State v Ababa (No 1) [2022] PGNC 164; N9588 (23 March 2022)

N9588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 165 OF 2021

THE STATE

V

JAMES ABABA
(No 1)

Waigani: Ganaii, AJ
2022: 22^nd & 23^rd March

CRIMINAL LAW – Practice and Procedure – Application Seeking Leave to withdraw indictment – Defendant had not been Arraigned on Old Indictment – State has shown good Motive for Withdrawal – Public Prosecutor’s Exercise of Power to Reassess same Evidence and Preference for upgraded Charges - Accused be given time to prepare defence in light of the presentation of a new indictment

Held:

1. Where an indictment was presented and the accused has not been arraigned, the indictment can be withdrawn with leave of Court.
   
2. The test for granting of leave is based on whether the State has a good motive for withdrawing an indictment. Whether or not there is good motive, depends on the circumstances of each case and the question of whether it is in the interest of justice that such an application should be granted.
   
3. The interest of the defendant to the full protection of the law on the one hand must be balanced out with the interest of the State on the other.
   

4. The interest of the State involves the consideration that the Public Prosecutor has the prerogative and discretion to bring a charge against an accused. The exercise of this prosecutorial function is independent and is not subjected to interference by anyone including the courts.

Cases Cited:
Papua New Guinean Cases

R v Toigen Tiolo [1969-1970] PNGLR 285
Review by Herman Joseph Leahy (2010) SC1018
Simili Kara v The State [1984] PNGLR 254
State v Ava [2010] N4161
State v Douba (2018) N7627
State v Kobobo [2006] N4477
State v Paraka (2002) N2317
State v Tomande [2019] N7797
State v Umauma [2021] PGNC 428 N9199
State v William (No 1) [2004] PGNC 212
State v William (No 2) [2004] N2556

Overseas Cases

R v Street [1960] VicRp 103; [1960] VR 669
R v Westerman (1991) 55 A Crim R 353

Laws Cited

Criminal Code, Chapter No 262
Constitution, Section 155 (4)
Criminal Procedure Act of NSW 1986 No 209, Section 20
Office of the Public Prosecutors, Prosecutions Policy of 2006, Section 6.2

Counsel

Ms M Tamate, for the State
Mr B Popeu, for the Accused

Ruling on Application Seeking Leave to Withdraw an Indictment

23^rd March, 2022

1. GANAII, AJ. This is the background to this application. On the 13^th of September 2021, the State presented an indictment against the accused, charging him with three counts of Dangerous Driving Causing Death, contrary to section 328 (2) and (5) of the Criminal Code. On the 24^th of August 2021, Defence made an application to quash the indictment. His Honour Manuhu J refused the application. The matter was transferred to this court for allocation of a trial date. Prior to the allocation of a trial date and with the passage of approximately six months, the Public Prosecutor had formally written to the defendant’s lawyers, informing them that the State will seek to withdraw the old indictment with a view of presenting a new one. The State indicated that the new indictment will contain new charges of Manslaughter.

2. On the 22^nd March 2022, State made the oral application seeking leave to apply to withdraw the old indictment and to present a new one. This is the ruling on the application.

State Submissions

3. State invoked the Court’s inherent jurisdiction, pursuant to section 155 (4) of the Constitution seeking the Court’s leave to make an application to withdraw the old indictment. State relied on the case of State v Bona Umauma [2021] PGNC 428 N9199 as its legal authority in seeking leave to withdraw the indictment. This court in that case also cited other relevant judgments which the State relied.

