N5025
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 31 0F 2006

TITUS MURAMUL, WALTERS MALO, MICHAEL YALO,
PEPS KESI, PAUL IMIE, REX HEKAWI,
ELVIS PHILIP, SUL GUNUA AND JOEL MAKAU
Appellants

V

THE STATE
Respondent

Kimbe: Cannings J
2006: 13 October,
2007: 13 July

CRIMINAL LAW – practice and procedure – whether District Court has power to strike out an information, as distinct from dismissing it – District Courts Act, Section 124 – effect of dismissal of information – whether a bar to subsequent proceedings regarding the same matter – District Courts Act, Section 162.

The appellants faced trial in the District Court for various summary offences. The police prosecutor did not turn up for the trial and the appellants' lawyer made an application under Section 124 of the District Courts Act that the case be dismissed. The District Court did not dismiss the case but struck it out for want of prosecution. The police later arrested the appellants and charged them with the same offences. The appellants are appealing against the District Court's decision to strike out their case, arguing that in the circumstances the only proper decision was to dismiss it.

Held:

(1)	When a criminal matter is set down for trial in the District Court and the defendant attends voluntarily but the informant does not appear, the Court is required by Section 124(1) of the District Courts Act to either dismiss the information or adjourn the hearing.

(2)	If the information is dismissed the District Court must make an order of dismissal and, on application by the defendant, issue a certificate of the order under Section 162(1) of the District Courts Act.

(3)	Production of a certificate is by virtue of Section 162(2) of the District Courts Act a bar to further legal proceedings regarding the same matter.

(4)	The District Court erred in law by striking out, rather than dismissing, the information on each offender and by not making an order for dismissal.

(5)	The appeal was accordingly upheld and the order striking out the information on each offender dismissed.

(6)	The application for dismissal was remitted to the District Court, for re-hearing in accordance with law.

Cases cited

The following cases are cited in the judgment:

Leo Getsi and East New Britain Provincial Government v PNG Harbours Board [1993] PNGLR 408
Namba Kispa v Dobel Motors Pty Ltd [1988] PNGLR 103
The State v Peter Painke (No 2) [1977] PNGLR 141
Wilson Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

APPEAL

This was an appeal from a decision of the District Court striking out, rather than dismissing, informations against the appellants.

Counsel

B Tanewa, for the appellants
F Popeu, for the respondent

13th July, 2007 

1. CANNINGS J: This is an appeal against a decision of the District Court at Kimbe, constituted by Mr P N'Dranoh, in which his Worship struck out criminal proceedings for want of prosecution. The nine appellants say the proceedings should have been dismissed, not struck out. They are concerned about this because following the District Court decision the police arrested and charged them over the same things that were struck out. They say that if the proceedings were dismissed, as they should have been, that would have been the end of the matter.

THE LAW

2. The appellants rely on Section 124 of the District Courts Act (absence of complainant) which states:

If, on the day and at the place appointed by a summons for hearing and determining an information of a simple offence or an indictable offence triable summarily—

(a)	the defendant attends voluntarily in obedience to the summons, or is brought before the Court by virtue of a warrant; and

(b)	the complainant, having had notice of the day and place, does not appear by himself or by his legal representative,

the Court shall dismiss the information unless for some reason it thinks proper to adjourn the hearing to some other day.

3. An information is the document by which a criminal case is commenced in the District Court. The person presenting the information (usually a police prosecutor) is called the informant. Section 162 of the District Courts Act (proceedings in case of dismissal) states what happens if an information is dismissed:

(1)	If the Court dismisses an information, complaint or set-off, it shall make an order of dismissal and shall, on application, give to the defendant or complainant, as the case may be, a certificate of the order signed by one or more of the adjudicating Magistrates or the Clerk.

(2)	A certificate under Subsection (1) is, on its production, without further proof, a bar to any other information, complaint or legal proceeding in any Court in the country (other than proceedings on appeal) for the same matter against the same party.

4. Section 130 of the District Courts Act (hearing in absence of either or both of the parties) is also relevant. It allows the District Court to proceed with a trial in the absence of either or both the informant or the defendant. It states:

If, at the time and place to which a hearing or further hearing of an information for a simple offence is adjourned, either or both of the parties does not or do not appear personally or by his or their legal representative or representatives, as the case may be, the Court may proceed to the hearing or further hearing as if the party or parties were present or, if the complainant does not appear, the Court may dismiss the information with or without costs.

THE FACTS

5. The nine appellants and three other persons were charged with various offences under the Firearms Act and the Summary Offences Act for being unlawfully in possession of firearms and ammunition. They were summary offences so they were to be prosecuted summarily by trial in the District Court (see District Courts Act, Section 20 (jurisdiction of courts); Interpretation Act, Sections 21 (indictable offences) and 22 (offences punishable upon summary conviction) and Wilson Kamit v Aus-PNG Research & Resources Impex Ltd 2007 N3112).

6. A police prosecutor started the case by laying informations against each of the 12 co-accused. Three of them pleaded guilty and were each convicted and sentenced to eight months imprisonment. The remaining nine are the appellants. They pleaded not guilty. They attended court when their case was mentioned, six times. Their trial was set down for five days starting on 15 May 2006. On that day the appellants appeared but there was no appearance by the police prosecutor or anyone else from the State. His Worship noted that the appellants had been charged on 10 April 2006 and a pre-trial hearing was held on 10 May 2006. His Worship wrote on the court record that there was nothing before the court to explain the absence of the police. The police were showing disrespect for the court and it looked as if they were not interested in prosecuting the case. However, he adjourned the trial to the next day, 16 May 2006, and said that would be the last adjournment.

7. On 16 May 2006 the appellants again appeared before Mr N'Dranoh. Again the police prosecutor was absent and no one appeared for the State. The appellants' lawyer, Mr Tanewan, made an application under Section 124 of the District Courts Act for dismissal of the proceedings. His Worship did not make an order for dismissal. He struck out the informations for want of prosecution and discharged the appellants, some of whom had been in custody pending the trial. His Worship noted on the court's record:

Still no appearance or word from the police prosecutor having carriage of this matter. I see no genuine reason to believe that the police prosecutor concerned will show up if the matter is further adjourned. It follows therefore that I see no genuine reason for further adjournment as police have had enough time to prepare to prosecute this matter. I accordingly strike out the informations for want of prosecution.

8. The police later arrested the appellants and charged them with the same offences that were in the informations that Mr N'Dranoh struck out.

THE ISSUES

9. The issues are:

1	Does the District Court have the power to strike out, as distinct from dismiss, a criminal case?

2	Did the District Court err in law?

3	What happens if an information is dismissed?

4	If errors were made, what should the National Court do?

1	DOES THE DISTRICT COURT HAVE POWER TO STRIKE OUT, AS DISTINCT FROM DISMISS, A CRIMINAL CASE?

10. No. The wording of Sections 124 and 130 makes this clear. If the preconditions are satisfied, the court's only options are to:

•	dismiss the information under Section 124;
•	adjourn the hearing under Section 124;
•	proceed with the hearing under Section 130.

11. There is no such thing as striking out.

12. The preconditions under Section 124 are:

•	a day and place have been appointed by summons for hearing and determining an information of a simple (ie summary, see definition in Section 1) offence or an indictable offence triable summarily;
•	the defendant attends voluntarily or is brought before the court by virtue of a warrant;
•	the complainant (which under Section 1 of the Act includes an informant) has notice of the day and place of the hearing;
•	the complainant does not appear by himself or his legal representatives.

13. Mr Popeu for the State conceded that striking out an information as distinct from dismissing it was not an option available upon a proper construction of Section 124. He explained that what happened in the present case was a common practice and that it was not unusual to see an information that had been struck out re-instituted by the police. He could not, however, explain how this practice could be regarded as lawful. Surprisingly there is little case law on the point. Mr Tanewan referred to the judgment of Doherty J in Leo Getsi and East New Britain Provincial Government v PNG Harbours Board [1993] PNGLR 408. Her Honour found that the District Courts Act did not allow an information to be struck out. Referring to Section 124, she remarked:

The provision is a mandatory one. It obliges the court to dismiss or adjourn. There is no need to consider the National Court Rules or other legislation. The District Courts legislation covers the situation.

14. Other than that the case law on this important aspect of criminal practice and procedure is silent. Be that as it may, this is a matter of giving the words of an Act their plain and simple meaning. If the defendant appears for trial in the District Court and the police prosecutor does not turn up and proper notice has been given of the trial the Magistrate has a narrowly confined discretion: dismiss or adjourn. The case cannot be struck out.

