N9728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 758 OF 2021

STATE

V

BHOSIP KAIWI
(No 1)

Waigani: Wawun-Kuvi, AJ
2022:  13th -15th & 24th June

CRIMINAL LAW AND PROCEDURE – application to quash indictment on ground that it is formally defective, Section 558(1)(a) of the Criminal Code (Ch 262)-Accused alleges that Indictment invalid because of defective committal-Amendment of Information to allege offence different to offence originally charged-Original charge of wilful murder, s 299(1)-Amendment of charge to murder under section 300(1)(a)-Accused committed for murder under section 300(1)(a).

An indictment was presented against the accused charging him with one count of murder contrary to section 300 (1) (a) of the Criminal Code. Prior to the accused pleading to the indictment, the defence moved a motion pursuant to section 558(1)(a) to quash the indictment. 

The accused was arrested and charged over allegations that he had killed his wife. An information was laid at the committal court for a charge of wilful murder under section 299(1) of the Criminal Code. After service of the Hand Up Brief (HUB) and prior to submissions on sufficiency, the police sought and were granted an application to amend the information. The information was amended under section 32 of the District Court Act. The charge of wilful murder was substituted for the charge of murder. The accused argues that he should have been discharged because the charge of murder commenced new proceedings.

Held:

1.	It is settled law that the National Court sitting in its criminal jurisdiction, can deal with any issues of irregularity, defect, or abuse of process in accordance with the Criminal Code and the Criminal Practice Rules: see Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017 and Wartoto v The State (2015) SC144.

2.	Motions to quash the indictment has been the process applied to deal with alleged irregularities in the committal proceedings both in this jurisdiction and other common law jurisdictions: see R v Nakian Mandiam [1973] PNGLR 135 and Kalinoe, Re [2018] PGSC 94; SC1751 (19 December 2018).

3.	The basis for which is that if there is no lawful committal then no lawful indictment could be based upon it: R v Nakian Mandiam [1973] PNGLR 135.

4.	The question of breach of procedure and its consequence is dependent upon the factual circumstance of the case and is a question of degree. 

5.	Recourse was taken from the Supreme Court case of Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 adopted in State v Paraka [2020] PGNC 51; N8229 (6 March 2020) and in substance, the learned Magistrate decided to amend the information.

6.	It is permissible to amend by replacing one offence for another, which does not amount to charging a new offence, of which will require new proceedings. It however depends on the legal and factual basis of both charges. And that no prejudice is caused to the accused: See Daly v Karamoshos [2020] VSC 506, Samana v Waki [1984] PNGLR 8 (23 January 1984), (17 August 2020), R v Teong Sun Chuah [1991] Crim LR 463 and Mitchell v. Myers (1955) 57 W.A.L.R. 49

7.	The amendment did not have the effect of charging a new offence. Factually and legally the charges related to the same subject matter, the alleged killing by the accused of his wife and the evidence contained in the Hand Up Brief (HUB) for the original charge was the same for the amended charge. There is no injustice because the substance of the allegations remained unchanged.

8.	The stage at which the amendment was sought and granted may result in unfairness to the accused.

9.	There was no unfairness and prejudice, because the amendment was done prior to submissions and before the Court retired to consider the prosecution evidence under section 95(1) DCA.

10.	The Section 96 of the District Court Act procedure was applied, and the accused was aware that he was charged for murder under section 300(1)(a) of the Criminal Code and that the evidence by the police in the HUB were in relation to allegations that he had killed his wife. The accused was further represented by counsel during the committal process and cannot argue that he was not aware of the charge against him.

11.	The materials before the Court do not demonstrate any serious defect or irregularities in the committal proceedings. Additionally, there was no injustice caused to the applicant.

