[1997] PNGLR 494

PAPUA NEW GUINEA

[national court of justice]

THE STATE

V

PAWA KOMBEA

mendi: lenalia aj
10, 11 February 1997

Criminal law - Practice and procedure - Indictment - Ex Officio indictment under s 526(1) Criminal Code Act Ch 262.

Criminal Law - Practice and procedure - Indictment under s 526 (1) formally signed and presented before another circuit Judge in 1995 - Whether or not State Prosecutor has power to present a second but amended indictment bearing the Public Prosecutor’s signature.

criminal law – Practice and procedure – Defective indictment under s 526(1) Criminal Code – Amendment of Indictment under s 525 Criminal Code – Whether s 155(3) and (4) Constitution can be relied upon to cure defect.

Facts

The State Prosecutor based in Mount Hagen signed and presented an ex officio indictment before His Honour Woods J on 12th of September 1995. Two years later, the State Prosecutor sought to present another indictment signed by the Public Prosecutor as a replacement of the earlier indictment upon realising that an ex officio indictment cannot be signed by any State Prosecutor but by the Public Prosecutor only under s 526 of the Criminal Code Act Ch. 262. On an application to quash the subsequent, amended indictment by the defence:

Held

1.	It is only once that an indictment should be preferred on the basis of one committal either under s 526 (2) or 526 (2) of the Criminal Code Ch. 262.

2.	An indictment under s 526 of the Criminal Code cannot be signed by any other State Prosecutor but only the Public Prosecutor. The State v Burege [1992] PNGLR 481 applied.

3.	The power to amend an indictment does not include the power to accept a new amended indictment either under s 525 or 526 of the Criminal Code.

4.	Section 155(3) and (4) of the Constitution cannot be relied upon to admit a defective indictment because s 535 of the Criminal Code already address the subject and therefore the National Court cannot override the limitations placed by s 535 of the Criminal Code.

Papua New Guinea cases cited

R. v McEachern [1967-68] PNGLR 48.
State v Esorom Burege (No. 1) [1992] PNGLR 481.

Other case cited

R. v Thompson R V Clein [1975] All ER 1028.

Counsels

J Kesan, for the State
J Shepherd, for the accused.

11th February, 1997

Lenalia aj. The accused was originally charged with an information laid on 26th of March 1995 charging that on 15th of September, 1991 at Yombi Village in Ialibu, Southern Highlands Province, he abducted one Maria Semal and detained her against her will, thereby taking her away from her parents custody. A second charge of rape was also laid. The accused went through a lengthy period of committal proceedings in the Mendi District Court. On 23 October 1992 the Magistrate refused to commit the accused for trial on the charge of rape. On 13 June 1995 a differently constituted court presided over by another magistrate also refused to commit the accused for trial on the charge of abduction - see s 100 (2) of the District Courts Act Ch. No. 40.

Following the dismissal and refusal to commit the accused for trial, a bill of ex officio indictment was drafted in accordance with s 526 (1) of the Criminal Code and signed and formally presented by Mr Kesan to His Honour Woods J on September 21st 1995. Somehow the indictment containing four charges, one for abduction, and three for raping the same victim were never proceeded with until this month when Mr Kesan addressed the Court at the commencement of this circuit on February 3rd that he had decided to proceed with the case of Pawa Kombea on the second week of the circuit because it had been outstanding for a long time. This was despite the fact that, the second week of the circuit was already allocated with certain cases to be heard. The State Prosecutor then made arrangement with the defence counsel to appear on 10th of February 1997 in readiness for the commencement of the trial.

Before the trial could start, Mr Shepherd for the accused indicated that Mr Kesan had served him a notice of his intention to make an application to amend the indictment, which was originally signed and presented in September 1995. Mr Shepherd also indicated that before the Court would hear the application to amend, he was filing an urgent notice of motion to quash the indictment under ss 534 (2) and 558 of the Criminal Code. I allowed the defence to file the motion and invited the defence counsel to address the Court on the notice of motion. The motion sought the following orders:

"(1)	The indictment in these proceedings be quashed.

(2)	The time service of this Motion be abridged to the time of the hearing of this motion".

I granted the second order and further invited Mr Shepherd to address the Court on his motion on authority of the case of R v McEachern [1967-68] PNGLR 48. The main contention put by the defence was the indictment presented in September 1995 was a nullity and formally defective in form within the meaning of s 558(1) (b) of the Criminal Code and was ultra vires the powers of the State Prosecutor and was an abuse of the process. He further argued that s 535 of the Criminal Code does not grant this Court the power to amend the indictment that was already presented in these circumstances where at the commencement of the trial of his client, the prosecution seeks leave for a copy of an amended indictment bearing the signature of the learned Public Prosecutor to be substituted for the defective original indictment. Mr Shepherd further argued that the original indictment presented on 21st of September 1995 is completely null and void by virtue of s 526 of the Criminal Code. According to Mr Shepherd, the only person who can sign an ex officio indictment is the Public Prosecutor. Section 526 reads:

"526	Indictment without committal

(1)	Where a Court of summary jurisdiction has refused to commit a person 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 Sub section (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, written such item before the commencement of the trial as are reasonable in order to allow the accused person to prepare his defence".

In support of the contention that an ex officio indictment could only be signed by the Public Prosecutor, I was referred to the case of The State v Esorom Burege (No. 1) [1992] PNGLR 481 in which His Honour Jalina J held that unlike s 525 of the Code providing for both the Public Prosecutor and a State Prosecutor to sign indictments, only the Public Prosecutor may sign indictments brought under s 526 (1) where there has been a refusal to commit for trial. The Court further held there that the State Prosecutor’s signature on the ex officio indictment was ultra vires his powers and the signature by the State Prosecutor on the ex officio indictment under s 526 (1) was not only invalid but amounted to an abuse of the process.

It appears from the defence submission that the Public Prosecutor was only alerted by the defence counsel when Mr Shepherd made enquiries with the Public Prosecutor’s Office on Wednesday 5 February 1997 as to whether the prosecution was still intending to prosecute on trial upon the face of the original defective indictment. The Deputy Public Prosecutor advised Mr Shepherd that the original indictment signed and presented by Mr Kesan would be re-typed and signed by the Public Prosecutor.

It is evident from the defence evidence that the initiative taken by the Public Prosecutor to sign the proposed amended indictment was necessitated by enquiries by the defence counsel into the status of the original defective indictment. It is also clear that nothing was done by the Public Prosecutor’s Office since September 21, 1995 to rectify or remedy the defect created by their Hagen office.

In reply to the submission and address on the motion, Mr Kesan for the State briefly replied that the application to amend was quite relevant to the nature of the indictment being an ex officio indictment. He submitted further that there were no new charges added, nor was there any insertion or deletion of any words or phrases on the proposed amended indictment bearing the Public Prosecutor’s signature. The only words added were the signature of the Public Prosecutor. Mr Kesan further argued that the original indictment signed and presented by himself on 21st day of September 1995 should be disregarded completely and the court should accept the amended facsimile copy bearing the Public Prosecutor’s signature.

Mr Kesan argued that this court has the power to amend an indictment under s 525 of the Criminal Code. He argued further that despite the argument that the original indictment is defective because he signed it, instead of the Public Prosecutor, the Court must use its inherent power under s 155 of the Constitution to accept the indictment and the trial should proceed.

I am of the view that there are three issues involved. First, what is the effect of an indictment that has been presented but no plea has been taken. Secondly do I have the power to amend what appears to this court to be a defective ex officio indictment incorrectly signed and presented by the learned State Prosecutor for and on behalf of the Public Prosecutor. The third question is that can this Court use the inherent powers given by Section 155 (3) & (4) of the Constitution to remedy a defect that is clearly outside the legislative intent and which is void "ab initio".

Presentation of indictments is governed by ss 525 and 526 of the Criminal Code. Section 524 provides that no indictment may be presented in the National Court except in and accordance with Sections 525 and 526. The former proviso authorizes both the Public Prosecutor and a State Prosecutor to present indictments in the National Court. The latter section specifically deals with indictments without committal. It provides for a situation where a committal court has refused to commit for trial pursuant to s 100 (2) of the District Courts Act. Under these circumstances, the Public Prosecutor may by overriding a refusal by the Court to commit, present an ex officio indictment under section 526 (1) of the Criminal Code. 

The Public Prosecutor can only do this after careful consideration of all evidence and any other relevant evidence that may become available to him. I note from the file that Mr Kesan signed the original indictment with the words "for the Public Prosecutor". Quite apparently Mr Kesan did not have the power to sign the ex officio indictment by authority of the The State v Esorom Burege case. The original indictment was captioned in capital letters "ex officio indictment". He however has the power to present ex officio indictments as required by Section 526 (2) of the Code.

It is obvious from the Court record that the original indictment in its defective form was formerly signed and presented by Mr Kesan on 21st of September 1995. The question posed is: that what is the effect of an ex officio indictment that has been signed and presented by the State Prosecutor. The learned authors of Criminal Law and Practice of Papua New Guinea (2nd ed) say the following in relation to presentment of indictments at p. 572:

The phrase the indictment may be presented to in subs. (2) of this section and s 526 implies a presentation in open court but without a plea being called for (see, e.g. R v Topulumar and Ors [1971-72] PNGLR 320, 322). Previously, in order for an indictment to be in fact an indictment it appears that it had to be physically presented in open court. Thus, the prosecutor must reduce the charge to writing (ss 525 (1) and 526 (2)). Per Pratt J., Arthur Gilbert Smedley v State [1980] PNGLR 379 at 404 - 405.