2 	DID THE DISTRICT COURT ERR IN LAW?

15. Yes. All of the pre-conditions prescribed by Section 124 were satisfied. The decision of the learned Magistrate to strike out the informations was made in error. His Worship had no such power. He should have either dismissed the information on each of the nine applicants or adjourned the hearing. He had already stated the day before that he would not adjourn the trial again so he was duty bound to dismiss the informations.

3	WHAT HAPPENS IF AN INFORMATION IS DISMISSED?

16. Dismissal of an information triggers Section 162 (quoted earlier), which operates this way:

•	the District Court must make an order of dismissal (Section 162(1));
•	the defendant can apply for a certificate of the order (Section 162(1));
•	if the certificate is applied for, it must be signed by the adjudicating Magistrate or the Clerk of the District Court and given to the defendant (Section 162(1));
•	if the certificate is produced to anyone it is without further proof a bar to any other information, complaint or legal proceeding in any court in the country (other than proceedings on appeal) for the same matter against the defendant.

17. As I have already found, the learned Magistrate should have dismissed the informations on the nine defendants on 16 May 2006. His Worship should have then made formal orders of dismissal in relation to each information under Section 162(1). The appellants would have been able to apply for certificates of dismissal, which the District Court was obliged to give them. They would have been able to produce their certificates to the police. That would have prevented the police from arresting and charging them with the same offences that were the subject of the informations. If the police persisted the officers concerned could be in contempt of the order of dismissal and subject to prosecution. Alternatively the appellants could approach the District Court or the National Court for appropriate declarations and orders. Section 162 should have operated to protect the appellants in this case irrespective of the fact that the information on each accused had been dismissed without a trial on the merits.

18. In a civil appeal decided some years ago in Mt Hagen (Namba Kispa v Dobel Motors Pty Ltd [1988] PNGLR 103) Hinchliffe J suggested that Section 162 only operates if a complaint has been dismissed after a trial on the merits. If it was dismissed due to the non-appearance of the complainant (this is done in civil cases under Section 144, which is a sister provision to Section 124), Section 162 does not operate and the complainant is at liberty to commence the proceeding again in the District Court, his Honour decided. With respect, I do not agree with that. Section 162 does not distinguish between, on the one hand, dismissal for want of appearance or want of prosecution and, on the other hand, dismissal of a case after a trial on the merits. In a criminal case especially, there are very good reasons for giving people who have had cases against them dismissed the full protection that Section 162 provides. It encourages the police to get their cases ready for prosecution. It discourages the police from wasting the court's time. It enforces the rights of accused persons to the full protection of the law and in particular the right to a fair hearing within a reasonable time; human rights that are entrenched by Section 37 of the Constitution (The State v Peter Painke (No 2) [1977] PNGLR 141).

19. Section 162 should have operated in the present case. If things had been done properly the appellants would have been given certificates of dismissal, which they could have produced to the police. This would have protected them against being arrested and charged again.

4	WHAT SHOULD THE NATIONAL COURT DO?

20. It is clear that there has been a substantial miscarriage of justice so I will under Section 230(2) of the District Courts Act allow the appeal. As to what happens next it is best to remit the matter to the District Court, so its records can be corrected. That will ensure compliance with the District Courts Act not only in this case but also, I trust, in future cases. The orders will be made under Sections 230(2)(d) and (f) of the District Courts Act. I will give the orders with all due respect to the learned Magistrate who appears to have inadvertently fallen into error by following what is apparently a common, but wrong, way of disposing of criminal cases in the District Court.

COSTS

21. Costs will follow the event, so I will award costs to the appellants.

ORDER

(1)	The appeal is allowed.

(2)	The order of the District Court of 16 May 2006 in DCO No 344-355/2006; CB No 68-79, in so far as it strikes out the information on each appellant for want of prosecution, is quashed.

(3)	The application by the appellants for dismissal of the informations against them, which application was heard in the Kimbe District Court on 16 May 2006, is remitted to the Kimbe District Court for re-hearing in accordance with law, within seven days after the date of service of this order on the Clerk of the Kimbe District Court.

(4)	The appellants shall not be arrested or charged again, and no other information, complaint or legal proceedings shall be brought against them, in relation to the offences the subject of those informations, without the leave of the National Court.

(5)	The State shall pay the costs of this appeal to the appellants, to be taxed if not agreed.

Appeal allowed.
__________________________________________
Paul Paraka Lawyers: Lawyers for the Appellants
Public Prosecutor: Lawyer for the Respondent