N8229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 118 of 2019

THE STATE

V

PAUL PARAKA

Waigani: Berrigan J
2019: 6th December
2020: 6th March

CRIMINAL LAW – Practice and procedure – S. 526 of the Criminal Code – Whether preconditions to exercise of power met. 

Cases Cited:
Papua New Guinea Cases

Regina v Burusep [1963] PNGLR 181 
Regina v Ebulya [1964] PNGLR 200 
The State v Painke [1976] PNGLR 210 
The State v Rush; Ex Parte Rush [1984] PNGLR 124 
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
State v Wohuinangu (1991) N966
The State v Esorem Burege [1992] PNGLR 481 
The State v Michael Nama and Others (1999) N1884
The State v Jason Dongoma (2000) N2038
The State v John Koma (2002) N2176.
The State v Louise Paraka (2002) N2317
The State v Ngasele (2003) SC731
The State v Saul Oregem (2004) N2780 
Jimmy Mostata Maladina v Posain Poloh (2004) N2568.  
Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 
Havila Kavo v The State (2015) SC1450 
Wartoto v The State (2015) SC1411 
The State v John Sambeok, unreported, 5 August 2015
In re Namah (2018) N7194
Pruaitch v Manek (2019) SC1884
Wartoto v The State (2019) SC1834
Roland Tom v The State (2019) SC1833  

Overseas Cases

Preston v Donohoe (1906) 3 CLR 1809 
Johnson v Miller (1937) 59 CLR 467 
Connelly v DPP [1964] 2 All ER 401
Barton v. The Queen (1980) 147 CLR 75
Jago v District Court of NSW (1989) 168 CLR 12
Grassby v R (1989) 168 CLR 1 
Hui Chin – Ming v R [1991] 3 WLR 495  
Walton v Gardiner (1993) 177 CLR 378 at 392
Higgins v Mr Comans, Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565

References cited

Sections 37(2), 57(1), 177 of the Constitution
Sections 383A, 525, 526, 528 of the Criminal Code (Ch. 262) (Criminal Code)
Sections 93 to 103 of the District Courts Act
Order 2, Division 1, Rule 7(c); Order 3, Division 1, Rule 2 of the Criminal Practice Rules 

Counsel

Mr. P. Kaluwin, for the State 
Mr. P. Paraka, in person 

DECISION ON PRESENTATION OF INDICTMENT

6th March, 2020

1.	BERRIGAN J:  The accused objects to the presentation of an indictment against him by the Public Prosecutor pursuant to s. 526 of the Criminal Code (Ch. 262) (Criminal Code).

BACKGROUND 

2.	The accused was charged with 17 counts of conspiracy to defraud, and 5 counts of stealing by false pretence, contrary to ss. 407(1)(b) and 404(1)(a) of the Criminal Code, respectively, together with a further 5 counts of money laundering, contrary to s. 34(2) of the Proceeds of Crime Act 2005.

3.	Committal proceedings commenced in the District Court in or about July 2014.  On 10 December 2018 the District Court made the following orders striking out all charges for being an abuse of process and discharging the accused in the following terms:

“1.	All the charges …registered as COM NO: 942-956 of 2014 against defendant PAULU (sic) PARAKA are struck out being an abuse of the process.

2.  	Defendant Paul Paraka is discharged forthwith.

3.	Defendant’s K50,000 bail be refunded.”

4.	On 25 April 2019 the Public Prosecutor wrote to the accused advising that he intended to present an indictment against him pursuant to section 526 of the Criminal Code charging him with one count of misappropriation contrary to s. 383A of the Criminal Code. 

5.	The matter was listed before me for that purpose on 6 May 2019.  On that day, however, a State Prosecutor advised the Court that the accused had brought proceedings, OS (HR) No. 47 of 2019, to restrain the presentation of the indictment by the Public Prosecutor as being in breach of his human rights and that an interim injunction staying the presentation of the indictment was in place pending a decision.  

6.	On 30 August 2019 his Honour Justice Cannings dismissed the accused’s application to permanently injunct any action by the Public Prosecutor pursuant to his power under s 526 of the Criminal Code: Paul Paraka v Mekeo Gauli, Principal Magistrate & 5 Ors (2019) N7975. 

7.	On 6 September 2019 the matter was listed again before me on which day I was informed of the above decision.  I was also informed that the accused had filed an appeal against the decision of Cannings J together with an urgent application before Dingake J sitting as a single judge of the Supreme Court seeking to stay the presentation of the indictment pending the outcome of the appeal.  In response to my question as to the outcome of that application, however, the parties held different views, and I asked them to seek clarification. 

8.	On 18 November 2019 the Public Prosecutor brought the matter before me again.  The Public Prosecutor informed the Court that he had conducted certain enquiries and advised that there was no stay in place.  In his affidavit filed 7 November 2019 the Public Prosecutor annexed a copy of a Court order dated 1 October 2019 made by Dingake J adjourning the application for stay to the National Court Registry, together with orders that the accused was at liberty to re-list the matter for hearing through the Registry.  Further, that once a date had been agreed between the Registry and the accused, the accused should inform the parties of the date for hearing at least three clear days beforehand.  To date the matter has not been heard. 

9.	The Public Prosecutor submits that the matter has been delayed for several years, causing prejudice to the State.  He further submits that it has now been more than 10 months since he prepared the indictment pursuant to s 526 which he now seeks to present.  

10.	The accused advised the Court that he objected to the presentation of the indictment on several grounds but was not in a position to argue the matter. I adjourned the matter.  

11.	On 19 November 2019 the accused filed a Notice of Motion seeking that:

“Application for Adjournment generally

1.	The application by the Public Prosecutor to present the 526 indictment or to take any other steps in the proceedings be adjourned generally pending the outcome of the appeal in SCA No 137 of 2019 Paul Paraka v The State and Others and or the pending application for interim stay/injunction by the Applicant pursuant to s 57(1)(3)(4) and (5) and s 155(4) of the Constitution.

Objection to Presentation of Indictment

2. Pursuant to Section 526 of the Criminal Code Act and Sections 57(1), (3), (4) & (5) and 155 (4) of the Constitution, that the presentation of the Indictment by the Public Prosecutor dated 25th April, 2019 be permanently refused/ stayed in that:-

(a) The mandatory pre-conditions under Section 526 of the Criminal Code Act have not been met; and
(b) For abuse of power and abuse of process; and
(c) The proposed indictment is defective and does not disclose and offence known in a written law in breach of Section 37(2) of the Constitution.

(d) The Indictment containing the fresh unrelated charge of misappropriation of property was undertaken without notice and opportunity to be heard accorded to the accused in breach of the right of natural justice and Section 59 of the Constitution and without a formal and substantive Committal proceeding/ hearing under the District Courts Act.

Constitutional and Constitutional Right Breach

2.	Pursuant to Section 57(1), (3), (4) & (5) and Section 155(4) of the Constitution, the proposed Indictment be permanently refused/stayed for breach of Sections 37(1), (2), (3), (7), (11), (12), & (13), 42(1)(c) & (d) and Sections 148, 196, 197, 198, 199, 208, 214 and 216 of the Constitution.”

12.	Both parties were allowed an opportunity to prepare submissions, which were heard on 6 December.  On that day the Public Prosecutor presented an indictment pursuant to s. 526 of the Criminal Code containing one charge of misappropriation contrary to s. 383A of the Criminal Code, such that the accused:

Count  1: “between the 1st day of February 2007 and the 31st day of December 2011 at Port Moresby, National Capital District in Papua New Guinea dishonestly applied to his own use and to the use of others the sum of One Hundred and Sixty-Two Million, Eight Hundred and Sixty Thousand, One and Ninety-Four Kina and Ninety-Six Toea (K162, 860, 194.96) the property of the Independent State of Papua New Guinea.”  

13.	The accused indicated that he no longer wished to press all of the grounds contained in his notice of motion but objected to the presentation of the indictment on the basis that the preconditions contained in s. 526 of the Criminal Code had not been met.  He indicated that he may seek to raise some of the other grounds contained in his notice of motion at a later time.

14.	It is not in dispute that the accused has appealed the decision of Cannings J in Paul Paraka v Mekeo Gauli & Ors (supra) to the Supreme Court by way of proceedings SCA No 137 of 2019 and that the appeal is yet to be heard.   It is also not in dispute that the accused has filed an application before the Supreme Court for an interim injunction or stay preventing the presentation of the indictment pending the determination of the appeal.  Nor is it in dispute, however, that there is currently no stay in place.

15.	In the circumstances I agree with the Public Prosecutor that there is no legal impediment preventing him from presenting the indictment pursuant to s.526 of the Criminal Code for the purpose of commencing criminal proceedings against the accused in the National Court.

16.	In my view the question for this Court is not whether the Public Prosecutor may present the indictment pursuant to s. 526 of the Criminal Code but whether the Court should accept it upon satisfaction that the preconditions have been met.  In my view this is consistent with the approach taken in Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 as well as time honoured practice in this jurisdiction. The accused does not take issue with this.

17.	In this regard the accused submits that the National Court in Paul Paraka v Mekeo Gauli (supra) acted unlawfully in hearing and determining the proceedings in its civil jurisdiction in breach of the Supreme Court decision in Wartoto v The State (2015) SC1411 and further, that the Public Prosecutor did not present the indictment in that case.  I don’t wish to comment on those arguments as those matters are not before this Court, other than to make clear that the accused takes no issue with the presentation of the indictment per se, only its acceptance. 

18.	Furthermore, in view of the fact that the matter has not been committed to the National Court, it is unclear to me on what basis the jurisdiction of this Court sitting in its criminal jurisdiction is invoked until the Public Prosecutor so presents the indictment.

19.	It does not appear to be in dispute that some of the grounds raised before this Court are an expanded or improved version of those raised before Cannings J.  In his submissions the accused states that the decision should be distinguished because, inter alia, the “well-researched and rehashed legal submission were not before the Human Rights Court (now it is)”.

20.	On one view it might be argued that the accused is estopped from raising the issue of the Public Prosecutor’s compliance with s. 526 of the Criminal Code again.  For similar reasons it might be argued that it is an abuse of the court process to raise the same objection again.  See the discussion in Pruaitch v Manek (2019) SC1884.

21.	As is clear, however, the civil and criminal jurisdictions of the National Court are “two distinct jurisdictions with their own separate and distinct processes and procedures without any overlapping”. The National Court’s criminal jurisdiction is granted in the main by the Criminal Code: see Wartoto (supra) at [53].  

22.	It follows that this Court sitting in its criminal jurisdiction must itself be satisfied in accordance with its procedures that s. 526 of the Criminal Code has been complied with before accepting the indictment. 

23.	Furthermore, whilst similar issues were raised, the decision for the National Court in the civil proceedings was ultimately whether there was a breach of the accused’s human rights for the purpose of s57(1) of the Constitution.

24.	In the circumstances, I will consider the accused’s objections to presentation of the indictment pursuant to s. 526 of the Criminal Code.    

Section 526 OF THE CRIMINAL CODE

25.	Section 526 (indictment without committal) of the Criminal Code provides that:

“(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may–
(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.
(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.
(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer–
(a) copies of the depositions taken at the committal proceedings; and
(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,
within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.”

