State v Agen (No 2) [2022] PGNC 594; N10276 (26 April 2022)

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CRIMINAL LAW – Practice and Procedure – Application to quash the indictment - Section 558 (1) and (2) of the Criminal Code Act – Whether the indictment is formally defective - Whether grounds relied on are proper or adequate

Papua New Guinean Cases
Application by Herman Joseph Leahy (2006) SC855 at [141]
John Alex v Martin Golu [1983] PNGLR 117
R v Burusep & Ors [1963] PNGLR 181
Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388)
Regina v Little [1967] PGSC 28; [1967-68] PNGLR 63
SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PGSC 15
State v Dau [2020] PGNC 278; N8611
State v Douba (2018) N7627. Per Kandakasi J
State v Louise Paraka (2002) N2317
State v Paul Paraka Cr (FC) 118 of 2019 N8807
State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807. [30]
State v Popo [1987] PNGLR 286
State v Robert Agen (No 1) [2021] PGNC 620; N9652
State v Wau [2012] PGNC 340; N4645
Thompson v Kalaut (2011) N4265
Wartoto v State [2015] PGSC 1; SC1411 at para 50

1. GANAII, AJ: This is the ruling on an application by the accused made under s 558 (1) and (2) of the Criminal Code Act seeking to have the Court quash the indictment on the basis that it was calculated to prejudice or embarrass him in his defence and also that it was defective in substance.

2. The State presented an indictment against the accused charging him with one count of Assault occasioning bodily harm contrary to section 340 (1); one count of Rape contrary to section 347 (1); and one count of Grievous Bodily Harm, contrary to section 319, all of the Criminal Code Act. For Count 3, alternatively, State indicted on one count of Assault occasioning bodily harm contrary to section 340 (1) of the Criminal Code Act. Before taking his plea, the accused’s lawyer moved this motion.

3. The applicant relied on an amended Notice of Motion (NOM) and an affidavit by the applicant Mr Agen.

4. By the consent of all parties, Ground 2 of the motion is to be moved separately from Grounds 1 and 3. I will only deal with grounds 1 and 3 of the motion in this ruling. They are in the following terms.

Ground 1

1. The indictment presented against the applicant/accused by the State on the 22^nd of December 2021 be quashed as it is calculated to prejudice or embarrass him in his defence to the charges, as it is defective for instance, [under] section 558 (1) and (2) of the Criminal Code, for reasons that there was a gross abuse of the court process when the police arresting officer in this case stands as a dismissed police officer at the time of the arrest of the applicant/accused as per section 33 of the Police Act, and that his (defendant’s ) right to freedom and liberty under sections 32 and 42 of the Constitution have been breached to date.

Ground 2 (to be argued and ruled on separately).

Ground 3

3. All four charges on the indictment be struck out for want of proper arrest by the police at the outset when the three new charges were introduced by the Public Prosecutor to the Police to charge the applicant/accused then pursuant to sections 558 of the Criminal Code, sections 3 (Arrest) 17, 18 (Duty of Police officers after arrest) of the Arrest Act, and sections 42 (2) (Liberty of a Person) and 37 (4) (b) (b) (shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged) of the Constitution is also a gross abuse of the Court process.

5. The evidence by Mr Agen supports the contentions raised in the above grounds. Grounds 1 and 3 are related and will be together in this ruling as Grounds 1 and 2.

6. State relied on the same evidence in State v Robert Agen (No 1) [2021] PGNC 620; N9652 (18 November 2021), which are the affidavits of Inspector Terry Apolos and Constable Joshua Kraip. Inspector Apolos was the immediate supervisor in charge of Constable Kraip. He received a formal compliant and tasked Constable Kraip to carry out investigations in the matter. The instructions were lawful and Constable Kraip had complied, resulting in him conducting lawful investigations, and maying an arrest and laying of charges against the accused. Based on further evidence, and advice from the Public Prosecutor, the Arresting Officer had proceeded to laying additional charges or information at the committal court.

