Papua New Guinea Law Reports - 1985
[1985] PNGLR 260
SC300
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
AKUI SINGGI
V
THE STATE
Waigani
Pratt ADCJ Bredmeyer Amet Woods Cory JJ
29 July 1985
29 August 1985
CRIMINAL LAW - Practice and procedure - Trial - Nolle prosequi entered - Discharge of accused - Effect of discharge - Not “a person convicted” - No right of appeal - Criminal Code (Ch No 262), s 527 - Supreme Court Act (Ch No 37), s 22.
CRIMINAL LAW - Appeal - Restricted to “a person convicted” - Nolle prosequi entered - Accused discharged - No right of appeal - Alternative procedures available - Supreme Court Act (Ch No 37), s 22.
APPEAL - Criminal proceedings - Restricted to “a person convicted” - Nolle prosequi entered - Accused discharged - No right of appeal - Alternative procedures available - Supreme Court Act (Ch No 37), s 22.
Held
An accused person who has been discharged from any further proceedings on an indictment by a judge, following the presentation to the judge of a nolle prosequi, is not “a person convicted” within the meaning of the Supreme Court Act (Ch No 37), s 22, and hence cannot appeal under that section against that order.
Discussion of other remedies available to a discharged accused.
Cases Cited
Avia Ahia v The State [1981] PNGLR 81.
R v Abia Tambule [1974] PNGLR 250.
Appeal
This was an appeal or purported appeal to the Supreme Court from an order of Kidu CJ discharging an accused from any further proceedings on an indictment.
Counsel
S Lupalrea, for the appellant.
K Bona, for the respondent.
Cur adv vult
29 August 1985
PRATT ADCJ BREDMEYER AMET WOODS CORY JJ: This is an appeal from a decision of the Chief Justice accepting a nolle prosequi and discharging the accused upon the indictment. The accused who was the assistant postmaster, Mt Hagen, had been indicted with two counts of misappropriation from the post office, the first count was for K66 and the second for K1275.88. The accused pleaded not guilty to both counts and the trial commenced before the Chief Justice in Mt Hagen. After calling two of the six witnesses listed on the indictment the State Prosecutor presented a nolle prosequi to the trial judge under the Criminal Code (Ch No 262), s 527. The defence counsel objected to the nolle prosequi being accepted. The learned trial judge considered that he was bound to accept it and discharged the accused from any further proceedings on the indictment under s 527(2). The accused has appealed against that order.
The appellant faces a jurisdictional hurdle at the outset of his case. What right does he have to appeal against an order discharging him from any further proceedings on the indictment? The Supreme Court Act (Ch No 37), s 4(1), reads:
“4.      Right of appeal from National Court
(1)      An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.”
“Judgment” is defined in s 1 of the Act to include an order etc and we have no doubt that the order made by the Chief Justice comes within that definition. The words “in accordance with this Act” are limiting words. The section does not give a general right of appeal against any judgment of the National Court but only a right of appeal in accordance with the Act. Later sections in the Act specifically provide for civil appeals, criminal appeals, frivolous and vexatious appeals, appeals against interlocutory judgments, etc.
The appellant particularly relies on s 22 which reads:
22.     Criminal appeals
A person convicted by the National Court may appeal to the Supreme Court:
(a)      against his conviction, on any ground that involves a question of law alone; and
(b)      against his conviction, on a question of mixed fact and law; and
(c)      with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal:
(i)       that involves a question of fact alone; or
(ii)      that appears to the Supreme Court to be a sufficient ground of appeal; and
(d)      with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
We are firmly of the view that “convicted” and “conviction” in this section mean a determination of guilt. Elsewhere it would be the return of a verdict of guilty by a jury but in Papua New Guinea it is the determination of guilt by a judge. Clearly this appellant was not convicted by the order of the Chief Justice. We consider that the appellant is not a person eligible to appeal under s 4 or s 22 of the Supreme Court Act and we propose to dismiss the appeal.
When a nolle prosequi is presented to a judge in the course of a trial, the accused may claim that his constitutional right to “a fair hearing within a reasonable time” (a right conferred by the Constitution, s 37(3)) is infringed and seek enforcement of that right under the Constitution, s 57, by an order that the trial proceed to acquittal or conviction. A decision on a right similar to that found in s 37(3) in the pre-Independence Human Rights Ordinance 1971 is R v Abia Tambule [1974] PNGLR 250.
If the nolle prosequi is accepted and the accused discharged from any further proceedings on the indictment, the accused is not without remedy. He can apply under the Constitution, s 155(2)(b), for a review of the trial judge’s order. Under that section the Supreme Court has an inherent power to review all judicial acts of the National Court and the scope of that power was defined in Avia Aihi v The State [1981] PNGLR 81. The s 37(3) right to a fair hearing within a reasonable time, already referred to, is also enforceable by the Supreme Court.
Appeal dismissed
Lawyer for the appellant: N Kirriwom, Public Solicitor.
Lawyer for the respondent: E Kariko, Acting Public Prosecutor.