26.	In Leahy (supra) the Supreme Court set out at [134] the preconditions to the presentation of an indictment pursuant to s. 526 as follows:

(a)	a court of summary jurisdiction has refused to commit a person for trial on an indictable offence;
(b)	the Public Prosecutor has considered the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(c)	the Public Prosecutor has reduced into writing in an indictment a charge of any offence the evidence appears to warrant.

27.	The accused submits that a further precondition is prescribed by s. 526(3) of the Criminal Code, such that: (d) the Public Prosecutor has served on the accused, copies of the committal depositions and statements from witnesses whom the prosecution intends to call at the trial: per Cannings J in Paul Paraka v Mekeo Gauli (supra) at page 10.  Whilst I agree with that proposition in general terms, in my view that is not strictly a precondition to the presentation of the indictment for the reasons which I will return to below. 

28.	The accused argues that none of the preconditions have been complied with.  He has provided detailed submissions at 67 pages to which he also made oral submissions, supported by affidavit material.  I have considered all of the submissions as they apply to the current objections, noting as above, that some matters are not pressed for present purposes.  

29.	In summary, the accused contends that as to s. 526(1) of the Criminal Code:

(a)	there were no “substantive”, “full” or “completed” proceedings, in particular there was no “formal and lawful magisterial investigation on the evidence under ss. 94C, 95, 96 and 100 of the District Courts Act”; and
(b)	there was no formal refusal to commit on the evidence by the District Court under s. 100 of the District Courts Act.

30.	As to s. 526(1)(a) of the Criminal Code the accused argues that:

(a)	the Public Prosecutor has not considered the evidence contained in the depositions taken before the court.

31.	As to s. 526(1)(b) of the Criminal Code: 

(a)	s. 526 does not provide for an unrelated fresh offence separate and distinct from those in the committal proceedings from being initiated and presented;
(b)	the Public Prosecutor has not reduced into writing in an indictment an offence known to law as the indictment fails to indicate the relevant offence provision; and
(c)	the charge fails to set out the “relevant facts disclosing the relevant elements”.

32.	As to s. 526(3) of the Criminal Code:

(a)	the Public Prosecutor has not served on him copies of the committal depositions and statements from witnesses whom the prosecution intends to call at the trial.

526(1) OF THE CRIMINAL CODE:  
NO SUBSTANTIVE COMMITTAL PROCEEDINGS OR REFUSAL TO COMMIT

33.	The accused argues that “no substantive committal proceedings” were conducted in the District Court and further that there was “no refusal to commit”.  In particular, he submits that there was no “formal and lawful magisterial investigation on the evidence under ss. 94C, 95, 96 and 100 of the District Courts Act” and no formal refusal to commit on the evidence by the District Court under s. 100 of the District Courts Act.  I will deal with these objections together.

34.	I note here that as a preliminary matter, the accused submits that there were no committal proceedings on foot as the police files had not been served on him for that purpose.  I don’t accept that submission. At paragraph 10 of his decision the learned magistrate makes clear that the accused had been properly served with the police investigation file on 9 May 2017 through his lawyers.  This is also consistent with paragraph 35(a) of the accused’s own affidavit sworn 19 November 2019 in these proceedings, albeit that he deposes to being served two days earlier, on 7 May 2017.  

35.	Returning to the two principal lines of argument on this ground, the accused contends that there were no “substantive” committal proceedings because the District Court did not complete the 10 stages contained in ss. 93 to 103 of the District Courts Act, all of which he submits are mandatory.  Further, that the learned magistrate erred in a number of respects in the conduct of the committal:

(a)	the police brief was not served 14 days prior to hearing pursuant to s 94(1) and (3);
(b)	the Court did not satisfy itself that the prosecution witness statements were read and understood by the witnesses pursuant to s 94C (see also 94(1A);
(c)	the evidence was not formally tendered for the purposes of s 95;
(d)	the evidence was not “admitted”, “heard” or “received” for the purposes of s 95;
(e)	the Court did not formalise an “opinion” as to sufficiency of evidence for the purpose of s 95;
(f)	the accused did not have legal representation for the purposes of s 94(2); 
(g)	the accused could still have insisted on his right to be heard on sufficiency of evidence; and
(h)	the accused was not heard by way of submissions for the purpose of s 95(3).

36.	In making these arguments the accused has styled himself on some occasions in his submissions as the “accused/appellant”. I think it is important to make clear that this Court sitting in its criminal jurisdiction is not here to consider an appeal against, nor judicially review, the magistrate’s decision.  Rather the issue for this court is whether there has been a “refusal to commit” for the purpose of s. 526 of the Criminal Code.

37.	I agree with the accused that the learned magistrate did not complete an examination pursuant to s 100 of the District Courts Act but that does not mean that committal proceedings were not on foot nor that there was not a refusal to commit.

38.	Firstly, it is clear from the learned magistrate’s decision that committal proceedings had commenced in the District Court in 2014 and had been on foot for a period of more than four a half years at the time of the accused’s discharge. 

39.	It is also clear that the committal proceedings had reached the stage where the magistrate was about to commit the accused pursuant to s. 94B of the District Courts Act, that is without consideration of the evidence, on the basis that the accused had failed to file a submission on sufficiency of evidence, having been served with the police hand-up brief through his lawyers some 18 months earlier.  This power of committal is expressly provided for in s. 94B subject to the conditions set out in 94B(2): see Jimmy Mostata Maladina v Posain Poloh (2004) N2568.  

40.	Section 94B (Committal for trial without consideration of the evidence) of the District Courts Act provides that: 

“(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.
(2) Committal for trial in accordance with Subsection (1) shall not occur where–
(a) the defendant or one of the defendants does not have legal representation; or
(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.”

