Document content

• N8608
  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  CR (FC) 118 OF 2019

  THE STATE

  V

  PAUL PARAKA

  Waigani: Berrigan J
  2020: 19th and 23rd October

  CRIMINAL LAW – PRACTICE AND PROCEDURE – motion to set aside/
  dismiss/permanently stay or quash the indictment presented by the Public
  Prosecutor against the accused pursuant to s. 526 of the Criminal Code –
  Abuse of process – Dismissed.

  Cases Cited:
  Papua New Guinea Cases

  Pruaitch v Manek (2019) SC1884
  The State v Painke [1976] PNGLR 210
  Decision on Presentation of Indictment (2019) N8229
  State v Wohuinangu (1991) N966
  In re Namah (2018) N7194
  Decision on Application to Disqualify (2020) N8508
  Leahy v Kaluwin (2014) N5813
  In the Matter of an Application by Benetius Gehasa (2005) N2817
  Application by John Ritsi Kutetoa (2005) N2819
  Review Pursuant to Constitution Section 155(2)(b); Application by Herman
  Joseph Leahy (2006) SC855
  The State v Ngasele (2003) SC731
  The State v Jack Gola and Mopana Aure [1990] PNGLR 206
  The State v Jason Dongoma (2000) N2038
  The State v Michael Nama and Others (1999) N1884
  The State v John Koma (2002) N2176
  The State v Louise Paraka (2002) N2317

  Overseas Cases

• Page 2 of 23

• Connelly v DPP [1964] 2 All ER 401
  Hui Chin – Ming v R [1991] 3 WLR 495.
  Jago v District Court of NSW (1989) 168 CLR 12
  R v Edwards [2009] HCA 20
  Walton v Gardiner (1993) 177 CLR 378

  References Cited

  Sections 37, 176, 177, 214 of the Constitution
  Sections 526, 554, 557(2), 558 of the Criminal Code
  Section 5 of the Audit Act

  Counsel

  Ms. T. Aihi with Ms. S Mosoro, for the State
  Mr. P. Paraka in person

  DECISION ON FURTHER AMENDED MOTION No 1 – TO DISMISS/
  SET ASIDE/PERMANENTLY STAY/QUASH INDICTMENT

  23rd October, 2020

  1. BERRIGAN J: The accused moves a Further Amended Notice of
  Motion No. 1 filed on 6 October 2020 to have the Court set aside/dismiss/
  permanently stay or quash the indictment presented by the Public Prosecutor
  pursuant to s. 526 of the Criminal Code.

  2. The motion contains 14 paragraphs. The accused moves paragraphs 1 to
  5 and 9 only, and seeks to argue the remaining paragraphs with Notice of
  Motion No. 2 filed 12 August 2020, in the event that is required. There is no
  objection to the proposed course.

  3. The relevant parts of the motion are set out below:

  “(1) It is an abuse of process and for want of prosecution within a
  reasonable time in breach of s.526(3) of the Criminal Code:-

  (a) The State/Public Prosecutor’s failure to file and serve on the
  accused a sealed copy of the Indictment pursuant to the Orders of the
  Court on the 6th March, 2020.

• Page 3 of 23

• (b) The State/Public Prosecutor’s failure to serve on the accused the
  Committal depositions and witnesses’ statements taken before the
  District Court Committal proceedings (after the National Court
  formally accepted the Indictment on the 6th March, 2020 in breach of
  s.526(3) of the Criminal Code Act.

  (c) The State/Public Prosecutor’s failure to commerce the trial within
  a reasonable time (within 4 months) in breach of ss. 37(3) and 37(14)
  of the Constitution (after the Indictment was accepted on the 6th
  March, 2020)

  (2) The Indictment is a nullity in that it has been initiated based on an
  incomplete Police Brief, where the following evidence/statements of
  witnesses were either omitted, and where witnesses were deceased, and
  could not lawfully be part of the Police brief:

  (a) BSP Legal Manager, John Maddison Statements/Exhibits.
  (Deceased)
  (b) Evidence statues of Police witness Sam Koim, and Exhibit 05;
  (Omitted in Police Brief and not served on the 25th April 2019)
  (c) Witness statements of the following deceased Police witnesses:

  (1) Mr. Neville Devete – Deceased
  (2) Hon. Kerenge Kua, MP – Irrelevant
  (3) Dr. Lawrence Kalinoe – Deceased
  (4) Ms. Jubilee Paki Tindiwi – Deceased
  (5) Mr. Sam Koim, LLB – Statement omitted in Police
  Brief
  (6) Mr. Ekip Kop – Deceased
  (7) Ms. Miriam Kias Kiap – Irrelevant
  (8) Ms. Christine Gimots – Irrelevant
  (9) Ms. Kisolel Kiapin – Irrelevant
  (10) Mr. Jessie Yore – Deceased
  (11) Mr. Yeme Kaivila – Deceased
  (12) Mr. James Roy Kerwin – Deceased
  (13) Mr. Benjamin Harry – Irrelevant
  (14) Mr. John Maddison – Deceased
  (15) Mr. Joseph Sumanop – Irrelevant
  (16) Mr. James Joshua – Irrelevant
  (17) Mr. Pius Peng – Police/Irrelevant
  (18) Mr. Basi Sopata – Police/Irrelevant

  (3) The Indictment is a nullity in that the Police brief lacked sufficient

• Page 4 of 23

• evidence the reason why the Police did not initiate the criminal charges
  (of misappropriation under s.383A of the Criminal Code) in the District
  Court; and, in the absence of any other additional evidence, the Public
  Prosecutor unlawfully used the Police brief to lay the charge in the
  National Court.

