N10308

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 792 OF 2022

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:
JENNY OMOA
Accused

Waigani: Tamade AJ
2023: 19th, 24th & 26th May

CRIMINAL TRIAL – PRACTICE AND PROCEEDURE – State presented indictment and called one witness – Arresting Officer – witnesses not available to give evidence – closing submission – no evidence to make submissions on – bail granted pursuant to Section 7 – Bail Act – powers and functions of Public Prosecutor – Nolle Prosequi – Declaration – abuse of process – duty of counsels to the Court – accused discharged

Cases Cited:
State v Kokon [2007] PGNC 149
Regina v Tambule [1974] PNGLR 250 
State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep [1983] PNGLR 19
State v Lasebose Kuriday [1981] PGNC 28
Regina v Byrne [1971-72] PNGLR 1
Leahy v Kaluwin [2014] PGNC 163; N5813 

Legislation:
Criminal Code Act
Public Prosecutor (Office and Functions) Act 1977
Professional Conduct Rules 1989 

Counsel:
Mr Dale Digori and Ms Elizabeth Kave, for State
Ms Kim Watakapura and Mr Friedrich. N. Kirriwom, for the Accused

26th May, 2023

1.	 TAMADE AJ: The State on Friday 19th May 2023 presented an indictment against the Accused. The indictment reads as follows:

JENNY OMOA of Oroi Village, Kairuku, Central Province stands charged that she on 3 August 2021 at Five Mile,  National Capital District in Papua New Guinea, transferred by the abuse of a relationship of trust and authority one KARI ALBERT TULE, with the intention that she be subject to exploitation , contrary to section 208C(1)(h) of the Criminal Code.

2.	 On arraignment, the Accused pleaded NOT GUILTY.  

3.	The State then called its’ first witness Constable Richard Koipa. Constable Richard Koipa told the Court that he has about 12 years with the Police Force and that he was the Arresting Officer. Constable Koipa essentially told the Court that the witnesses in this matter can not be located and other State witnesses were not available as they were out of the province. That was the only evidence Constable Richard Koipa gave. There were no exhibits tendered through the witness and not even a Statement as to the charge against the Accused.

4.	 Ms Watakapura of the Defence did little in the cross examination as there was no evidence to challenge.

5.	Mr Digori then closed the State’s case. It was at this juncture that the Court enquired whether the State had intended to just call a witness who would simply tell the Court that the State’s witnesses were not available. After a dialogue with the Court and the State Prosecutor, Ms Kave who had presented the indictment and Mr Digori the prosecuting counsel, the State insisted that the approach they took to present an indictment and conduct a trial on which the only State witness told the Court of the unavailability of the State’s witnesses was to the State a correct approach as it was the Public Prosecutor’s prerogative to pursue a charge against an Accused or not and the State had decided to proceed  with the trial yet tell the Court their witnesses were unavailable. I had enquired with counsel whether the presentation of a Nolle Prosequi was the appropriate procedure as the State did not have available its’ witnesses. Ms Kave vehemently submitted that the process the State took was correct. 

6.	The State then closed its’ case and the Defence through Ms Watakapura made submissions on behalf of the Accused that the Accused has chosen to remain silent and will not call any witnesses.

7.	It was at this juncture that the Court addressed the State that as they had insisted on running the trial, they were at the stage of closing submissions, albeit without the State even adducing any evidence at all. It was clear that the State had anticipated the Defence to make a No Case Submission on the lack and unavailability of witnesses however as the Defence had briskly chosen that the Accused would exercise his right to remain silent, the State was caught rather off guard. It was at a stage of making closing submissions but in essence, it had nothing to make submissions on, there was no evidence. The State had created an expectation in the mind of the court that they were ready with their case, that the Accused was going to be tried yet they chose to commence a trial after the presentation of the indictment and present nothing at all. It was Ms Kave’s submissions that the State had difficulty securing its witnesses and that was the reason they sought to bring in Constable Koipa to tell the Court that the State witnesses were unavailable.

8.	Presented with the dilemma that the State found itself in at closing submissions, the State sought an adjournment to address the Court on the approach they took in the presentation of the indictment, running a trial on a police officer telling the Court that the State witnesses were not available and perhaps a failed expectation that the Defence will make a No Case Submission in which the Court will rule on and ultimately acquit the Accused based on no evidence however the Accused had chosen to remain silent,  the prosecution was at a loss as to what appropriate submission to make in the closing.

9.	On 24 May 2023, I heard submissions from the State and also from the Defence, this time with the presence of Mr Kirriwom as senior counsel assisting Ms Watakapura on the procedure in which the State took in the matter. After hearing submissions, I considered the right of the Accused to a fair trial and granted to the Accused bail pursuant to section 7 of the Bail Act on a short adjournment with no strict conditions, that the Accused be released on bail and that she attends Court in Friday 26 May 2023 to receive the decision as to the charge laid against her.

