N1295

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 318 OF 1993

THE STATE

v

TOM WATINGA

Mendi: Sawong AJ
1994: 14th July, 9th December

Criminal Law - Practice & Procedure - laying of second information after previous information was ordered by the Court to be withdrawn laying of fresh information after 5 months had lapsed after previous information had been ordered to be withdrawn - whether abuse of process of Court -

The accused was committed to stand trial in a charge of dangerous driving causing grievous bodily harm. He had been previously charged with the same offence but after some 14 months the District Court ordered that the information be withdrawn and the accused discharged on the basis that the accused had not been afforded a fair hearing within a reasonable time as required by s. 37(3) of the Constitution.

Some five (5) months later, the accused was charged again with the same offence and he was then committed to stand trial in the National Court. 

The accused sought a discharge on the grounds (1) that in all the circumstances the laying of the subsequent information upon which he was committed to stand trial in the National Court, was an abuse of the process of the Court and (2) that his committal to the National Court was not in accordance with s. 94 B (2)(a) of the District Courts Act.

HELD:

(1) 	That the National Court of Justice, as a Superior Court of Record has inherent jurisdiction to take steps to prevent any abuse of Court process.

(2) 	The laying of the subsequent information containing the same charges founded on the same facts, as those on which the previous information was based and which information was previously ordered to be withdrawn by the Court, amounted to an abuse of the Court process.

(3) 	In all the circumstances the laying of the subsequent information upon which the accused was committed to stand trial was an 	abuse of the Court process and the accused should be discharged.

CASES CITED
The State -v- Peter Painke [1976] PNGLR 210
The State -v- Peter Painke [1977] PNGLR 141

R Auka, for the State.
S Ketan, for the accused.

DECISION

SAWONG AJ: In this case, the accused was committed to stand trial on a charge of dangerous driving causing grievous bodily harm. As a result of that committals, the District Court granted him bail of K100.00 and imposed several conditions. He appeared before me today in answer to that bail.

The State Prosecutor has not presented an indictment against the accused.

I am now to rule upon an application made by counsel for the accused that the accused be discharged. The application is made on two grounds.

Firstly that the information laid against him by the Police at the District Court on the 3rd of August, 1993, be struck out as being an abuse of the process.

The second ground is that his committal by the District Court in Mendi on the 31st of August, 1993 to stand trial in the National Court was in contravention of Section 94 B(2)(a) of the District Courts Act Chapter No. 40, and accordingly the committal should be struck out. 

The History

In order to understand these submissions, I propose to set out in chronological order the sequence of events which led to this application being made.

The accused was originally charged upon an information in the District Court at Mendi. That information was numbered CB 87/91. It was laid on the 9th December 1991, charging the accused with one count of dangerous driving causing grievous bodily harm, contrary to s. 328 (5) of the Criminal Code.

He first appeared before the District Court at Mendi on 10th December 1991. On that day the charge was read and put to him and he denied the charge. The matter was then adjourned to 30 December 1991 for a mention.

On 30th December 1991, the matter came up before the District Court. The accused appeared before the Court and the matter was further adjourned to 15 January 1992. No reasons are given for the adjournment.

The matter came up again before the District Court on 15 January 1992 and it was then adjourned to 29 January 1992 for a hearing date to be given. The accused also appeared before the Court.

On the 29th January 1992, the accused appeared and the matter was then fixed for hearing on 26 February 1992.

On 26th February 1992, the matter was further adjourned as the Prosecution had not yet received the election certificate from the Public Prosecutor to have the matter prosecuted summarily. It was then adjourned to 13 March 1992 for a call over. The accused also appeared.

On 13 March 1992, the Defendant did not appear and the matter was adjourned to 2 April 1992.

On 2nd April 1992, the accused appeared before the Court. It was then further adjourned to 26 April 1992 to set a date.

On 26th April 1992, the Accused appeared. As there was no lawyer from the Public Solicitor to represent the accused, the matter was adjourned to the next day. On 27 April 1992, the accused appeared with a lawyer from the Public Solicitor’s Office. As a result of an application for adjournment by his counsel, the matter was adjourned to 18 May 1992.

On 18 May 1992, both the prosecutor and the accused appeared but the accused’s counsel did not appear. The case was then adjourned to 27 July 1992.

The defendant did not appear before the Court on 27 July and the case was adjourned to 29 July. On the 29th July, the accused did not appear and the matter was then adjourned to 21st September 1992.

When the case came up on 21st September 1992, the Accused did not appear. A Bench Warrant was issued for his arrest.

The next time the case came up was on 23rd March 1993. On that day the accused appeared before the Court. It is not clear whether he appeared on his own or as a result of being arrested pursuant to the Warrant of Arrest. In any case, on that day, the Prosecutor applied to have the case further adjourned because their key witness was not available and prosecution needed time to have him brought in from Kainantu. The Defendant objected to the application for adjournment. He then applied under s. 37 of the Constitution to be discharged on the basis that he had not been brought to trial within a reasonable time. On 29th March 1992, the Court upheld the Defendant’s objection and ordered that the information be withdrawn and the defendant was discharged.

Some five months later on 3 August 1993, an information was again laid against the accused charging him with the same offence. He appeared before the District Court on Monday 3 August 1993. On that day he informed the learned Magistrate of what happened to his case in March. In any case, the prosecution applied to have the case transferred to Mendi District Court. The Court accordingly transferred the matter to Mendi District Court and it was then listed to come up before the District Court at Mendi on 17th August 1993.

On 17th August 1993, the matter came up before the District Court at Mendi. The accused appeared before the Court. The case was then adjourned to 31st August 1993 for a ruling.

On 31st August 1993, he was committed to stand trial at the National Court.

On the 29th of March, 1992, the District Court sitting at Mendi discharged the accused on the basis that there had been a breach of Section 37(3) of the Constitution and that the accused had not been afforded a fair hearing within a reasonable time. The District Court ordered the information to be withdrawn and discharged the accused.

The matter was then transferred from the Madang District Court to the District Court at Mendi. On the 31st of August, 1993, the accused was committed to stand trial in the National Court by the District Court Sitting at Mendi.

A perusal of the National Court file shows the following information. The National Court conducted circuit sittings in Mendi on several months. It is interesting to note that on each of those dates the accused did not answer his bail and his counsel did not appear. As a result in February, 1994, the Public Prosecutor quite properly applied for a bench warrant for the accused's arrest. The Court granted the application and a bench warrant was issued for the arrest of the accused.

Subsequently, the Police did not execute the bench warrant and it was only a few days ago that the State Prosecutor, Mr Auka was aware that the accused was working in Madang. Telephone conversations were then had and as a result the accused and his lawyer, Mr Ketan, appeared before me today.

I have set out in detail the facts surrounding the application as I am of the view that these facts are necessary in order to consider this application.

I now consider each of the grounds in support of this application. Firstly, Mr Ketan submits that the information laid against the accused on the 3 August, 1993 be struck out and the accused be discharged as he says that that information was an abuse of the court process. He submits that the first information was ordered to be withdrawn by the District Court in Mendi after a delay of 14 months since the date of the committal of the alleged offence. During that period, there had been eighteen or nineteen adjournments for the matter. As the chronological sequence of events show and which I have set out in the earlier part of this judgment, during that time the Prosecution did not file an election certificate for the matter to be tried summarily in the District Court. This election certificate was filed on the 23 March, 1993.

Even after the election certificate had been filed, the matter was adjourned several times. The matter first came up before the District Court at Mendi on 10 December, 1991. As I have said between that date till the election certificate was filed, there were fifteen adjournments. On the 23 of March, 1993, the accused applied to the court to be discharged pursuant to Section 37(3) of the Constitution. He submitted to the Court that fourteen months had elapsed since the offence was alleged to have been committed and that he had not been brought to trial within a reasonable time and that there were numerous unreasonable adjournments made at the request of the prosecution. The Court upheld his application and ordered that the information be withdrawn.

Since he was committed to stand trial on the 31st of August, 1994, there had been several National Court Circuits in Mendi during 1993 and early 1994. In any case, it appears that his lawyers wrote to both the Registry staff of the National Court at Waigani inquiring when this matter may be heard in Mendi. Unfortunately, there is no reply to those correspondences.

On the 23rd of February, 1994, the State Prosecutor applied for a bench warrant to be issued as the accused did not appear at that time. A bench warrant was issued by His Honour Mr Justice Los on that date.

Subsequently, his lawyer again wrote to the circuit judge in April, 1994 as to when the matter was to be heard. However, his lawyers were informed the matter was not listed for hearing by the National Court during the circuit in April, 1994.

As I have said earlier, in the July sittings of the National Court in Mendi, the accused did not appear at the commencement of the circuit but as a result of enquiries made by the police investigator he was informed that if he did not appear, he would be arrested pursuant to the warrant of arrest.

Mr Ketan submitted that the second information the Police laid against the accused was an abuse of the Court process. He submitted that a delay of fourteen months was occasioned in this case before the Prosecution elected to have the matter heard by a Grade 5 Magistrate. Furthermore, as the minutes of the proceedings that took place during that period show, the Prosecution filed the election only on the 23rd of March, 1993, the same date that the accused applied to the Court to have the information struck out as he had not been afforded a fair trial within a reasonable time pursuant to Section 37(3) of the Constitution. He submitted that the District Court at Mendi on that date considered the matter and ordered that information be withdrawn.

Subsequently, as the record indicates, the accused was again charged on the same offence on the same facts on the 3rd of August, 1993. He submitted that the laying of the second information against the accused is an abuse of the court process particularly so when on the face of the record the District Court had found that there had been a breach of Section 37(3) of the Constitution in that that accused had not been afforded a fair hearing within a reasonable time.

He submitted that accordingly the second information on which the committal proceedings had been purportedly completed and upon which the accused was purportedly committed to stand trial should be struck out.

Mr Ketan has referred me to the case of the State v Peter Painke [1976] PNGLR 210 and the State v Peter Painke [1977] PNGLR 141.