  (4)The purported single charge of misappropriation under s.383A of the
  Criminal Code Act be permanently stayed/dismissed/set-aside or be
  quashed in that the Police brief fails to disclose any prima facie evidence,
  in breach of s.526(1), 526(3), 534(2), 560(1), (2)(g), 567(1) and 558 of
  the Criminal Code, ss37(1), (2), 57(1)(3) & (5) and s155(4) of the
  Constitution.

  (5) The Indictment is incompetent and is a nullity in that it has been
  initiated by the Public Prosecutor in breach of s.5 of the Audit Act and
  the National Court is therefore devoid of jurisdiction.
  (9) The allegations in the District Court (Police Brief) is in connection with
  an alleged breach of a Supreme Court Stay Order (contempt of Court
  offence), and such allegations is in the contempt jurisdiction of the
  Supreme Court, and the District Court and National Court are devoid of
  jurisdiction under ss37(2) and 160(2) of the Constitution and the
  Indictment is therefore a nullity.”
  4. The accused relies on his submissions filed in court on 19 October 2020,
  which he spoke to in oral argument, together with 9 affidavits in support sworn
  by him on 2 October 2020 and filed on 6 October 2020, together with three
  other affidavits, including his affidavit of 19 November 2019 filed in support of
  his objection to the presentation of the indictment.

  5. The State opposes the motion and relies on its written submissions filed
  on 12 October 2020.

  6. I note that a letter was delivered to my associate by the accused late
  yesterday afternoon seeking to provide an amended version of the accused’s
  written submissions, together with a notice of motion to vacate the decision and
  file further submissions, if required. The cover letter states that the
  typographical errors are minor and “do not affect the merits/contents of the
  submissions”. This was confirmed by the accused today.

  7. I have made my decision on the basis of the submissions filed by the
  parties and made in oral submission. I do not intend to vacate my decision, nor
  do I intend to allow leave to the accused to file further amended submissions. It
  is neither necessary nor appropriate. The parties have been heard.

• Page 5 of 23

• ABUSE OF PROCESS AND WANT OF PROSECUTION
  8. The accused submits that the proceedings are an abuse of process for
  various reasons.

  9. Both the National and Supreme Court have an inherent power to
  intervene at any stage of a proceeding to prevent an abuse of their process. To
  permanently stay criminal proceedings, however, is an “extreme remedy”, only
  to be applied in exceptional circumstances (Jago v District Court of NSW
  (1989) 168 CLR 12, applied State v Wohuinangu (1991) N966; In re Namah
  (2018) N7194); such that the accused has established that the continuation of
  the proceedings would involve unacceptable injustice or unfairness: see Walton
  v Gardiner (1993) 177 CLR 378 at 392; Connelly v DPP [1964] 2 All ER 401;
  and Hui Chin – Ming v R [1991] 3 WLR 495.

  10. In determining whether to stay a proceeding, the court must balance the
  need to ensure that an accused receives a fair trial, with the need to hear and
  determine charges for serious offences, and the need to maintain confidence in
  the administration of justice (Walton v Gardiner (1993) 177 CLR 378; Jago v
  District Court of NSW (1989) 168 CLR 23.

  11. 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.

  12. Some of the bases upon which proceedings might be stayed are referred
  to in Wartoto v The State (2015) SC1411 at [87].

  13. A permanent stay would be very rare on the basis of delay alone: Jago v
  District Court of NSW (1989) 168 CLR 12, applied State v Wohuinangu (1991)
  N966.

  14. I note that the accused refers to a “want of prosecution” on the part of the
  Public Prosecutor. That is an expression known to civil law, involving different
  considerations. It has no application here.

  GROUND 1(a): SERVICE OF INDICTMENT

  15. The accused contends that the indictment should be dismissed as an abuse
  of process and “for want of prosecution” in breach of s. 526(3) of the Criminal
  Code because the State has failed to file and serve a sealed copy of the
  indictment pursuant to the orders of the court on 6 March 2020.

  16. No submissions were made in support of this ground by the accused, in

• Page 6 of 23

• writing or orally.

  17. I did not make any orders on 6 March 2020 for a sealed copy of the
  indictment to be served on the accused. See Decision on Presentation of
  Indictment (supra) at [114].

  18. Section 526 contains no requirement as to filing and service of an
  indictment.

  19. Section 554 of the Criminal Code provides:

  “DELIVERY OF COPY OF INDICTMENT.

  (1) When a charge is laid against a person under Section
  525 or 526, a copy of the indictment shall be served on the
  accused person or his lawyer at a reasonable time before
  the commencement of his trial.

  (2) When the prosecution serves a notice of intention to rely
  on a previous conviction as a circumstance of aggravation,
  it shall serve a copy of the notice on the accused person or
  his lawyer a reasonable time before the commencement of
  the trial.

  (3) If a copy of the indictment or the notice of intention to
  rely on a previous conviction as a circumstance of
  aggravation is not so served within such time before the
  commencement of the trial as is reasonable in order to
  allow the accused to prepare his defence, the court shall, on
  application, grant to the accused person an adjournment
  for such time as it thinks reasonable in the interest of
  justice.”

