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Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015)

SC1411


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA 124 OF 2013


EREMAS WARTOTO
Appellant


AND:


THE STATE
Respondent


WAIGANI: Injia CJ; Sakora, Kirriwom, Kandakasi, Davani, JJ.
2014: 28th August
2015: 27th January


PRACTICE & PROCEDURE – Appeal against decision refusing to grant permanent stay of criminal proceeding – Utilization of civil proceeding to stay criminal proceedings – Appropriateness of – No specific legislative foundation for – Specific provisions made in criminal proceedings not utilized - Invoking s155(4) of Constitution –Appropriateness of –– Against good order and due administration of justice for civil courts to intervene in criminal cases – In the public interest to allow the due process and procedure in criminal proceedings to take their normal course.


Facts


The District Court committed the appellant to stand trial in the National Court on two counts of misappropriation (Criminal Code s 383A(1)(a)). The State alleged that out of a contract for building works valued at K7.8 million only K700, 000 was expended on the intended works and the balance of K7.1 million was expended on the Appellant's own and his companies' personal use. After the Public Prosecutor furnished a copy of the indictment in the criminal proceedings in the National Court the defendant commenced a separate civil action in the National Court for a permanent stay of the criminal proceedings, on the basis that the material on which he had been committed for trial did not disclose a case of misappropriation, because the State had paid the funds to a private company for the provision of services and the State no longer had an interest in the funds. The civil proceedings were dismissed and it is from that order that the appellant appeals.


Held


(per Chief Justice Injia)


1. A larger range of procedural safeguards are built into the criminal process to give full protection of the law to the accused; the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern, at [11];


2. That the National Court is a court of unlimited jurisdiction, coupled with the discretionary powers provided by s 155(4) of the Constitution should not be read and applied to override the criminal trial process in the National Court as stipulated by the Criminal Code, at [12];


3. The argument that the alleged facts did not support the charge can be revived before the trial judge. This Court should not deal with those issues, at [14];


(per Sakora J & Kandakasi J)


4. Any issue around irregularity, defect or otherwise alleging an abuse of process, must be raised promptly at the appropriate level of criminal law proceedings, at [51];


5. It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it, at [52] and [64];


6. Unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages, anything else would be an abuse of processes of the Courts or any prescribed procedure, at [60];


7. It would be a clear abuse of the process of any court for an accused to resort to any other means, even s 155(4) of the Constitution, to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. At [72];
8. The State has all its interests or property rights in public funds paid to a private contractor for certain public works, until the purpose for which the payments are made is achieved or accomplished, at [70];


(per Kirriwom J)


9. Agrees with the other judgements, at [74];


10. There are more than adequate checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country including the National Constitution which are open to the accused at any stage of the proceedings within the criminal track to involve the court's inherent powers and there is no vacuum that can be filled by invoking the court's prerogative powers through a civil procedure outside the defined criminal practice and procedure guidelines, at [112(v)];


(per Davani J)


11. Agrees with the reasoning in the other judgements, at [117];


12. Criminal proceedings should only be stayed in very rare circumstances, to be determined according to the peculiar circumstances of each case, at [168];


13. The civil doctrine of dismissal of proceedings for being frivolous and vexatious has no place in the criminal law, at [169];


14. Unanimously, appeal dismissed with costs.


Cases Cited:


Papua New Guinea Cases


Pato v Manjin [19] PNGLR 6
Pius Nui v Tanda (2004) N2765,
Royale Thompson v Kalaut (2011) N4265
Tasman Airlines of PNG v Ogil (2004) N2711
Ketan v Lawyers Statutory Committee (2001) N2290
Gene v Thompson (2007) N3254,
Toll v Kara (No. 2) (1990) PNGLR 201
Patterson v Lawyers Statutory Committee (2005) SC822
POSF v Paraka (2204) N2791
Somare v Manek (2011) SC1118
Somare v Geno (2008) N3406
Diro v Ombudsman Commission (1991) N1385
Nilkare v Ombudsman Commission [1996] PNGLR 553
Chan v Ombudsman Commission (1998) SC557
Balakau v Ombudsman Commission [1990] PNGLR 346
Ombudsman Commission v Donohoe [1985] PNGLR 348
Ombudsman Commission v Ellis [1992] PNGLR 437
Pruaitch v Manek (2010) SC1052
Yama v Ombudsman Commission (2004) SC 747
Zeming v Hinchliffe (2005) SC791
Hitolo v Leadership Tribunal (2004) N2745
Hitolo v Geno (2004) N2700
Application of Dusava (1998) SC581
Peipul v Sheehan (2002) SC706
Bonga v Sheehan [1997] PNGLR 452
Pora v Sakora [1997] PNGLR 1
Re Application of Kunangel [1991] PNGLR 1
Kamit v Cooke QC & ors (2003) N2369
Gelu v Somare (2008) N3526, Gelu v Sheehan (2013) N5498
Maladina v Poloh (2004) N2568
Kasieng v Baigry (2004) N2562
Thachenko v Magaru (2000) N1956
Golu v Marum (2013) N5104
Yali v The State (2005) N2999
Tohian v Geita (No.2) [1990] PNGL 479
Tohian v Mugagia [1982] PNGLR 353
State v Rush, Ex parte Rush [1984] PNGLR 124
Nagia v Bessaparis [1986] PNGLR 199
Burege v The State [1992] PNGLR 481
Kasieng v Baigry (2004) N2562
State v Toroken (1981) N2561
Application of Herman Leahy (2006) SC855.
Joseph Leahy v Pondros Kaluwin and the State (2014) N4813
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6
Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290
Pius Nui v. Tanda (2004) N2765
Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Ors (2003) N2369
Bernard Hagoria v. Ombudsman Commission (2003) N2400
Dan Kakaraya v. Ombudsman Commission (2003) N2478
Tasman Australia Airlines Pty Ltd v. Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea (2004) N2711
Grand Chief Sir Michael Somare v. Ila Geno (2008) N3406
Zachary Gelu v. Sir Michael Somare MP (2008) N3526
Tkatchenko v. Dessy Magaru (2000) N1956
Jimmy Mostata Maladina v. Posain Poloh (2004) N2568
Sakawar Kasieng v. Andrew Baigry (2004) N2562
The State v. Tanedo [1975] PNGLR 395
Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385
Royale Thompson v Sylvester Kalaut (2011) N4265
Frabelle (PNG) Ltd v. PANGTEL (2010) N4566
Wilson Kamit v. Aus-PNG Research & Resources Impex Ltd (2007) N3112
Mark Opur v. Darbar Enterprises Ltd (2004) N2528
The State v. Esorom Burege (No 1) [1992] PNGLR 481
Gregory Kasen v. The State (2001) N2133
Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari (2007) N3295
Anderson Agiru v. Electoral Commission and The State (2002) SC687
Masolyau Piakali v. The State (2004) SC771
The State v. Murray William & 2 Ors. (No 1) (2004) N2556
The State v. Moki Lepi (2002) N2264
The State v. Roger Kivini (2004) N2576
Paru Aihi v. Peter Isoaimo (2013) SC1276
Andrew Kwimberi v. The State (1998) SC545.PNG Power Ltd v. Ian Augerea (2013) SC1245
Nakun Pipoi v.Viviso Seravo & Ors (2008) SC909
The State v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122
Ereman Ragi & Ors vs. Joseph Maingu (1994) SC459
Helifix Group of Companies Ltd v. PNG Land Board &Ors (2012) SC1150
SCR 8 of 2003; Application by Anderson Agiru (2003) SC704
Avia Aihi v The State (No 2) [1982] PNGLR 44
William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844
John Kasaipwalova v. The State [1977] PNGLR 257
Brian Kindi Lawi v. The State [1987] PNGLR 183
Joseph Rokpa v. The State [1994] PNGLR 535
Joshua Yaip Avini and Plaridel Nony Acosta v. The State (1997) SC523
James Singo v The State (2002) SC700
Tom Amaiu v. The State [1979] PNGLR 576
Brian Kindi v The State [1987] PNGLR
Thompson v Kalaut (2011) N4265
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118
Anderson Agiru v Electoral Commission v The State (2002) SC687
The Attorney General and Luke Lucas v Public Employees Association of PNG [1993] PNGLR 268
Sir Salamo Injia v Thomas Eluh & 2 Ors [2012] N4617
Herman Leahy v Pondros Kaluwin [2014] N5813
Royale Thompson v. Sylvester Kalaut (2011) N4265
State v. Wyborn [2004] PGNC 3 N2847


Overseas Cases


Roger v The Queen (1994) C.L.R 251
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R 23
Williams & ors v Spautz [1992] HCA 34; (1992) 174 C.L.R 509
Walton v Gardiner (1992-1993) 177 C.L.R. 378
Dey v Victorian Railways Commissioners [1948-1949] C.L.R.
Cox v Journoeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713
General Steel Industries Ltd v Commissioner for Railways & ors (1964) 112 CLR
Metropolitan Bank Ltd v Pooley [1881-85] All ER 954
Connelly v Director of Public Prosecutions [1964] 2 All ER
Director of Public Prosecutions v Humphrys [1976] All ER 497
Ex parte Cousens; Re Blacket and Anor [1946] NSWStRp 36; (1947) 47 SR (NSW) 145
Cox v Coleridge [1822] EngR 19; (1882) 1 B & C 37
Moran v. Lloyds (1981) 1 Lloyds Reports 423
Director of Public Prosecutors v Humphreys (1976) 2 All ER 497 at 528
Metropolitan Bank Ltd v Pooley [1881-85] All ER Rep at 954; 10 App Case at 220;
Connelly v Director of Public Prosecutions [1964] 2 All ER 401 at 409;
Rogers v The Queen [1994] HCA 42; [1994] 181 CLR 251 at 255;
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148 at 158;
Walton v Gardiner (1993) 177 CLR 378 at 410-411
Regina v. Osborne Ontario Court of Appeal C.J.O
Metropolitan Bank Limited and Arthur Cooper the Liquidator v. Alexander Gopsell Pooley (1885) 10 App Cas 210
Jago v. District Court of New South Wales & Ors [1989] HCA 46; [1989] 168 CLR 23


Counsel:


L. Juarth & M. Mel, for the Appellant
P Banister & J Apo, for the Respondent


27th January, 2015


  1. INJIA CJ: I have read the draft judgment of Kandakasi J which he kindly agreed to prepare for consideration by the rest of us. I agree with the orders proposed by his Honour to dispose of the appeal for reasons of my own.
  2. The case before us arose from a "civil action" brought by the appellant in the National Court seeking a permanent stay of "criminal proceedings" brought against him by the State that was pending before the same Court. The pertinent facts in brief are these. Following the completion of police investigations over alleged misuse of public funds made against the appellant, police laid an information in the District Court. The Court concluded its committal proceedings on the matter and committed the appellant to stand trial in the National Court on two counts of misappropriation pursuant to s 383A (1)(a) of the Criminal Code (Ch 262).
  3. The criminal matter came before the National Court sitting in its "Criminal Jurisdiction" before Deputy Chief Justice Gibbs Salika, for mention and for directions to prepare the case for trial. In the course of those directional hearings, the Public Prosecutor furnished to the appellant a copy of the draft indictment. The appellant commenced a separate civil action, in the National Court, for a permanent stay of the criminal proceedings. The appellant contended that the facts derived from the material contained in the committal court depositions did not support a case of misappropriation under s 383A (1) (a) of the Criminal Code (Ch 262), because the State had paid the funds to a private company for the provision of services and that the State no longer had an interest in those funds. The civil action also came before the Deputy Chief Justice who heard the application and dismissed it. The learned Deputy Chief Justice reasoned that the proceedings were an abuse of the Court process.
  4. The decision of the Deputy Chief Justice brought finality to the civil proceedings: see s 14 of the Supreme Court Act. Leave to appeal the decision is not necessary. For this reason, the appellant appealed the decision by way of a notice of appeal.
  5. The case before us concerns the National Court's criminal jurisdiction and its process set in motion when it has received a notice of committal from the District Court. Two main issues arise from the grounds of appeal that were argued before us. Those issues are context specific, limited to the pertinent facts of the case and confined to the nature of the "civil proceedings" to stay criminal proceedings. Those issues are:
  6. With regard to the first issue, there is no case law on the specific point raised by this issue. The Cases decided by this Court and the National Court referred to us by both counsel and other cases that have come to my attention do not assist in resolving this issue. Those cases involve judicial intervention and scrutiny over the performance of statutory powers and functions by statutory authorities with regard to the conduct of investigations and decisions made on complaints and allegations of breaches of the law. Such statutory authorities include the Police, the Ombudsman Commission, a Commission of Inquiry, a Leadership Tribunal, the Coroners Court and the District Court (Committal Court). Clearly, the facts of those cases can be distinguished from the facts of the case at hand.
  7. The overseas cases cited by counsel for the appellant are clearly distinguished from the facts of the case before us.
  8. The judicial pronouncements of principles and sentiments expressed and echoed in these cases are closely associated with the peculiar facts of each case. It is always all too difficult to discern from those pronouncements any clear statements of principle of general application to the entire criminal process with all its attendant procedural diversities, niceties and complexities. The case law should be allowed to develop on a case by case basis as permitted by the peculiar facts of each case.
  9. The pertinent facts which gives rise to the first issue is indeed peculiar one for which there appears to be no case precedent. This perhaps is a clear indication that such practice where a civil action is brought to stay a criminal proceeding before the same court constituted by the same judge or a different judge, is virtually non-existent in common law jurisdictions. The standing practice all along has been that the criminal process and the civil process in the National Court are set apart by the law and rules of Court, and that any recourse to judicial relief, interim or substantive, is to be found in their respective domains. It is clearly out of procedure for the National Court, constituted by the same judge or a different judge, to be invited to give itself the power through a civil proceeding to review and stay a criminal proceeding before it.
  10. In my view, there are adequate avenues provided in the Criminal Code, for an accused person to have recourse to, to contest the State case against him or her at each critical phase of the criminal trial process once that process is set in motion in the National Court. Those avenues include the following:
  11. These procedural safeguards are in-built into the criminal process to give full protection to the constitutional right of the accused to the benefit of presumption of innocence and a fair trial. To my mind those safeguards are elaborate and are most favorable to the accused. Some of these procedural safeguards and the Courts' perceived preoccupation with some of them have been criticized in some circles in PNG as heavily favoring an accused person to the detriment of the society's interest in ensuring that offenders are brought to justice and punished. Be that as it may, the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern. If they have not been treated according to law during the investigations and prosecuted without reasonable or probable cause, they will be vindicated by the National Court, in the course of the criminal trial proceedings.
  12. For the foregoing reasons, I do not consider the Constitutional notion that the National Court is a Court of unlimited jurisdiction coupled with the discretionary powers provided by s 155(4) of the Constitution, as argued by the appellant, should be read and applied to override the criminal trial process in the National Court that is expressly stipulated in the Criminal Code.
  13. This decision may have the effect of overruling the recent decision of the National Court in Herman Joseph Leahy v Pondros Kaluwin and the State (2014) N4813, in which the National Court, in a separate civil proceeding brought by Mr. Leahy seeking enforcement of his Constitutional right under s37(3) of the Constitution, permanently stayed the criminal proceedings brought by the Public Prosecutor in the National Court. The Supreme Court may, of its own motion, invoke s 155(2)(b) of the Constitution to review that decision based on excess of jurisdiction.
  14. With regard to the second issue, in the light of my conclusion on the first issue, it is unnecessary to consider this issue, except to say that the arguments advanced by the appellant that the alleged facts did not support a charge under s383 A (1)(a) can be revived before the trial judge at the appropriate stage of the trial process. It is not for this court to deal with those issues.
  15. For the foregoing reasons, I too would dismiss the appeal with costs to the respondent.
  16. SAKORA & KANDAKASI JJ. This is an appeal from a dismissal by the National Court of an application by Mr. Eremas Wartoto, the appellant who sought to permanently stay criminal proceedings against him using a civil proceeding. In so doing, he sought to invoke s 155(4) of the Constitution. He made his application after the committal court had committed him to stand trial in the National Court on two counts of misappropriation of a sum of K7,989,892.00, contrary to s 383A (1)(a) of the Criminal Code, but well before the formal criminal process had commenced in the National Court, except only for a draft indictment. The State is contesting the appeal.
  17. The case presents the following main issues for the Court to consider and determine:

(1) Can a civil proceeding be employed to permanently stay criminal proceedings?


(2) When is it correct to invoke the provisions of s 155(4) of the Constitution?


(3) Does the State lose all its interest or property rights in public funds paid to a private contractor for certain public works once it pays the funds over to the contractor?


The Parties Arguments


  1. Mr. Wartoto's main argument, as it was in the Court below, is that, the State had no property in the funds once they were paid to his company, Sarakolok West Transport Limited (SWT) for carrying out repair works to Kerevat National High School, in the East New Britain Province. He thus argues that, this is an essential element of the charges against him and which, the State cannot establish against him. Then based on this argument, he argues further that, the charge could not be sustained and that it is an abuse of process to have him charged and proceeded with in the way the State was pursuing the charges against him. The State's argument as it was in the Court below and before us, is both against the procedure Mr. Wartoto employed as well as the merits of his main argument. In respect of the procedural aspects, the State submits that, there is due and proper process and procedure in the National Court's criminal jurisdiction under the Criminal Code and Criminal Practice Rules, which Mr. Wartoto could have used but he has not. With regard to the merits of the application and hence the appeal, the State argues that it still has an interest in the funds until there is proper and full application against the purpose for which the funds were paid.

Factual Background


  1. The relevant factual background giving rise to the arguments and the issues or questions they present is quite simple and straight forward, which are these. On 31st August 2011, Mr. Wartoto was arrested and later on 2nd October 2011, he was committed to stand trial in the National Court on two counts of misappropriation. The circumstance giving rise to that turn of events according to the State's case against Mr. Wartoto was this. It appears there was a need for certain repair and maintenance work at the Kerevat National High School ("the Kerevat works"), in the East New Britain Province. A team which included, a Jeff Sanderson who was an employee and or an associate of Mr. Wartoto came up with some scoping for the Kerevat works. The scoping was used as the basis to appraise three closed tenders and the eventual awarding of a contract to Mr. Wartoto's company SWT Ltd. The contract was processed and awarded through the office of the Department of Planning and Monitoring and not through the Central Supply and Tenders Board process under the Public Finance (Management Act) 1995. The State alleges that SWT had inside knowledge and was able to quote for the lowest of the three quotations in the sum of K7, 989,892.00, which the Department of Planning and Monitoring accepted.
  2. Of the contracted amount, SWT managed to get an advance of about 85% of it in the sum of K6, 791,408.20 on 20th January 2008. The balance of K1, 198,483.80 got paid on 14th October 2008. That was without a proper certificate of completion and the provision of a proper invoice as is normally the case. Hence, these payments were contrary to normal practice, which requires provision of goods and or services first and then payment made upon provision of invoice. It was also contrary to standard practice and requirement for successful bidders of contracts with the State to provide performance guarantees, which means, successful contractors should be able to procure goods and services on their own and seek reimbursement based upon part or the full completion of the work or services as might be. Additionally, the irregular advance payment was to enable SWT to purchase material required for the Kerevat works. However, except only for a small amount, no goods or material required for the Kerevat works were indeed purchased. Instead, most of the funds were applied to meet Mr. Wartoto personal and his companies' own expenses which included the payment of bank loans and purchase of other property unrelated to the Kerevat works.
  3. Furthermore, the advance was purportedly on the authority or instructions of the then Chairman of the Central Supply and Tenders Board, Mr. Brian Kimmins, through a letter dated 28th November 2008, facsimiled from Mr. Wartoto' rent a car business located in Cairns, Australia. The State alleges, that letter was a forgery as it did not come from Mr. Kimmins. Finally, only some of the Kerevat works were carried out, at a total cost of about K700, 000.00. This effectively means that about K7.1 million was spent and or applied to Mr. Wartoto' own and or his companies personal use and purpose and not for the purpose for which they were paid.
  4. With this factual background in mind, we turn to a consideration of each of the issues, starting with the first issue.

Can a civil proceeding be employed to permanently stay criminal proceedings?


  1. The recent decision of this Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek,[1] considered and determined this issue. The first thing the Court noted in that case was that the National and the Supreme Courts cannot easily and readily intervene early in the criminal justice process, before their formal and proper conclusion. In support of that proposition, the Court referred to its earlier decision in Rimbink Pato v. Anthony Manjin.[2] In that case, Rimbink Pato tried to get the National Court to injunct or prevent Police officers from arresting and charging him over an alleged criminal conduct. Speaking against that, the Court said:

"Nevertheless, the most important consideration of all, in our view is whether a civil Court should restrain a criminal investigation by police exercising their constitutional functions to investigate, charge and prosecute a person suspected of having committed a crime or criminal offence. That to us is the most fundamental issue here......


We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution.

If he claims such rights are violated, he has recourse pursuant to s 57 Constitution. We can't see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.


Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act....


With respect, the applicant's case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the Police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. ...


It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional function of the police."


  1. The Court in SC1118 then went on to note that, an increasing list of National Court decisions supported and applied the principles enunciated in Rimbink Pato's case. That list of cases consisted of the decisions in Simon Ketan v. Lawyers Statutory Committee & Anor;[3] Pius Nui v. Tanda;[4] Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Ors;[5] Bernard Hagoria v. Ombudsman Commission;[6] Dan Kakaraya v. Ombudsman Commission;[7] Tasman Australia Airlines Pty Ltd v. Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea;[8] Grand Chief Sir Michael Somare v. Ila Geno;[9] Zachary Gelu v. Sir Michael Somare MP.[10] These cases represent a deliberate decision by the National Court against intervening in the investigatory works of the Lawyers Statutory Committee, into inquiries by commissions of inquiries and statutory authorities' inquiring into allegations of breaches of specific legislative requirements and into Ombudsman Commission investigations into allegations of breaches of the Leadership Code.
  2. In the Simon Ketan case, there were allegations of breaches of the lawyers Professional Conduct Rules which the Lawyers Statutory Committee was investigating and Mr. Ketan was trying to stop. The Court, per Kandakasi J, was of the view that, the principles enunciated in the Rimbink Pato case applied. His Honour then commented on the principle in the context of the case before him as follows:

"In my view, as the Supreme Court said in Rimbink Pato v. Anthony Manjin ... neither the Police Force nor any other public institution charged with a statutory duty to investigate into alleged professional or other misconducts, should be restrained from carrying out their constitutional or statutory obligations. The reason is simple. Persons concerned with such investigations have the right to defend themselves once a formal charge has been laid. If there is say an allegation of defamation of one's character, separate proceedings could be issued for defamation. But it is no reason to prevent ... lawful authorities from carrying out their lawful investigations. If the courts were to readily come into the sphere of investigations and make orders effectively preventing such authorities from carrying out their investigations, it would interfere in the process of proper investigations and bringing those responsible for any criminal or other misconduct, to the appropriate authorities to be dealt with according to law. In my view, nothing drastic happens at the investigations stage against persons covered by such investigations and none of their rights get suppressed even to the point of being charged and being brought before a court of law. The Constitution provides safeguards for persons charged with criminal offences so as to ensure that they are fairly and properly dealt with according to law. Similarly disciplinary process and procedures are in place to deal with people who are charged with administrative or disciplinary processes."


  1. In the Pius Nui case, His Honour, Cannings J., agreed with Kandakasi J and commented:

"Those principles should be conscientiously considered whenever any person who is under investigation by the Police or any other investigating authority applies to the Court to put a halt to an investigation. Each case must be considered on its merits. However, it is only in a very clear case that the Court should consider ordering a halt to an investigation that is being conducted by a proper authority and the laws of Papua New Guinea."


  1. Hartshorn J. in the Grand Chief Sir Michael Somare v. Ila Geno case, determined that the principles enunciated in the Rimbink Pato case as commented upon in the Simon Ketan and Pius Nui cases, applied in the case before him. He then commented as follows:

"It is not in the interests of justice or the public interest that lawful authorities should be prevented from carrying out their lawful investigations. Any such prevention should only occur in very clear cases of abuse. I am not satisfied on the evidence presently before the court that there is a clear case of abuse here. The balance of convenience to my mind is not in favour of granting the injunctive relief sought."


  1. At the same time, this Court noted in that, Canning J., and Hartshorn J.'s decisions appear to suggest, there can be exceptions to the no intervention position taken by the Supreme Court and followed by the various other National Court decisions. Hartshorn J., speaks of a clear case of abuse while Canning J., speaks of very clear case calling for an intervention. This Court then noted three other decisions of the National Court appearing to suggest other possible basis for the Courts to intervene.
  2. The first of the three cases is the decision of His Honour, the late Sevua J., in Tkatchenko v. Dessy Magaru.[11] There, the plaintiff satisfied the court that he was not accorded his right under the Criminal Code to be heard before his committal. Despite that, the Court refused to grant a pray for a dismissal of the charges and instead, remitted the matter back to the District Court for a fresh committal hearing before a different magistrate. The second case was the decision of Injia DCJ., (as he then was) in Jimmy Mostata Maladina v. Posain Poloh.[12] His Honour had a situation similar to the one in Justine Tkatchenko's case and arrived at a similar outcome. The third case was the decision of Kandakasi J., in Sakawar Kasieng v. Andrew Baigry.[13] In that case, the defendant chose to conduct a coronial inquest about three years after the death of a person. That was well outside the time period stipulated in the Coroners Act,[14] by reason of which the Attorney General's approval was required, but not sought and obtained. Additionally, the first defendant did not conduct a proper and complete coroner's inquest in accordance with the requirements of the Act. Further, the defendant did not formally have the plaintiff charged in accordance with the findings of the inquest or at all. In these circumstances, the Court decided to grant the plaintiff leave for judicial review
  3. After undertaking the above exercise, this Court went on to consider the legal position and practice in England, Australia and other jurisdictions which have a similar legal system to that of ours. The Court then noted the authorities in those jurisdictions spoke in terms similar to the one in Rimbink Pato's case without talking about any exceptions. That position was referred to and discussed in The State v. Tanedo[15] where this Court referred to the decision in Ex parte Cousens; Re Blacket and Anor,[16] in which, Sir Frederick Jordan speaking for the Court in the context of and in respect of the nature of committal proceedings and the attitude of superior courts regarding review of committal decisions said:

"This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly 400 years no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v Coleridge [1822] EngR 19; (1882) 1 B & C 37".


  1. This Court noted that the refusal by the superior courts to intervene in the administrative and investigative processes that lead to criminal or other charges is for very good reason. The Court then referred to Lord Denning's judgment in Moran v. Lloyds,[17] where his Lordship, acknowledged that never in the past would the superior courts intervene or interfere with such processes. But more relevantly, his Lordship ably spoke of some of the kinds of risks any intervention or interference by the superior courts might bring to bear. In his Lordship's own words, he said:

"Today we have to deal with a modern phenomenon. We often find that a man (who fears the worst) turns around and accuses those – who hold the preliminary inquiry – of misconduct or unfairness or bias or want of natural justice. He seeks to stop the impending charge against him. It is easy enough for him to make such an accusation. Once made it has to be answered. So he says there is a triable issue: and that it must go to trial. He knows that it will take months and months. So he gets that which he most wants – time – time to make his dispositions – time to put his money in a safe place – time to head off the day when he has to meet the charges. And who knows? If he can stop the preliminary inquiry in its tracks, it may never start up again."


  1. Sheehan J., in Diro v. Ombudsman Commission of Papua New Guinea,[18] cited this passage with approval, by virtue of which this principle was introduced and adopted into our jurisdiction. Canning J.'s decision in Zachary Gelu v. Sir Michael Somare (supra), restated in effect what Lord Denning said in these terms:

"If we do not insist on the rather strict test ... the court will create the environment in which any person who is fearful of exposure by a commission of inquiry or another investigatory agency will come to the court, knowing that they only have to establish an arguable case. The investigation will be stopped in its tracks. Time will be bought. Perhaps time to hide evidence. The courts may unwittingly be protecting those with something to hide rather than protecting the more legitimate interests of those with a right to know: the People of Papua New Guinea."


