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State v Agen (No 1) [2021] PGNC 620; N9652 (18 November 2021)

N9652

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1029 OF 2019

THE STATE

V

ROBERT AGEN
(No 1)

Waigani: Ganaii, AJ.
2021: 15^th, 18^th November

CRIMINAL LAW – Practice and Procedure – Oral application to dismiss proceedings – Where Indictment not presented and Matter not brought to Trial- Exercise of the Court’s Inherent Powers under Section 155 (4) of the Constitution to hear and Determine Application – Applicant had not demonstrated that Proceedings commenced on an ulterior Motive – Argument on Prejudice to Defence cannot be Made where Indictment not presented – Dismissal is not in the Public Interest - Application is refused for Abuse of Court Process

Held:

(1) In the exercise of the Court’s inherent powers under section 155 (4) of the Constitution, and where and Indictment has not yet been presented to invoke the jurisdiction of the Court, the Court has heard and will now determine an oral application seeking a dismissal of the case.

(2) In this application seeking a dismissal of the case, on the grounds that the accused was not properly brough before the court, the onus is on the applicant to establish that the criminal proceedings, at the arrest and charging stage, commenced with an ulterior motive. Where it is not established, the application is refused. Refer to Goldsmith v Sperrings Ltd [1977] 1 WLR 478, applied in State v Paul Paraka N8807, CR (FC) 118 of 2019 Berrigan J, (23^rd April 2021), at [25]. The burden of establishing that the bringing or continuation of criminal proceedings amounts to an abuse of the court's process is on the accused. The standard of proof is the balance of probabilities.

(3) Where the accused did not raise this ground at the earliest time, at the committal proceedings, and where the Committal Court had lawfully discharged its function in committing the accused to trial, based on the information laid before it and the evidence presented in a Police Hand Up Brief, raising the matter now is an abuse of the court’s process.

(4) In determining whether to stay a proceeding, or in this instance to dismiss the charge against the accused, the court must balance the public interest in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (supra).

(5) Where an indictment has not been presented, any preliminary application seeking dismissal of the charge on the grounds of “prejudice to the defence case’ is premature until and when a charge is preferred and presented on an indictment by the Public Prosecutor to Court. State v Paul Paraka (supra) applied.

Cases Cited
Papua New Guinea cases

Re Namah (2018) N7194
State v Paul Paraka N8807, CR (FC) 118 of 2019 Berrigan J, (23^rd April 2021)
State v Wohuinangu (1991) N966
Thompson v Kalaut (2011) N4265

Overseas cases cited

Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
R v Crawley [2014] EWCA Crim 1028
Walton v Gardiner (1993) 177 CLR 378

Laws cited

The Constitution, Section 155 (4)
The Criminal Code, Chapter No 262 of 1974, Sections 347 and 319
The Criminal Practice Rules of 1987, Part 2, Order 2
The District Court Act, Chapter No 40 of 1963, Sections 95-100
The Police Act, Chapter No 37 of 1998, Section 33

Counsel

Ms M Tamate, for the State
Mr J Sebby, for the Accused

Ruling on Application

18^th November, 2021

1. GANAII, AJ: The accused was committed to stand trial in 2019 on one count of Sexual Penetration and one count of Grievous Bodily Harm contrary to Sections 347 and 319 of the Criminal Code respectively. The matter had been pre-tried in October 2020 and set as ready for trial. The State has been ready for trial but is yet to present an indictment pending this application and a trial date to be given.
   
2. This is a ruling on an oral application by the accused’s lawyer, Mr Sebby, seeking that the case against his client be dismissed and that the accused be discharged forthwith. Mr Sebby did not file a formal application. Although he submitted that he was making an oral application and relied on filed affidavits to support his oral motion, he still did not set the basis for his oral application.
   

Grounds for seeking Discharge

3. From his affidavit and oral submissions in support of his application, Counsel for the applicant submitted that the accused was not properly brough to court as Constable Joshua Kraip, who was the Police Informant involved in the arrest and laying of the Police Information and charge against the accused, was previously found guilty and convicted by the court for an offence. The defence argued that consequently, Constable Kraip was unlawfully performing police duties and functions at that time when he arrested the accused. Mr Sebby submitted that according to section 33 of the Police Act^[1], where a police officer was convicted for an offence, they stand to be dismissed from the Police Force. The Police administration, however had failed to terminate Constable Kraip’s employment to date. Mr Sebby argued that as such, the Police Informant was not lawfully permitted to perform police functions and or to conduct any criminal investigations and lay consequential arrests or charge. For this reason, the accused is not properly or lawfully before the court and therefore his criminal charges should be dismissed and he be discharged forthwith.
   

State’s Response

4. On the question of jurisdiction and practice and procedure, State responded by submitting that the Court can hear this application pursuant to the court’s inherent jurisdiction under section 155 (4) of the Constitution. On the procedure, State however, in my respectful view, pointed out a wrong basis in law which was Part 2, Order 2 of the Criminal Practice Rules (CPR)^[2]. In my view, this part of the CPR deals only with issuance of court directions for pre-trial of matters in readiness for trial. This process enables the state and defence to bring matters to the attention of the court, so that directions can be made and complied with for the smooth running of criminal trials. As such, during pre-trials, issues such as number of witnesses, trial time, defences raised, exhibits to be relied, alibi and voir dire notices etc are raised and the court issues directions that are to be complied with, in preparation for trial. After pre-trial, matters are then set as ready for trial and given trial dates.
   
5. The instant application is not seeking a pre-trial direction to set the matter for trial but is one seeking a dismissal of the criminal charge. That being the case, Part 2, Order 2 of the CPR for Pre -Trial Directions do not apply.
   
6. On the relief that Mr Sebby is seeking on behalf of his client, which is a dismissal of the charge and discharge from the criminal proceedings, and where the matter had already been pre-tried and set as ready for trial, it is proper that the criminal jurisdiction of the trial court must first be invoked. This is done through the presentation of an indictment where the accused is brought to trial on an indictment, and the Court is seized of jurisdiction of the trial matter. The accused’s plea is then entered and consequently, formal preliminary applications can be made.
   
7. After an indictment is presented, applications can be brought to Court properly under Division 4 of the CPR, through the Originating Summons process pursuant to Rule 11, where oral applications can be made. This process was not utilised by Mr Sebby.
   

Court’s inherent power to make Orders

8. Given that this case has taken a long while to go to trial due to the accused’s lawyer’s delay in moving this application, and where the State had now conceded that the Court can hear the application and where the State had responded to this oral application, the Court will exercise its inherent jurisdiction in the interest of justice to respond to the preliminary issue raised, so that no more delay is caused and the matter is progressed. I rely on section 155 (4) of the Constitution which says:
   

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

9. In consideration of the submissions, I agree with the State’s position that matters raised are purely administrative in nature and do not affect the accused’s defence or that these administrative matters are not pre-judicial to his defence on his charge in any way. That is because an indictment has not yet been presented and the accused is not aware of the charges preferred against him by the Public Prosecutor. It will be premature to argue ‘prejudice to his defence’ now as the issues raised are purely administrative in nature. In State v Paul Paraka N8807, CR (FC) 118 of 2019, (23^rd April 2021), the case related to an application for stay, but where I found the comments useful, Berrigan J, held that in one of the two broad categories of cases where the Court can exercise its powers to permanently stay a proceeding for abuse of process, it is necessary for the accused to establish not only that there has been an abuse but that he is prejudiced in his defence such that a fair trial is not possible, bearing in mind the power of the court to impose lesser remedies or directions to control the proceedings, for instance through the exclusion of evidence, the issuance of warnings, or the granting of adjournments: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23; State v Wohuinangu (1991) N966, and R v Crawley [2014] EWCA Crim 1028. Where this matter is not brought to trial by the presentation of an indictment and where the Public Prosecutor is yet to prefer any charges, the accused has not established that the indictment is calculated to prejudice or embarrass him in his defence at this stage.
   
10. On the question of whether the Police Informant was lawfully performing police duties as a member of the Police Force or not due to a prior criminal record, these are matters within the jurisdiction of the Police administration to address. The court cannot dismiss a charge on this basis alone. One of the main considerations that the court must have regard to is the question of public interest.
    