The same learned authors further say at p. 574:

The State can, as of right, present one indictment (and one indictment only) as a result of one committal. This does not permit a plurality of indictments. This conclusion is arrived at having regard to the intention of the legislature as appears from a reading of ss 524 (10 and 526.

The common law position is no different from what the learned authors expressed in the above quotes. In R v Thompson R V Clein [1975] 2 All E R 1028, the appellants were committed for trial by a magistrates’ court on various charges. When the indictment was presented to the Crown Court, it did not include a single one of the charges on which the appellants had been committed. The prosecution sought to substitute the indictment for other charges to which the defence moved to quash the indictment. The Circuit Judge quashed the indictment but granted an application by the Crown to present a new indictment. The trial proceeded on the new indictment and both appellants were convicted. They appealed against their convictions on the ground that the indictment was a nullity.

The Court said in p. 1028:

"It was only once that an indictment could be preferred on the basis of one committal. If that indictment failed in toto, the remedy for the Crown, if it was desired to peruse the prosecution, was to obtain the leave of the Court of Appeal or of a High Court judge to prefer a bill of indictment...".

At p. 1031 it further said:

"The argument can be and is put in an alternative way - in our judgement it does not matter which way it is put for the purpose of this case - that the Crown is not entitled to prefer more than once an indictment based on a committal for trial----".

A further observation is made by looking at the Supreme Court of the State of Victoria decision in R v Parker [1977] V.R. 22 in which the issue of presentment of indictment was considered. In that case, the presentment upon which an accused was arraigned was signed by the prosecutor for the Queen and was subsequently filed in Court on the day upon which that prosecutor commenced to hold office as an Acting County Court judge. When an application for leave to appeal against conviction was made, the Appellate Court held that the trial was a nullity because the indictment had been invalidly presented as the prosecutor who signed it was disqualified from exercising the powers of a prosecutor by reason of his judicial appointment. Murphy J observes at p. 42:

"It appears to me to be quite clear that once presentment is made anyone may take up the prosecution in the Court. I have made enquiries as to the practice followed by prosecutors in the matter of presentments. It would appear that time-honoured practice accords with the view of the meaning of s 353 [the equivalent of our ss 525 (1) and 526 (2)], which I have formed and stated above. The practice is, that if one of their number retires, or resigns, or dies, or is elevated to the Bench, all presentments signed by such a prosecutor are recalled if they are not yet filed. I may say that I see no compelling reason why presentments are not filed in the Court on the first day of the sittings to which a person has been committed. This would avoid problems such as that with which we are here concerned for once a presentment is filed, the same considerations no longer apply. Presentment has been made and the Crown prosecutes".

There are two main types of indictments in our jurisdiction. There are those taken under s 525 (2) following committal proceedings under ss 94 (B) and 100 (1) (3) (a) of the District Courts Act. The second type is under s 526 (2) where there has been a refusal to commit by the committal magistrate for insufficiency of evidence - see s 100 (2) District Courts Act. I am more inclined to think that once having decided to reduce the charge into writing and then that indictment is in fact presented to the Court, that in my reading of ss 524, 525 (2) 526 (2) is the end of the matter and the prosecution cannot thereafter seek to amend by a substitute, or an amended indictment. I must therefore agree with the defence counsel that, the State had already presented the indictment on 21st of September 1995 and I must refuse acceptance of the amended indictment proposed by the State Prosecutor.

My second observation is based on Mr Shepherd’s submission that this Court has no power to amend an indictment which is a nullity or which is formally defective. The power of this Court to amend indictments is clearly set out in s 535 of the Criminal Code. That section says:

"525	Amendment of indictments

(1)	If on the trial of a person charge with an offence---

(a)	there appears to be a variance between the indictment and the evidence; or

(b)	if it appears that-

(i)	any words that ought to have been inserted in the indictment have been omitted, or

(ii)	any words that ought to have been inserted, the court may, if it thinks fit that---

(c)	the variance, omission or insertion is not material to the merits of the case; and

(d) 	the accused person will not be prejudiced in his defence on the merits, order the indictment to be amended so far as it is necessary, on such terms (if any) as to postponing the trial as the Court thinks reasonable.

(2)	When an indictment has been amended, the trial shall proceed at the appointed time on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3)	If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made".