  1. This Court then commented:

"53. Added to this, is the often repeated (sic) accepted position that all these processes, be it Police investigating into a criminal matter or the Ombudsman carrying out its investigations under the OLDRL; or committal courts and the PP or the various appointing authorities in the case of the law officers and COHs, considering whether there is prima facie case of misconduct in office; or a commission of inquiry inquiring into certain facts, are only preliminary steps. They do not make final decisions on guilt or innocence and or penalties. Those are matters that are left to the ultimate decision making authorities like the courts in indictable criminal offences and a leadership tribunal for leadership breaches once appointed.


54. It is in the court or a final decision making authority like leadership tribunal, where the evidence gathered through the investigations gets tried and tested. It is there in these forums that an accused has all his constitutional and other rights, protection and appeal or review procedures that the justice system provides which an accused can avail him or herself of. These rights are not extinguished upon a decision to investigate, charge and commit an accused to stand trial or refer a leader to the PP and a request from him to appoint a leadership tribunal and such a tribunal being appointed. They remain intact until at the trial or hearing level and a final decision is arrived at.


55. This has to be weighed against the risks or dangers highlighted in Lord Denning's judgment and that of Canning J. These are two competing interests. An intervention by a superior court for whatever reason comes with the serious risk of what Lord Denning and Canning J. said actually materializing. If that occurs, the people through the State or the relevant authority charged with a duty to bring to account leaders and others who are guilty of misconduct in office or any other person of any criminal conduct, will lose the opportunity to have such people properly brought to justice according to law. As a result, the offender will escape any consequences for his or her misconduct in office or criminal behaviour. In that regard, the offender gains twice, first from his misconduct and secondly through avoiding the consequences of his misconduct or misbehaviour.


56. On the other hand, what this Court said in Pato's case would apply as one's remedy for anything that might be a cause for concern or harm or damage to those affected by such processes taking place against them at the preliminary stages. A refusal to intervene would enable the preliminary process to be completed without unnecessary stopping and starting with the superior Court's intervention. This will safeguard against the risks highlighted by Lord Denning and Canning J. Not only that, this would more importantly allow for the investigations to be completed and prosecutions expedited whist the trail of evidence or memories of witness are still fresh and evidence has not lost its cogency with the will and desire to prosecute still intact."


  1. Then after a careful consideration, the Court concluded:

"58. Carefully weighing the two sides and all of the cases cited above, we are of the firm view that, the interest of justice and the need to allow for the due process of the law to take its proper course for the greater good of society will be better served by the superior courts, that is the National Court and or the Supreme Court as the case might be, (sic) maintaining the age old tradition of not intervening. This should be without any exception because as this Court said in SC Ref No. 3 of 2005, all issues concerning both the process and the substance can be taken up as a preliminary point when the proper court or the tribunal assumes jurisdiction and is seized of the matter. If after that process, the court or the tribunal finds for the accused or the alleged offender that could in appropriate cases, form the foundation for appropriate remedial actions as highlighted by this Court in Pato's case.


59. An intervention by the superior courts allows for instance, stopping the process only to restart it again. By then, the freshness of the evidence, availability of witnesses and interest in seeing justice being done gets lost and ultimately justice is not served. Justice can only be done without much delay and all steps that need to be taken being taken in a timely and orderly fashion. Otherwise, the converse of that is true. Justice delayed is justice denied with those who seek to delay justice ending up gaining. If those who are accused or implicated have nothing to hide they would readily allow the process to take its proper course. ...Most of the harm and damage is caused by people who choose to take all sorts of unnecessary issues with the process, without merit most of the time, which results in unnecessary costs and delay. Usually such steps are taken to divert attention from the real issues."


  1. For the purpose of the case before us, both Mr. Wartoto and the State do not take issue with the correctness and the application of the decision in Sir Michael Thomas Somare v. Chronox Manek. The only argument between them is in respect of how the judgment should be applied. Mr. Wartoto through his counsel, Mr. Juarth, argues that there is an exception to the principle of no intervention laid down in the Rimbink Pato and Sir Michael Thomas Somare cases. Mr. Wartoto further argues that the exception is available in cases of abuse of process. Mr. Wartoto refers to the decision of Her Honour Davani J in Royale Thompson v Sylvester Kalaut[19] and a number of other overseas cases to support his arguments. The State counters that there cannot be any such exception when there are proper checks and balances in the criminal justice system's process and procedure. It also argues that there are adequate remedies available at each and every stage of the process of the criminal justice system which a person like Mr. Wartoto could employ, using the correct form or process at the correct and relevant levels in the process in criminal jurisdiction of the courts. The State further argues that, it is an abuse of the process if one, as does Mr. Wartoto here, seeks to use processes other than those prescribed by law for criminal matters.
  2. Before we turn into a detailed consideration of the arguments, we make two observations regarding Mr. Wartoto's reference to the decision in the Royale Thompson case and the overseas cases. Firstly, the decision of this Court in Sir Michael Thomas Somare v. Chronox Manek (SC118) came after the decision in the Royal Thompson case. Secondly, applying the hierarchy of the Courts principle, the binding decision or authority is the decision in Sir Michael Thomas Somare v. Chronox Manek. Thirdly, in relation to the overseas cases, they are only useful if we do not have any local case authorities to assist us. As will be demonstrating we have a number of local case authorities.
  3. Turning then, to the matters in contest between the parties, we note that it is necessary for us to set out what is involved or is meant by the phrase "abuse of process". Firstly what this phrase means in our view is that there is a process which is being abused by someone. That usually entails someone using a process or procedure provided for by law contrary to its intended purpose, objective or proper and intended use. Hence, when there is a claim of an abuse of process, it is necessary to first establish what the process is and when and how it can be properly invoked, before determining if indeed there has been an abuse of that process.
  4. Since the current proceeding concerns a criminal proceeding in respect of an indictable offence, it is necessary for us to state and understand the whole criminal process from start to finish. Undertaking that task will be greatly assisted by this Court reminding itself that there are about five stages in the process. These are: (1) police investigation process leading to a formal charge; (2) District Court committal stage leading to a decision to commit or not; (3) Public Prosecutor deciding whether or not to present an indictment against the accused; (4) the National Court trial process resulting in a decision on guilt and if need be the sentencing process; and (5) the process of Appeal or Review by the Supreme Court where appropriate.
  5. Each of the stages have their checks and balances to deliver on the guarantee of the full protection of the law under s 37 (1) of the Constitution "especially to persons in custody or charged with offences." These protections start with the pronouncement that "nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law"[20] except only for the offence of contempt of court. It then presumes that such persons are innocent until proven guilty according to law.[21] Then unless the charge is withdrawn, the rest of the protections and guarantees are from "a fair hearing within a reasonable time,[22] by an independent and impartial court" to the provision of facilities and opportunities given to them to properly understand, prepare and present their defences to charges against them, to providing for particular defences such as autrefois acquit,[23] to conviction and sentence, to the final guaranteeing of their right of appeal and or review against their conviction and or sentence.[24]
  6. The whole criminal process, with the five process phases, commences when a person commits an offence.[25] But the formal process of dealing with an offender starts from the time he or she is arrested, detained and charged with a criminal offence. Under ss 3 and 5 of the Arrest Act[26] a policeman or a member of the public is authorized to arrest a person whom they believe is about to or has committed an offence. Once a person has been arrested, the formal criminal process commences. The next thing that happens is the formal laying of a charge against an offender and him or her being brought to the District Court by way of an information[27]. Sections 28 – 36 of the District Court Act[28] provide in detail as to both the form and substance of what should be in an information charging a person with a criminal offence. This is inclusive of any amendments to the information,[29] and the time limits or periods within which an information can be brought.[30] Before laying any information, police would normally carry out investigations. If the investigations result in finding and securing enough evidence to support a criminal charge, the police would lay a charge and pursue it. If the investigations disclose insufficient evidence they can decide not to lay any charges and discharge the suspect.
  7. When an information is presented, the District Court has the power to deal with any issue that concerns both the form and substance of the information presented before it. If for example, an information is defective for whatever reason, this can be raised and dealt with by the District Court.[31] If it can be corrected it could be done by way of an amendment to the information. But if it is so serious that no amendment could fix the problem, the information can be struck out.[32] This would apply to both indictable and summary offences. It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.
  8. If there are no such preliminary issues, the District Court deals with the substantive matter by first attending to all of the pre-trial matters. Once the matter is ready for hearing, it fixes a date and undertakes a trial. The District Court is obligated to properly follow all the required steps in the process. With the assistance of the parties and any counsel, the District Court undertakes a trial in a manner that is fair to both sides and in a way that is impartial, with all the rules of practice and procedure, including those concerning the calling of witnesses, relevance of evidence called, weighing of the evidence, making findings of fact and reaching a final decision on the charge. Of course, prior to trial or if there is going to be a delay in an accused person being brought to court, the District Court has power to consider and grant bail.[33] This is usually the case, for all summary offences or indictable offences that can be dealt with summarily.
  9. Sections 93 – 103 of the District Court Act set out the processes and procedures to be followed in dealing with indictable offences.[34] These provisions provide for matters such as service of the information charging the accused together with copies of all witness statements, and other information or material the State relies on, through to a consideration and decision on whether or not to commit the accused to stand trial in the National Court. The committing magistrate needs to be satisfied that the formal requirements of the provisions under consideration are met and that there is a prima facie case for the accused to stand trial in the National Court. If the magistrate is not so satisfied, he must immediately order a discharge of the accused.
  10. Once an accused has been committed to stand trial in the National Court sections 524 -628 of the Criminal Code takes over. These provisions provide for the commencement of criminal proceedings in the National Court, which has to be only by way of indictment upon committal or an ex officio indictment presented by the Public Prosecutor and their ultimate conclusion. Detailed and specific provisions are also made as to the process and procedure, which includes the form and contents of indictments and any challenges to that.
  11. It is fair to say the Courts in PNG have been appropriately dealing with all instances of abuse of process that have come before the courts. Going by the hierarchy of courts and their respective jurisdiction as provided for under ss 155(1) and 172 of the Constitution and based on the experience to date, we are of the view that, any abuse of process at the Police investigation stage would be appropriately dealt by the Police. Failing that, the matter could be raised at the District Court level at the first instance. The District Court has the necessary powers to deal with any abuse or an improper use of the Police investigatory process. The District Court also has the necessary powers to deal with any abuse and or an improper use of its own processes at the first instance. It follows therefore that, if there is any issue of abuse of process at the committal stage and is something that is beyond the reach of the committal court as in the case of an abuse by the committing Court, such an issue should initially be raised with the Public Prosecutor before he decides whether or not to present an indictment. Failing any resolution at either of these levels, such an issue could be raised at the National Court level in the National Court's criminal jurisdiction. This can include any abuse of process or power by the Public Prosecutor or the Police. If the issue is not resolved there or the abuse of process is by the National Court, the issue can be raised and resolved by way of an appeal or review as the case might be, at the Supreme Court level. Hence, we reconfirm that, each of the authorities at each of the stages have the necessary power and authority to deal with any abuse or improper use of their respective processes when a matter is before them in the due process of the law from investigations through to committal, trial and appeal or review.
  12. To illustrate the courts in PNG's readiness to sufficiently deal with any abuse of process or improper use of the criminal justice process, we refer first to the decision in The State v. Esorom Burege (No 1).[35] There, the defendant, Esorom Burege, argued successfully before the District Court that an information presented against him was defective. The District Court ordered a withdrawal of the information. Instead of ensuring that happened, a State Prosecutor presented an ex officio indictment. Following objections from Esorom, the National Court refused to accept the indictment on the basis that, there was a usurping of the powers of the Public Prosecutor and that the indictment was without a decision on committal.
  13. Other cases on point include for example, the decision in Gregory Kasen v. The State.[36] In that case, Gregory was charged with multiple charges on one information. That offended the principle against multiplicity of charges in one information. The District Court failed to correct that defect and accepted a guilty plea, then convicted and imposed a 6 months sentence against Gregory. On appeal, the National Court quashed the conviction and sentence and remitted the matter back for trial before a different magistrate.
  14. Another case is the decision in Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari.[37] Although that was in a civil matter, the principle applies equally to criminal cases. There, the National Court speaking of the powers of the District Court to deal with any abuse or improper use of the process of the District Court said:

"The Court also has the inherent jurisdiction to dismiss proceedings summarily for abuse of its process. ... The Court's power in this regard... is wide. The phrase "abuse of process" connotes that the process of the Court must be used properly and bona fide and is not to be abused. Thus, where the Court's machinery is improperly and incorrectly used, the Court has the duty to prevent such abuse of its process."


  1. At the Supreme Court level, what this Court said in Anderson Agiru v. Electoral Commission and The State[38] is relevant. There the Court said:

"... the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits."