12.	The motion is refused.

Cases Cited:

Papua New Guinean Cases

R v Nakian Mandiam [1973] PNGLR 135
Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999
State v Paraka [2020] PGNC 51; N8229 
State v Paraka [2020] PGNC 276; N8608 
Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 
Samana v Waki [1984] PNGLR 8 
Wartoto v The State (2015) SC144

Overseas Cases

Daly v Karamoshos [2020] VSC 506 
Tiwari v Trinidad and Tobago (Trinidad and Tobago) [2002] UKPC 29  
R v Teong Sun Chuah[1991] Crim LR 463
Mitchell v. Myers (1955) 57 W.A.L.R. 49

Legislation

Criminal Code (Ch 262)
District Court Act 1963

Reference

Commonwealth Caribbean Practice and Procedure (Seetahal, 2019)

Counsel

Ms. Elizabeth Kave & Ms. Violet Ningakun, for the State
Mr Emmanuel Ellison, for the Defence

RULING

24th June, 2022

1.	WAWUN-KUVI, AJ:  An indictment was presented charging Bhosip Kaiwi (the accused) for one count of Murder under section 300(1)(a) of the Criminal Code.

2.	Prior to the accused pleading to the indictment, Mr. Ellison for the accused moved an application to quash the indictment.  The application was moved orally without any supporting documentation. He sought to rely on the depositions that were not before the Court as well as affidavits from other applications in other Courts including the Supreme Court.

3.	In fairness, Mr. Ellison was directed to file a written motion with a supporting affidavit. The State also was given an opportunity to prepare and respond.

4.	In the written notice of motion, the accused sought the following orders:
1.	Pursuant to section 37(1) and (3) of the Constitution and sections 558, 534 and 552 of the Criminal Code, that the indictment for murder dated 14 June 2022 by Ms. Kave on behalf of the Public Prosecution be quashed: 

i.	For being formally defective in that the Accused was not formally charged with the charge of Murder under section 300 CCA at the Committal Court;
ii.	For being formally defective in that an ex-officio indictment under section 526 CCA should have been presented in that the Accused denies the validity of the committal process, hence a purported committal;
iii.	For being presented more than 4 months (in fact 14 months 22 days) after the date of committal (23 March 2021); and
iv.	Pursuant to section 525 and 526 CCA for being defective for being signed by a person other than the Public Prosecutor or State Prosecutor;
v.	Pursuant to a finding in favour of the Accused in grounds 1(a) to (e) above, in each of those situations, the indictment is ultra vires to the powers of the Public Prosecutor and ultimately a finding that the proceedings is an abuse of process.

2.	Alternatively, pursuant to section 37(1) and section 155(2) Constitution, an order in the nature of a Declaration that the committal proceedings styled COM 752 of 2020-The State v Bhosip Kaiwi for the charge of wilful murder under section 299 Criminal Code Act (CCA) and murder under section 300 CCA is in breach of Part VI (section 93 to 103) of the District Court Act 1963 and consequentially, the committal to the National Court is void ab initio.
3.	An order in the nature of a Declaration that the Applicants detention since 1 December 2020 up until now was in breach of section 61A (3) District Courts Act, the Arrest Act Chapter 339 and Section 42(3) and (4) of the Constitution.
4.	An order in the nature of a Declaration that the applicant was maliciously prosecuted on the charges of wilful murder and murder in the Committal Court in proceedings styled COM 752 of 2020 (CB 2616 of 2020-The Police v Boship Kaiwi from 30 June 2020 to 1 December 2020.
5.	An order in the nature of prohibition that the proceedings for murder under S300 CCA against the Accused be permanently stayed.
6.	An order that the State pay the Applicant/Defendant’s costs of this application and that the Committal proceedings pursuant to section 260 of the District Court Act 1963 and the cost of this proceedings pursuant to section 618A of the Criminal Code Act. 
7.	Such further Orders or Declarations the Court deems necessary or appropriate in the circumstances.

5.	The Motion is supported by the affidavit of the accused filed on 15 June 2022. It is noted that the annexures were not numbered and were not annexed to the affidavit. Additionally, the annexure referred to as “BK3” namely the National Court transcripts of the proceedings before Manuhu, J have handwritten writings and marks throughout various pages. 

6.	The Applicant did not provide the written file notes of the Magistrates or an affidavit from his lawyer at committal outlining the events that transpired. He has provided the section 95 of the District Court Act ruling or decision of the Committal Court.