Defence Submission

4. Mr Popeu of learned counsel for the accused cited the same cases relied on by the State and made the following submissions:

1. whilst it is not disputed that the Public Prosecutor has the prerogative to prefer any charge against an accused person where the evidence warrants; that prerogative has been exercised in the presentation of the first indictment and cannot be exercised again;
   
2. where no reason was given to explain why there was another assessment on the evidence the Public Prosecutor, hence another charge being preferred, it is an abuse of the court process as the Public Prosecutor’s prerogative is subjected to the law;
   
3. the law is that the State has no power to withdraw an indictment once it has been preferred by the Public Prosecutor upon committal;
   
4. the Criminal Code does not provide for the option to withdraw an indictment, but only for amendments; and
   
5. Leave can only be granted if proper motive is shown. The State Prosecutor had not shown proper motive for leave to be granted.
   

Law

5. There is no Supreme Court decision on the law guiding the practice for seeking the withdrawal of an indictment. The following is a summary of the process as shown in various National Court cases cited and relied on by both the State and Defence.

6. In State v Bona Umauma (supra), in consideration of the prevailing circumstances of the case, the Court granted leave for the State to make an application to withdraw an old indictment. The facts were that the accused was initially charged for an offence of Persistent Sexual Abuse under Section 229D of the Criminal Code. The defence applied to have the indictment quashed on the basis that the indictment did not plead the element of age of the child complainant.
State in response applied to the Court, asking the Court to invoke its Section 155 (4) inherent jurisdiction to grant them leave to withdraw the indictment and present a new one. The Court applied the principles in the cases of State v Tomande [2019] N7797 (5^th April 2019), State v William (No 2) [2004] N2556 (28^th April 2004); State v Sohia Kobobo [2006] N4477 (21^st August 2006); and State v Jeffery Ava [2010] N4161 (16^th November 2010), in granting leave to the State to withdraw the old indictment and present a new one.

7. In the headnote of the case of Umauma (supra), the Court considered that an amendment would not cure the defects on the indictment. The Court stated that since the accused had not yet been brought to trial pursuant to section 557 of the Criminal Code, granting the application to the State will not be prejudicial to him in his defence [29]. Consequently, the Court refused the application by the defence to quash the indictment and granted leave to the State to withdraw the indictment.

8. In State v Tomande (supra), the facts were that the State had presented an indictment against the accused containing one count of money laundering, contrary to s. 508B (1) of the Criminal Code. The State then sought leave to withdraw the indictment with the intention of presenting a fresh indictment containing the said count together with an additional 14 counts of obtaining property by false pretence and one count of misappropriation, contrary to ss. 404 and 383A of the Criminal Code, respectively. The defence objected to the withdrawal of the indictment. Not arguing that the proposed course is prejudicial to the accused, rather submitting that it is an irregularity. The court considered that the accused was yet to be arraigned and therefore is yet to be brought to trial.

9. A trial only begins when the accused is called on to plead to the indictment: s. 557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at this stage; s. 535 is, by its terms, predicated on a trial having commenced. The question of prejudice did not arise. For these reasons it was her view that leave to withdraw the indictment in that case was granted.

10. In the case of State v Sohia Kobobo [2006] N4477 (21^st August 2006), an indictment was presented against a man, charging him with incest. It was alleged that he engaged in an act of sexual penetration with his niece. His counsel objected to the indictment on the ground that when the alleged act was committed it was not an offence for him to have sexual intercourse with his niece. When the objection was raised the prosecutor sought leave to withdraw the indictment. The accused objected to that too. A ruling was required on three questions: (1) did the prosecutor need leave to withdraw the indictment? (2) if yes – should leave be granted? (3) if leave was not granted, should the indictment be quashed? His Honour Cannings J held that:(1) Leave was required to withdraw the indictment.
(2) Leave was granted to withdraw the indictment, as leave was sought for a proper motive: to consider the State’s position in light of the defect in the indictment exposed by the defence counsel. No abuse of process is apparent, and the accused is being given the full protection of the law.
and (3) If the indictment were not withdrawn, it would have been quashed as it was alleging an offence – engaging in an act of sexual penetration with a niece – that did not exist at the time that act was allegedly committed.