  1. There is also clear law that, any irregularity, defect or an abuse of process must be raised at the appropriate level. Failing that, a party can be precluded from raising such an issue belatedly and succeed. The decision of this Court in Masolyau Piakali v. The State[39] is clear. That decision endorsed the National Courts decisions in The State v. Murray William & 2 Ors. (No 1),[40] The State v. Moki Lepi[41] and The State v. Roger Kivini.[42] This is for good reason. As the Court said Masolyau Piakali's case, a "failure to act quickly by the defence can be detrimental to him because the question of prejudice to the State also applies." [43]
  2. We reiterate, if anything should be clear from the foregoing discussions is the fact that, any 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.
  3. Given the procedural safe guards outlined and discussed above and the hierarchy of the Courts with their specific jurisdictions, it would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it. This would be the case because, such an issue can be fully raised and could be adequately and satisfactory dealt with by the National Court in its criminal jurisdiction when the matter is before the National Court through the normal process. The National Court would be usurping the powers of the Police, the District Court or that of the Public Prosecutor if it assumes jurisdiction and deals with a criminal matter in its civil jurisdiction or even in its criminal jurisdiction prior to the matter properly getting before it in its criminal jurisdiction, and more so in a case where the process at the Police investigation and District Court levels have not yet been exhausted.
  4. We make a number of additional observations which strengthen the views just expressed. Firstly, the National Court is established by s 163 (1) of the Constitution as a superior court of record, vested with unlimited jurisdiction[44] and other jurisdictions or powers specifically granted to it by the Constitution or an Act of Parliament.[45] Secondly, these jurisdictions fall under two broad categories, criminal for indictable or serious offences and civil for matters beyond the District Court's limit.[46] These are two distinct jurisdictions with their own separate and distinct processes and procedures without any overlapping. The National Court's criminal jurisdiction is granted mainly by the Criminal Code and as complimented by the Courts Criminal Practice Rules and other legislation which specifically vest jurisdiction in the National Court.[47] The National Court's civil jurisdiction is mainly governed by the National Court Rules and any other legislation such as the District Courts Act in respect of Appeals[48] from the District Courts, which grant the Court with the necessary jurisdiction, with or without the relevant and necessary processes and procedures.
  5. Thirdly, we note that there are at least three exceptions to the above position. The first is in the case of contempt of court charges. Contempt of Court proceedings are the only proceedings which apply in both civil and criminal proceedings. They are accepted and dealt with as criminal processes even by a civil court. This is the case because it concerns the possible disobedience of court orders or other acts or omission which have the potential or likelihood of interfering with or impeding the need for a fair and or due administration of justice.[49] The offence of contempt of court is therefore appropriately very broad and is not limited by any definition of it and its penalty prescribed by any written law.[50] Then given that contemptuous acts can be serious affronts to the due administration of justice, the courts have the power to immediately deal with a contemnor right away especially in the case of a contempt in the face of the court regardless of whether the court is sitting in its civil or criminal jurisdiction.[51] Indeed a lot more contempt cases arise out of or in the course of dealing with civil proceedings.
  6. The second exception concerns criminal appeals to the National Court from the District Court. All appeals from the District Court to the National Court are featured in the National Court's civil list under appeals and reviews. Hence, a Judge in the National Court sitting in his or her civil jurisdiction can deal with and determine any appeal from the District Court out of a criminal matter.
  7. The third and final exception concerns judicial review, under s 155(3) (a), (4) and (5 of the Constitution. But this is subject to the principles of law which govern judicial review proceedings. One of the main principles is the one that says judicial review is available in appropriate cases only to those who have exhausted all available remedies. A good statement of the law on this point is the decision of this Court in Nakun Pipoi v.Viviso Seravo & Ors[52] in the following terms:

"Exhausting other available remedies or avenues before resorting to application for judicial review is another criterion the Court usually considers in an application for leave. Basically, the law is that an applicant cannot come to Court to seek leave for judicial review when he has not exhausted other administrative remedies. In The State v. Philip Kapal [1987] PNGLR 417, where there was an available administrative remedy which was not exhausted, the Supreme Court held:-


'Proceedings for judicial review of a decision of the National

Executive Council to provisionally suspend a provincial

government should not be entertained where the procedures

provided for in the Organic Law on Provincial Government have

not been completed or exhausted.'


...Even though the facts of that case are different, the principles have been adopted and applied in subsequent cases, an example of which is Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122."


  1. Later decisions of this Court as in the case of Helifix Group of Companies Ltd v. PNG Land Board & Ors[53] continue to affirm this principle.
  2. Put another way, resorting to judicial review instead of using the remedies or process and procedures that are prescribed by law amounts to an abuse of the process of the Court. The decision of this Court in SCR 8 of 2003; Application by Anderson Agiru,[54] is a good illustration. In that case, Mr. Anderson Agiru instead of appealing against a decision refusing him leave to review a decision of a Leadership Tribunal against him, chose on legal advice to file for a judicial review. The Court found that was an abuse of its process and dismissed the proceeding.
  3. However, where a person is not able to utilize any available remedy due entirely to circumstances beyond that person's control such a person could be permitted to proceed by way of judicial review subject to the meeting of certain principles and requirements. The decision of this Court in Avia Aihi v. The State (No 2)[55] is the beginning and illustration of this principle. There, Avia lost her right of appeal due to no fault of hers but with others in two respects. Firstly, contrary to then standing practice, she was not given the required forms for appeal by the Registrar following her conviction and sentence and imprisonment which prevented her from lodging her appeal within time. Secondly, whilst serving her time in prison, she made a number of attempts at getting lawyers and others to help her to lodge her appeal but none of them were able to help her until 14 months later. In addition to these factors, she was sentenced in a wilful murder case on a wrong principle and in disregard of the relevant and applicable principle that the maximum sentence must be reserved for the worst kind of the offence under consideration. Another factor which was not specifically highlighted by the Supreme Court but is apparent is the fact that, conviction and sentence by the National Court is the final process in the criminal justice system. Hence, there is nowhere else for persons convicted and sentenced of a criminal offence to turn to save only the Supreme Court through its appeal or review powers in appropriate cases.
  4. It should follow therefore that, unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages as discussed above, anything else would be an abuse of processes of the Courts or any prescribed procedure. Any such attempt should not be permitted in line with the various pronouncements we have discussed above. For our criminal justice system is one which is regulated by both substantive and procedural law, from the Constitution to the court rules and pronouncements of both this and the National Courts for the good order and peaceful existence and development of our country.
  5. In this case, Mr. Wartoto used s 155(4) of the Constitution to seek the relief of permanently staying criminal proceedings against him without first trying to and indeed using the processes under the District Court Act and the Criminal Code. This necessarily raises the question of when is it correct to invoke the provisions of s 155(4) of the Constitution. That is the second main issue before us, which we turn to now.

When is it correct to invoke the provisions of s 155(4) of the Constitution?


  1. We appreciate that the National Court by virtue of s 155(3) (a) and (b), (4) and (5) of the Constitution has an inherent power to review "any exercise of judicial authority' or administrative decisions. However, as we observed earlier, this power is subject to the principles which govern its exercise, which includes pronouncements in judgments by this Court and the National Court itself. In this Court's decision in William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government,[56] the Court noted that, s155(4) has been the subject of abuse more than its proper use. After carefully reviewing the authorities on point, the Court concluded, there are about 5 important features or attributes of s 155(4) in these terms:

"From the foregoing, we are of the view that, there are about five important features or attributes of s 155 (4) of the Constitution. These are as follows:


1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as a necessary to do justice in the particular circumstances of a case" before the Court;


2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;


3. Where remedies are already provided for under other law, the provision does not apply;


4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of the number it is constituted, except as may be provided for by any law; and


5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law."


  1. We can only reiterate what this Court said above as it resonates well with one of the cardinal principles in judicial review. That principle, as we have also noted already, is the requirement for a person seeking judicial review to demonstrate amongst other requirements that he has exhausted all available remedies unless, such a person can show he or she is in the same setting as in the Avia Aihi case.
  2. Hence, it would be an abuse of the process of the National Court and s155(4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code and the National Court's Criminal Practice Rules. Further, we are of the view that, if notwithstanding this, the National Court was to assume jurisdiction then, as we already noted, the Court would be usurping the powers of the Public Prosecutor. That would be an offence against the clear provisions of s 176(3) (a) of the Constitution which clearly stipulates that "in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority". The National Court would also be usurping the powers and functions of the District Court and before that the Police. This cannot be permitted in order that the due processes of the law and the systems and structures that are defined and established under our laws are allowed to properly function for the good of all. The opposite would be the case, if there was ready intervention by the higher Courts except only at the relevant and correct stages.
  3. This leaves us to deal with the arguments around the essential element of property interest for the charges against Mr. Wartoto under s 383A of the Criminal Code. The question arising from those arguments which we need to answer is again this. Does the State lose all its interest or property rights in public funds paid to a private contractors for certain public works once it pays the funds over to a contractor?

Does the State lose all its interest or property rights in public funds paid to a private contractor for certain public works once it pays the funds over to a contractor?


  1. This is a simple question that can be answered by reference to the relevant case law on point. A good starting point here is the decision of the Supreme Court in John Kasaipwalova v. The State.[57] There Mr. Kasaipwalova was charged with stealing money received under direction. The Court held that where money is paid into ones account for the benefit of another and the account owner applies it to his own use that could form the foundation for an action in choice only. It could not meet the element of a physical movement and application of another's property for the purposes of a criminal conduct and conviction for misappropriation or fraud.
  2. Parliament was not impressed with the decision in Mr. Kasaipwalova's case. It therefore enacted Act No. 10 of 1981, which brought into existence s383A in its current form. This was intended to overcome the effects of the decision in John Kasaipwalova's case. Following on from that, this Court in Brian Kindi Lawi v. The State,[58] found no error in the National Court finding Mr. Lawi, then a Member of Parliament, guilty of misappropriation under s 383A. In that case Mr. Lawi received from the State certain funds from the National Government for specified projects in his electorate. He instead paid the monies into his personal account and then later applied them to his personal use.
  3. Later, this Court in Joseph Rokpa v. The State[59] confirmed a conviction against Mr. Rokpa for misappropriation under s 383A. There Mr. Rokpa, applied for funding from the Western Highlands Provincial Government on behalf of his village to purchase a power generator. The application was approved and the required funds were made available through a cheque made payable to Brian Bell & Co, which was selling a generator. Instead of buying the generator, Mr. Rokpa bought other items and used them for his own use.
  4. Similar decisions were arrived at in Joshua Yaip Avini and Plaridel Nony Acosta v. The State;[60] James Singo v. The State[61] and Tom Amaiu v. The State.[62] The Joshua Yaip Avini case is closer to the case before us. There, the appellant a parliamentarian and a company director were both charged with 2 counts, one for misappropriation under s 383A and the other for conspiracy to defraud pursuant to s 407(1) (b) of the Criminal Code. The funds involved were intended for road projects, but directed to the director's company. The appellants denied the charges and a trial ensued. They were both found guilty of misappropriation under s 383A but acquitted on the charge of conspiracy to defraud. On appeal against both conviction and sentence, the majority affirmed the conviction and sentence on the misappropriation charge.
  5. Based on the law as we have stated and discussed above, we would answer the question under consideration in the case before us in these terms. The State has all its interest or property rights in public funds paid to a private contractor for certain public works, until the purpose for which the payments are made is achieved or accomplished. We note at the same time that, where public tendering is involved in accordance with the requirements of the Public Finance (Management) Act, this question should not arise at all. For it is usually the case that tenders are put out for people who have the necessary means and the skills to provide what may be required by the State to respond. This is why there are performance bonds or guarantees from the successful tenderers. The need for the State or a public authority to pay comes only when the work or service is delivered. It would be most unusual for the State to advance payment without any delivery on the tendered work or service.

In Summary and Decision


  1. In summary we answer the questions we set out in the earlier part of this judgment as follows:

Answer: No.


(b) When is it correct to invoke the provisions of s 155(4) of the Constitution?

Answer: Where there is no available remedy to protect a right or interest already vested in a person by another law.


(c) Does the State lose all its interest or property rights in public funds paid to a private contractors for certain public works once it pays the funds over to a contractor?

Answer: No, the State has full and unrestricted interests or property rights in public funds paid to a private contractor for certain public works until the purpose for the payment is achieved or accomplished.


  1. Having regard to our answers and the discussions under each of the questions presented before us, we find Mr. Wartoto abused the National Court process. He had the opportunity to raise any concerns or issues he had first with the Police investigator, or at the District Court level or wait and take the appropriate steps once an indictment was formally presented by the Public Prosecutor against him in the National Court in its criminal jurisdiction. Provisions like s558 or s567 of the Criminal Code are there for accused persons like Mr. Wartoto to make use of at the appropriate stage if they so wish. Hence, it would be a clear abuse of the process of any court for an accused to resort to any other means, even s 155(4) of the Constitution, to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. What happened in this case is clearly an abuse of the process of the National Court and should not be repeated. Arguments for Mr. Wartoto on whether all of the essential elements of an anticipated charge exist or not goes into his defence to the charge against him. This should be raised in response to a formal indictment presented against him by way of his defence at the National Court in its criminal jurisdiction and the Court should be able to deal with it at the appropriate stage in the process. But, it cannot be summarily determined at the instigation of an accused. Public interest, public policy, good governance and good order in society require a proper trial before there can be a final determination on the charges against Mr. Wartoto. We note that, this is the law even in civil cases where the burden of proof is on the lower standard of "balance of probability" especially where a cause of action known to law is disclosed. Whether the claim, and in this case the charge, can be sustained is a matter for trial and not for any summary determination.[63]
  2. Based on the above reasons, we are of the view that the appeal is without any merit and it should be dismissed forthwith. Accordingly, we would order a dismissal of the appeal with costs against the appellant. We would further order that the substantive matter should be expedited to a trial without further unnecessary interlocutory applications and hence delays.
  3. KIRRIWOM J. I have read the judgments of Kandakasi J and Sakora J which I refer to as the lead judgment herein and the opinions of both Chief Justice and Justice Davani which further articulate the threshold issue or issues in this appeal. I cannot agree more to what their Honours have expressed in their respective opinions on the issue or issues raised. However, I wish to express briefly my own views on this general issue of abuse of process emanating from the background to the case as I see it.
  4. Accepting the detailed facts as set out in the lead judgment, in brief, Eremas Wartoto (the Appellant) appeals against the decision of Salika DCJ delivered 15 August, 2013 in a matter titled CR.App No. 144 of 2013 In the Matter of an Application pursuant to Constitution Sections 155(4) and 185 Between Eremas Wartoto as the Applicant and The State as the Respondent before the National Court. His Honour was sitting in the criminal jurisdiction of the Court when this application was moved for relief ordinarily sought in a civil action. The applicant was seeking a stay of criminal prosecution against him following his committal to stand trial in the National Court on two criminal charges of misappropriation.
  5. Salika DCJ refused the application for a permanent stay on the basis that the question of ownership of the money that passed from the Independent State of Papua New Guinea to Sarakolok West Transport Limited, a company wholly owned by the appellant, raised critical issues that ought to be determined at the trial at the appropriate time and not in this ad hoc application before him. His Honour was not persuaded that the appellant had established a strong or exceptional case of an abuse of process in the making for him to exercise his inherent powers to permanently stay his prosecution. From this ruling the appellant appealed.
  6. His grounds of appeal are:

"3. The learned primary Judge erred in law in failing to find that:


a) the Respondent "The State" did not retain an interest whether legal or equitable in money that was paid to Sarokolok West Transport Limited "SWT" in discharge or consideration of a lawful, efficacious and fully performed Building Contract between SWT and the State; and


b) therefore, Mr. Wartoto was not capable of being liable for misappropriating the property of the State when money was paid to SWT in such circumstances within the meaning of section 383A (1) (a) of the Criminal Code Act 1974 "the Code".


4. The learned primary Judge erred in law in finding in paragraph 18 of the reasons for Judgment that, in the circumstances, the State was capable of retaining an equitable interest in the Contract Price under the Building Contract:


a) in point of law; or

b) alternatively, on the evidence before the learned primary Judge.


