N3353

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1004 OF 2006

THE STATE

-v-

LUKE KOKON

Lae: Kirriwom, J
2007: 16 July

PRACTICE AND PROCEDURE – Declaration – Power to file – Public Prosecutor or State Prosecutor – Power of – Nolle Prosequi – Power to file – Observation on the duty of counsel to exercise care in choosing between two options

PRACTICE AND PROCEDURE – Pre-Trial hearing – Trial judge – Duty of – Pre-trial management of cases – Counsel – Duty of – Duty to assist the Court

PRACTICE AND PROCEDURE – Constitutional rights - Protection of rights – Public Solicitor – Role of – Legal aid and assistance – Duty to provide

Cases cited:

R v Abia Tambule [1974] PNGLR 250 
The State v Peter Painke [1976] PNGLR 210 
The State v Peter Painke (No.2) [1977] PNGLR 141 
The State v Leah Tununtu (1990) Unreported National Court N947 
The State v Jack Oroko Tepol (1999) Unreported National Court N1941

Counsel:

N. Miviri, for the State
M. Mwawesi, for the Accused

REASONS FOR DECISION

16 July, 2007

1.	KIRRIWOM, J: This matter was fixed for pre-trial conference before me on Thursday 5th July 2007 at the call-over conducted on Monday 2nd July 2007. The accused was appearing from custody at Buimo Prison where he was remanded upon committal on 12 July 2006. When the case was called, prosecution advised that the State was filing a declaration in this matter and requested for adjournment to Monday 9th July 2007 for paper work to be completed. The accused was further remanded in custody.

2.	The charge against the accused was one of stealing by false pretence a sum of K16, 000.00 from one Rhoda Luvi, contrary to section 404(1) CCA. This I shall refer to as Case Two. The allegation against the accused was that he received the sum of money in question from the victim Rhoda Luvi, in order to facilitate purchase of a reconditioned motor vehicle vis-à-vis a 15 seater Toyota Hiace bus from Japan. The accused was involved in a consultancy business under the name GK Consulting Service in cooperation and collaboration with one Gabriel Odima a Catholic priest in Minnesota USA. The accused dealt directly with clients who needed help with purchase of second-hand motor vehicles but could only pay 50% of the cost while the group that he represented through the consultancy company paid the other half by facilitating the vehicle’s delivery to PNG through an authorized motor dealer. The accused was alleged to have banked the money paid by the client to him into his personal account and applied the proceeds towards his own use.

3.	Rhoda Luvi is not the only disappointed client of the accused. The accused is now awaiting sentence after pleading guilty before Gabi J on 17th April 2007 to another very similar charge. That is the case of The State v Luke Kokon (Cr 1851 of 2005), which I refer to as Case One as being the first to be dealt with. My perusal of Case One file prior to the pre-trial conference showed that it was one of stealing a sum of K10,970.00 belonging to one Vicky Muekako contrary to section 372(1) – (A) of the Criminal Code. The circumstances of stealing alleged were much similar except the dates and victims were different. 

4.	At the time Case One went before Gabi J, both cases were pending disposition. Case One was committed for trial first on 2nd November 2005 but the allegation of theft arose after the alleged theft in Case Two. In Case One the alleged theft occurred in or about August 2005 while in Case Two the alleged theft took place in October 2004 but the complaint was made after Case One and the committal followed much later on 12th July 2006. It begs the question as to why both these cases could not go before Gabi, J, hence my intervention, as the judge manager of the court list in Lae, to ascertain what exactly had happened or was happening. I was prompted to take this course or action as I was keen to know why the accused who was initially on bail but was remanded in custody and was appearing from custody. I followed the progress of this case with interest since becoming aware of the accused’s bail situation because of my personal relationship with the accused. To my knowledge the accused was the Public Solicitor’s client from the time he was undergoing committal hearing in respect of Case One. Mrs. Raymond, the Solicitor-in-Charge of Public Solicitor’s Office in Lae and her officers I presume would have been well aware of my relationship to the accused. Perturbed by the accused’s subsequent change in his bail status and appearance before Gabi, J in April, 2007 I was compelled to read both files in order to ascertain his precise situation before pre-trialling his case.

5.	As the consequence, at the time of the pre-trial on Case Two, I was well informed of the two cases involving the accused and I must have caught both counsel unprepared. Counsel for the State advised that he was filing a declaration. While it was the Public Prosecutor’s discretion to exercise his constitutional function without control or direction from anyone, I enquired with Mr. Miviri to at least inform the Court in brief his reason for filing a declaration in the matter. Mr Miviri was of the view that the accused had already been dealt with in Case One for the same complaint and this prosecution amounted to double jeopardy. I thought Mr Miviri could be mistaken and enquired with Mr Mwawesi from Public Solicitor’s Office who was appearing for the accused. He was of no help but simply agreed with the State Counsel and accepted the course taken by the State although he was not the counsel having conduct of the accused’s file and not even familiar with the file. I could not accept the declaration for all practical reasons on the information provided that conflicted with my own understanding of both cases. To accept the declaration and end the prosecution based on the reasons that I knew were incorrect was tantamount, not only to denial of justice but also would amount to gross miscarriage of justice.

6.	Unable to rely on both counsel, I asked the accused to enlighten me on the two charges against him. What the accused told the court contradicted both counsel and confirmed my own understanding of the two cases. Speaking quite confidently in fluent English from the dock, the accused advised that the victims in the two charges were different and that both charges were not the same. Appreciating that the reason for the declaration sought to be filed by State Counsel was misconceived, mistaken or incorrect, I rejected the declaration sought to be filed by the prosecution in the exercise of my inherent power under section 155(4) to do justice in the circumstances of the case. In doing so, I directed both lawyers to go away and read their files again and adjourned the case for further advice.

7.	I decided that I must give my reasons for my ex tempore ruling on this interlocutory point as a number of important issues also emerge out of this same case scenario concerning the extent and the need for the prosecution to give reason for filing declaration, the importance of pre-trialling and the role of counsel at the pre-trial stage and the need for the judge to read the court file or committal depositions at or for purpose of pre-trial hearing. Effective pre-trialling has been subject of much discussion in various judges meetings often provoked by counsel’s failure to properly assist the court on cases before the judges’ concerned. This also raises serious questions of the standard of professionalism seen at the bar table from senior members of the profession, at the public as well as private bar. It is in this respect that I have considered it necessary to express my views in my reasons for my ruling as guidance for counsel. The issues that I wish to address here are:

The function of the Public Prosecutor and the role of the pre-trial judge. Does the pre-trial judge have discretion to accept or reject a declaration sought to be filed in respect of a charge against an accused?

1.	Can a judge read committal files prior to pre-trial of cases?

2.	The duty of Counsel to assist the Court.

3.	The role of the Public Solicitor and the Rights of Accused.

The Function of the Prosecutor and Role and Power of the Judge at Pre-Trial

8. Speedy and timely disposition of cases before the National Court is now vested with the Court and no longer remains Counsels’ responsibility. Since new case management strategies were formulated and fostered, the court has taken complete control of this role from the prosecution authority. Management of cases from the time of committal is the responsibility of the judge responsible for management of the trial list in the crime court. This responsibility would cover a wide ranging situation to ensure that cases are managed properly and fairly while availing rights to the accused including fast-tracking trials and avoiding delays and procrastinations.

9.	The procedure that the prosecution invokes to terminate prosecution of a case after committal such as by filing a declaration or presenting nolle prosequis has been discussed in various Supreme Court cases and individual judges also expressed some views on them. What has been apparent from these discussions is that a declaration is filed that brings the matter to finality and cannot be resurrected again whereas a nolle prosequi affords an accused only a temporary reprieve with the State having discretion to bring the prosecution again at a later time. Due to this distinction, two schools of thoughts emerged in practice amongst practitioners of the criminal law. One view is that where the prosecution intends to end the matter because evidence is lacking or there is insufficient evidence for prosecution to proceed with the charge, nolle prosequi is an appropriate course. However, where the prosecution chooses not to proceed with prosecution because the accused raises a strong defence of self-defence or plea of autre fois convict or acquit, a declaration would be an appropriate course. 

What is a declaration?

10. When the State files a declaration in a matter before the Court, that brings that case to finality and never to be resurrected again. 

11.	This is a power available to the Public Prosecutor under s.525(3) of the Criminal Code which provides:

"525. Procedure for indictment.

(1)	Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may—

(a)	reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b)	decline to lay a charge.

(2)	An indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor.

(3)	Where the Public Prosecutor or a State Prosecutor declines to lay a charge, he shall, as soon as practicable—

(a)	sign a declaration in duplicate to that effect; and

(b)	cause the original of the declaration to be filed in the National Court; and

(c)	deliver the duplicate of the declaration to the person committed—

(i)	if the person is in custody—by sending it by post or messenger to the person having custody of him; or

(ii)	if the person is not in custody—by delivering it to him personally or by sending it to him by post to his last-known address.

(4)	On receipt of a copy of a declaration under Subsection (3), any person having custody of the person named in it shall immediately release him from custody in relation to the charge to which the declaration relates.

