Smedley v The State [1980] PNGLR 379 (31 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 379 - Arthur Gilbert Smedley v The State 

[1980] PNGLR 379

SC182

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ARTHUR GILBERT SMEDLEY

V

THE STATE

Waigani

Kearney DCJ Wilson Pratt JJ

30 April 1980

1-2 May 1980

13 June 1980

31 October 1980

CRIMINAL LAW - Practice and Procedure - Indictments - Plurality of - Refusal to commit by magistrate after committal proceedings - Indictment presented by Public Prosecutor - Nolle prosequi entered - Second indictment presented by Public Prosecutor - Plurality of indictments not permitted - Criminal Code ss. 537[dcxliv]¹, 538[dcxlv]², 628[dcxlvi]³.

CRIMINAL LAW - Appeal - Appeal against conviction and sentence - Notice of appeal - Whether notice of appeal an application for leave to appeal - Time for objecting to competency of application for leave to appeal - Supreme Court Act 1975, ss. 21, 27 - Supreme Court Rules 1977 rules 15, 19, 20, 21 and 23.

(Kearney J. dissenting) Section 538 of the Criminal Code, which empowers the Public Prosecutor to present an indictment on a charge “for any offence that the evidence appears to warrant”, where a magistrate has refused to commit a person for trial for an indictable offence, does not permit of a plurality of indictments.

Accordingly, where a magistrate has refused to commit a person for trial for an indictable offence, and the Public Prosecutor has reduced into writing an indictment pursuant to s. 538 of the Code and a nolle prosequi has been entered pursuant to s. 539 of the Code a second indictment cannot be presented pursuant to s. 538:

(Per Wilson J.) after a nolle prosequi has been entered, the Public Prosecutor may seek leave to present a new ex officio indictment or information pursuant to s. 628 of the Code.

(Per Pratt J.) Quaere, whether s. 628 of the Code is available to the Public Prosecutor.

(Per Kearney Dep. C.J. and Pratt J.) The term “ex officio” indictment should no longer be used in Papua New Guinea.

(Per Wilson J.) Where a notice of appeal is given in criminal proceedings, and where no application for leave to appeal is made or granted, it is not open to the appellant to appeal against his conviction on any ground of appeal which involves a question of fact alone or to appeal against the severity of sentence.

Porewa Wani v. The State [1979] P.N.G.L.R. 593 followed.

(Per Wilson J.) An objection to the competency of an application for leave to appeal which is out of time, may be raised at any time.

Appeal

This was an appeal against conviction and sentence in which the notice of appeal set out various grounds of appeal including the ground that the indictment filed against the appellant by the Secretary of Law was ultra vires. No leave to appeal on any of the grounds of fact or mixed fact and law was sought.

Counsel

A. Amet and R. O’Regan, for the appellant.

B. J. Cassels and W. J. Karczewski, for the State.

Cur. adv. vult.

31 October 1980

KEARNEY DCJ: On 13th June the Court by majority upheld this appeal and quashed the conviction, for the reasons now published.

The appellant was the Government officer-in-charge at Rabaraba, from 1976 to 1978.

Shortly after he left the posting some twenty-four charges of stealing were laid against him. At committal proceedings in August 1978 these were withdrawn and three charges were laid of falsifying Government general expenses forms, (called TF4s), used to pay money to persons who rendered services to the Government.

At the end of the prosecution case, the magistrate found there was a prima facie case on these three charges, and the appellant reserved his defence. It is not clear, but the magistrate may have thought that the question he had then to decide, was whether he considered that the appellant would be convicted at his trial. At the conclusion of committal proceedings, if a magistrate has no more than a reasonable doubt whether the evidence is “sufficient”, for the purposes of s. 107(3) of the District Courts Act, he must commit. He is concerned with whether a defendant could reasonably be convicted.

In any event, the magistrate decided he should not commit. The later history of the proceedings is detailed by Wilson J. and Pratt J., whose opinions I have had the benefit of reading.

Ultimately, the appellant stood his trial over fourteen days on two charges, under ss. 430 (b) and 91 of the Criminal Code, involving a single TF4. This document purported to record that one Aidan Gariadi had worked on a toilet and shower block at Dogura Hospital in July 1977, for which he claimed, and was paid, K500. It purported to be signed both by the appellant and Gariadi. It was common ground at the trial that the work in question had not been done. His Honour found that Gariadi had not signed the TF4 and had not received payment. The appellant conceded that he had signed the TF4, but contended that it could not fairly he said that he had made a false entry; and that there was no evidence he had an intent to defraud (see s. 430(b)), or knowledge of falsity (see s. 91).

The appellant was convicted on both counts. He was sentenced to terms of twenty-one months and twelve months’ imprisonment, to be served concurrently.

At the commencement of this appeal the State took an objection to competency, on the basis that the notice of appeal did not amount to an application for leave to appeal which was required if certain grounds involving questions of pure fact, and severity of sentence, were to be argued. Further, that r. 20 of the Supreme Court Rules 1977 had not been complied with.

Wilson J. had dealt with this contention, at length. I have the misfortune to differ, but I will be brief.

The appellant’s trial lawyers prepared this notice of appeal on the day he was convicted, 10th November, 1978. They then ceased to act for him, except for making a bail application eleven days later. He was without any legal aid for many months. The notice of appeal is deficient, in elementary ways.

The only reference to the question of leave is in par. 6(a); there is no express application for leave. The respondent contends that the document’s deficiencies are such that the rule applied in Porewa Wani v. The State[dcxlvii]⁴ governs the matter here. However, in that case, where the question arose when the appellant sought to contend that the sentence was excessive, there was no reference at all to that in the document, or to an appeal on that basis. In the present appeal, the matters in pars 6(b) and 6(d), and the three reasons in the fourth ground of appeal, must be considered. To my mind, these differences render the cases distinguishable on this point; I think there is sufficient in this document to warrant a conclusion that leave is necessarily being sought.

It is clear that the draftsman completely overlooked r. 20. However, particulars were apparently supplied in April, and in the circumstances of this case I do not think that non-compliance with the rule should bar the grant of leave.

The appellant had relied on Evertz v. The State [dcxlviii]⁵, which has some similarities. There, the appellant was in person, with a notice of appeal which may well have been drafted by the same draftsman. The question of competency was raised by the court. The appellant did not argue his written grounds of appeal. The court dealt with what he had to say, on its merits. It was a wholly exceptional case, and should be treated as such.

All of these cases involve the construction of differing documents; it is a wilderness of single instances. One fact relevant both in Evertz and this appeal is that during the statutory period, both appellants were unrepresented, and in custody; the Rules are not geared, in practice, to such persons.

I would grant leave to appeal to the extent necessary to enable the ground as laid, to be argued.

It is unnecessary for me to deal with the appellant’s counter-point under s. 23 of the Supreme Court Act.

I turn to the substantive grounds of appeal, as argued.

Mr. O’Regan dealt first with the ground that the indictment of 18th October was ultra vires. The matter is dealt with at length in the opinions of Wilson and Pratt JJ, with whose conclusions I have the misfortune to differ.

Mr. O’Regan first argued that the power to indict under s. 538 of the Criminal Code did not extend to committing an abuse of the process of the court, and that the presenting of the indictment of 18th October amounted to such an abuse.

One ground appeared to be the difference in the charges laid, as between the indictment of 1st September and the indictment of 18th October. However, I see no abuse in that; the charges, as tried, were very similar.

Another ground was that the procedure defeated the protection afforded the accused by the amending power in s. 547 of the Code. I agree that that may be so, but I do not consider there was any abuse of power in that sense, in the circumstances of this case.

Mr. O’Regan’s main argument was that s. 538 of the Code did not permit on its proper construction, a plurality of indictments. The argument appears to extend to s. 537. (I think that these two provisions exclusively delimit the Public Prosecutor’s power to indict.) Once the Public Prosecutor has exercised the power to indict, he is functus officio. Mr. O’Regan appeared to rely on what I might call a functional interpretation of s. 538 of the Code, while conceding that there was inherent power in the court to prevent abuse.

I am unable to interpret s. 538 or s. 537 in that way. Section 538 of the Code was the major reform, as I recall, in the 1974 Code, enshrining in the law the important principle that no man should be brought to trial unless there have first been committal proceedings. It reduced substantially the former power of the Public Prosecutor to indict; he can no longer by-pass the committal process, and take a case directly to court. I agree with Pratt J. that the term “ex officio” indictment has no meaning in Papua New Guinea; the power to indict is purely statutory, and does not inhere in the office in any way. It is thus a power subject to the legislative power of the Parliament, under the Constitution, and also subject to control by the court. See the review by Fox J. in R. v. Kent; Ex parte McIntosh [dcxlix]⁶, of the practice and procedure on ex officio informations, by the Attorney-General. As the Courts have made clear — see The State v. Peter Painke (No. 2)[dcl]⁷ — they will protect the rights of the accused from abuse. I see no reason why the Public Prosecutor should be restricted, as suggested; the words of the section do not compel it; and, I think, the practical requirements for the administration of justice in this country point to the hitherto-accepted interpretation being maintained.

I turn to grounds 1 and 2. Mr. O’Regan argued that the evidence was insufficient to establish to the proper standard that the appellant signed the form with the necessary intent. He relied upon such matters as evidence of the appellant’s practice of signing in blank, or without reading the contents of such forms. There were a large number of similar forms in evidence, on the basis of similar fact. His Honour relied upon other matters in evidence, in disbelieving the appellant, and concluding that the form was filled in when he signed, and that he knew what he was doing. I see no reason to doubt his Honour’s conclusion.

Mr. O’Regan dealt at length with the questions of “spivvery”, and the distinction between “spivving for the good of the spiv” and “honest spivving”. He pointed to certain apparent logical inconsistencies in some of the reasoning. However, I see no reason to doubt his Honour’s conclusion that the “spivving” in this case was dishonest. There was the matter of the ante-dated cheque, and the appellant’s unsatisfactory evidence thereon, upon which his Honour relied, very properly if I may say so, to reach his conclusion on intent. His Honour clearly disbelieved the appellant, with good reason; and treated the back-dating as a device to “cover his tracks”, because he was alarmed by the police search. Mr. O’Regan argued that it would rather “signpost his tracks”, but that ex post facto rationalization does not get to the root of the matter. The fact that the cheque was for K2500 was fully explicable, on the evidence of the other TF4s which were involved; the dishonesty was careful enough.

There was a serious failure in the trial on the part of the Government to produce, or explain the absence of, a large number of documents which had been subpoenaed. Mr. O’Regan argued that this failure resulted in the conviction being unsafe. His Honour took a very serious view of it, and gave counsel for the defence the option to have an adjournment, or to have the trial aborted. Counsel elected to proceed. No doubt costs loomed large in the matter. However, in view of the choices given to counsel, and his conscious election, I do not think this unfortunate occurrence founds any legitimate attack on the safety of the conviction. Nor, in the light of what occurred, do I think it ceased to be a fair trial.

As to the severity of the sentence, it suffices to say that I consider it was excessive, and that the appellant should be discharged immediately.

For these reasons, I considered that leave to appeal should be granted; the appeal against conviction dismissed and the convictions affirmed; and the sentence reduced to the period necessary to enable the appellant to be discharged on 13th June.

WILSON J: This is an appeal instituted by the appellant against his conviction on 10th November, 1978, on two counts, the first being a breach of s. 430(b) of the Criminal Code Act 1974 and the second being a breach of s. 91 of the said Code. The two crimes in question are known respectively as “fraudulent false accounting” and “making a false claim by an official”. In the case of the first of the two crimes of which the appellant was convicted, it was the State’s case that the appellant between 1st October and 31st October, 1977, being employed as a servant of the Public Service of Papua New Guinea, made a false entry on a document which belonged to the State of Papua New Guinea, namely a general expenses form, consecutive number 349, with intent then to defraud. In the case of the second of the two crimes, it was the State’s case that the appellant between the 1st October, and 31st October, 1977, being employed in the Public Service of Papua New Guinea in such capacity as to enable him to furnish statements touching remuneration payable to other persons, made a statement touching on remuneration payable to one Aidan Gariadi which the appellant knew to be false in a material particular. The appellant was sentenced to a term of imprisonment on each count, a term of one year and nine months on the first count and a term of twelve months on the second, both sentences to be served concurrently.

The responsibility for the delay in the appellant’s appeal being heard does not rest with this Court. As the court record shows, the delay was due to difficulties the appellant had in arranging to obtain the legal assistance which he undoubtedly needed. He was represented at his trial and for the purpose of instituting this appeal, as well as for the purpose of making an application for bail pending the hearing of this appeal; that application was unsuccessful. A copy of the transcript was available to his legal advisers at the time when the appeal was instituted. From 21st November, 1978, onwards, the appellant was unrepresented for a long period of time; during that time he could have had his appeal heard with him appearing in person, if he had chosen to prosecute his appeal himself; but, of course, this would have been a particularly difficult task for him, as a layman, to perform. After an unsuccessful application to the Public Solicitor for legal aid and then the intervention on his behalf by the Attorney-General’s Department in Canberra, he was ultimately represented by the counsel who argued this appeal for him and who arranged for the matter to be brought on for hearing at the April 1980 sittings of this Court. It is to be regretted that the circumstances were such that the appellant’s appeal against conviction was heard at a time when he had served nearly eighteen months of a total sentence of twenty-one months.

A preliminary procedural question was raised at the commencement of the hearing of this appeal and we heard argument on that aspect first. Mr. Cassells, for the respondent, submitted that, a notice of appeal having been given an application for leave to appeal neither having been made nor granted, it was not open to the appellant to appeal against his conviction on any ground of appeal which involved a question of fact alone or to appeal against the severity of sentence. Mr. Cassells relied upon the provisions of sub-ss. (c) and (d) of s. 21 of the Supreme Court Act 1975, which deal respectively with criminal appeals against conviction where leave of the Supreme Court or a certificate of the trial judge is required and with appeals against sentence, and s. 27 of the said Act, which requires, inter alia, a notice of application for leave to appeal to be given in the manner prescribed by the Rules of Court within forty days after the date of conviction.

I cannot construe the document set out on pp. 248 and 249 of the appeal books as being anything more than a notice of appeal. There is no room for any other interpretation. That document is in the following terms:

“IN THE SUPREME COURT OF PAPUA NEW GUINEA

Appeal No. 34 of 1978

ARTHUR GILBERT SMEDLEY

Appellant

and

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

ARTHUR GILBERT SMEDLEY hereby gives notice of appeal to the Supreme Court against the conviction and sentence imposed upon him on the grounds hereafter stated:

PARTICULARS OF JUDGEMENT AND SENTENCE

1.       Name of Appellant: Arthur Gilbert Smedley

2.       Appellant convicted at the National Court at: Port Moresby

3.       Offences for which Appellant was convicted: That between 1st October to 31st October, 1977 being employed as a servant of the Public Service of Papua New Guinea made a false entry on a document which belonged to the State of Papua New Guinea, namely a General Expenses form, consecutive number 349 with intent thereby then to defraud.

AND ALSO that between 1st October to 31st October 1977 being employed in the Public Service of Papua New Guinea in such a capacity as to enable him to furnish statements touching remuneration payable to other persons, made a statement touching on remuneration payable to one AIDAN GARIADI which the said ARTHUR GILBERT SMEDLEY knew to be false in a material particular.

4.       Sentence Imposed by Trial Judge: One year + nine months and twelve months to be served concurrently.

5.       Date when convicted: 10th November, 1978

6.       Date when sentenced: 10th November, 1978

PARTICULARS PURSUANT TO RULE 18 OF THE SUPREME COURT RULES 1977

(a)      The Appeal lies in part without leave and in part with leave under Section 21 of the Supreme Court Act 1975.

(b)      The Appeal relates to the whole of the Judgement Appealed from in that the Appellant appeals against his conviction on a question of fact and law and on questions of fact alone.

(c)      The Appellant seeks an Order that the Appeal be upheld and the conviction set aside.

(d)      In the alternative the Appellant seeks an Order that the sentence be quashed and a less sentence be substituted therefore.

GROUNDS OF APPEAL

1.       That the conviction in all the circumstances of the case is unsafe, ill-founded, and contrary to the evidence and law.

2.       That the conviction is against the evidence in general and the weight of evidence and that the Learned Trial Judge failed to place any or any sufficient weight on the evidence.

3.       That the Indictment filed against the Appellant by the Secretary of Law was ultra vires.

4.       That the sentence was and is in the circumstances manifestly excessive in that there was no gain received or had by the Appellant; the Appellant had no prior convictions and the sentence imposed was in excess of the range of sentences normally imposed on the foregoing circumstances by the National Court of Justice for the offences.

DATED this 10th day of November, One thousand nine hundred and seventy-eight.

McCUBBERY TRAIN LOVE & THOMAS

Solicitors for the Appellant

It is intended to serve this NOTICE upon the STATE SOLICITOR of PAPUA NEW GUINEA the abovenamed Respondent.

The address for service of the Appellant is care of Messrs. McCubbery Train Love & Thomas, Harvey Trinder Building, Hunter Street, Post Office Box 35, Port Moresby.”

The backsheet to that document describes it as “Notice of Appeal”. The document itself does not purport to give notice of application for leave to appeal. Particulars pursuant to r. 18 of the Supreme Court Rules 1977 (albeit defectively insofar as r. 18(2)(a) is concerned) are given; rules 18 and 19, it is to be noted, specifically deal with appeals. Particulars pursuant to r. 20 are not given; rules 20 and 21, it is to be noted, specifically deal with applications for leave to appeal. I am not persuaded either that r. 20 has been substantially complied with, as Mr. Amet argued, or that the notice of appeal itself sufficiently incorporates a notice of application for leave to appeal, as Mr. O’Regan argued. The reference in par. (a) of the particulars pursuant to r. 18 to the fact that this appeal, like any appeal involving more than questions of law or questions of mixed fact and law, lies “in part without leave and in part with leave under s. 21 of the Supreme Court Act 1975”, is no more than a statement of the legal position and does not convert what purports to be only a notice of appeal into a notice of appeal and notice of application for leave to appeal.

Insofar as my conclusion as to the incompetency of this appeal relates to ground 4 (that is the appeal against sentence), I consider that this Court should follow the recent decision of this Court in Porewa Wani v. The State. In this judgment of the court, it was stated[dcli]⁸:

“A person convicted by a Judge of the National Court may not appeal to the Supreme Court against the sentence passed on his conviction unless he has the leave of the Supreme Court (see s. 21(d) of the Supreme Court Act 1975).

Under s. 27(1) of the Act, where a person convicted desires to obtain leave to appeal to the Supreme Court, he shall give notice of his application for leave to appeal in the manner prescribed by the Rules of Court within 40 days after the date of conviction ...

... The notice of appeal dated 22nd May, 1979 is not (nor does it purport to be) a notice of application for leave to appeal. The notice of appeal ... does not recite that the appellant ‘gives notice of application for leave to appeal’. Grounds of appeal are stated; no grounds upon which the appellant relies in seeking the Court’s leave are stated. For these reasons, we ruled that it was not open to the appellant in these circumstances to appeal against the severity of sentence and, accordingly, we heard no argument directed to the question of penalty.”

The appellant relied upon another recent decision of this Court in Evertz v. The State [dclii]⁹. However, in that case, which involved an unrepresented appellant, there was apparently no detailed consideration by the members of the court of the problem which has arisen in this case and which has been the subject of full argument on both sides. Insofar as the Evertz case may assist the appellant as being an example of a notice of appeal which was treated in practice as a notice of application for leave to appeal, it is, as far as it goes, a precedent unsupported by reasons, it is distinguishable on the facts (Evertz was unrepresented), and, in any event, it is a decision which in due course will, in my respectful opinion, need reconsideration by this Court in the light of Porewa Wani v. The State[dcliii]¹⁰ and in the context of notices of application for leave to appeal. I, for my part, think that the Evertz case, insofar as it has any application to a case such as the present, should not be followed by this Court.

Mr. Amet argued that it was too late for the respondent to object to the competency of the appellant’s purported application for leave to appeal, and he relied on r. 23 which provides:

“23     OBJECTION TO COMPETENCY OF APPEAL

(1)      A respondent who objects to the competency of an appeal, or of an application for leave to appeal, shall, within 14 days immediately after service upon him of the Notice of Appeal or notice of application for leave to appeal, as the case may be, file in the registry a notice stating briefly but specifically the grounds of his objection and serve on the appellant a copy of that notice of objection.

(2)      Any party may file affidavits.

(3)      An objection of which notice has been given shall be determined by the court at or before the hearing of the appeal, or of the application for leave to appeal, as the case may be, as the court thinks proper.

(4)      If notice of objection is not given and the appeal or notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court, upon special grounds, orders otherwise.”

Whether r. 23(1) is mandatory or merely regulatory, a respondent is not debarred from objecting to the competency of an application for leave to appeal out of time, because questions of competency, like questions of jurisdiction, may be raised at any time. The sanction for a respondent who objects to the competency of an application for leave to appeal out of time, such as the respondent in this case, is to be found in r. 23(4) under which the respondent may in certain circumstances be deprived of his costs.

Mr. O’Regan referred us to s. 158(2) of the Constitution which provides:

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

There are no circumstances here which justify the application of that subsection in this case in favour of the appellant. It might have been otherwise if the words of the Supreme Court Act and the Rules of Court, which we are concerned with in this appeal, were unclear or admitted of more than one interpretation.

I do not accept the submission of Mr. O’Regan to the effect that a conclusion adverse to his client in relation to the preliminary procedural question involves a literalistic interpretation of the Act and Rules.

Accordingly, in my judgment, it is not open to the appellant to appeal against the severity of sentence (see ground 4 of the notice of appeal) or against his conviction on any ground of appeal which involves a question of fact alone.

In view of the importance of the argument presented to this Court in relation to ground 3 and the conclusion I have reached in relation thereto, it is unnecessary for me to decide whether grounds 1 and 2 involve questions of law alone or questions of mixed fact and law and, if they involve either, to deal with the arguments presented in relation to those grounds. It is also unnecessary for me to set out the facts which gave rise to this prosecution.

Ground 3 is in the following terms:

“3.      That the indictment filed against the appellant by the Secretary of Law (sic) was ultra vires.”

It was agreed during the hearing of this appeal that, in lieu of the words “Secretary of Law”, the words “Public Prosecutor” should appear, and, for the purposes of this judgment, I proceed to consider the argument upon the assumption that an amendment to ground 3 has been made accordingly.

The relevant chronological history of this trial would appear to be as follows:

On 19th April, 1978, the appellant was arrested and charged with twenty-four offences of “stealing government funds”. At the commencement of the committal hearing on 21st August, 1978, it was announced by the prosecutor that none of those charges would be proceeded with but that three charges of “fraudulent false accounting” (s. 430(a) of the Code) would be proceeded with. At the conclusion of the committal hearing on 24th August, 1978, the magistrate refused to commit the appellant for trial for those or any other indictable offences. The Public Prosecutor thereupon reduced into writing in an indictment dated 1st September, 1978 (hereinafter referred to as “the first indictment”) six charges, three being for offences of “fraudulent false accounting” (s. 430(a)) and three being for offences of “false accounting by a public officer” (s. 431). The first indictment was presented to the National Court on 4th September, 1978. The Public Prosecutor subsequently reduced into writing in an indictment dated 18th October, 1978, (hereinafter referred to as “the second indictment”) six charges, three being for offences of “fraudulent false accounting” (s. 430(b)) and three being for offences of “making a false claim by an official” (s. 91). On 23rd October, 1978, the first day of the appellant’s trial, the State Prosecutor entered a nolle prosequi; he presented to the court a document under his hand stating that the first indictment then pending in the court would not be further proceeded with. The appellant was thereupon discharged forthwith from any further proceedings on the first indictment to which the nolle prosequi related.

Also on 23rd October, 1978, the second indictment was presented to the National Court. Shortly thereafter the State Prosecutor gave an undertaking that he would enter a nolle prosequi in relation to the first four charges contained in the second indictment, and he subsequently entered such a nolle prosequi; he presented to the court a document under his hand stating that the State would not proceed further against the appellant upon the second indictment in relation to the first four charges contained therein. The appellant was thereupon discharged forthwith from any further proceedings in relation to each of the first four charges contained in the second indictment.

The trial subsequently proceeded in relation to the fifth and sixth charges contained in the second indictment, that is, the fifth alleging an offence of “fraudulent false accounting” (s. 430(b)) and the sixth alleging an offence of “making a false claim by an official” (s. 91). It is to be noted that no leave had been obtained to present the second indictment which was presented on 23rd October, 1978. An application for the second indictment to be quashed made on the first day of the trial, albeit on a basis slightly different from the one relied upon on the hearing of this appeal, was refused.

I desire to make it clear that I fully appreciate the efforts of the trial judge to secure that a proper trial should take place. I have no doubt at all that he did his utmost to rule upon the matters that were raised before him. The point which, in my view, is conclusive of the outcome of this appeal was not raised before him. Unfortunately, it now appears from what emerged during the hearing of this appeal that a proper trial did not take place. The position was that, following the entering of a nolle prosequi, the appellant had been discharged from any further proceedings on the first indictment that had been presented after the magistrate had refused to commit the appellant for trial on any indictable offences, and the second indictment was then presented.

There are statutory provisions pursuant to which indictments may be presented to the National Court. The statutory provisions are contained in Chapters LVIII — “Indictments” and LXVII — “Information by Private Persons for Indictable Offences: Ex Officio Indictments” of the Criminal Code. The relevant provisions for present purposes are contained in s. 536(1), s. 538, s. 547 and s. 628.

Section 536(1) provides:

“536(1)         No indictment may be presented in the Supreme Court except in accordance with the provisions of Sections 537 and 538.”

Section 538 provides:

“538(1)         Where a Magistrate has refused to commit a person for trial. for an indictable offence, the Public Prosecutor may consider the evidence contained in the depositions taken before the Magistrate (and any other relevant evidence) and may reduce into writing in an indictment a charge for any offence that the evidence appears to warrant.

(2)      The indictment may be presented to the Supreme 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 upon the accused person or his counsel copies of the depositions taken at the committal proceedings, and 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.”

Section 547 provides:

“547.   If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms, if any, as to postponing the trial, as the court may think reasonable.

The indictment is thereupon to be amended in accordance with the order of the court.

When an indictment has been amended, the trial is to proceed, at the appointed time, upon the amended indictment, and the same consequences ensue, in all respects and as to all persons, as if the indictment had been originally in its amended form.

If it becomes necessary to draw up a formal record in any case in which an amendment has been made, the record is to be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.”

Section 628 provides:

“628.   Any person may by leave of the Supreme Court present an information against any other person for any indictable offence not punishable with death, alleged to have been committed by such other person.

An information presented by leave of the court is to be signed by the person on whose application the leave is granted, or some other person appointed by the court in that behalf, and filed in the Supreme Court.

The person who signs the information is called the prosecutor.

The information is to be intituled ‘The State on the prosecution of the prosecutor (naming him) against the accused person (naming him)’, and must state that the prosecutor informs the court by leave of the court.

Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by the Public Prosecutor and the proceedings upon such an indictment as hereinbefore set forth.”

(I have omitted to set out the headings to each of these sections because, by virtue of s. 26(3) of the Interpretation (Interim Provisions) Act 1975, such headings are to be disregarded for statutory interpretation purposes, and, because, the headings to the second and fourth of the four provisions just quoted are, in any event, misleading or inaccurate.)

The argument for the appellant in relation to ground 3 was put in a number of ways and, as the hearing proceeded, at least one submission was abandoned as others were developed. As I understood Mr. O’Regan, he ultimately placed most reliance upon a submission to the effect that s. 538 does not permit a plurality of indictments. Mr. O’Regan argued that, having once exercised the relevant power (that is, when the first indictment was prepared and presented), the Public Prosecutor was functus officio. For the purpose of the present case the argument can, I think, best be put in this way, namely, that the Public Prosecutor is not entitled to present indictment after indictment; that, having elected the form of indictment to be put before the trial court on the authority of the committal and the magistrate’s refusal to commit for trial (pursuant to s. 538), if it is decided to enter a nolle prosequi (pursuant to s. 539) as a result of which the person named therein is discharged forthwith from any proceedings on the indictment to which it relates, the only course open to the Public Prosecutor is to obtain leave to present a new ex officio indictment or information (pursuant to s. 628).

The argument for the respondent in relation to ground 3 was that s. 538 must be read in a plural sense, that the power given to the prosecuting authorities extends to the presenting of one or more indictments, and that there is no limitation or restriction on the powers of the Public Prosecutor to present more than one indictment.

My decision in this appeal depends on the acceptance of the principle that the State can, as of right, present one indictment (and one indictment only) as a result of one committal. In arriving at this conclusion I have had regard to the intention of the legislature as appears from a reading of s. 536(1) and s. 538; it would be contrary to that intention to construe the word “indictment” in the singular in s. 538 to include the plural (see s. 6 of the Interpretation (Interim Provisions) Act 1975). In arriving at this conclusion I am persuaded by the decision of the Court of Appeal in England in the case of R. v. Thompson; R. v. Clein [dcliv]¹¹. The Court of Appeal in that case recognized that principle in circumstances in which the applicable statutory enactments were analogous to those in force in Papua New Guinea. In this country the Criminal Code provides for amendment of indictments (see s. 547). If a first indictment is quashed or if, by virtue of the entering of a nolle prosequi, the person named therein is discharged from any further proceedings on the indictment to which it relates or if a first indictment otherwise fails in toto, the Act provides for the presentment “by any person” (the emphasis is mine in order to show that the Public Prosecutor may himself exercise this power) of a subsequent indictment or information by leave of the National Court (see s. 628). Therein lies the remedy for the State if it is desired to pursue the prosecution further. Therein also lies the right of any private person to seek leave to institute criminal proceedings against any other person. The interest of the State in bringing an accused to trial is amply safeguarded.

In the present case the prosecution failed to obtain leave in accordance with s. 628. In fact, the prosecution failed even to seek such leave; it merely relied upon the last two charges contained in the second indictment. The result of the failure to obtain leave is that the trial that took place took place on an invalid indictment. The trial, therefore, was a nullity.

For these reasons I would allow the appeal on ground 3 of the notice of appeal and quash the conviction.

PRATT J: On the 10th November, 1978, the appellant was convicted on two separate charges of what might be broadly termed “false accounting” in respect of a single document and was sentenced to a period of imprisonment. From that conviction and sentence, he has appealed to this Court on four separate grounds. In view of the extremely wide and vague terms used in the notice of appeal, drawn apparently without any pretence at legal draftsmanship, it was not surprising the State argued that three of the four grounds should be struck out on the dual basis of failure to apply for leave and lack of particularity. Though the generality of the wording in the notice of appeal may have allowed certain manoeuverability to counsel who was finally briefed for the appellant, it was of little or no assistance to the court prior to hearing full argument. It was conceded that ground three, namely: “that the indictment filed against the appellant by the Secretary of Law was ultra vires”, was an appeal purely on a question of law and therefore leave was not required. As will appear, it will not be necessary for me to make any determination on the preliminary matters.

Some factual background of the trial taken from the transcript of proceedings and from the submissions made at bar, supported by documentary material appearing in the general court record, will assist in understanding the conclusion which I have reached. At the commencement of the committal proceedings, some twenty-four informations were withdrawn leaving three informations only to be dealt with by the magistrate. At the end of a lengthy committal hearing, the magistrate found that a prima facie case had been made out by the prosecution but he chose to follow certain defence submissions based on the decision of Minogue J. in R. v. Wewak Resident Magistrate; Ex parte Dyer [dclv]¹². Consequently his Worship declined to commit the accused for trial.

On 1st September, 1978, the Public Prosecutor signed an indictment containing six counts in all. Three of those counts were apparently brought under s. 430(a) of the Criminal Code, and covered three treasury forms numbered 1353, 178 and 349. Each of these three counts was accompanied by a complementary count under s. 91 of the Code. This indictment was present before the Chief Justice on 4th September, 1978. I do not know if the accused was aware of the existence of this indictment on that date. The trial proper of the accused commenced on 23rd October, 1978, before the then Deputy Chief Justice, Mr. Justice Raine. Although we do not have the advantage of his Honour’s notebook, it appears clear enough from the transcript of the proceedings that the State had sought to “nolle” the indictment presented on 4th September at the beginning of the hearing on 23rd October, and had presented a further indictment. I quote the following from the transcript of his Honour’s judgment on demurrer:

“Mr. Cochrane has demurred to the ‘ex officio’ indictment presented by the prosecutor, who, shortly before the trial commenced today, informed Mr. Cochrane that he intended to enter a ‘nolle prosequi’ on what I will call the old indictment and present what I will call the new indictment, which, like the old one, contained six counts ... The ‘nolle prosequi’ having been presented, I discharged the accused from all proceedings under the old indictment. The prosecution then indicated that it only intended to proceed on the fifth and sixth counts of the new indictment which it presented. When there is time, a nolle prosequi will be presented as to counts one to four inclusive and we proceed on the basis that this has actually been done and counsel are happy to leave things on this basis as indeed am I.”

I note there is filed with the court papers a nolle prosequi in respect of the “first” indictment presented on 4th September, bearing a date 23rd October, 1978, and the signature “K. B. Egan, Public Prosecutor”.

The indictment referred to as the new indictment by his Honour, also contained six counts involving three treasury forms, but the forms on this occasion were numbered 1353, 175 and 349. Further, it seems that the counts were brought under s. 430(b) of the Code rather than s. 430(a). Once again, in each case there was a complementary count under s. 91. The prosecutor in pursuance of the undertaking which he had given to his Honour the trial judge, has filed a nolle prosequi signed by him and dated 23rd October in respect of the first four counts. At the trial, defence counsel asked that the indictment, that is the second or new indictment of which only two counts then remained, be quashed. A number of submissions in support of such a course were put forward both at the trial and in this Court.

It was common ground at the trial on this appeal that the magistrate had committed under s. 430(a) and that no committal had been made under s. 91 of the Code. It was therefore said that the indictment was “ex officio”, not only on the basis that the magistrate had refused to commit the appellant for trial on anything at all, but also on the basis that there was no material then in existence before the magistrate upon which a committal could have been made under s. 91. It was not contested that the prosecutor, when considering a committal proceeding, is in any way inhibited in deciding what charges he should prefer on the evidence which has been disclosed in the committal proceedings. The real contest revolved around the area of what has been called the prosecutor’s “ex officio powers”. His Honour dealt fully with the defence submissions and pointed out that in Papua New Guinea s. 537 is now quite different from the old s. 561 dealing with “Ex officio Informations” and that a completely new section, 538, has been introduced into the 1974 Code.

On the appeal however, Mr. O’Regan for the appellant cast his net somewhat more narrowly than did trial counsel, but in so doing, essayed a much more direct and concerted attack on the powers and functions of the Public Prosecutor. First, it was contended that in all the circumstances, the trial judge should have exercised his discretion to direct the prosecutor to enter a nolle prosequi because what was being done amounted to an abuse of process. Secondly, it was contended that the Public Prosecutor had no power under the Code to present a second “ex officio” indictment, having exhausted whatever powers were vested in him by signing and presenting an earlier “ex officio” indictment dated 1st September and presented before the Chief Justice on 4th September, and following up that presentation with the filing of a nolle prosequi in respect of that indictment before his Honour, the trial judge, on the morning of 23rd October. To use counsel’s words: “Section 538 ... does not permit a plurality of ex officio indictments ... Having exercised the relevant power ... the Public Prosecutor is then functus.” In brief, he has one bite only at the cherry. I must say at the time of argument, I was not particularly attracted by this submission, as it seemed to place an unnecessary restriction on the powers and functions of the Public Prosecutor. As counsel pointed out however, the tenor of this part of the submission did not depend on any prevention of abuse of process but concerned itself with a question of interpretation of a particular section of the Code in the light of established canons of interpretation viewed in the context of the Constitution’s direction that the courts must interpret the laws of parliament fairly and liberally, as well as established practice and an equation of a balance of fairness to the accused with due protection to society.

Prior to the enactment of our present Criminal Code in 1974, there existed two Codes, one for Papua and one for New Guinea. They were both almost identical with the Queensland Code, as indeed is the present 1974 Code, save that in the new Code there is a renumbering of sections, an absence of some of the most recent Queensland amendments and several important alterations or excisions. One of the latter which amounted to both an excision and an alteration related to the presentation of “ex officio” indictments. The section of the new Code which was successfully invoked by the prosecutor before the learned trial judge, was s. 538 (as amended after Independence to provide for the transfer of functions from the Secretary for Law to the Public Prosecutor) which read as follows:

“(1)    Where a Magistrate has refused to commit a person for trial for an indictable offence, the Public Prosecutor may consider the evidence contained in the depositions taken before the Magistrate (and any other relevant evidence) and may reduce into writing in an indictment a charge for any offence that the evidence appears to warrant.

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

Sub-section (3) then goes on to deal with service of a copy of the indictment and depositions together with any further statements, on the person named in the indictment.

Now of course there can be no argument that the indictment presented before the Chief Justice on 4th September, 1978, fell fairly and squarely within this section. The magistrate had heard the committal proceedings and although he had found a prima facie case, he “refused to commit”. It may be difficult to see how such a conclusion could be reached in the face of his finding that a prima facie case existed, but nevertheless, that was the magistrate’s decision and no quarrel could be had with the Prosecutor’s power to present an indictment under s. 538 based on the material presented to the magistrate, or that material in conjunction with any other further statements or evidence which had come to his notice. I do not understand the appellant’s counsel to submit to the contrary.

In this appeal however, there is a direct conflict between the parties on the interpretation to be given to s. 538. The appellant says there can be “no plurality of ex officio indictments”, that there is nothing in the section to warrant the Public Prosecutor filing and presenting two “ex officio” indictments with a “nolle prosequi” separating them. The State, on the other hand, says there is no such limitation mentioned in the section, that such practice has developed over a period of time and that one would expect any restriction as contended for by the appellant to be spelled out in clear and specific terms. He further contended that certain absurd results would follow if the appellant’s submissions were upheld, but I am not at all convinced that such absurdities would eventuate.

Although the point which has come before the court for specific consideration concerns the powers of the Public Prosecutor and his juniors to present indictments under s. 538 following the signing and filing of a nolle prosequi under s. 539, it would be unrealistic to examine these two sections without taking into account the remaining area concerning the signing and presentation of indictments. This is to be found in s. 537, which reads in part as follows:

“(1)    Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may either:

(a)      reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b)      decline to lay a charge.

(2)      The indictment may be presented to the Supreme Court by the Public Prosecutor or any State Prosecutor.”

The remaining two sub-sections then deal with various procedural matters where the Public Prosecutor declines to lay a charge. Prior to 1974 however, the situation was somewhat complicated by the fact that procedural provisions concerning the laying of indictments were to be located in two separate Acts. In Papua there was s. 561 of the Code together with the Criminal Procedure Act of 1889 and in New Guinea there was of course a separate Code, again containing s. 561 with a Criminal Procedure Act very similar in terms to its Papuan counterpart. Without worrying about the amendments to nomenclature, s. 561 in both Papua and New Guinea Codes read as follows:

“A Crown Law officer may present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not. An officer appointed by the Governor in Council to present indictments in any court of criminal jurisdiction may present an indictment in that court against any person for any indictable offence within the jurisdiction of the court, whether the accused person has been committed for trial or not.”

Section 562 then went on to deal with the arrested persons who were charged in ex officio informations and s. 563 with the form, entry and effect of the entry of a “nolle prosequi”.

Although the Criminal Procedure Acts of Papua and of New Guinea were somewhat different in wording, the effect was more or less the same by the time the two Territories had been brought into administrative union after 1945. Again, leaving aside the amendments to nomenclature, the Papuan Act by s. 12 read as follows:

“Whenever any person has been committed by a magistrate for trial at the central court, the chief magistrate shall consider the evidence taken in the matter by the magistrate and at his discretion do one of the following things:

(1)      lay or direct to be laid against the person committed any charge that the evidence appears to the chief magistrate to warrant,

(2)      quash the committal,

(3)      send the evidence and all papers back to the committing magistrate and direct the magistrate to obtain if possible further evidence

...

(4)      ... direct him to try and to deal with the matter in a summary manner

...”

Section 3 of the same Act read as follows:

“Except in cases of Informations known to the law of England as ‘ex officio’ Informations and Informations by the Master of the Crown Office, no criminal case shall be brought under the cognizance of the Central Court unless the same shall have been previously investigated by a magistrate and the accused shall have been committed for trial at such court.”

Turning to the New Guinea Criminal Procedure Act, we find that s. 3 is repeated in exactly the same terminology. Section 12 is slightly different because the role of prosecutor was never undertaken by the magistracy in the then Trust Territory of New Guinea. That section therefore read:

“Whenever any person has been committed by a magistrate for trial at the Central Court, the Crown Law Officer of the Territory shall consider the evidence taken in the matter by the magistrate and at his discretion do one of the following things:

(1)      lay or direct to be laid against the person committed any charge that the evidence appears to the Crown Law Officer of the Territory to warrant,

(2)      decline to lay a charge.”

It is not difficult to trace the parentage of the present s. 537.

In addition to the plain words of both sections, regard must also be had to the mandatory terms of s. 536(1):

“No indictment may be presented in the Supreme Court except in accordance with the provisions of Sections 537 and 538.”

Once again this was a completely new section introduced by the 1974 Code.

The inherent conflicts which existed between the provisions of the Criminal Procedure Acts and those of the Criminal Codes came before a full bench of judges in 1964. At that time there was no provision for a Full Court in Papua New Guinea, but there was nothing to prevent the judges sitting in banc. In the upshot, the views expressed by their Honours were more or less two and two, although I think it fair to say that the practice did develop throughout the country after this decision in favour of the view which supported s. 561 of the Code as paramount. In the case in question R. v. Ebulya [dclvi]¹³, the then Chief Justice Sir Alan Mann, restated and in several respects modified certain views which he had previously published in an earlier decision R. v. Burusep and Ors. [dclvii]¹⁴. But the comments which I now quote[dclviii]¹⁵ appeared to gain the consensus of Ollerenshaw J.[dclix]¹⁶, and did not not receive any criticism from the remaining two members of the Bench.

“The purpose of adopting Section 3 of the Criminal Procedure Ordinance both in Papua and later in New Guinea, was clearly to afford a greater protection to the individual and to afford him a positive guarantee that he would not be placed in jeopardy by trial for criminal offences without a proper preliminary investigation before a Magistrate ... It is a vital measure for the protection of the liberty of the subject from possible abuse of power, and I think that it is clear that the intention of the Ordinance was to adopt the Criminal Code of Queensland as a general measure, but to afford the additional protection for the people of the Territory derived from Ordinances such as the Criminal Procedure Ordinance of Papua.”

As his Honour pointed out, neither in Queensland, nor Papua, nor in New Guinea, were indictable offences dealt with by way of examination by grand jury who presented a bill of indictment where satisfied on the evidence laid before them that a prima facie case had been made out. The quote just mentioned from his Honour in R. v. Burusep and Ors. (supra) is clearly based on an appreciation that certain checks and balances which existed in other jurisdictions were absent at the turn of the century in the Territory of Papua and that in order to curb great power being given into the hands of a single individual, certain safeguards were introduced. The sentiments there expressed have been reiterated recently in a somewhat different context by none other than Lord Denning. In R. v. Inland Revenue Commissioners and Ors; Ex parte Rossminster Ltd. and Ors.[dclx]¹⁷ the court was dealing with the powers of the Inland Revenue inspectors (what we would call the Taxation Commission), to search and seize material which would or might support prosecution for taxation fraud. In discussing the submission made on the discretion of such officers and the tremendous problems which such officers had with these “parasites who suck out the life blood of our society”, his Lordship was nevertheless concerned by the wide ambit which the Crown was seeking to lay on the section:

“It may be said that ‘honest people need not fear: that it will never be used against them: that tax inspectors can be trusted only to use it in the case of the big, bad frauds’. That is an attractive argument, but I would reject it. ONCE GREAT POWER IS GRANTED, THERE IS A DANGER OF IT BEING ABUSED (my emphasis). Rather than risk such abuse, it is as I see it, the duty of the courts so to construe the statute as to see that it encroaches as little as possible on the liberties of the people of England.”

That the presentation of an “ex officio” indictment is an exercise in great power to my view is without question. That it has always been regarded as such, is amply demonstrated by even a short survey of the historical development of criminal procedure under the common law. The task of discovery in this somewhat esoteric area is made much easier these days by reference to that admirable work of Prof. J.Ll.J. Edwards, The Law Officers of the Crown. In Ch. 13, the learned author deals, inter alia, with one of the “ancient privileges” and “prerogatives” of the Attorney-General in the form of “ex officio informations”. He points out that:

“The established privilege of the Attorney-General, inherent in his office, to file Informations at will in the Queen’s Bench Division of the High Court has a long and chequered history, the origins of this now much denuded right being traceable as far back as the reign of Edward I.”

Professor Edwards then goes on to point out that up to the writing of his book in 1964, the power to issue ex officio informations on the part of the Attorney-General had been used only once in this century. This is perhaps really not surprising when one recalls that such procedure was “confined, as trials on ex officio informations presumably are, to the restricted circumstances outlined in Blackstone’s Commentaries, namely to such enormous misdemeanours as peculiarly tend to disturb or endanger the Queen’s Government”. He concludes in the hope that the procedure of ex officio indictments will be relegated to “the expanding depository of archaic privileges once belonging to the Crown”. The two main features which I extract from the material contained in this chapter are firstly the extremely sparse use of the “ex officio information” in the United Kingdom, and secondly and perhaps most importantly, that an ex officio indictment is a Crown privilege or prerogative which was always vested in the Attorney-General and was used very sparingly indeed. The exercise of such power did not have any statutory basis and consequently its use or abuse was not controlled in any way by an Act of Parliament. The circumstances therefore under the common law where the ex officio information developed, were quite different from the circumstances existing in Papua New Guinea before 1974 and certainly so after Independence in 1975.

Tied up of course with the use of the “ex officio information” was the concomitant right in the Attorney-General, by virtue of his office, to enter a “nolle prosequi”. At p. 266 of his book, Edward says:

“Exhibiting clearly the Attorney-General’s incontestable position as the chief legal representative of the Crown in all court proceedings to which the Crown is a party, the holder of that office is vested with a number of wide common law powers, including the filing of ‘ex officio’ Informations, the entering of a ‘nolle prosequi’ in certain criminal prosecutions, and the maintaining of relator actions in matters affecting the general public. These powers, exercised by the granting of what is generally known as the Attorney-General’s fiat, are of great antiquity, the Attorney-General being well nigh a master unto himself as to whether or not, and in what precise circumstances, he will issue his certificates.”

The power to enter a “nolle prosequi” is quite clearly distinguishable from the other right in the Attorney-General, that is, to decline to lay an indictment at all, and the considerations operating in relation to the one are quite different from the other. The point is, however, that there can be great pressures operating on an Attorney-General to ensure that he exercise his discretion fairly and properly, quite apart from his innate sense of decency and fair play, and his professional integrity. It is essential to the English criminal system and the independence of the Attorney-General that he “should absolutely decline to receive orders from the Prime Minister or Cabinet or anyone else that he should prosecute” or decline to prosecute, (Viscount Simon quoted at p. 178 of Edwards). If anyone were to have doubt that the Attorney-General, in exercising his powers in the very best tradition may still not be the cause of toppling the government, he has only to refer to the Attorney-General’s handling of the prosecution against John Ross Campbell in 1924 which led to the downfall of the Labour Ministry in the House of Commons. A similar crisis developed in Victoria in 1893 when the then Attorney-General, Sir Bryan O’Loghlen, refused to continue a prosecution against certain company directors committed for trial on fraud charges. An item in the “Argus” of 20th May, 1893, giving expression to the sentiments of many, has been preserved by Sir Zelman Cowen in his biography “Isaac Isaacs”. I quote it in part:

“Let us not despise the nolle; let us hesitate to brand it

As a piece of stupid folly or miscalculated fun;

It is really interesting when you come to understand it,

It is simple and convincing when you know how it is done—

‘Tis no conjuring illusion

Based on natural confusion

Of the quickness of the fingers and deception of the eye—

Presto! nolle prosequi!

Let us rather view the nolle as a fine old legal fiction

As a paradox most useful—though it seems a little odd—

To express a mind convinced against all possible convictions,

‘Tis an ‘erat demonstrandum’ when denuded of its ‘quod’

‘Tis an easy exposition

Of a Euclid proposition,

When the Q.E.D. is missing, the alternative reply

Is a nolle prosequi.”

In The State v. Tanedo [dclxi]¹⁸, Prentice D.C.J. (as he then was) sums up the general view of the various judges of the then Supreme Court in relation to ex officio indictments as follows:

“Since the last mentioned decision in February 1972, it is my understanding that all the judges of the then Supreme Court accepted ex officio indictments without demur. There must have been many dozens of them —such are the inadequacies of the legal framework in Papua New Guinea and the difficulties presented by geography, that the ex officio indictment seems to have become recognized as an essential part (perhaps regrettably), and certainly a useful part of the practice of the law.

If, as I think has been assumed to be the position of the judges for some years, s. 561 is applicable, then an ex officio indictment may be presented whether a person has been committed for trial or not.”

Of course all these cases and the views of the judges including the judgment of the then Deputy Chief Justice related to the Code as it existed prior to 1974. The practice referred to by Sir William Prentice has certainly extended into the era of the new Criminal Code, but without any comment from the Bench and without any re-examination of the effect of the alterations brought about by the 1974 Code. As often happens in the history of legal development the matter was simply not raised. With respect, one might also voice a doubt as to whether the practice is or has been accepted as either “essential” or dictated by the “difficulties presented by geography”. There are two reported cases on the use of “ex officio” indictments under the new Code which illustrate the type of occasion on which the State was prepared to use this “great power”. The first is The State v. Peter Painke[dclxii]¹⁹ in which the accused had been committed for trial some eleven months prior to the presentation of the indictment then before the court. The prosecution however desired to have a further adjournment but such request was vigorously opposed by defence counsel and the court ruled that an adjournment would not be granted. The State’s answer to that ruling was to enter a “nolle prosequi”. This was not an end to the matter however. In The State v. Peter Painke (No. 2)[dclxiii]²⁰, a further indictment was presented almost a year after the one which formed the subject of the proceedings in the previous report. On this occasion the matter came before the then Chief Justice, and although a different count was laid in the indictment it fundamentally arose out of the same facts which had formed the basis of the original committal proceedings. On this occasion, Frost C.J. held that presentment of the indictment amounted to an abuse of process and refused to receive the indictment. The point whether or not the State had power to present such an indictment was not argued and was certainly not considered by the then Chief Justice.

Apart from the provisions in the Code itself, there are of course two other Acts which are relevant to the position, powers and functions of the Public Prosecutor. First, s. 176 of the Constitution, which sets up the office of Public Prosecutor and, inter alia, established that in the performance of his functions, he will not be subject to direction or control by any person or authority. There are very obvious reasons why this should be so. In their wisdom the framers of the Constitution considered it undesirable, at least at the present stage of development in Papua New Guinea, for the prosecuting authority to be subject to the various pressures which fall on the shoulders of an Attorney-General in other jurisdictions. It would also be some time before suitably qualified persons were available to act as Attorney-General as opposed to Minister for Justice. It is clear that a tremendous reliance has been placed on the individual integrity and sense of fair play of the person occupying the position of Public Prosecutor. Because he is not subject however to the usual checks and balances which would normally apply to an Attorney-General under the common law concerning the filing of “ex officio” indictments and the entry of a nolle prosequi, one must look very closely at the legislation which governs the powers and responsibilities of the Public Prosecutor. Indeed, he has almost complete freedom from the normal restraints and checks which would apply to any Attorney-General in the performance of his high office. Consistently with the protection he must be given under the Constitution, he is also much harder to remove from office. Under s. 178 of the Constitution, he may be removed only for inability, misbehaviour, or misconduct in office under the Leadership Code.

The only other Act which appears to affect the functions of the Public Prosecutor is Act No. 41 of 1977, the Public Prosecutor (Office and Function) Act 1977. It is really a complementary Act to that part of the Constitution which states that the Public Prosecutor is “to control the exercise and performance of the prosecution function” within the State of Papua New Guinea.

Counsel for the State pointed to several anomalies that would follow from any restriction on the power of the Public Prosecutor to issue multiple indictments. It was said for example that an accused person could suffer great unfairness where he wished to plead to a lesser count than that laid in the indictment, but because such lesser count was not one of the alternative verdicts which could be brought in under the existing charge, he would then be prevented from pleading as the prosecutor would be unable to present an “ex officio” indictment in that count. The short answer to that of course is that if the prosecutor had done his job properly in the first place, the situation would not arise. It goes without saying that a competent and conscientious prosecutor puts all matters in the indictment which may reasonably be open on the evidence. He does not of course put charges in the indictment merely as a matter of speculation or as a long shot guess. His task is to produce an indictment based on the evidence before him or what might reasonably be expected to emerge from the trial. It would seem an extraordinary state of affairs to me that an accused was offering to plead to a lesser count, other than an alternate count, and yet such count had not been placed in the indictment by the prosecutor. It is clear that great responsibility and status has been given to the Public Prosecutor under the Constitution. No doubt the founders of the Constitution expected that the Public Prosecutor would carry out his task professionally and efficiently.

Of course, what happens to the indictment before it is presented to the court is of no concern to the trial judge and it may be that a dozen different pieces of paper have been signed, dated and served on the accused prior to the time at which one is finally presented to the court. The phrase “the indictment may be presented to” in s. 537(2) and s. 538(2) implies a presentation in open court but without a plea being called for (see for example R. v. Topulumar and Ors. [dclxiv]²¹. Previously, in order for an indictment to be in fact an indictment, it appears that it had to be physically presented in open court. For example in discussing the return of a true bill by a grand jury, Blackburn J. in R. v. Ingham[dclxv]²² says:

“They (the Grand Jury) are sworn, and when they find some charge, it is reduced into writing, and becomes a record of the Court. In practise, it is brought to them in the shape of a bill, and they write upon the back of it either ‘a true bill’ or ‘no bill’, as the case may be; but when it is thus in the shape of a record, it appears in the present tense, ‘the jurors, etc., present’, as in the old times they would have come into court, and would have said, ‘We present’, and their presentment would afterwards have been put into writing.”

Under the present Criminal Code, an indictment is defined as “a written charge preferred against an accused person in order to get his trial before some court other than justices exercising summary jurisdiction”. In order for an indictment to become effective, it is obvious that it must be presented. Thus there are two steps which the prosecutor must take before it can be said that he has exhausted his powers. He must reduce the charge to writing, (ss. 537(1) and 538(1)) and he must present such indictment to the Supreme Court (ss. 537(2) and 538(2)). One should not assume that the Legislature has engaged in tautology. In s. 537(1) for example, if the act of reduction to writing were the only requirement to bring an effective indictment into existence, then that sub-section would be reading “reduce into writing in a written charge preferred against an accused person” etc. The purpose of reducing the charge to writing is to get a person before the court in order to plead. To achieve this result, the charge must be presented in court—that is, laid or preferred in open court for the purpose of taking a plea. In my view, to interpret the word “preferred” in the definition of “Indictment” under the Code in any other way would require a strained interpretation which would depart from practice and common sense. This is the process to which I think Clarkson J. was referring in his dissenting judgment appearing in R. v. Abia Tambule & Ors. [dclxvi]²³.

The law prior to 1974 was that s. 561 of the Criminal Code (Queensland adopted) prevailed over any provisions contained in the Criminal Procedure Acts. The matter however was never argued before a Full Court apart from the banco decision of R. v. Ebulya[dclxvii]²⁴ and in that case the judges were evenly divided. In any event, the decision was not directly concerned with the powers to present an ex officio indictment when a magistrate had refused to commit but whether an accused who had been committed for sentence on one charge could be indicted on another and different charge supported by either the committal proceedings or the committal proceedings plus further information. Irrespective however of how the various judges viewed s. 561, that section is not now before this Court. The specific matter before this Court is the ambit of s. 538 following the filing of a nolle prosequi under s. 539.

I have tried to show that the presentation of an “ex officio” indictment was an exercise of traditional power by an Attorney-General who, though not subject to any direction by Parliament, was nevertheless answerable to that body for his every action. Although the Public Prosecutor is answerable for misconduct, that is entirely different from the situation of an Attorney-General. He is not a political appointee and cannot be removed from office purely because of a change in government. He is appointed for a fixed term and is not subject to direction or control (with one exception) by any person. If the prosecution of a particular person or a refusal to proceed with such prosecution became an unpopular course with Members of Parliament, there is nothing which they could do about it, provided such action was not the result of “inability, misbehaviour or misconduct”. Even then, the dismissal of the State Prosecutor is a matter for the Judicial and Legal Services Commission and not Parliament.

The remaining provision in the Code dealing with indictments is to be found in s. 628:

“Any person may by leave of the Supreme Court present an information against any other person for any indictable offence not punishable with death, alleged to have been committed by such other person.

An information presented by leave of the court is to be signed by the person on whose application the leave is granted, or some other person appointed by the court in that behalf, and filed in the Supreme Court. The person who signs the information is called the prosecutor.

The information is to be intituled ‘The State on the prosecution of the prosecutor (naming him) against the accused person (naming him)’, and must state that the prosecutor informs the court by leave of the court.

Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by the Public Prosecutor and the proceedings upon such an indictment as hereinbefore set forth.”

The wording of this section is exactly the same as s. 686 of the pre 1974 Code and was always referred to by the shorthand description “private prosecution”. There appears to be no doubt in the minds of the court which delivered judgment in Gouldham v. Sharrett[dclxviii]²⁵ that such section dealt with private prosecutions only. There is likewise no real doubt in my mind. However, I appreciate the pertinence of my brother Wilson’s reference to s. 26 of the Interpretation (Interim Provisions) Act 1975 which has the effect of preventing the chapter heading (in this instance, “Information by Private Persons for Indictable Offences: Ex officio indictments”), and the section heading (in this instance, “Information by Leave of the Court by Private Prosecutors”) being regarded as words which form part of the Act. Nevertheless, I am not prepared to say that this section may be utilized by the Public Prosecutor or one of his deputies in connexion with a matter in which the Public Prosecutor has already presented an indictment and entered a nolle prosequi. It would appear incongruous to me that in such circumstances, the prosecutor is “required to give security”, in order to cover the costs of the defence, and even more incongruous that under r. 26 of the Criminal Practice Rules (assuming they are still in operation), a stipulation should be provided for the prosecutor to be under a duty to furnish certain material to the Public Prosecutor when he is in fact already under a duty to comply with directions issued by his senior. The remark by Judge Carter in his Criminal Law of Queensland (5th ed., 1979), p. 537, “The ordinary rule that the Crown is immune from liability for costs does not apply to prosecutions initiated by a Crown Law Officer by way of ex officio indictment in the manner prescribed in this chapter”, may be applicable to the Public Prosecutor and his deputies, if resort to this section was considered necessary.

It may be that the “victim” of an alleged offence could utilize this section where the State has entered a “nolle prosequi” but the authorities indicate that the granting of leave to prosecute in such circumstances is given but rarely and where “the case presents some unusual, if not extraordinary, feature ...”, Ex parte Marsh [dclxix]²⁶.

One further problem emerges from the existence of the mandatory terms appearing in s. 536(1). There is an apparent conflict between that section and s. 628, but the answer may well be that the earlier section is impliedly referring to prosecutions by the State only and does not intend to oust “private prosecutions” covered by a later provision in the Code.

In all the circumstances, I am presently of the view that any use of s. 628 by the State after a nolle prosequi has been entered would amount to a ploy. However, I do not come to a firm decision on this point as the matter was neither necessary to nor was it argued in the present case.

Returning then to the submissions of counsel and to the specific sections of the Code, to my mind the situation is quite clear. I am unable to find any justification for the State claim, that under the existing provisions of our Code, the old form of “ex officio” indictment as it was held to exist prior to 1974 has been carried into the new Code. Indeed, in my view, the term “ex officio indictment” should completely disappear from the language of Papua New Guinea. There are only two main forms of indictment, a s. 537 indictment and a s. 538 indictment. The first is an indictment following on committal proceedings be it for the same charge as that for which the accused was committed, or a completely different charge. Once having decided to reduce the charge to writing, and then in fact having presented the indictment to the court, that is an end to the matter. There is nothing in s. 536 which says that having presented the indictment and then subsequently under s. 539 presented or filed a nolle prosequi, he may go back to s. 537 and draft and present another indictment. Likewise, in the instant case under appeal where the magistrate has refused to commit, the prosecutor has power under s. 538 to present an indictment despite the magistrate’s refusal to commit, but again having done that, there is nothing in the section which allows him to present a further indictment. That this should be so is really not surprising when a proper historical perspective is adopted. I would expect to find any such suggested power specified in the clearest terms, and not something to be twisted out of the section by reliance on court interpretation, assisted by a clearly misconceived matter of practice over the past few years. Although the positions of Attorney-General and Public Prosecutor are somewhat similar in part the analogy is one which must be treated with care. Professionally and ethically they are similar but not when it comes to the powers vested in each.

It follows from the above therefore that this trial should never have commenced on the second indictment. After the prosecutor had indicated that he was filing a nolle prosequi in respect of the “old” indictment presented on 4th September, the accused of course was entitled within the words of s. 539 to be “forthwith discharged from any further proceedings” on that indictment. Having presented the first indictment, the Public Prosecutor had exhausted his powers under the Criminal Code and there was no power in him to write out and present a second indictment. It follows therefore that the trial was a nullity and thus the conviction also a nullity. Short of a new committal proceedings upon which the Public Prosecutor might then present a fresh indictment, the matter was at an end. He accomplished this fact by entering a nolle prosequi. As I would uphold the appeal on this ground, it is not necessary for me to give any consideration to the other grounds of appeal, including the merits or otherwise of the conviction.

Appeal allowed. Conviction quashed.

Solicitor for the appellant: D. J. McDermott, Acting Public Solicitor.

Solicitor for the respondent State: Public Prosecutor.

[dcxliv] Infra p. 397.

[dcxlv] Infra p. 391.

[dcxlvi] Infra p. 392.

[dcxlvii] [1979] P.N.G.L.R. 593.

[dcxlviii] Unreported judgment SC 154, 3rd August, 1978.

[dcxlix] (1971) 17 F.L.R. 65.

[dcl] [1977] P.N.G.L.R. 141.

[dcli] [1979] P.N.G.L.R. 593.

[dclii] Unreported judgment SC 154, 3rd August, 1979.

[dcliii] [1979] P.N.G.L.R. 593.

[dcliv] [1975] 2 All E.R. 1, 028.

[dclv] [1967-68] P.& N.G.L.R. 511.

[dclvi] [1964] P. & N.G.L.R. 200.

[dclvii] [1963] P. & N.G.L.R. 181.

[dclviii] [1963] P. & N.G.L.R.

[dclix] [1964] P. & N.G.L.R. 200 at p. 223.

[dclx] [1979] 3 All E.R.

[dclxi] [1975] P.N.G.L.R. 395 at p. 401.

[dclxii] [1976] P.N.G.L.R. 210.

[dclxiii] [1977] P.N.G.L.R. 141.

[dclxiv] [1971-2] P. & N.G.L.R. 320 at p. 322.

[dclxv] (N.S.) 33 L.J.Q.B. 183 at p. 189.

[dclxvi] [1974] P.N.G.L.R. 250 at p. 256.

[dclxvii] [1964] P. & N.G.L.R. 200.

[dclxviii] [1966] W.A.R. 129.

[dclxix] [1966] Qd. R. 357 at p. 365.