5. The learned primary Judge erred in law in finding in paragraph 18 of the reasons for Judgment that Brian Kindi Lawi v The State [1987] PNGLR 183 had application in circumstances where it has no proper application:


a) in point of law; or

b) alternatively, on the evidence before the learned primary Judge.


6. The learned primary Judge erred in law, or alternative fact, in misconstruing the Submissions made on behalf of the parties, in particular, on behalf of Mr. Wartoto, in that the substance of the submissions both written and oral made on behalf of Mr. Wartoto are not accurately and wholesomely summarized in the second sentence of paragraph 128 of the reasons for Judgment.


7. The learned primary Judge erred in law in finding in paragraph 18 of the reasons for Judgment that the legal propositions articulated therein "need to go to trial" in circumstances where those legal propositions do not involve contentious questions of fact requiring a trial.


8. The learned primary Judge erred in law, or alternatively fact, in failing to give any, or any sufficient, weight to the evidence before the Court, especially in circumstances where:


a) the State filed no evidence, in particular in support of its submission that the State was capable of retaining an equitable interest in the Contract Price under the Building Contract; and


b) the evidence filed on behalf of Mr. Wartoto was unchallenged.


9. The learned primary Judge erred in law, or alternatively fact, in dismissing the Application "without delving into issues involved in the case itself" paragraph 19 of the reason for Judgment in circumstances where the learned primary Judge ought to have determined the questions of law raised in the Application.


10. Further and in the premises of the foregoing grounds, or alternatively, the learned primary Judge erred in law, or alternatively in the exercise of his discretion, in failing to find that proceedings CR No. 780 before the National Court "the Principal Proceeding" constitute an abuse of process as the said proceedings:


a) have been commenced and continued without reasonable grounds; and

b) are incapable of leading to a conviction of Mr. Wartoto under section 383A (1)(a) of the Code."


  1. These grounds have been invariably covered exhaustively in their Honours' respective judgments but I wish only to add these few remarks and observations.
  2. After reading the trial Judge's reasons for refusing the application and the grounds of appeal relied on by the appellant, there is, in my opinion, only one issue in this appeal and that issue is this: Did the trial judge correctly exercise his discretionary power to refuse the appellant's application for permanent stay of his criminal prosecution of the two charges set out in the draft indictment? I am of the view that this is the only issue to be addressed on this appeal without delving into the substantive merits of the case that will ultimately be determined in a full criminal trial.
  3. I am inclined to deal with the appeal in this manner given the very restricted latitude or scope the trial judge was, and quite rightly too, prepared to give to the applicant at the hearing. And this is noticeable in His Honour's judgment in paragraphs 11 to 20:

"11. This application is made before the National Court in its Criminal Jurisdiction itself and not in the civil jurisdiction as was the case in the Thompson case. However, in my view, on the issue of jurisdiction to deal with this application this court has inherent jurisdiction to protect persons from abuse of process of the Court in the criminal jurisdiction of this court (see Somare v Manek & Others (2011 SC1118).


12. The Supreme Court in the matter of the Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118 approved what another Supreme Court said in Anderson Agiru v Electoral Commission v The State (2002) SC687. In that case the Supreme Court said:


'Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behooves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of the process.'


13. The Supreme Court in National Executive Council, The Attorney General and Luke Lucas v Public Employees Association of PNG [1993] PNGLR 268 said:


'An abuse of the process of the court may arise where in an application for a remedy under O16 r (1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by ...Writ or Originating Summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 as well as constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.'


14. All these case authorities stand for the proposition that the Court has an inherent power to protect its own processes and protect its dignity and integrity from abuse by its users or by litigants. In that regard this application is properly before the Court.


15. An act amounts to an abuse of the process when action or actions are obviously frivolous, vexatious, or in bad faith. Those acts can be stayed or dismissed by the Court as abuse of process – See 2003 Oxford Dictionary of Law – 5th edition.


16. In Director of Public Prosecutors v Humphreys (1976) 2 All ER 497 at 528, Lord Salmon said:


'It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred.'


17. The Thompson case highlighted practices in other common law countries relating to applications for stay or applications to permanently stay criminal proceedings. In the end Davani, J said:


'the power to stay proceedings must be exercised sparingly and only in exceptional circumstances. It is a discretion that is exercised to prevent anything which savours of abuse of process. It is a power that is jealously preserved or guarded and is exercised only in very rare cases and "sparingly". It is exercised only in the most unusual cases and its use can be justified. The exercise of that power should not be a random one and will be exercise to protect the abuse of its process.'


18. In that respect I agree with the proposition that the discretion of the court to stay proceedings must be exercised sparingly. Case authorities both domestic and overseas cited in the Thompson case support the proposition that while the court may stay proceedings as an abuse of its process it would require a very strong or exceptional case before the court can interfere with the discretion to prosecute.


19. In this application I have read the submissions advanced by both parties. The applicant says once the payments were made the property passed on to SWT and the State no longer owns the property. On the other hand the State relies on the authority of Brian Kindi Lawi v The State [1987] PNGLR 183 which stands for the proposition that the State has an equitable interest in the money. Those legal propositions need to go to trial in my respective opinion. They are critical issues to be determined at trial and not here.


20. The prosecutorial power of the State belongs to the Public Prosecutor under s 176 and s 177 of the Constitution. The Public Prosecutor has powers not only to prosecute but he also has powers to decline to prosecute. He has a wide discretion to make those decisions even before they get to Court. Whatever decision he makes must be based on proper basis, grounds or reasons must not be made lightly. Persons charged with offences have the right to defend themselves once formal charge or charges have been laid. If the person charged is of the opinion that the prosecution is malicious, he has a separate cause of action in separate proceedings. But it is no reason to prevent such lawful authorities from carrying out their lawful function.


21. In the circumstances and without delving into issues involved in the case itself I am of the view that this is not a very strong or exceptional case that this Court should exercise its discretion to stay these proceedings."


  1. Appellant contends in his appeal that the evidence in the depositions relied on by the State to bring this prosecution against him is such that the prosecution cannot secure a conviction and he is entitled to have this prosecution permanently stayed as being an abuse of process. Mr. Juarth for the appellant relies on the case of Thompson v Kalaut where a civil court ordered a permanent stay of prosecution of the applicant and also relied on the same Australian and English cases cited by Davani J in Thompson v Kalaut (supra) for his proposition that prosecuting the appellant for monies advanced to a corporate entity that he owned was an abuse of process and as such his prosecution must be permanently stayed.
  2. Respondent on the other hand submits in response that the appellant has got it all wrong. The prosecution has a very strong case against the appellant and in any event, whatever weaknesses or strengths of the defence case may be, can be properly ventilated or argued in a proper criminal trial.
  3. The abuse of process argument that the appellant was relying on is that according to him, as per his legal advice, the preferred charge against him was not going to stand in a court of law. That being the case, it must be stopped now or it amounted to an abuse of process of the court, as such a permanent stay was warranted. And he filed affidavit evidence to that effect and relied on that evidence to seek this relief. State filed no responding affidavit by refusing to be drawn into this argument and maintained its position that this was not the time and place to be addressing the merits of the charges against the appellant.
  4. There was a draft indictment circulated for purposes of pre-trial conferences which His Honour took note of but that was not the final determination by the Public Prosecutor as being the indictment that contained the ultimate charge or charges against the appellant. His Honour took the view that the indictment against the appellant was yet to be finalized and presented which is when the criminal trial against an accused begins according to section 512 of the Criminal Code. Throughout the hearing of this application His Honour tried at great length to remind Mr. Juarth for the appellant that the issues he was raising can be properly raised in the trial but to no avail.
  5. It is noted from the transcripts of the proceedings in the National Court that counsel representing the Public Prosecutor Mr. Sambua did not want to be drawn into that expedited approach adopted by the appellant's legal team in fast-tracking the appellant's case in the manner it was forced by describing it simply as premature, frivolous and vexatious application and an abuse of process. Mr. Sambua also submitted that the appellant's intrusion in the case in this fashion was an interference with the Public Prosecutor's constitutional duty to perform his function without fear or favour and without direction from anyone. The State did not file any affidavit in response to the affidavit deposed to by the appellant sworn 3rd May 2013 and filed in support of the application. State Counsel was adamant that the appellant's application was misconceived and this was not the time and forum to be discussing evidence and the substance of the case which can only occur at criminal trial proper.
  6. At the hearing of this appeal, the appellant's counsel was taken to task to justify proceeding with the appellant's case in this manner outside the normal criminal trial process to which the appellant has all the benefits of a fair and speedy trial open to him or available at his disposal. More particularly he was asked to cite any overseas authority where a civil court procedure was invoked to prevent prosecution in a criminal trial. Apart from citing the only local case authority in Thompson v Kalaut [2011] N4265 he referred us to those cases he cited under Part E-Staying Proceedings for Abuse of Process at page 14 of his written submission and the brief summary of principles developed in those cases. It is noted that most of these cases were cited by Davani J in Thompson v Kalaut (supra) in her judgment as providing the authority for her decision to grant a permanent stay. These cases include (1) Metropolitan Bank Ltd v Pooley [1881-85] All ER Rep at 954; 10 App Case at 220; (2) Connelly v Director of Public Prosecutions [1964] 2 All ER 401 at 409; (3) Rogers v The Queen [1994] HCA 42; [1994] 181 CLR 251 at 255; (4) NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148 at 158; (5) Walton v Gardiner (1993) 177 CLR 378 at 410-411 and (6) Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 at 528.
  7. 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.
  8. 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.
  9. 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.
  10. 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?
  11. 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.
  12. In NSW Food Authority v Nutricia Australia Pty Ltd (supra) one of the issues before the Court was to do with improper interference with legal proceedings once commenced by imposition upon the accused to provide answers or produce documents through interrogatories the answers to which will incriminate him. Can that amount to contempt of court if the rules of court made no provision for the use of interrogatories? The context in which abuse of process was raised in this case is that it was unfair and unjust to compel the defendant to answer interrogatories and produce documents when he was already before the court and his answers or documents he produced will be used against him. The court dismissed two of six such notices but allowed four to remain resulting in the appeal.
  13. The central issue in Connelly v Director of Public Prosecutions (supra) and Director of Public Prosecutions v Humphrys (supra) was whether issue estoppel, a procedure developed and applied in civil jurisdiction can be applied in the criminal process to stop a prosecution of an accused on a plea of autre fois acquit as amounting to an abuse of process. A related issue was whether a judge has discretion to stop a prosecution of an accused person where a plea of autre fois acquit is raised?
  14. The appellant in this case is invoking the court's inherent powers to permanently stay this prosecution as being an abuse of process of the court because the evidence is such that it will not return a conviction. Thus it is futile allowing the criminal prosecution to continue when it can be ended now on the materials before the court. It was and is argued before us that the prosecution simply cannot secure a conviction on the evidence before the court and the court must prevent the abuse of its process by permanently staying this prosecution. If this is the appellant's case, the issue here is, can prosecution of someone based on scarce or mere scintilla of evidence amount to an abuse of court process?
  15. Case authorities relied on by the appellant do not support such a proposition. They are only concerned with long delays connected with prosecution, prosecution associated with ulterior motive or purpose, frivolous and vexatious prosecution, double jeopardy and the like but not one having the effect of hijacking a criminal trial from its normal conventional track on the basis of lack or insufficient evidence or on technical ground. This is the case in this appeal which however sadly counsel took no hint from the resistance at the outset by both the judge and the prosecution to be drawn into that gamble. It was not a case of ignorance or lack of procedural knowledge and understanding; it was by deliberate choice and design.
  16. Salika DCJ the next most senior judge in the country's higher courts and judge administrator of fraud and corruption track of the court's criminal jurisdiction was quite familiar with the process that was to follow after the committal given His Honour's extensive experience at the criminal bar as Senior State Prosecutor prior to his elevation to the bench and since becoming a judge. Counsel for the appellant took no hint from His Honour and furthermore refused to reconsider his position when even the prosecution declined to accept or submit to the unique procedure adopted by the appellant to circumvent a proper criminal trial process that was ready to go following his committal.
  17. In Thompson v Kalaut (supra), police charged the plaintiff by laying three information sheets; two charges for perverting the course of justice and one for spreading misleading reports tending to cause ill-feelings between police and PNG Customs, the latter offence was triable summarily. These charges stemmed from a newspaper advertisement that the plaintiff had published in the two daily newspapers Post Courier and The National on behalf of her client while practicing as a private lawyer in response to public statements released by the Collector of Customs Gary Juffa alleging that a foreign vessel had left Papua New Guinea while it was under arrest and while its captain was on bail, thus breaching the terms of the arrest and the bail. The Plaintiff was then acting for the foreign ship and its owners. At the time of this proceeding the plaintiff had just been appointed to the bench as an acting judge of the National Court.
  18. The criminal proceeding in this case had just begun with the laying of information. According to the evidence presented by the plaintiff in her affidavit filed in support of the application seeking permanent stay of the prosecution, it was patently clear that both the respondent and Collector of Customs deliberately acted in the way each did, knowing full well that the true facts were not as publicly stated by the Collector of Customs regarding the foreign vessel and its captain i.e. being charged with criminal offences and the captain being released on bail. There was no offence committed by the foreign vessel and no charges were laid against the owners of the vessel or its captain nor was the captain ever released on bail. The allegations were utterly false. And that was what the plaintiff tried to correct in the statement she released to the media on behalf of the ship owners. For this she was slapped with those criminal charges.
  19. With that type of evidence before it the civil court presided by Her Honour Davani J proceeded to deliberate on the matter and granted the relief sought as it would not, have served any useful purpose to allow the case to continue in the prosecution of the plaintiff when evidence clearly showed that police prosecution was not prepared to take the case further from the laying of the information. It was therefore in the public interest that this vexatious and ill-fated prosecution founded on untrue facts and not pursued in good faith had to be stopped.
  20. The exceptional nature of the case that was before her is expressed by Her Honour in her judgment in paragraphs 99-103:

"99. I find the actions of Superintendent Kalaut to be a gross abuse of process, where he has abused his position as a Police Prosecutor to file court proceedings against the plaintiff. Even as I hand down this decision, I do not know if Superintendent Kalaut has filed the 3 information that he drafted because one and a half weeks after he arrested the plaintiff, he had yet to file the information. It speaks of the Superintendent being unsure of what to do.