10.	Let me address the powers of the Public Prosecutor as stated in the Constitution. The Office of the Public Prosecutor is established under section 176 of the Constitution. The function of the Public Prosecutor as stipulated under section 177(1)(a) of the Constitution is as follows:

a)	in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; 

11.	The function of the Public Prosecutor is elaborately set out in section 4 of the Public Prosecutor (Office and Functions) Act 1977. Particularly of relevance to this case is the Public Prosecutor’s function under section 4(1)(g) of the Public Prosecutor (Office and Functions) Act 1977 which gives the Public Prosecutor an absolute discretion to consent or refuse to consent to proceed with criminal prosecution of an offence where his consent is required by law.

12.	  The various powers of the Public Prosecuted can be gleaned as under the Criminal Code as in its power to prosecute. Under section 526 of the Criminal Code, the Public Prosecutor has the power to present an Ex-Officio indictment on an Accused person. Following on to section 527 of the Criminal Code, the Public Prosecutor or a State prosecutor may also present a Nolle Prosequi where an indictment is pending against an accused that the State will not be proceeding with the charge against the Accused and the Accused is therefore discharged. The Public Prosecutor is also entitled to present a Declaration under section 525(3) of the Criminal Code where the State declines to lay a charge against an Accused.

13.	The effect of the Public Prosecutor presenting a Nolle Prosequi under section 527 and a declaration under section 525(3) are distinct. Justice Kirriwom (as he then was) in the case of State v Kokon [2007] PGNC 149 clearly analysed the distinction between a Nolle Prosequi and a Declaration. A nolle prosequi therefore has the legal effect of the State being at liberty to resurrect the charge at a later time as at the time of presentation of the indictment, the prosecution did not have available sufficient evidence for example, to try the Accused, whilst a Declaration under section 525(3) brings the matter to a complete end that in the opinion of the Public Prosecutor, the Accused will not be indicted and therefore the charge will not be laid on the Accused. 

14.	It is important for this Court to restate the words by Late Justice Kirriwom in the State v Kokon where the Public Prosecutor decides to either present a Nolle Prosequi or a Declaration in regard to the Court’s power to weigh the reasons behind the Public Prosecutor taking the differing procedures as to a charge against an Accused. His Honour said this:

a)	“One of the reasons for this mandatory requirement to give reasons is that at least the Court is aware and is satisfied of the justification for the discontinuance of the case. After all, now that case-flow management of cases coming before the Court fall squarely within the Court’s own domain, the Court must be satisfied that the procedure taken is proper or appropriate so that justice is done to the accused. As an independent umpire, the Court can sometimes correct mistakes made in choosing one of the two options where an inexperienced counsel, not quite familiar with the two processes, blindly concedes to one procedure without weighing the benefits to his affected client.”

15.	 In the State v Kokon, the Prosecution opted to file a Declaration against the Accused on the basis that the Accused was already tried for the same offence which would amount to double jeopardy. His Honour  on enquiring into the matter with both the Prosecution and Defence found that both counsels before him were unprepared and on thoroughly going through the file, the Court found that the status of the matter presented to the Court was incorrect and that to accept the Declaration presented by the Prosecution contrary to the status of the matter would be to err resulting in a miscarriage of justice and therefore the Court refused the Declaration and ordered for the trial to proceed.

16.	 I now ask this question, at what stage of the trial process can the Prosecution abort the charge against the Accused? In Regina v Tambule [1974] PNGLR 250 (19 April 1974), the Crown had sought to present a Nolle Prosequi at the close of calling all its’ evidence with the aim of re-charging the Accused when sufficient evidence was available. The Supreme Court held that the presentation of the nolle prosequi at that stage of the trial was to deny the Accused the right to a fair trial. The majority in the Supreme Court found that the trial judge should have refused the nolle prosequi and find the Accused not guilty.

17.	 Now where the case is at the juncture where the State has presented the indictment, the Accused is arraigned and pleads not  guilty and the State tries the Accused on the calling of evidence to sustain the charge, the Defence has an opportunity to make the No Case submissions essentially asking the Court to make a cursory inquisition into the evidence that on the face of it, the trial should be stopped because the evidence is insufficient to sustain the elements of the offence and or as the evidence  stands, no Court  could safely arrive at the conviction of the Accused and therefore the Accused should be discharged. The principle of No Case is as found in State v Paul Kundi Rape [1976] PNGLR 96 (17 March 1976) and also discussed in The State v Roka Pep [1983] PNGLR 19.

18.	 There is therefore some weighing of evidence in the No Case to Answer application to the Court. The Prosecution has done the work to bring their evidence. It is logic to assess on the surface the evidence the State brings. I would think a No Case cannot be launched when the State has not presented anything at all in evidence. There is no consideration of the evidence because there is no evidence being presented. The Defence has correctly in my view not made a No Case but has chosen essentially to remain silent.