  20. A trial commences not upon presentation of an indictment, but upon
  arraignment: s 557(2) of the Criminal Code.

  21. The indictment has been presented and accepted but the accused has not
  yet been arraigned pending the hearing and determination of three motions filed
  by him:

  (a) Further Amended Notice of Motion No 1, the subject
  of this decision, filed 27 August 2020 (amending Motion
  No 1 filed 12 August 2020, and further amending Amended
  Notice of Motion No 1 filed 27 August 2020) to have the

• Page 7 of 23

• indictment set aside or permanently stayed on the basis it is
  an abuse of process, and for want of prosecution;

  (b) Notice of Motion No 2 filed 12 August 2020 to quash
  the indictment on the basis that it is calculated to prejudice
  and/or embarrass, is an abuse of process and formally
  defective, and gives rise to pleas of autrefois acquit and
  double punishment. This motion remains outstanding; and

  (c) Amended Notice of Motion No 3 filed 1 September
  2020 (replacing Motion No 3 filed 27 August 2020) for me
  to disqualify myself from presiding over the above motions
  and the substantive case on the basis of apprehended bias.
  This motion was refused on 22 September.

  22. The Public Prosecutor has complied with s. 554 of the Criminal Code.
  The Public Prosecutor first provided a copy of the indictment to the accused by
  way of letter dated 25 April 2019 and it was the subject of the hearing in
  December last year: see the Public Prosecutor’s affidavit sworn 4 November
  2019 at paragraph 18, especially 18(b). See also Decision on Presentation of
  Indictment (supra) at [73].

  23. Even if any orders had been made for a further copy of the indictment to
  be served on the accused, the accused has failed to demonstrate any prejudice.
  He has been aware of the terms of the indictment since April last year. It is
  clear from his motion(s) and submissions that he is very familiar with its terms.

  24. Moreover, the indictment was presented in December 2019 and is now on
  the court file. A copy may be made readily available upon request.

  25. Ground 1(a) is dismissed.

  GROUND 1(b): SERVICE PURSUANT to s. 526(3) of the CRIMINAL
  CODE

  26. The accused contends that the Public Prosecutor has failed to serve
  committal depositions and witness statements on him pursuant to s. 526(3) of
  the Criminal Code.

  27. Section 526 provides:

  “INDICTMENT WITHOUT COMMITTAL.

  (1) Where a court of summary jurisdiction has refused to

• Page 8 of 23

• commit a person for trial for an indictable offence, the
  Public Prosecutor may–

  (a) consider the evidence contained in the depositions
  taken before the court (and any other relevant evidence);
  and
  (b) reduce into writing in an indictment a charge of any
  offence that the evidence appears to warrant.

  (2) The indictment may be presented to the National Court
  by the Public Prosecutor or a State Prosecutor.

  (3) Where the Public Prosecutor reduces a charge to
  writing in an indictment under Subsection (1), he shall
  cause to be served on the accused person or his lawyer–

  (a) copies of the depositions taken at the committal
  proceedings; and
  (b) copies of statements taken from witnesses whom the
  prosecution intends to call at the trial,
  within such time before the commencement of the trial as
  is reasonable in order to allow the accused person to
  prepare his defence.”

  28. The accused contends that there are two distinct steps required pursuant
  to s. 526 of the Criminal Code. Firstly, the Public Prosecutor must comply with
  s. 526(1) before the indictment can be accepted. Secondly, once the indictment
  has been accepted, this triggers a formal obligation on the Public Prosecutor to
  personally serve copies of the committal depositions and witness statements on
  an accused, regardless of whether or not the material has already been served by
  the Public Prosecutor prior to the presentation of the indictment.

  29. This argument arises from my previous ruling that s. 526(3) was not
  strictly a precondition to the presentation of a s 526 indictment: see Decision on
  Presentation of Indictment (supra) at [106] to [112].

  30. Furthermore, the accused argues that in this case the Public Prosecutor
  has failed to serve the depositions and witness statements following acceptance
  of the indictment in March 2020 within a reasonable time and therefore the
  proceedings are an abuse of process for “want of prosecution”.

  31. In particular, that the police brief served on him cannot be regarded as
  “depositions taken at the committal proceedings” because the materials “did not
  go through the formal investigative hearing by the magistrate under ss 94C-100

• Page 9 of 23

• of the District Courts Act” because the magistrate dismissed all charges as an
  abuse of process.

  32. As I found previously, depositions were taken at the committal court: see
  Decision on Presentation of Indictment (supra) at [67].

  33. As also found in those proceedings, by his own evidence, a copy of the
  police brief filed in the District Court was formally served on the accused on 7
  May 2017, more than three years ago: Decision on Presentation of Indictment
  (supra) at [34]; accused’s affidavit of 19 November 2019 at paragraph 35(a).

  34. A copy of the police brief filed in the District Court was provided to the
  Public Prosecutor by the police following the magistrate’s refusal to commit:
  see Decision on Presentation of Indictment (supra) at [71] to [72], and affidavit
  of Detective Senior Constable Pius Peng sworn 25 November 2019 at
  paragraphs 4 and 5.

  35. The Public Prosecutor considered that material in deciding to proceed
  with an indictment pursuant to s. 526 against the accused on one count of
  misappropriation: see Decision on Presentation of Indictment (supra) at [71] to
  [73] and affidavit of Pondros Kaluwin sworn 4 November 2019 at paragraph 18.

  36. A copy of the indictment and the police brief on which the Public
  Prosecutor relies were served on the accused on 26 April 2019: affidavit of
  Pondros Kaluwin sworn 4 November 2019 at paragraph 18. The accused
  confirms that he was served a copy of the police brief on 26 April 2019:
  accused’s affidavit of 19 November 2019 at paragraphs 27 and 28. I make clear
  again that I have not viewed the annexures concerned.