  1. The Court must never be used by individuals for their personal battles. Only genuine claims must be filed and pursued. If the claims are not genuine, they should rightly be stayed or dismissed or withdrawn or discontinued. This case is clearly one of abuse of process where the plaintiff was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, as being incorrect and false.

101. As the authorities suggest and have held, the power to stay proceedings must be exercised sparingly and only in exceptional circumstances. It is a discretion that is exercised to prevent anything which savours of abuse of process. It is a power that is jealously preserved or guarded and is exercised only in very rare cases and "sparingly". It is exercised only in the most unusual cases and its use can be justified. The exercise of that power should not be a random one and will be exercised to protect the abuse of its process.


102. As I stated above, the Courts must be protected from abuse. This is a case where the Court system has been abused by the filing of charges and the arrest of the plaintiff which has only resulted in serious embarrassment to her. This must stop and must stop now.


103. The Court must exercise its inherent powers to ensure that justice is done. I find the District Court charges are an abuse of process and are now permanently stayed." (Emphasis added is mine)


  1. In those passages above it can be quite clearly seen that Her Honour emphatically stressed the importance of protecting the integrity of the court process by preventing its abuse by persons commencing proceedings simply to create ill-feeling and embarrass someone when knowing that the facts they were advancing were untrue and false. Her Honour said that this was an appropriate case for the court's inherent powers to be invoked to prevent abuse of its process by permanently staying the criminal prosecution so that justice is done to the plaintiff who has been unfairly and unjustly injured in her standing and reputation as a lawyer and acting Judge of the National Court. The circumstances are not the same in this case.
  2. In Sir Salamo Injia v Thomas Eluh & 2 Ors [2012] N4617 (13 March 2012) the Chief Justice was criminally charged for perverting the course of justice when he issued a direction to the court management for a cheque payment to a named recipient put on hold pending investigation based on complaint of relatives of the deceased after a court had ordered payment to be made to the recipient albeit unbeknown to the Chief Justice. In an ex tempore judgment Manuhu J granted the plaintiff's application for permanent stay of the criminal prosecution as the evidence filed in court which was not rebutted that there was no criminal intent to pervert the course of justice. This was an exercise of administrative power for good governance and accountability of the court with respect to entitlements of deceased persons under probate administration which came under his overall jurisdiction. Again the circumstances are totally different to the case at hand.
  3. This is reflected in the brief judgment of His Honour:

"2. The plaintiff seeks a permanent stay of proceeding on the basis that the criminal proceeding mounted against him by police is an abuse of process. The plaintiff has been charged for attempting to pervert the course of justice when he directed the Registrar to recall or stop payment of an NJSS cheque that was made to Nandape Lawyers in accordance with an order by Sevua J granting probate in respect of the estate of late Hinchliffe J to Timothy Sari Jr.


3. In criminal law, having a criminal intent at the time an act or omission is done is critical. At the time the plaintiff gave the direction in question, on the evidence, his reasons were as follows. First, he was not aware of the orders made by Sevua J and, days after the direction, his attempts to obtain the relevant court file were not successful. The court file was locked away in Sevua J's chambers. The second reason the plaintiff gave for giving that direction is that he wanted to make further enquiries with the blood relatives of the late Justice Hinchliffe in Australia.


4. In my view, it was wise for the plaintiff to direct that the cheque be put on hold. Firstly, at the time Sevua J made the orders referred to there was already an order in place in Australia appointing the Public Trustees of Queensland as administrator for the late Justice Hinchliffe. That order was current when Sevua J granted probate to Timothy Sari Jr. Therefore, the grant of probate by Sevua, J was in contradiction with that order that was made in Queensland.


5. The second reason I say the plaintiff was wise to give the direction to stop the cheque is that the relatives of the late Justice Hinchliffe were indeed interested in his estate. This is amplified in the subsequent proceeding in Waigani by Equity Trustees Limited on their behalf challenging the appointment of Timothy Sari Jr.


6. Clearly, therefore, what the plaintiff did was wise. It was the appropriate course also because, in his affidavit, the plaintiff explains that he was in charge of public funds. The National Judicial Staff Service is allocated millions of kina each year. These allocations come directly under the control of the plaintiff as Chief Justice. The cheque in question was raised by National Judicial Staff Service. It was his ultimate responsibility to ensure that funds are properly accounted for.


7. It is clear, therefore, that what the plaintiff did, when he gave the directions, does not show any criminal intent to maintain the charge of attempting to pervert the course of justice.


8. In any event, the evidence shows that the matter is now settled. The Equity Trustees Limited which took Timothy Sari Jr to court and challenged his appointment, as ordered by Sevua J, has discontinued its action against Timothy Sari Jr. Timothy Sari Jr has collected all the money he wanted."


  1. This is a classical case, like in Thompson v Kalaut (supra) where the court had clear evidence that the prosecution was clearly an abuse, the criminal process was improperly used by people with ulterior motives to unduly suppress or ridicule or demean those prosecuted to satisfy their own selfish egos or purposes or without first properly ascertaining their facts, if not done out of malice or mala fide. These two are very exceptional cases where civil procedure was used to permanently stay the criminal prosecution because it would have been futile to await proper criminal trial process to make the necessary applications by which time unnecessary and irreparable damage would be caused to the standing and reputation of the plaintiffs in the respective position each held in the country.
  2. Then there are hordes of cases on shore where prosecutions were stayed by dismissal of cases where prosecution was unduly delayed amounting to denial of justice. A most recent case where a civil court exercising human rights jurisdiction under section 57 and 58 of the Constitution where the plaintiff successfully obtained a permanent stay of his prosecution plus an award for damages to be assessed is Herman Leahy v Pondros Kaluwin [2014] N5813 (7/11/14). The court found that there was an unexplained delay which amounted to an abuse of process and declared denial of justice and awarded damages to be assessed in the case where indictment was presented in 2005, and the case went in and out of Supreme Court a number of times and the last Supreme Court decision was delivered in December of 2012. The State had no good explanation from December 2012 to October 2014 when this application was made and the Court found in favour of the plaintiff.
  3. Comparing the first two cases with the most recent case of Herman Leahy v Kaluwin (supra) the latter was fully investigated by the Police and the Plaintiff was discharged by the Committal Court. However an ex officio indictment was presented against him in the National Court by the Public Prosecutor in 2005 for allegations of fraud in 1998 or thereabouts. While the abuse of process in the first two cases was in respect of improper or inappropriate use of process the most recent case concerned failure to prosecute within a reasonable time as required under section 37 of the Constitution. When prosecution has commenced and is prolonged without proper or reasonable explanation it can amount to abuse of process as was the case in Leahy v Kaluwin (supra).
  4. Eremas Wartoto was fully investigated by the police and processed through the Committal Court and unlike Leahy's case, a prima facie case was made out and he was committed to stand trial in the National Court. He is but one of a number of high profile people charged in connection with on-going investigations and one of whom is already serving time in prison on a related charge. He is already a wanted man whom public interest demands that his prosecution must be fair and in accordance with the established rules of court and the public have the right to know and appreciate how his case was tried and the end result reached.
  5. Eremas Wartoto's case is nowhere near falling into the category of exceptional cases to be given such consideration. In the present case a committal court has gone through the evidence and found there to be prima facie case for this matter to proceed to the National Court for trial. There was already time and place destined for this issue to be raised once the trial machinery was put into motion. There was nothing lacking for want of procedure or form for the applicant to be given a fair trial.
  6. At this juncture on the sufficiency of evidence in our criminal justice system, that is a serious issue to be raised at the appropriate time in the trial. It sometimes happen where evidence is so lacking in material facts that the prosecution of the case will not result in a conviction, the Public Prosecutor has a discretion to decline to lay charges against the accused. But where the trial proceeds, the defence can apply for an acquittal at the close of the prosecution case by way of no case to answer submission. Issue of sufficiency of evidence in a criminal case is dealt with in either of these two ways and not any other way.
  7. This application that the appellant pursued before Salika DCJ would have been properly made in the Committal Court before the District Court Magistrate who could then have taken into consideration that submission when determining whether a prima facie case was established or not. Whether or not there was evidence for a conviction to lie is a question for criminal trial proper to determine which the laws and rules of court have made adequate provisions for.
  8. When considered from this perspective, the inevitable answer is that the primary judge did not fall into any error when he refused the application for permanent stay of the appellant's prosecution for criminal charges of misappropriation. There are number of reasons including:

(i) Criminal trial was hi-jacked since completion of the Committal Court jurisdiction after finding of prime facie case in which forum evidentiary issues supporting the charge or charges are weighed and determined.


(ii) Evidence contained in the committal depositions are only relevant for purposes of establishing prima facie case for committal court to examine and determine and that starts off or sets in motion a criminal trial on indictment.


(iii) Prosecution had no obligation to tender any evidence in the court below in response to the applicant's application to permanently stay his prosecution when that was not the forum that would determine his guilt or innocence.


(iv) The application was misconceived in the way it was presented when there were sufficient avenues open within the criminal track for the appellant to have challenged the charges against him instead of invoking a civil procedure to stop or derail a criminal process that had already begun.


(v) There are more than adequate checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country including the National Constitution which are open to the accused at any stage of the proceedings within the criminal track to involve the court's inherent powers and there is no vacuum that can be filled by invoking the court's prerogative powers through a civil procedure outside the defined criminal practice and procedure guidelines adopted by Statutes and Criminal Practice Rules of the Court.


(vi) This was not such a hopeless case without any prospect at all of even establishing a prima facie basis for criminal prosecution to lie, a determination of which had already been exercised by the committal court.


  1. I am unable to agree with the appellant in his argument because –
    1. There is no abuse of process and this is not an exceptional case where such an abuse is imminent or can be contemplated on the facts presented justifying stay of prosecution as was the case in Thompson v Kalaut (supra), Sir Salamo Injia v Thomas Eluh & Ors (supra) and Herman Leahy v Pondros Kaluwin (supra).

b) This is not the time and forum to discuss the evidence and substance of the appellant's case when that process is yet to begin under the Criminal Code and according to the Criminal Practice Rules as amended.


  1. In the circumstances I find that the appellant has failed to demonstrate that the primary judge fell into any error in the exercise of his discretion in refusing to grant him a permanent stay of his prosecution because his application was an abuse of process. I therefore dismiss the appeal.
  2. DAVANI J: The appellant is before the Court by his Notice of Appeal filed by Steeles Lawyers on 19th September, 2013. The Notice of Appeal contains 10 grounds of appeal which all effectively plead that the trial Judge had erred when he, on 15th July, 2013, dismissed an application to permanently stay criminal proceedings CR 780 of 2012.
  3. As far as I can tell, the appellant challenges the trial Judge's exercise of discretion when he ruled that the application to permanently stay criminal proceedings, filed by the appellant, was not a case that warranted a stay, and that, "this is not a very strong or exceptional case that this Court should exercise its discretion to stay this proceedings" (see p. 7 of trial Judge's reasons and p. 29 of amended Appeal Book; Vol. 1).

The Appeal


  1. The ten grounds of appeal all challenge the learned trial Judge's powers and the manner in which he exercised his discretion when he dismissed the appeal. My brothers have set out the issues to be determined, that arise from the grounds of appeal. I agree entirely with their reasoning and only wish to expand further on the issue of whether a civil proceeding can be employed to permanently stay criminal proceedings.
  2. I note my brother judges have discussed this issue extensively, supported by case law. My brief reasons focus more on the relative aspects of any given case, that the facts and history of a case before a Court, single Judge or more, are imperative and necessary to assist the Court in reaching and making its decision. In this case, the Court's attention is drawn to this scenario, albeit, an application to stay criminal proceedings filed in the form of a civil originating process.
  3. The appellant relies very much on the case Royale Thompson v. Sylvester Kalaut (2011) N4265 ('Thompson'), when he submits that the exceptional circumstances demonstrated in the Thompson case are in existence and prevalent in his case and that therefore, the trial Judge erred when he dismissed the application for a permanent stay of proceedings.
  4. It is also worth noting that the State's allegations against the appellant are indeed very serious and which is aptly demonstrated in the materials contained in the six voluminous bound documents which make up the appeal books now before this Court. The State alleges that the alleged payments made to the appellant, were made contrary to and in breach of prescribed mandated processes under the Public Finances Management Act. The State alleges also that the appellant applied these funds to his own personal use and to the use of companies that he was the Managing Director of. The State also makes very serious allegations about fraud having been perpetrated by the appellant in relation to the manner and form of payments made to him.

A synopsis of Royale Thompson v. Sylvester Kalaut (supra)


  1. In the Thompson case, the National Court reviewed the evidence upon which 2 Information were purportedly laid. The National Court noted that the Information laid in the District Court by the Police Informant, referred to events that had come and gone. That the person named in the Information had left Papua New Guinea and this was made possible by a National Court order. The National Court found the following:

- that the article in the Post Courier of 14th January, 2011 by Young and Williams Lawyers which was the subject of the charges laid by the Police Prosecutor, was in response to several articles by the then Collector of Customs and a Superintendent Kalaut, to correct incorrect facts that had been advertised in the newspapers by the named defendants in the Thompson case. The incorrect facts were that;


(i) The "UBT Fjord" (the 'vessel') was still under court orders to remain berthed at Simpson Harbour, Rabaul, East New Britain Province;


(ii) That a Mr Moi Hein was the captain of the vessel;


(iii) That the said Mr Moi Hein was facing criminal charges;


(iv) That it was Ms Thompson, Mr Moi Hein's lawyer, who uttered the words, stated in the press release of 19th January, 2011 ('the article') and that therefore she was misleading the public and was attempting to pervert the course of justice.


  1. The Court noted also that at the time the article went to print and that at the time the Police arrested the plaintiff, Ms Thompson on 1st April, 2011, that these were the correct facts, also known to the Collector of Customs and the Police Prosecutor. These were;

(i) When the vessel "UBT Fjord" departed Simpson Harbour, Rabaul, on 8th January, 2011, there was no Court order in place detaining her;


(ii) On 8th January, 2011, the captain of the vessel was one Ye Wii Aung not Mr Moi Hein, Ms Thompsons then client;


(iii) There is continuous reference in the article (of 19th January, 2011) to "the spokesperson". The National Court found that it was the "spokesperson" giving instructions to the plaintiff Ms Thompson, and which is reflected in the article. And what were published were correct facts.


