Tatau v Director of Public Prosecutions [1992] SBHC 36; HCSI-CRAC 289 of 1992 (2 November 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 289 of 1992

TATAU

-v-

DIRECTOR OF PUBLIC PROSECUTIONS

High Court of Solomon Islands
(Palmer J.)
Criminal Appeal Case No. 289 of 1992

Hearing: 16 October 1992
Judgment: 2 November 1992

J. Wasiraro for the Public Solicitor on behalf of the Applicant
R.B. Talasasa for the Director of Public Prosecutions

PALMER J: This is an application by the learned Public Solicitor on behalf of the Applicant. George Ahikau Tatau for declarations that -

(1) the entering of a nolle prosequi on 9th September 1992 is in breach of the fair hearing provisions of section 10(1) of the Constitution and an abuse of process and

(2) the use of section 91(4)(c) of the Constitution by the Defendant in this case is in breach of section 10(1) of the Constitution.

The facts giving rise to the application are as follows.

On or about the 9th of November 1990 the Applicant was charged with 11 counts of conversion which were alleged to have been committed on various dates in 1986, 1987 and 1988.

On the 19th November 1990 he appeared in court and pleaded not guilty to all the counts. The case was then adjourned for trial to the 1st of March 1991

On the 1st of March 1991, the case was further adjourned to the 5th of March 1991 because of the failure of prosecution witnesses to attend. On that date a nolle prosequi was entered by the prosecutor on all the charges and the Applicant was discharged.

On the 1st of April 1992, he was charged in Malaita with 14 counts of conversion and told to appear in the Honiara Magistrates Court on the 4th May 1992. He entered not guilty pleas on all counts and the case was adjourned to 9.30 p.m. on 26th August 1992 for trial. The case was further adjourned on the 26th August 1992 to 8 September 1992 because the Magistrate did not have jurisdiction.

The trial was able to proceed on the 8th of September 1992. After several prosecution witnesses had been called and given evidence, the prosecutor then applied to adjourn the case as two of his witnesses were not present. This was opposed by the Applicant’s solicitor.

The Magistrate refused the application to adjourn. The prosecutor then applied for 5 minutes adjournment to telephone the Respondent for instructions. After the court resumed the Prosecutor stated that the witnesses were on their way. The Magistrate had another matter to deal with and so the case was adjourned to the 9th of September 1992 at 9 a.m. Prosecution then had all the opportunity to ensure that his witnesses were present at Court on that morning and not to leave until the Court hearing had finished.

On the 9th of September 1992 one of the remaining witnesses was called and gave evidence. The other witness was not present when called and a warrant of arrest was issued. It is clear that witness was present but then left after. The Court refused any further application for adjournment, although it seems that the witness could have been arrested and brought to court within 10-15 minutes.

It was impressed upon the Court by learned counsel for the Respondent that the absence of that particular witness may have been due to a misunderstanding.

The Prosecutor then exercised his powers under section 91(4)(c) of the Constitution and section 68 of the Criminal Procedure Code and entered a nolle prosequi in respect of counts 3, 4, 5, 12, 13 and 14. The Applicant was discharged on those counts.

He was acquitted on Counts 1 and 11 after a submission of no case to answer was made.

On the 21st of September 1992 he was found not guilty on counts 2, 8, 9 and 10 and found guilty on counts 6 and 7 and discharged conditionally for 12 months 10 respect of these two counts.

He now applies to have the nolle stayed by this Court and not to be proceeded with on the grounds as set out at the beginning.

The first matter I will consider is the powers of the learned Director of Public Prosecutions under section 68 of the Criminal Procedure Code and under section 9l(4)(c) of the Constitution.

Section 68 of the Criminal Procedure Code reads:

“In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Attorney General (now the Director of Public Prosecutions) may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered.........;but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.”

The following points can be noted.

(i) The powers under section 68 may be exercised at any stage of the trial before verdict or judgment.

(ii) They are discretionary.

(iii) Nolle may be entered either in Court or by writing to the court.

Applying those points to the applicant’s case I note the following:-

(i) the nolle was entered before verdict or judgment i.e. prosecution had not yet closed its case.

(ii) the prosecutor entered nolle on the advise of the Director of Public Prosecutions and so had clearly exercised his discretion.

(iii) it was entered in Court.

The nolle as entered pursuant to section 68 of the Criminal Procedure Code was in order. Whether it was in breach of section 10(1) of the Constitution or an abuse of process will be dealt with later.

