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State v Woyengu [2025] PGNC 262; N11355 (2 July 2025)

N11355

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO 372 OF 2024
THE STATE

V

ANTHONY WOYENGU

WAIGANI: BERRIGAN J
20 JUNE, 2 JULY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – NOLLE PROSEQUI – Objection to acceptance of nolle prosequi by accused – Objection refused.

On objection to the filing of a nolle prosequi on the part of the State on the date fixed for trial and prior to arraignment:

Held

(1) It is only in exceptional cases that the Court should refuse to accept a nolle prosequi, that is where it is necessary to prevent an abuse of its process: R v Abia Tambule [1974] PNGLR 250; The State v Painke [1976] PNGLR 210; The State v Painke (No 2) [1977] PNGLR 141; Smedley v The State [1980] PNGLR 379; or a breach of an accused’s right to a fair hearing within a reasonable time under s 37(3), Constitution: The State v Daniel Aigal and Gui Robert Kauna [1990] PNGLR 318, applying R v Abia Tambule and The State v Jonah-Jakai (1982) N391.
(2) Presentation of a nolle prosequi prior to the commencement of a trial will not ordinarily constitute an abuse of process or interfere with the right to a fair trial within a reasonable time.

Cases cited
The State v Tanedo [1975] PNGLR 395
Poole v R [1961] AC 223
R v Jell; ex parte Attorney-General [1991] 1 Qd R 48
The State v Ngasele (2003) SC731
Review Pursuant to Constitution Section 155(2)(b)
Application by Herman Joseph Leahy (2006) SC855
R v Sneesby (1951) QSR 26
R v Abia Tambule [1974] PNGLR 250
The State v Painke [1976] PNGLR 201
The State v Painke (No 2) [1977] PNGLR 141
Smedley v The State [1980] PNGLR 379
The State v Daniel Aigal and Gui Robert Kauna [1990] PNGLR 318
The State v Jonah-Jakai (1982) N391
Wartoto v The State (2015) SC1411
Agen v The State (2024) SC2623
State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807
State v Kingsley (2023) N10131
Painke [1976] PNGLR 210
State v Loi (No 1) (2009) N4058

Counsel
S Kuku for the State
F Lunge for the accused

RULING ON OBJECTION TO NOLLE PROSEQUI

1. BERRIGAN J: Defence counsel objects to the presentation of a nolle prosequi by the State prior to arraignment on the basis that it prejudices the accused because it does not constitute an acquittal. It is an improper use by the prosecution at the eleventh hour made in bad faith in breach of the accused’s rights under ss 37(3) and 158(2) of the Constitution. The charge arises out of the accused’s previous employment. He has incurred significant legal costs and is entitled to clear his name. His client is willing to allow the State an adjournment of one month before proceeding to trial.
   
2. No authorities are referred to in support of the submissions.
   

Background

3. The accused was committed to the National Court on 14 October 2024 on one count of obtaining monies by false pretence and one count of abuse of office, contrary to ss 404(1)(a) and 92, Criminal Code, respectively. Following the pre-trial process the matter was fixed for trial commencing 18 June 2025. On that day the officer appearing for the State, Mr Kuku, sought an adjournment on the basis that an opinion was with the Acting Public Prosecutor. The matter was adjourned to the afternoon at which time Mr Kuku confirmed that it would be a short matter on the part of the State. The matter came before me again on 20 June 2025 at which time the objection was made upon the presentation of the nolle prosequi.
   
4. The indictment contains one charge of abuse of office contrary to s 92(1)(2), Criminal Code.
   
5. According to the pre-trial review statements there is no dispute that the accused whilst employed as the Human Resources Manager for the National Maritime Safety Authority in 2017 obtained a housing loan in the sum of K131,000 under the NMSA Home Ownership Scheme which would be repaid through fortnightly deductions of K251.92 from his salary. It is alleged that the accused, in abuse of the authority of his office, directed the Senior Payroll Officer not to make the deductions from his salary, for the purposes of gain. The accused denies giving any such direction and says that the monies owing were recovered from his entitlements upon termination in 2019.
   