  37. There is no new, distinct and formal requirement that arises under s.
  526(3) of the Criminal Code following acceptance of the indictment. The
  accused is reading words into s 526(3) that are simply not there.

  38. In reaching a decision under s. 526(1) the Public Prosecutor is not
  confined to the depositions taken at committal but may also consider “any other
  relevant evidence”. The purpose of s. 526(3) is to ensure that an accused is
  provided with the material upon which the State intends to rely, including any
  other relevant evidence that has been considered in addition to that relied upon
  at the committal stage, a reasonable time prior to trial.

  39. The accused has a right to know the charge against him and the evidence
  in support of that charge upon which the State intends to rely so that he is
  afforded a reasonable opportunity to prepare his defence. See s. 37(4)(c) of the
  Constitution. As to what is reasonable will depend on the circumstances of any

• Page 10 of 23

• particular case. Ultimately, the question is one of fairness.

  40. In this case the accused’s argument is entirely without merit. Even if it
  were correct, he has failed to demonstrate any prejudice. He has been in
  possession of the relevant material for a number of years. He was served with
  the police brief for the first time in May 2017. In April 2019 the Public
  Prosecutor served on him the indictment, together with a further copy of that
  brief, being the material upon which the State intends to rely at trial.

  41. As to the accused’s complaint that no “copies of statements taken from
  witnesses whom the prosecution intends to call at the trial” were served, it is
  clear from the face of the accused’s motion that the police brief upon which the
  Public Prosecutor relies, and which has been served, contains witness
  statements. If there are no new witnesses that is a matter for the State.

  42. Ground 1(b) is dismissed.

  GROUND 1(c): STATE FAILURE TO COMMENCE TRIAL WITHIN 4
  MONTHS

  43. The accused contends that the Public Prosecutor has failed to commence
  the trial within a reasonable time, namely 4 months of the acceptance of the
  indictment on 6 March 2020 in contravention of ss. 37(3) and 37(14) of the
  Constitution, which provide that:

  “37. Protection of the law.

  (1) Every person has the right to the full protection of the
  law, and the succeeding provisions of this section are
  intended to ensure that that right is fully available,
  especially to persons in custody or charged with offences…

  (3) A person charged with an offence shall, unless the
  charge is withdrawn, be afforded a fair hearing within a
  reasonable time, by an independent and impartial court.”..

  (14) In the event that the trial of a person is not commenced
  within four months of the date on which he was committed
  for trial, a detailed report concerning the case shall be
  made by the Chief Justice to the Minister responsible for
  the National Legal Administration…”

  44. The accused argues that the reference to “committed for trial” in 37(14)
  should be taken to mean “acceptance of the indictment” in this case, and that it

• Page 11 of 23

• has been 8 months since that occurred. Further that the trial has not commenced
  and that the delay is unreasonable on the part of the Public Prosecutor.

  45. This argument is based in part on the contention that the indictment
  cannot proceed because the Public Prosecutor has failed to serve the relevant
  documents outlined above under Ground 1(b). As above, I have found that
  ground to be without merit.

  46. Furthermore, whilst it has been eight months since the acceptance of the
  indictment that delay does not lie at the feet of the Public Prosecutor. As
  outlined in Decision on Application to Disqualify (2020) N8508 at [3] to [10]:

  “On 6 March 2020 I delivered my decision dismissing the
  accused’s objection to the presentation of an indictment
  pursuant to s. 526 of the Criminal Code by the Public
  Prosecutor: State v Paul Paraka (2020) N8229 (Decision
  on Presentation of Indictment).

  The parties were directed to file pre-trial review statements
  by 23 March 2020 and the matter was adjourned to that
  date. The State filed its pre-trial review statement on 20
  March 2020. The accused is yet to do so.

  The Court closed due to the Covid 19 pandemic on 23
  March 2020. The parties were advised in May that I
  intended to return to Papua New Guinea in June 2020 but
  for reasons beyond my control this was not possible.

  Following my return the matter was listed on 12 August
  2020 at which time the accused informed the Court that he
  had that morning filed two notices of motion which he
  intended to serve on the State, and intended to file a further
  motion seeking that I disqualify myself. The accused
  sought to have the first of his three motions dealt with first.
  I directed that all three motions be dealt with together and
  at the accused’s request adjourned the matter for hearing
  on 3 September 2020. Parties were directed to file written
  submissions by 24 August and serve them by 28 August
  2020. The State filed its submissions on 31 August.

  The matter returned for submissions on 3 September 2020
  at which time the accused sought to have the matter
  adjourned to late September or early October 2020 on the
  basis that “he was unable to complete the relevant

• Page 12 of 23

• affidavits in support of the notices of motions filed on time
  as a result of the substantial distractions caused by the
  Supreme Court Judicial Review applications for leave filed
  and argued and the applications for stay of the National
  Court proceedings.” Furthermore, he indicated that he had
  filed an Amended Notice of Motion No 3 for me to
  disqualify myself from hearing the motions and sought an
  order for a transcript of the proceedings on 20 November
  and 6 December 2019 on which he relied for this purpose.

  As I explained to the accused, which he accepted, he is a
  very experienced lawyer and if he chooses to represent
  himself in this and other proceedings that is entirely a
  matter for him but that fact must not be allowed to delay
  these proceedings.

  On reflection, however, I formed the view that the
  application for me to disqualify myself should be heard and
  determined first. Furthermore, it was appropriate for the
  proceedings to be adjourned to allow time for the transcript
  requested to be made available for that purpose.

  The matter returned on 10 September 2020. The accused
  initially sought but ultimately withdrew his application for
  a further adjournment, and made oral submissions in
  support of his application to have me disqualify myself.”

  47. Further to the above, I dismissed the accused’s application to have me
  disqualify myself on 22 September 2020. The accused’s Amended Notice of
  Motion No 1 was fixed for hearing the first week of the October sittings, and on
  9 October 2020 to allow sufficient time for argument. On that day and on 12
  October 2020 the matter was adjourned on the accused’s application as he was
  feeling unwell and set down for the morning of 19 October 2020. The motion
  was heard on that day.

  48. Whilst s 37(14) provides a standard or a guideline, ultimately what is
  reasonable will depend on the circumstances of any particular case: Painke
  (supra).

  49. This case bears no resemblance to those relied upon by the accused. In
  Leahy v Kaluwin (2014) N5813 there was a delay of 9 years, five months from
  the presentation of the s 526 indictment to the date of the human rights
  application to have the matter struck out. Whilst the delay of 5 years was
  explained due to challenges brought by the accused in the Supreme Court, the

• Page 13 of 23

• Court found that the State had failed to do anything for four years thereafter,
  and had not attempted to even mention the matter let alone bring it to trial.

  50. Similarly, In the Matter of an Application by Benetius Gehasa (2005)
  N2817 has no application here. In that case the accused had been held in
  custody on a wilful murder charge for more than four years without mention, his
  file had been lost and he had been lost in the system. Furthermore, whilst he
  was released from custody following a human rights application, the order
  specifically recognised that the police were at liberty to continue their
  investigation against him on the same charge.
  51. Nor does Application by John Ritsi Kutetoa (2005) N2819 have any
  relevance to this case. It concerned applications by four convicted prisoners
  seeking orders that they not be transferred away from the area in which their
  relatives reside.

  52. Returning to the present case, the Public Prosecutor has filed his pre-trial
  review statement pursuant to my orders in March. The accused has not. The
  disruption between April and August was caused by the unprecedented events of
  the Covid 19 pandemic; events the likes of which we have not seen in more than
  one hundred years. But the accused did nothing during that period himself to
  comply with my orders to file a pre-trial review statement or identify those
  matters from his original motion upon which he intended to rely. The Public
  Prosecutor is ready to proceed to trial. The commencement of the trial has been
  prevented by three motions brought by the accused, none of which were filed
  until the morning of 12 August 2020, the date the matter returned for mention.
  Those motions have since been amended by the accused a number of times.
  The application to disqualify was heard first in time; the hearing of the others
  adjourned at the accused’s request on a number of occasions.

  53. The accused’s contention that there has been unreasonable delay on the
  part of the Public Prosecutor fails. There has been no delay on the part of the
  Public Prosecutor.

  54. For completeness I note that the accused in his submissions broadens his
  argument to include delay from before the acceptance of the indictment in
  March this year. That is outside the terms of his motion, he did not refer to it on
  submissions, and I refuse to consider it here.

  55. Ground 1(c) is dismissed.

  GROUND 2: INDICTMENT IS A NULLITY

  56. Grounds 2, 3 and 4 are related. Essentially the accused contends that the

• Page 14 of 23

• indictment in a nullity because the evidence contained on the brief upon which
  the Public Prosecutor relies is insufficient to establish a prima facie case against
  him on the charge of misappropriation. Whilst not articulated expressly, it
  appears that he argues here that the indictment is therefore calculated to
  prejudice or embarrass him in his defence for the purposes of s 558 of the
  Criminal Code, and/or should be permanently stayed for abuse of process.

  Ground 2: “Incomplete Police Brief”

  57. Pursuant to Ground 2 the accused contends that the indictment is a nullity
  because the police brief is “incomplete” such that of the 18 witnesses whose
  statements are contained on the brief: one witness statement is missing; eight
  witnesses are now dead; and the remaining witnesses in his assessment are
  “irrelevant”.

  58. The accused sought on submission to demonstrate visually that the effect
  of removing the statements of the missing and dead witnesses is to physically
  reduce the size of the brief by half. That is really beside the point, particularly
  as the accused maintains that all of the witnesses are irrelevant to the case
  against him in any event.

  59. The accused maintains that one of the statements was missing from the
  brief served on him on 25 April 2019. The Public Prosecutor maintains that the
  complete brief was served on that day. It is apparent that the Public Prosecutor
  and the accused share different views as to the relevance of the remaining nine
  witnesses.

  60. As to whether the missing statement was part of the material served in
  April 2019 is immaterial. There is no dispute that the accused is in possession of
  the relevant document. In fact the accused says he was served with it by police
  in May 2017: see his affidavit of 2 October 2020 (re Police Brief by Senior
  Constable Pius Peng) at paragraph 6. I make it clear that I have not viewed the
  annexures referred to therein.

  61. Ultimately, whether or not the evidence of any witness is relevant and
  admissible, and whether the evidence presented by the State is sufficient to
  establish its case against the accused to the requisite standard, are matters for
  trial.

  62. Ground 2 is dismissed.

  Ground 3: Unlawful charge of misappropriation

  63. Ground 3 accuses the Public Prosecutor of proceeding with the charge of

• Page 15 of 23

• misappropriation unlawfully. The accused contends that the Public Prosecutor
  has expressly stated that the evidence to support charges against him in the
  District Court was insufficient, and has in the circumstances unlawfully
  proceeded with a misappropriation charge at the National Court.

