DC6063
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
COM 851-856 OF 2021
CB NO 1029 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

JUSTUS RAMO
[Defendant]

His worship Paul Puri Nii

12th August 2021

PROCEEDINGS: -Charges- Misappropriation-383A(1)(a)-Abuse of Office-92(1)-Forgery-642(1)-Uttering-463(2)-False Pretense-404(1)(a) and Conspiracy to Commit a Crime-515 of the Criminal Code Act 1974- Pending PHUB

APPLICATION: Notice of Motion-Affidavit in Support- Application to Dismiss the all the allegations-investigations incomplete-pending police file-Application dismissed.

PNG Cases cited:
State v Tulong [1994] PNGLR 329
Police v Kimisopa [2021] PGDC 76; DC6031
Police v Wamp [2020] PGDC 66; DC5071

Overseas cases cited: 
Nil

REFERENCE

Legislation

The Constitution
Criminal Code Act 1974 Chapter 262
District Court Act 1963 , Chapter 40
Arrest Act
Bail Act 1977,

Counsel
Police Prosecutor: 		Chris Iga				For the Informant
Luther Lawyers:		Mathew Wenge			For the Defendant

RULING ON NOTICE OF MOTION TO DISMISS THE CHARGES

12th August 2021

INTRODUCTION

NII, P.P Magistrate. This is my decision on a Notice of Motion filed by the Defendant dated 20th July 2021, to have the allegations against the Defendant struck out. The Defendant through his Lawyer sought the consequent terms of the orders in the Notice of Motion:

a)	Pursuant to Section 22 and 49 of the District Court Act and Order 12 Rule 40(1)(c) of the National Court Rules, the Proceedings be dismissed for being irregular, in defeat and abuse of process.

b)	Such further and other orders this court deems necessary.

CHARGE(S)

1.	Defendant is charged with one count of six (6) different charges under the Criminal Code Act 1974. Defendant is charged of Misappropriation under Section 383A(1)(a), Abuse of Office under section 92(1), Forgery under section 642(1), Uttering under section 463(2), False Pretense under section 404(1)(a) and Conspiracy to Commit a Crime under section 515 of the Criminal Code Act 1974.

FACTS

2.	Police says on 16th July 2018-August 2019, Defendant aged 31 years old of mix parentage PNG and Solomon Island was alleged to have committed six(6) different offences. On 21st June 2021, Defendant was arrested and subsequently charged for the allegations. The supposed actualities giving rise to the allegations against the Defendant are abridged by Police in the information holding the charges as beneath:

“Dis dishonestly apply to the use of another namely, Tungula Tokali the monies in the sum of K101,563 that was embarked for the repay and maintenance of National Airport Cooperation and the independent State of Papua New Guinea”
 
3.	In the nutshell police alleges Defendant received K101,563, money property of the National Airport Cooperation by deceitfully asserting that he would do some maintenance and repair work for the Cooperation but it was allege Defendant did not put the money to where it was primarily intended for and hence he was arrested and charged.

ISSUE

4.	My question is should all the charges be struck out for being an abuse of Process?

THE LAW 

The Law in which the application was filed and brought before me.

A)	Section 22-District Court Act

22.	General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,
as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

B)	Section 49-District Court Act

49.	Issue of warrants of arrest.

(1)	Where an information is laid before a Magistrate—

(a) that a person is suspected of having committed an indictable offence in the country; or
(b) that a person charged with having committed an indictable offence of which cognizance may be taken by the courts of Papua New Guinea is suspected of being in the country,
the Magistrate may, subject to Subsection (2), issue his warrant for the arrest of that person and cause him to be brought before a Court to answer to the information and to be further dealt with according to law.
	
(2)	In a case referred to in Subsection (1), the Magistrate, if he thinks fit, instead of issuing his warrant in the first instance for the arrest of the person charged, may proceed by summons and issue a summons against the person charged.

(3) Notwithstanding the issue of a summons, a Magistrate may issue his warrant at any time before or after the time specified in the summons for the appearance of the defendant.

C).	Order 12 rule 40(1)(c) of the National Court Rules

Order 12 Judgment and Orders

40. Frivolity, etc. 

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in 
(c) the proceedings are an abuse of the process of the Court	
OFFENDING CHARGE

5.	The six (6) offending charges:

1.	Section 383A (1)(a) – Criminal Code Act

383A.	Misappropriation of property

(1)	A person who dishonestly applies to his own use or to the use of another person— 
(a)	property belonging to another is guilty of the crime of misappropriation of property 

2.	Section 92(1)-Criminal Code Act

92.	Abuse of office.

(1)	A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanor. Penalty:	Subject to Subsection (2), imprisonment for a term not exceeding two years.

3.	Section 462(1)-Criminal Code Act

462.	Forgery in general: punishment in special cases.

(1)	A person who forges any document, writing or seal is guilty of an offence        that, unless otherwise stated, is a crime. Penalty:	If no other punishment is provided—imprisonment for a term not exceeding three years.

4.	Section 463(2)-Criminal Code Act

463.	Uttering false documents and counterfeit seals.
      (2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

5.	Section 404(1)(a)-Criminal Code Act

404.	Obtaining goods or credit by false pretence or wilfully false promise.

  (1)		A person who by a false pretence or willfully false promise, or partly by a false pretence and partly by a willfully false promise, and with intent to defraud—
(a)	obtains from any other person any chattel, money or valuable security is guilty of a crime.

6.	Section 515-Criminal Code Act

515.	Conspiracy to commit crimes.

A person who conspires with another to commit a crime or to do any act in any part of the world that—
(a)	if done in Papua New Guinea would be a crime; and
(b)	is an offence under the laws in force in the place where it is proposed to be done,
is guilty of a crime.
Penalty:	If no other penalty is provided—
	(a)	imprisonment for a term not exceeding seven years; or
	(b)	if the maximum penalty for the crime in question does not exceed imprisonment for a term of seven years—not exceeding that penalty.

APPLICATION

6.	Defendant was arraigned by this court on 21st June 2021, for the six (6) charges against him. Defendant filed this application through a Notice of Motion dated 22nd July 2021 at 9.30 and an Affidavit in Support by the Defendant dated 20th July 2021.

EXAMINATION OF THE APPLICATION

7.	Defendant has funded his application on two limbs; the first was on the issue of search warrant and second on laying of charges.

(Arguments on the first limb)

8.	Defendant through Lawyer Mathew Wenge submits his client was illegally arrested by police because there was no warrant of arrest issued by court for the Defendant’s arrest and therefore defense argue his client was not arrested permitting to law. Defense supports his arguments on the principles in State v Tulong [1994] PNGLR 329. Defendant reiterated that the arresting officer’s action in arresting the Defendant without a warrant of arrest was in breach of the Arrest Act.

9.	Defendant was arrested and is now appearing in court to respond to a total of six(6) different charges, all under the Criminal Code Act. The six(6) charges are Misappropriation-Section 383A (1)(a)-Abuse of Office- Section 92(1)-Forgery-642(1)-Uttering-Section 463(2)-False Pretense-Section 404(1)(a) and Conspiracy to Commit a Crime-Section 515 of the Criminal Code Act 1974.

10.	I have read through all the six (6) charges against the Defendant and found out that there is nothing in the offending provisions that provides for arrest with a warrant of arrest. However, there are some specific charges in the CCA necessitates arrest with a warrant of arrest. One such provision is Section 87(1)(b) of the Criminal Code Act, where makes it illegal for police to arrest a suspect without a warrant of arrest on the charge of Official corruption. Was Official Corruption one of the allegations in which Defendant was arrest? The answer to this is in the negative.

11.	Moreover, there are some circumstances extenuating arrest without a warrant of arrest. Section 3 of the Arrest Act, says Police may Arrest without a warrant of arrest. The Law as I recite is below: 
.
3.	Arrest without warrant by a policeman.

A policeman may, without warrant, arrest a person whom he believes on reasonable grounds—

(a) is about to commit; or
(b) is committing; or
(c) has committed,
an offence.

12.	Essentially, if police are of the opinion that someone has committed a crime, is about to commit one or is committing then the person of interest can be arrested without a warrant of arrest.  In the current application I believe Defendant was arrested without a warrant of arrest because Police were of the opinion that Defendant had allegedly committed some crimes. The principles for arresting suspects with and without a warrant of arrest is well indicated in Police v Kimisopa [2021] PGDC 76; DC6031. The court was of the opinion that defective of one charge will not have an effect on the other charges, that is if the Defendant was arrested for several charges and one of the charge oblige police to arrest with a warrant of arrest. The court in the case says: 

…..”It will be unlawful to decide on the faith of all charges on the defectiveness of one charge. If I ruled that the Defendant was unlawfully arrested for official corruption and dismissed the proceedings then where will the other 2 charges hang? My consideration on one charge will not have a concurrent effect on all the charges but will look at each charge on its own merit and decide thereon...”

13.	In the current case, Defendant to my opinion was arrested because he allegedly committed some crimes and also it is not a legal requirement to arrest any suspects under any of the provisions under which Defendant was arrested. Therefore, Defendant’s application under this ground is refused. 

(Argument on the second limb).

14.	On the 21st of June 2021, when the Defendant was arraigned, Mr Wenge for the suspect informed the court that the charges of Abuse of Officer under Section 92(1) and Forgery under Section 462(1) of the Criminal Code Act, were new charges as his client was not charged by the arresting officer for those charges. Defendant argued the other four(4) charges of Misappripriation-383A(1)(a), Uttering -463(2), False Pretense-(404(1)(a) and Conspiracy to Commit a Crime-515,  under the Criminal Code Act where the actual charges where his client was charged with. However, Defendant says court arraigned the Defendant on all the six(6) charges but court directed Mr Wenge to file appropriate application which Mr Wenge did through the current Notice of Motion.

15.	Let me look at the law that regulates a person arrested with an offence. Section 18 of the Arrest Act is the dominant emphasis as detailed hereunder:

18.	Duties of officer-in-charge of station.

(1)	Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall—

(b)	if he does not release the person under Paragraph (a)—take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested—

(i)	has committed an offence—the nature of that offence; or
(ii)	has been arrested for some other reason—that reason; and

(c)	Promptly inform the person arrested or cause him to be informed in language he understands of—

(i) the reason for his arrest; and
(ii)details of the charges against him; and
(iii)	his right, immediately and in private—

(A) to communicate with a member of his family or a personal friend; and
(B) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid.

16.	It is a Law under the Arrest Act that a person arrested and charged must be informed of the reason why he/she was arrested by the arresting officer. The subject person must know or at least appreciate the purpose why he is taken to the police station. This would subsequently enable the person arrested to prepare for bail and his/her defense and inform his relatives and friends about the allegation. Moreover, the Constitution also places an obligation on the arresting officer to appropriately inform the suspect the reason why he/she is arrested. The law is in the subsequent terms:

42. Liberty of the person.
 
(2) A person who is arrested or detained—
(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him.

17.	I have evidence to believe Defendant was taken into the police station for questioning and subsequently charged him for the four (4) charges. However, he was not informed about the other two (2) charges. Defendant was initially charged at the police station with Misappropriation, Forgery, uttering, False Pretence and Conspiracy to Commit a Crime but not Abuse of Office and Forgery all under the Criminal Code Act. It is an established process funded by the Arrest Act and the Constitution that a person must be well informed of the reasons for his/her arrest and the corresponding charges.

18.	New charges may be bought upon a person who has already been charged and arraigned. However, the person must be well informed of the new and additional charges so that the court will have to arraign the person on the new charges. It is unlawful for the court to arraign a person on a charge(s) which was/were not laid on him/her at the police station by apprising to him/her the reason(s) for the charge but the charge is somehow brought to the attention of the court for arraignment together with other charges which were read and administered to the accused. I therefore, accept the Defendant’s argument on this aspect of the application.

19.	Lastly, Defendant raises issue on a charge not being properly worded or the offending provision no correctly numbered. Defence says the right provision for the allegation of Forgery is 462 and not 642 as quantified in the Information.  Defendant rectified the mistake but such mistake will not have any major consequence in the charge as this is a minor issue where it can be amend by leave of the court at any stages of the proceedings.  My opinion on this issue is consistent with the principles in Police v Wamp [2020] PGDC 66; DC5071. Therefore, this aspect of the application by the Defendant is refused.
 
RULING

20.	There are three (3) grounds for the application to struck out the entire charges. The first ground on the issue of warrant of arrest is refused. The Second ground on the issue of charges not being properly read to the Defendant and explaining the reasons is accepted. The last ground for incorrectly wording a provision of the charge is refused.  

CONCLUSSION

21.	The Application by way of Notice of Motion by the Defendant dated 23rd July 2021 is decided by accepting four (4) charges to go through committal hearing while striking out two (2) charges for want of compliance under the Arrest Act and the constitution. 

ORDERS

22.	My formal orders

a)	The Application for the entire charges to be dismissed is refused.

b)	The charges of Abuse of Office under Section 92(1) and Forgery under Section 462(1) of the Criminal Code Act, are struck out for want to compliance under the Arrest Act and the Constitution.

c)	All the remaining charges of  Misappropriation under Section 383A(1)(a), Uttering under Section 463(2), False Pretense under Section 404(1)(a) and Conspiracy to Commit a Crime under Section 515 of the Criminal Code Act, will proceed to committal hearing.

d)	Matter adjourned to the 26th August 2021 at 9.30am for mention.

e)	Defendant’s bail extended on same conditions.

Luther Lawyers					For the defendant
Police Prosecutor					For the State