(iv) The National Court found that the evidence by the Police Prosecutor, contained in his affidavit, was;


- false and misleading in that the vessel had already been cleared by customs and by an earlier order of the National Court;


- that the article of 19th January, 2011 contained false and misleading information;


- that the vessel 'UBT Fjord' was not the subject of criminal proceedings when it left Papua New Guinea, having already been cleared by a National Court order to leave Papua New Guinea.


  1. The National Court found also that the Police Prosecutor, whilst knowing the information he relied on to be false, still laid the charges and proceeded to prosecute anyway. Ultimately, after reviewing the evidence and submissions in relation to the application for a permanent stay, the Court found that the plaintiff Thompson was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, to be incorrect and false. (my emphasis).
  2. The Court in the Thompson case fully appreciated that the discretion to stay criminal proceedings must only be exercised sparingly and is a power that is jealously preserved and guarded and is exercised only in very rare cases. That this power will only be exercised in the most unusual cases and its use must be justified. Additionally, the Court held, amongst others, that the exercise of that power by a Court is not a random one and must only be used to protect the abuse of its process.

Appellant's Lawyers submissions


  1. In the written submission filed by Steeles Lawyers for and on behalf of the appellant, the appellant's lawyers discuss the charges that would be laid, in this case, s 383A (i)(a) and s 404 of the Criminal Code. In their submissions, they discuss each element of the offences as though they were responding to the State's case during a trial. This is contained at part 'D' of their written submissions, pages 10 and 11.
  2. Having reviewed the evidence under that part, the appellant's lawyers then discuss why the misappropriation charges cannot be lawfully sustained, and which submissions are contained at section 11 of their written submissions, set out at pages 11 to 12.
  3. In that part, the appellant's lawyers attempt to justify why the charges cannot be sustained and why the appellant could never lawfully, be convicted.
  4. In doing so, they discuss the evidence contained in the 6 voluminous files now before us, and which evidence I must point out, has yet to be tested in the trial court.
  5. For example, at par. 52 (a), at Section 11, the part that reads "Misappropriation charges cannot lawfully be sustained", the appellant's lawyers submit that the State paid the contract price to a company SWT, not to the appellant, pursuant to the building contract and that it did so voluntarily in consideration and discharge of its obligations pursuant to a valid and efficacious contract. The appellant discusses further in that part, how the separate legal personality of a company is separate and distinct from the appellant and in doing so, attempts to justify that the elements of s 383A (i)(a), being the words "applied"; "belonging to another" and "dishonestly" cannot lawfully be made out because the appellant submits that upon payment of the funds, they ceased being the property of the State and became the property of SWT.
  6. The appellant submits further, that when the appellant, as director of SWT, applied to other uses, monies comprising the Contract Price, that the appellant was applying the property of SWT, not the property of the State.
  7. The appellant submits that if this Court were to accede to the State's submissions to dismiss the appeal, that the Supreme Court is effectively offending the elementary legal principles of;

- sanctity of contract


- privity of contract


- and, the separate legal personality of a company


  1. In the next part of those written submissions, Section III, headed "obtaining money by false pretence", contained at pages 12 and 13, pars. 56 to 61, the appellant's lawyers discuss again, the elements of the offence under section 404 (1) of the Criminal Code. The appellants discuss the evidence as against the charges, which has yet to be tested in a trial Court and which the appellants, submit, cannot be lawfully sustained, which discussions are contained at Section IV of the written submissions, pars. 62 to 73 and pages 12 and 13.
  2. In those discussions, at pars. 64 to 72, the appellant's lawyers discuss the elements of section 404 and effectively make findings of fact in those discussions. For example, at par. 67 the appellant's lawyers submit;

"67. Finally, as to the third element, neither SWT nor Mr. Wartoto "obtained" any money by representing anything to Mr. Kimmins or the department, and nothing SWT or Mr. Wartoto represented caused the State to pay any money to SWT or Mr. Wartoto."


  1. Then again at par. 69, the appellant's lawyers state this:

"As set out above in part B, s. 1, the decision to award the building contract to SWT involved numerous layers of departmental involvement and oversight. The implicit suggestion that Mr Kimmins alone was capable of being misled, as a result of which the contract price was paid to SWT, is fanciful".


  1. At par. 71, the appellant's lawyers submit:

"As stated above, there is not a shred of evidence from a single person involved in awarding and entering into the building contract that doing so was induced by any false or misleading misrepresentation or pretence".


  1. Indeed, these submissions, which are made after the effective consideration of evidence, are all conclusions based on the appellant's lawyer's analysis of what they consider to be evidence that will be produced by the Public Prosecutor. Their above submissions are just a miniscule part of lengthy submissions made after their review of the materials contained in the 6 volumes, which materials have yet to be tested at trial.

State's submissions


  1. The State submits that the Court must not accede to the appellant's request. It submits that the questions posed by the appellant in this appeal are based solely on the Contract referred to above, and which is an attempt by the appellant, to shift the focus from the real issue which are the pending charges of 2 counts of misappropriation and 2 counts of obtaining goods by false pretence.
  2. The State submits further that the evidence to be ventilated at trial is far more than the mere existence of a contract. The State submits that what is before the trial Court is not simply a contractual dispute rather, that the facts demonstrate and establish a prima facie case on which there are reasonable prospects of securing a conviction.
  3. In its written submission, the State canvases the evidence which is contained in the voluminous material before the Court. The State submits amongst others:

(i) That in relation to the Contract, that although the funds were paid to SWT, that the applicant and his wife are the sole signatories to that account;


(ii) That a letter purportedly from the Central Supply and Tenders Board, signed by one Brian Kimmins and which requested payment of 85% of the Contract Price of K6,791,408.20, was not signed by Brian Kimmins;


(iii) That these funds were not used for the rehabilitation of Kerevat National High School, rather were applied towards personal expenses, repayment of loans, purchase of new motor vehicles and other expenses not related to the Kerevat National High School Project. The State directed this Court to exhibits 30 to 51 in the depositions;


(iv) And that no work was ever done on the sewerage works the subject of the Contract.


  1. In relation to the charge of "Misappropriation of Property", the State submits that the appellant is seeking to hide behind the corporate veil when the law is that in a criminal matter, the Court can lift the corporate veil. The State cites and relies on State v. Wyborn [2004] PGNC 3 N2847.
  2. The State submits that very little of the K6, 791,408.20 paid on 29th January, 2009 and K1, 198,483.80 paid on 14th February, 2009 to the appellant, were applied towards renovation of Kerevat. The State submits that the funds were obtained contrary to the provisions of the Contract and under false pretence which should prompt this Court into taking the stance that all the evidence must be reviewed in its entirety and not just the contract alone and which must be done, at trial.
  3. In relation to the charge "Applied property belonging to another", the State submits that the funds were expended on the appellants personal expenses with only K600, 000.00 applied towards Kerevat. That the parts for the water supply and sewerage system that the funds were meant for, were never purchased.
  4. The State submits that there is a prima facie case to answer and reasonable prospects of success.
  5. In view of the submission by the State and the Appellant, do the circumstances of this case warrant the grant of a permanent stay of prosecution?

Stay of proceedings for abuse of process


  1. For me to be able to answer that, I will have to review the Australian and English cases that the appellant relies on in his quest for a permanent stay. I will then compare the facts of this case to the facts of those cases to then in concluding, decide whether this Court should develop categories or tests for litigants to comply with when seeking a permanent stay and of course, in that process, either dismiss the appeal or grant the stay.
  2. "Part E" of the appellant's submission titled "Staying proceedings for abuse of process", canvasses the Australian and English authorities on the principles of the grant of a permanent stay of civil and criminal proceedings. The appellants set out only statements by the bench but not the facts upon which those statements are made. This is why the facts of those cases must be scrutinized to assist this Court in its deliberations and orders.
  3. Those cases generally demonstrate that a Court has power to protect and prevent its processes from being abused and it must do so, summarily, by permanently staying proceedings whether they are criminal or civil and it does so in exceptional cases only and very rarely.
  4. The cases that the appellants rely on in their written submissions are;

- Metropolitan Bank Ltd v. Pooley [1981-85] All ER Rep at 954; 10 App Cas at 220


– Connelly v. Director of Public Prosecutions [1964] 2 All ER 401 at 40


- Rogers v. the Queen (1994) 181 CLR at 251 at 255


- Food Authority v. Nutricia Australian Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148 at 158


- Jago v. District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 47)


- Director of Public Prosecutions v. Humphreys [1976] 2 ALL ER 497 at 528


  1. What is clearly apparent and obvious is the fact that the common law and Australian cases which the appellant relies on and upon which findings were made by the various Courts, were made on facts unique to each of those cases, which facts the Court considered then made findings. It is necessary that I review each of those cases to ascertain whether there are any similarities to the Thompson case which the appellant places so much emphasis on. This is done bearing in mind the well-established principle at law that the process of the Court must be used properly and bona fide and not to be abused. That the court has a duty to prevent the abuse of its process and that the court's duty is to protect itself by ensuring that litigants do not abuse the court's process by instituting frivolous or vexatious suits.
  2. This is also done bearing in mind the well-established principles that the police force and public institutions charged with a statutory duty to investigate must not be restrained from carrying out their constitutional and statutory obligations. These well-established principles were held in the cases referred to above by my brother judges and which lay the foundation for democracy, transparency, accountability and the maintaining of the rule of law in Papua New Guinea. I discuss below each case relied on by the appellant;

(1) Connelly v. Director of Public Prosecutions [1964] 2 All ER 401


This is a decision of the House of Lords where the appellant and 3 other men were charged on two indictments, with murder and robbery with aggravation, arising out of an office robbery during which an employee was killed. In accordance with practice, the indictment for murder was tried alone and defences raised. The jury returned a verdict of guilty against all four men. At the conclusion of the trial, the Judge directed that the issued indictment for robbery remain on the file marked "not to be proceeded without leave of this court or of the court of criminal appeal". The appellant appealed and raised 15 grounds.


The whole issue considered by the court of criminal appeal was whether the evidence and the direction of the jury on the question of whether or not the appellant had been present at the scene of the crime, were satisfactory. In relation to that issue, the court found that the jury had been misdirected and that therefore the conviction must be quashed. It acquitted the appellant but also granted leave to the Crown to proceed with the appellant's prosecution on the second indictment for robbery.


When the matter returned a month later, before John Stephenson J, the plea of autrefois acquit was raised on the appellant's behalf. The judge directed the jury to try the issue that the plea had not been established and a verdict to that effect was returned. The judge was also asked to exercise his discretion to prevent the Crown from proceeding on the second indictment but held that the only discretion which a Judge had in such circumstances was to express an opinion and he expressed the opinion that it would be wrong for the Crown to proceed. Despite that opinion, the Crown proceeded with the prosecution and a month later the appellant was tried and convicted on the robbery indictment.


The Judge Stephenson .J took the view that there was no way in which he could stop the robbery indictment from proceeding and he ordered that the appellant be remanded in custody to await trial.


The trial started before Nield J and a jury. The appellant was convicted of robbery with aggravation and sentenced to 15 years imprisonment. He appealed against both conviction and sentence.


In their reasoning, the appeal bench discussed the distinction between autrefois acquit, Defence available to accused persons in criminal law and the principle or doctrine of issue estoppel, a principle available to parties in civil law. Weighing up those principles, the Court found that the appeal against conviction must be dismissed and the appeal against sentence allowed. 10 years imprisonment was substituted.


  1. It is clear that the facts in Connelly are not same as the facts now before this Court. It was against the scenario set out above, that the Court in that case drew the distinction between autrefois acquit and issue estoppel, completely different scenario to the case now before me.

(2) Rogers v. Queen (1994) 181 CLR 255;


  1. The appellant in this case relies on the statement of Chief Justice Mason of the High Court of Australia where he said;

"the circumstances in which abuse of process might arise are extremely varied and it would be unwise to limit those circumstances to fix the categories."


This was an appeal from the Supreme Court of New South Wales to the High Court of Australia. At a trial in 1989 upon an indictment containing four counts of armed robbery, the prosecution sought to rely on admissions in three or four records of interview made by the accused. The first and second records contained admissions concerning counts 1 and 2. The fourth contained admissions concerning counts 3 and 4. The Judge rejected the tender on the ground that the records were not made voluntarily. The accused was acquitted on counts 1 and 2 and convicted on counts 3 and 4.


In 1992 he was indicted on a further 8 counts of armed robbery. At the trial the prosecution proposed to rely on the fourth record of interview to support its case on 6 of the counts, and on the third record of interview, in support of the fourth count. The majority of the bench made up of Mason CJ, Dean and Gaudron JJ upheld the appeal whereas Brennan and McHugh JJ dissented, holding that the tender of the records of interview would be a direct challenge to the 1989 determination and, in the circumstances would be an abuse of process.


The high court discussed extensively the doctrine of issue estoppel in criminal proceedings. The majority noted that the doctrine of issue estoppel was in fact a foreign concept to the operation of the criminal law (page 259). The majority on the bench then held that the doctrine of issue estoppel did not apply as it had developed in civil proceeding and is not applicable to criminal proceedings.


It was in the context that the majority held, as noted from the statement above, that the circumstances in which abuse of process might arise are varied and that it would be unwise to limit those circumstances to fixed categories (see also Hunt v. Chief Constables (1982) AC at page 536 per Lord Diplock).


It was the issue of whether the Supreme Court was correct when, at trial, the prosecution proposed to rely on the fourth record of interview to support its case on 6 of the counts and on the third Record of Interview in support of the fourth count, done 3 years later (1982).


The High Court of Australia was focused on the principle of issue estoppel.


  1. Again, this is a case which was tested at trial on two occasions which prompted Defence Counsel to raise and rely on the principle of issue estoppel. It was within that environment that Chief Justice Mason made the comment that he did, cited and relied on by the appellants.
  2. In my view, Rogers v. the Queen (supra) has no bearing or relevance to this case because the facts are quite different.

(3) Director of Public Prosecutions v. Humphreys [1976] to ALL ER 497


  1. The appellant herein, relies on a passage by Lord Salmon, a member of the House of Lords in Humphreys and which passage is contained in the appellants lawyers written submissions, which reads;

"It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecution are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred."


