DC3061
PAPUA NEW GUINEA

IN THE DISTRICT COURT SITTING

IN ITS CRIMINAL (COMMITAL) JURISDICTION

COMM 540/2015

BETWEEN

POLICE
-Informant-

AND

BAL NUMAPO
-Defendant-

Kundiawa:	B. Tanewan

2016:		28TH JANUARY

CRIMINALLAW – Practice & Procedure –Interlocutory Application- Application to dismiss for Abuse of process – Constitutional Rights
CRIMINAL LAW- Committal – Misappropriation, Conspiracy to defraud, Abuse of office 
CRIMINAL LAW – Committal Courts – Invalid Warrant of Arrest - Struck out – Defendant Rearrested – Rehearing at Committal process - Whether abuse of process – Jurisdiction of Committal Court

Cases Cited
State v. NatpalauTulong (1995) PNGLR 329
State v. Painke (No 2) (1976) PNGLR210 
Watinga v. The State (1994) PNGLR 255

Legislation Referred to
Arrest Act
Criminal Code Act, 1974
District Court Act

References
Magistrates Manual Chapter 11

Appearance:
Sergeant AntonWusfor Prosecution
MisielYawipfor the Defendant

INTERLOCUTORY JUDGEMENT

TANEWAN, DCM: The Defendant BalNumapostands charged with 18 different charges Under the Criminal Code Act 1974. The Defendant was granted Court bail of K5, 000.
Prior to these proceedings he was charged with 27 different charges under the Criminal Code Act, 1974.

It is alleged that whilst the Defendant was the District Administrator for Sinesine/Yogomugl, the Defendant misappropriated, conspired and abuse his office in authorizing certain payments to companies and individuals thus defrauding the Independent State of Papua New Guinea.

On 20th November, 2015, the Committal court perused the Police Hand- Up Briefs and heard submissions from parties on whether there was sufficient evidence to commit the Defendant to trial.
At that time the Court found that the five (5) charges of Abuse of Office under section 87 of the Criminal Code, 1974 were in appropriate and had them struck out whilst the other charges were struck out due to the fact the Warrant of Arrests obtained were invalid as the arresting officer was under suspension when he obtained the Warrants of Arrests and subsequently arrested and charged the defendant.
Shortly after the committal court stuck out the charges against the Defendant he was rearrested and recharged with the same charges and brought back to court.
Subsequently, the defendant through his lawyers filed an application by way of a Notice of Motion seeking to dismiss he charges for Abuse of process and breach of Constitutional rights for a fair hearing within reasonable time.
The main issue before this court now is should the court rehear the matter again as a fresh committal? And if so does this amount to abuse of process.

The Defendant in support of the application to dismiss the proceedings for abuse of process referred to the National Court cases of State v. Painke (No 2) (1976) PNGLR210 and Watinga v. The State (1994) PNGLR 255. The lawyers for the defendant further submitted that if the process of committal is followed again it may take a long time and may amount the breach of his constitutional rights for a hearing within reasonable time.

The Prosecution in reply basically submitted that if the relaying and recharging of the Defendant does not amount to abuse of process as the charges were only struck out and not dismissed.  The Prosecution further submits that if the same court rehears the proceedings it may amount to conflict of interest. He did not support his proposition with any case precedents.

On the outset and for the benefit of all parties, let me set out the current scenarios in this particular case as follows;

(i)	Firstly, I have already perused the Police Hand Up Brief and have formed an opinion that five (5) charges of Abuse of Office under section 87 (1)  were in appropriate in the whole circumstances of the case and accordingly struck out those charges.

(ii)	Secondly, I also found that such other charges relating to fraud, misappropriations and the like, it is mandatory that warrant of Arrest be issued and executed against the Defendant. However, in this case even though Warrant of Arrest was issued and executed, it was found that the Arresting Officer was under suspension at that material time thus effectively the Warrant of Arrest invalid thus rendering all the charges void abinito.

This ruling that created those scenarios above was based on thePapua NewGuinea Magistrates Manual Chapter 11.4.4 as well as the principles in the National Court case of State v. NatpalauTulong (1995) PNGLR 329 where the Court held that, “it is the duty of the Court at the Committal stage to ensure that a person is arrested in accordance with law.” In arriving at that decision the Doherty J said; “The District Court committal proceedings are not automatic. It is incumbent on a Magistrate to check that the law has been complied with and not to rubber stamp every information before it”
	
In going back to the pertinent issue whether the laying of the fresh information and hearing of the same amounts to abuse of process under section 37 of the Constitutionor not, the issue curtains a constitutional matter which requires interpretation of the provisions of the Constitution.

In State v. Tom Watinga (1994) PNGLR 255, which Sawong AJ (as he was then) held that, “The National Court, as a superior court of record, has an inherent jurisdiction to take steps to prevent any abuse of court process”
Thus, it is trite law that Constitutional matters are not within the domain or jurisdiction of the District Court but only the National and Supreme Courts.
The question of whether once proceedings are struck out because of non-compliance with the law, in this case in obtaining the warrant of arrest, can be heard again as a committal matter, in State v. Tulong (supra) the National Court in dealing with the case in the similar circumstances said, “I consider he is therefore illegal before this court, although an indictment has been presented I cannot arraign him. I am obliged to discharge him. A discharge does not require a plea nor does it prevent a charge being laid again.”
The Court then went further and stated that, “In considering the situation before, I am very conscious of the fact that in fact it may well be the defendant who suffers most of this situation. A Warrant is likely to be issued and he is likely to be arrested again because the offence is an extremely serious one that the police quite likely cannot let pass. He will therefore be brought again before the District Court and will again go through a committal and again be held awaiting a National Court.”

Therefore, in having the above scenarios in place already, it is the Court’s view that this Court has already formed an opinion on the Committal proceedings and any subsequent charges from the same circumstances as might amount to conflict of interest. Further, all that the committal court has to do is form an opinion on the evidence collated by the investigators contained in the Police Hand Up Brief and make a ruling, hence that is exactly what has already been done when I strike out the charges of Abuse of Office against the Defendant and so the principle of res judicata applies.

Being the case now, one has to bear in mind that a Magistrate’s decision in a judicial act, requiring the proper consideration be given to the matters required by statute.

In the light of the above, there is neither specific provision under the District Court Act nor any Statute giving me the powers to rehear a committal matter after I have already strike out the charges and discharged the Defendant following an invalid warrant of arrest contrary to the requirements of law.

To go any further, would basically be an abuse of process and tantamount to the dispensation of justice in these circumstances.

Finally, it is the judgment of this court that, for the reasons stated above,I will disqualify myself from presiding over this matter in the Committal court again. I also order that thematter is generally adjourned before another magistrate and Defendant’s bail is further extended.

Orders accordingly,