My reading of s 535 is that, the prosecution is not seeking to amend the indictment because of any discrepancies it perceives between the wording of the original indictment and the evidence or because certain words need to be inserted or omitted in the original indictment. The prosecution is actually seeking to rectify a serious formal defect in the original indictment by way of substituting an entirely different document as much as an initiating indictment, this time bearing the Public Prosecutor’s signature. The State Prosecutor’s signature on the ex officio indictment cannot be omitted and if it was an indictment under s 525 (2) it would have no status and it would not have been filed. Nor would the Public Prosecutor’s signature be inserted in the original indictment for the obvious reason that nobody in this world can possibly sign his signature except by the man himself.

Mr Kesan alternatively submitted that if I cannot amend the indictment by accepting the proposed amended ex officio indictment then I should use the power given to this court under s 155 of the Constitution. The Constitution s 155 sub-section (3) and (4) say:-

"(3)	The National Court-

(a)	has an inherent power to review any exercise of judicial authority, and

(b)	has such other jurisdiction and powers as are conferred on it by this Constitution or any law, except where---

(c)	jurisdiction is conferred upon the supreme Court to the exclusion of the National Court, or

(d)	the Supreme Court assumes jurisdiction under Subsection (4), or

(e)	the power or review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4)	Both the Supreme and the National Court have an inherent power to make in such circumstances seem to them proper, order in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case".

Under our Constitution, the Supreme Court and the National Court both have appellate as well as review jurisdictions. The Supreme Court as the final Court of appeal, has an appellate jurisdiction to hear appeals from the National Court and an inherent power to review all judicial acts of the National Court under s 155 (2) (a) and (b) of the Constitution. The National Court also has an inherent power to review any exercise of any judicial authority and as a superior court, to hear appeals from the Local and District Courts:- see s 155 (3) (a) Constitution and 219 & 43 (2) of the District and Local Courts Act Ch. Nos. 40 & 41.

While the National Court has jurisdiction under the constitution to hear appeals from the Local and District Courts, the right of appeal is a statutory right. These statutory rights of appeal lie to the National Court against decisions of both the Local and District Courts as well as decisions of administrative authorities, which in the performance of their duties exercise judicial authority. In principle, judicial review is concerned only with the protection of rights under public law. I do not read s 155 (3) and (4) the way Mr Kesan seem to say. Even if the case before me was a review, the powers of review given to the National Court by s 155 (3) (a) is restricted and this Court must operate within limits pronounced for by a Constitutional law or an Act of the Parliament. This to me means that where the power to review is governed by a specific statutory requirement, the National Court power of review is restricted to the limits in that particular law.

As noted, where there is limitation placed by law in relation to its power of review, the National Court cannot override such limitation. It is my firm view that the jurisdiction given to this Court to amend an indictment is governed by s 535 of the Code. I must therefore keep within the limits provided in that section and the common law principles governing presentment of indictments. On this instance I do not think I should use the inherent power given this Court to cure something that was void ab initio.

My concern over these proceedings is that the Public Prosecutor’s Office in Mount Hagen sat on this file since 21st of September 1995. No attempts were made to rectify the defect. One obvious option open for the State would have been to file a nolle prosequi then applies for leave to prosecute under ss 527 and 616 of the Criminal Code. This I thought was not good enough on the part of the prosecution.

I entirely agree with Mr Kesan that the charges contained in the defective ex officio indictment are very serous in nature. The public interest demands that the accused must be prosecuted sooner or later. The argument by the defence counsel is far more convincing than by the State. I must therefore agree with Mr Shepherd that if I were to accept the proposed amended ex-officio indictment bearing the signature of the Public Prosecutor, it would in my view be tantamount to judicially conferring ex post facto validity on an otherwise incurably defective and unauthorized indictment. I make the following order:

1.	I must refuse to accept the proposed amended ex-officio indictment bearing the signature of the Public Prosecutor for various reasons addressed in the body of this judgment.

2.	I order the original indictment to be quashed for being defective in form.

3.	The defendant shall be discharged from these proceedings and his bail monies shall be refunded to him.

After I announced this ruling, Mr Shepherd for the accused sought orders for costs relying on s 612 of the Criminal Code. This section is clear and only provides for costs to be ordered to persons who are aggrieved by the offence and only after a person has been convicted. The reason for the defence application was that because the Public Prosecutor should have foreseen results of presenting an ex officio indictment bearing the name of a State Prosecutor. He submitted that the Public Prosecutor could have filed a nolle prosequi. I invited Mr Kesan to reply and he submitted that the Public Prosecutor never anticipated the outcome pronounced by the Court.

It is not only that, but this was a criminal process. Of course if I found there was negligence on the part of the State, I would order a nominal cost by way of compensation in accordance with ss 618 & 618 A which sections were not quoted to me by Mr Shepherd. I do not think the defence can seek costs or even damages against the State or the Public Prosecutor’s Office. I must refuse the application for costs and order the parties to meet their own costs.

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: Shepherds Lawyers.