11. In State v Jeffery Ava [2010] N4161 (16^th November 2010), Kariko J, stated that the prosecution may with leave of the court amend an indictment after presentation and before arraignment. It is a matter of discretion for the Judge before whom the application for amendment is made, and the Judge may have regard to but is not bound by the matters prescribed by section 535 of the Criminal Code; Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018. Although this Supreme Court decision relates to an indictment laid under section 526 of the Criminal Code or what is commonly referred to as an "ex-officio indictment", the principles equally apply to an indictment laid under section 525 of the Criminal Code.

12. In the Ava (supra) case, His Honour Kariko, J accepted the submissions by the State and balancing the interest of the accused and the interest of justice, he granted the application to amend the indictment. The Court went on further to state the following regarding the course open to the prosecution:

“Apart from amending the indictment, there is another option available to the prosecution. Where an indictment has been presented but before arraignment, the State may with leave of the court withdraw the indictment and present another indictment; see The State v William (No 1) [2004] PNGNC 212. The accused would not be prejudiced by the withdrawal of the indictment as he has not been called upon to plead to the indictment; The State v Kobobo [2006] PNGC 92.

If I allowed the State to elect and proceed on one of the indictments and amended it in terms of its application, it would be a very messy exercise given the form of the indictment already before the court. The wording of the charge on the indictment (whether count 1 or count 2) simply leaves no room to clearly and in a orderly legible fashion include the amendments. In the circumstances, I would grant leave for the State to withdraw the indictments and present a new indictment containing the proposed amended charges. To ensure the right of the accused to a fair trial is protected, the case should then be adjourned for the relevant notice of alibi to be properly served and the alibi witnesses interviewed.

While I appreciate that being on circuit in a small town offers certain limitations in preparation for a case, including the drafting of an indictment, the prosecution duty to properly indict must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. The indictment may be in writing; R v Toigen Tiolo [1969-1970] PNGLR 285, and if there is insufficient space to include all charges on the pro-forma that is carried by prosecutors on circuit, then the prosecutor should write up the complete indictment or better still seek assistance from the court staff or the Police to have the indictment typed up”.

Summary of the Law

13. The position in law starts with there being no expressed provision in statute (i.e. the Criminal Code or the Criminal Practice Rules) that provides for leave to withdraw an indictment.

14. Case precedents do provide that an indictment can be withdrawn with leave. Formal leave must be sought and granted before an application for withdrawal can be made. The test for consideration of whether or not leave can be granted is whether there is a good motive for withdrawing the indictment (Kobobo, Tomande, William (No 1) and Ava (supra) cases).

15. The question of whether there is a good motive for withdrawing an indictment depends on the circumstances of each case and the question of whether it is in the interest of justice that such an application should be granted (Kobobo, Umauma cases).

16. This question of interest of justice requires the court to consider that justice is for everyone. Hence, the interest of the defendant to the full protection of the law on the one hand must be balanced out with the interest of the State on the other (Tomande, Kobobo and Umauma cases).

17. The interest of the State involves the consideration that the Public Prosecutor has the prerogative and discretion to bring a charge against an accused. The exercise of this prosecutorial function is independent and is not subjected to interference by anyone including the courts (William No 1 and Ava cases).
Application of the law to the facts

18. The Public Prosecutor had exercised his prerogative and independent discretion by reassessing the same evidence contained in the Police Hand Up Brief (PHUB), which was relied on in the Committal proceedings. He had reconsidered his position and had decided to upgrade the charges from counts of Dangerous Driving Causing Death to that of Manslaughter. There can be no issue on the exercise of this power. Mr Popeu’s submission that where that power had once been exercised cannot be revisited has no legal basis. He had not provided any legal arguments for that proposition.

19. I reject the defence submission that there was no good motive shown for the withdrawal of the indictment and as such the exercise of the Public Prosecutor’s prerogative to reassess the evidence is an abuse of the courts process. Again, there is no legal basis for that proposition or at the least, the defence have not shown any ulterior motive held by the Public Prosecutor in this circumstance.