7.	The application is opposed by the State. 

8.	I will deal with the individual grounds raised in the Notice of Motion.

BACKGROUND

9.	The accused was initially charged with wilful murder under section 299(1) of the Criminal Code. Following an application by the police prosecutor to withdraw and amend or substitute the information, the charge was substituted to murder under section 300(1)(a) of the Criminal Code. 

10.	The decision under section 95 of DCA was on the charge of murder under section 300 (1)(a) of the Criminal Code.

11.	The final decision to commit pursuant to section 100 DCA was on the charge of murder.

GROUNDS

12.	I will proceed to deal with the grounds that do not directly deal with the committal defect first.

Ground 1(ii): An Ex-Officio Indictment should have been presented

13.	  Ground 1(ii) is of no relevance. The present proceedings are by way of section 525 of the Criminal Code. That is, there was a decision to commit the accused to stand trial.

14.	It is refused.

Ground 1(iv): Indictment was not presented by a State Prosecutor or Public Prosecutor

15.	This ground was abandoned after Mr. Ellison was served the affidavit by Ms. Kave attaching her gazettal notice.

Ground 6: Costs

16.	This ground was abandoned by Mr. Ellison during his submissions.

Ground 1 (iii): Delay

17.	The applicant argues that the indictment is formally defective because it was presented 14 months and 22 days after the committal.
 
18.	Ms. Kave for the State submits that delay does not fall with the provisions of section 558(1) of the Code and if there was any delay, was it was, caused by the applicant seeking adjournments to deal with challenges in other Courts over the legality of his detention.

Is a motion to quash the appropriate procedural mechanism to address delay?

19.	The applicant has not explained how the presentation of the indictment after 14 months renders the indictment defective under section 558(1)(b) of the Criminal Code. Counsel for the applicant has not cited any relevant cases to assist the Court.

20.	There are relevant processes in a criminal proceeding when a person wishes to be brought to his trial. Section 552 of the Criminal Code entitles a person to make an application to be brought to his trial. And if no indictment is presented and there have been no genuine attempts to prosecute his case, he is entitled to a discharge under section 552(4) of the Code.
 
21.	A motion to quash an indictment due to delay is not the appropriate procedural vehicle.
 
22.	In any event the applicant, has applied in the alternative that the proceedings be permanently stayed.

23.	Section 37(3) of the Constitution states:

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

24.	Section 37(14) of the Constitution states:

“In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.”

25.	Whilst s 37(14) provides a standard or a guideline, ultimately what is reasonable will depend on the circumstances of a particular case: See State v Paraka [2020].

26.	The affidavit by the applicant does not depose that there was a delay in his case.

27.	There is nothing in the applicant’s affidavit or submissions by his lawyer that have demonstrated that there has been an inordinate delay in prosecuting his case. 

28.	Counsel for the State has adequately addressed that there has not been a deliberate delay in prosecuting the matter. That court sittings have been affected by the Covid 19 Pandemic and in addition the accused contributed to the delay in his matter by seeking adjournments to challenge the validity of his detention. 

29.	The Court cannot ignore the pandemic and its continued effects globally. It has affected the Court sittings with lockdowns, reduced sittings, and restrictions of persons into the Court premises.
 
30.	The affidavit by the applicant demonstrates that the applicant has availed himself at every opportunity since he was committed to challenge the legality of his detention. Which, Mr. Ellison now argues should have been made before the trial court.

31.	During the directions hearing of this matter, Mr. Ellison asked this Court to stay the criminal proceedings pending the determination of the Supreme Court review of the decision of Manuhu, J. I had enquired whether he had obtained a stay of the criminal proceedings in the Supreme Court, in which he replied that there was no stay. The State had filed its Pre-trial Review Statement and was ready to prosecute the accused. Mr. Ellison however did not file and continued to have various reasons for not doing so until 9 May 2022. A trial date was allocated after he had filed the Pre-trial Review Statement. On the appointed trial date, the State presented its indictment and was ready to call its witnesses when this application to quash the indictment was moved.