41.	Before doing so, however, and upon the accused’s application, the learned magistrate ordered that all of the charges be struck out for being an abuse of process, and discharged the accused.  He did so on the basis that the charges had been laid after the Police Commissioner and the National Executive Council had disbanded the investigating unit, “Task Force Sweep”.  Further, that the former Prime Minister had since been cleared of his charges, the newspapers had reported that the Prime Minister and the Attorney General had stated that Paraka Lawyers had been legally paid, and that the “Officer of the Secretary & Attorney General made legal clearance of the payments made to Paraka Lawyers”.  He said at [16] and [17]:

“The offences that Paul Paraka has been charged with are alleged to have been committed on the dates between 24 April 2007 and 17th May 2007.  Prosecution has not responded to the Applicant’s Affidavit in support.  It may appear that the applicant is putting his case before this court could decide on the evidence for the prosecution.  However, considering the decision of the Supreme Court in SC 1388 of 2014 above on Constitutional References, the Sweep Team was abolished by the Police Commissioner and also by the NEC Decision No. 191 of 2014 in June 2014. These fresh charges against the applicant Paul Paraka were laid after the Sweep Team was abolished, hence, the laying of these fresh charges is an abuse of the court process.  

In the National News Papers dated 8th July 2014, the Prime Minister Peter O’Neill and the Attorney General Mr. Ano Pala published that Paraka Lawyers was legally paid.  Even the Officer of the Secretary & Attorney General made legal clearance of the payments made to Paraka Lawyers.  Accordingly, I grant the defendant Paul Paraka’s application to strikeout the charges for being abuse of process”.  

42.	The charges were not withdrawn by police nor were they directed by the magistrate to be withdrawn, which would potentially have permitted the commencement of proceedings again.  

43.	This case is also to be distinguished from The State v Esorem Burege [1992] PNGLR 481 upon which the accused relies.  In that case the National Court refused to accept an indictment presented pursuant to s. 526 in circumstances where, inter alia, the District Court had directed that the information be withdrawn following delays in the service of prosecution statements.  As Jalina J said (emphasis mine): 

“As the learned magistrate had ordered that the information be withdrawn, I would have thought that the police had been given another chance in that they could now have the information done properly and then have it laid again before the District Court. It was not a case where the magistrate had dismissed the information, in which case it could be construed as a refusal to commit the defendant for trial.”

44.	Similarly, this case is to be distinguished from The State v John Sambeok, unreported, 5 August 2015.  In that case his Honour Salika DCJ (as he then was) quashed an indictment presented pursuant to s. 526 of the Criminal Code on the basis that there had been no refusal to commit.  The magistrate in that case dismissed the proceeding on the basis that the complainant had no standing to lay a complaint.  No such determination was made by the magistrate in this case (and nor was it open on the evidence, which at its highest established that the accused had written to the Police Commissioner on 12 September 2018 asking him to direct the withdrawal of charges against him within a certain timeframe, failure of which would result in certain legal proceedings).    

45.	Nor does The State v Rush; Ex Parte Rush [1984] PNGLR 124 assist the accused. It does not stand for the proposition that each of ss. 93 to 103 is mandatory.  Indeed, the National Court in that case, sitting in its civil jurisdiction, confirmed that it is possible for a magistrate to commit without consideration of the evidence but quashed the committal on the basis that the police had failed to comply with mandatory time limits for service of the brief.  But that is not the issue here in any event.

46.	Contrary to the accused’s submission, the learned magistrate’s decision in this case was not one going to jurisdiction but a decision to stop or stay the proceedings on the basis that they were an abuse of process.  

47.	As the Supreme Court said in Leahy (supra) at [170], one must look to the substance of the decision.  Regardless of the terminology used, in substance the learned magistrate refused to commit the accused for trial. 

48.	It is well established that the National and Supreme Courts have inherent power to prevent an abuse of their process:  see Pruaitch v Manek (supra) which sets out several key authorities.  

49.	It is also well recognised that the power applies to both civil and criminal proceedings. See The State v Painke [1976] PNGLR 210 per O’Leary AJ (emphasis mine):  

“[A]buse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations…The steps which the court may and will take to prevent an abuse of its process must vary from one situation to another. The most usual ones are those of staying or dismissing proceedings...”.

50.	It is particularly important in the context of criminal proceedings to ensure an accused’s fair trial rights, protect the interests of justice, and safeguard public confidence in the administration of justice.  

51.	As above, it is not possible to strictly or exhaustively define what will constitute an abuse of process: Painke; Pruaitch at [21].  Nor is it necessary for the purposes of this ruling to outline what is required to establish an abuse of process in a criminal proceeding, other than to make clear that it is regarded as an “extreme remedy”, only to be applied in exceptional circumstances (Jago v District Court of NSW (1989) 168 CLR 12, applied State v Wohuinangu (1991) N966; In re Namah (2018) N7194); such that the accused has established that the continuation of the proceedings would involve unacceptable injustice or unfairness: see Walton v Gardiner (1993) 177 CLR 378 at 392; Connelly v DPP [1964] 2 All ER 401; and Hui Chin – Ming v R [1991] 3 WLR 495.  

