N474(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V.

AKUI SINGGI

Mount Hagen: Kidu CJ
6 June 1984, 8 June 1984

JUDGMENT

KIDU CJ:

APPLICATION TO FILE A NOLLE PROSEQUI:

After calling two of its six witnesses the State applied to file a nolle prosequi pursuant to section 527 of the Criminal Code.

Counsel for the accused objected to the granting of the application on the basis that the State has indicated that the remaining witnesses would not take the State case any further. He submits that the trial should continue.

I have different views of the meaning of section 527 of the Criminal Code from other judges. This section which overrides any court decisions based on the Common Law or opinion of judges is important. It has been interpreted in various ways but I have had no opportunity to give my views until today. Section 527 reads as follows:

"(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."

In my opinion Section 527 is very clear. It says the Public Prosecutor or a State Prosecutor (I know that Mr Salika is a gazetted State Prosecutor) may at any time inform that an indictment then pending in the Court will not be further proceeded with. There is no question in this case that an indictment is pending in the court because it has been presented by Mr Salika and we are in the process of holding a trial based upon it. Section 527(1) says quite succinctly that the State may file or present a nolle prosequi anytime. I cannot read it any other way.

The application made by Mr Salika is granted. He may file or present a nolle prosequi in this case. (Mr Salika, the State Prosecutor, undertook to file a nolle prosequi on Monday 11th June 1984. On that undertaking the accused was discharged.)

Counsel for the State: Mr G. Salika
Counsel for the Accused: Mr Bolata
(This judgment is now being appealed against.)