Whether the arrest of the applicant by a convicted Police Officer who ought to have been dismissed form the Police Force is null and void warranting the quashing of the indictment? and

Whether the Public Prosecutor’s advice to the Police in refusing to sign an Election Certificate and further advice to amend the charges on the Police Information at the committal stage is an abuse of the court process thus warranting the quashing of an indictment at trial?

8. Section 558 of the Criminal Code Act provides that a person may, before pleading, apply to quash an indictment on the basis it is formally defective, or because it is calculated to prejudice or embarrass him in his defence to the charge.

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that–

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

10. The Public Prosecutors (Office and Functions) Act^[1] provides for the functions of the Public Prosecutor in these terms:

(h) may, in his absolute discretion, provide assistance, either by provision of legal representation or otherwise, where–

(i) it is requested by the State; or
(ii) in his opinion, it is necessary to do so in the interests of justice, or in the public interest,

in the prosecution of offences or the conduct of committal proceedings before any court other than the National Court or the Supreme Court;

11. Issue arising from ground 1 is whether the indictment presented against the accused is defective, following on from an arrest and charge of the accused by a convicted Police Investigating and Arresting Officer who ought to have been dismissed form the Police Force?

12. Mr Sebby of learned counsel for the accused contends that the accused’s arrest was not proper from the start as Constable Joshua Kraip, the Police Informant who, investigated, arrested and charged the accused was a convicted person and ought to have been dismissed from the police force, pursuant to s 33 of the Police Act^[2]. Counsel argued that because of s 33 of the Police Act, Constable Kraip was prevented from performing police duties and functions. Where he did so, the arrest and charge by Constable Kraip of the accused was not proper, was unlawful and null and void ab initio.

13. Counsel further submitted that the arrest and laying of charges were improper and unlawful and therefore, amounted to a breach of the accused’s Constitutional right under section 32 ‘(Right to Freedom) and 42 (Liberty of a Person) of the Constitution.

14. Mr Sebby also submitted that the improper conduct of the Police Arresting Officer amounted to a breach of the Arrest Act, thus nullifying the arrest. Counsel argued that consequently, the arrest is to be nullified, the indictment is to be declared defective and must be quashed. The case will be dismissed and the accused discharged.

15. The issue arising from ground 2 is whether the Public Prosecutor’s advice to the Police in refusing to sign an Election Certificate and further advice to amend the charges on the Police Information at the committal stage is an abuse of the court process thus warranting the quashing of an indictment at trial?

16. Mr Sebby of counsel for the accused argues that the amendment of the initial charge from one of common assault to the presentation of two new information bearing additional charges of Grievous Bodily Harm and Rape is an abuse of the Court’s process when the Police failed to withdraw the initial charge and arrest and charge the applicant for the new charges.

17. It is the defence argument that where no proper arrests were made on the new charges, where the applicant was not called to attend to a police interview, and where no ROI was produced, the Police have breached their investigative procedures and consequently, the accused was denied his Constitutional right to be properly informed of his charge, and to be given an opportunity to respond.

18. Mr Sebby argued that by backdating the new information to the date in which the initial arrest was made for the charge of Common Assault, the Police had in fact lied that the charges were based on an initial complaint laid at that time.

19. Learned State Prosecutor Ms Suwae submitted that although these issues were determined by this court in a previous similar application and ruling, since a new indictment had been presented, the applicant is entitled to make any application under section 558 of the Criminal Code Act.

20. The State’s only submission in reply is that the grounds relied on are not proper basis to qualify for the quashing of an indictment under section 558 of the Criminal Code Act, and the application should be refused.

21. In relation to the second ground, the State counsel submitted that there are no specific laws that say that the police ought to conduct another Police Interview where additional charges are laid during the committal process; where investigations have been completed and where additional charges arise form a consideration of the same evidence, in the one and same court deposition.

22. State counsel submitted that the right to conduct another police interview with the accused is at the discretion of the arresting officer and not the accused. A ROI is merely an investigative tool whose relevance becomes important during trial, subject to compliance with the Constitution and rules of evidence. In the usual course of police investigations work, the police would invite the accused who is then required to attend to the police station for a police interview. At the interview, the accused can choose to remain silent or assist the police by responding. Where a police interview was not conducted in circumstances where additional charges are laid, the accused would still have the opportunity to respond to the additional charges at the committal hearing and at trial in the National Court.

23. At the outset, I state these. There are two forms of defect in an indictment according to case laws in order for s 558 to operate. The first is a formal defect which is limited to the form of the indictment. The second relates to a defect in substance. See cases of State v Wau [2012] PGNC 340; N4645 (20 March 2012, citing R v Burusep & Ors [1963] P&NGLR 181).

24. In the present matter, based on the grounds relied on as stated above, and submissions, it appears that the accused’s challenges to the indictment is based on allegations of formal defects of the indictment, due to the alleged impropriety of the Police, the Committal Court and the Public Prosecutor.

25. I now discuss the issue arising in ground 1, ie whether the arrest of the accused by a convicted Police Officer who ought to have been dismissed from the Police Force is null and void warranting the quashing of the indictment for being formally defective.

26. The issues raised under ground 1 had been fully determined in the matter of State v Robert Agen (No 1) [2021] PGNC 620; N9652 (18 November 2021). In that matter, the Court dealt with the preliminary application to dismiss the proceedings on allegations that the arrest and charge of the accused was null and void for the same reasons as raised here.

27. However, in this instant, the accused is entitled to challenge the indictment after an indictment has been presented, pursuant to s 558 of the CCA. This Court has heard the application and reserved to rule.

28. In this present ruling, I consider the affidavit of the applicant and I take judicial notice of the evidence and ruling in the case of State in Agen (No 1), supr. I adopt what was stated therein.

29. The State’s evidence, comprised of the affidavits of the case investigating Officer Constable Kraip and his immediate supervisor, Inspector Apolos. These evidences demonstrated that Inspector Apolos received a criminal complaint from the complainant and tasked Constable Kraip to carry out investigations and lay charges.

30. There is no evidence to suggest that the arrest and charge made by Constable Kraip and Inspector Apolos were done with an ulterior or bad motive against the accused. The applicant has not shown that his arrest was based on a false accusation or that Constable Kraip and his immediate superior Detective Inspector Terry Apolos had an ulterior motive for launching a criminal case against him. There also has not been any challenge in another court on the arrest and charge.

31. Evidence showed that Inspector Apolos was the immediate supervisor in charge of Constable Kraip. He said despite Constable Kraip’s criminal convictions, Constable Kaip was hardworking and was not dismissed from the Police Force by their superiors.

32. At paragraphs 3 and 4 of the affidavit of Detective Inspector Apolos, he deposed to the fact that upon the receipt of a criminal complaint against the accused, and upon reading the complaint and being satisfied himself that there is a case for the accused to answer, as his immediate supervisor, he then tasked Constable Kraip to take charge of the investigations.

33. The tasking instructions to Constable Kraip were therefore, lawful. These were complied with. Investigations were lawfully carried out by Constable Kraip resulting in the arrest and the consequential laying of Police Information or charges against the accused. I consider therefore, that under these circumstances, the arrest was lawful.

34. This Court is satisfied that pursuant to the ss 2^[3] and 3 requirements of the Arrest Act, Constable Kraip and Inspector Apolos have complied with the main pre-requisite for making an arrest in the first instance.

35. The fulfilment of this requirement is supported by their evidence. I am therefore, satisfied that Constable Kraip had acted in his capacity as a Police officer, based on the receipt of an official complaint and the tasking by his superior, and in “believing on reasonable grounds that an offence had been committed” proceeded to the laying of the charges.

36. The accused’s argument for a dismissal of his charges is not supported by evidence that demonstrated that the proceeding would not have been commenced, but for an ulterior purpose (Goldsmith v Sperrings Ltd [1977] 1 WLR 478 applied in State v Paul Paraka (Decision on Motions to Quash/Permanently Stay (No 2)) (2021) N8807. [30].