19.	In State v Lasebose Kuriday [1981] PGNC 28, the Court is entitled to on its’ own initiative stop a case when it amounts to a waste of the court’s time and public money, as said in a no case application before the Court.

20.	  Has the State proceeded on the right premise to present an indictment against the Accused only to inform the Court through their witness that all the other witness are not available to the Court for the trial of the matter? The State had created an expectation in the mind of the Court that they have their evidence and that they were ready to prosecute the Accused.  Was this a fair trial? Did the State intend to give to the Accused an acquittal on a golden plate so to speak without trying her? The effect of this would be that an acquittal on a verdict of not guilty would remove the Accused from being pursued further on the same charge which would amount to double jeopardy. Would a nolle prosequi been appropriate as all the State’s witnesses were not available on that day? Ms Kave of the State had submitted that the State had made all efforts to find all their witnesses to no avail and therefore it is the State’s position that future attempts would have been futile, a reason I find is entirely an excuse to avoid the State’s mandated prosecutorial function according to law. Should not the State proceed by way of a Declaration under section 525(3) of the Criminal Code instead?

21.	 The question in this matter is one of procedure and has the State abused the due process of the Court in the manner in which they have commenced a trial with the knowledge that they had no evidence available on that day.

22.	An accused person has a right to a fair trial pursuant to section 37(3) of the Constitution. This includes that the Accused must be afforded a fair hearing, the hearing should be within a reasonable time and it must be before an impartial Court. Leahy v Kaluwin [2014] PGNC 163; N5813 (7 November 2014).

23.	In Regina v Byrne [1971-72] PNGLR 1, an accused person is brought to trial within the meaning of section 552(2) of the Criminal Code:

“…when he is placed in a position where he is able to be tried, that is by the presentation of an indictment against him and with the Crown either ready to proceed by having its witnesses to prosecute its case against him or by the Crown Prosecutor informing the Court that the Crown will not further proceed upon the indictment in which event the accused is discharged.”

24.	An Accused person has a right to be tried. Section 552(2) and subsection (4)(b)(ii) of the Criminal Code states this as underlined:

(2) A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.
4) If–
(a) a person has made an application under Subsection (2); and
(b) at the end of the sittings of the National Court at his place of trial next following the application–
(i) no indictment has been presented against him; or
(ii) the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,
he is entitled to be discharged.

25.	 Section 552(4)(b)(ii) therefore caters for a situation where the Court is on circuit and the State had made no genuine attempt to complete it’s case, the Court can exercise that power to discharge the Accused on the Accused’s right to a fair trial. This is a case where the Court is not on circuit but the State has clearly brought the Accused to trial within the meaning of section 552(2) of the Criminal Code.

26.	I am of the view that the State Prosecutor and the prosecuting counsel have misled the Court in the manner in which they have proceeded in this matter to present an indictment against the Accused and in the calling of their witness, failed to put any evidence at all before the Court only to inform the Court that their witnesses are not available. The prosecution has clearly abused the process of the Court opting to take an unfounded route perhaps in the excuse of getting the Accused acquitted with no further duty to prosecute without proceeding with due consideration as to their powers to present a nolle prosequi under section 527 and or a declaration under section 525(3) of the Criminal Code.

27.	 Lawyers as officers of the Court have a higher duty to the Court, in upholding the due process of the law and the processes of the Court to ensure the Court is assisted to safeguard its own process from abuse, from error and also from a miscarriage of justice. Prosecuting lawyers have a duty under section 17 of the Professional Conduct Rules 1989 to point out to the Court any errors or omissions in fact or in law and any procedural irregularities which would affect the outcome of the trial. A defence counsel’s duty is as set out under section 16 of the Professional Conduct Rules 1989.

28.	Lawyers either from the Prosecution or the Defence have their profession regulated by the Professional Conduct Rules. Perhaps State counsels involved should in future carefully thread with due diligence take their roles seriously to ensure they perform their duties with a high standard. The Criminal process should not be taken as only a routine, it is one of duty, threading carefully in the discharge of their roles as officers of the law and of the Court.

29.	 Under section 15 of the Professional Conduct Rules 1989, a lawyers duty includes that he must not mislead the Court, that he must act with due courtesy to the Court, and he must use his best endeavors to avoid unnecessary expenses and wasting the Court’s time. 

30.	 Considering the Accused’s right to a fair trial under section 37(3) of the Constitution, I am therefore of the view that the State has brought the Accused to trial pursuant to section 552(2) of the Criminal Code however in the circumstances of this case, the State has not made a genuine attempt to complete the case pursuant to section 552(4)(b)(ii). It is on this basis that the Court will discharge the Accused.

31.	 The Accused is discharged forthwith. 
________________________________________________________________
Office of the Public Prosecutor 	: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused