[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN KOMA

Waigani: Davani j

14-15 January 2002

criminal practice and procedure – Power of the Public Prosecutor or State Prosecutor to lay a criminal charge and prepare, and present an 'indictment based on the available evidence – Sections 525, 524, 531 Criminal Code Act Ch 262 and s 42(2) Constitution considered.

Facts

The accused was charged with one count of robbery and two counts of attempted rape. At the commital proceedings, the accused was only charged with robbery and was committed to stand trial for the crime of robbery. At the commencement of the trial, counsel for the accused moved under s 558 of the Criminal Code to have the indictment quashed alleging that the indictment presented by the Public Prosecutor was defective in form and was calculated to prejudice or embarrass the accused in his defence since he was never committed to stand trial on the two counts of robbery; neither was he questioned by police during the record of interview on the two counts of attempted rape.

Held

1.	As empowered under s 525 of the Criminal Code Act Ch 262, the Public Prosecutor is at liberty to lay appropriate charge based on the evidence available to him.

2.	The power of the Public Prosecutor in the exercise and performance of the prosecution function and particularly as authorized under ss 524 and 525, to indict an accused on the evidence as appears to him to warrant the laying of the charges is an absolute one.

Papua New Guinea cases cited

Arthur Gilbert Smedley v the State [1980] PNGLR 379.
Regina v Toigen Tiolo and others [1969-70] PNGLR 285.
Wari Mugining v R [1975] PNGLR 352.

Other case cited
Reg v Webb (1960) Qd.R.443.

Counsel
M Boni, for the State/respondent.
D Sakumai, for the accused/applicant.

15 January 2002

Davani j. On 14 January 2002, the State presented an indictment against the accused John Koma (the accused/applicant) whom I will refer to throughout as the accused, alleging the following charges:

o	one count of robbery pursuant to s 386 of the Criminal Code Act Ch 262; and
o	two counts of attempted rape pursuant to s 348 of the Criminal Code Act Ch 262.

The accused pleaded not guilty to the charge of robbery but did not plead to the two counts of attempted rape, as objection was then raised by his counsel on the form of the indictment.

Mr. Sakumai for the accused in raising the objection, relied on s558(1)(a) and (b) of the Criminal Code Act which states:

"558. Motion to quash indictment

(1)	The accused person may, before pleading, apply to the court to quash the indictment on the ground that — 

(a)	it is calculated to prejudice or embarrass him in his defence to the charge; or
(b)	it is formally defective

(2)	On a motion under subsection (1), the court may — 

(a)	quash the indictment; or
(b)	order it to be amended in such manner as the court thinks just; or
(c)	refuse the motion."

Apart from s 558 of the Criminal Code, Mr. Sakumai also relied on s 42(2) of the Constitution which states:

"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; and

(b)	shall be permitted whenever practicable to communicate without delay in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)	shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest of his rights under the subsection."

Mr. Sakumai's application was verbal in form. He did not rely on any affidavits, the application being based on law, as was submitted.

Briefly, the gist of Mr. Sakumai's submissions were that the indictment lodged by the Public Prosecutor was defective in form and was calculated to prejudice or embarrass the accused in his defence to the charge. Mr. Sakumai stressed that the accused was only informed, during the committal proceedings, of the robbery charges and was not, throughout the committal proceedings or during the record of interview with the Police, questioned about the attempted rape. The accused's constitutional rights to be informed of the charges against him, albeit after arrest and at the committal proceedings, had therefore been breached.

Ms. Boni for the State, opposed this application, relying on s 525 of the Criminal Code, which states:

"525. Procedure for indictment.

(1)	Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or State Prosecutor shall consider the evidence in the matter and may

(a)	reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b)	decline to lay a charge."

Ms. Boni submits that the Public Prosecutor has the prerogative, under s 525, to lay the appropriate charges, based on the evidence available to him.

The issue faced by a judge is whether the court should proceed to trial with the knowledge that the accused was committed, only for the charge of robbery. Does that invalidate the indictment?