Interest of the Public

11. The accused had been charged with a serious offence. In criminal proceedings, the interest of justice requires the court to assess whether it is fair in the circumstance to dismiss a matter where the accused is charged with a serious indictable offence. The interest of the accused must be weighed against the interest of the state or the public at large as justice is for everyone including the Independent State or the people of PNG who is a party in all criminal proceedings. In Paraka (supra), on an application to permanently stay criminal proceedings, I find the comments on public interest useful. The Court held among others:
    

“(2) To permanently stay criminal proceedings is an extreme remedy, only to be exercised in the most exceptional circumstances, as a last resort. There is substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: see Jago v District Court of NSW (supra); State v Wohuinangu (supra; Re Namah (2018) N7194; Crawley (supra); Wartoto (supra); Thompson v Kalaut (2011) N4265”.

12. At paragraph 24, the Court also said:
    

“In determining whether to stay a proceeding, the court must balance the public interest in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (supra). When considered in this way, it necessarily follows that a permanent stay will only ever be required in very exceptional circumstances”.

13. In this matter, it is in the interest of justice that this matter must go to the full length of the trial as the offence involves the serious allegations of grievous bodily harm and rape, the matter has been set as ready for trial and witnesses have been waiting for their day in court since the commission of the alleged offence three years ago. In her submissions, the learned State Prosecutor had informed the court that the State witnesses were present at the court vicinity, ready for trial. In the interest of the State al large, the matter must progress to trial.
    

Failure to raise this at the Committal Court

14. Further, it is considered that the accused through his lawyer had not raised this matter at the initial stages of arrest, and at the committal proceedings. Consequently, this case had passed the test of prima facie case on the basis that evidence was sufficient to commit the matter to trial. The committal process is paper-evidenced based, and that court had lawfully discharged that function by considering the information presented to it and assessing the evidence contained in the Police hand up brief presented by the Police Prosecutor, within the ambits of Sections 95 to 100 of the District Court Act.
    
15. Where the accused had not challenged his arrest or committal, that is tantamount to the accused person’s acceptance that there is no issue on his arrest and he had been properly brought to court. The accused cannot now raise the matter when the case is set for trial. I consider this an abuse of the courts process causing unnecessary delay and a waste of judicial time. The court must therefore protect its processes from abuse.
    

Consideration of the Evidence

16. I have read the affidavits of Detective Inspector Terry Apolos and the case Investigating Officer, Constable Joshua Kraip tendered by the State. Inspector Apolos was the immediate supervisor in charge of Constable Kraip. He had tasked Constable Kraip to carry out investigations in this matter. The instructions were lawful and Constable Kraip had complied, resulting in him conducting lawful investigations, and laying an arrest and charges against the accused. There is no question that the tasking instructions was not proper. I do not see anything wrong with the case Investigating Officer, acting on proper instructions from his superior to perform police duties. It has not been demonstrated that he acted for an improper purpose or with an ulterior motive, or that he believed the charges to be false. The accused argument for a dismissal or stay must demonstrate that the proceeding would not have been commenced, but for an ulterior purpose (Goldsmith v Sperrings Ltd [1977] 1 WLR 478 applied in Paraka (supra) at [30]. He has not demonstrated that.
    
17. In summary, the issue of the Investigating Officer’s termination after conviction, is a matter for his superiors to deal with in an administrative capacity. Dismissing a serious criminal charge on this basis alone is not fair on a legitimised process that had already and lawfully been set in motion, and where it is not in the public interest to do so.
    

Conclusion

18. It is on this basis that justice requires that this legitimised court process must progress to trial in the interest of the public at large. Where the accused had not discharged the onus on reasonable grounds that the proceedings had commenced with an ulterior motive, I refuse the application for being an abuse of the court’s process.
    

Order

19. The following orders are made:
    
    • (1) Application is refused; and
      
    • (2) Matter to proceed to trial.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Joppo Lawyers: Lawyer for the Accused

^[1] Chapter No 37 of 1998
^[2] 1987