State v Dau [2020] PGNC 278; N8611 (9 October 2020)

N8611

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 309 of 2019

THE STATE

V

RUNNY DAU

Waigani: Berrigan J
2020: 15^th and 21^st September, 9^th October

CRIMINAL LAW – Practice and procedure – S. 558(1) and 534 – Quashing of Indictment – Section 37(1) and 57 of the Constitution – Abuse of Process – Whether Public Prosecutor had power to bring charges against an accused employed by PNG Customs Service under the Criminal Code instead of the Customs Act – Powers of the Public Prosecutor - Application Dismissed.

Cases Cited:

In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388
Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
The State v Ngasele (2003) SC731
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
The State v Jason Dongoma (2000) N2038
The State v Michael Nama and Others (1999) N1884
The State v John Koma (2002) N2176
The State v Douba (2018) N7627
The State v Louise Paraka (2002) N2317
Wilson Kamit v Aus-PNG Research & Resources Impex Limited (2007) N3112

References Cited

Section 37, 57, 176, 177, 197(2) of the Constitution
Sections 87(1)(a), 407(1)(b), 515, 525, 534, 558 of the Criminal Code
Section 140 of the Police Act
Sections 153, 151, 166, 167 and 168 of the Customs Act
Section 4(1)(g) of the Public Prosecutor (Office and Functions) Act, 1977

Counsel

Mr. L. Jack, for the State
Mr. M. Kombri, for the Accused

DECISION ON MOTION TO QUASH THE INDICTMENT

9^th October, 2020

1. BERRIGAN J: The State presented an indictment against the accused containing two charges, one of official corruption and one of conspiracy to defraud, contrary to ss. 87(1)(a) and 407(1)(b), respectively of the Criminal Code (Ch. 262) (Criminal Code), for which the maximum penalties are 7 years of imprisonment and a fine at the discretion of the Court, and 7 years of imprisonment.
   
2. It is alleged that whilst employed as a cargo officer by the PNG Customs Service stationed at Motukea Wharf between August and September 2018, the accused received K5000 for clearing a shipping container holding contraband cigarettes without a proper inspection. As a result, the importers avoided tax and customs duty in the sum of K2,847,679.34.
   
3. On arraignment the defence sought to have the indictment quashed on the basis that the indictment was calculated to prejudice the accused in her defence because she should have been charged in breach of the Customs Act, Chapter No. 101 (Customs Act) and not the Criminal Code.
   
4. Defence counsel was not in a position to identify the basis of the application or to make submissions and sought an adjournment to prepare submissions. As no notice had been given during the pre-trial process the State was also not in a position to respond to the application. In the circumstances the matter was adjourned for submissions. In the meantime defence counsel filed a motion seeking orders that:
   

“1. The Indictment presented on 15 September 2020 be quashed pursuant to Section 558(1) and 534 of the Criminal Code Act (Ch. 262) (Criminal Code) on the basis of it being calculated to prejudice the Accused in her defence to the charges of Official Corruption contrary to Section 87(1)(a) of the Criminal Code and Conspiracy to Defraud contrary to Section 407(1)(b) of the Criminal Code in that the alleged offences were committed in breach of Customs Act, Chapter No. 101 (Customs Act) and the proper charges should have been:

(a) “evading any duty that is payable” contrary to Section 153(a) of the Customs Act;
(b) “obtaining any drawback that is not payable” contrary to Section 153(b) Customs Act; and
(c) “aids ... in the importation into the country of any prohibited imports..” contrary to Section 151(2)(d) of the Customs Act.”

“2. The Accused be protected and discharged pursuant to Section 37(1) and Section 57 of the Constitution as the entire criminal proceeding was an abuse of process starting from the laying of the Information on 7 February 2019 to the Committal proceedings and the presentation of the Indictment on 15^th September 2010 on the basis that:

(a) The “Information” was not laid by the Comptroller contrary to Section 165 of the Customs Act; and

(b) The prosecution was and is a customs prosecution but was not instituted at the Committal Court by the Comptroller contrary to Section 165 of the Customs Act.”