Section 524 of the Criminal Code states that "No indictment may be presented to the National Court except in accordance with sections 525 and 526".

Section 525 is specific in that the Public or State Prosecutor considers the evidence then subsequently, at his discretion, indicts on the evidence as appears to him to warrant. (my emphasis).

In Arthur Gilbert Smedley v the State [1980] PNGLR 379 at pp 407-48, Pratt J said:

"There are two main forms of indictment, a s 525 indictment and a s 526 indictment. The first is an indictment following on committal/proceedings, be it for the same charge or that for which the accused was committed or, or a completely different charge…"

Has the Public Prosecutor the power to prefer an indictment based on evidence before him, notwithstanding that the accused has already been committed by the committal court for an offence other than that which the Public Prosecutor now wishes to indict on?

The courts in Papua New Guinea have endorsed this practice and it is the prerogative of the Public Prosecutor to indict joinder of offences, as is the case here. Mr. Sakumai's submissions are that he is in agreement with the joinder but that the Public Prosecutor cannot indict in a case where the committal court has not specifically committed.

In the case Regina v Toigen Tiolo and Others [1969-70] PNGLR 285, the Supreme Court in Rabaul, presided by Kelly J held that:

"When a person is committed for trial for an offence upon depositions disclosing evidence of an additional offence, the crown is entitled to rely on s 561 of the Criminal Code to support an indictment charging the additional offence as well as that on which the person is committed for trial." 

His honor relied on the case Reg v Webb (1960) Qd.R.443 where Philp J said:

"The first use is when a man has been committed for trial for an offence and depositions disclose evidence of a different offence or of other offences; in such circumstances, it is convenient and just that an indictment charging the different or other offences should be presented by the Crown Prosecutor."

Without the benefit of reading the depositions, I can only rely on Ms. Boni's submissions that the Public Prosecutor relying on the evidence in the depositions, lay the appropriate charges. Ms. Boni also submitted that the State's allegations are that the accused whilst in the process of committing the act of robbery, then proceeded to accost and attempt to rape the victim, by actually removing his pants and laying on the victim. Ms. Boni submitted that all the evidence on the count of robbery would be relied on in the charge of attempted rape as they constitute the same acts and omissions.

On the material before me, any likelihood of prejudice to the accused is not apparent.

The Public Prosecutor can proceed under s 531(2) of the Criminal Code, re joinder of charges, on the indictment now before me. Section 531(2) reads:

"531 Joinder of Charges: General rules

(2)	Subject to subsection (3) where several distinct indictable offences are alleged to be consituted;

(a)	by the same acts or omissions; or

(b)	by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences."

Subsection (3) of the provision states that if the accused is likely to be prejudiced by the joinder, the court will then require that the prosecutor elect on which of the charges he will proceed on or direct that the trial proceed separately.

This then brings me to Mr. Sakumai's submissions on s 42(2) of the Constitution. Will the accused be prejudiced by this? This is a matter that Mr. Sakumai can raise during trial, if he wishes to. Denial of an accused's right to be informed of what he is charged with has no bearing on or nexus to how the Public Prosecutor should proceed when deciding on which or what charges to lay.

Several different counts may be joined against one single accused, provided the counts arose out of closely related facts and the prosecution of a single purpose. (i.e. Wari Mugining v R [1975] PNGLR 352 (Williams J). This is such a case.

The Public Prosecutor is "to control the exercise and performance of the prosecution function within the state of Papua New Guinea " (re Arthur Gilbert Smedley (supra). The power of the Public Prosecutor and the State Prosecutors deriving from the Constitution (ss 176 and 177), the Public Prosecutor (Office and Functions) Act ch 338, s 4(1) and the Criminal Code, ss 524, 525 and 526, to lay indictment is an absolute one, it is for the prosecutor to choose the charge.

Therefore, I will refuse the motion to quash the indictment.

Lawyer for the State/respondent: Public Prosecutor.
Lawyer for the accused/applicant: Public Solicitor.