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State v Painke (No 2) [1977] PGLawRp 527; [1977] PNGLR 141 (11 May 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 141 - The State v Peter Painke (No 2)�

[1977] PNGLR 141

N94

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER PAINKE (NO. 2)

Madang

Frost CJ

10-11 May 1977

CRIMINAL LAW - Practice and procedure - Abuse of the process of the court - Charge of fraudulent false accounting - Accused previously charged with stealing as public servant and discharged upon that indictment on presentment of nolle prosequi - Both charges based on one incident - Long delay between incident and second indictment - Second charge an abuse of the process of the Court.

CRIMINAL LAW - Practice and procedure - Denial of right to �fair hearing within reasonable time� - Whether the National Court of Justice has jurisdiction to decide questions arising as to the application and interpretation of s. 37(3) of the Constitution in proceedings under s. 57(1) and (3) or s. 22 of the Constitution - Constitution s. 18(1).

CONSTITUTIONAL LAW - Practice and procedure - Denial of right to �fair hearing within reasonable time� - Whether the National Court of Justice has jurisdiction to decide questions arising as to the application and interpretation of s. 37(3) of the Constitution in proceedings under s. 57(1) and (3) or s. 22 of the Constitution - Constitution s. 18(1).

The accused who was charged with fraudulent false accounting, had previously been charged with stealing as a public servant and discharged upon that indictment on presentment of a nolle prosequi (See The State v. Peter Painke, [1976] P.N.G.L.R. 210). Both charges were based on incidents allegedly occurring in April 1975. The indictment on the charge of fraudulent false accounting having been presented, the accused sought a discharge on the grounds (1) that in all the circumstances the presentment of the indictment was an abuse of the process of the Court and (2) that the accused had not been afforded a fair hearing within a reasonable time as required by s. 37(3) of the Constitution.

Held

N1>(1)����� The National Court of Justice, as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process.

Connelly v. D.P.P. [1964] A.C. 1254, Reg. v. Abia Tambule and Ors [1974] P.N.G.L.R. 250 and The State v. Peter Painke [1976] P.N.G.L.R. 210 at p. 212 referred to.

N1>(2)����� The Court has a discretion (outside the limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay a subsequent indictment containing charges founded on the same facts as those on which a previous indictment was based or forming or being part of a series of offences based on the one incident.

Connelly v. D.P.P. [1964] A.C. 1254 followed.

N1>(3)����� In all the circumstances the presentment of the indictment was an abuse of the process of the Court and the accused should be discharged.

N1>(4)����� Semble. If it had been proved that the accused had not been afforded a fair hearing within a reasonable time as required by s. 37(3) of the Constitution, an order pursuant to s. 57(1) and (3) or s. 22 of the Constitution could be made, without any question relating to the application and interpretation of s. 37(3) of the Constitution being referred to the Supreme Court pursuant to s. 18 of the Constitution.

Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] P.N.G.L.R. 80 referred to.

Trial

The accused was charged on indictment with fraudulent false accounting. He had previously been charged with stealing as a public servant and discharged upon that indictment upon presentment of a nolle prosequi (see The State v. Peter Painke [1976] P.N.G.L.R. 210). Both charges were based on incidents allegedly occurring in April 1975. On presentment of the indictment counsel for the accused sought his discharge on the grounds (1) that in all the circumstances the presentment of the indictment was an abuse of the process of the Court and (2) that the accused had not been afforded a fair hearing within a reasonable time as required by s. 37(3) of the Constitution.

Counsel

K. B. Egan, for the State.

J. B. Avery, for the accused.

Cur. adv. vult.

11 May 1977

FROST CJ: In this case the Public Prosecutor has presented an indictment upon which the accused is charged, under the Criminal Code s. 430, that he on or about 29th April, 1975 in Papua New Guinea being a clerk of the Government of Papua New Guinea made a false entry in a document, namely a P.N.G. Banking Corporation cheque which belonged to the Government of Papua New Guinea, in that he obliterated two specified receipt numbers and in their place substituted an incorrect receipt number with intent thereby to defraud.

I am now to rule upon an application made by counsel for the accused that the accused be discharged. The application is made on two grounds. The first is based on the Constitution s. 37(3) which, so far as is relevant, provides that a person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time. The second ground is that in all the circumstances the presentment of the indictment is an abuse of the process of the Court.

The history of the case is that on 27th June, 1975 the accused was committed for trial on a charge of stealing as a public servant, alleged to have been committed between 30th January and 3rd March, 1975. That charge was not disposed of until 24th May, 1976 when the indictment was called on before O�Leary A.J. In the interval the indictment had been presented to the National Court, but at three successive sittings adjournments had been granted on the application of the State Prosecutor. Another such application was then made before O�Leary A.J. and was refused. The view taken by the learned judge was that because of the long delays, before and after committal, to postpone the trial any longer would be a breach of the accused�s rights under s. 37(3). Even although he had been on bail throughout, his Honour said �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 State v. Peter Painke [cxliii]¹. The State Prosecutor then proposed to present a nolle prosequi under the Criminal Code s. 539. This course was objected to by counsel for the accused on the ground that to present a nolle prosequi would be an abuse of the process of the Court, but the learned judge held that no impropriety was involved at that stage. The view taken by his Honour was that the question whether there was any abuse of the process of the Court could only be determined if and when any further indictment was presented, and depended upon a consideration of the precise terms of that indictment. On that charge the accused was accordingly discharged.

It will be noted that under the present indictment the different offence of fraudulent false accounting is charged. Almost a year has elapsed since the last hearing. It is now more than one year and ten months from the date of committal, a very long delay having regard to the standard adopted under the Constitution, s. 37(14), of trials being heard within 4 months of committal.

It is convenient to deal first with the ground that the presentment of the indictment is in all the circumstances an abuse of the process of the Court. The facts as submitted to the Court are that the accused was employed as Collector of Public Monies at the Police Station, Madang. Part of his duties was the collection of fees for various licences, for which receipts were given to the payer. The Public Prosecutor did not consider it necessary to go into details. He conceded that the present charge was related to the earlier one, for the falsification of the cheque is alleged to have been one of the means adopted by the accused to effect the theft the subject of the previous charge.

It is said that the facts relating to the falsification were not discovered by the prosecution until immediately after the first hearing when, a search having been instituted, the cheque was found in the brief of the police prosecutor, and duplicate copies of the receipts were found at the police station.

It is well-established that a superior court has the power inherent in its jurisdiction to prevent any abuse of its process, and to control its own procedure. It has been so held in England in Connelly v. D.P.P. [cxliv]². The rule was applied by the pre-Independence Full Court in relation to the Supreme Court of Papua New Guinea. Reg. v. Abia Tambule & Ors. [cxlv]³. O�Leary A.J. had no doubt that this Court �as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process�, (The State v. Peter Painke [cxlvi]⁴), and I agree with that opinion.

Counsel for the defence submitted that it is clear that if an indictment containing the same charge had been later preferred, following the entry of the nolle prosequi, it would have been an abuse of the process of the Court, a submission fully conceded by the Public Prosecutor. His argument is that the indictment is justified because the offence is different.

The extent of the Court�s powers at common law on any application of this nature was laid down in Connelly v. D.P.P. [cxlvii]⁵. It was held that the Court has a discretion (outside the limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay, a subsequent indictment containing charges founded on the same facts as those on which a previous indictment is based or forming or being part of a series of offences based on the one incident. In my opinion that rule is fully applicable to the circumstances of Papua New Guinea. The Public Prosecutor�s argument is really the same as the opinion of the minority of the Court in Connelly v. D.P.P. [cxlviii]⁶.

On the present facts I can conclude only that the theft and the means alleged to have been taken by the accused by way of falsification of the cheque to effect the theft, are all based on the one incident. The subsequent discovery of the cheque and the receipts, clearly cannot avail the prosecution as a basis of the new charge.

It is true that they were not in the hands of the prosecutor at the previous hearing. But it is to be taken that they were available to the prosecution, because, as events proved, they could have been discovered by diligent search. I consider that the prosecution cannot complain if its actions in undertaking the search at that late stage and the fresh indictment are seen as an attempt to get around the Court�s ruling on the original charge.

If following the discovery of the documents an indictment had been promptly prepared upon the present charge and presented to the Court at the same sittings, in my opinion it would have been seen clearly as an attempt to put the accused in jeopardy upon a charge which was related to and part of the same incident, and the preferment of which it had already been held was an abuse of the process of the Court. Having regard to the further delay which has been allowed to run, the accused�s case is the stronger.

I repeat each case is to be decided on its own facts. This is not a case, to take the example put by counsel for the accused, of a prosecution for murder held up for lack of evidence and renewed, say, after the discovery of the dead body. The result in this case is very much determined by the earlier ruling.

In my opinion the application is soundly based on the second ground, and I would uphold it and stay the indictment.

Whilst it is unnecessary to express any opinion on the first ground I should refer to the useful arguments raised by both counsel. If a breach of s. 37(3) was proved, counsel for the accused sought an order pursuant to the Constitution, s. 57(1) and (3) or s. 22, enforcing the accused�s Constitutional right. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss. 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s. 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s. 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant Constitutional provision. As to the case of Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [cxlix]⁷, it was assumed there that the Court had jurisdiction, and the matter was not argued.

So far as the argument upon s. 37(3) is concerned, what did emerge is some possible difficulty in its application. The section is wide enough to cover offences triable summarily and also upon indictment after committal. But what if the offence stated in a long-standing charge is amended in some material particular immediately before the trial, or a different offence substituted? Counsel for the accused argued that that section refers to a hearing consequent upon the original charge, presumably irrespective of any amendment or change in the offence, an interpretation analogous to the effect of the Constitution, s. 37(14). That section is expressed in the broad terms that a detailed report is required to be made in the event merely that the trial of a person is not commenced within four months of committal. The intepretation however submitted by the Public Prosecutor was that, on the plain meaning of the section the rights thereby conferred are to be restricted to an operation in respect of a specific charge. These arguments can be left until the matter is necessary for decision.

The appropriate form of order is that the indictment should remain on the file not to be proceeded with. Connelly v. D.P.P.[cl]⁸�per Devlin J. at p. 1359.

Order accordingly.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

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

[cxliv][1964] A.C. 1254.

[cxlv][1974] P.N.G.L.R. 250.

[cxlvi][1976] P.N.G.L.R. 210 at p. 212.

[cxlvii][1964] A.C. 1254.

[cxlviii][1964] A.C. 1254.

[cxlix][1977] P.N.G.L.R. 80.

[cl] [1964] A.C. 1254 at p. 1359.