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Police v Sema [2021] PGDC 92; DC6045 (15 July 2021)

DC6045

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

COM NO 312 OF 2021
CB NO 635 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

JULIE SEMA
[Defendant]

His worship Paul Puri Nii

15^th July 2021

PROCEEDINGS: -Charge- False Declaration disobeying Section 196(1)(b) of the Criminal Code Act 1974- Has the Police prepared their file within evenhanded time for the court to consider evidence and was it an abuse of process?

EVIDENCE: Pending PHUB- elements yet to be weighted. Police file pending. Existence of a National Court proceedings-Affidavit filed by Defendant current in the civil proceedings-National court to rule on the evidence- Evidence of abuse of initiating criminal proceedings- Conquering the court process-Application granted.

PNG Cases cited:
John Niale v Sepik Coffee Producers Limited & Ors (2004) N2637
Viviso Seravo v. Jack Bahafo (2001) N2078
Police v Taina [2021] PGDC 85; DC6042 (8 July 2021)

Overseas cases cited:
Nil

REFERENCE

Legislation

The Constitution
Criminal Code Act 1974 Chapter 262
District Court Act 1963 , Chapter 40
Evidence Act 1975
National Court Rules

Counsel
Police Prosecutor: Peter Samgy For the Informant
Ashurst Lawyers: Lubia Evore For the Defendant

RULING ON NOTICE OF MOTION

15^th July 2021

INTRODUCTION

NII, P Magistrate. This is my ruling on a Notice of Motion filed by the Defendant dated 2^nd July 2021, to have the information encompassing the charge of False Deceleration under Section 196(1)(b) of the Criminal Code Act, Chapter 262, terminated. The application is in the succeeding terms:

1. Pursuant to Section 22(a) of the District Court Act (Chapter 40) and Section 155(4) of the Constitution, the Information laid against the Defendant on 26^th February 2021, relating to the charge of False Statements required to be under Oath or Solemn Declaration contrary to Section 196(1)(b) of the Criminal Code Act (Chapter 262) be dismissed, for want of prosecution and being an abuse of process.
   
2. The Defendant be discharged forthwith in relation to the charge of False Statements Required to be Under Oath or Solemn Declaration contrary to Section 196(1)(b) of the Criminal Code Act (Chapter 262).
   

100. The Defendant’s bail of K1,000, be refunded.
     

4. Time is abridged.
   
5. Such further or other orders the court deems fit.
   

CHARGE

1. Defendant is charged with one count of making a False Deceleration under Section 196(1) (b) of the Criminal Code Act 1974.
   

FACTS

2. Police says on 9^th September 2020, Defendant aged 50 years old from Suau village of Milne Bay Province was alleged to have made a false statement under oath. On 26^th February 2021, Defendant was arrested and subsequently charged for the allegation. The purported declaration is summarized by Police in the Information as:
   

“Being required by Law to verify on her Oath made a sworn Affidavit declaring “ the Defendant had a contract with the operator of Porgera Gold Mine to provide catering services to the mine. The Defendant being a locally company had an arrangement with Jonathan Paraia trading as Piaim Kumbipara Holdings an unincorporated entity(hereafter the bakery) to supply raw ingredients to the Bakery who baked products and later sold it back to the Defendant” which was false in material particular”.

3. Defendant was granted police bail after her arrest but on the 6^th April 2021, Defendant was not in court and court issued a Warrant of Arrest for her re-arrest. On 20^th April 2021, Defendant filed an application to set aside the bench warrant for her rearrest but was refused by the court. On 27^th May 2021, Defendant filed another Application to set aside the warrant of arrest and court granted this with conditions which the Defendant was to comply. The Defendant is now appearing in court with new bail and conditions imposed.
   

ISSUE

4. Whether it is appropriate to struck out the allegation against the Defendant at this stage?
   

THE LAW

The Law on Application to Struck out Information

Section 22(2)-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

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

CHARGE

5. The offending charge:
   
   196. False statements required to be under oath or solemn declaration.
        

(1) A person who, on any occasion on which a person making a statement concerning any matter—

(b) is required to verify it by solemn declaration or affirmation,

makes a statement concerning the matter that is to his knowledge false in a material particular, and verifies it on oath or under such other sanction or by solemn declaration or affirmation, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

DEFENSE SUBMISSION

6. Defendant through Ashurst Lawyers ask to court to grant the terms of the orders sought in their Notice of motion by dismissing the allegation and have the defendant discharged from custody. Defendant through her Lawyer Lubia Evore submits the allegation arouse out of an Affidavit filed by the Defendant in a civil proceeding in the Lae National Court. Mr Evore submits his client was arrested because of the Affidavit she filed in the National Court where police allege she did a false declaration in a civil court proceeding in the Lae National Court in WS No 1334 of 2013. Defendant further argues the Complainant in the Defendant’s arrest intentionally arrested her so that the Defendant would withdraw her Affidavit filed in the National Court in Lae. Mr Evore also submits the Complainant’s main intention is to lay this Compliant against the Defendant so it would endeavor to impede with the process of the civil jurisdiction of the National Court and thus amount to an abuse of process.
   
7. Lastly, Defendant argues police have not provided their file containing the allegation against the Defendant on the Defendant and it has gone past four (4) months and hence the delay has breached the Defendant’s Constitutional rights under Section 37(3) of the Constitution. Defendant lastly, elaborated that there was no justifications for the delay in the prosecution of the Defendant’s allegation and therefore Defendant submits for the Information against the Defendant be dismissed and Defendant discharged.
   

PROSECUTION CASE

8. Police Prosecutor Peter Samghy intensely objected to the Defendant’s Notice of Motion filed on 2^nd July 2021, that the Application be refused and matter be adjourned for further mention for police to work on the Police-Hand-Up-brief. Police Prosecutor also informed the court that there was no abuse of process involved in the arrest, interrogation and its subsequent charge and thus the Defendant’s application to have the information against the Defendant dismissed be refused.
   

ANALYSIS OF THE POLICE CASE

9. Police’s main function apart from its administrative obligation is under Section 197(2) of the Constitution.
   

197. Functions of the Police Force.

(2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.

Any regular member of the Police force is obligated by the Constitution to arrest, interrogate and charge any person who is allege of coming in conflict with the Laws of the land. The Police informant having himself guided by this provision of the Constitution arrested the Defendant on 26^th February 2021, for an allegation under the Criminal Code Act.

ANALYSIS OF THE DEFENSE CASE

10. Defense argument is in two (2) limbs, first, is on the issue of undue delay in the prosecution of Defendant’s allegation and second, is on the issue of abuse of Process. Firstly, Defendant says she was mistakenly arrested by police to destroy and coerce a civil proceeding that is going on in the Lae National Court. Defendant says, the Complainant in her arrest had police to arrest her so that she would withdraw an Affidavit she filed in a civil proceeding. Secondly, Defendant says Police have not come up with their evidence against her and hence it has taken a lot of time. Defendant says her right under the Constitution to have her case “heard within a reasonable time” is momentously affected when police file is hindered.
    

EXAMINATION OF THE ARGUMENTS

Issue of Undue delay

11. I appreciate the principles provided by Defense in the case of John Niale v Sepik Coffee Producers Limited & Ors (2004) N2637 and Viviso Seravo v. Jack Bahafo (2001) N2078, to the magnitude where the delay is unwarranted or generous in the prosecution of an issue or allegation. These matters are filed in the civil tracks of the National court by the Plaintiffs against the Defendants for damages claims. However, Defendant filed a Notice of Motion pursuant to Order 10, Rule 5 of the National Court Rules, because the Plaintiff did not progress the matter after close of pleadings and hence the court dismissed the proceedings against the Plaintiffs. The nature of the Notice of Motion filed by the Plaintiffs and this Notice of Notion filed by the Defendant in the current allegation may seem comparable since both raise issue on lack of prosecution, the proceedings in the National Court is governed by the National court rules under Order 10, Rule 5, where it states:
    

“Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit”

12. These matters were dismissed by the courts because the Plaintiff did not progress the Matter within 6 weeks after close of pleading. The time limitation to progress a case after close of pleadings in the national court is before 6 weeks and it is clear law. However, the Committal courts by virtue of a new Practice Direction termed as Practice Direction one (1) of 2020, has repealed the former practice direction of 3 months where within such time police file shall be prepared and served on the Defendant and that means now all cases shall be decided on its own merit and on a case on case foundation and this is the principle in my own case of Police v Taina [2021] PGDC 85; DC6042 (8 July 2021). Having proven this, the grounds for the dismissal of proceedings established by the National Court is not pertinent in the present circumstance and hence it is not appropriate. Moreover, the principles for dismissal of National Court are guided by the National Court rules while the dismissal of Proceedings at the Committal court for want of evidence is not guided by any strict Principles but on a case basis subject to Section 37(3) of the Constitution. Defendant was arrested on 26 February 2021, and it’s now 15^th July 2021, it is almost four (4) months, two (2) weeks and five (5) days from the date of arrest. Is this deferment extravagant in the circumstance of this case? No, the interruption of four (4) months, two (2) weeks and five (5) days is practical in the context.
    

