State v Nanal [2007] PGNC 240; N5480 (4 October 2007)

N5480

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 725 0F 2006

THE STATE

V

BOND NANAL

Madang: Cannings J
2007: 3, 4 October

CRIMINAL LAW – practice and procedure – Criminal Code, Section 567 – demurrer – appropriate time at which to demur (ie object) to an indictment – whether indictment must first be presented – appropriate grounds on which demurrer can be made – Criminal Code, Section 560 (pleas) – whether only ground is that the indictment does not disclose an offence cognisable by the court.

A man was committed for trial on a child sex offence. Before he faced trial, he filed a demurrer (ie an objection) to the charge under Section 567 of the Criminal Code on four grounds: (a) the date of commission of the alleged offence was uncertain; (b) there was inordinate delay between the date of commission of the alleged offence, the date on which the complaint was made to the police and the date on which committal proceedings commenced in the District Court; (c) no reasonable tribunal of fact could convict him as the facts and evidence disclosed in the District Court depositions are manifestly unreliable and inconsistent; and (d) the police did not accord him his constitutional rights when investigating the allegations.

Held:

(1) The demurrer was made prematurely as there was no indictment in place yet; and therefore nothing to demur (object) to.

(2) If the demurrer were not premature, it would still not be upheld as the grounds on which it has been made are improper. The only ground on which a demurrer can properly be made is prescribed by Criminal Code, Section 560(1): the indictment does not disclose any offence cognisable by the court.

(3) The demurrer was for those two separate reasons an abuse of process and was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Gabriel Laku v The State [1980] PNGLR 7
The State v Roy Nana [1986] PNGLR 83

RULING

This was a ruling on a demurrer.

Counsel

M Ruari, for the State
Y Wadau, for the accused

4th October, 2007

1. CANNINGS J: Bond Nanal is a schoolteacher, aged in his 30s. He has been charged with a child sex offence. He is alleged to have had sex with a 15-year-old female student in 2004. In March 2006 the Madang District Court committed him for trial in the National Court. His case has not yet been set down for trial.

THE DEMURRER

2. In March 2007 he filed a demurrer to the charge. I heard it yesterday and this is my ruling on the demurrer. A demurrer is an objection. In PNG, a demurrer to a criminal charge is made under Section 567 of the Criminal Code. Mr Nanal's demurrer was presented by his lawyer, Mr Wadau, who relied on four grounds:

(a) the date of commission of the alleged offence was uncertain – the information (ie the charge) before the District Court asserted that the offence was committed at some time in September 2004, which is too vague and uncertain, Mr Wadau submitted;

(b) there was inordinate delay between the date of commission of the alleged offence (September 2004), the date on which the complaint was made to the police (October 2005) and the date of committal (March 2006);

(c) no reasonable tribunal of fact could convict him as the facts and evidence disclosed in the District Court depositions are manifestly unreliable and inconsistent – in that regard, Mr Wadau asked me to peruse the District Court depositions and observe the many holes in the State's case; and

(d) the police did not accord him his constitutional rights when investigating the allegations, eg he was not warned of his right to remain silent, not given the chance to contact a lawyer before being interviewed and he was unlawfully detained in the police lock-up before being brought before the court following his arrest.

OBJECTION TO THE DEMURRER

3. The State Prosecutor who responded to the demurrer, Mr Ruari, objected (so this was an objection to an objection) and submitted that Mr Wadau was 'putting the cart before the donkey' as there was, at this stage, nothing to object to. No indictment has been presented, so the demurrer is premature.

4. I agree with and uphold that submission. The purpose of a demurrer is to allow an accused person to object to an indictment on the ground that "it does not disclose any offence cognisable by the court". They are the words used by Section 560(1) of the Criminal Code, which provides the only ground on which a demurrer can be made (The State v Roy Nana [1986] PNGLR 83). In the present case, no indictment has been presented and apparently no copy of the indictment has yet been given to the accused person or his lawyer under Section 554(1) of the Criminal Code. This demurrer has been made prematurely. There is no indictment in place yet; and therefore nothing to demur (object) to.

5. If the demurrer were not premature, I would still not uphold it as the grounds on which it has been made are improper. The only ground on which a demurrer can properly be made is prescribed by Criminal Code, Section 560(1): the indictment does not disclose any offence cognisable by the court.

CRIMINAL CODE

6. Before pronouncing the formal order of the court, it will be useful to set out the provisions of Division VIII.4 (trial: adjournment: pleas: practice) of the Criminal Code that allow accused persons to challenge the authority of the State to bring a charge against them or putting it another way, to challenge the jurisdiction of the court to deal with the charge. Such a challenge – which is what the accused person in this case wants to do – can be made in at least three ways:

• by motion to quash the indictment under Section 558;
  
• by the plea under Section 560 (it is important to realise that an accused's plea is not restricted to 'guilty or not guilty' or 'true or not true': Gabriel Laku v The State [1980] PNGLR 7);
  
• by demurrer under Section 567.
  

7. Section 558 (motion to quash indictment) states:

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that—

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

(b) it is formally defective. [see Section 534]

(2) On a motion under Subsection (1), the court may—

(a) quash the indictment; or

(b) order it to be amended in such manner as the court thinks just; or

(c) refuse the motion.

8. Section 560 (pleas) states:

(1) If the accused person does not apply to quash the indictment, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.

(2) If the accused person pleads, he may plead—

(a) that he is guilty of the offence charged in the indictment, or, with the consent of a State Prosecutor, of any other offence of which he might be convicted on the indictment; or

(b) that he is not guilty; or

(c) that he has already been convicted—

(i) on an indictment on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(d) that he has already been acquitted on an indictment—

(i) on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(e) that he has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that he cannot under this Code be tried for the offence charged in the indictment; or

(f) that he has been pardoned for the offence charged in the indictment; or

(g) that the court has no jurisdiction to try him for the offence.

(3) Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with any other plea to the same charge.

(4) An accused person may plead and demur together.

9. To understand the effect of the different pleas, see Sections 561-566.

10. Section 567 (demurrer) states:

(1) When an accused person demurs only and does not plead any plea, the court shall hear and determine the matter immediately.

(2) If the demurrer is overruled, the accused person shall be called on to plead to the indictment.

(3) When an accused person pleads and demurs together, it is in the discretion of the court whether the plea or demurrer is first disposed of.

(4) No joinder in demurrer is necessary.

11. Having set out those provisions in full, it becomes very clear that the demurrer that has been filed in the present case is both premature and based on improper grounds. It is consequently an abuse of process and must be refused.

ORDER

12. The demurrer is refused.

Ruling accordingly.
_________________________________________
Public Prosecutor: Lawyer for the State
Young Wadau Lawyers: Lawyer for the accused