5. The accused’s affidavit in support of the motion says that she was employed by PNG Customs Services at the time of the alleged offences. That the allegation was investigated by an investigation team from PNG Customs Services who conducted a record of interview with her. Sometime thereafter three informations were laid at Badili Police Station by Constable Aipe Samuel on 7 February 2019 by which she was charged with official corruption, conspiracy to defraud and conspiracy to commit a crime, contrary to ss. 87(1)(a), 407(1)(b) and 515 of the Criminal Code. Further, that she was arrested by police, prosecuted by police at the District Court and now by the Public Prosecutor at the National Court.
   
6. There is a short answer to both contentions by the accused. In short s.525 of the Criminal Code permits the State to proceed on “any charge the evidence appears to warrant” against an accused who is committed to the National Court for trial, consistent with the Constitutional powers of the Public Prosecutor to control the prosecution function of the State. Nevertheless, I will address the submissions of counsel in some detail below.
   

Improper Charges

7. The defence contends that the accused has been “improperly charged” under the Criminal Code on the basis that:
   
   • (a) at the relevant time the accused was employed by PNG Customs Services, and was alleged to have committed the offences in the course of her duties, thus she should have been charged with offences under ss. 153(1), 153(b) and 151(2)(d) of the Customs Act;
     
   • (b) that Part XII (Penal Provisions) of the Customs Act “does not authorise for the Police or the Public Prosecutor to charge any accused persons under the Criminal Code offences committed in breach of the provisions of the Customs Act”; and
     
   • (c) that the actions of the police and the Public Prosecutor prejudices the accused in her defence.
     

Abuse of Process

8. On abuse of process the defence argues that:
   
   • (a) The “essence of the allegation” is that the actions of the accused and others denied the State the collection of (emphasis mine) “lawful taxes and customs duties totalling Two Million, Eight Hundred and Forty-Seven Thousand, Six Hundred and Seventy-Nine Kina and Thirty Four Toea (K2,847,670.34). It is all about that and nothing else”.
     
   • (b) Based on those allegations the Chief Commissioner of PNG Customs Service referred to in the Customs Act as the “Comptroller” is vested with prosecutorial powers to institute proceedings against those who breach the Customs Act pursuant to ss. 167 and 168 of the Customs Act;
     
   • (c) Accordingly, the Comptroller should have sought consent from the Public Prosecutor to institute the criminal prosecution against the accused and her accomplices but this did not happen;
     
   • (d) Further, that the information should have been instituted by an officer in the name of the Comptroller pursuant to s. 167(2) of the Customs Act, namely an officer of the PNG Customs Service;
     
   • (e) Consequently, the information laid by Constable Aipe Samuel was “ultra vires” of his powers;
     
   • (f) If consent was given by the Public Prosecutor, and as the penalty was greater than K3000, the Comptroller:
     

“should have instituted the criminal prosecution against the Accused and her accomplices either at the District Court or National Court pursuant to Sections 167 and 168 of the Customs Act. Since the penalty exceeded K3000 the Chief Commissioner of PNG Customs Services as the “Comptroller” should have instituted appropriate proceedings at the National Court but after establishing a prima facie case at the Committal Court”.

(g) The “initiation of the criminal prosecution against the Accused and her accomplices was initiated in breach of Section 4(1)(g) of the Public Prosecutor (Office and Functions) Act, Chapter No. 338 as held in Wilson Kamit v Aus-PNG Research & Resources Impex Limited (supra). The process was an abuse of process and hence the process employed was illegal and null and void from the beginning”.

(h) Consequently the entire criminal proceedings should be declared a nullity pursuant to s. 37(1) of the Constitution.

Improper Charges

9. Essentially, defence counsel contends that because the accused was employed by the Customs Service at the relevant time and the alleged conduct took place in the course of her duties she should have been, and can only have been, charged with the offences under ss. 153(a), 153(b) and 151(2)(d) of the Customs Act.
   
10. I do not agree. Counsel has been unable to identify any legislative or other basis for his contention. There is none.
    
11. It is not for this Court to determine whether or not the accused might have been charged with other offences comprising different elements.
    
12. Even assuming that the accused might have been charged under the Customs Act, however, that does not preclude her being charged under the Criminal Code for offences arising from the same conduct.
    
13. Nor do I agree with the related contention, as I understand it, that the Customs Act does not authorise the police or the Public Prosecutor to charge a person with offences under the Criminal Code when the same conduct gives rise to offences under the Customs Act.
    
