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State v Burege (No 1) [1992] PGNC 80; [1992] PNGLR 481; N1069 (28 February 1992)

N1069

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ESOROM BUREGE (NO 1)

Rabaul
Jalina J

27-28 February 1992

CRIMINAL LAW - Practice and procedure - Indictments - Public Prosecutor's indictment signed by State Prosecutor - Information ordered to be withdrawn - No refusal to commit for trial - Whether refusal to commit is a pre-requisite to signature and presentation of indictment pursuant to s 526 (1) of Criminal Code.

PRACTICE AND PROCEDURE - Whether signature of indictment by State Prosecutor ultra vires his powers - Criminal Code ss 524, 525 and 526 (1) - Whether indictment without refusal to commit amounted to an abuse of process of Court - Criminal Code s 526 (1).

Facts

The accused was charged with applying to his own use a sum of K166,553.61 being the property of the State. He was placed on bail pending the finalization of prosecution statements prior to the committal hearing. After numerous delays caused by prosecutor's omission to serve witnesses' statements and defects in the information, the defence counsel applied to the Rabaul District Court for the information to be withdrawn, which the Court ordered.

The State Prosecutor subsequently sought to present an indictment to the National Court. The defence counsel objected to the presentation of the indictment on 2 grounds:

1. It was defective or ultra vires as it was signed by the State Prosecutor, not by the Public Prosecutor, s 526(1) of the Criminal Code;

2. There was no refusal by the court of summary jurisdiction to commit the accused for trial.

Held

1. The order by the District Court magistrate for the withdrawal of the Information did not amount to a refusal to commit for trial.

2. Refusal to commit for trial is a pre-requisite to the exercise by the Public Prosecutor of his powers under s 526 (1) of the Criminal Code.

3. Unlike s 525, which provides for the Public Prosecutor and State Prosecutor to sign indictments, only the Public Prosecutor may sign indictments under s 526 (1) when there was a refusal to commit for trial.

4. The signature by the State Prosecutor of an indictment pursuant to s 526 (1) was ultra vires his powers.

5. The signature of the indictment by the State Prosecutor under s 526 (1) was not only invalid but amounted to an abuse of process of the Court in the circumstances.

Cases Cited

Smedley v The State [1980] PNGLR 379.

Counsel

Mr Miviri, for the State.
Mr Jubilee, for the accused.

28 February 1992

JALINA J: This is a matter involving the former Member of National Parliament for the Gazelle Open Electorate, Mr Esorom Burege.

The brief history of the matter is that an information against the accused for applying to his own use the sum of K166,553.61, the property of the Papua New Guinea government, was laid on 10 January 1992. The accused appeared before the District Court on the same day and was released on conditional bail. The case was then adjourned for 14 days to 24 January 1992 as the prosecution did not have the witnesses' statements ready. When the accused appeared on 24 January 1992, he made an application for variation of condition of bail relating to the requirement that he reports to police. This was granted and, again, on 24 January 1992 the prosecution was unable to tender witnesses' statements as they were not ready, so the case was further adjourned to 4 February 1992. Even on 4 February 1992, the statements were not ready, so the case was further adjourned to 18 February 1992. However, on 11 February 1992, the accused was served through his lawyer, Mr Jubilee, with copies of the witnesses' statements. When he appeared on 18 February for committal hearing, the police prosecutor informed the presiding magistrate that the witnesses' statements had only been served on the senior provincial magistrate the previous day and, as such, he was unable to present them to the court. At this stage, Mr Jubilee objected to the information on the basis that it was defective and that it did not comply with s 37 of the District Courts Act Ch 40, in that the depositions contained certain distinct allegations of offences allegedly committed by the accused and no evidence of the specific sums alleged in the information were to be found in the witnesses' statements. It was an objection to the information only. The committal proceedings had not started.

After hearing arguments in support of the objection, the presiding magistrate adjourned to 21 February 1992 to enable him to peruse the witnesses' statements and also to enable the prosecution to reply to defence counsel's objection, prior to making a ruling on such objection.

When the court resumed on 21 February 1992, the court heard submissions from the Police Prosecutor and a reply from counsel for the accused, Mr Jubilee. The Court then ruled that the information should be withdrawn on the grounds that it was defective, and his Worship ordered that a fresh information be laid by the prosecution.

On 28 February 1992, after dealing with some of the cases on the Rabaul list for February, I enquired of counsel as to whether there were further cases to be dealt with. Mr Miviri, counsel for the State, then sought to present an indictment against the accused. Mr Jubilee, for the accused, objected to the presentation of the indictment. The grounds for the objection are two-fold. The first ground is that the indictment sought to be presented by the State Prosecutor, pursuant to s 526(1) of the Criminal Code, was defective or was ultra vires his powers, because it was an indictment signed by the State Prosecutor himself. He argued that under that section an indictment can only be signed by the Public Prosecutor where a court of summary jurisdiction had refused to commit an accused person for trial. He submitted that, in the instant case, the indictment had, in fact, been signed by the State Prosecutor, Mr Miviri, and not by the Public Prosecutor or the Acting Public Prosecutor.

The second ground for his objection was that there was no refusal by the court of summary jurisdiction to commit the accused for trial. He submitted that refusal to commit an accused person for trial was a prerequisite to the exercise of the powers by the Public Prosecutor under s 526(1) of the Criminal Code. In support of this submission, he relied on the case of Smedley v The State [1980] PNGLR 379, where Pratt J decided that ex-officio indictments, as they were then known, were restricted to a refusal to commit. In other words, the process of committal must have taken place and the magistrate must have refused to commit the accused for trial before such an indictment could be signed by the Public Prosecutor and presented by either himself or a State Prosecutor.

Mr Jubilee also submitted that, considering the history of the matter and the circumstances under which the indictment was sought to be presented, this amounted to an abuse of the process of the Court. Consequently, I should refuse to accept the indictment.

Mr Miviri, in a futile attempt to justify the presentation of the indictment, sought to rely on the provisions of the Public Prosecutor (Office and Functions) Act Ch 338.

In respect of the first ground of Mr Jubilee's objection, Mr Miviri submitted that although the Public Prosecutor is the person empowered under s 526(1) to indict a person whom a court of summary jurisdiction had refused to commit for trial, a State Prosecutor can also indict such a person by virtue of a delegation from the Public Prosecutor under that act. He also submitted in regards to the first ground that, under s 526(2), a State Prosecutor can indict a person whose committal has been refused by a court of summary jurisdiction.

In respect of the second ground relied on by Mr Jubilee, Mr Miviri submitted that the committal proceedings had commenced by the laying of the information and that, when the magistrate ruled on the objection to the information and decided that the information be withdrawn, it amounted to a refusal to commit and, as such, the indictment was not defective. He submitted that the police prosecutor had applied for an amendment to the information but the magistrate had refused such an amendment. Consequently, the magistrate had refused to commit the accused for trial. It was no use laying a further information containing the same term.

Mr Jubilee, in his response to Mr Miviri's reply, conceded that the laying of the information commenced the committal proceedings, but he went on to submit that the objection was not raised at the outset because the witnesses' statements were not available and that the objection had been properly raised by the defence after it had perused the depositions and ascertained whether or not the information was supported by the evidence contained in the witnesses' statements. Mr Jubilee went on to submit that under the District Courts Act, when an information is laid, the magistrate considers, first, whether the information he is about to preside over is a defective one. That is his prime responsibility. If he is satisfied that it is properly laid, he then considers the evidence and decides whether or not he should commit the defendant for trial. If he decides that the information is defective, then he is entitled to make orders dismissing that information or striking it out. He submitted that, in this case, the learned magistrate was entitled to order the withdrawal of the information.

