DC5052

Papua New Guinea
In the District Court
Held at Waigani
Sitting in its Committal Jurisdiction
Comm. No. 752 of 2020
BETWEEN:
THE POLICE
Informant

AND:
BHOSIP KAIWI
Defendant
Port Moresby: T. Ganaii, SM
2020: 01st December 

COMMITTAL PROCEEDINGS – Practice and Procedure – Charge of Willful Murder was substituted for a charge of Murder – Defence raised an objection to prosecutions seeking to remand the defendant in custody before the matter returns for submissions on sufficiency of Evidence on the substituted charge of murder  
COMMITTAL PROCEEIDNGS – Practice and Procedure – Supreme Court is only authority for binding case precedents on interpretations on statute – Interpretation of section 61A ss (3) of the DCA now is only for purposes of resolving issue at committal court process where there is  pending charge – Any interpretation is not binding to any court but of persuasive value only - Rules of Interpretation - Literal meaning and intent of Parliament- Not to cause hardship and inconvenience for parties in this stage of the committal proceedings – Defendant be discharged only from information bearing the charge of willful murder - Not from custody – Charge of Murder is current - Matter returns for submissions on sufficiency of evidence on charge of murder 
Cases cited:		Nil

Legislation
Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Text 
Radhika Saxena, The Golden Rule of Interpretation, October 15, 2020 

Counsel
Police Prosecutor: Joseph Sangam		 For the Informant
Mr. Wenge, Luthers Lawyers			For the Defendant

Ruling on an application to discharge defendant from custody and criminal proceedings after amendment of an Information by substitution of Charges 

01st December 2020

Introduction
Ganaii, SM.  	This is a ruling on an objection raised by the defence to prosecutions application to have the defendant remanded in custody. This was after an application was granted to the prosecutions to amend an information by substituting a charge of willful murder to murder. 
	
Facts 
2.	The defendant’s initial charge is one of Willful Murder brought under section 299 of the Criminal Code Act. The Police Hand Up Brief (PHUB) was served on him. Before hearing submissions on sufficiency of evidence, the Prosecutions sought to amend the charge by withdrawing the information on the charge of willful murder and replacing that with an information bearing one count of murder. The new information was filed at the registry and was before the court before the application for withdrawal of the old charge was made. 

3.	The Defence did not object to the application. Mr. Wenge consented to the withdrawal of the charge of willful murder and accepted the substituted charge of murder. The prosecutions then sought to have the defendant remanded in custody, and have the case adjourned for submissions on sufficiency of evidence on the new charge of murder. Mr. Wenge however argued that the consequence of a withdrawal of the information on the previous information under s61A of the DCA meant that his client was entitled to be discharged and released from custody forthwith. He submitted that the Police should lay a fresh arrest for the new charge of murder. 

4.	The prosecutions argued that this was not necessary as their application was based on an instruction to seek to amend the charge by substitution of a serious charge to a less serious charge as indicated earlier. Prosecutions relied on s32 and 61A (1) and (3) of the DCA and submitted that such an amendment through substitution of charges can be made and no objection can be taken to it. The defendant can be discharged of the information bearing the count of willful murder. On the charge of murder, the defendant can be remanded and the matter can then return for submissions hearing on sufficiency of evidence.

Issue
5.	The main issue before this court is whether the consequences of a withdrawal of a charge where a substituted charge was filed are that the defendant was to be discharged from the criminal process and released from custody forthwith?
 
The Law

61A. Withdrawal of Information.
(1) Subject to Subsection (2), an informant may, at any time, advise the Court that he does not intend to proceed further in the matter the subject of the information.
(2) …
(3) On withdrawal of an information in accordance with this section, the defendant shall be discharged from any further proceedings in connection with the information.

Application of law Facts
6.	The application by the prosecutions to have the defendant remanded in custody was made after an application was made pursuant to s32 and 61A of the DCA. Subsection 3 of s61A states that upon a withdrawal of an information, the defendant shall be discharged from any further proceedings in connection with the information. The argument raised by Mr. Wenge is that the defendant is entitled to a discharge from custody forthwith. If I understand Mr. Wenge correctly, this argument arose from his reliance on section 61A of the DCA. In my view, this hereby requires the court to make an interpretation of the phrase ‘discharge from any further proceedings in connection with the information’. 

7. 	Before venturing into any interpretation of this provision, it is proper to state here at the outset that the only lawful authority for interpreting statute so that is has a binding effect in our jurisdiction is the Supreme Court. The District Court does not have that authority to do so and will be acting ultra vires if it does.  

8. 	For the present issue, in my respectful view, an interpretation is required and so this court must make an interpretation to resolve this issue. This interpretation would however, not have any legally binding effect in any court except to have persuasive value only. In so doing, it is not the intent of this court to act beyond its powers to interpret statute which only Supreme Court has. 