  1. The Humphreys case was decided by the House of Lords on 19th May, 1976. The bench comprised Viscount Dilhorne, Lord Hailsham of St. Marybone, Lord Salmon, Lord Edmund – Davis and Lord Fraser of Tullybelton. The facts are these;

In June 1973 the respondent was tried on a charge which alleged that on 18th July, 1972 he had driven a motorcycle whilst disqualified. The respondent admitted that on the 18th July, he was disqualified but denied that he was the person driving the motorcycle on that particular date. At the trial, a police constable testified that he had stopped the respondent whilst he was driving a motor cycle on that date. The respondent testified that he had not driven a motor vehicle at all during the year 1972 and gave evidence which suggested that the person stopped by the Police Constable was someone else. The respondent was acquitted.


However, the police later, upon further enquiries, discovered evidence which confirmed that the respondent was in fact the driver stopped by the police constable on 18th July, 1972. The respondent was subsequently charged with perjury in that during the course of his trial in June 1973 he had wilfully made a false statement material in those proceedings, namely he had not driven any motor vehicle during the year 1972. However when the matter went to trial, the Crown produced evidence which showed that the respondent had driven a motor cycle in 1972. Additionally, this same police constable who had given evidence at the respondent's trial in June 1973 was called to give exactly the same evidence that he had given at the earlier trial, that the respondent had been driving a motor cycle on 18th July, 1972. The respondent was convicted of perjury.


On appeal the court of appeal criminal division quashed the respondent's conviction on the ground that the doctrine of issue estoppel applied to charges of perjury and that as the jury at the first trial had determined the question whether the respondent had been the driver of the motor cycle on 18thJuly, 1972 in the respondent's favour, the evidence of the Police constable that the respondent was the driver on that date was inadmissible and that the respondent had falsely sworn that he had not driven a motor vehicle in 1972.


The Judges in the majority in the House of Lords held that the doctrine of issue estoppel had no application to criminal proceedings and could not apply to prevent a charge of perjury being brought against a person who had been acquitted of another offence in respect of evidence given by him at the trial for that offence.


It was the minority comprising Lord Salmon and Lord Edmond Davis who held that a judge of a superior court has an inherent power to decline to allow a prosecution to proceed if he is satisfied that it is oppressive and vexatious and an abuse of process of the court.


  1. This is the finding, albeit obiter, that is cited to this court by the appellant's lawyers, contained at page 528, referred to above.
  2. Basically, Humphreys is in relation to the application of the doctrine of issue estoppel, its application in civil proceeding and whether it is applicable in criminal proceedings.
  3. In fact, the bench in Humphreys was very concerned that if they were to find that issue estoppel applied in criminal cases, that would be the application of a new doctrine. Viscount Dilhorne summed it up by saying at pg. 506;

"I agree with Lord Devlin that to hold that issue estoppel applied in criminal cases would be the importation of new doctrine. I agree with the opinions of Lord Parker and my noble and learned friend, Lord Diplock, to which I have referred. Though there are dicta to the contrary, in no English case to which we were referred has a conviction been quashed on the ground that evidence was admitted which was inadmissible on account of issue estoppel. In my opinion issue estoppel has not and never has had a place in English Criminal Law and it is very undesirable that it should have."


  1. Clearly, Humphreys has no application to this case.
  2. I also refer to the case Regina v. Osborne Ontario Court of Appeal C.J.O Laskin and Jessup. A. JJ dated 26th November, 1968, cited in the Thompson case. The facts are these.

In September, 1966, the accused was acquitted on an indictment containing a charge of having in his possession 7 cheques and other writings that were adapted and intended to be used to commit forgery. An appeal by the Crown to the Court of Appeal was dismissed.


Later, in May 1967 the accused was indicted on a charge of conspiring with a person or persons unknown to commit the indictable offence of uttering the same seven forged cheques. At the opening of the second trial, the special plea of autrefois acquit was disallowed. Counsel for the accused then urged the trial judge that he had discretion to stay the indictment on the ground that the proceedings were oppressive and an abuse of the process of the court. However, the trial Judge did not rule on that but convicted the accused.


On appeal, the court held that the appeal should be allowed, the conviction quashed and a verdict of acquittal directed to be entered. The Court held that every Court, regardless of whether it exercises civil or criminal jurisdiction, has inherent discretionary power to prevent an abuse of its own process through oppressive or vexatious proceedings. It is however a discretion that should be exercised sparingly and only in exceptional circumstances.


The Court held this, as taken from the head notes at pg 665;


"However, it should not be thought that in the absence of special circumstances, the laying of a second indictment upon the same facts is simpliciter and is all cases productive of such injustice as to invoke the court's inherent jurisdiction. Everything depends on all the facts of the case. The discretion is to be exercised in favour of the accused only where a real injustice will otherwise result and such a case should be rare."

(my emphasis)


  1. In that case, the court had regard to the special circumstances that existed, that is, the laying of the second indictment upon the same facts that gave rise to the first charge and conviction which resulted in a real injustice to the accused which called for the exercise of the courts inherent discretion. That case demonstrated the necessity for a court to exercise its discretion where apparent injustice is displayed as in Humphreys.

(4) Metropolitan Bank Limited and Arthur Cooper the Liquidator v. Alexander Gopsell Pooley (1885) 10 App Cas 210


  1. The appellants rely on a statement by Lord Blackburn in the above case, in their written submissions, at pgs 220 and 221 of the published decision, which reads;

".. But from early times (I rather think though I looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see it was not abused by a proceedings without reasonable grounds so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse; ..., but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; ...."


  1. I referred to Metropolitan Bank Limited and Arthur Cooper the Liquidator in Thompson, which case involved a bankrupt whose adjudication in bankruptcy had not been set aside. The Court held that he could not maintain an action for maliciously procuring the bankruptcy; and that such an action may be summarily dismissed upon summons as frivolous and vexatious. In that case, the Court noted that whilst an action in bankruptcy had not been set aside, the bankrupt could not file an action for maliciously procuring the bankruptcy.

The facts were that a hearing in bankruptcy was filed and whilst it was subsisting, the bankrupt brought an action by way of a statement of claim pleading that he had suffered damage by the wrongful acts of the defendants fraudulently and without reasonable cause procuring him to be adjudicated bankrupt. He sought damages for fraud and conspiracy.


The Court found that action to be groundless because the action in bankruptcy was still pending, that it was frivolous and vexatious and that the Court must exercise its powers to dismiss the proceedings as it was an abuse of process.


  1. The facts in Metropolitan Bank Limited, upon which the application to stay the bankruptcy proceedings was made, are clearly not similar to this case, i.e. that whilst an action in bankruptcy was pending, the bankrupt could not file an action for maliciously procuring bankruptcy.

(5) Jago v. District Court of New South Wales & Ors [1989] HCA 46; [1989] 168 CLR 23


  1. In this case, the appellant relies on a passage by Brennan J where he said;

"An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve."


This was an appeal from the Supreme Court of New South Wales and is in relation to a company director who was charged in October 1981 with having fraudulently converted cheques belonging to the company between 1976 and 1979. He was committed for trial in July 1982. A bill of indictment was found in May 1986. In June 1986, the case was listed for trial in February 1987. When the indictment was presented in that month, the trial Judge dismissed an application by the accused for a permanent stay of proceedings.


The appeal court held that the Judge had correctly refused the application. The appeal court also considered the circumstances in which the power to permanently stay the criminal proceeding may be exercised.


This was a case involving delay in prosecuting the accused person. The court held that there must be prejudice before a stay can be ordered.


And where there is delay, the appeal court held that;


"the court may grant a limited or conditional stay and it might even order that a proceeding be stayed and not proceeded with or without an order of the court."


Mason CJ said at page 33;


"the factors which need to be taken into account in deciding whether a permanent stay is needed in order to indicate the accused's right to be protected against unfairness in the cause of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, reasons for the delay, the accused responsibility for asserting his rights and, of course, the prejudice suffered by the accused."


(my emphasis)


Mason CJ said further;


"in any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare".


  1. Again, Jago does not apply to these proceedings. However, the ratio there is that each case must be decided on its own peculiar set of facts, and that the factors seeking a stay cannot be precisely defined.

Analysis of the cases


  1. Clearly, the decided cases are all in agreement that criminal proceedings should not be stayed permanently, but only in very exceptional cases. In all the decided cases that I have reviewed, the facts all vary and are not the same or similar. For cases where the Defence or plea of autrefois acquit was raised, the Court decided each case according to its own peculiar set of circumstances or facts. The Courts also discussed the doctrine of issue estoppel and made comparisons with the criminal doctrine of autrefois acquit. In the end, the Courts all held that as to what is exceptional and rare, are factors to be determined according to the peculiar circumstances of each case.
  2. The submissions made by the appellant's lawyers effectively request that the Court review the evidence as against each element of the charges laid. As was done by the learned Judges in the Australian and Common Law cases that I refer to above, the learned Judges frowned upon the application of civil doctrines to criminal cases. I.e. issue estoppel and autrefois acquit (see Humphreys). In this case, the appellants are no doubt looking to the O12 R 40 National Court Rules remedy, where proceedings can be dismissed for being frivolous and vexatious. That doctrine, practise or remedy, has no place in criminal law, and in the Common Law jurisdiction because it is unheard of and in my view, an abuse of both the criminal and civil process. It is a metamorphosis of a civil remedy into an alien concept, unknown to the practise of Criminal Law and is a practise that is frowned upon by the Courts in the Common Law jurisdiction, as shown in my discussions, above.

Conclusion


  1. I referred to appellant's counsel's written submission which is divided into three parts, to demonstrate that counsel is actually putting to the Supreme Court, evidence that is more properly raised and tested in the trial court. Additionally, the appellant asks and requests that the Supreme Court review that evidence, when the Supreme Court is not a court of original jurisdiction. Appellants counsel also asks that the Court adopt a civil law doctrine and apply it to a criminal case, an unacceptable practise indeed.
  2. Clearly, in my view, those are not exceptional circumstances, rather an abuse of the Courts processes. And proceedings that are an abuse of the court's process must not be allowed to remain and must be dismissed. I find that the trial judge has not erred, rather, that he had properly exercised his discretion when he dismissed the appellant's application in the National court.
  3. In view of my above findings, the obvious conclusion is that the appeal must fail.

Decision and orders of the Court


  1. Based on all of the foregoing, the formal orders the Court makes are:

1. The appeal is dismissed.


  1. The appellant shall pay the Respondent State's costs of this appeal to be agreed, if not taxed.

_____________________________________________________________
Steeles Lawyers: Lawyers for the Appellant:
Public Prosecutor: Lawyers for the Respondent

[1] (2011) SC1118, per Salika DCJ, Kirriwom and Kandakasi JJ.
[2] [1999] PNGLR 6.
[3] (2001) N2290.
[4] (2004) N2765.
[5] (2003) N2369.
[6] (2003) N2400.
[7] (2003) N2478.
[8] (2004) N2711.
[9] (2008) N3406.
[10] (2008) N3526.
[11] (2000) N1956.
[12] (2004) N2568.
[13] (2004) N2562.
[14] (Chapter 32).
[15] [1975] PNGLR 395.
[16] (1947) 47 SR (NSW) 145.
[17] (1981) 1 Lloyds Reports 423.
[18] (1991) N1385.
[19] (2011) N4265.
[20] Subsection (2) of s. 37 of the Constitution.
[21] Subsection (4) (a) of s.37 of the Constitution.
[22] According to subs. (14) of s.37 of the Constitution, at least within 4 months from date of committal.
[23] Subsection (8) of s.37 of the Constitution.
[24] Subsection 915) of s.37 of the Constitution.
[25] Sections 2 and 3 of the Criminal Code Act (Chp. 262)
[26] (Chp.339).
[27] Sections 20, 28 and 29 of the District Courts Act (Chp. 40)
[28] (Chp.40).
[29] Sections 33 – 34 of the District Courts Act.
[30] Sections 36 of the District Court Act.
[31] Frabelle (PNG) Ltd v PANGTEL (2010) N4566
[32] Wilson Kamit v. Aus-PNG Research & Resources Impex Ltd (2007) N3112; Mark Opur v. Darbar Enterprises Ltd (2004) N2528; Gregory Kasen v. The State (2001) N2133; The State v. Esorom Burege (No 1) [1992] PNGLR 481
[33] Section 55 and 56 of the District Courts Act
[34] This does not include bails pending committal or trial, which is the subject of ss.104 - 110.
[35] (supra) note 31.
[36] (supra) note 31.
[37] (2007) N3295.
[38] (2002) SC687.
[39] (2004) SC771.
[40] (2004) N2556.
[41] (2002) N2264.
[42] (2004) N2576.
[43] For a more detailed discussion on a party being precluded from raising and succeeding on a matter that should have been raised in the Court below see. Paru Aihi v. Peter Isoaimo (2013) SC1276, per Kandakasi J with Yagi J agreeing.
[44] S.166 (1) of the Constitution.
[45] S. 166 (2) of the Constitution.
[46] Section 21 of the District Court (Chp 40) sets a maximum monetary value limit of K10,000.00
[47] See for example s. 101 of the Central Banking Act 2000
[48] Sections 219 0 – 246.
[49] Andrew Kwimberi v. The State (1998) SC545.
[50] See s. 37 (2) of the Constitution.
[51] See Andrew Kwimberi v. The State (supra) SC545 and PNG Power Ltd v. Ian Augerea (2013) SC1245
[52] (2008) SC909. See also Ereman Ragi & Ors vs. Joseph Maingu (1994) SC459 for an example of an earlier decision.
[53] (2012) SC1150
[54] (2003) SC704.
[55] [1982] PNGLR 44 .

[56] (2006) SC844, per Jalina, Gavara-Nanu and Kandakasi JJ.
[57] [1977] PNGLR 257.
[58] [1987] PNGLR 183.
[59] [1994] PNGLR 535.
[60] (1997) SC523.
[61] (2002) SC700.
[62] [1979] PNGLR 576.
[63] See for examples of cases on point, William Duma v. Eric Meier (2007) SC898; Rage Augerea v. The Bank South Pacific Ltd (2007) SC869; Philip Takori v. Simon Yagari (2008) SC905

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