N9264
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 144 OF 2020

STATE

V

ANDREW LILIURA
 (NO 1)

Waigani: Wawun-Kuvi, AJ
2021: 27-28 October, 10 November
CRIMINAL LAW-TRIAL-Application to quash an indictment- Whether indictment formally defective or calculated to prejudice the accused in his defence?
CRIMINAL LAW-INDICTMENT-Whether the joinder is proper?

Cases Cited
Wartoto v The State PGSC 1; SC1411 
State v Nugints [1994] PGNC 46; N1228 

Reference
Section 560 (2), 531 & 558 Criminal Code (Ch 262)
Section 37(8) Constitution
Section 128, 129 & 131 District Court Act

Counsel

Mr. Andrew Kaipu, for the State
Mr Friedrich Kirriwom, for the Defence

RULING

10th November, 2021

1.	WAWUN-KUVI, AJ: Following the presentation of the indictment and brief facts and prior to the accused pleading to the indictment, the Defence moved a motion to quash the indictment pursuant to section 558 of the Criminal Code (Ch 262).

2.	The Defence contention is that the accused will be prejudiced in his defence and that pursuant to section 37 (8) of the Constitution the proceedings are barred because the accused has already been tried for the offence.

3.	The defence contend that the accused was charged under the Summary Offences Act for assault arising out of the same allegations. The matter went before the District Court sitting in its summary jurisdiction at Boroko. The accused took a plea and the matter proceeded to hearing. Rather than dismiss the information or return a verdict of guilty, the magistrate struck the matter for want of jurisdiction and abuse of process. This in effect deprived the accused of a legal defence in law. In support of this contention, the accused relied on his affidavit sworn on 26 October 2021.

4.	In State v Nugints [1994], Injia, AJ (as he was then) held that a plea of autreforis pursuant to section 560 (2) of the Criminal Code is available in a case where an accused is acquitted by the District Court and later the same set of facts are used to indict the accused in the National Court on a different charge. In that case the accused was acquitted on the charge of unlawful assault contrary to section 6 of the Summary Offences Act by the District Court and was later indicted in the National Court for causing grievous bodily harm contrary to section 319 of the Criminal Code.

5.	The argument by defence is that because the matter was struck out the accused was deprived of the option to plead either autrefois convict or autrefois acquit pursuant to section 560 (2) (c) or (d) of the Code. That this Court is empowered to protect its processes from procedural defects or abuses as enunciated by the Supreme Court in Wartoto v State [2015]. And the manner in which this Court should protect its process is by quashing the indictment.

6.	In my view as is supported by State v Nugints [1994], this proceeding would be barred where the trial was conducted and based on the evidence, the District Court decided either to convict or dismiss the information.

7.	The District Court Magistrate’s reasons are attached to the accused applicant’s affidavit. The evidence to support the motion demonstrates that the 1st mention of the District Court proceeding was on 8 July 2019. On 24 July 2019, the accused was arraigned, and he pleaded not guilty. The matter was eventually set for trial. On the date of the trial, the police prosecutor disqualified himself. The matter was adjourned to give sufficient time for the new prosecutor to prepare. The Court directed parties to either resolve the matter by consent or argue the issue of jurisdiction. On 21 August 2021, the parties decided to argue the issue of jurisdiction. Submissions were made on jurisdiction and the magistrate decided that he did not have jurisdiction and had the matter struck out.

8.	The reasons for ruling by the Magistrate clearly demonstrates that no evidence was called. The prosecutor had disqualified himself on the date of the trial. 

9.	 The trial did not eventuate because the prosecutor recused himself. The matter was then set down for determination on two directions that the Magistrate had thereafter issued. His directions were that the matter be resolved by consent or parties argue the issue of jurisdiction.  The arguments by the prosecutor and defence counsel were on the issue of jurisdiction. The Magistrate then made a ruling based on the information and statement of facts and determined that he did not have jurisdiction. The case was struck out.

10.	Whether or not the Magistrate’s orders were not consistent with law is not the issue before this Court. Whilst defence counsel vigorously contended that the accused was derived of his rights to the legal defences of auteforis acquit or autoforis convict when the Magistrate struck out the matter, those defences are only available following a trial where evidence is called. There was no such trial but a decision on jurisdiction. The evidence was not called, and the magistrate did not make a finding on the evidence.

11.	There was therefore no acquittal or conviction that would bar this Court from proceeding with the matter. 

12.	The matter that is presently before this Court arises out of charges under the Criminal Code, which the accused went through the committal process and was subsequently committed.

13.	 There is nothing in the application that demonstrates that the defendant will be prejudiced in his defence.

14.	In passing, whilst the defence argue that the process under sections 128 and 129 of the District Court Act are in the mandatory terms, in that the matter automatically proceeds to trial when the accused pleads. This section is read in line with section 131 of the District Court Act. Section 131 of the District Court Act provides that the procedure for summary trials shall be in accordance, as nearly as practicable, with the practice in the National Court. The National Court process allows for the Court to determine pre-trial applications which includes applications challenging jurisdiction. In my view it was open for the Magistrate to determine the issue of jurisdiction. And as said, whether the order he made was correct in law, is not a matter for my determination. 

Joinder

15.	I had also raised with counsel the issue of joinder of the charges. The Defence took no serious issue with the joinder other than submitting that the State had indicated that it would not proceed on the charges of rape in its pre-trial review statement. The Prosecutor submits that section 531 of the Criminal Code permits the joinder of the charges and therefore the indictment is not defective. 

16.	As to defence counsel submissions that the defence was ambushed by the charges of rape. The charges of rape were charges in which the accused was also committed. He was aware of the nature of the allegations against him at the outset. Furthermore, the Pre-trial review statement is not binding on parties. There is no prejudice.

17.	 As alluded to by the Prosecutor section 531 of the Criminal Code provides the legal basis for the charges to be joined in the indictment. There is also no prejudice in that regard.

18.	On that basis, pursuant to section 558(2) of the Criminal Code (Ch 262), the motion to quash the indictment is refused.

Orders

19.	The Orders of the Court are:
1.	Pursuant to section 558(2) of the Criminal Code (Ch 262), the motion to quash the indictment is refused.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State/Respondent
Office of The Public Solicitor: Lawyer for the Defence/Applicant