14. Counsel concedes that both the Criminal Code and the Customs Act have equal standing but effectively maintains that offences under the Customs Act should operate to the exclusion of offences under the Criminal Code where the alleged conduct occurs in the course of a Customs Services employee’s duties.
    
15. Again, counsel is unable to identify any basis for this contention. It is misconceived.
    
16. Nor do the police or the Public Prosecutor require authorisation under the Customs Act to bring offences under the Criminal Code. Again, no basis for this proposition is provided.
    
17. Pursuant to s. 140 of the Police Act:
    

“A member of the Force has the same powers, duties, rights and liabilities as a Constable under the underlying law, except so far as they are modified by or under an Act.”

18. The general duties of a policeman are summarized in Archbold’s Criminal Pleadings Evidence and Practice, 2015 Ed. [19-329] as follows (emphasis mine):
    

“It is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police but there are at least these and would further include the duty to detect crime and bring an offender to justice: Rice v Connolly [1966] 2 QB 414, per Lord Parker CJ. See also R v Waterfield and Lynn [1963] 48 Cr App R.42, 57 and Coffin and Another v Smith [1980] 72 Cr App R.221, DC.”

19. The laying of the information against the accused at the District Court containing charges under the Criminal Code was within the powers of the police. It was for the police at that stage to choose the appropriate charge. The Public Prosecutor has no power over the charges at this stage. This follows from Section 197(2) of the Constitution, which provides (emphasis mine):
    

“... insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.”

See also the discussion in In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388.

20. As for the National Court proceedings, it is well established that the Public Prosecutor is responsible for controlling the exercise and performance of the prosecution function of the State pursuant to s. 176 and 177 of the Constitution. As explained by the Supreme Court in Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 at [141]:
    

“These provisions establish the office of the Public Prosecutor and provide for the functions of the office, one of the most important of which is "to control the exercise and performance of the prosecution function ... before the Supreme Court and the National Court". The Public Prosecutor (Office and Functions) Act fleshes out that function. Section 526 gives effect to it. It facilitates the exercise and performance of the prosecution function. It allows the Public Prosecutor to control it. It allows the Public Prosecutor to decide what cases are prosecuted in the National Court.”

21. Here we are dealing with s. 525 but the principles remain the same. It is well settled that pursuant to s. 525 the Public Prosecutor, or any State Prosecutor, has an absolute power to consider the evidence, and at his/her discretion, indict on a charge “of any offence that the evidence appears to warrant”. That power is not subject to any direction or control from or by anybody: The State v Ngasele (2003) SC731; see also the discussion in Leahy at [149]. That power has been affirmed in several cases, including: The State v Jack Gola and Mopana Aure [1990] PNGLR 206; The State v Jason Dongoma (2000) N2038; The State v Michael Nama and Others (1999) N1884; The State v John Koma (2002) N2176.
    
22. As explained by Kirriwom J in The State v Michael Nama and Others (1999) N1884:
    

“... in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor ... is not subject to any direction or control. He has a very wide discretion on what charge or charges to proceed with and what charges he discontinues. A Committal Court’s rulings do not restrict the powers of the Public Prosecutor which originate from the Constitution. It has been the practice and continues to be so that following committal the accused is indicted with the offence that the evidence in the depositions support – see s. 525 of the Criminal Code or the one negotiated and obtained for purposes of guilty pleas ... The original charges do not determine the eventual charge in the indictment.”

23. This power is also essential to ensuring that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct which is disclosed by the evidence: The State v Douba (2018) N7627. Per Kandakasi J in The State v Louise Paraka (2002) N2317, s. 525 proceeds on the basis that the Public Prosecutor, or a State Prosecutor for that matter, “is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffer the charge he considers sustainable".
    
24. In this case the accused was committed for trial to the National Court. The State has decided to proceed on two of those three charges pursuant to its powers under s. 525 of the Criminal Code.
    
25. The mere fact that the accused might have been prosecuted on other charges, including the Customs Act, is beside the point.
    
26. Furthermore, the accused has failed to identify on what basis she is prejudiced in her defence to the charges she now faces. Again, the fact that the accused might have been prosecuted under different offence provisions for the same alleged conduct, does not mean that she is prejudiced in her defence in facing the charges chosen by the State in accordance with its powers. Nor does the fact that she now faces serious criminal charges attracting penalties up to 7 years of imprisonment mean that she is prejudiced in her defence. She remains protected by the law, including her presumption of innocence and right to a fair trial.
    