  64. In support of this contention the accused relies on the charges laid at the
  committal court and the decision of the District Court by Magistrate Gauli,
  which was the subject of the Decision on Presentation of Indictment ̧ and the
  decision of the District Court by Magistrate Wilmot dismissing a different set of
  charges against him.

  65. For the purposes of this case, the accused was charged with 27 charges at
  committal including 17 counts of conspiracy to defraud, and 5 counts of stealing
  by false pretence, contrary to ss. 407(1)(b) and 404(1)(a) of the Criminal Code,
  respectively, together with a further 5 counts of money laundering, contrary to s.
  34(2) of the Proceeds of Crime Act, 2005.

  66. The laying of the information against the accused at the District Court is a
  matter for police. It was for the police at that stage to choose what they
  considered the appropriate charge. The Public Prosecutor has no power over
  the charges at this stage: S 197(2) of the Constitution.

  67. As for the National Court proceedings, however, 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.”

  68. It is also well settled that pursuant to s. 526 the Public Prosecutor has an
  absolute power to consider the evidence, and at his/her discretion, indict on a
  charge “of any offence that the evidence appears to warrant”. That power is not

• Page 16 of 23

• subject to any direction or control from or by anybody: The State v Ngasele
  (2003) SC731; see also the discussion in Leahy at [149]. That power has been
  affirmed in several cases, including: The State v Jack Gola and Mopana Aure
  [1990] PNGLR 206; The State v Jason Dongoma (2000) N2038; The State v
  Michael Nama and Others (1999) N1884; The State v John
  Koma (2002) N2176.

  69. As explained by Kirriwom J in The State v Michael Nama and
  Others (1999) N1884 regarding indictments under s 525:

  “… in deciding on what charge or charges the prosecutor,
  whether he is called State Prosecutor or Public
  Prosecutor … is not subject to any direction or control. He
  has a very wide discretion on what charge or charges to
  proceed with and what charges he discontinues. A
  Committal Court’s rulings do not restrict the powers of the
  Public Prosecutor which originate from the Constitution. It
  has been the practice and continues to be so that following
  committal the accused is indicted with the offence that the
  evidence in the depositions support – see s. 525 of the
  Criminal Code or the one negotiated and obtained for
  purposes of guilty pleas … The original charges do not
  determine the eventual charge in the indictment.”

  70. This power is 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: The State v Douba N7627. 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”. The same may be said with respect to the choice of charge under
  s. 526.

  71. The Public Prosecutor has decided to proceed on one charge of
  misappropriation after assessing the evidence. I have already found that the
  Public Prosecutor has complied with the pre-conditions contained in s. 526 of
  the Criminal Code and accepted the indictment accordingly: Decision on
  Presentation of Indictment (supra).

  72. To my mind that is the end of the matter. I note here, however, that on
  the face of it, most of the charges at the District Court concerned allegations of
  dishonesty. The similar nature of such charges in general terms is well
  established. The expressions intent to defraud, fraudulent means or dishonesty

• Page 17 of 23

• found in s 407 (1) and s 383A are often used interchangeably: Potape v The
  State (2015) SC1613. See also s. 544 of the Criminal Code, which permits a
  person charged on indictment with, inter alia, stealing, or obtaining goods by
  false pretences, or misappropriation, to be “convicted of any other of those
  offences committed with respect to the same property, if that other offence is
  established by the evidence”. The remaining charges at the District Court were
  of money laundering, or of dealing with money which is the proceeds of crime.
  Again on the face of it they are of a somewhat similar nature.

  73. Moreover, contrary to submissions by the accused, the Public Prosecutor
  has not “expressly rejected the 27 criminal charges as lacking sufficient
  evidence”. Rather, he formed the view that the appropriate charge was one of
  misappropriation.

  74. It is useful to set out the relevant parts of the Public Prosecutor’s affidavit
  of 7 November 2019 again (emphasis mine):

  “18. In terms of the course of events leading to the decision
  to commence a prosecution pursuant to section 526 of the
  Criminal Code, I say as follow:
  a. A copy of the Indictment is annexed hereto as
  Annexure PP-[4];
  b. At my instruction the indictment and the Hand Up
  Brief was served on the Accused on 26 April 2019;
  c. The indictment, which has the effect of initiating a
  prosecution, was signed by me pursuant to section 526 of
  the Criminal Code following my consideration of the brief
  provided to me by the Police on 14 December 2018;
  d. That Indictment was signed by me on 25 April 2019;
  e. I exercised the power in section 526 of the Criminal
  Code, following the decision of the Committal Court to
  dismiss the charges against the Respondent.
  f. A copy of the decision of the Committal Court, dated
  10 December 2018. Annexed hereto as Annexure PP-[5].
  g. In coming to a view to issue an indictment pursuant to
  section 526 of the Criminal Code, I carefully considered the
  evidence provided to me. In considering that evidence, I
  considered that there was a prima facie case with
  reasonable prospects of conviction arising on the material
  provided.
  h. I did not consider that the charges laid in the initial
  information were appropriate, however in accordance
  with the power outlined in section 526, I made a
  determination to lay a different charge. That charge

• Page 18 of 23

• however, is not novel to the Accused, and no prejudice
  flows. The charge proposed to be laid, is what I consider
  the appropriate charge arising from the evidence
  presented at committal, and the general nature of the case
  remains the same.
  19. I note in particular, on page 3 of the decision of the learned
  Magistrate, is a chronology of events as found by the
  learned Magistrate, and a finding by that Magistrate that
  the delay in the conduct of the proceedings in the committal
  Court was largely the responsibility of the Respondent. In
  this respect, I note the comments at paragraph 8 of the
  learned Magistrate decision.
  20. In addition to considering the evidence, I also considered
  carefully the Magistrates decision to dismiss the case. After
  considering the position, I came to the view that the learned
  Magistrate’s decision to dismiss the case in the manner in
  which he did was, with respect, incorrect at law.
  21. Having come to that view, namely that the learned
  Magistrate had made an error of law in dismissing the case,
  and that the evidence presented to me supported a charge, I
  made a determination that it was appropriate to commerce
  a proceeding by way of section 526 of the Criminal Code.”

