Hiviki v Independent State of Papua New Guinea [2015] PGSC 44; SC1449 (5 August 2015)

SC1449

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 38 OF 2015

BETWEEN:

KEPAS HIVIKI
Applicant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Makail J,
2015: 24th July & 05th August

SUPREME COURT – PRACTICE & PROCEDURE – Leave to review – Leave sought to review National Court decision – Refusal to quash indictment following a demurrer to indictment – Ex-officio indictment – Applicant charged with one count of wilful murder and five counts of attempted murder – Demurrer – Proposed grounds of review – Defective indictments – Constitution – Section 155(2) (b) – Criminal Code – Sections 526 & 567 – District Courts Act – Sections 95 & 100.

Cases cited:

Application by Anderson Agiru (2003) SC704
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
The State v. Cain Wosae (2010) N3996
Re: Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR Charles Bougapa Ombusu v. The State [1996] PNGLR 335
Commission (2011) SC1118
The State v. Elias Subang (No. 1) [1976] PNGLR 141
433

Eremas Wartoto v. The State (2015) SC1411
Eremas Wartoto v. The State (2013) SC1298
Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ombudsman
Application by Herman Joseph Leahy (2006) SC855
The State v. Jeffrey Ava (2010) N4161
The State v. Michael Nama (1999) N1884
The State v. Nelson N. Ngasele (2003) SC731
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6
The State v. Robin Panu (2010) N4087
The State v. Tolly Saun and Standley Saun (2011) N4390

Counsel:

Mr S Soi, for Appellant
Mr P Bednall, for Respondent

RULING ON LEAVE TO REVIEW

05th August, 2015

1. MAKAIL, J: This is an application for leave to review the decision of the National Court of 28th May, 2015 refusing to quash indictments in a Criminal Proceeding No 222 of 2013 between the State and the Applicant.

Brief Facts

2. The uncontested facts are; the Applicant was initially charged with one count of wilful murder of one Louis Matamon and two counts of attempted murder of Elma Tigi and Boby Brit under Section 299(1) and Section 304 of the Criminal Code respectively. On 17th May, 2013 the District Court struck out the charges for "want of sufficiency of evidence". He was, accordingly, discharged and released from custody.

3. On 24th March, 2014 in the exercise of his powers under Section 526 of the Criminal Code, the Public Prosecutor presented two ex-officio indictments against the Applicant; one charging him with one count of wilful murder and the other with five counts of attempted murder under Section 299(1) and Section 304 of the Criminal Code respectively. On 14th May, 2015 the Applicant applied through his counsel to quash the indictments or what is commonly referred to in criminal proceedings as a "demurrer" under Section 567 of the Criminal Code. On 28th May, 2015 the National Court refused the application.

Principles of Leave

4. At the outset, let me address the submission of counsel for the Respondent that the application is an abuse of process because it has been made before the criminal process in the National Court has finished. This submission is based on the Supreme Court decision in Eremas Wartoto v. The State (2015) SC1411. See also my dissenting judgment in Eremas Wartoto v. The State (2013) SC1298.

5. The general proposition is that the Court should not easily and readily intervene early in the criminal justice process. This principle has been extended to quasi judicial investigations such as Ombudsman Commission investigation and referral: see Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and Grand Chief Sir Michael Thomas Somare v. Chronox Manek & Ombudsman Commission (2011) SC1118.

6. The proposition, in my view, raises a competency issue, which counsel for the Applicant has submitted should be raised upon adequate notice given to the Applicant. That was not done and it comes as a surprise. I agree. I consider that this issue was not fully argued by counsel, particularly, the Applicant's counsel within the context of a demurrer under Section 567 (supra) and it is not necessary for me to express a view on it. I prefer to leave it for another occasion.

7. Accepting that it is open to the Applicant to seek review on the subject decision, this case falls within the third category of cases where leave for judicial review is sought under Section 155(2)(b) of the Constitution. This is where there is no other way of going to the Supreme Court except by way of a review: Re: Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433. For the first and second categories of cases, see Avia Aihi v. The State (No. 2) [1982] PNGLR 44 and Application by Anderson Agiru (2003) SC704. But for now based on the Central Banking case, the criteria or tests to be met by an Applicant seeking leave are:

7.1. There is an important point of law to be determined; and

7.2. It is not without merit.

Proposed Grounds of Review

8. The Applicant relies on three grounds which his counsel submits raise important points of law which justify grant of leave. They are:

8.1. The District Court did not refuse to commit the Applicant to the National Court but struck out the charges for "want of sufficiency of evidence". The primary judge misconstrued the striking out of the charges for lack of evidence as being refusal to commit the Applicant to the National Court under Section 526 of the Criminal Code.