Issue on abuse of Process

13. Defendant was arrested by Police because of her part as a Deponent in an Affidavit filed in support a of civil proceeding which is presently pending determination in the Lae National Court. It is presented that the Complainant’s intention against the Defendant is to have the Defendant arrested so that the arrest would subsequently interfere with the process of civil proceedings in the National Court. Defendant was arrested under Section 196(1)(b) of the Criminal Code Act, for deposing an Affidavit in a civil court proceeding at the National Court which is pending determination. An ordinary person does not have the legal capacity to proclaim a sworn statement as false if the statement was made in support of an existing case that is pending determination in the court. The truthfulness of any deposed statement in question shall be determined by the court under which the statement was filed. The accurate progression under Law is to give notice to Cross-Examine a deponent under Section 23 of the Evidence Act, if there was mistrust that the statements deposed and sworn in court were deceitful pronouncements. I narrate the Law as follows:
    

23. Cross-examination as to previous statements.

(1) A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him, but if it is intended to contradict the witness by the writing his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of contradicting him.

(2) The court may at any time during the proceedings require the writing to be produced for its inspection, and may make such use of the writing for the purposes of the proceedings as it thinks fit.

14. The Defendant’s righteousness regarding the contents of the Affidavit she filed should be tested during cross-examination if the Complainant in the current allegation alleges that she lied. It is an abuse of process and unlawful to test the truthfulness of the Defendant’s Affidavit filed in a civil court by using the criminal court. If the Affidavit was filed in support of an allegation in the civil court then the same court should test the evidence filed, not any other courts. The same applies to the criminal courts. The courts have their own practices, traditions, customs and principles which people should respect and obey. Moreover, logic and commonsense should couple with accurate practices and principles of the Laws to guide people understand and appreciate the difference between what constitutes a causes of action which is civil and criminal in nature.
    
15. The contents of the sworn Affidavit should be proven after when the Deponent is examined and such outcome would also have a bearing on the substantive matter. In here, I have a situation where the Defendant was arrested by police upon a Complaint that Deponent was lying on oath or for declaring a false statement. If the statement was filed in support of an existing case that is pending in court, neither the Complainant nor Police have no legal basis to preempt and make precipitate judgment to its contents, it is up for the subject court to decide. However, there is an exception to this and that is if there was allegation of a false declaration made outside of the court (means if it was not filed in support of an existing proceedings in the court) or if it was not intended for the courts consumption then the person making the deceleration should be questioned upon reasonable suspicion funded on evidence that the matters of such document is debatable. Funded on this, I am contented that Police have acted on a complaint that has no legal basis, and in doing so police have abused the intent and purpose of Section 196(1)(b) of the Criminal Code Act.
    

RULING

16. Defendant was arrested and charged for the offence of Making False Declaration under Section 196(1)(b) of the Criminal Code Act. If found guilty under this charge, Defendant would be sentenced for a term not exceeding seven (7) years. Defendant was arrested on 26^th February 2021, and the decision on her Notice of Motion was delivered on 15^th July 2021. This Decision is made after four (4) months, two(2) weeks and five(5) days from the date of the Defendant’s arrest. In the circumstance of this case, the delay in the prosecution is not inordinate and therefore the first limb of the submission is refused.
    
17. Defendant was arrested for an allegation of filing an Affidavit in support of a civil proceeding that is currently on foot in the Lae National Court. Defendant was arrested on the allegation that she lied. Until and unless the ‘lied’ part is confirmed by a court of competent jurisdiction which is the same court under which the Defendant has filed her Affidavit with, right now it would be unsuitable to assume that the Defendant lied. The charge under which the Defendant is arrested to me is not correct in Law and therefore it contravened Section 37(2) of the Constitution. Defendant’s submission under this limb is accepted.
    

CONCLUSSION

18. Although the lack of prosecution in prosecuting the matter is not inordinate, I have considered the information bearing the charge of False Deceleration very judiciously consistent with the nature of the allegation and satisfy myself that the charge is not correct in Law. Therefore, I will strike out the information bearing the charge.
    

ORDERS

19. The Information of False Deceleration under Section 196(1)(b) of the Criminal Code Act, Chapter 262, is struck out for want of proper Rule/Law.
    
20. Defendant is discharged from custody and bail obligations forthwith.
    
21. Defendant’s bail is refunded.
    

Ashurst Lawyers For the defendant
Police Prosecutor For the State