I am now to rule on the objection raised by Mr Jubilee for the accused. I point out at the outset that I am amazed at the manner in which the prosecution has sought to present the indictment. First of all, this court had a number of cases listed for trial, and I cannot see why the prosecution has sought, as it were, to take a "short-cut" in dealing with this particular matter. As the learned magistrate had ordered that the information be withdrawn, I would have thought that the police had been given another chance in that they could now have the information done properly and then have it laid again before the District Court. It was not a case where the magistrate had dismissed the information, in which case it could be construed as a refusal to commit the defendant for trial.

I will now deal with the substance of the objection. Section 524 of the Criminal Code, which deals with the procedure to be followed in the presentation of indictments, provides that no indictment may be presented in the National Court except in accordance with s 525 and s 526. Section 525 provides for a person who has been committed for trial or sentence for an indictable offence to be charged through an indictment after the Public Prosecutor or a State Prosecutor has considered the evidence in the matter. Subsection (2) of that section provides for the indictment to be presented to the National Court by the Public Prosecutor or by any State Prosecutor. Section 526, which deals with indictments without committal, provides in subsection (1) that the Public Prosecutor may consider the evidence contained in the depositions taken before the court (and any other relevant evidence) and reduce into writing, in an indictment, a charge of any offence that the evidence appears to warrant in a case where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence. Subsection (2) of this section provides that the indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.

From my reading of ss 524 to 526, it is clear that s 524 regulates the signature and presentation of indictments. Section 525 deals with indictment where a person has been committed for trial and s 526 deals with cases where a person has not been committed for trial. That is a case where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence.

Unlike s 525 (1), where the Public Prosecutor or a State Prosecutor may consider the evidence in a matter and may reduce to writing in an indictment a charge of any offence that the evidence appears to him to warrant, or to decline to lay a charge, s 526 (1) is in very clear terms. It provides only for the Public Prosecutor, after considering the evidence contained in the depositions taken before the court (and any other evidence), to reduce into writing in an indictment a charge of any offence that the evidence appears to warrant. It does not provide for a State Prosecutor to also consider the evidence and reduce in writing in an indictment a charge of any offence that the evidence appears to warrant although, in practice, a State Prosecutor considers the evidence and makes the relevant recommendation to the Public Prosecutor to indict the person. The Public Prosecutor then sends the indictment back to the prosecutor to present to the National Court and prosecute the accused. The exercise, therefore, of the powers of the Public Prosecutor pursuant to s 526 (1) does not arise until after a court of summary jurisdiction has refused to commit a person for trial. This is what Pratt J appears to have decided in Smedley's case (supra), which counsel for the accused has referred me to and to which I agree.

In the circumstance of this particular case, I am inclined to accept the submissions put to me by the defence counsel. I find, therefore, that the purported signature and presentation by the State Prosecutor of the indictment against this accused was defective and was, in fact, ultra vires his powers under s 526(1) of the Criminal Code. Not only has the prosecution failed to satisfy the prerequisite of a refusal to commit for trial, but the State Prosecutor also could not, in my view, sign an indictment under that section.

In view of the lengthy discussions by the learned authors (Chalmers, Weisbrot and Andrew) in their book Criminal Law and Practice of Papua New Guinea 2nd edn at pages 569 to 587, of the principles and authorities in this jurisdiction relating to ex-officio indictments, which an indictment under s 526(1) in effect is, I cannot understand why the prosecution has dealt with this case in a manner it has purported to do. In the light of the principles and authorities referred to in the book, I cannot reject the forceful submission of Mr Jubilee, counsel for the accused. I reject Mr Miviri's submissions in view of what I have said above. I also reject his submissions founded on the delegatory provisions of the Public Prosecutor (Office and Functions) Act Ch 338, as there is no provision under that act for the Public Prosecutor to delegate his powers to a State Prosecutor.

I find, therefore, that the indictment purported to be signed and presented against the accused was not only defective but was also ultra vires the powers of the State Prosecutor, who purported to exercise the powers of the Public Prosecutor under s 526(1) of the Criminal Code.

I also find in all the circumstances of this case that there has been an abuse of the process of the court. Accordingly, I refuse to accept the indictment.

_______________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Jubilee and Lawyers.