N4968
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 861 & 862 0F 2007

THE STATE

V

ALIKI MOROCA, KALIVATI MURIATABUA,
MANASA DUMUCOTO & JOLAME FUKIREVA

Buka: Cannings J
2007: 14 September, 24 October

CRIMINAL LAW – practice and procedure – Criminal Code, Section 53(5) – prosecution for an offence of unlawful drilling etc must be commenced within six months after the offence is committed – meaning of "prosecution" – commencement of prosecution for indictable offence – whether a prosecution commences upon laying of information, committal for trial, presentation of indictment or beginning of trial.

Four men were charged with unlawful drilling under Section 53(1)(a) of the Criminal Code. After their committal for trial and before the start of the trial they applied to be discharged from the charge (ie have the charge dismissed) on the ground that the prosecution had not commenced within six months after commission of the offence, as required by Section 53(5) of the Criminal Code, which states:

A prosecution for an offence against this section must be commenced within six months after the offence is committed.

Held:

(1)	The prosecution of an indictable offence commences when an information is laid, not when a person is committed for trial, when an indictment is presented or when the trial begins.

(2)	In this case, the information was laid two days after the last date of commission of the alleged offence, well within the six-month time limit. Therefore Section 53(5) was complied with and the application was refused.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy, SCR No 34 of 2005, 15.12.06
Re Application by Benetius Gehasa (2005) N2817
Re Ricky Yanepa [1988-89] PNGLR 166
Wilson Kamit v Aus-PNG Research & Resources Impex Ltd, MP No 937 of 2006, 02.02.07

RULING

This was a ruling on an application to strike out a criminal charge.

Counsel

L Rangan, for the State
P Kaluwin, for the applicants

24 October, 2007 

1. CANNINGS J: Four men have been charged with unlawful drilling under Section 53(1)(a) of the Criminal Code. The District Court has committed them for trial and they are in custody awaiting their trial. They have applied to the National Court to be discharged from the charges (ie have the charges dismissed) on the ground that the prosecution has not commenced within six months after commission of the offence, as required by Section 53(5) of the Criminal Code. Their application raises this issue: when, exactly, does the prosecution of an offence commence? Does it commence when a police prosecutor lays an Information in the District Court? When the District Court commits an accused person for trial? When an indictment is presented in the National Court? Or is it when the trial begins? A trial begins when the accused is called upon to plead to an indictment (Criminal Code, Section 557(1)).

2. If it commences at either of the first two points in the criminal process, this application will fail as the information was laid and the applicants were committed within six months after commission of the alleged offence. If a prosecution commences upon presentation of an indictment or at the beginning of the trial, the application will be upheld as more than six months have elapsed.

THE CHARGES

3. The applicants are Fijian nationals and former members of the Fiji Defence Force. They arrived in Bougainville in October 2005 and until they were detained in custody in February 2007, spent most of the time around Tonu, allegedly helping to organise and train a paramilitary group called the Mekamui defence force. They have each been charged with two offences regarding their activities at Tonu from 29 October 2005 to 18 February 2007:

•	assisting to establish and organise a paramilitary force, contrary to Section 51(1)(b) of the Criminal Code; and

•	training or drilling other persons not being members of the disciplined forces regarding the use of arms and the practice of military exercises without the prior permission of the Prime Minister – unlawful drilling – contrary to Section 53(1)(a) of the Criminal Code.

COURT PROCEEDINGS

4. On 20 February 2007 First Constable Michael Kukubak, a police officer attached to the Buka Police Station, laid two informations against them (one for each charge) in the Buka District Court. They appeared in the District Court on 11 occasions before 14 June 2007, when they were committed to stand trial in the National Court on each charge. The first circuit of the National Court in Bougainville after the date of committal was in September 2007. I was the circuit Judge and in that period I conducted a pre-trial review and set the case down for trial for three days during the next circuit, which is in November 2007. In the course of conducting the pre-trial review the applicants' counsel, Mr Kaluwin of the Public Solicitor's Office, indicated that they would be pleading not guilty to both charges as they flew to Bougainville on the understanding that they would be preaching, as missionaries. They will also raise compulsion as a defence. They will say that they were compelled to stay for fear of their lives. They will say that they were never captured by the police – they escaped and then surrendered. Mr Kaluwin also made an application that the second charge (unlawful drilling) is time-barred under Section 53(5) of the Criminal Code, which states:

A prosecution for an offence against this section must be commenced within six months after the offence is committed.

5. That is the application I am now ruling on. Dates are critical with these sorts of applications so I will restate the important ones, all of which are in 2007:

•	18 Feb – the last day on which the alleged offences were committed;

•	20 Feb – informations laid in Buka District Court;

•	14 Jun – date of committal;

•	18 Aug – the date that is six months after commission of the offences;

•	14 Sep – date of hearing this application – no indictment presented.

SECTION 53(5): AN UNUSUAL PROVISION

6. It is unusual as only a small number of other provisions of the Criminal Code put a time limit on commencement of a prosecution, eg Sections 54 (sedition), 66 (rioters remaining after command ordering them to disperse), 107 (prosecution for corrupt and illegal practices). Section 624(1) (limitation of proceedings) deals with a specific category of offences. It states:

An action or prosecution against any person for any thing done in pursuance of any of the provisions of this Code with respect to the arrest of offenders or the seizure of goods must be commenced within six months after the fact committed. [sic]

7. Section 36 (limitation of proceedings) of the District Courts Act imposes a similar time limit but only applies to "simple offences", those punishable on summary conviction before a court by fine, imprisonment or otherwise (see the definition in Section 1 of that Act). Section 36 states:

(1)	Subject to Subsection (2), in the case of a simple offence, unless some other time is limited for laying an information by the law relating to the particular case, the information may only be laid within six months after the time when the matter of the information arose.

(2)	The time limit of six months referred to in Subsection (1) does not apply to an information laid for an offence specified in Schedule 2 to the Criminal Code (Chapter 262).

8. Section 15 (summary convictions) of the Criminal Law (Miscellaneous Provisions) Act Chapter No 263 is similar in terms to Section 36 of the District Courts Act. The offence of unlawful drilling created by Section 53 of the Criminal Code is not one of the offences triable summarily in the District Court under Section 420 and Schedule 2 of the Criminal Code.

THE GENERAL POSITION: NO TIME LIMITS FOR CHARGING

9. In the absence of Section 53(5) there would be no time limit on charging someone with the offence of unlawful drilling. This would accord with general position that a person can be charged with an indictable offence at any time after commission of the offence. An indictable offence is one punishable by a term of imprisonment of more than 12 months; see Interpretation Act, Sections 21 and 22. There are no general time limits on charging people suspected of committing such offences. It is not like the time limits imposed by the Frauds and Limitations Act on commencing civil actions. For example, if a person is alleged to have murdered someone 30 years ago, they can be charged irrespective of the long period that has elapsed since the offence was allegedly committed (subject to their right under Section 41 of the Constitution not to be treated harshly or oppressively).

GENERAL TIME LIMITS APPLYING AFTER A PERSON IS CHARGED

10. Once a person is charged with an indictable offence there are some general time limits and guidelines that come into play. These arise both from the Constitution, Section 37 (protection of the law) and the Criminal Code, Section 552 (right to be tried). Section 37(3) of the Constitution states:

A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court. [Emphasis added.]

11. Section 37(14) of the Constitution suggests that once a person is committed for trial, their trial should commence within four months. It states:

In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

(See Re Ricky Yanepa [1988-89] PNGLR 166; Re Application by Benetius Gehasa (2005) N2817.)

12. Section 552 of the Criminal Code gives further protection to accused persons by giving them the right to be considered for bail or the right to be discharged if there is a delay in commencing their trial. It states:

(1)	In this section, "place of trial" means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(2)	A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.

(3)	If no indictment has been presented against the applicant—

(a)	where the application is made at a sittings of the National Court at the place of trial—before the end of the sittings at which the application is made; or

(b)	where the application is made at a sittings of the National Court at some other place—before the end of the next sittings of the court at the place of trial,

the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(4)	If—

(a)	a person has made an application under Subsection (2); and

(b)	at the end of the sittings of the National Court at his place of trial next following the application—

(i)	no indictment has been presented against him; or

(ii)	the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged.

SIX MONTHS TO COMMENCE A PROSECUTION

13. Having put Section 53(5) of the Criminal Code in the context of the above provisions, all of which are calculated to give the full protection of the law to persons charged with criminal offences, it is not clear why prosecution of the offence of unlawful drilling is subject to a specific time limit. However, there is no dispute that there is a time limit: the prosecution must be commenced within six months after the offence is committed. The question remains, the State has six months, to do what?

•	lay the information? or
•	have the accused committed for trial? or
•	present an indictment? or
•	start the trial?

HAS THE STATE COMPLIED WITH THE SIX-MONTH TIME LIMIT IN THIS CASE?

14. Mr Kaluwin argues no, as no indictment has been presented against the applicants. He submits that a prosecution commences upon presentation of an indictment in the National Court; and what happens before then are preliminary steps taken in preparation for a prosecution. The six months available to the State expired on 18 August 2007, and it is now too late to commence a prosecution. It is time-barred. Mr Kaluwin presented no case law in support of his submission and could point to no definition of "prosecution" in any legislation, let alone any provision that stated when a prosecution commences.

15. The State Prosecutor Mr Rangan also presented empty hands when I asked him for authority to support his counter-argument – that a prosecution commences upon laying of an information.

WHAT IS A PROSECUTION? AND WHEN DOES IT COMMENCE?

16. The word "prosecution" is not defined by the Criminal Code or the Interpretation Act so it should be given its plain and ordinary meaning. Statutory interpretation is not a mystical process by which Judges call upon supernatural powers to divine the intention of the legislature. The best starting point is the dictionary. According to the Macquarie Dictionary © 2001 "prosecution" means "the instigation and carrying on of legal proceedings against a person". "Legal proceedings" is a broad way of putting it. I think "court proceedings" is a better definition of describing a prosecution. Specifically: criminal proceedings – those that can result in criminal penalties such as imprisonment if the person is convicted. So a useful definition of "prosecution" is: a court case in which a person is charged with committing a criminal offence.

17. If a person is charged with an indictable offence they will have to answer to the charge, first, in committal proceedings in the District Court. The purpose of such proceedings is not to establish guilt or innocence but to decide whether the accused should face trial. Committal proceedings are an integral part of the criminal process. A trial cannot start without there being committal proceedings. Even under Section 526 of the Criminal Code – which gives the Public Prosecutor power to present a so-called ex officio indictment – there has to be a refusal to commit before the power can be invoked (Application by Herman Joseph Leahy, SCR No 34 of 2005, 15.12.06; Wilson Kamit v Aus-PNG Research & Resources Impex Ltd, MP No 937 of 2006, 02.02.07). The District Court proceedings (where the committal process takes place) are therefore properly regarded as part and parcel of the prosecution (which, if an accused is committed, leads to a trial in the National Court). It follows that the prosecution of an offence starts in the District Court, so it "commences" – to use the words of Section 53(5) – when the information is laid. In the present case the information was laid on 20 February 2007 – two days after the last day on which the alleged offences were committed. This was well within the six-month time limit set by Section 53(5). The prosecution is therefore not time-barred.

ORDER

18. The application is refused and the trial will proceed.

Ruling accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the applicants