Section 527, Criminal Code

6. Section 527, Criminal Code gives power to the Public Prosecutor or a State Prosecutor to file or present a nolle prosequi informing the Court that the indictment pending before it will not be proceeded with. Upon the filing or presentation of the nolle prosequi the person named in it is to be immediately discharged from any further proceedings on that indictment.
   
7. The filing of a nolle prosequi does not amount to an acquittal. Its entry does not establish the innocence of the accused nor prevent a subsequent charge being laid: The State v Tanedo [1975] PNGLR 395 applying Davis v. Gell [1924] HCA 56; (1924) 35 C.L.R. 275. It is a termination of the proceedings without adjudication and neither creates a bar to further proceedings nor supports a plea of autrefois acquit in respect of the same charge: Poole v R [1961] AC 223. In the words of Thomas J in R v Jell; ex parte Attorney-General [1991] 1 Qd R 48 when considering the provision in Queensland on which ours is drawn: “In short it is neither a bar to a fresh indictment nor a discharge of the original offence. It is often described as a stay (e.g. R. v. Prosser [1847] EngR 811; (1848) 11 Beav. 306; 50 E.R. 834) but this does not imply that it is a stay granted by the court; it is a stay effected by executive action”.
   
8. Section 527, Criminal Code is consistent with the power of the Public Prosecutor to control the exercise and performance of the prosecution function of the State: s 177(1)(a), Constitution. That power, in so far as whether to commence proceedings and if so on what charge, is not subject to control or direction by any person or authority, including by the Court: s 176(3), Constitution; The State v Ngasele (2003) SC731; Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 at [141], amongst others.
   
9. Consistent further with the Public Prosecutor’s power and the clear terms of s 527, Criminal Code, a nolle prosequi may be filed “at any time”, that is at any time prior to verdict: see R v Sneesby (1951) QSR 26.
   
10. There can also be no doubt that the presentation of a nolle prosequi is a fairly common occurrence and that the National Court does not ordinarily interfere with that exercise of the State’s prosecution function. As McCrossan CJ said in R v Jell, supra which might equally apply here: “Courts frequently encounter and accept the exercise of this power and it is completely familiar.”
    
11. Nevertheless, it is also well established that the Court may, in the exercise of its inherent jurisdiction, refuse to accept a nolle prosequi to prevent an abuse of its process: R v Abia Tambule [1974] PNGLR 250; The State v Painke [1976] PNGLR 201; The State v Painke (No 2) [1977] PNGLR 141; Smedley v The State [1980] PNGLR 379.
    
12. Furthermore, the Court may refuse to accept a nolle prosequi by using its powers under s 57(3), Constitution to prevent a breach of an accused’s right to a fair trial within a reasonable time under s 37(3), Constitution, particularly if the nolle prosequi would amount to an abuse of process: The State v Daniel Aigal and Gui Robert Kauna [1990] PNGLR 318, applying R v Abia Tambule and The State v Jonah-Jakai (1982) N391. Whilst accepting the nolle prosequi in that case, Brunton J, expressed the view that the Court may also use its powers under s 57 of the Constitution to prevent breaches of s 42 – Liberty of the person, s 35 - Right to Life and s 36 - Right to Freedom from Inhuman Treatment.
    
13. As the Supreme Court made clear in R v Abia Tambule, whether or not the presentation of a nolle prosequi will constitute an abuse of process and at what stage that might occur will depend on the particular circumstances of the case at hand. The same must apply to the question of any breach of human rights under the Constitution.
    
14. As the reported cases also demonstrate, a refusal by the Court to accept a nolle prosequi will be rare.
    
15. That is consistent generally with more recent authorities which make clear that whilst the Court has broad power to prevent the abuse of its process it will only permanently stay criminal proceedings in extreme or exceptional circumstances: see Wartoto v The State (2015) SC1411; Agen v The State (2024) SC2623 at [40] to [42]; State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807 at [13] to [45] and [213] to [235]; State v Kingsley (2023) N10131 at [20] to [33]. For instance, where the court concludes that the accused can no longer receive a fair hearing or where a stay is necessary to protect the integrity of the criminal justice system.
    
16. Furthermore, presentation of a nolle prosequi prior to the commencement of a trial will not ordinarily constitute an abuse of process. The fact that the State has reserved the right to present another indictment is merely the consequence of a nolle prosequi and not – and here I would add the words, “of itself” - improper: The State v Peter Painke [1976] PNGLR 210.
    