37. In Thompson v Kalaut (2011) N4265, Davani, J dismissed the criminal proceedings on the basis that the prosecutor was aware that the allegations were “utterly false”. In doing so the court stated among others at paragraph 101 that:

“This case is clearly one of abuse of process where the plaintiff was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, as being incorrect and false.

38. Unlike the Thompson v Kalaut case (supra), this matter is not one where the charges laid were incorrect and false. The dismissal of the Investigating Officer after his criminal conviction, was a matter for his superiors to deal with in an administrative capacity. The carrying out of lawful instructions to investigate, arrest and charge is proper without any ulterior motives. Dismissing a serious criminal charge on this basis is not proper and is not fair on a legitimised criminal court process that had already and lawfully commenced. Where it is not in the public interest to do so, the Court should not be quick to dismiss this serious criminal charges on such arguments alone.

39. I find that the arrest and charge of the accused by Constable Kraip was proper. The laying of the information and presentation of an indictment were proper and not formally or defective. The application to quash the indictment is therefore, not proper and is an abuse of the Court’s process.

40. The accused through his lawyer, had not challenged his arrest and charge at the committal proceedings. There also had not been any challenge on the committal of the accused to stand trial in the National Court. The committal court had lawfully discharged its administrative function within the ambits of ss 95 to 100 of the District Court Act^[4], by considering the evidence and making a ruling on sufficiency of evidence.

41. In Regina v Little [1967] PGSC 28; [1967-68] PNGLR 63 (29 May 1967), the Court held that since nothing had emerged during the District Court hearing to affect the validity of the information or the committal, the indictment presented pursuant to the committal could not be quashed on these grounds. Where the arrest and charge were not challenged and accepted to be done on proper legal basis, the indictment following the committal is in order and cannot be quashed on that basis.

42. The issue in Regina v Little (supra) is similar to the present matter. Where the accused failed to raise this as an issue during committal, he had forgone his right to do so. I consider that the accused’s position not to raise any issues on his arrets and charge at the committal stage is tantamount to him accepting that he had been properly brought before the Court. The accused cannot now raise the matter when the case is set to go to trial. This is an abuse of the courts process, causing unnecessary delay and a waste of judicial time. The court must therefore protect its processes from abuse.

43. In the circumstance of the present case, the indictment is not formally defective and cannot be quashed on that ground under s 558 of the CCA.

44. Further, I consider that it is clear law that any irregularity, defect or an abuse of process must be raised at the appropriate level. Failing that, a party could be precluded from raising such an issue belatedly and succeed. See Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015) at para 50.

45. I now deal with the question relating to the Public Prosecutor’s refusal to sign an election certificate and further advice to the Police to amend the charges on the Police Information.

46. In State v Dau [2020] PGNC 278; N8611 (9 October 2020), ( see also In Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388), the Court said the laying of the information against the accused at the District Court containing charges under the Criminal Code Act was within the powers of the police. It was for the police at that stage to choose the appropriate charge.

“As for the National Court proceedings, it is well established that the Public Prosecutor is responsible for controlling the exercise and performance of the prosecution function of the State pursuant to s. 176 and 177 of the Constitution. As explained by the Supreme Court in Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 at [141]:

“These provisions establish the office of the Public Prosecutor and provide for the functions of the office, one of the most important of which is "to control the exercise and performance of the prosecution function ... before the Supreme Court and the National Court". The Public Prosecutor (Office and Functions) Act fleshes out that function. Section 526 gives effect to it. It facilitates the exercise and performance of the prosecution function. It allows the Public Prosecutor to control it. It allows the Public Prosecutor to decide what cases are prosecuted in the National Court.”

48. The decision by the Public Prosecutor to refuse to elect a matter to be dealt with summarily is well within law and is a control of the exercise of his functions to allow a matter to be tried and prosecuted in the National Court^[5]. It is not an abuse of his powers.

49. Pursuant to s 4 (ga) of Public Prosecutors (Office and Functions Act), Chapter No 383 of 1977, the Public Prosecutor had lawfully exercised his discretion to refuse an election as the method of proceeding under Section 420 of the Criminal Code Act.