32.	The applicant has not demonstrated any inordinate delay. 

33.	This ground is refused.

Ground 1(i), 1(v), 2,3,4, and 5: Procedural Defect in the Committal Court

34.	This court is empowered to address issues of procedural defects in the committal stage. I am in no way exercising any powers of review or appeal of the decision of the learned magistrate. 

35.	It is settled law that the National Court sitting in its criminal jurisdiction, can deal with any issues of irregularity, defect, or abuse of process in accordance with the Criminal Code and the Criminal Practice Rules: see Sent v Principal District Court Magistrate Cosmas Bidar [2017] and Wartoto v The State (2015).

36.	 The applicant contends the learned magistrate should have discharged him at the committal when the police withdrew the information for Wilful Murder under section 299(1) of the Code. That the failure to do so invalidated the proceedings. The argument is that the indictment is formally defective because it is based upon a defective committal.

37.	The motion to quash was moved pursuant to section 558 of the Criminal Code.

38.	Section 528 of the Criminal Code states:

“558. MOTION TO QUASH INDICTMENT. 

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that–
(a) it is calculated to prejudice or embarrass him in his defence to the charge; or
(b) it is formally defective.
(2) On a motion under Subsection (1), the court may–
(a) quash the indictment; or
(b) order it to be amended in such manner as the court thinks just; or
(c) refuse the motion.”

39.	Motions to quash the indictment has been the process applied to deal with alleged irregularities in the committal proceedings both in this jurisdiction and other common law jurisdictions: see R v Nakian Mandiam [1973] PNGLR 135 and Kalinoe, Re [2018] PGSC 94; SC1751 (19 December 2018).

40.	The basis for which is that if there is no lawful committal then no lawful indictment could be based upon it: R v Nakian Mandiam [1973] PNGLR 135

41.	However, not every defect or irregularity invalidates the committal.  It must be demonstrated that the defect was grave or serious.  

42.	In Tiwari v Trinidad and Tobago (Trinidad and Tobago)[2002] UKPC 29  (29 May 2002), the Privy Council endorsed the decision in Matthews v The State (unreported), Court of Appeal of Trinidad and Tobago (Cr A No 99 of 1999). The legislation under appeal is similar and certain provisions regarding the committal procedure mirror that of the District Court Act 1963. The statements by de la Bastide CJ cited in Tiwari are relevant to this application:

“……, courts no longer accept that it is possible merely by looking at the language used by the legislature, to distinguish between mandatory or imperative provisions, the penalty for breach of which is nullification, and provisions that are merely directory for breach of which the legislation is deemed to have intended a less drastic consequence.  The fact of the matter is that most directions given by the legislature in statutes are in a form that is mandatory.  It is now accepted that in order to determine what is the result of failure to comply with something prescribed by a statute, one has to look beyond the language and consider such matters as the consequences of the breach and the implications of nullification in the circumstances of the particular case.”
At p 14:
“It is consistent with this approach that courts should recognise as the House of Lords did in Neill and Ibrahim J in Latiff Ali, that some breaches of the procedural rules for the conduct of preliminary inquiries [committal proceedings] are less grave than others.  In our view, the degree of gravity may vary not only according to which rule is broken but also according to the particular circumstances in which the breach occurs, so that different breaches of the same rule may produce different results, at least in the case of those rules which are not an essential part of due process.  We consider that the requirement enshrined in section 18 is one of those, the consequences of a breach of which must be considered on a case by case basis.  It is necessary therefore to look at the facts of the instant case.”

43.	 As was said, the question of breach of procedure and its consequence is dependent upon the factual circumstance of the case and is a question of degree. 

What is the alleged breach?

44.	The starting point to determine the issue of whether, there was a defect and if so, whether it is serious, lies in determining what was the nature of the application at the committal court and what was the resultant order?

45.	There were several terms or words that were used interchangeable in the judgement of the Court delivered on 23 February 2021 and by the applicant.

46.	At paragraph 19 of the decision by the learned magistrate, she stated: 

“After the prosecution made an application to withdraw the charge of wilful murder and substitute for a lesser charge of murder…”

47.	 At paragraph 21:

“…..the defence is saying that they objected to the application by the prosecutions to withdraw and amend or substitute the charge, the court records (comprising handwritten notes and translation of that into the court file worksheet) shown that Mr. Wenge had no objections to withdrawal of the charge of wilful murder and substitution with the charge of murder.”

