N2530

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR NO. 402 OF 2004

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

JIMMY MOSTATA MALADINA
Accused/Applicant

OS NO. 178 OF 2004

BETWEEN:

JIMMY MOSTATA MALADINA
Plaintiff

AND:

Principal District Court
MAGISTRATE POSAIN POLOH
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani .J
2004: 7, 10 May

PRACTICE AND PROCEDURE – Criminal law - Application for stay of Criminal proceedings – 	application for Judicial Review pending – Reliance on same committal court depositions in Judicial Review proceedings.

CRIMINAL LAW – Public Prosecutors powers to prosecute – exercise and performance of Public Prosecutors functions – s. 176 (3) (a) (b); s. 177 of the Constitution; s. 4 of the Public Prosecutor (Office and Functions) Act 1977).

Cases cited:
 State v Jack Gole and Mepa Aure [1990] PNGLR 206
 Review pursuant to s. 155 (2) (13) of the Constitution – application by Bernard Narokobi Principal Legal Adviser [1991] PNGLR 239 (SC411).

Counsel:
H. Leahy for the Plaintiff/Applicant
J. Bokomi for the Defendants
M. Boni for the Public Prosecutor

RULING
(application for stay of criminal prosecution)
(application to set aside order for leave for judicial review)

10 May 2004

DAVANI .J:	In OS 178 of 2004, both counsel tendered consent orders for the courts endorsement. In CR 402 of 2004, the applicant moved for stay orders. I heard argument then adjourned to consider submissions on the both matters.

MOTIONS

The motions before me are;

1.	Notice of Motion filed by the Solicitor General’s office on 29.4.04 in OS 178 of 2004;
2.	Notice of Motion filed by Maladinas Lawyers on 3.5.04 in CR 178 of 2004.

These motions read;

-	Motion filed by the State on 29.4.04 in OS 178 of 2004

"1.	That the order for leave to apply for judicial review made by the Court on the 23rd April 2004 be set aside.

2.	That this proceedings be dismissed pursuant to Order 12 Rule 40 of the National Court Rules for;
(a)	Being frivolous and vexatious
(b)	Non-disclosure of a reasonable cause of action; and
(c)	Abuse of process.

3.	That costs of this application and the entire proceedings be granted to the Defendants.

4.	Abridgement of time.

5.	Any other or such further orders the Court sees fit."

-	Motion filed by the applicant on 3.5.04 in CR 402 of 2004 reads;

"1.	These proceedings be stayed pending the hearing and determination of a judicial review application filed by the Applicant/Defendant on 8 April 2004.

2.	Such further and other orders as the Court deems appropriate."

I deal with the both motions together as the issues raised in the both motions are in relation to the same subject matter i.e. the court depositions of the Waigani Committal Court which court on 31.3.04 committed the plaintiff to trial in the National Court.

I will refer to Jimmy Maladina as the applicant, the defendants in OS 178 of 2004 as the State and the State in CR 402 of 2004 as the Public Prosecutor.

The applicant in his application for judicial review seeks orders for stay or a direction pursuant to O. 16 R. 3A(a) and orders in the nature of certiorari quashing the Committal Court’s decision to commit him to trial. 

I am instructed by both lawyers for the applicant and the State that in relation to the motion filed by the Office of the Solicitor-General for and on behalf of the State, that parties had consented to the withdrawal of the first paragraph of the State’s motion, which was for a withdrawal of the application to set aside the orders for leave for judicial review granted to the applicant on 23.4.04. 

Counsel submitted the balance of the motion which relates to a dismissal of proceedings pursuant to O.12 R. 40 of the National Court Rules will be adjourned to the hearing of the applicants substantive application for judicial review.

I heard the application for stay only because of submissions from counsel that the application for judicial review is in relation to the findings by the Committal magistrate which are contained in committal court depositions which committal depositions are now before the criminal courts to be relied on by the State when prosecuting the applicant and are also before the civil courts to be relied on in the substantive application for judicial review.

In relation to the application for stay of the criminal proceedings, Ms Bonnie, of the Public Prosecutor’s office submitted that the office does not oppose deferral of the trial of criminal proceedings but does not consent to the stay application.