17. More difficult questions might arise when the nolle prosequi is presented after the commencement of the trial. Even then, however, it will depend upon the circumstances of the case: see R v Abia Tambule [1974] PNGLR 250; The State v Jakai (1982) N391.
    
18. In State v Abia Tambule the prosecutor informed the Court that the State would present a nolle prosequi against three accused at the stage in the trial when the prosecution had called all the evidence available to it. By two to one majority the Supreme Court held that, whilst it was not necessary to decide where the line should be drawn, the trial had reached a stage where to accept the nolle prosequi was to deny the three accused a fair trial. If an accomplice was to be called the appropriate steps either by entering a nolle prosequi or calling no evidence should have been taken in relation to one or more of the accused at the beginning of the trial before evidence was led. The trial judge should have declined to accept the nolle prosequi and should have entered a verdict of not guilty at that late stage.
    
19. Per Frost SPJ:
    

“But, in my opinion, if a charge is not withdrawn and the hearing commences, the accused’ s right to a fair hearing becomes the paramount consideration. Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings. For the Crown to enter a nolle prosequi in circumstances similar to those of this case has been said to be unfair R v. Sneesby... The reason must be that it is tantamount to the accused being placed in double jeopardy which, of course, does not strictly attach until the final verdict.”

20. In State v Jonah Jakai McDermott J distinguished Tambule and accepted a nolle prosequi when at the end of the evidence of the principal State witness it appeared that the accused acted in concert with others and it was in the interests of justice to have the crime properly investigated.
    

Consideration

21. Certainly, there has been no abuse of process in this case.
    
22. There is no basis for the allegations of bad faith or impropriety against either the Acting Public Prosecutor or her officer. The Court’s procedures are not being used for an ulterior purpose or in an improper way. There is nothing that suggests that the decision proceeds from caprice or incompetence. Nor that the filing of a nolle prosequi is not appropriate in the circumstances of this case.
    
23. The nolle prosequi was filed in accordance with longstanding practice and the Office of the Public Prosecutor (OPP) Prosecution Policy, 2006 which provides that a nolle prosequi is not to be filed without the express consent of the Public Prosecutor or his (her) delegate: [13.3]. The nolle prosequi was signed by the Acting Public Prosecutor herself, indicative of a deliberate decision on her part.
    
24. Whilst it is permissible, and the Criminal Practice Rules, 2022 expressly recognise, that the Court may satisfy itself that the Public Prosecutor has been consulted before the nolle prosequi is accepted (see Order 7, Rule 4(3)), the fact that the Public Prosecutor has been consulted should more than suffice in most cases. It will not usually be either appropriate or possible for the Court to engage in any meaningful assessment of the complex factors affecting the State’s decision-making process.
    
25. With hindsight, there was no need for me to go further in the circumstances of this case. Nevertheless, upon my enquiry, Mr Kuku indicated that the State’s principal witness had also been terminated and could not be located. There is no reason to doubt that in the context of this case.
    
26. The unavailability or unwillingness of witnesses to cooperate is a common reason for the State to file a nolle prosequi. There are multiple and diverse factors which can contribute to this situation, whether it be social, geographical, the remoteness of the witnesses or the fact that the State is no longer able to locate them, not to mention the financial constraints faced by the State. The State’s power to file a nolle prosequi must be considered having regard to the particular circumstances of Papua New Guinea.
    
27. Or it may be that the filing of a nolle prosequi results from the fact that limited resources do not normally permit the OPP to advise police at the investigation stage such that whilst there is evidence which is sufficient to establish a prima facie case for the purposes of committal the Public Prosecutor determines that further evidence is required before the case can proceed to trial. That is an appropriate exercise of the power to control the prosecution function and the State should not ordinarily be required to file a declaration under s 525(1)(b), Criminal Code or proceed to a verdict of acquittal in those circumstances.
    
28. Returning to the present case, there is no breach of s 37(3), Constitution. Section 37(3) provides that “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court”. Section 158 requires the courts to give paramount consideration to the dispensation of justice.
    