  75. There is no evidence of impropriety or improper purpose. As above, it is
  entirely consistent with the purpose of s. 526 of the Criminal Code to allow the
  Constitutional office holder responsible for exercising the prosecution function
  of the State to determine what charges in his view are most appropriate on the
  materials available. Whether or not the State is able to sustain those charges at
  trial is a separate matter.

  76. The dismissal of other charges by the District Court concerning alleged
  conduct by the accused at a different time is not a matter before this Court.

  77. Ground 3 is dismissed.

  Ground 4: POLICE BRIEF FAILS TO DISCLOSE PRIMA FACIE
  EVIDENCE

  78. The accused submits that when “a different charge is laid in the National
  Court (arising from the same depositions) by way of Ex-Officio Indictment, it
  must be read into s. 526(3) of the Criminal Code Act a requirement for the
  accused to be given the right to be heard in relation to a lack of sufficient
  evidence for a prima facie case for the offence of misappropriation. The
  accused must be heard at a preliminary stage prior to the trial proper.”

• Page 19 of 23

• 79. The accused relies on s. 37(1) and 37(2), which provide:

  “37. Protection of the law.

  (1) Every person has the right to the full protection of the
  law, and the succeeding provisions of this section are
  intended to ensure that that right is fully available,
  especially to persons in custody or charged with offences.
  (2) Except, subject to any Act of the Parliament to the
  contrary, in the case of the offence commonly known as
  contempt of court, nobody may be convicted of an offence
  that is not defined by, and the penalty for which is not
  prescribed by, a written law.”

  80. He argues that it is not fair for him to be called upon to plead to the
  indictment when there is insufficient evidence contained in the brief to sustain
  it, and asks the Court to review the District Court police brief and form a view
  for this purpose.

  81. I decline to do so. It is neither necessary nor appropriate. The accused is
  again reading words into s 526 that are not there.

  82. The accused had a right to be heard at the committal stage. He exercised
  that right. He declined to make submissions on the sufficiency of evidence after
  ample opportunity and instead objected to the proceedings on the basis that they
  were an abuse of process: see Decision on Presentation of Indictment at [38] to
  [42].

  83. The magistrate refused to commit on that basis. In the event that a
  magistrate refuses to commit, the State may only proceed to the National Court
  pursuant to s. 526 of the Criminal Code, which requires that the Public
  Prosecutor himself must consider the evidence and “reduce into writing in an
  indictment a charge of any offence that the evidence appears to warrant”.

  84. I have already found that the Public Prosecutor has complied with these
  requirements pursuant to s. 526 and accepted the indictment: see Decision on
  Presentation of Indictment (supra).

  85. The accused has failed to identify on what basis he is now prejudiced in
  his defence by being required to plead to the indictment. The fact that he might
  have been prosecuted under different offence provisions for the same alleged
  conduct does not mean that he is prejudiced in his defence to the charge chosen
  by the Public Prosecutor in accordance with his Constitutional powers. The

• Page 20 of 23

• accused remains protected by law. He is entitled to the presumption of
  innocence and all other protections that ensure his right to a fair trial. He has
  been in possession of the material upon which the State relies since 2017. As
  above, the charge arises out of that same material, and is of the same general
  nature, namely dishonesty in respect of State monies. Whether or not the
  evidence is admissible or sufficient to establish the alleged offence contained in
  the indictment is a matter for the trial.

  86. As to whether the evidence also gives rise to an allegation of contempt
  before the Supreme Court, that is not a matter before this Court (see further
  below).

  87. Ground 4 is dismissed.

  GROUND 5: S. 5 OF THE AUDIT ACT

  88. The accused contends that the indictment is a nullity because the charge
  of misappropriation has been unlawfully initiated against him in breach of s. 5
  of the Audit Act, which is an exception to the prosecution function of the State
  under s. 197 (sic) of the Constitution. S. 5 (power to prosecute) provides:
  “(1) Where the Auditor-General is satisfied that a person,
  to whom the provisions relating to audit contained in the
  Constitutional Laws and this Act apply, is guilty of
  misappropriation, misuse or fraud of public money, stores
  or property he shall refer the matter, together with a
  statement of the reasons for being so satisfied, to the Public
  Prosecutor.
  (2) Where a matter has been referred to the Public
  Prosecutor under Subsection (1) and the Public Prosecutor
  has failed to proceed with the matter after 60 days, the
  Auditor-General may prosecute the person who in his
  opinion is guilty of misappropriation of public monies.”

  89. The accused submits that the investigation, audit and inspection of all
  State funds must be investigated by the Auditor General pursuant to s. 214 of
  the Constitution, and may not be investigated by police. Further that pursuant
  to s. 5 of the Audit Act the Public Prosecutor may only prosecute the alleged
  misappropriation of State monies upon referral from the Auditor-General. In
  this case there has been no investigation by the Auditor-General and no referral
  by the Auditor General and thus the indictment is a nullity and must be quashed
  pursuant to s. 558 of the Criminal Code.

  90. Section 214 of the Constitution sets out the functions of the Auditor-
  General:

• Page 21 of 23

• (1) The primary functions of the Auditor-General are to
  inspect and audit, and to report at least once in every fiscal
  year (as provided by an Act of the Parliament) to the
  Parliament on the public accounts of Papua New Guinea,
  and on the control of and on transactions with or
  concerning the public moneys and property of Papua New
  Guinea, and such other functions as are prescribed by or
  under a Constitutional Law…”

  91. This ground is misconceived. The cases relied on in support of the
  accused’s argument, namely Reference by Morobe Provincial Government
  (2005) SC785, and Sam Koim v The State (2016) N6558 are of no assistance.

  92. Section 5 is a facilitative, not an exclusive provision. It recognises that in
  the course of performing his or her functions in inspecting public accounts, the
  Auditor General may form a view that a person is guilty of misappropriating
  public money. To facilitate the prosecution of such matters the Act provides
  that the Auditor General shall refer matters directly to the Public Prosecutor, and
  in the event that the Public Prosecutor declines to prosecute within a certain
  time frame, prosecute those matters him/herself.

  93. The fact that there is another means by which the alleged
  misappropriation of State monies might be referred to the Public Prosecutor
  does not preclude him from proceeding pursuant to s. 525 or s 526 of the
  Criminal Code following committal proceedings.

  94. The argument also fails to recognise the power of police to investigate
  crimes and the power of the Public Prosecutor to control the prosecution
  function of the State.

  95. There is nothing in either s. 214 of the Constitution or s. 5 of the Audit
  Act that prevents the police from investigating offences under the Criminal
  Code. Pursuant to s. 140 of the Police Act:

  “A member of the Force has the same powers, duties, rights
  and liabilities as a Constable under the underlying law,
  except so far as they are modified by or under an Act.”

  96. The general duties of a policeman at common law are summarized in
  Archbold’s Criminal Pleadings Evidence and Practice, 2015 Ed. [19-329] as
  follows (emphasis mine):

  “It is part of the obligations and duties of a police

• Page 22 of 23

• constable to take all steps which appear to him necessary
  for keeping the peace, for preventing crime, or for
  protecting property from criminal injury. There is no
  exhaustive definition of the powers and obligations of the
  police but there are at least these and would further include
  the duty to detect crime and bring an offender to justice:
  Rice v Connolly [1966] 2 QB 414, per Lord Parker CJ. See
  also R v Waterfield and Lynn [1963] 48 Cr App R.42, 57
  and Coffin and Another v Smith [1980] 72 Cr App R.221,
  DC.”

  97. As above, the laying of the information against the accused at the District
  Court containing charges under the Criminal Code was within the powers of the
  police. Again, once there was a refusal to commit it was a matter for the Public
  Prosecutor whether and, if so, on what charge(s) to proceed before the National
  Court.

  98. Ground 5 is dismissed.
  GROUND 9: CONTEMPT

  99. As I understand it, the accused contends that the allegations by certain
  witnesses whose statements are contained on the police brief give rise to an
  alleged breach of a Supreme Court order, and thus a charge of contempt, which
  may only be dealt with by the Supreme Court pursuant to s. 160(2) of the
  Constitution, and thus the National Court lacks jurisdiction proceedings
  pursuant to s. 37(2) of the Constitution.

  100. I agree that there is no contempt charge before this Court. What is before
  this Court is one count of misappropriation contrary to s. 383A of the Criminal
  Code, as contained in the s. 526 indictment. I decline to review the evidence of
  the witness referred to in paragraph 122 of the accused’s submissions.

  101. Whether or not the evidence of the witness or witnesses, or parts thereof,
  referred to by the accused are relevant and/or admissible in support of the count
  contained in the indictment are issues for determination at trial.

  102. Ground 9 is dismissed.

  CONCLUSION

  103. There was a great deal of affidavit material filed in support of this
  motion, most of which was not referred to in the accused’s submissions and
  even less of which it has been necessary or appropriate to have regard to. I
  make it clear that unless I have referred to it as supporting my findings, I have

• Page 23 of 23

• not reviewed the material.

  104. In conclusion, none of the contentions as to delay or unlawfulness have
  been established. The arguments regarding the Audit Act and “contempt” are
  misconceived. The accused has failed to establish that the indictment is “a
  nullity”. The accused has failed to establish that he would be prejudiced in his
  right to a fair trial. Questions as to the relevance, admissibility or weight of
  evidence are properly matters for the trial.

  105. The accused has failed to establish that the continuation of the
  proceedings would involve unacceptable, or any, injustice or unfairness. The
  accused has failed to establish any basis upon which the indictment should be
  set aside/dismissed, permanently stayed or quashed. The indictment is properly
  before the Court. It contains a serious allegation of misappropriation of State
  monies. There is a need to hear and determine the matter, both in the interests
  of justice in this case, and the interests of the administration of justice more
  broadly.

  Orders

  106. Accordingly, I make the following orders:

  1. Paragraphs 1 to 5, and 9 of the accused’s Further Amended
  Notice of Motion No. 1 to set aside/dismiss/permanently
  stay or quash the indictment are dismissed.
  2. The remaining grounds will be heard together with the
  accused’s Further Amended Notice of Motion No. 2 at the
  first available date.

  ___________________________________________________________
  Public Prosecutor: Lawyers for the State
  The Accused: In person