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State v Marukam [2012] PGNC 357; N4724 (12 June 2012)

N4724

PAPUA NEW GUINEA
[INTHE NATIONAL COURT OF JUSTICE]

CR. 435 OF 2011

THE STATE

-V-

YAMARAK MARUKAM

Wabag: Gauli, AJ
2012: June 12.

PRACTICE AND PROCEDURES – Public Prosecutor or State Prosecutor – Power to file – Nolle Prosequi – No statement from the victim obtained and filed – No admissions by the accused in the record of interview.

Facts:

The accused was indicted on one count of sexual penetration of a 4 year old female child. The State after presenting the indictment filed a Nolle Prosequi against the accused stating that there is insufficient evidence to further proceed with the charge.

Cases Cited:

The State -v- Luke Kokon (2007) N3353

Counsel:

Mr. M. Ruari, for the State
Mr. Siminji, for the Accused

NOLLE PROSEQUI.

12th July, 2012

1. GAULI, AJ: The accused Yamarak Marukam stands charged before this Court on one count of sexual penetration of a child under the age of 12 years, charged under section 229A(1) of the Criminal Code Act.
   
2. The Public Prosecutor presented the indictment which the Court accepted it. The charge was read and explained to the accused. The indictment states that on the 14th of February 2009 at Sari village, Wabag, Enga Province, the accused engaged in an act of sexual penetration of a child aged 4 years by inserting his penis into her vagina.
   
3. After putting the charge to the accused, the Prosecutor presented a Nolle Prosequi stating that the State will not proceed any further against the accused with the indictment filed on 12th of June 2012 on the charge of sexual penetration. The reasons advance by the Prosecutor are that:
   
   1. The investigation officer has not obtained and filed the statement from the victim.
   2. There is insufficient evidence against the accused.
   3. There was no admission made by the accused in the record of interview.
      
4. Section 527 of the Criminal Code Act gives the Prosecutor the power to inform the National Court that the Prosecutor will not proceed further with the indictment by filing or presenting a "nolle prosequi". This provision states and I quote:
   

"527 Nolle Prosequi

(1) The Public Prosecutor or the State Prosecutor may at anytime inform the National Court that an indictment then pending in the Court will not be further proceeded with, by filing with or presenting to the Court a document under his hand to that effect.

(2) When the document referred to in Subsection (1) is filed or presented the person named in it is to be immediately discharged from any further proceedings on the indictment to which it relates".

5. The Public Prosecutor or the State Prosecutor has the right to chose who to prosecute or not to prosecute and it has the right to choose what offence the offender to be indicted with based on the evidence before it. The right of the Prosecutor, in making such election, is always respected by the Court. The election as to a nolle prosequi under s. 527 or a declaration, declining not to lay a charge under s. 525(3) of the Criminal Code Act, ought to be made with great care. And it is always a good practice that the Prosecutor ought to give reasons why he decided to take the course he takes: see The State v. Luke Kokon (2007) N3353.
   
6. In the proceedings before me the Prosecutor did give his reasons as stated above which I have given consideration to them. I had a quick glance through the file. I am satisfied that there is no statement from the victim in the file. Also in the record of interview, there is no admission by the accused as he elected not to answer any more questions put to him by the investigation officer but he will tell his story later in court. The statement from the witnesses were based on what was been told to them by others. And I accepted the reasons given by the Prosecutor that there is insufficient evidence to proceed with the matter further particularly when there is no statement from the victim.
   
7. When the Prosecutor files or presents either the nolle prosequi or the declaration in Court, the National Court should read the depositions before him from the Committal file to substantiate the course the prosecutor has taken. I have read the depositions from the Committal Court and I am satisfied that there is no statement from the victim nor was there admission by the accused in the record of interview of the crime he has been charged with. The statements from the witnesses in the file were mostly what was been told to them by others. And that been the situation as it is, I have accepted the Prosecutor's presentation of the nolle prosequi in the absence of any statement from the victim.
   
8. In a Nolle Prosequi the offender is only discharged and he may be later re-charged when there arise a changing circumstance, unlike the Declaration where the offender is acquitted which is equivalent to the case been dismissed.
   
9. Having accepted the presentation of the nolle prosequi by the Prosecutor, I ordered that the accused be discharged from custody forthwith, pursuant to section 527 (2) of the Criminal Code Act.
   

Ordered accordingly.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused