate for insufficiency of evidence - see S. 100 (2) District Courts Act. I am inclto think that onct once having decided to reduce the cthe charge into writing and then that indictment is infact presented to thrt, that in my reading of SS 524, 525 (2) 526 (2) is the end of the matter and the prosecutsecution cannot thereafter seek to amend by a substitute, and an amended indictment. I must thereforee with theh the defence counsel that, the State had already presented the indictment on 21st of September, 1995 and I must refuse acceptance of the amended bill of indictment proposed by the Prosecutor.

My seco second observation is based on Mr Shepherd’s submission that this Court has no power to amend an indictment which is a nullity or which is formally defective. The power of this Court to amend indictments is clearly set out in S. 535 of the Code. That sn says:

̶“525 Amendment of indictments

(1) If on the trial of a perharge with an offence:

(a) ҈ < th0; there appears ta vari variance between the indictment and the evidence; or

(b) a itarspehat:t/p>

(i)&>(i) ҈ any words that ough oughhave inserted in the ithe indictndictment have been omitted, or

(ii) ;ټ any wory words thas that ought to have been inserted, the court mayt thiit thp>

(c)&#1c) < &160; thi var, omission or inserinsertion is not material to the merits of the case; and

(d) & the accused person will nill not be prejudiced in his defence on the merits, order the indictment to be amended so far as it isssarysuch (if as to postponing the trial as the Court thinks reasonable.

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(2)&#(2) &160; ;ټ Wh0; When an indicindictment has been amended, the trial shall proceed at the appointed time on the amended indictment, and the same consequences ensuell res and as to all persons as if the indictment had had been been originally in its amended form.

(3) &#1f it becomes necessary tary to draw up a formal record in any case in which an amendment to an indictment has been made, the rechall awn uting he indictment as amended, and without taking any notice of thof the face fact of t of the athe amendment having been made.”

My reading of S. 535 is that, the prosecution is not seeking to amend the indictment because of any discrepancies it perceives between the wording of the original indictment and the evidence or because certain words need to be inserted or omitted in the original indictment. Theecution is actually seey seeking to rectify a serious formal defect in the original indictment by way of substituting an entirely different document as much as an initiating indictment, this time bearing the Public Prosecutor’s signature. The State cutor’s si;s signature on the ex officio indictment cannot be omitted and if it was an indictment under S. 525 (2) it would have no status and it would not have been filed. Nor would thlic Prosecutorcutor’s signature be inserted in the original indictment for the obvious reason that nobody in this world can possibly sign his signature exby the man himself.

Mr Kesan alternatively submitteditted that if I cannot amend the indictment by accepting the proposed amended ex officio indictment then I should use the power given this Court under S. 155 of the Constitution.

The Constitution S. 155 Sub section (3) and (4) say:

“(3) ټ The National Court:ourt:

(a) an s herent power to revieweview any exercise of judicial authority; and

(b) has such juriion awers as arferreit by this Constitution or any law, except where:

(c)&>(c) #160; ҈  jurisdiction is credsu Couu Courthe eion of the Nationalional Cour Court; ort; or

(d

(d) &&#160 Supeeme Ceme Court aurt assumes jurisdictioer Suion (r

(e) t60; the pohe powereor r iiew is removed or restricted by a Constitutional Law or an f theiamen>

(4

(4)&#16) & Bo0; Both the Supreme and the National Court have an inherent power to make in such circumstances seem to theper, order in the nature of prerogative writs and such other orders as are necessary to do o do justice in the circumstances of a particular case.”

Under our Constitution, the Supreme Court and the National Court both have appellate as well as review jurisdictions. The Supreme Court as thal inal Court of appeal, has an appellate jurisdiction to hear appeals from the National Court and an inherent power to review all judicial acts of the National Court - see S. 155 (2) (a) and (b) of the Constitution. The Nal Court also has an s an inherent power to review any exercise of any judicial authority and as a superior to hear appeals from ocal and District Courts: see S. 155 (3) (a) Const. and 219 & 43 (2) of the District anct and Local Courts Act Ch. Nos. 40 & 41.

While the National Court has jurisdiction under the constitution to hear appeals from the Local and District Courts, the right of appeal is a statutory right. These statutory s of appeaappeal lie to the National Court against decisions of both the Local and District Courts as well as decisions of administrative authorities which in the performance of their duties ese judicial authority.&#160 In iple, judicial review iiew is concerned only with the protection of rights under public law. I t read S. 155 (3) and (4nd (4) the way Mr Kesan seem to say. Ev the case before me was was a review, the powers of reviewn the National Court by S. 155 (3) (3) is restricted and this Court must operate within limn limits pronounced for by a Constitutiona or an Act of the Parliameniament. This to me means that where the power to review is governed by a specific statutory requirement, the National Court power of review is restricted to the limits in that particular law.

As noted, where there is limin placed by law in relationation to its power of review, the National Court cannot overside such limitation. It is my firm view the jure jurisdiction given this Court to amend an indictment is governed by S. 535 of the Code. I must therefore keep withe limits provided in that section and the common law principles governing presentment of t of indictments. On this instance Iot th sh I should use the inherent power given this Court to cure something that was void aoid ab initio.

My concern over thesceedings is that the Public Prosecutor’s Office in Mount Hagen sat on this file sincesince 21st of September 1995. No att were made to rectifectify the defect. One obvious option open her the State would have been to file a nolle prosequi theny for leave to prosecute under SS. 527 and 616 of the Code. This I tt was not goot goot good enough on the part of the prosecut/p>

I entirely agree wite with Mr Kesan that the charges contained in the defective ex officio indictment are very serous in natur60; The Public interest demt demands that the accused must be prosecuted sooner or later. The ant by the defence coue counsel is far more convincing than by the State. I must therefore agree Mr h Mr Shepherd that if I were to accept the proposed ameex-officio indictment bearing the signature of the Public Plic Prosecutor, it would in my view be tantamount to judicially conferringost facto validity on an otan otherwise incurably defective and unauthorized indictment. I makefollowing order:

:

1. I must refuse to accept the proposed amended ex-officio indictment bearing the signature of ublic Prosecutor for various reason addressed in the body oody of this judgement.

2. &##160; I60; I order rhe oalgindicindictment to be quashed for being defective in form.

3. The Defendantlshaldibe argcharged from theoceedand hil monies shall be refunded to him.

A

After fter I annI announced this ruling, Mr Shepherd for the accused sought orders for coslying. 612he Code. This sectionction is c is c is clear and only provides for costs to be ordered to persons who are aggrieved by the offence and only aa person has been convicted. Thson for the Defence appl application was that because ause the Public Prosecutor could have foreseen results of presenting an ex officio indictment bearing the name of a State Prosecutor. He tted that the Public Pric Prosecutor could have filed a Nolle Prosequi. I invited Mr Kesan to rsimy simply submitted that the Public Prosecutor never antied the outcome pronounced by the Court.

It is not onot only that, but this was a Criminal process. Of course if I found was negligence on the part part of the State I would order a nominal cost by way of compensation in accordance with SS. 618 &a18 A which sections were not quoted to me by Mr Shepherd. I do not tthe defence ence ence can seek costs or even damages agains State or the Public Prosecrosecutor’s Office. I must refuse tplication fion for costs and order the parties to meeir own cosp>

Lawyerawyerawyer for the State: The Public Prosecutor

Lawyer for the Accused: Shepherds Lawyers