I have also heard from Mr Leahy for the applicant that this application for stay was brought before the presiding criminal judge for the May 2004 circuit but which was referred to this court. Mr Leahy informed the court that the presiding criminal judge thought it proper that the application be dealt with by the motions judge or in this case the judge hearing the application for consent orders in relation to the setting aside of the application for leave for judicial review. 

In relation to the criminal proceedings, I am advised that the applicant is committed to stand trial at the National Court for the following counts;

i)	One (1) count of making a document without authority contrary to s. 468 (a) of the Criminal Code Act.
ii)	One (1) count of extortion contrary to s. 390 (2) (b) of the Criminal Code Act.
iii)	One (1) count of conspiracy to defraud an amount of K2,650,000.00 contrary to s. 407(1) (b) of the Criminal Code Act.
iv)	Six (6) counts of misappropriation of property totalling approximately K2.65 million contrary to s. 383 A (1) (a) of the Criminal Code Act.
v)	Four (4) counts of conspiracy to defraud amounts over K400,000.00 contrary to s. 407 (1) (b) of the Criminal Code Act.
vi)	Four (4) counts of misappropriation of over K400,000.00 contrary to s. 383 (A) (1) (a) of the Criminal Code Act.

The application for judicial review is for orders in the nature of certiorari quashing all the findings referred to above. 

I have also heard that the criminal proceedings are still in the listing stages and that a trial date has not been allocated as yet. Having sat in the listings court the last 3 months (February to April 2004), I am aware that if a trial date is to be allocated for the trial of the criminal matter involving the applicant, that it will be on dates in either August or September 2004 or even after that.

The issue is whether the civil court can stay criminal proceedings. To answer that I must remind myself of the Public Prosecutor’s powers to Prosecute. The Public Prosecutor’s powers to prosecute are contained in s. 4 of the Public Prosecutor (Office and Functions) Act 1977 which act provides for the powers of the Public Prosecutor. Amongst others, this act states;

"4.	Functions, etc, of the Public Prosecutor.

(1)	The Public Prosecutor
...
(c)	shall control and exercise the prosecution function of the State; and
…
(g)	shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required, and …".

The prosecution of offences in the National Court and the exercise and performance of the prosecution function is placed in the Public Prosecutor by s. 177 of the Constitution. In the performance of such function, the Public Prosecutor is not subject to direction or control by any person or authority (see s. 176 (3) (a) of the Constitution) the only exception being s. 176 (3) (b) of the Constitution which is where the Head of State, on the advice of the NEC gives a direction to the Public Prosecutor. (see Review pursuant to s. 155(2) (B) of the Constitution Application by Bernard M. Narakobi Principal Legal Adviser [1991] PNGLR 239 (SC 411);

The power of the Public Prosecutor and State Prosecutors to lay indictment is an absolute one; it is for the Prosecutor to choose the charge and to decide what plea will be accepted. (See the State v Jack Gola and Mepa Aure [1990] PNGLR 206).

The Public Prosecutor must perform his functions as provided by the Constitution and related legislation.

In any event, both counsel have not submitted on the law as to whether or not the court can grant stay of criminal prosecution pending the hearing of the judicial review. However from what I heard, applicant’s counsel relies very much on the use of the same Committal Court depositions being used in the application for judicial review, as the ground for a stay.

As I have seen, the criminal case may be heard or tried in either August or September 2004. The application for judicial review can be listed at any time, for hearing, even before the criminal trial, which is most likely. Therefore there is no reason why the court should stay the hearing of the criminal proceedings or why the court should interfere with the Public Prosecutor’s powers to prosecute. In fact I have not heard any convincing reasons as to why the criminal proceedings should be stayed or deferred. It must follow its course.

The application for stay is refused. This court will not endorse the consent orders between the applicant and the State because the State may wish to reconsider its position in light of this ruling.

Formal orders

1.	That the draft consent orders handed up to the court by the lawyers for the plaintiff and the State in proceedings OS 178 of 2004 are not endorsed.

2.	That the application for stay in criminal proceedings CR 402 of 2004 filed by the plaintiff is refused.

3.	Each party shall pay their own costs.
______________________________________________________________________
Lawyer for the Plaintiff/Applicant			:	Maladinas Lawyers
Lawyer for the First and Second Defendants		:	Solicitor General’s Office
Lawyer for the State in CR 402 of 2004		:	Public Prosecutors Office