(5)	This section does not apply to a committal for sentence under Section 421(4)."

12.	This procedure comes into play when upon thorough consideration and determination of the case the Public Prosecutor or State Prosecutor decides not to indict the accused and declines to charge him. In practice a document headed ‘Declaration’ is filed containing an undertaking by the Public Prosecutor or State Prosecutor that he is not proceeding with the charge against the accused.

13.	The flip-side of this procedure is known as nolle prosequis. 

What is nolle prosequis?

14. Nolle Prosequis is a procedure that the Public Prosecutor or State Prosecutor invokes in the exercise of his discretion by filing an undertaking in writing not to proceed with the charge against the accused. This document follows the presentation of indictment. This power of the Public Prosecutor is provided under section 527 of the Criminal Code. The section states:

"527. Nolle prosequis.

(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."

15.	This procedure is opted for by the State after indictment has been presented to not proceed further with the case (for some specific reason) such as insufficient evidence. The case remains alive but the prosecution is suspended until the situation changes enabling prosecution to continue.

Difference between Declaration and Nolle Prosequi

16. The main difference between these two procedures is that when a declaration is filed, that brings that matter to its finality and will not be resurrected again. Whereas in the case of nolle prosequis, the case maybe resurrected in the future if the prosecution considers that justice of case requires this to be so. Usually nolle prosequis is filed on the basis of unfairness to the accused where prosecution is unable to promptly discharge its duties to prosecute the accused due to unavailability of witnesses or insufficiency of evidence.

17.	In practice however most cases discontinued under nolle prosequis procedure have never been resurrected from my knowledge in recent times.

18.	The appropriateness or otherwise of filing a nolle prosequis was addressed in the pre-Independence Supreme Court case of R v Abia Tambule [1974] PNGLR 250 by Minogue CJ, Frost SPJ, Clarkson J. It was a case where after the prosecution had finished calling all its witnesses the prosecutor sought to file a nolle prosequis due to insufficiency of evidence to return a guilty verdict. This course was sought to avoid an acquittal as the Crown was contemplating recommencing prosecution once further evidence was obtained. Defence counsel moved for an acquittal on the basis of unfairness and right to a fair trial. The Supreme Court by majority decision ruled that the trial judge should have returned a verdict of not guilty.

19.	Chief Justice Frost in The State v Peter Painke (No.2) [1977] PNGLR 141 refused an indictment presented against the accused on the basis of abuse of process following defence objection because a similar charge arising out of the same facts and circumstances was presented against the accused about a year earlier (see The State v Peter Painke [1976] PNGLR 210) in a separate indictment containing a different charge but a nolle prosequis was filed after the State found itself unable to proceed with the case following numerous adjournments and the trial judge would not grant further adjournment. 

20.	There have since been numerous decisions of the National Court and few Supreme Court cases which cursorily visited this topic in passing and reasserting the salient distinction between the power of the Prosecutor to decline laying a charge (by filing a declaration) and to discontinue prosecution after presentation of an indictment (by filing nolle prosequis). See The State v Leah Tununtu (1990) Unreported National Court N947 (Brunton, AJ) State could not refute the accused’s version of facts raising self-defence. The case of The State v Jack Oroko Tepol (1999) Unreported National Court N1941 falls in the same category as The State v Leah Tununtu (supra) where the judge discusses the defence counsel’s responsibility in choosing between nolle prosequis and declaration).

21.	Returning to the case before me under normal circumstances, the Court has no power to question the Public Prosecutor on the exercise of his discretion on who to prosecute or decline to prosecute. In practice, this right of the Public Prosecutor is always respected so where a declaration is sought to be filed, no reasons are asked to be given as a matter of course. But it is considered good practice for prosecution to inform the Court briefly the reason for filing the declaration. However where nolle prosequis is filed, authorities do require that the Public Prosecutor or State Prosecutor must give reasons for choosing that course of action.

22.	One of the reasons for this mandatory requirement to give reasons is that at least the Court is aware and is satisfied of the justification for the discontinuance of the case. After all, now that case-flow management of cases coming before the Court fall squarely within the Court’s own domain, the Court must be satisfied that the procedure taken is proper or appropriate so that justice is done to the accused. As an independent umpire, the Court can sometimes correct mistakes made in choosing one of the two options where an inexperienced counsel, not quite familiar with the two processes, blindly concedes to one procedure without weighing the benefits to his affected client.