52.	As the discussion in Wartoto (supra) demonstrates the exercise of power is centred around issues of fairness, justice, vexation and oppression: see [87] to [91] (emphasis mine):

“87. In all these Australian and English cases, the discussions are centered around the exercise of the court's inherent powers to protect its processes from abuse by staying of criminal prosecutions where injustices will result with the continuation of such prosecutions. The case authorities referred to examined different circumstances that exposed the court system and its processes to possible abuse for ulterior purposes or motives and discussion also centered on whether there ought to be an open or restricted policy on the use of this exceptional power of the court to stop a prosecution on the basis of abuse of process.
88.	In Walton v Gardiner (supra), the issue that went from the Court of Appeal to the High Court was whether long delay in the prosecution can amount to injustice and an abuse of process.
89.	In Williams v Spautz (supra), the issue before the Court for determination was whether the court process was being used for ulterior purpose and public interest consideration in the administration of justice.
90.	In Rogers v R (supra) the issue before the court was whether confessions ruled involuntary and inadmissible at the trial and sought to be tendered as evidence at a later trial for other offences amounted to unfair prosecution and abuse of process and prosecution be stayed
91.	Jago v District Court of NSW (supra) is another case whether the issue of delayed prosecution was raised as amounting to injustice and abuse of process that could be cured by court ordering permanent stay of prosecution.”

53.	It is also clear that the exercise of power is one to stop the continuation of proceedings.  See Barton v. The Queen (1980) 147 CLR 75, at pp 94-95, Gibbs A.C.J. and Mason J. said:

"It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused 's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced ... though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue."  

54.	To my mind there is a real question as to whether a magistrate has power to stay committal proceedings for abuse of process.  No express power is given by the District Courts Act, so the power to do so only exists if it is implied in the statutory provisions governing such proceedings.

55.	In Australia the High Court held in Grassby v R (1989) 168 CLR 1 that no such power is implied from provisions similar in terms to the District Courts Act, and which effectively provide that the role of the magistrate is to consider the sufficiency of the evidence and not make a final determination as to guilt or innocence.  In summary, the Court held that the question as to whether or not the accused should ultimately be tried is one for the prosecution, and the trial court has the power to ensure that any subsequent prosecution is fair, including stopping it in exceptional circumstances.  This was recently affirmed by the Queensland Court of Appeal in Higgins v Mr Comans, Acting Magistrate & DPP (Qld) [2005] 53 A Crim R 565, again regarding provisions very similar in terms to those in this jurisdiction.

56.	This would also appear to be the position in this jurisdiction. As the Supreme Court said in Leahy (supra):

 “ The purpose of [committal] proceedings … is not to determine the guilt or innocence of the defendant. The purpose is to determine whether in the opinion of the presiding magistrate there is sufficient evidence for the defendant to be committed to trial. “

57.	It is not necessary, however, for present purposes to determine whether or not the magistrate had such power.    

58.	In Wartoto (supra) Sakora and Kandakasi JJ, Injia CJ agreeing, said at [51] that (emphasis added): 

“[A]ny issue around irregularity, defect or otherwise an abuse of process, must be raised promptly at the appropriate level. If it concerns any abuse at the Police investigation or District Court committal stages, they must be first raised and resolved at those levels. Any matter beyond the reach of the District Court can be raised and sorted out with the Public Prosecutor at the first instance or failing that, the National Court when the matter enters the National Court in accordance with the process and procedure stipulated under the Criminal Code and Criminal Practice Rules of the Court. Finally, if the abuse is at the National Court level, again it must first be raised and dealt with at that level. If the issue is appropriately raised at the National Court level and the Court fails to deal with, it would properly be a subject for appeal or review. Finally, the Supreme Court would deal with any abuse or improper use of its process, including any appeals or reviews on point and abuse of the National Court process which could not be corrected at that level by the National Court.”

59.	To my mind that is the situation here.  The accused applied to have the matter dismissed as an abuse of process and the magistrate refused to commit the accused on that basis.  The Public Prosecutor now seeks to exercise his powers pursuant to s 526 of the Criminal Code following that refusal to commit.

60.	The accused argues that the only recourse for the Public Prosecutor is to appeal against the decision of the District Court or seek judicial review of it.  As the Supreme Court made clear in Leahy (supra), the Public Prosecutor’s exercise of power pursuant to s 526 is not subject to exhaustion of appeal rights or review powers: see [162].
 
61.	At [163] the Supreme Court said:

“The interpretation advanced by the applicant would mean that if the District Court refused to commit a person for trial, the Public Prosecutor would have to prevail upon the Secretary for Justice to seek and obtain leave from the National Court to appeal against the refusal (Lawmiller Pawut v Lim Ben Bee [1996] PNGLR 26, National Court, Andrew J). The Public Prosecutor would then wait until the appeal was resolved. If it were dismissed, he would present an indictment to the same court that had just dismissed an appeal against the refusal to commit. This would be a bizarre state of affairs. It would be an unworkable scenario, not one that the Supreme Court should promote. It would further derogate the constitutional independence of the Public Prosecutor.”

62.	Furthermore, as appears from Wartoto, such issues arising in criminal matters should first be dealt with within that jurisdiction.  Again, that is what the Public Prosecutor seeks to do in this case.  

63.	Moreover, the Supreme Court in Leahy (supra) recognised that s 526 provides an important check and balance on the exercise of power by the District Court: at [151].  Section 526 allows the Public Prosecutor to present an indictment to the National Court notwithstanding the refusal by the District Court to commit a person for trial.  In this way s 526 “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”: [141].  

64.	As above, a decision to stay a prosecution for abuse of process essentially concerns questions of fairness, the interests of justice and the public interest.  Those are the very issues that the Public Prosecutor in exercising the prosecution function of the State is empowered, obligated and uniquely placed to determine when deciding whether, and on what charge, any accused should be brought before the National Court.  Thus an exercise of power by the Public Prosecutor pursuant to s. 526 following a refusal to commit for an abuse of process is entirely consistent with the decision in Leahy (supra) in my view.

65.	I am satisfied that there was a refusal to commit the accused for trial for the purposes of s. 526(1) of the Criminal Code.  The objection fails.  

S. 526(1)(a) OF THE CRIMINAL CODE: 
THE PUBLIC PROSECUTOR HAS CONSIDERED THE EVIDENCE CONTAINED IN THE DEPOSITIONS TAKEN BEFORE THE COURT, (AND ANY OTHER RELEVANT EVIDENCE) 

No Depositions taken before the District Court

66.	As I understand it the accused submits firstly that there were no “depositions taken before the” District Court for the purposes of s 526(1)(a) because the Court did not “hear” or “receive” the evidence for the purpose of s95 (Court to consider whether prima facie case), “examine” and “hear” the defendant under s 96 (Accused to be asked whether he desires to give evidence), and form an opinion of it as to sufficiency under s 100 of the District Courts Act.  Further, that in the circumstances the Public Prosecutor has not considered the depositions taken before the District Court. Alternatively, that the Public Prosecutor did not consider the depositions but only a copy of the police hand up brief filed in the District Court. 

67.	I don’t accept the submission that “no depositions were taken” before the District Court.  As stated in paragraph 9 of the magistrate’s decision the police brief was filed in court.  Furthermore, it is clear that the depositions were not only before the Court but that the learned magistrate had formed the view that he should exercise his powers to commit in accordance with s 94B of the District Courts Act (Committal for trial without consideration of the evidence).  He declined to do so only on the application of the accused pertaining to abuse of process.  The fact that the magistrate did not proceed to consider whether there was a prima facie case in those circumstances does not mean that there were no depositions before the District Court. 

Public Prosecutor has not considered a copy of the depositions contained on the court file

68.	Nor do I accept the submission that the Public Prosecutor has not considered “the evidence contained in the depositions taken before” the District Court because the District Court has not provided him with a “sealed copy of the District Court depositions containing all the relevant evidence and records of” the lower court proceedings. 

69.	The accused has obtained an affidavit from the Acting Deputy Clerk of the District Court sworn 19 November 2019 stating that: “the Court has not provided any Court depositions to the Public Prosecutor’s Office and that the Public Prosecutor may have obtained the files from the Police Prosecution/Investigators”.

70.	The Public Prosecutor does not dispute that he considered the evidence contained in a brief provided to him by the investigating officer. See paragraph 18(c) of the Public Prosecutor’s affidavit set out below at [74].  

71.	The investigating officer in turn, Detective Senior Constable Pius Peng confirms at paragraphs 4 and 5 of his affidavit sworn 25 November 2019 that:

“Following the dismissal of the matter in the District Court, I provided the Police Hand up Brief to the Public Prosecutor, which accompanied the request to the Public Prosecutor to consider issuing a section 526 Criminal Code Indictment against the accused. 

I confirm that the Police Hand Up Brief provided to the Public Prosecutor, was the same as the Police Hand Up Brief filed in the District Court, and served on the accused through his counsel.”

72.	It is not suggested by the accused that there is any difference between the material filed in the District Court and that considered by the Public Prosecutor.  

73.	Furthermore, in his affidavit sworn 4 November 2019 the Public Prosecutor states at paragraph 18 that in relation to the indictment which he presented to the Court:

“b. At my instruction the indictment and the Hand Up Brief was served on the Accused on 26 April 2019;

c. The Indictment, which has the effect of initiating a prosecution, was signed by me pursuant to section 526 of the Criminal Code following my consideration of the brief provided to me by the Police on 14 December 2018;

d. That Indictment was signed by me on 25 April 2019;

e. I exercised the power in section 526 of the Criminal Code, following the decision of the Criminal Court to dismiss the charges against the Respondent;

f.	A copy of the decision of the Committal Court, dated 10 December 2018.  Annexered hereto as Annexure PP-[5].

g.	In coming to a view to issue an indictment pursuant to section 526 of the Criminal Code,  I carefully considered the evidence provided to me.  In considering that evidence,  I considered that there was a prima facie case with reasonable prospects of conviction arising on the material provided.

h.	I did not consider that the charges laid in the initial information were appropriate, however in accordance with the powers outlined in section 526, I made a determination to lay a different charge.  That charge however, is not novel to the Accused, and no prejudice flows.  The charge proposed to be laid, is what I consider the appropriate charge arising from the evidence presented at committal, and the general nature of the case remains the same.” 

74.	I am satisfied on the evidence that the Public Prosecutor has considered the evidence contained in the depositions taken before the District Court for the purposes of s 526(1)(a).  Whether or not that was a copy obtained from the District Court Registry is immaterial.  The evidence he has considered is the same as that contained in the depositions taken before the District Court.

75.	Whilst not in issue here it is important to make clear that the Public Prosecutor is not constrained in making his decision under s 526 to consider only the evidence contained in the depositions.  He may also consider “any other relevant evidence”. 

76.	The objection with respect to s 526(1)(a) of the Criminal Code is dismissed.

S. 526(1)(b) OF THE CRIMINAL CODE:  
THE PUBLIC PROSECUTOR HAS REDUCED INTO WRITING IN AN INDICTMENT A CHARGE OF ANY OFFENCE THAT THE EVIDENCE APPEARS TO WARRANT

Fresh Offence

77.	The accused submits that s. 526 of the Criminal Code “does not provide for an unrelated fresh offence separate and distinct from those in the committal proceedings from being initiated and presented”.  

78.	It is well settled that pursuant to s. 525 and s. 526 the Public Prosecutor has an absolute power to consider the evidence, and at his 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.

79.	Per 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… or the one negotiated and obtained for purposes of guilty pleas ... The original charges do not determine the eventual charge in the indictment.”

80.	The only distinction between s. 525 and s. 526 in this regard is that the power with respect to the latter is confined to the Public Prosecutor himself, whilst any State Prosecutor may do so under s. 525 of the Criminal Code. 

81.	The State frequently decides to proceed with charges in the National Court that differ to those on which an accused was originally charged at committal. It does so following a review of the available evidence (further of which it may seek through the police), having regard to the applicable law, and having considered the availability and reliability of witnesses.  This is again consistent with the powers of the Public Prosecutor to control the exercise and performance of the prosecution function pursuant to s. 177 of the Constitution. It is 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 and provides the court with an appropriate basis for sentence in the event of conviction.  Whilst in the ordinary course the charge selected should be the most serious one disclosed by the evidence, a prosecution should only proceed in relation to a charge for which there is a reasonable prospect of securing a conviction, and where prosecution is in the public interest.   These principles are set out in the Prosecution Policy of the Office of the Public Prosecutor of Papua New Guinea but are universally recognised in similar common law jurisdictions.   

82.	These are matters for the Public Prosecutor to decide.  Adopting the words of Kandakasi J in The State v Louise Paraka (2002) N2317, s. 526 proceeds on the basis that the Public Prosecutor … “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". 

83.	Neither Regina v Burusep [1963] PNGLR 181 nor Regina v Ebulya [1964] PNGLR 200 assist the accused as submitted. I note that in the latter Mann CJ explicitly retracted his holding in Burusep that the equivalent of s. 526 did not apply in PNG.  The latter case stands as early authority that the Public Prosecutor may indict on any charge the evidence appears to warrant.  In that case the accused was committed for sentence on the lesser charge of indecent assault but indicted for rape.  

84.	In any event the wording of s 526 and the authorities are clear.  

85.	I note the evidence of the Public Prosecutor in paragraph 18 of his affidavit, in particular (g) and (h), above, together with paragraph 21 and 25:

 “that the evidence presented to me supported a charge, I made a determination that it was appropriate to commence a proceeding by way of section 526 of the Criminal Code...

25. … I considered the evidence provided to me provided a proper basis for the charge contained in the Indictment I signed.”

86.	As above the Public Prosecutor is at liberty to obtain additional material pursuant to s 526(1)(a) but in this case it is clear on the evidence of the Public Prosecutor that the charge arises out of the same material before the District Court. 

87.	For completeness I note that the Public Prosecutor also makes clear at paragraphs 19, 20 and 21 that he has considered the decision of the learned magistrate in reaching his decision. 

Offence not known to written law

88.	The accused argues that the Court should refuse to accept the indictment because it does not contain an offence known to written law as required pursuant to s. 37(2) of the Constitution because it fails to indicate the relevant offence provision number of the Criminal Code.  He further submits that the charge fails to set out the “relevant facts disclosing the relevant elements” of any offence known to law, or in particular under s.383A of the Criminal Code.

89.	In my view these are not preconditions for the purposes of s 526 but I will deal with them in any event. 

90.	Section 37(2) (Protection of the Law) of the Constitution provides (in part) that:

“Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law”. 

91.	As to his first objection, it is a matter relating to form. Section 528 of the Criminal Code sets out the formal requirements of an indictment for current purposes:  
“(1) An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged–
(a) in such a manner; and
(b) with such particulars as to–
(i) the alleged time and place of committing the offence; and
(ii) the person (if any) alleged to be aggrieved; and
(iii) the property (if any) in question,
as is necessary to inform the accused person of the nature of the charge.
(2) Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.
(3) Where the circumstance of aggravation intended to be relied on is a previous conviction…
(6) It is sufficient to describe an offence in the words of this Code or the other written law defining it.
(7) The place of trial shall be named in the margin of the indictment.”

92.	Section 528(6) of the Criminal Code reflects the need for an accused person to be charged with an offence which is defined by a written law:  s. 37(2) of the Constitution. 

93.	Order 3, Division 1, (Commencement) Rule 2 of the Criminal Practice Rules states (in part) that every indictment shall be in accordance with Form 1 to the Rules.   Order 3 Rule 3(a) provides that:

“3. The statement of the offence in the indictment shall
(a) be in the applicable Form in Schedule 2, as appropriate; or
(b) if no Form is provided in the Schedule, be in accordance with an analogous Form in the Schedule; or
(c) if there is no such Form, be stated in the words of the Code or other Statute under which the indictment is presented.”

94.	Schedule 2 provides the following form for Section 383A (for our purposes):

“(1) Dishonestly applied to his own use [or to the use of (name person)]
(a) (particulars of property) belonging to (name person); or…”

95.	Neither the Rules nor s. 528 of the Criminal Code require the particular offence provision number to be stated in the indictment.  Whilst there would be nothing to prevent the State from doing so, the indictment has been drafted in accordance with longstanding practice in this jurisdiction.

96.	Furthermore, there can be no doubt given the second limb of the accused’s objection that he is well aware that the Public Prosecutor intends to proceed against him pursuant to s. 383A of the Criminal Code.  This has been clear to him since the Public Prosecutor’s letter of 25 April 2019 and is apparent on the face of the indictment.

97.	The elements of an offence against s. 383A of the Criminal Code are well established and have been recently affirmed in the Supreme Court decisions of Havila Kavo v The State (2015) SC1450 and Wartoto v The State (2019) SC1834. The prosecution must prove beyond reasonable doubt that the accused:

a)	applied; 
b)	to his own use or to the use of another; 
c)	property; 
d)	belonging to another person; 
e)	dishonestly. 

98.	It is clear that the indictment in this case contains each of these elements and further that it is compliant with s.528 of the Criminal Code as to the provision of particulars as to date and time, the aggrieved person, the property in question, and circumstance of aggravation (namely the value of the property) for the purposes of s.383A(1A)(b).  

