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State v Wai [2019] PGNC 170; N7897 (1 July 2019)

N7897

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 76 OF 2016

THE STATE

V

JOSEPH WAI

Waigani: Berrigan, J
2019: 7, 20 May and 1 July

CRIMINAL LAW – PRACTICE AND PROCEDURE - Nature and purpose of a “new trial” following the quashing of a conviction on appeal – The State at a new trial must not be permitted to make a “new case” which was not made at the first trial – Meaning of “new case” - Proposed amendment to the indictment turned on events different in place, time and quality from that alleged on the first trial and thus constituted a new case – Amendment refused – Proposed withdrawal of count from indictment refused – Supreme Court order and interests of justice call for determination.

Facts:

1. At the commencement of a trial remitted to the National Court following a successful appeal against conviction to the Supreme Court, the State sought to present an indictment in different terms from that on which the initial trial proceeded.
   
2. At the first trial it was alleged that the accused conspired with others to defraud the complainant by telling her that they would buy a certain amount of gold for K105,340.50 (Count 1, conspiracy to defraud). It was further alleged that the accused dishonestly applied the gold to his own use and the use of others (Count 2, misappropriation).
   
3. At the new trial, the State sought to withdraw Count 1, conspiracy to defraud, altogether, and sought to amend Count 2, misappropriation, by replacing the words:
   

“dishonestly applied to his own use and to the use of others property belonging to one Anna Sani namely 781.2 grams of gold valued (at) One hundred and five thousand three hundred and forty Kina fifty Toea K105,340.50”,

with

“dishonestly applied to his own use and to the use of others Fifty-one Thousand, Six Hundred and Ninety Kina, Forty Toea (K51,690.40) property belonging to one Anna Sani”.

Held

1. A “new trial” under s. 28 of the Supreme Court Act, 1975 is the rehearing of a case on the same indictment presented at the first trial, before a different tribunal of fact, or as made clear by the Supreme Court in the present case, the rehearing of both offences contained in the indictment presented at the first trial.
   
2. It follows a conviction, which has been set aside, so that the court may have an opportunity to correct procedural errors or irregularities in the first trial: Oscar Tugein v Michael Gotaha [1984] PNGLR 37 and Charles Bougapa Ombusu v The State [1997] PNGLR 699.
   
3. According to the “one indictment” rule, the State’s power to present, as of right, an indictment pertaining to the alleged conduct of the accused was exhausted at the first trial: Application by Herman Joseph Leahy (2010) SC1018 applying Smedley v The State [1980] PNGLR 379. Nor would it be permissible for the State to withdraw the indictment and present a fresh one at this stage of proceedings: The State v William (No 1) (2004) N2556 and The State v Kobobo (2006) N4477 distinguished. In the circumstances, the State was effectively seeking to amend the indictment presented at the first trial.
   
4. The prosecution at a new trial must not be permitted to make a new case which was not made at the first trial: King v The Queen (1986) 162 CLR 423 applying The Queen v Wilkes [1948] HCA 22; (1948) 77 CLR 511 adopted.
   
5. A new case is one which: relies on additional evidence, King v The Queen (supra); requires substantial amendment to the indictment, Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494; or turns on events different in time, place and quality, Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 per McHugh J, considered. The Queen v Taufahema [2007] HCA 11; 228 CLR 232 also considered.
   
6. The effect of the proposed amendment to Count 2, misappropriation, is to change not just the value of the property allegedly misappropriated but the nature of that property, i.e. from gold valued at K105,340.50 to cash in the amount of K51,690.40. Thus the proposed case deals with events different in time, place and quality from those alleged at the first trial, namely the dishonest application of cash received for the gold, as opposed to the dishonest application of the gold itself. This would clearly constitute a new case against the accused. Accordingly, the State’s proposed amendment to Count 2 on the indictment is refused: Parker v The Queen (supra) and Jiminez v The Queen (supra) adopted and applied.
   
7. No basis was provided upon which the State could withdraw Count 1, conspiracy, at this stage of proceedings. Both the Supreme Court order and the interests of justice call for the new trial on Count 1 to proceed and be finally determined, subject to the usual provisos.
   
8. The State’s application to amend the indictment with respect to Count 1 and 2 of the indictment is refused.
   

Cases Cited:
Papua New Guinea Cases

Application by Herman Joseph Leahy (2010) SC1018
Charles Bougapa Ombusu v The State [1997] PNGLR 699
Joseph Wai v The State (2018) SC1720
Oscar Tugein v Michael Gotaha [1984] PNGLR 37
Smedley v The State [1980] PNGLR 379
Simili Kara v The State [1984] PNGLR 254
The State v Daniel Aigal and Gui Robert Kauna [1990] PNGLR 318
The State v William (No 1) (2004) N2556
The State v Kobobo (2006) N4477

Overseas Cases

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Reid v The Queen [1980] AC 343
Smith v The Queen [2003] WASCA 57
The Queen v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Thomas v R (No 2) [1960] WAR 129
The Queen v Taufahema [2007] HCA 11; 228 CLR 232

References Cited

Sections 23 and 28 of the Supreme Court Act, 1975
Sections 525, 527, 535, 557 of the Criminal Code

Counsel

Ms T. Aihi, for the State
Mr R. Yansion, for the Accused

DECISION ON APPLICATION

1^st July, 2019

1. BERRIGAN J: The matter comes before me having been remitted to the National Court for a new trial following a successful appeal against conviction to the Supreme Court by the accused.
   
2. At the initial trial the accused was convicted of one count of conspiracy and one count of misappropriation, contrary to ss. 407(1)(b) and 383A of the Criminal Code (Ch. 262) (the Criminal Code), respectively.
   
3. It was alleged that the accused conspired with others to defraud the complainant by telling her that they would buy a certain amount of gold for K105,340.50 (Count 1, conspiracy to defraud). It was further alleged that the accused dishonestly applied the gold to his own use and the use of others (Count 2, misappropriation).
   
4. The indictment was in the following terms, namely that the accused between the 31^st day of October and the 30^th day of November 2015:

Count 1: “... conspired with one Ernie Choi, Henry Mataias and Kila Veropo to defraud one Anna Sani by stating to her that they would buy 781.2 grams of gold from her for ... K105,340.50”; and

Count 2: “dishonestly applied to his own use and to the use of others property belonging to one Anna Sani namely 781.2 grams of gold valued (at) ... K105,340.50” .

5. On appeal the Supreme Court found that with respect to Count 1, the trial judge “did not adequately deal with the third element (deceit or fraudulent means) of the offence, by assigning the facts that he found to satisfy the element; did not make any clear finding of an intention to defraud and did not address how what he referred to as agreed acts constituted a deceitful or a fraudulent act by which a conspiracy to defraud Anna Sani had been done”: Joseph Wai v The State (2018) SC1720 at [24].
   
6. The Supreme Court was further satisfied, for similar reasons, that the element of dishonesty had not been “clearly delineated in the misappropriation charge”: Wai (supra) at [25].
   
7. The Supreme Court consequently allowed the appeal against conviction on both offences, quashed the convictions and sentences, and ordered that: “The trial for both offences is remitted to the National Court to be tried by another judge”: Wai at [28].
   
8. At the commencement of the trial before me defence counsel objected to the presentation of a “fresh” indictment by the State Prosecutor on two grounds. Firstly, that he was taken by surprise. The indictment had been served on him at the bar table that morning, an unfortunate and far too common practice in my observation, and thus in contravention of s. 554 of the Criminal Code. Secondly, that the indictment was in different terms from that relied upon at the first trial and thus constituted an entirely different case against the accused. In the circumstances defence counsel sought time to research the issue and make submissions.
9. I granted the application for adjournment on both grounds although, for the reasons discussed below, s. 554 is no longer operative. Both parties were directed to file written submissions on the issue of whether or not the State is permitted at a new trial to present an indictment in different terms from that on the initial hearing.
   
10. None were forthcoming but I heard oral argument. Both counsel indicated that they had been unable to find any authority on point in this jurisdiction. Defence counsel went on to argue that there are only two ways in which an indictment may be presented by the State before the National Court, that is pursuant to ss. 525 or 526 of the Criminal Code. Section 526 has no application in this case and the power of the State under s. 525 had effectively been exhausted with the prior trial. The effect of the order of the Supreme Court was to allow the correction of legal errors occasioned by the trial judge in the prior proceedings. Thus the State had no power to present a “fresh” or “new” indictment.
    
11. The State submitted that there was no “fresh” indictment, as such. The State no longer wished to proceed with the conspiracy count and had thus removed it from the indictment. With respect to the charge of misappropriation, it remains as it was at the first trial other than that the value of the subject property has been reduced from K105,340.50 to K51,690.40. The evidence in this trial would be the same as that in the first and there was no prejudice to the accused as a result of the proposed changes.
    
12. In making its submissions, the State relied on Smith v The Queen [2003] WASCA 57. In that case the Supreme Court of Western Australia dismissed an appeal against conviction on the ground that the prosecution “presented a different indictment on a retrial after a previous jury was unable to reach a verdict”. In particular, the prosecution was allowed to amend the indictment on the retrial to accuse the appellant of causing grievous bodily harm with intent to disable, as opposed to causing grievous bodily harm with intent to do some grievous bodily harm.
    
13. With respect, Smith does not assist the State, quite the contrary. It is important to note that the “retrial” in that case did not follow an appeal but the failure of an earlier jury to reach a verdict. That is very different from the situation in this case. Whilst accepting that the prosecution must not at a retrial be permitted to supplement a case that was defective at the first trial (applying The Queen v Wilkes [1948] HCA 22; (1948) 77 CLR 511 and King v The Queen (1986) 162 CLR 423), the Supreme Court held that the proposition had no application in Smith because “it applies only to a re-trial following the quashing of a conviction. That is a matter for judicial discretion, whereas the decision to proceed to a re-trial after a jury has failed to agree, is a matter for the executive”.
    
14. I indicated to the parties that it would assist me understand the submissions being made to see the proposed indictment and alleged statement of facts. The parties agreed but neither documents were available in court and directions were given. I have now obtained access to the proposed indictment but am still yet to receive the statement of facts and will proceed to render my decision without it.
    

New Trial

15. The powers of the Supreme Court in relation to criminal proceedings are set out in Division 3 of the Supreme Court Act 1975. In determining an appeal against conviction in ordinary cases, the Supreme Court may, pursuant to s. 23 of the Supreme Court Act allow an appeal and direct a verdict of not guilty be entered. Where, however, it is of the view that the miscarriage of justice may be more adequately dealt with by a new trial it may so order pursuant to s. 28 of the Supreme Court Act, which provides as follows (emphasis added):

“New Trial

(1) If on an appeal against conviction, the Supreme Court thinks that–

(a) a miscarriage of justice has occurred; and

(b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make, the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.”

16. Before considering the State’s application it is necessary to understand the nature and purpose of a new trial (emphasis added):
    

“The purpose of a new trial is to have the verdict of another jury, properly instructed as to the law. In our view, having regard to their respective functions, it is just as clear that there need not be a different judge as that there must be a different jury.

...if a fresh trial be ordered by the court, then a trial of the same issue ... is instituted de novo.”: Thomas v R (No 2) [1960] WAR 129 at 132.

See the commentary in Carter’s Criminal Law of Queensland, 20^th Edition, 2015, regarding s. 699 of the Queensland Criminal Code, which is in very similar terms to s. 28 of the Supreme Court Act.

17. Similarly, “it is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of the trial, the appellate court has ordered that a new trial be conducted” (emphasis added): Charles Bougapa Ombusu v The State (No.2) [1997] PNGLR 699 Amet CJ, Kapi DCJ, Los, Injia and Sawong J, applying Epeli Davinga v The State [1995] PNGLR 263; Gabriel Laku v The State [1981] PNGLR 350; Dinge Damane v The State [1991] PNGLR 244; Madeline Kiso v Angela Manumanua [1981] PNGLR 507.
    
18. One of the key considerations the Supreme Court will have regard to in determining whether the miscarriage of justice can be more adequately remedied by an order for a new trial pursuant to s. 28 of the Supreme Court Act is the public interest in bringing to justice those accused of serious crimes and ensuring that they do not escape merely because of procedural errors or irregularities in the first trial: Oscar Tugein v Michael Gotaha [1984] PNGLR 37 and Ombusu (supra).
    
19. In other words, a “new trial” is the rehearing of a case on the same indictment before a different tribunal of fact, or as the Supreme Court made explicit in this case, the rehearing of both offences contained in the indictment. It follows a conviction, which has been set aside, so that the court may have an opportunity to correct legal or procedural errors in the first trial.
    
20. I also agree with defence counsel that the State’s power to present an indictment pertaining to the alleged conduct of the accused was exhausted at the first trial. The one indictment rule is well established in this jurisdiction. As of right the State may present one, and only one indictment, as a result of one committal: Application by Herman Joseph Leahy (2010) SC1018 applying Smedley v The State [1980] PNGLR 379 at [14].
    
21. Nor would it be permissible, in my view, for the reasons discussed below, for the State to withdraw the indictment and present a fresh one at this stage of proceedings: The State v William (No 1) (2004) N2556; The State v Kobobo (2006) N4477; adopted and applied in the State v Ava (2010) N4161 and The State v Ruth Tomande (2019) N7798, distinguished.
    
22. In the circumstances, the State is, in effect, seeking to amend the indictment presented at the first trial. Having yet to hear the evidence, and indeed yet to have the accused arraigned on this trial, it is premature to consider the application strictly with respect to the terms of s. 535 of the Criminal Code: see Application by Herman Joseph Leahy (supra) at [25].
    
23. In my view, however, there is a more fundamental issue to be determined, and that is whether the State is seeking to run a “new case” at this trial. As outlined above, the purpose of a new trial is to allow for legal and procedural errors at the first trial to be corrected. For this reason, per Dawson J in King v The Queen (supra), applying The Queen v Wilkes (supra) (emphasis added):
    

“It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial”.

24. I have been unable to find any authorities directly on the point in this jurisdiction. In The Queen v Taufahema [2007] HCA 11; 228 CLR 232 the High Court of Australia considered what is meant by a “new case”, noting that there were limited authorities in that jurisdiction. The discussion and cases referred to in Taufahema are instructive, however, having regard to the purpose of a new trial in this jurisdiction as outlined in Ombusu (supra).
    
25. Firstly, as a general proposition, the prosecution should not be permitted to lead new evidence at the second trial. Whilst there was some divergence of views amongst the members of the High Court on whether new arguments could be raised on a new trial, about this point there appeared to be broad agreement. As the majority, Gummow, Hayne, Heydon and Brennan JJ, explained in Taufahema at [52] (emphasis added):

“In Gerakiteys v The Queen Gibbs CJ, when considering what was a sound exercise of the power of a court of criminal appeal to order a new trial, said:

"It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction."

That proposition rests in part on the idea that if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial; and in part on the idea that a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first”.

26. Gleeson CJ and Callinan J, in the minority, agreed that there should be no new evidence but also took the view that the prosecution should also not be allowed to rely on new arguments, at [37] (emphasis mine):
    

“It may be asked why "the Crown should not be given an opportunity to make a new case which was not made at the first trial". If the prosecuting authorities at trial fail to satisfy the jury of their case, as particularised, then that is the end of the matter. As a general rule, the jury's acquittal prevents a further attempt to prove the same offence. The prosecution cannot bring the same charge again, relying on new evidence, or new arguments”.

27. Kirby J, also in the minority, said at [109] (emphasis added):

“Repeatedly, this Court[1], intermediate courts and other courts, including the Privy Council[2], in similar terms, have stressed that:

"It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant." (See eg King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590-591; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520-521, 538-539.)

And, moreover[3]:

"The Crown should not be permitted to present a quite different case through a new trial. ... [I]t would be unfair to the appellant to order a new trial in which he would have to meet a significantly different case to that the jury were asked to consider."

28. With respect to the latter point, in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590, McHugh J of the High Court refused to order a new trial, in part, on the basis that it would allow the prosecution to make a case “radically different” from that at the first trial.
    
29. At trial the prosecution contended that the accused could be convicted of causing death by driving in a manner dangerous to the public by reason of having gone to sleep. On appeal the prosecution conceded that that approach was erroneous in law and that the only option on a new trial would be to proceed on the basis that the accused knew or ought to have known that there was a real risk that he would fall asleep. The latter case was “new” because it “turned on events different in time, place and quality”: see the discussion in Taufahema at [65].
    
30. Similarly, in Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 the majority of the High Court refused to order a new trial to enable the prosecution to present a fresh case which would require “a substantial amendment to the indictment”, including a change in the persons from whom property was allegedly stolen.
    
31. In that case the accused was charged with several counts of stealing monies. The charges at trial had particularised the owner in each case as one of the donors to the accused’s election campaign fund “and others”. As the monies had been mixed in one account, some of which had been used for legitimate purposes, however, the charge of stealing monies belonging to the donor particularised in each case could not be made out. The High Court found that the appellant could have been charged with stealing the property of one or other of named persons, without specifying which, but refused to order a new trial in the circumstances.
    
32. In Taufahema, the majority of the High Court did allow a new trial on the basis that the prosecution proposed to rely on an inference that could have been drawn in the first trial. In that case the prosecution case at trial was that the accused was part of a joint enterprise to evade arrest, involving the shooting of a police officer as a foreseen possibility. On the new trial the prosecution would contend that the accused was engaged in a joint criminal enterprise of armed robbery, and that shooting another person was foreseen as a possible incident of that. There was no new evidence, and no amendment to the indictment required. (Cf. with the minority view which regarded it as impermissible for the prosecution to be given another opportunity to put a different case even within the same evidence, at [39] and [161].)
    

Misappropriation Count

33. For reasons that I hope will become clear, I will deal with the misappropriation count first.
    
34. In this case the State submits that the only proposed change to the misappropriation count is to reduce the value of the property allegedly misappropriated. That is not the case, however. Rather, the proposed indictment charges the accused in the following terms:
    

“that he dishonestly applied to his own use and to the use of others Fifty-one Thousand, Six Hundred and Ninety Kina, Forty Toea (K51,690.40) property belonging to one Anna Sani”.

35. The effect of the proposed amendment is to change not just the value of the property allegedly misappropriated but the nature of that property, i.e. from gold valued at K105,340.50 to cash in the amount of K51,690.40.
    
36. Without the proposed alleged statement of facts, I can only assume that this represents the monies obtained from the misappropriation of the gold, which must necessarily turn on events different in time, place and quality from that alleged at the first trial, i.e. the dishonest application of the cash received for the gold, as opposed to the dishonest application of the gold itself. Furthermore, proof of dishonesty on the part of the accused is required at a later point in time than that initially alleged. This may well account for the proposed withdrawal of the conspiracy charge, dealt with below.
    
37. In any event, this would clearly constitute a new case against the accused. Even if the State intends to present no new evidence, it is still a very different case, in fact a different offence, albeit still misappropriation, from that alleged at the first trial, and requires substantial amendment to the indictment.
    
38. Accordingly, I will not allow the State’s proposed amendment to Count 2 on the indictment: Parker v The Queen (supra) and Jiminez v The Queen (supra) adopted and applied.
    

Conspiracy Count

39. I have found the question of whether or not the State should be permitted to amend the indictment to exclude the conspiracy charge more difficult.
    
40. I have to admit that based on previous experience, I had assumed that ultimately the decision to proceed with a new trial, and therefore any one particular charge, following such an order by an appellate court remained with the State.
    
41. In Australia, where the provisions are in similar terms to ours, other than in exceptional circumstances, an order for a new trial merely enables the prosecution to bring a subsequent prosecution. Whether such a trial occurs is a matter for the prosecution in the exercise of its prosecutorial discretion, having regard to the separation of powers and the fact that the prosecuting authority operates within the executive and is ordinarily entrusted with the power and responsibility of deciding whether or not to continue a prosecution: see Taufahema at [144]; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [81] and [88].
    
42. In the United Kingdom, on the other hand, the prosecution must proceed with a new trial within two months of the order for the appellant to be “retried”, failing which he may apply to the Court of Appeal to have a verdict of acquittal entered in certain circumstances. That is, however, the subject of specific statutory provisions.
    
43. I have been unable to find any direct authority on the issue in this jurisdiction.
    
44. The primacy of the Public Prosecutor’s powers in this jurisdiction are well settled. The Public Prosecutor (and indeed any State Prosecutor) has an absolute power to decide and present whatever charge he considers the State will be able to prove against an offender. That power is not subject to any direction or control from or by anybody. Section 525(1)(a) of the Criminal Code gives him that power: The State v Ngasele (2003) SC731. But as above, s. 525 has been exhausted in this case, and the new trial follows not an exercise of executive power, but the discretion and direction of the Supreme Court.
    
45. The decision of the Supreme Court in Bate v The State (2012) SC1216 is arguably consistent with the Australian approach. In that case the Court quashed the conviction and ordered a new trial to be conducted within four (4) months of the order, failing which the applicant was to be discharged. Similarly, in Oscar Tugein v Michael Gotaha (supra), a rehearing was ordered on the giving of 7 days’ written notice on the defendant or his lawyers, presumably by the informant police as that was an appeal from the District Court. A number of other Supreme Court cases make orders requiring that new trials are to take place within a certain timeframe but do not set out the effect of any failure to comply with the order: see for example Damane v The State [1991] PNGLR 244; Bukoya v The State (2007) SC887. Several simply order the new trial, for example, Ombuso (supra), Damane v The State [1991] PNGLR 244; Boatang v The State [1990] PNGLR 342; Tabe v The State [1983] PNGLR 10.
    
46. It is perhaps neither necessary nor appropriate for me, however, to determine whether the State is at liberty to proceed with a new trial or not in general terms. Both parties appear to have assumed that the new trial is mandatory and the State has indicated its readiness to proceed in this case. The objection to the indictment was taken upon its presentation. Whilst the trial itself is yet to commence, as the accused is yet to plead to the indictment (see s. 557(2) of the Criminal Code; Simili Kara v The State [1984] PNGLR 254), nevertheless the Court’s jurisdiction has been invoked: see Kobobo at [15] and [16].
    
47. The State has not sought to file a nolle prosequi with respect to the conspiracy count. In the circumstances I don’t need to decide if it would be permissible for the State to file a nolle prosequi with respect to just one count on the indictment[4]. Nor, would I be inclined, for the reasons set out below, to accept it at this stage of proceedings if it were. Whilst the powers of the Public Prosecutor with respect to the filing of a nolle prosequi are broad, they are not absolute: The State v Daniel Aigal and Gui Robert Kauna [1990] PNGLR 318 at 320-321.
    
48. In my view the time for filing a declaration pursuant to s. 525(3) of the Criminal Code has also well since past.
    
49. In the circumstances it is unclear to me on what basis the State can now seek to amend the indictment to exclude Count 1, other than to invoke the exercise of my inherent jurisdiction. I am not minded to do that, however, having regard to the Supreme Court order, and the interests of justice, both of which call for the new trial on Count 1 to proceed and be finally determined (subject of course, to the outcome of this trial, and/or any potential appeal, or indeed subsequent new trial).
    
50. The matter concerns an allegation from 2015. The accused has endured a trial, an appeal and now faces this new trial. He has served his sentence. To leave his guilt or otherwise on the charge of conspiracy undecided at this stage, given the Supreme Court’s order, on a basis which has not been fully articulated, would be an abuse of process in my view: The State v Peter Painke [1976] PNGLR 210.
    
51. In the circumstances I refuse the State’s application to “remove” or withdraw Count 1 from the indictment. The trial must proceed with the conspiracy offence as charged. It is a matter for the State whether or not it offers no evidence.

Conclusion

52. The State’s application to amend the indictment with respect to Count 1 and 2 of the indictment is refused.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

[1] See eg King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433; Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590-591; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520-521, 538-539.
[2] Reid v The Queen [1980] AC 343 at 349-350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel; Tsang Ping-nam v The Queen [1981] UKPC 37; [1981] 1 WLR 1462 at 1467.
[3] Parker [1997] HCA 15; (1997) 186 CLR 494 at 520 per Dawson, Toohey and McHugh JJ.
[4] Cf s. 563 of the Queensland Criminal Code which specifically permits the filing of a nolle prosequi with respect to any indictment or in relation to any charge contained in any indictment.