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State v Tomande [2019] PGNC 63; N7798 (5 April 2019)

N7798

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 63 OF 2019

THE STATE

V

RUTH TOMANDE

Waigani: Berrigan, J
2019: 13 March; 1, 4 and 5 April

CRIMINAL LAW – PRACTICE AND PROCEDURE – application for leave to withdraw an indictment and present a fresh indictment following presentation but prior to arraignment.

Cases Cited

Ngasele v The State (2003) SC731
Simili Kara v The State [1984] PNGLR 254
The State v William (No 1) (2004) N2556
The State v Kobobo (2006) N4477
The State v Ava (2010) N4161

References cited

Sections 37(1), (4)(a) and (4)(c) of the Constitution
Sections 383A, 404, 508B(1), 535 and 557(2) of the Criminal Code (Ch. 262).

Counsel

Ms H. Roalakona with Ms T. Kametan, for the State
Mr E. Sasingian with Ms E. Ramatlap, for the Accused

RULING ON APPLICATION TO WITHDRAW INDICTMENT

5. April, 2019
   
1. BERRIGAN J: On 13 March 2019 the State presented an indictment against the accused containing one count of money laundering, contrary to s. 508B(1) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. Defence counsel had previously indicated that his client would plead guilty to misappropriation. Before proceeding to arraignment I therefore sought defence counsel’s view as to whether the matter was indeed ready to proceed as such. Defence counsel suggested that I might go ahead with the arraignment but that, in effect, the matter may become a trial. At that stage the State Prosecutor, who was not the officer having carriage of the matter, sought an adjournment, which was granted.
   
3. The State now seeks leave to withdraw the indictment with the intention of presenting a fresh indictment containing the said count together with an additional 14 counts of obtaining property by false pretence and one count of misappropriation, contrary to ss. 404 and 383A of the Criminal Code, respectively.
   
4. The defence objects to the withdrawal of the indictment. It is not submitted that the proposed course is prejudicial to the accused, rather that it is an irregularity.
   
5. The accused is yet to be arraigned and therefore is yet to be brought to trial. A trial only begins when the accused is called on to plead to the indictment: s. 557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at this stage; s. 535 is, by its terms, predicated on a trial having commenced.
   
6. I am grateful to the State for the provision of authorities on this matter. It appears settled in this jurisdiction that where an indictment has been presented but before the accused has been arraigned, the State may, with leave of the Court, withdraw the indictment and present another or fresh indictment: The State v William (No 1) (2004) N2556; The State v Kobobo (2006) N4477; adopted and applied The State v Ava (2010) N4161.
   
7. Leave should be granted where it is in the interests of justice to do so. The interests of justice require both that accused persons are brought to trial and that they receive and are seen to receive a fair trial. For these reasons it is my view that leave to withdraw the indictment in this case should be granted.
   
8. No breach of the accused’s rights under Section 37(3) of the Constitution to be afforded a fair hearing within a reasonable time has been occasioned: see Kobobo (supra). The matter was only committed to the National Court on 11 February 2019. Nor has there been any delay on the part of the State. The two short adjournments allowed have been justified to clarify the position of the parties and research the law. The State is ready to proceed with the trial on the proposed fresh indictment today.
   
9. Nor is there, even on the defence submission, any issue of prejudice. The accused will continue to receive the full protection of the law under ss. 37(1) and (4)(a) of the Constitution: Kobobo (supra). The accused is yet to be arraigned and thus retains the protection of s557(2), namely the right to plead after being informed of the charge against her in a language she understands: The State v William (supra).
   
10. Nor has there been any abuse of process: see Kobobo. The matter was listed before me on the 13^th March as a plea and it was upon my query as to whether or not the matter should proceed as such that the State, not the defence, sought an adjournment during which further discussions were held between the parties and the matter identified as a trial instead. Whilst the State should be very careful to confirm the position with defence counsel prior to presenting an indictment on the understanding of a plea, there has been no impropriety on the part of the State in this case. Furthermore, it is well established that it is for the Public Prosecutor, and indeed any State Prosecutor, to determine what charge or charges to bring against an accused following committal: Williams (supra) applying Ngasele v The State (2003) SC731. It is not uncommon for the nature or the number of charges to differ depending on whether the matter is a trial or a plea, for various reasons.
11. The defence has asked me to consider the circumstances in which the applications were granted in the three cases relied upon by the State. The basis on which I should distinguish those cases is not clearly articulated, other than that the circumstances were somewhat different: the withdrawal in Ava followed a mistrial; in Williams, it followed an earlier refusal by the court to accept a guilty plea where the depositions disclosed a potential defence; and in Kobobo, it followed a refusal by the trial judge to quash the indictment as defective for alleging an offence that did not exist in law. In my view the principles identified in those cases apply equally here. If anything, the accused in this case has experienced less delay, and less expectation that the State would proceed with a less serious offence than might now apply, having regard to the fact that money laundering carries a much greater maximum penalty than either of misappropriation or false pretences, although it is the case she now faces many more charges. That is beside the point, however, as the real question of prejudice does not arise.
12. The application is granted
13. To ensure the fair trial rights of the accused, I make it clear that I will readily grant an adjournment, if sought, for consideration of the fresh indictment: see s. 37(4)(c) and Ava (supra).

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