9. 	For the present issue at hand, the rules of interpretation must be used to guide the court. The ‘Golden Rule of Interpretation’ has an important place in the interpretation of statutes in which this court will now use. It is such a rule which disposes of ambiguity’, inconsistency, unclarity, hardship, inconvenience, injustice, etc. arose from the language of Statute while interpreting it. It is a universal principle of interpretation that the words of statutes should be given meaning according to the intention of the legislature and its intention could be known from the literal or grammatical interpretation of the language used. But, when it is not so possible and there is a danger of inconvenience, hardship, injustice, inconsistency, unclarity, ambiguity, and irrelevancy from such interpretation shall be done to avoid this danger. 

10.	In applying this rule, if this court was to accept the interpretation by Mr. Wenge which is that the court should make an order for the defendant to be discharged and released from custody and further proceedings forthwith, that in my view would create an avoidable inconvenience for all the parties and the court process. The inconveniences that would be caused are these that the police would be repeating the same task of arresting the defendant and the related and repeated processes for bail application and committal proceedings will follow suit. In the end, the same result up to this stage would be achieved. There obviously would be a delay in the progress of this matter. There also would be applied pressure on the already existing workload and on the resources of the police and the committal court.     I do not agree with Mr. Wenge that ss3 of s61A of the DCA should have such an interpretation that the defendant should be released from custody forthwith where there had been a withdrawal and a substitution of a charge. Where there is a pending charge, the defendant should be kept in custody until the matter returns or is progressed.

11. 	Where the law does not precisely say that the defendant is to be discharged and released from custody forthwith, after an information is withdrawn and replaced, this effect should not be read into the provision of s61A.  If this effect is read into that provision  so that it has such a consequence of discharge from custody forthwith when the provision does not precisely say so, that would be a contravention of the Golden Rule of Interpretation where words are meant to be given their literal and natural meaning. In this instance, the literal and natural meaning of ss3 of s61A is that the defendant is to be discharged from further proceedings in connection only to the charge of willful murder on the information. 

12. 	In the circumstances, it is convenient and therefore proper to read ss3 to mean that the defendant can be discharged from any further proceedings on the charge of willful murder only as contained in the information that was withdrawn. What this technically means is that the proceedings in so far as the information for the charge of willful murder is concerned have been ceased and in substitution of that, proceedings in connection with the new charge of murder take effect. The defendant therefore is discharged only from the information bearing the charge of willful murder. Where there was no objection taken on the substituted charge of murder, the defendant must be kept in custody until the matter returns for continuation of the criminal proceedings. A substituted charge or information has the same effect as the old charge and therefore the defendant should be held in custody for the charge of murder to be progressed.  

13.	In a situation where for instance there were no pending charges, and although section 61A does not talk about discharge from custody, lawfully, the defendant is entitled to a discharge from custody forthwith because he cannot be held in custody without a charge which is a fundamental Constitutional right. That has always been the practice in our jurisdiction. In this instance however, since there is a pending substituted charge of murder there is lawful reason to hold the defendant in custody pending the outcome of the case. The defendant cannot be discharged from custody forthwith. 

14.	In support of this view, guidance is drawn from proceedings in the National Court where on numerous occasions indictments have been withdrawn, substituted, and the matters proceeded to trial. Defendants on remand were kept in custody until their cases returned for continuation of the hearing on the new indictment.  

15.	 It is therefore, convenient to read ss 3 of s61A to mean that the defendant is discharged only from the information bearing the charge of willful murder and not from custody. The charge of murder is now pending. The next stage of the proceedings from here is for parties to make submissions on sufficiency of evidence on the charge of murder.  For these reasons and for the convenience of all parties in the circumstance, the objection by the defence is overruled. The defendant is remanded in custody pending submissions on the murder charge.

Conclusion
16.	Where there is a substitution of charge so that there is a pending charge, the phrase ‘discharge from any further proceedings in connection with the information’ should be given its plain and simple meaning so that in so doing the consequence of that interpretation does not cause hardship or inconvenience for any parties. In the circumstances where the defence consented to the substitution of the charge of Willful murder to murder, and where the former information on a charge of willful murder was withdrawn, the defendant must be discharged from further proceedings on the information of willful murder only but not from custody and criminal proceedings on the charge of murder which continues. The criminal proceeding in relation to the charge of murder which was filed and presented in court continues. The matter will return for filing of submissions, hearing and ruling on sufficiency of evidence on the charge of murder.  

Final Orders
17.	The following orders are made:
1)	As a result of a withdrawal and substitution of a charge of willful murder to a charge of murder, the defendant is discharged from any further proceedings in connection with the information on the charge of willful murder;

2)	The charge of murder is pending on the substituted information; 

3)	The defendant is remanded in custody in connection with the substituted information on the charge of murder; and

4)	The defendant will return to court for submissions on sufficiency of evidence on the charge of murder.

5)	Orders accordingly.

Police Prosecution 			For the Informant
Luthers Lawyers				For the Defendant