SECTION 91(4)(C) – CONSTITUTION

The powers of the Director of Public Prosecutions under this section seem to be much more widely defined. I quote:

“The Director of Public Prosecutions shall have power in any case in which he consider it desirable to do so -

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself.... “

and subsection 91(7) reads:

“In the exercise of the powers conferred on him by this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”

There are certain points to note about section 91 (4)(c).

(1) The powers of the Director of Public Prosecutions is restricted to what he considers “desirable”; and

(2) He may discontinue criminal proceedings at any stage before judgment is delivered.

The power to discontinue would seem to run right up until before judgment is delivered i.e. even right up until after defence have stated their case! However, one would need to be extremely cautious about giving such powers or interpreting such sections so widely.

Some guidelines as to the limits of the exercise of such a widely worded power can be gleaned from the provisions of section 189 of the Criminal Procedure Code.

Section 189 (2) (a) for instance provides that if a withdrawal is made in the Magistrates Court after the accused person is called upon to make a defence, then the Court shall acquit him. The basis of this provision stems from the common law principles of a right to a fair hearing and the inherent jurisdiction of the court to safeguard an accused person from oppression or prejudice (Connelly -v- D.P.P.; [1964] Vol.48 Crim. A. Reports at p.297 per Lord Morris of Borth-v-Gest). If a nolle is entered in such circumstances then the accused is entitled to be acquitted.

Another limit can naturally be seen also from section 196 of the Criminal Procedure Code which covers the situation that arose in the case of Regina -v- Abia Tambule & Others [1974] PNGLR 250.

Section 196 states in essence that where prosecution has closed its case then the presiding magistrate must decide if there is a sufficient case for the accused to deny. If he finds that there is insufficient evidence to put the accused on his defence, then he must be acquitted.

In Abia Tambule’s case the Supreme Court of Papua New Guinea found that the withdrawal breached the fair hearing provisions of the Human Rights Act of 1971.

Had a similar case occurred in our Magistrates Court, then it could possibly have been found to be in breach of section 196 of the Criminal Procedure Code.

But even if it is argued that section 91(4)(c) of the Constitution must over-ride the effects of that particular section, one must be cautious in how it is applied.

WHAT IS DESIRABLE? (SECTION 91(4)(C))

This question could be rephrased as what factors should the learned Director of Public Prosecutions consider when deciding to discontinue proceedings.

In broad terms, he is concerned with the pursuit of justice, the lawful apprehension of offenders, collection of evidence and successful prosecution at trial. In his pursuit of justice, his actions are barricaded in by what is lawful and according to general rules of practice evolved by the Court over many years.

The decision to initiate a prosecution or to stop or discontinue criminal proceedings belongs to him alone to exercise.

If he decides to discontinue a criminal proceeding on grounds he considers to be “desirable” then that is a valid exercise of a sanctioned power under section 91(4)(c). However, it would not be envisaged that he would do so out of mere whim or fantasy.

If for instance, having commenced a hearing, the Director of Public Prosecutions realises that there is insufficient evidence available and therefore rather than waste everybody’s time he decides to discontinue proceedings, that is a perfectly valid thing to do. If in reconsidering the evidence he comes to the conclusion that no successful prosecution will ever be made and he simply decides not to resume criminal proceedings, then that is perfectly valid, and that is the end of the matter. Although the effect of discontinuing the proceedings is to discharge the accused, in this particular example, it will have the same indirect effect of an acquittal or can be regarded as a permanent discharge.

The word “desirable” is a very subjective word. In the “Australian Little Oxford Dictionary, edited by George Turner, 6th Edition it is defined as “worth having or wishing for.”

What is “worth having” or “wishing for” by one person may be something completely despised by another. What is worth having for or wishing for by a particular prosecutor may not be so by another. This is the impression given by the use of the word “desirable”. Of course it is taken for granted that the learned Director of Public Prosecutions will seek to be consistent in all his approaches and decisions and the exercises of his powers. But the fact that a particular decision is made one way may not necessarily be made the next time in another similar case.

I do not think it was intended that the courts should delve into how a particular decision is arrived at in the exercise of the Director of Public Prosecutions’ power under section 91(4)(c).

Perhaps the use of the word was deliberate; to indicate that the decision, the how and whys are subjective to him alone and not to be questioned.

The provisions of section 91(6) and 91(7) would seem to add support to this suggestion.

The independence of the Director of Public prosecutions’ office is unquestioned and it’s significance crucial in the due administration of justice.

In R -v- Sang [1979] UKHL 3; [1979] 2 All E.R. 1222 AT PAGE 1245 Lord Scarman had some relevant words to say, which though were made in a different situation, in my view are applicable when analysing the powers of the Director of Public Prosecutions:

“The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecution save in the very rare situation,....., of an abuse of the process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial. The Judges’ Rules, for example, are not a judicial control of police interrogation, but notice that if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge’s control of· the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law.”

The comments of Lord Scarman regarding the duty of the trial judge to ensure that the accused has a fair trial according to law is enshrined in our Constitution in section 10(1).

It states:

“If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

The learned Public Solicitor has submitted that this provision was breached by the presentment of the nolle prosequi and the exercise of the Respondent of section 9l(4)(c) of the Constitution.

He referred to two Papua New Guinea cases in support of his submission.

The first one is Regina -v-Abia Tambule &: Others [1974] PNGLR 250.

In that case it was held that for the Crown to enter a nolle prosequi at a stage of a trial when the Crown had called all the evidence available and it was insufficient to sustain the charge, was to deny the accused a fair hearing under section 16(2) of the Human Right Act 1971 (a similar provision to our section 10(1).

In that case, prosecution had called all the evidence available to it and then decided to discontinue proceedings.

It was argued by Mr. Radclyffe that the facts of that case are similar to this.

In George Ahikau Tatau’s case, prosecution had called all but one witness. It was conceded by learned counsel for the respondent, Mr. Talasasa, that at that point of time there was insufficient evidence to sustain the charges against the Applicant.

The main reason for the nolle was because of the refusal of the Presiding Magistrate to grant a short adjournment for him to call his last witness. It is not stated whether this last witness’s evidence is crucial or whether it would make any difference at all.

He felt the Presiding Magistrate did not adequately consider the circumstances of his application because it appeared that the witness may have misunderstood his directions to wait outside. Despite this, he felt the witness could be located and brought to court within 10 -15 minutes.

The nolle was made as a result of this refusal and after due consultation with the learned Director of Public Prosecutions.

The ruling in Abia Tambule and Others’s case clearly recognises the situation where once prosecution has called all its available evidence and it is clear that it is not sufficient to sustain the charges against the accused, then prosecution will not be allowed by the Court at that stage of the proceedings to discontinue the proceedings or to enter a nolle prosequi.

The reasoning behind this is because it is tantamount to the accused being placed in double jeopardy.
At page 254 he says:

“However, I am satisfied that in the circumstances of the present case for the Crown to enter a nolle prosequi at the stage when the Crown had called all the evidence available and it was insufficient to sustain the charge, was to deny the three accused concerned a fair trial.”

The facts in Tatau’s case are slightly different. However, the reasoning in Abia Tambule’s case in my humble opinion is applicable here as well.

The court’s primary duty is to ensure that the trial is conducted fairly (Re -v- Song (Ibid)).

In its supervision of the hearing or trial the court often has to rule on applications for adjournments by learned counsels and prosecutors.

In the Magistrates’ courts this is catered for by section 190 of the Criminal Procedure Code. I quote:

“Before or during the hearing of any case, it shall be lawful for the court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present....”

Section 190 gives a discretionary power to the magistrate. That discretionary power however must be exercised in such a way as to ensure that the accused has a fair trial according to law. And in deciding on the fairness of the trial in this particular case, the test is whether the granting of the adjournment would undermine the justice of the trial. Would the defendant be unfairly prejudiced? On the other hand by refusing to grant the application for the adjournment, is the prosecution of the case being unduly hampered?

“For the conviction of the guilty is a public interest, as it the acquittal of the innocent. In a just society both are needed.” (R -v-Sang (Ibid), per Lord Scarman at p. 1247 paragraph 6).

On the 9th September 1992, the learned Magistrate exercised his discretion not to grant the application for adjournment. I need not go through again all the facts leading up to the 9th of September. It is sufficient to note that the Applicant had been originally charged for the same offences way back in November of 1990. On the 5th of March 1991, the trial did not proceed because prosecution witnesses did not attend. A nolle prosequi was then entered. That was the first time the problem of unavailability of the prosecution witnesses occurred and also the first time a nolle prosequi was entered for that reason.

On the 8th of September1992 exactly the same problem was encountered by prosecution. Fortunately the case was adjourned to the 9th of September 1992 at 9 a.m. One would have thought that this problem would now be overcome, but it was not to be so.

On the 9th of September 1992, for the third time, the same problem occurred. The learned Magistrate put his foot down and said no more, the case must proceed. Instead, the learned prosecutor on the instruction of the Respondent entered a nolle for the second time and for the same reason as the first nolle was entered. The justice of the case and the rights of the accused to a fair trial must dictate the course that that court must adopt or any other court.

I do not find anything unbecoming or unfair on the exercise of the discretion by the learned Magistrate not to allow the adjournment, although I am aware that I am not asked to rule on this and that the learned Magistrate’s ruling has not been appealed against. The refusal to grant an adjournment was a valid exercise of the Magistrate’s discretionary power under section 190 of the Criminal Procedure Code.

The actions of the Respondent at that particular point of time in entering a nolle however were improper. There is no question that he had a valid right to enter a nolle prosequi at that stage of the trial. But when it is weighed against the justice of the case, the fair hearing provisions of section 10(1) of the Constitution, it was most unfortunate.

The effect of the ruling of the Presiding Magistrate was to have the trial proceed without any further delay. It was a discretionary decision. A decision made in the interests of justice. To prolong the case would result in injustice to the accused and deprive him of a fair hearing.

At that particular point of time, it is clear that prosecution would not proceed any further, and would have to close it’s case. At that particular point of time therefore, the accused was entitled to have his case determined on the merits of the evidence available to the Court. There is no dispute, it is conceded by Mr. Talasasa, that at that particular point of time, the evidence could not sustain the charges. The accused would therefore have been acquitted.

It was this right to have his case determined on its merits at that particular point of time that it was submitted by the learned Public Solicitor as having been breached. And that right is protected by the fair hearing provisions of section 10(1) of the Constitution.

I am satisfied there has been a breach of the fair hearing provisions.

In Abia Tambule’s case, the three accused were denied the right to have their case determined on its merits based on the evidence available to the court.

On the 9th of September, the ruling of the Magistrate to deny any further adjournments virtually had the same effect. The exercise of the power under section 91(4)(c) of the Constitution and the subsequent entering of the nolle was therefore in breach of the fair hearing provisions of section 10(1) of the Constitution.

ABUSE OF PROCESS:

It has also been submitted by the learned Public Solicitor that the entering of the nolle prosequi on the 9th of September 1992 was an abuse of process. He made references to paragraphs 4.41 and 4.42 of Archbold 1992 Edition, and the case of The State -v- Peter Painke (No.2) [1977] PNGLR 141 in support of this. It is clear from these cited authorities that superior courts of law have inherent jurisdiction to prevent abuses of its process and to control its own procedure.

In Connelly -v-Director of Public Prosecutions [1964] Vol. 48 Crim A.R. at page 206 and 207, Lord Morris of Borth-v-Gest had this to say:

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to endorse its rules of practice and to suppress any abuses of its process and to defeat any attempt thwarting of its process.”

Further down page 207, he states:

“The power (which is inherent in a courts jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice.”

Lord Devlin, in the same case also recognised the jurisdiction of the High Court. He said:

“......in my opinion, the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides.”

It has not been disputed by learned counsel that this Court, the highest court in the land with unlimited jurisdiction does not have such inherent powers. The above comments are applicable to this Court.

The submission of the learned Public Solicitor is that the presentment of the nolle at that particular stage of the proceedings is an abuse of process.

In the case of The State -v- Peter Painke (No.2) [1977] PNGLR 141 the facts showed that the accused had previously been charged with stealing as a public servant and discharged on presentiment of a nolle prosequi. He was then charged with fraudulent false accounting, but the facts relied on were the same ones that the first charges had been based upon.

The National Court of Justice held that the presentment of the indictment was an abuse of the process of the Court and the accused should be discharged.

The abuse consisted of the presentation of an indictment containing different offences but based on the same incident as the first charges.

In Tatau’s case, no new indictment has been present.

The case which in my opinion is much more similar to the facts of this case on the question of abuse of process is the first case of The State -v- Peter painke [1976] PNGLR 210.

In that case, an application for adjournment was made by the prosecutor as he was not in a position to proceed with the trial.

The case first came up on the 27th June 1975. In the National Court of Justice it came up on the 26th November 1975. On that date the case was stood over to the next sittings of the Court because again the State was not ready to proceed.

On the 13th January 1976, the case could not proceed because of the non-availability of the judge.

On the 10th March 1976, a further adjournment was sought because an important witness of the Crown was not available.