50. The is no evidence to support the finding that the Public Prosecutor had abused his powers to elect to proceed summarily. Hence, this is not a proper ground for moving an application to quash the indictment for being formally defective under s 558 of the Criminal Code Act.

51. This power is also essential to ensuring that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct which is disclosed by the evidence, see The State v Douba (2018) N7627. As per Kandakasi J in The State v Louise Paraka (2002) N2317, s. 525 proceeds on the basis that the Public Prosecutor, or a State Prosecutor for that matter, “is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffer the charge he considers sustainable".

52. In the present case, based on the same evidence contained in the one and same Police Hand-up Brief, which contained an initial charge against the accused, the Public Prosecutor had assessed the evidence therein and had decided not to make an election so that the matter proceeded summarily.

53. Pursuant to s 4 (h) of Public Prosecutors (Office and Functions Act), supra, the Public Prosecutor had lawfully exercised his discretion to provide advice to the Police, where in his opinion, it was necessary to do so in the interests of justice, or in the public interest, in the prosecution of offences or the conduct of committal proceedings before the District Court.

54. In the deliberate act of his advisory role to the Police, the Public Prosecutor had advised that the matter proceeded as a committal matter with additional charges to be laid. This is clearly an exercise of the Public Prosecutors lawful powers and functions. The Committal Court, in its assessment of the evidence had then ruled that there was sufficient evidence to commit the accused to stand trial in the National Court, on those additional charges.

55. Post committal, pursuant to its powers under s 525 of the Criminal Code Act, the Public Prosecutor had acted within his powers by proffering a charge on the indictment presented to Court. It cannot be said that indictment is formally or defective due to the laying of the additional charge. This is not a proper ground for seeking the quashing of an indictment for being defective under s 558 of the CCA.

56. The argument by the defence under this ground is that due to there being no police interview conducted on the accused regarding the additional charges, the arrest and charges were nullified. State conceded that whilst no interview was conducted for the additional charges, it was not necessary in the circumstance as the accused was already appearing in the committal court for initial charges.

57. I consider that the defence argument has no proper legal basis. I say this because the practice of conducting Police interviews, out of which a Record of Interview (ROI) is produced, is not compulsory and was developed out of practice and mainly as a police investigative tool.

58. The defence argued that without the conduct of the police interview, the accused was not given an opportunity to respond to his charges at the earliest time and that amounts to a breach of his constitutional rights. Defence contends that this makes his arrest null and void and of no effect. Consequently, the indictment that was presented following on from this is defective arrest and charge should be quashed under s 558 of the CCA.

59. The accused may refuse to attend a police interview because of his right of innocence until proven guilty in a court of law. But if he chooses to attend to a police interview, he may choose to remain silent in the exercise of his Constitutional right of innocence until proven guilty or make a statement if he so wishes.

60. This Court considers that even though a police interview was not conducted, so that among others, the additional charges were not explained to the accused then, other processes were available to him at both the committal court and the trial court whereby he would be informed of his charges and have had the opportunity to respond and defend himself if he so wished. This Court therefore, rejects the submission that the additional two charges are null and void because a police interview was not conducted to explain these charges to the accused.

61. In the case of State v Paul Paraka Cr (FC) 118 of 2019 N8807 (23^rd April 2021), although it was an application seeking a permanent stay, I find these comments relevant, where the Court referred to allegations of breach of Constitutional rights. At para [43], the Court said:

“It does not follow that a breach of a right under the Constitution automatically entitles an accused person to a permanent stay of proceedings pursuant to s 57(3) of the Constitution. It is my view that in determining whether it is “necessary or appropriate” to permanently stay proceedings in the event of a failure to comply with a person’s rights under the Constitution, the Court should have regard to the principles outlined in the authorities discussed above.

62. The court was referring to the authorities in the case examples of John Alex v Martin Golu [1983] PNGLR 117; The State v Popo [1987] PNGLR 286; Reference No 1 of 1977 [1977] PNGLR 362 where the court said the fundamental rights under the Constitution are supreme: s 11, and the power to enforce them cannot be derogated from: s 57(6).