48.	The accused in his affidavit refers his lawyers arguing section 32 of the DCA in relation to police powers of amendment and that the amendment resulted in the charges being replaced.

49.	The application as can be derived from the decision of the learned magistrate and supported at paragraph 49 and 41 of the accused affidavit, was an application to amend pursuant to section 32 DCA. 

50.	In looking at the substance of the learned magistrate’s decision, there was an application to amend information. The terms substitution and withdrawal referred to the taking backing of the information for wilful murder and replacing it with the information for murder.

51.	 In addressing the decision by the Magistrate, I took recourse in the Supreme Court case of Review Pursuant to Constitution S 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 adopted in State v Paraka [2020] PGNC 51; N8229 (6 March 2020),  and looked at the substance of the decision instead of the terminology used. In substance, the learned Magistrate decided to amend the information.

Whether the amendment amounted to commencement of proceedings for a new offence?  
                                                                                                                                                                     
52.	 This appears to be the principal complaint by the applicant. That the proceedings for murder were new proceedings and therefore he was entitled to be discharged. That any proceedings after the purported amendment were a nullity.

53.	 At the outset, from the materials before, the amendment, in this case, do not disclose that the amendment was due to a formal defect in the original charge.

54.	The cases submitted by counsel for the applicant do not specifically address the issue of whether amending a different offence amounts to commencement of new proceedings for a new offence.

55.	The prosecutor has assisted with the case of Samana v Waki [1984] PNGLR 8 (23 January 1984). Amet, J (as he then was) held that “Section 40 permits amendment of an information which may result in the charging of a cognate offence or an offence constituted by facts which would themselves be part and parcel of the offence originally charged, or where the amended charge could in the first place have been stated in the alternative: it does not permit an amendment which would result in a charge of some new offence of a different nature.”

56.	In Samana v Waki [1984], the accused was originally charged for using insulting words with intent to provoke the breach of peace under section 7(b) of the Summary Offences Act. The charge was later amended to using insulting language to provoke a breach of peace simpliciter. It was held to be a permissible amendment. 

57.	In Mitchell v. Myers (1955) 57 W.A.L.R. 49 at 52, cited in Samana v Waki, the Court held:
"It does not mean some new offence unrelated to that charged in the complaint can be assumed, can be laid, or can be the subject of amendment; it would be something more than a variance if an offence of a different nature and character could be substituted for that which is set out in the complaint or is the subject matter of the charge before the Justices; but it does extend to alleging what I might call a cognate offence which is established by the evidence, that is one similar in some way to that charged, or one which would be a constituent of the actual complaint which has been laid; and by a constituent I mean what the Code calls an element or something of the sort, an ingredient involved in the complaint laid, and in that respect almost necessarily a complaint of a lesser gravity than that charged ..."

58.	In Daly v Karamoshos [2020] VSC 506 (17 August 2020), in determining the amendment provisions as it relates to police charge sheets, the Court stated obiter dictum a view similar to Samana v Waki:

“the legal and factual basis for both the original and the amended charge are so similar or that they overlap in such a way that the fact that the amended charge alleges a separate offence will not of itself necessarily be sufficient to have “the effect of charging a new offence…””
Consider, for example, a case in which it is alleged that the accused, encouraged by another standing beside him, struck a third person.  The accused is charged initially with assault in company (contrary to s 24(2) of the Summary Offences Act 1966 (Vic) (“the SOA”)).  Then assume that the “in company” allegation is dropped (say, because of doubt that the bystander encouraged the assault) and is deleted from the charge-sheet, so that the charge now alleges an assault simpliciter (contrary to s 23 of the SOA).  In such a case, it may well be arguable that, because alleged assault simpliciter was wholly subsumed (both factually and legally) by the alleged assault in company, the amendment did not have “the effect of charging a new offence”, even though assault in company and assault simpliciter are different offences created by separate provisions of the SOA.” 

