Papua New Guinea Law Reports - 1974
[1974] PNGLR 250
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V
ABIA TAMBULE & OTHERS
Port Moresby
Minogue CJ Frost SPJ Clarkson J
31 October 1973
1 November 1973
19 April 1974
CRIMINAL LAW AND PROCEDURE - Trial - Nolle prosequi - Whether Crown may enter nolle prosequi at close of Crown evidence - The Criminal Code (Queensland adopted) s. 563[cccxi]1, - Human Rights Act 1968 s. 16 (2)[cccxii]2.
HUMAN RIGHTS - Fair hearing within a reasonable time - Whether Crown may enter nolle prosequi at close of Crown evidence - Human Rights Act 1971 s. 16 (2)[cccxiii]3.
Section 16 (2) of the Human Rights Act 1971 provides: “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial Court established by law”.
Held
(Clarkson J. dissenting) That for the Crown to enter a nolle prosequi at a stage of a trial when the Crown had called all the evidence available and it was insufficient to sustain the charge, was to deny the accused a fair hearing under s. 16 (2) of the Human Rights Act 1971.
R. v. Comptroller-General of Patents, [1899] 1 Q.B. 909, at p. 914; Connelly v. D.P.P., [1964] A.C. 1254; R. v. Sneesby, [1951] Q.S.R. 26; In re the Rev. S. F. Green (1882) 51 L.J.Q.B. 25, at p. 44; R. v. Kellett (1856) 1 V.L.T. 5; Tobin & Another v. The Queen (1863) 32 L.J.R. (N.S.) 216, at p. 224 referred to.
Reserved Question
This matter came before the Full Court in the form of a question reserved by Frost S.P.J. under s. 26 of the Supreme Court (Full Court) Act 1968, and arose from the Crown Prosecutor informing the Court pursuant to s. 563 of the Criminal Code (Queensland adopted) at the stage in the trial when the Crown had called all the evidence available to it, that the Crown would proceed no further against the accused. The question reserved was, “Should a nolle prosequi have been entered in respect of the three accused and the accused discharged or should verdicts of not guilty have been entered.”
Counsel
C. F. Wall, for the Crown.
J. Bradshaw, for the accused.
Cur. adv. vult.
19 April 1974
MINOGUE CJ: I agree with my brother Frost that the three accused concerned in this case were entitled to an acquittal and for the reasons which he has given.
I feel that further consideration of the meaning to be ascribed to the expression “Unless the charge is withdrawn” will be necessary, but whatever be the proper ambit of that expression in my view this trial had reached a stage where the accused men were entitled to have a determination of the charge against them.
FROST SPJ: The question reserved by me at the trial arose from the Crown Prosecutor informing the Court pursuant to s. 563 of the Criminal Code at the stage in the trial when the Crown had called all the evidence available to it, that the Crown would not further proceed against three accused. It was conceded by the Crown that there was insufficient evidence upon which any of those accused could have been convicted, but the Crown had in mind the possibility of further proceedings. The course taken by me, for convenience, was to enter the nolle prosequi and discharge the three accused, reserving for the Full Court the question whether that was the proper course or whether a verdict of acquittal should be entered.
In England the modern position is that, “the Attorney-General alone has the power to enter a nolle prosequi, and that power is not subject to any control”. R. v. Comptroller-General of Patents [cccxiv]4. The entry of a nolle prosequi in the circumstances of the present case would be quite contrary to current English practice, which it appears, is “to confine the exercise of the power almost entirely to cases where, after the indictment has been signed, it is found that the accused is unlikely ever to be fit to stand his trial (so that it is not possible to place him in charge of the jury with the object of bringing the proceedings to an end with a formal verdict of not guilty)”[cccxv]5. See also 1969 Cambridge Law Journal 43 at p. 49. Any abuse of the Attorney-General’s power would lead to political rather than legal consequences[cccxvi]6. But once a case is before a judge it is withdrawn only with the leave of the judge (R. v. Comptroller-General of Patents [cccxvii]7), and as I understand the English practice, only upon verdict of acquittal. In Victoria the Attorney-General’s statutory power is confined, in effect, to declining to file a presentment[cccxviii]8.
The case for the accused before this Court was that the procedure adopted by the Crown was, in the circumstances, an abuse of the Court’s process, and also a breach of the accuseds’ rights under s. 16 (2) of the Human Rights Ordinance 1971.
It is established that the Court has the power inherent in the Court’s jurisdiction, to prevent any abuse of its process, and to control its own procedure, Connelly v. D.P.P. [cccxix]9.
But the question whether this inherent power is applicable to s. 563 of the Code must depend on the interpretation of the Code.
In other sections of the Code the legislature has expressly conferred on the Court a discretion to make orders to prevent the accused from being prejudiced by the Court’s procedure. Instances are to be found in s. 567, which deals with the joinder of counts in an indictment, s. 572 as to the amendment of indictments, and s. 596 which confers on the Court the power to quash an indictment on the ground (inter alia), that it is calculated to prejudice or embarrass the accused in his defence. This consideration is sufficient in my opinion to show that the power conferred on the Crown Law Officer and certain other officers appointed by the Governor-in-Council to enter a nolle prosequi was not intended by the legislature to be subject to any discretionary control by the Court. This conclusion is consistent with the Queensland practice, R. v. Sneesby [cccxx]10. The power may thus be exercised under the Code at any stage of the trial in relation to an indictment so long as it can be said that the indictment remains pending in the Court. It could not be suggested that in the present case the trial had gone beyond that stage. Accordingly the first defence submission fails.
The remaining question is whether the law has been changed by the Human Rights Ordinance 1971 which provides that, “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 established by law.” (s. 16 (2)).
As the expression “hearing” must include the determination of the issue, the section thus confers a right to a fair determination of that issue. In Re the Rev. S. F. Green [cccxxi]11. It was argued by Mr. Wall that a contrary intention had been shown pursuant to s. 5 (2) of the Ordinance, and that s. 563 of the Code was not to be read and construed subject to the provisions of the Human Rights Ordinance. But, in my opinion, there is no foundation for this argument having regard to the width of the power conferred by s. 563 and the room for its abuse. Mr. Wall then argued that s. 16 (2) does not assist the accused for the accuseds’ right to a fair hearing, as he argued, is not infringed if at any stage of the trial the charge is withdrawn. I am unable to accept this argument. One effect of s. 16 (2), in my opinion, is to deny any absolute right to the hearing of a charge once it is preferred. It may later be withdrawn. But, in my opinion, if a charge is not withdrawn and the hearing commences, the accuseds’ right to a fair hearing becomes the paramount consideration. Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings. For the Crown to enter a nolle prosequi in circumstances similar to those of this case has been said to be unfair (R. v. Sneesby [cccxxii]12). The reason must be that it is tantamount to the accused being placed in double jeopardy which, of course, does not strictly attach until the final verdict. The maxim of the law is nemo bis vexari pro una et sadem causa, which means that, “No one ought to be tried twice for one and the same cause”. It was upon this basis that in the early Victorian case of R. v. Kellett[cccxxiii]13 (apparently decided before the entering of a nolle prosequi had been the subject of legislation), the Victorian Full Court held that after the Crown case had closed and the prisoner had the right to ask the Court to direct a verdict of acquittal in the absence of the necessary evidence, the Attorney-General had no power to enter a nolle prosequi.
I am conscious of the difficulties of determining the requirements of a fair hearing. In Connelly v. D.P.P.[cccxxiv]14 the House of Lords considered the question whether in the exercise of the Court’s undoubted power to prevent an abuse of its process, there was power outside the common law principles to stop a prosecution. As Lord Hodson pointed out, “Different judges will, and the history of the case shows this, have different views as to what is unfair and I should find the discretion, if there is one, immensely difficult to exercise at all, nor should I know how to exercise it judicially.”[cccxxv]15.
At what stage of the trial does it cease to be fair to the accused for the Crown to enter a nolle prosequi? In a case such as the present the public interest that prosecutions should not be allowed to fail for technical reasons is to be balanced against the injustice to the accused in being placed in jeopardy of a second trial. It is not necessary in this case to decide where the line should be drawn. In R. v. Kellett[cccxxvi]16 the Court indicated that the Attorney-General’s power ceased once evidence was called. However, I am satisfied that in the circumstances of the present case for the Crown to enter a nolle prosequi at the stage when the Crown had called all the evidence available and it was insufficient to sustain the charge, was to deny the three accused concerned a fair trial. If an accomplice was to be called the appropriate steps—either by entering a nolle prosequi or calling no evidence—should have been taken in relation to one or more of the accused at the beginning of the trial before evidence was led.
Accordingly, in my opinion, the three accused concerned were entitled to an acquittal which was the appropriate order under s. 21 (3) of the Human Rights Ordinance.
The question should be answered as follows:
The trial judge should have declined to accept the nolle prosequi, and should have entered a verdict of not guilty.
CLARKSON J: The three accused were on trial with others for wilful murder. Before the Crown case was formally closed the Crown Prosecutor sought to present to the Court a nolle prosequi in respect to each of the three accused. The circumstances in which this occurred are described by the trial judge who says that “the purpose of presenting the nolle prosequi was to prevent the accused from being acquitted and with a view to the possibility of further proceedings. Mr. Wall said that further proceedings would be considered having regard to any additional evidence which may come to light in the next few weeks in the form of evidence of accomplices. Mr. Wall submitted that in a situation when further evidence may become available the course adopted by him was a proper one and that if no further evidence was forthcoming further proceedings would not be taken.
The Crown Prosecutor conceded that at the stage which the trial had reached, the Crown having called all the evidence then available to it, there was insufficient evidence upon which any of the three above-named accused could be convicted.”
Counsel for the three accused moved for a verdict of not guilty. The question as stated by the trial judge is:
“Should a nolle prosequi have been entered in respect of the three above-named accused and the accused discharged or should verdicts of not guilty have been entered?”
I should add that in the course of argument before the Full Court counsel for the Crown submitted—and I must assume he did so on instruction from the proper Crown officers—that the Court had no control over the right of the Crown to present a nolle prosequi at any time even after verdict. He further stated that at this trial where he appeared as Crown Prosecutor he would not have accepted any opinion expressed by the trial judge that he should or should not present a nolle prosequi; he was, he submitted, entitled to act according to his own view of what was proper in all the circumstances.
I must say that I am surprised with the breadth of the Crown’s claim but for reasons which will appear it is unnecessary for me to examine it in detail.
There are I think two preliminary observations which should be made. Firstly, since civil administration was first established in New Guinea by Australia in 1921 the Queensland Criminal Code has been in force in New Guinea. There was not an earlier period as in Queensland when the common law applied. The prior law relating to crime was German or customary. Secondly, I am not aware of any established practice in this jurisdiction as to the presenting of a nolle prosequi, the circumstances in which one will be presented or whether the Crown will act on opinions expressed by the trial judge.
I make these points because in my view the answer to the immediate question before us is not to be found in the common law or any established practice of this Court but in the Criminal Code itself.
Section 563 of the Code reads:
“A Crown Law Officer may inform any Court, by writing under his hand, that the Crown will not further proceed upon any indictment then pending in the Court.
An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may inform that Court, by writing under his hand, that the Crown will not further proceed upon any indictment then pending in that Court.
When such information is given to the Court the accused person is to be discharged from any further proceedings upon the indictment.”
There may be some argument as to when an indictment ceases to be “pending” or as to when the Crown ceases to be able to “further proceed” upon it but it was not argued that such questions arise here and it seems to me that on the plain construction of the section the Crown was entitled to present a nolle prosequi when it did.
Counsel for the accused argued that the Crown being unable to prove its case the accused were entitled to an acquittal, that the presenting of the nolle prosequi which reserved the right of the Crown to present another indictment, was in all the circumstances both an abuse of the Court’s process which should be restrained and a breach of the accuseds’ rights to trial within a reasonable time, a right conferred by the Human Rights Ordinance, 1971.
It seems clear that the Court has inherent jurisdiction to protect its own processes from misuse although the extent of this power and the circumstances in which it would be exercised have not yet been considered in any detail; nor do I think the occasion for such consideration has yet arisen in this case.
I understand the Crown as saying in effect that if no further evidence is forthcoming “within the next few weeks” no further proceedings will be instituted. In that event in my view, the exercise by the authorized officer of his statutory powers under s. 563 of the Code did not by itself constitute an abuse of process even though one may consider its exercise as being by ordinary standards unfair.
If a further indictment is presented for an offence for which the accused could have been convicted on the first indictment then this Court may well have to consider whether or not in all the circumstances further proceedings on it could or should be stayed in exercise of the Court’s powers “to suppress any abuses of its process and to defeat any attempted thwarting of its process” (per Lord Morris in Connelly v. D.P.P.[cccxxvii]17), a case incidentally where in the circumstances of that case the preferring of a second indictment was held not to be an abuse of process. That the action is that of an officer of the Crown would appear not to restrict the Court’s powers. (Halsbury’s Laws of England 3rd ed. vol. 7 p. 382). Tobin & Anor. v. The Queen[cccxxviii]18.
The appellants call in aid s. 16 (2) of the Human Rights Ordinance 1971 which reads:
“(2)    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 established by law”.
I agree that the hearing includes the final determination but to me the plain and ordinary meaning of the provision is that the obligation to afford a hearing ceases if the charge is withdrawn and I see no reason for not adopting that meaning.
Counsel for the appellants did not argue that a discharge pursuant to s. 563 of the Code was not itself a withdrawal of the charge and I find nothing in that section or s. 16 (2) of the Human Rights Ordinance to say that a charge cannot be withdrawn after the hearing has commenced.
I am therefore of the opinion in answer to the question asked that a nolle prosequi should have been entered in respect of each of the three accused.
Question answered accordingly.
Solicitor for the applicant: G. R. Keenan, Acting Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cccxii]Infra p. 257.
[cccxiii]Infra p. 257.
[cccxiv][1899] 1 Q.B. 909 per Smith L.J. at p. 914.
[cccxv]1958 Criminal Law Review 573 at p. 578.
[cccxvi]1958 Criminal Law Review at p. 582.
[cccxvii][1899] 1 Q.B. 909.
[cccxviii]Crimes Act (1958) s. 357, Fourth and Fifth Schedules.
[cccxix][1964] A.C. 1254; [1964] 2 All E.R. 401.
[cccxx][1951] Q.S.R. 26.
[cccxxi](1882) 51 L.J.Q.B. 25 at p. 44.
[cccxxii][1951] Q.S.R. 26 per Philp J. at p. 30.
[cccxxiii](1856) 1 V.L.T. 5.
[cccxxiv][1964] A.C. 1254; [1964] 2 All E.R. 401.
[cccxxv][1964] A.C. 1254 at p. 1337; [1964] 2 All E.R. 401 at p. 432.
[cccxxvi][1856] 1 V.L.T. 5.
[cccxxvii][1964] A.C. 1254 at p. 1301; [1964] 2 All E.R. 401 at p. 409.
[cccxxviii](1863) 32 L.J.R. (N.S.) 216 per Willes J. at p. 224.
[cccxxix]Infra p. 260.