SC2806

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 39 OF 2022

TITUS WAFI
 Applicant

AND 
THE STATE
Respondent

WEWAK: MURRAY J, AUKA J, BERRIGAN J
27, 31 OCTOBER 2025

CRIMINAL LAW – APPLICATION FOR REVIEW OF DECISION TO ACCEPT NOLLE PROSEQUI – Section 527, Criminal Code – Whether trial judge erred in accepting nolle prosequi notwithstanding an order by the Supreme Court for a new trial – Whether the trial judge should have rejected the nolle prosequi to prevent an abuse of the Court’s process – Whether the trial judge’s acceptance of the nolle prosequi constituted a miscarriage of justice - Whether acceptance of the nolle prosequi deprived the applicant of his right to a fair trial within a reasonable time under s 37(3) of the Constitution – Application refused. 

Cases cited
The State v Tanedo [1975] PNGLR 395 
Davis v. Gell (1924) 35 CLR 275
Poole v R [1961] AC 223 
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
R v Abia Tambule and The State v Jonah-Jakai (1982) N391 
The State v Woyengu (2025) N11355
The State v Jakai (1982) N391  
Roland Tom; Kaya v State (2021) SC2096 
Oscar Tugein v Michael Gotaha [1984] PNGLR 37
Ombuso v State [1996] PNGLR 335

Counsel
F Kirriwom with A Kana for the applicant  
A Kaipu with L Jack for the respondent State

DECISION

1.	BY THE COURT: This is an application for review of the decision by the National Court on 15 February 2016 to accept a nolle prosequi presented on behalf of the Public Prosecutor notwithstanding that the Supreme Court had ordered a retrial of the matter on 27 July 2012.

2.	Leave for review was previously granted by a single judge of the Supreme Court pursuant to s 155(2)(b) of the Constitution. 

Background

3.	The applicant was convicted of misappropriation contrary to s 383A(1)(a) of the Criminal Code by the National Court in Wewak on 19 October 2009. He was sentenced to three years of imprisonment which he had fully served (both in custody and following his release on parole on 4 November 2010) by 18 October 2012.

4.	In the meantime, on 27 July 2012 the Supreme Court upheld his appeal against conviction on the basis that there was a material irregularity in the conduct of the trial which resulted in a miscarriage of justice. Having regard to the procedural nature of the trial judge’s error the Supreme Court ordered a new trial pursuant to s 28 of the Supreme Court Act (commonly referred to as a “retrial”).

5.	When the matter came before the new trial judge for hearing on 15 February 2016 the State Prosecutor filed a nolle prosequi on behalf of the Public Prosecutor informing the Court that the State would no longer proceed on the indictment dated 5 October 2009 charging the applicant with the misappropriation of K18,500 on 4 November 2005. 

6.	The nolle prosequi was accepted without objection.

Ground of review 

7.	The ground of review is set out in [1] above. 

8.	The applicant’s counsel has helpfully referred us to relevant case law. Essentially it is submitted that whilst it is the prerogative of the Public Prosecutor to file a nolle prosequi at any time prior to the entry of verdict, the trial judge should have rejected the nolle prosequi in the particular circumstances of this case and ordered the State to call evidence. The effect of the Court’s acceptance of the nolle prosequi was to deny the applicant his right to a fair trial within a reasonable time and to leave the allegations against him unresolved, for what appears to be an indefinite period. The applicant was entitled to a trial and possible vindication of the allegations. The nolle prosequi does not enable this to happen. It immortalises the stigma of the allegations.

Section 527 of the Criminal Code 

9.	Section 527, Criminal Code provides that:

NOLLE PROSEQUIS
(1) The Public Prosecutor or a State Prosecutor may at any time inform the National Court that an indictment then pending in the Court will not be further proceeded with, by filing with or presenting to the Court a document under his hand to that effect.
(2) When a document referred to in Subsection (1) is filed or presented the person named in it is to be immediately discharged from any further proceedings on the indictment to which it relates.	

10.	The provision 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 accused is to be immediately discharged from any further proceedings on that indictment.

11.	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) 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. 

12.	Section 527 of the 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.

13.	Consistent further with the Public Prosecutor’s power and the clear terms of s 527 of the 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.

14.	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.  

15.	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.

16.	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. 

17.	Whilst accepting the nolle prosequi in Aigal’s case, Brunton J, expressed the view that “ in principle, if a court can prevent the filing of a nolle prosequi by using its powers under s 57 of the Constitution in respect of breaches of s 37(3), then it should also be able to apply the same power in respect of other rights, certainly s 42, but perhaps not so obviously s 35 (Right to Life) and s 36 (Right to Freedom from Inhuman Treatment)”.

18.	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 or breach the accused’s right to fair trial, 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: State v Woyengu (2025) N11355 at [13].

19.	As the reported cases also demonstrate, a refusal by the Court to accept a nolle prosequi will be rare.  

20.	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 of itself improper: The State v Woyengu at [16] adopting The State v Peter Painke [1976] PNGLR 210.

21.	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; The State v Jakai (1982) N391.  

22.	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. Per Frost SPJ (emphasis ours):

“[I]n 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.”

23.	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

24.	The applicant seeks to distinguish his case from those referred to above on the basis that the Supreme Court had remitted the matter to the National Court for a new trial and that the trial judge’s decision to accept the nolle prosequi in those circumstances constituted an error of law or a miscarriage of justice. For that reason the decision should be overturned and the applicant called to plead to the indictment pursuant to s 557 of the Criminal Code.

25.	We reject those submissions for the following reasons.

26.	Firstly, no objection was raised to the nolle prosequi upon its presentation. On the contrary, whilst he was not obliged to do so, the trial judge did ask defence counsel if there was any objection to its acceptance. Defence counsel indicated that there was no objection and called for the applicant to be discharged and his bail monies refunded. The applicant himself thanked the trial judge upon being informed of the same. 

27.	Secondly, the fact that the Supreme Court has ordered a new trial pursuant to s 28 of the Supreme Court Act does not compel the State to run a trial and nor does it entitle an accused to demand one. 

28.	In determining whether or not to order a new trial rather than acquit a successful appellant, the Supreme Court will have regard to a number of factors, key amongst them, “the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial”. It will also consider the expense and inconvenience to witnesses who would be involved in a new trial; the seriousness and prevalence of the particular offence; the consideration that a criminal trial is an ordeal which the defendant ought not to be condemned to undergo for a second time through no fault of their own; the length of time elapsing between the offence and the new trial if ordered; and the strength and availability of the evidence: Ombuso v State [1996] PNGLR 335 adopting Oscar Tugein v Michael Gotaha [1984] PNGLR 37. 

29.	The Public Prosecutor nevertheless retains the discretion, and indeed the duty, in exercising the power to control the prosecution function of the State to determine whether to proceed with the trial, as it would in any other case, having regard to the prospects of conviction and whether prosecution is necessary in the public interest. The latter requires a consideration of the cost and inconvenience to the State, the nature of the offence, the age of the allegation, the likely penalty in the event of conviction and the impact on other cases pending. In this context it may also be necessary to consider whether any new trial would be oppressive to the accused having regard to those matters, as well as any delay since the appeal and the age and health of the accused. Whilst similar to the matters considered by the Supreme Court in general terms, those are matters the Public Prosecutor is uniquely placed to consider.

30.	As recognised by both practice and the Criminal Practice Rules, the Court may enquire as to the reasons for the filing of a nolle prosequi. 

31.	Certainly, there is nothing to suggest any abuse of process or impropriety on the part of the State in this case. The applicant does not suggest otherwise. 

32.	A very experienced State Prosecutor indicated that the State would not be proceeding with the matter having regard to the age of the alleged offence and the fact that the applicant had already served his sentence. Those are good reasons in our view. To put the applicant through a trial again in those circumstances would arguably be oppressive, particularly having regard to the nature and seriousness of the alleged offence and given that it had been more than three years since the order for a new trial. 

33.	In this regard, it must be said that the decision should have been made by the Public Prosecutor much earlier. Few cases are ordered for retrial by the Supreme Court. It is incumbent on both the National Court and the Public Prosecutor to ensure that any such cases are treated with the utmost priority. This perhaps should be a matter addressed in the Criminal Practice Rules.  

34.	As above, the decision to file the nolle prosequi was made for good reasons. In addition, the nolle prosequi was filed on behalf of the Public Prosecutor himself, in accordance with what is now longstanding practice under 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]; Woyengu at [23].

35.	We reject, furthermore, the submission that the acceptance of the nolle prosequi deprived the applicant of his right to a fair trial within a reasonable time under the Constitution.

36.	Section 37(3) of the Constitution 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”. 

37.	The applicant has failed to demonstrate that the nolle prosequi deprived him of a fair trial. There was no trial. The nolle prosequi was presented prior to arraignment and the trial had not yet commenced (see s 557, Criminal Code). 

38.	Furthermore, s 37(3) does not entitle an accused person a fair trial within a reasonable time in absolute terms. An accused person is entitled to a fair trial within a reasonable time when a charge is pending. But as s 37(3) of the Constitution recognises, the State may withdraw the charge. It may usually do so pursuant to s 525(1)(b) or s 527 of the Criminal Code: Woyengu at [32].  See State v Abia Tambule at [22] above.

39.	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”.

40.	As the indictment in this case had been presented at the original trial and was already pending before the National Court, the State no longer had the option of filing a declaration. 

41.	Neither s 525(1)(b) nor s 527, Criminal Code, however, 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: State v Kokon (2007) N3353 at [16]. But there is no charge or allegation pending against the accused in either case. There is no matter. The matter has been terminated: see Tanedo, above at [11]. The matter is at an end though the prosecution could commence proceedings again: see Jakai, below at [43]; State v Woyengu at [32]. 

42.	It is not necessary for us 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 (emphasis ours): 

“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.”

43.	Nor is it necessary to determine whether in the event that the prosecution were to bring a charge against the accused in the future it would inevitably constitute an abuse of process. It should be borne in mind, however, that if it was an abuse of process then the appropriate remedy would normally be to permanently stay the proceedings and discharge the accused, prior to any trial.   

44.	Finally, none of the considerations raised by Brunton J in The State v Daniel Aigal apply here. The accused’s liberty was not impacted by the acceptance of the nolle prosequi. Nor was his right to life. The mere filing of a nolle prosequi does not constitute inhuman treatment.

45.	In conclusion, the applicant has failed to demonstrate that there was any error on the part of the trial judge in accepting the nolle prosequi. There was no objection to the acceptance of the nolle prosequi upon its presentation. The State was not compelled as a result of the order under s 28 of the Supreme Court Act to conduct a new trial. The applicant failed to demonstrate that the trial judge should have rejected the nolle prosequi to prevent an abuse of the Court’s process or a miscarriage of justice. The acceptance of the nolle prosequi did not breach the applicant’s right to a fair trial within a reasonable time under s 37(3) of the Constitution. 

46.	Accordingly, we are not satisfied that there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest or that there are clear legal grounds meriting a review of the decision: Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305. 

47.	The application for review is dismissed. 

48.	We make the following orders:

ORDERS

(1)	The application for review is dismissed. 
(2)	The acceptance of the nolle prosequi is confirmed.
________________________________________________________________
Lawyer for the appellant: Public Solicitor			
Lawyer for the respondent: Public Prosecutor