29. The accused is yet to be arraigned and the trial is yet to commence (see s 557, Criminal Code). The accused has failed to demonstrate that the withdrawal of the charge at this stage will deprive him of a fair trial.
    
30. Nor is it necessary for me to consider for the purposes of this case if, when and following what procedure, a further indictment might be presented, matters which to date have been the subject of somewhat divergent views: see Smedley; Jakai; The State v Painke (No 2) [1977] PNGLR 141, as summarised by McDermott J in Jakai:
    

“If the opinion of Pratt J with whom Wilson J agreed in part in Smedley (supra) at p.408 is the prevailing situation, then the prosecutor’ s powers to present a further indictment are exhausted, unless there is a new committal upon which a fresh indictment can be presented. This matter would then be at end though the accused could face further proceedings.”

31. In general terms, the question of whether an accused has been denied the right to a hearing within a reasonable time should be determined if and when a further indictment is brought before the National Court. The mere fact that there is a delay between the date of an alleged offence and any trial is not of itself a reason to permanently stay a prosecution: see Kingsley at [34] et seq.
    
32. I reject the submission that the accused is entitled to a fair trial within a reasonable time in absolute terms. He is entitled to a fair trial within a reasonable time when a charge is pending. But as s 37(3), Constitution, recognises, the State may withdraw a charge. It may do so pursuant to s 525(1)(b) or s 527, Criminal Code.
    
33. Section 525(1) provides that “[w]here a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a 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”.
    
34. Neither s 525(1)(b) nor s 527, Criminal Code entitle the accused to an acquittal. The key distinction is that under s 527 there is no guarantee that the State will not proceed in relation to the same allegation in the future. But there is no matter pending against the accused. The matter is at an end unless the prosecution commences the committal process again. To my knowledge that has never happened but that is beside the point. It is in the interests of justice that serious criminal charges are brought to trial where possible.
    
35. It is, furthermore, because the nolle prosequi brings the proceedings to an end that judges sometimes enquire as to whether the Public Prosecutor is aware that a nolle prosequi is being filed, in the same way that judges have in rare cases refused to allow the prosecution to offer no evidence: State v Loi (No 1) (2009) N4058 albeit the latter results in an acquittal.
    
36. There may also be instances where the State files a nolle prosequi because the accused is too mentally or physically unwell to face trial.
    
37. This case concerns a serious allegation of abuse of office. There has been no unreasonable delay in the bringing of the charges, the committal process or the conduct of the pre-trial process by the State and the filing of the nolle prosequi.
    
38. The offence was alleged to have occurred in 2017. The accused was charged on 8 February 2024. The case was struck out on 15 February 2024 in the absence of a police hand up brief. The accused was arrested on 22 March 2024. There was no undue delay between that date and the date of his committal on 7 October 2024 nor since then and the date for his trial. Orders were made on the first return of the matter before the National Court on 21 October 2024 for the State and defence to file and serve their pre-trial review statements by 1 November and 8 November 2024, respectively. The State filed its pre-trial review statement a few days late on 6 November 2024, so when the matter returned on 11 November the accused was allowed until 22 November 2024. Ultimately, however, he did not comply with those directions until 31 March 2025 when the pre-trial review statement was handed up in court, at which time the matter was fixed for trial. By some oversight I did not fix it for pre-trial conference but there was in any event no unreasonable delay on the part of the State in indicating its intention to file the nolle prosequi on the day fixed for trial.
    
39. In summary, there is no breach of s 37(3), Constitution and the accused has failed to demonstrate that the acceptance of the nolle prosequi will inevitably deprive him of a fair trial within a reasonable time in the event that the State brings a further indictment.
    
40. Finally, none of the considerations raised by Brunton J in The State v Daniel Aigal apply here. The accused’s liberty will not be impacted by the acceptance of the nolle prosequi. Nor will his right to life. The mere filing of a nolle prosequi does not constitute inhuman treatment.
    
41. In conclusion, it is in the interests of justice that the nolle prosequi be accepted.
    

Orders

(1) The nolle prosequi is accepted.
(2) The accused is discharged from the indictment before the Court.
(3) The accused is discharged from his bail obligations and his bail monies are to be refunded.
(4) This file and any related bail file will be closed.

__________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the accused: Ninerah Lawyers