8.2. Section 526 of the Criminal Code authorises the Public Prosecutor or a State Prosecutor to present one ex-officio indictment against the Applicant after the District Court struck out the charges against him. The Public Prosecutor, instead, presented two ex-officio indictments against the Applicant. The primary judge misapplied the application of Section 526 when he held that it was open to the Public Prosecutor to present multiple ex-officio indictments.

8.3. The primary judge did not give reasons for refusing the application to quash the ex-officio indictments.

Consideration of Submissions

9. I have heard counsel for each party on the application and also have considered the Respondent's in-depth written submission in relation to the relevant principles and their application to the case at hand and I thank counsel for their invaluable assistance. I propose not to repeat the submissions here save to refer to them in my consideration of the issues raised in this case.

10. The competing arguments come down to firstly, whether the Public Prosecutor has power to present ex officio indictments after the District Court had struck the charges out for "want of sufficiency of evidence" and secondly, power to present two ex-officio indictments. I will address the issue of lack of reasons separately.

Want of Sufficiency of Evidence/Refusal to Commit

11. It is beyond argument that Public Prosecutor, in the discharge of his powers, has discretion to present an ex-officio indictment under Section 526 of the Criminal Code. Section 526 states:

"526. Indictment without committal.

(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may —

(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and

(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.

(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer —

(a) copies of the depositions taken at the committal proceedings; and

(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,

within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence." (Emphasis added).

12. The submission by counsel for the Applicant that there is no order by the District Court refusing to commit the Applicant to the National Court consistent with the expressed terms of Section 526(1) (supra) can be put to rest by reference to Section 95 of the District Courts Act. It states:

"95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(2) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division."(Emphasis added).

13. Section 95 deals with proceedings in the District Court where the Court is tasked to determine whether a prima facie case is established to "put" a Defendant on trial in the National Court. The Court's primary task is to consider the evidence offered by the prosecution and decide whether it is sufficient to put the Defendant on trial. If the evidence is not sufficient, it is obliged, by law, to order the Defendant to be discharged. It is important to note here that the Court's task is to determine the sufficiency of the evidence.

14. The question of sufficiency of evidence reappears in Section 100 of the District Courts Act when the Court is considering the question of discharge or committal of a Defendant. Section 100 states:

"100. Discharge or committal of defendant.

(1) When an examination under this Division is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.

(2) If, in the opinion of the Court, the evidence is not sufficient to put the defendant on trial, it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) Where —

(a) in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or

(b) the Court commits the defendant for trial under Section 94B(1) —

the Court shall —

(c) by warrant commit the defendant to a corrective institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or

(d) admit him to bail in accordance with Division 2."

15. Section 100 reinforces the position that the Court must be satisfied that evidence is sufficient to put the Defendant on trial in the National Court. The converse of that is, if evidence is insufficient, the Defendant must be discharged. This, in my view, is another way of saying the Court has refused to commit the Defendant for trial in the National Court.

16. This is exactly what the Supreme Court comprising of Kapi CJ, Cannings J and David J held in Application by Herman Joseph Leahy (2006) SC855. Mr Herman Leahy presented the same argument as the Applicant in this case. He argued that the District Court's decision was couched in the following terms:

• there was 'insufficient evidence' against him;
• he 'should not be committed';
• he was 'discharged'; and
• the information against him was 'dismissed'.
  

17. The Supreme Court rejected Mr Leahy's argument. It held that Mr Leahy focussed on the form of the District Court decision rather than its substance. It was the substance that was much more important. In substance there was a refusal to commit. The District Court formed the opinion that the evidence was not sufficient to put Mr Leahy on trial. By recording its decision in those words the District Court was being faithful to the wording of Section 100(2) of the District Courts Act. The Act does not provide for such a decision to be recorded as a refusal to commit. It then concluded that there was a refusal to commit for the purpose of Section 526(1) (supra).

18. The Supreme Court decision puts it beyond doubt that there can be no argument about the discretion of the Public Prosecutor under Section 526 (supra) and the exercise of his discretion to present the ex-officio indictments against the Applicant after the District Court refused to commit the Applicant to stand trial on the National Court. I am not satisfied this ground raises an important point of law.

Plurality of Charges

19. In respect to the second ground, the submission by counsel for the Applicant that the Public Prosecutor does not have discretion to present more than one ex-officio indictment raises the issue of plurality of charges. More importantly, whether the issue is an important point of law and is not without merit.