27. The accused’s motion also seeks to quash the indictment on the basis it is formally defective. The defect is not identified and was not addressed in submissions. It appears to be that the indictment is formally defective for containing “improper charges” for the same reasons outlined above.
    
28. The accused’s motion to quash the indictment pursuant to s. 558(1) and 534 of the Criminal Code is dismissed.
    

Abuse of Process

29. Again, the argument rests on the premise that any offence against the accused must have been brought by the Comptroller, and only the Comptroller, and only for offences under the Customs Act. The defence contends that the prosecution was therefore a “Customs prosecution” for the purposes of the Act, that it was the Comptroller who was vested with power to institute the prosecution and that the information should have been laid in the name of the Comptroller pursuant to ss 167 and 168 of the Customs Act. Furthermore, that the prosecution was brought in breach of s. 4(1)(g) of the Public Prosecutor (Office and Functions) Act, 1977 and hence the entire criminal proceedings from the outset have been a nullity.
    
30. Counsel has omitted to refer to s. 166 of the Customs Act in either his motion or submissions. The relevant provisions provide (emphasis mine):
    
    166. INTERPRETATION OF PART XIII.
         

In this Part, “Customs prosecution” means any proceedings by the Customs for–

(a) the recovery of a penalty under this Act; or

(b) the condemnation of any ship, aircraft or goods seized as forfeit.

167. INSTITUTION OF PROSECUTIONS.
     

[333](1) A Customs prosecution may be instituted–

(a) in the National Court–by appropriate proceedings in the name of the Commissioner General; or

(b)[334] if the penalty does not exceed K5,000.00 or the excess is abandoned–in a District Court.

(2)[335] [336]Where a Customs prosecution has been instituted by an officer in the name of the Commissioner General, the prosecution shall, in the absence of evidence to the contrary, be deemed to have been instituted by the authority of the Commissioner General.

(3)[337] [338]Production of a telegram or radiogram purporting–

(a)[339] to be signed by the Commissioner General; and

(b) to authorize an officer to institute any Customs prosecution or proceedings,

is admissible in evidence in the prosecution or proceedings, and shall be accepted as evidence of the authority of the officer to institute the prosecution or proceedings in the name of the Commissioner General.

168. PRACTICE IN PROSECUTIONS.
     

A Customs prosecution in the National Court may be commenced, prosecuted and proceeded with in accordance with–

(a) any rules of practice established by the Court for proceedings by the State in revenue matters; or

(b) the usual practice and procedure of the Court in civil cases; or

(c) any directions of the Court or a Judge.”

31. As above, it is the defence contention that the accused’s conduct gives rise to offences under ss. 153(a) and (b) and 151(2)(d) of the Customs Act.
    
32. Firstly, on the face of s. 166, the Commissioner General only has power to prosecute for the recovery of a penalty under the Act, or the condemnation of a ship etc under s. 166. In my view the “recovery of a penalty” does not include bringing a prosecution on indictment for an offence under s. 151(2) which when read together with s. 160 attracts a maximum penalty of 10 years of imprisonment.
    
33. Section 160 (penalties for offences in relation to narcotic drugs) provides that (emphasis mine):
    

“(1) This section applies to offences against Section 23(4), 148(1), 149(1), 150 or 151(2), that are punishable as provided by this section.

(2)[322] [323]The penalty for an offence to which this section applies is, subject to Subsections (3) and (5) and to Sections 163 and 164, a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 10 years, or both.

(3)[324] [325]Where the offence relates to the importing, exporting or possession of narcotic drugs for the offender’s personal use only, the penalty for the offence is, subject to Subsection (5) and to Sections 163 and 164, a fine not less than K5,000.00 and not exceeding K50,000.00 or imprisonment for a term not exceeding two years, or both.

(4) An offence to which this section applies may be prosecuted summarily or on indictment.

(5) When proceedings for an offence to which this section applies are brought in a District Court–

(a) the Court may commit the defendant for trial or, with the consent of the defendant, determine the proceedings; and

(b)[326] where the Court determines the proceedings it shall not impose a fine less than K5,000.00 and exceeding K50,000 or sentence the defendant to imprisonment for a term exceeding two years, or both.”