63. This meant that breaches of rights under the Constitution can be cured by appropriate orders or directions at trial. For instance, a trial judge may decide in the exercise of discretion to exclude a record of interview obtained in breach of s 42 (2) of the Constitution in an appropriate case. (State v Paul Paraka, supra).

64. In the present case, the accused alleges breaches of his Constitutional right. If these alleged police impropriety affected the fair conduct of trial when adducing evidence, those matters can be raised at trial proper and the trial Court can consider the issues and rule accordingly.

65. In line with case principles, and where there is no evidence support such allegations, I consider that breaches of Constitutional rights do not automatically entitle a stay or dismissal of the current proceedings.

Interest of justice
66. As discussed in State v Agen (No 1), supra, it was stated that one of the main considerations that the court must have regard to when considering the quashing of an indictment, is the question of interest of justice. This was discussed in State v Robert Agen (No 1) (supra). I again discuss this as a relevant consideration in the present motion.

67. The accused had been charged with a serious indictable offence. In criminal proceedings, the interest of justice requires the court to assess whether it is fair in the circumstance of a case to dismiss a case where the accused is charged with a serious indictable offence. The interest of the accused must be weighed against the interest of the state or the public at large. This is because justice is for everyone including the Independent State of Papua New Guinea who are the people of PNG and are a party in all criminal proceedings.

68. The case of Paraka (supra), is relevant to the present matter for the Court’s consideration on the principle of public interest. The Court held among others as follows:

“(2) To permanently stay criminal proceedings is an extreme remedy, only to be exercised in the most exceptional circumstances, as a last resort. There is substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: see Jago v District Court of NSW (supra); State v Wohuinangu (supra; Re Namah (2018) N7194; Crawley (supra); Wartoto (supra); Thompson v Kalaut (2011) N4265”.

“In determining whether to stay a proceeding, the court must balance the public interest in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (supra). When considered in this way, it necessarily follows that a permanent stay will only ever be required in very exceptional circumstances”.

70. In the present matter, the quashing of an indictment, which has a similar effect to the consequence of getting a permanent stay, interferes with the public interest and is equivalent to conferring on the accused, immunity from prosecution. That is an extreme remedy and the Courts should only exercise such a power in the most exceptional circumstances. The grounds relied on by the defence to quash the indictment were not proper grounds for moving such an application, as discussed above. The court will refuse the application for relying on them.

71. A further consideration is that this matter has been set as ready for trial and all witnesses have been ready, waiting for their day in court since the commission of the alleged offence three years ago. At the time of hearing of this application, the learned State Prosecutor had informed the court that the State witnesses were present at the court vicinity, ready for trial. Given their readiness, in the interest justice, and the interest of the State at large, the matter must progress to trial as the offence involves allegations of very serious indictable offences.

72. The overriding principle of ‘interest of justice’ requires the court to balance the interest of the accused against the State’s interest that is the public at large and the Court processes. The public interest is in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system.

71. In stating the above conclusions, the grounds relied on by the accused do not come under the requirements of section 558 of the Criminal Code Act for the indictment to be quashed for being formally defective. Further, these arguments do not show any prejudice or cause embarrassment to the accused’s defence in any way.

72. For the above reasons, the application to quash the indictment in reliance on grounds 1 and 2 is refused, for being an abuse of the Court’s process.

(2) Matter to proceed to trial.
Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Joppo Lawyers: Lawyers for the Defendant

^[1] Chapter 338 OF 1977
^[2] Chapter No 37 of 1998
^[3] For the purposes of this Act a person believes something on reasonable grounds if–(a) he personally has that belief; and (b) there are reasonable grounds for that belief

[5] Public Prosecutor (Office and Functions) Act 197, S 4 (ga) says the Public Prosecutor may, in his absolute discretion, elect the method of proceeding under Section 420 of the Criminal Code 1974, including the withdrawal of an information.

National Court of Papua New Guinea

State v Agen (No 2) [2022] PGNC 594; N10276 (26 April 2022)