99.	The accused argues that the indictment does not set out the necessary “base facts” to show:

(a)	how the accused applied to his own use;
(b)	the funds of K162 million;
(c)	how the funds belonged to the State, whether they were trust funds for a specific purpose;
(d)	how the funds were misappropriated; and 
(e)	how the accused was dishonest.

100.	The accused relies on The State v Saul Oregem (2004) N2780 in support of his argument. That case has no application here.  It concerned a charge of persistent sexual abuse contrary to s. 229 D of the Criminal Code which failed to “describe the nature of the separate offences alleged to have been committed by the accused” during the relevant period as prescribed by s. 229D(4). Section 229D(4) specifically provides that those are essential particulars, which must be pleaded so that, inter alia, any sentence is determined having regard to the nature of the offence, for instance whether penetration or touching.

101.	It is well established, however, that an important aspect of the right to fair trial “is the right of every accused to know the case which the prosecution seeks to advance at trial”.  This includes the “particular act, matter or thing alleged as the foundation of the charge”: see Johnson v Miller (1937) 59 CLR 467 per Dixon J.  A distinction is, however, to be drawn between the essential elements of the offence alleged and the particulars of that offence:  Roland Tom v The State (2019) SC1833 at [28]. 

102.	Here all the essential elements of the offence are stated in the indictment.  The “base facts” the accused refers to are the particulars upon which the State will rely to establish the elements of the offence against him. It is not necessary for those matters to be set out in the indictment: see Preston v Donohoe (1906) 3 CLR 1809. 

103.	It is the case that the amount averred is very large.  I am not in a position to say anything more about that on current submissions.  If the accused is in any doubt about the nature of the charge he is at liberty to apply for additional particulars pursuant to Order 2, Division 1, Rule 7(c) (Practice Directions) of the Criminal Practice Rules. 

104.	There is ample evidence to establish that having considered the evidence contained in the depositions taken before the District Court the Public Prosecutor reduced into writing in an indictment a charge of an offence the evidence appeared to warrant for the purposes of s 526(1)(b) of the Criminal Code. 

105.	The objections with respect to s 526(1)(b) of the Criminal Code are dismissed.

526(3) OF THE CRIMINAL CODE: 
THE PUBLIC PROSECUTOR HAS SERVED ON THE ACCUSED COPIES OF THE COMMITTAL DEPOSITIONS AND STATEMENTS FROM WITNESSES WHOM THE PROSECUTION INTENDS TO CALL AT THE TRIAL 

106.	As above, the Public Prosecutor deposes at paragraph 18(b) of his affidavit that the indictment and police hand up brief was served on the accused at his instruction on 26 April 2019.   

107.	The accused does not dispute this.  In his affidavit sworn 19 November 2019 at paragraph 27 and 28, however, he states that the documents served on him on that day “was in fact a copy of the police hand up brief” and not copies of the depositions taken at the committal proceedings and copies of the statements taken from witnesses upon whom the prosecution intend to rely at trial.

108.	For the reasons stated above, I am satisfied that the material served was a copy of the evidence contained in the depositions taken at the committal proceedings.  I am also satisfied on the evidence of the Public Prosecutor in paragraphs 18, 21 and 24 of his affidavit that the same material comprises that upon which the Public Prosecutor formed his decision to bring these proceedings. 

109.	Or in other words, the evidence establishes that the Public Prosecutor has complied with the obligation under 563(3) of the Criminal Code to serve copies of the committal depositions and witness statements upon whom he intends to rely at trial.    The objection fails.

110.	Whilst not in issue, I note however, that whilst I agree with the Court in Paraka v Mekeo Gauli (supra) that the Public Prosecutor should as matter of general principle serve on the accused copies of the depositions and witness statements upon which he intends to rely at trial prior to presentation of the indictment, in my respectful view it is not a precondition to its presentation pursuant to s. 526 of the Criminal Code.  

111.	Section 526 requires that material is served “within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.”  A trial commences not upon presentation of an indictment, but upon arraignment: s 557(2) of the Criminal Code.  Questions of reasonableness are matters for the trial judge at the relevant time.

112.	Nor in my view should the Public Prosecutor be precluded from invoking the jurisdiction of the National Court by presenting an indictment pursuant to s.526 of the Criminal Code against a person who has absconded the jurisdiction, gone into hiding or is otherwise avoiding service.  This may be important for the purposes of obtaining warrants or when seeking extradition.

113.	Finally, I make clear that in reaching my decision on the presentation of the indictment it has not been necessary for me to look at, and I have not looked at, the contents of Exhibit Q to the accused ’s affidavit sworn 19 November 2019, which I accept on his affidavit is a copy of one of three bundles of the police hand up brief served by the Public Prosecutor on him, or Exhibits R and S, which again I accept are indexes to the second and third bundles of the police hand up brief served on him by the Public Prosecutor.   

Conclusion 

114.	Having regard to all of the above I make the following orders:

(a)	the application to adjourn generally the presentation of an indictment pursuant to s. 526 of the Criminal Code by the Public Prosecutor under Ground 1 of the Notice of Motion filed 19 November 2019 is withdrawn and dismissed;
(b)	the objections to the presentation of the indictment signed by the Public Prosecutor on 25 April 2019 pursuant to s. 526 of the Criminal Code under Grounds 2(a) and (c) of the Notice of Motion filed 19 November 2019 are refused;
(c)	the indictment signed by the Public Prosecutor on 25 April 2019 and presented by the Public Prosecutor pursuant to s 526 of the Criminal Code is accepted; and
(d)	the accused is to identify on which, if any, of the remaining grounds of his notice of motion he wishes to rely as part of the pre-trial process.
___________________________________________________________
Public Prosecutor: 	Lawyers for the State
The Accused:	In person