34. This demonstrates the inherent flaw in the accused’s argument that she might only be prosecuted by the Comptroller. On the accused’s own argument she might be prosecuted for a breach of s. 151(2)(d) for aiding an importation of narcotics, which by definition is not a “Customs prosecution” for the purposes of s. 166 of the Customs Act.
    
35. Secondly, even assuming that the Comptroller could have proceeded against the accused on all three offences under the Customs Act, there is no compulsion on the Comptroller to do so. The fact that he “may” do so pursuant to s. 167 neither means he is compelled to do so, nor that the police or the Public Prosecutor are precluded from bringing proceedings under that Act or any other relevant legislation including the Criminal Code.
    
36. Nor does Wilson Kamit v Aus-PNG Research & Resources Impex Limited (2007) N3112 support the accused’s contention. Quite the contrary. Whilst finding that the Governor of the Bank of Papua New Guinea did have power to institute proceedings under the Central Banking Act 2000, the Court held that the Constitutional authority of the Public Prosecutor to control and supervise the prosecution function of the State must be preserved such that Public Prosecutor had to provide consent before the prosecution could be brought by the Governor: see [117].
    
37. That is not the situation here. The Comptroller has not sought to bring any prosecution. He does not need to obtain consent from the Public Prosecutor.
    
38. For the same reasons the Public Prosecutor was not “required by law to give his consent to the Chief Commissioner of PNG Customs Services” to institute criminal proceedings against the accused pursuant to s. 4(1)(g) of the Public Prosecutor (Office and Functions) Act. There was no prosecution brought by the Comptroller.
    
39. Nor was the prosecution brought by police at the District Court in breach of s. 4(1)(g) of the Public Prosecutor (Office and Functions) Act. As above, the Public Prosecutor has no control over the charges laid by police.
    
40. Nor was Constable Aipe Samuel acting “ultra vires” of his powers because he was not an “officer” of the Customs Service. He was acting within his powers as a police constable in charging the accused with offences under the Criminal Code.
    
41. The fact that the investigation was commenced by Customs Services does not preclude the service from referring the matter to police for further action.
    
42. It is not uncommon for financial institutions, agencies and other organisations to conduct their own investigations into suspected offences before referring the matter to police.
    
43. It has not been suggested and there is no evidence to suggest that Constable Samuel acted other than in accordance with his lawful duty before deciding to charge the accused via information at the District Court.
    
44. The fact that the accused was committed on those charges, and that the State has decided to proceed with respect of two of the same three charges pursuant to its powers under s. 526 of the Criminal Code only goes to strengthen that view. To be clear, however, whether or not those charges might be sustained to the requisite standard at the National Court is a separate matter yet to be determined.
    
45. There was no abuse of process.
    
46. Furthermore, the accused has at all times received the protection of the law. She has been through the committal process, and has been referred to the National Court for trial following committal and as above, remains entitled to the presumption of innocence and her right to a fair trial.
    
47. The application to have the accused “discharged” pursuant to ss. 37(1) and 57 of the Constitution is refused.
    

Final Observations

48. There is no question that the accused was entitled to seek to quash the indictment prior to pleading: Sapau v The State [1990] PNGLR 302.
    
49. Counsel is, however, reminded of the obligations contained in the Criminal Practice Rules for Fraud and Related Corruption Offences, 2013 which are designed to ensure the efficient administration of justice for all parties concerned, including other accused who also have matters in the same track.
    
50. Such objections should be flagged during the pre-trial process so that if necessary time can be allocated for argument in appropriate cases. At a minimum, I would have expected counsel, who has had carriage of the matter since committal, to be in a position to make submissions upon raising the objection to the indictment so that the matter could have been dealt with then and there.
    
51. As it happened, time set aside for the trial at the convenience of private counsel has been lost, and State witnesses who were required to attend have been inconvenienced.
    

Orders

52. The Court orders that:
    

(1) The accused’s motion to quash the indictment pursuant to s. 558(1) and 534 of the Criminal Code is dismissed; and

(2) The application to have the accused “discharged” pursuant to ss. 37(1) and 57 of the Constitution is refused.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Kombri Lawyers: Lawyers for the Accused