59.	See also R v Teong Sun Chuah [1991] Crim LR 463 where appropriate charges were substituted for inappropriate charges, in the case of indictments.
 
60.	  From the authorities cited, I conclude that it is permissible to amend by replacing one offence for another, which does not amount to charging a new offence, of which will require new proceedings. It however depends on the legal and factual basis of both charges. And that no prejudice is caused to the accused.

61.	In the present case, decision of the learned magistrate and the affidavit by the applicant demonstrates that the factual allegations remained the same. The graver charge of wilful murder was amended for the lesser offence of murder. Murder is an alternative to Wilful Murder and by operation of 531 of the Code, it need not be specifically pleaded in the case of indictments: See Reference  by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020). 

62.	Both wilful murder and murder contain the same actus rea, i.e., that is that the prosecution must show that the accused had killed a person. Section 291of the Code defines killing as “……any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the person”.

63.	 The amendment did not have the effect of charging a new offence. Factually and legally the charges related to the same subject matter, the alleged killing by the accused of his wife and the evidence contained in the Hand Up Brief (HUB) for the original charge was the same for the amended charge. There is no injustice because the substance of the allegations remained unchanged.

64.	There may be some argument that the HUB was different. That was resolved in the learned magistrate’s judgement which is not disputed by the applicant. The investigating officer had served and included in the HUB his additional statement explaining of the process he undertook to obtain some of the witness statements. This was done before submissions on sufficiency.

65.	The amendment did not have the effect of commencing new proceedings.

At what stage was the amendment made?

66.	The stage at which the amendment was sought and granted may result in unfairness to the accused.

67.	Section Part VI of the District Court Act sets out the procedure for committal hearings. 

68.	Section 94 requires the police to serve the information, statement and any documents or exhibits on the defendant or his legal representative. 

69.	Following service of the prosecution evidence, the magistrate does not automatically accept the evidence. Section 94C(2) of DCA, requires the magistrate to decide whether to admit the witness statements. The consideration of the evidence must still be based on admissible statements. The magistrate must be satisfied that the makers of the statements read or understood their statements or if unable to read, had had it read to makers in a language that the he or she understands.

70.	Section 95 provides that when all the evidence by the prosecution is heard or received then the Magistrate will decide on sufficiency.

71.	The learned magistrate’s decision and the accused affidavit, demonstrate that this process was substantially complied with. 

72.	The materials also demonstrate that the amendment was done prior to the hearing of submissions on sufficiency. It was also done prior to consideration of the HUB by the Magistrate pursuant to section 95(1) DCA.

73.	The affidavit of the applicant demonstrates that his lawyer was afforded every opportunity to prepare and respond. Adjournments were granted for both parties to prepare submissions following the amendment.

74.	There was no unfairness and prejudice because the amendment was done prior to submissions and before the Court retired to consider the prosecution evidence under section 95(1) DCA.

Was the accused aware of the proceedings against him for murder?

75.	Additionally, whilst the accused argues that he was not informed of the murder charge, in the same breath he does not dispute that the Section 96 process was complied with.

76.	Section 96 of the District Court Act states:

“96. ACCUSED TO BE ASKED WHETHER HE DESIRES TO GIVE EVIDENCE.

“(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect–…….”

77.	The accused admits that he was administered that aspect of the provision. Mr Ellison has tendered as part of his affidavit the section 96 statement. He was aware that the evidence and the charge against him which the magistrate would make a final determination under s 100 DCA was murder. 

78.	    In any event, the accused was always represented by a lawyer. He cannot argue that he was not aware of the charge against him or that he was not informed. 

Conclusion

79.	The materials before the Court do not demonstrate any serious defect or irregularities in the committal proceedings. Additionally, there was no injustice caused to the applicant.
 
80.	The grounds as it relates the defect are refused and the motion is refused.

Orders:

81.	The Orders of the Court are:

1.	Pursuant to section 558(2)(c) the motion to quash the indictment is refused.
________________________________________________________________
Luther’s Lawyers: Lawyer for the Defence/Applicant
The Public Prosecutor: Lawyer for the State/Respondent