20. There is no question that Section 526 (supra) uses the word "indictment" and not "indictments" or "more than one indictment". But it also does not state that the Public Prosecutor shall not present more than one indictment. In my view, to give a restrictive interpretation of Section 526 as contended by counsel for the Applicant would seriously undermine and interfere with the independence of the Public Prosecutor and ultimately, grave injustice will result: see Section 176 of the Constitution.

21. As to the Public Prosecutor's powers to prefer charge or charges, I consider what the National Court said in The State v. Michael Nama (1999) N1884 equally applicable here. With respect, the Court said:

"......... in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor here or Crown Prosecutor elsewhere, he is not subject to any direction or control. He has a very wide discretion on what charge or charges to proceed with and what charges he discontinues. Committal Court's ruling do not restrict the powers of the Public Prosecutor which originates from the Constitution. It has been the practice and continues to be so that following committal the accused is indicted with the offence that the evidence in the depositions support - see s. 525 of the Criminal Code or the one negotiated and obtained for purposes of guilty pleas ..............' The original charges do not determine the eventual charge in the indictment."

22. The power to lay an indictment is an absolute one; it is for the Prosecutor to choose the charge provided the charge is disclosed in the evidence tendered at the committal proceedings: see Section 4(1)(c) of the Public Prosecutor (Office and Functions) Act, Ch 338 and The State v. Nelson N. Ngasele (2003) SC731 and The State v. Cain Wosae (2010) N3996 to name of few for this proposition.

23. Irrespective, the prosecution is only permitted to present one indictment. Where two indictments are presented at the same time, the prosecution should elect which indictment it will proceed with before arraignment. I refer to The State v. Robin Panu (2010) N4087 and The State v. Jeffrey Ava (2010) N4161; cf The State v. Tolly Saun and Standley Saun (2011) N4390.

24. The Public Prosecutor has simply followed the law in presenting two indictments. He will elect which indictment he will proceed with before arraignment. Grave injustice will result if the Public Prosecutor is not authorised to present multiple ex officio indictments in a case where facts give rise to multiple charges or offences. Section 531 of the Criminal Code permits the prosecution to join charges in one indictment and where necessary, to separate the charges in separate indictments. This Section does not authorise the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence, eg, rape. In such a case, it would be necessary for the Public Prosecutor to prefer two ex officio indictments.

25. In Charles Bougapa Ombusu v. The State [1996] PNGLR 335, the Supreme Court held that it is not permissible to join a charge of rape with wilful murder, murder or manslaughter in the same indictment. The earlier case of The State v. Elias Subang (No. 1) [1976] PNGLR 141 held that the reference to "any other offence" in Section 531(4) means any offence other than wilful murder, murder or manslaughter. It is therefore, acceptable to join two or more counts of wilful murder, murder or manslaughter in the same indictment.

26. In short, the law does not allow the attempted murder charges against the Applicant to be on the same indictment as the wilful murder charge. I am satisfied that the Public Prosecutor has simply followed the law in presenting two indictments. In other words, the presentation of two ex officio indictments was within his discretion. Further, this lawful requirement of requiring separate indictments is actually in aid of securing a fair trial for an accused as the Applicant. This ground does not raise an important point of law.

Lack of Reasons

27. As to the third ground, lack of reasons, I agree with the submission of counsel for the Respondent that it is not pleaded as a ground of review. If it is not pleaded, it is not open to the Applicant to rely on it. On this basis alone, the issue of lack of reasons does not arise.

28. In any case, it would be inconceivable that the National Court would refuse such an important application in a criminal proceeding without offering any reasons. There is no dispute that the primary judge gave an ex tempore judgment. If the Applicant asserts that the primary judge gave no reasons for his decision, the onus is on him to place before this Court a copy of the transcript of the ex tempore judgment to assist the Court verify the assertion. He has not done that and in the absence of the transcript, I am not prepared to speculate what transpired in the National Court. Accordingly, I am not satisfied that the Applicant has shown to the required standard of proof that an important point of law is established.

Conclusion

29. I am not satisfied the Applicant has made out a case for grant of leave.

Order

30. The orders of the Court are:

1. The application for leave to review is refused.

2. The Applicant shall pay the costs of the proceeding, to be taxed, if not agreed.

_______________________________________________________________
Soi & Associates Lawyers: Lawyers for the Applicant
Acting Solicitor-General: Lawyers for the Respondent