The case finally came before His Honour O’Leary A.J. on the 24th of May 1976. A further adjournment was sought but refused by the trial judge.

He said at page 212:

‘‘Although he has been on bail throughout, I thought the accused had already been under the cloud of the charge for far too long, and to allow that position to continue any longer, would be to do a substantial injustice to him.”

The prosecutor then sought to present a nolle prosequi in respect of the indictment before the Court. This was objected to by counsel for the Defendant on the ground, inter alia, that it was an abuse of process.

In deciding that the nolle was not an abuse of process, he stated at page 212 and 213:

“There is no doubt that this Court, as a superior court of record has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has “to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice..... may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.”

(Tringali -v-Stewardson Stubbs & Collett Ltd [1965] N.S.W.R.418at p.418 per Mitchell J.)

“Abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way.”

At the bottom of page 213 he said:

“In the present case I did not see any reason for thinking that the presentment of a nolle prosequi by counsel for the State amounted to an abuse of the process of the Court. It was a procedure which was clearly open to him..... and in availing himself of it I did not think he did so in any improper way or for any improper purpose or indeed, for any purpose other than that for which the procedure is designed, namely to have the accused discharged from any further proceedings on the indictment.”

The facts in George Tatau’s case however are different in one particular but very significant way which in my opinion distinguishes it from the situation described by O’Leary A.J.

At page 214 paragraph 1, he said:

“It was put to me that in presenting the nolle prosequi, he did so with the intention of leaving the way open to the State to present another indictment against the accused. If that were in fact his intention, I did not think there was anything improper about it. That is the consequence, in law, of presenting a nolle prosequi and there is nothing improper in intending to avail oneself of such a consequence. Whether, of course, any further indictment that may be presented against the accused is one that ought to be allowed to stand, or one that ought to be quashed as being vexatious or oppressive, or an abuse of the process of the court is a question that can only arise if and when any such indictment is presented.”

However further down that page at paragraph 2 he states and and this is the crucial bit:

“There are, of course, other circumstances in which a judge may, in a proper case, decline to accept a nolle prosequi presented to him. The circumstances that arose in Abia Tambule’s case was such a one. However, I did not think any such circumstances existed in the present case. Certainly the alternatives of either accepting the nolle prosequi or of refusing it and entering a verdict of not guilty did not arise. The accused had not been arranged and therefore the trial had not commenced.”

O’Leary A.J. clearly recognised in his comments a category of cases in which a nolle prosequi would be improper. One of those cases was Abia Tambule’s.

It is my finding that the circumstances recognised by O’Leary A.J. in Abia’ Tambule’s case are similar in George Tatau’s case and brought within that category.

O’Leary A.J made specific mention of the fact that in Peter Painke’s (No.1) case, the accused had not been arraigned and the trial commenced. He found accordingly that there was nothing improper about the nolle presented.

In George Tatau’s case, the trial was virtually completed but for one last witness. When the learned Magistrate refused the application of prosecution for a further adjournment it virtually meant the close of prosecution’s case and a determination of the case on its merits. Subsequently, a nolle prosequi was presented, the intention being so that further proceeding could be undertaken.

The similarity in Tatau’s case and Abia Tambule’s in my opinion is so obvious.

The nolle prosequi deprived George Tatau of the right to have his case determined on its merits in his favour. This was clearly unfair.

It was also oppressive. Oppressive in that he is faced with the real possibility of having to go through another trial.

I also find that the nolle was entered for an improper purpose as referred to in O’Leary A.J’s judgment at page 214.

The reason given by the learned prosecutor was that he felt that the learned Magistrate had not given due consideration to his applications for adjournment to call his last witness. The proper action to be taken is to inform the Court immediately that he disagreed with the decision of the Court and that he would file an appeal against the ruling of the Magistrate. This would have the effect to suspending proceedings whilst he challenges the ruling of the Magistrates’ Court. There would have been no prejudice and no oppression, no abuse of process and no unfairness involved.

The nolle had the effect of circumventing the ruling of the Magistrate without having to challenge it on appeal.

It was in my view done for an improper purpose, after a valid exercise of a discretionary power of the Magistrate in the interests of justice to have the case proceeded with. The proper course of action when the adjournment was denied at that particular point of time was to lodge an appeal against the ruling of the Magistrate.

Accordingly I find that the presentment of the nolle prosequi was also an abuse of process.