In State v Peter Painke [1976] PNGLR 210, the Court there was concerned with an application for adjournment. In that case the State applied for adjournment of the hearing of a charge of stealing as a servant on the ground that the State was not ready at that time to proceed to trial. The application for adjournment was refused. The State then sought to present a nolle prosequi in respect of the indictment before the Court. This application was objected to by counsel for the accused. The Court held in that case any further adjournment of the case would be to deny the accused his right "to be afforded a fair hearing within a reasonable time", under s. 37 (3) of the Constitution. The Court accepted the nolle prosequi. It held that presentation of nolle prosequi before the commencement of the trial, reserving as it did the right of the State to present another indictment was not an abuse of the process of the Court, "abuse of the process of the Court" meaning any use of the process or procedures of the Court for an improper purpose or in an improper way..

In that case, O’Leary, AJ at pp 212 - 213 said:

"There is no doubt that this Court, as a superior Court of record, has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has to "ensure that the pursuit of it's ordinary procedures by litigants does not lead to injustice....... maybe exercised at any stage of the proceedings where it appears to be demanded by the justice of the case." Tringali -v- Stewardson Stubbs & Collett Ltd. (2). See also Cox -v- Journeaux (no.2) (3), and Winfield, present law of abuse of Legal Procedure, pp 238-243.

"Abuse of the process of the Court is an expression used to describe any use of process or procedures of the Court for an improper purpose or in an improper way. It encompasses a wide range of situations".

Subsequently, in the State v Peter Painke [1977] PNGLR 141, the State presented a new indictment against the accused. The new indictment charged the accused with new offence of fraudulent accounting. After the new indictment was presented, the accused moved the Court to be discharged on two grounds, namely (1) that in all the circumstances the presentment of the new indictment was an abuse of the process of the Court and secondly, that the accused had not been afforded a fair trial within a reasonable time as required by s. 37 3 of the Constitution.

In that case the Court upheld the application on the second ground taking into account the time that had lapsed since the last hearing and the time that had lapsed since the date of committal which it viewed was a very long delay having regard to the standard adopted under Section 37(4) of the Constitution of trials being heard within four months of a committal.

In that case in regard to issue of abuse of process, Frost, CJ said at p. 144:

"It is well established that a superior Court has the power inherent in its jurisdiction to prevent any abuse of its process, and to control its own procedure. The rule was applied by the pre Independence Supreme Court of Papua New Guinea, in Reg v Abia Tambule & Others [1974] PNGLR 250. O’Leary, AJ had no doubt this Court, as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process (The State v Peter Painke [1976] PNGLR 210) and I agree with that opinion.

.... The extent of the Courts powers at common law on any application of this nature was laid down in Connelly v DPP. It was held that the Court has a discretion (outside the limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay, a subsequent indictment contrary to the charges founded on the same facts as those on which a previous indictment is based or forming or being part of a series of offences based on the one incident. In my opinion that rule is fully applicable in Papua New Guinea."

I agree with the opinion expressed by Frost, CJ, as he then was. The Painke cases dealt with the presentment of an indictment. In the present case, the State has not presented an indictment against the accused. The present case can be distinguished with that of Painke’s in several respects. Firstly, the motion is in relation to an information. Secondly the information contains the same charge with the same facts as those on which a previous was based on and that the previous information had been ordered by the District Court to be withdrawn.

Although, Painke’s case dealt with the issue of abuse of Court process, on the presentation of subsequent indictment, I am of the view that the principles set out in that case are equally applicable to charge contained in a subsequent information. In my view, there is no question that the Court has an inherent jurisdiction to strike out a subsequent information contrary to the charge or charges founded on the same facts as those on which a previous information is based or forming or being part of a series of offences based on the one information. There is also no question that this Court has the jurisdiction to prevent any abuse of its process, where a litigant uses the Court process in an improper way.

In the present case, the second information charging the accused is the same charge and is based on the same facts as the previous charge. That is not the ground on which this Court could release or find that this was an abuse of the process of the Court. However, I must look at, and take into account all of the circumstances in this particular case, to see whether the subsequent information was an abuse of the Court process.

I am clearly of the view that the second information charging the accused with the same offence, with the same set of facts on the 3rd of August, 1993, some five months after the previous charge was ordered to be withdrawn were clearly an abuse of the Court process. I have set out in detail the circumstances or the factual circumstances surrounding this particular matter leading up to the District Court in Mendi ordering that the first information be withdrawn and subsequent events. It clearly demonstrates the very long delay that was occasioned. Even after the matter was ordered to be withdrawn, the Prosecution do anything immediately thereafter. Instead they chose to wait for some 5 months to lapse to do this again. The whole circumstance of the case, clearly demonstrate to me that this was clearly an abuse of the Court process.

Accordingly, I would uphold the application to have the second information struck out. In view of my conclusion, I do not consider it necessary to deal with the second leg of Mr Ketan’s submission.

My order is that the committal proceedings which is based on the information dated 3rd August, 1993 be struck out and the accused be discharged forthwith.

Lawyer for the applicant: Blake Dawson Waldron.
Lawyer for the State: Public Prosecutor.