20. I am satisfied that the reasons provided by the learned state prosecutor are sufficient and the Public Prosecutor need not go further than to state that he had made a reassessment of the same evidence contained in the committal depositions and has decided to upgrade the charges. The Public Prosecutor had exercised his lawful authority and prerogative that is his alone to reconsider the evidence and had communicated that to the defence pending the allocation of a new trial date. No ulterior motive was held.

21. Unless it is shown, there can be no ulterior motive where the withdrawal of the indictment firstly, promotes the independent exercise of the Public Prosecutor’s discretion within the framework of its prosecution policy so that the interest of the state to bring accused persons to trial is achieved. The Public Prosecutor does owe a duty to the people of PNG to ensure that those charged with serious crimes must face the courts so that public confidence in the criminal justice system is maintained. Secondly, it would not be unfair or prejudicial to the accused if the indictment was withdrawal. The accused had not been arraigned on the previous indictment.

22. In determining whether an amendment to a charge or indictment will cause prejudice to the accused, the court should consider the stage of the proceedings at which the amendment is sought (R v Street [1960] VicRp 103; [1960] VR 669; R v Westerman (1991) 55 A Crim R 353). In the circumstances of the case, the accused has not yet been called to enter a plea on the previous indictment. No prejudice is done to him and hence, the indictment can be withdrawn and a new one presented. In all fairness to the accused, however, the Court must give him ample time to talk to his lawyer and prepare his defence in the light of the new indictment.
23. The full protection of the law that is accorded to the accused person throughout the criminal justice process must continue to apply. The accused must be accorded his right to the full protection of the law within the well-established principles in law that jealously guards his Constitutional rights. One such right is that of legal representation. In this instance, the accused is represented by the Public Solicitor and he can be given ample time to prepare for his defence under the new charge on the substituted indictment.

24. In the New South Wales (NSW) criminal justice system, unlike ours, the law does provide for the amendment of an indictment by substitution. Section 20 of the Criminal Procedure Act of NSW 1986 No 209 says:

“20 Amendment of indictment

(1) An indictment may not be amended after it is presented, except by the prosecutor—

• (a) with the leave of the court, or
• (b) with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.
(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment”.

25. On the commentary for this section, it was stated that the statutory amendment power is wide ranging and allows amendments that add charges, substitute applicable charges for inapplicable charges and add or vary the particulars of an offence. In making reference to the position in law in NSW, and in consideration of the case authorities within jurisdiction, it is demonstrated that the power to withdraw an indictment with the presentation of a new one is correctly referred to as an amendment to the indictment by substitution of the charge, and the Public Prosecutor can do that pursuant to his powers on the condition that he does so with good motive and that the Court shall give ample time to the accused to prepare his defence in light of the presentation of a new indictment.
26. 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.

27. In exercising his powers to bring a preferred charge against an accused person, the Public Prosecutor should always be guided by the standard Public Prosecutors Prosecutions Policy of 2006 which includes among others a consideration of the interest of the State to bring persons alleged to have committed serious offences to the courts based on the evidence^[1].

28. In this instance, the decision to reassess the evidence and prefer an upgraded charge is done with good motive.

Conclusion

29. Although there is no expressed statutory provision, in the exercise of its inherent powers under section 155 (4) of the Constitution, and case authorities, this Court is satisfied that there is good motive for the State in seeking leave to withdraw an old indictment. The Court therefore grants leave to the State to withdraw the old indictment and present a new one.
Order

30. Leave is granted to State to withdraw the old indictment.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Joppo Lawyers: Lawyers for the Accused

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^[1] 6.2 It is not the rule that suspected criminal offences must automatically be the subject of criminal prosecution. The first consideration is always whether the evidence which is available, and admissible, is such that a court is likely to convict. If there is such evidence, the next question is whether prosecution is in the public interest. (Office of Public Prosecutor, Prosecution Policy, 2006)