I will now address briefly the submission of Mr. Talasasa on the question of the interpretation to be accorded to the word “·withdrawn” as used in section 10(1) of the Constitution.

The word “withdrawn” is not defined in the Constitution, as submitted.

The “Australian Little Oxford Dictionary” defines it as “pull aside or back; take away, remove, cancel....”.

In common parlance the word that can be applied is the word “cancelled”. Should this ordinary meaning be applied here?

When a nolle is entered pursuant to section 68 of the Criminal Procedure Code, it has the effect of a discharge. It is not a bar to any subsequent proceedings against the accused on the same facts.

A nolle has been defined as having the same effect as an adjournment of the case “sine die”.

The other word used to describe the powers of the Director of Public Prosecutions is the word “discontinue” in section 91(4)(c) of the Constitution.

In Postill -v- East Riding County Council [1956] 2 All E.R. 685, at page 688 Donovan J. stated:

“..... the word “discontinued” does not necessarily mean permanently discontinued. One discontinues many things that may be discontinued only for a time, and when one resumes what one has discontinued it does not mean thee has never been any discontinuance. There has been a discontinuance followed by a revival or resumption,......”

I would agree with this definition, that it does not necessarily mean a permanent discontinuance. The effect of a discontinuance would exactly be the same as a nolle prosequi, that there should not be a bar to further proceedings on the same facts. At the same time it is quite possible that the discontinuance may be permanent.

Mr. Talasasa has submitted that a possible interpretation of the word “withdrawn” in section 189 of the Criminal Procedure Code.

When a prosecutor wishes to withdraw a complaint he must make an application to the Court for approva1. If it is accepted then the Court has the discretion to either discharge the accused or acquit him pursuant to section 189(2)(b) (i) or (ii).

When the word “withdrawn” is used in section 10(1)(c) does it mean a discharge as well as an acquittal?

What Mr. Talasasa seeks to submit is that if the word “withdrawn” means both, then section 10(1) is not being breached by the Respondent when the nolle was used.

This was the same argument raised in R -v-Abia Tambule & Other’s case. And this is how Frost S.P.J. dealt with this argument:

“Mr. Wall then argued that section 16(2) (similar to our section 10(1) does not assist the accused for the accused’s right to a fair hearing, as he argued, is not infringed if at any stage of the trial the charge is withdrawn. I am unable to accept this argument.

One effect of section 16(2), in my opinion, is to deny any absolute right to the hearing of a charge once it is preferred. It may later be withdrawn. But, in my opinion, if a charge is not withdrawn and the hearing commences, the accused’s right to a fair hearing becomes the paramount consideration. Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings.”

What we can note from His Honours comments is that he understood or took the meaning of the word “withdrawn” or·“withdrawal” as used in section 16(2) to include the presentment of a nolle. However, he pointed out that the withdrawal of the case at that particular point of time was contrary to the interests of a fair trial.

This interpretation by His Honour O’Leary is consistent with the submissions of Mr. Talasasa.

Under the Magistrates Court Act, whenever a withdrawal is made, reference is always made to section 189(2)(b) of the Criminal Procedure Code.

Section 189 of the Criminal Procedure Code provides some guidelines as to the contexts in which the use of the powers to withdraw complaints should be exercised by the Magistrates’ courts.

It is the normal practice in the Magistrates Courts that whenever a “withdrawal” is made it will always be made in accordance with section 189(2)(b)(i) or (ii).

The ordinary meaning as applied to the word “withdrawn” in section 10(1) of the Constitution would mean a “cancellation”, a “washing out” of the case resulting in an acquittal. However, when used in the context of section 189 of the Criminal Procedure Code it would also mean a discharge. The context of the use of the word withdrawn, in my opinion is important to look at to determine the extent of the power used when a withdrawal is made i.e., when the case was withdrawn, was there an acquittal made or a discharge?

This submission by learned counsel for the Respondent however, does not assist his case because just as in Abia Tambule’s case, I find here that the withdrawal was not only in breach of the fair hearing provisions but also an abuse of process.

In the particular circumstances of George Tatau’s case, the withdrawal was improper. In other circumstances, where the withdrawal was proper, for instance, the situation in The State -v-Peter Painke’s (O’Leary A.I.) case, [1976] PNGLR 210, at page 213 bottom and top of page 214, there would not have been any breach of the constitutional provision.

Accordingly, I direct that the indictment on the file should be marked “NOT TO BE PROCEEDED WITH”.

(A.R. Palmer)
JUDGE