23.	In this case, I read both committal files for purpose of pre-trialling the case. I have made it a practice which had become a habit to abstain or refrain from reading the files beforehand until the plea has been taken and the accused pleaded guilty to the charge. In this instance I read both files prior to the pre-trial of these cases contrary to my own practice for purposes of managing the pre-trialling exercise that day. All the parties knew that I would not deal with the case itself because of my personal knowledge of the accused. Both counsel were aware of this fact at the outset and this is why I had no reservation about reading the file.

24.	On reflection I am reassured that it was justified that I did because neither of the two Counsel read his file well and obtained instructions from their respective clients and properly acquainted with the case to assist me. They had no idea what the case was about. This accused could have erroneously escaped prosecution and punishment for an offence that prosecution declined to lay charge based on a mistake of fact. These types of careless acts resulting in bad decisions ultimately reflect badly and poorly on the judicial process and the system thereby raising unwarranted questions of unfairness, bias and even corruption.

Can a Judge read Committal Depositions for purpose of pre-trial hearing?

25. With the judge now being in control of the Court list and experiences are showing that more and more trials are turning out to be plea matters or even resulting in discontinuance by filing of declaration or presentation of nolle prosequis, this is an opportune time for the judges to seriously agree to read the depositions. If a judge after having read the depositions, genuinely feels that his mind is troubled that he cannot hear the case in a trial without prejudice to the accused, he can ask to be excused and another judge can preside. However all fair minded judges know that every case is decided only on the evidence presented in the trial and not based on personal knowledge which is not before the Court.

26.	With counsel not coming to Court prepared and not having thoroughly read their files and not fully acquainted themselves with the cases and the issues involved in the cases pre-trialled, as is clearly illustrated by this case, I feel strongly that judges now must read the depositions and take an active role in pre-trial management of cases from committal till trial.

27.	Experiences have shown that lawyers are not seriously taking their responsibilities at pre-trial hearings. Many lawyers are manipulated by the accused that rather than being the legal experts and advisers to the accused, they submit to the whims and demands of the clients and opted to become mere mouth-pieces of their clients. Such being the case that some lawyers render themselves open to question as to the soundness of their professional judgment in cases coming before the Court as trial matters when they really should not be.

28.	Probably pre-trial hearing may need to be reviewed and redefined to include conducting substantive inquiry involving difficult accused persons so that pleas can be determined there and then and only genuine trials can proceed to listing and hearing.

29.	An advantage of judge managing the Court list reading the depositions or Court files is that the judiciary is saved from undue criticisms and allegations of impropriety for poorly handled cases at pre-trial process and terminating at that level without good cause which could have been corrected or remedied had the judge read the file beforehand rather than relied only on counsel.

Duty of Counsel to Assist Court

30. All lawyers admitted to practice are officers of the Court and are bound by Code of Ethics to assist and not mislead the Court. This is a duty of equal paramounce and importance as a lawyer’s duty to his client.

31.	What this means is that a lawyer appearing as Counsel must not knowingly mislead the Court. He has a duty to ensure that the Court is properly assisted in arriving at a just and fair solution to a matter before the Court in which he is engaged to act.

32.	In the case before me both Counsel failed in their duty as officers of the Court. If it was a case of the prosecuting Counsel alone making this silly mistake of not being properly appraised of both cases, one could probably let it go as an over-sight on his part, although inexcusable. But when the defence counsel too conceded to the view expressed by the prosecutor, only to be contradicted by the accused, it raises the question as to whether the defence counsel had read the file at all, or was he simply joining the band wagon for the sake of ending the matter regardless of the consequences or was deliberately agreeing to the course although knowing what the true story was.

Role of the Public Solicitor and Rights of Accused to Bail

33. The accused was at all times represented by the Public Solicitor. He was on bail following his committal on the first charge. However he was subsequently committed to stand trial on the second charge committed in the much similar circumstances and the Committal Court remanded him in custody.

34.	No investigation was carried out by the Public Solicitor to ascertain why the accused was remanded in custody and what had become of his bail in Case One. If both charges were closely examined, it would have revealed that the charge in Case Two was purportedly committed earlier in time than the offence for which he was earlier committed to trial. In other words the subsequent committal for trial was not for an offence allegedly committed by the accused while awaiting trial on the first charge. If this had been the misconception, then the accused had been unduly and unjustifiably denied bail and held in custody in excess of twelve months for an offence that bail was readily available and the Public Solicitor did nothing to correct this.

35.	As Constitutional office holder charged with the duly to provide legal aid and to defend persons charged with criminal offences, his responsibility goes beyond merely representing accused at the hearing of their cases on trials or pleas of guilty. Equally important also is ensuring that those who are entitled to bail are granted bail by the Court. Every effort must be made for this right to be accorded to the accused.

36.	In this case, this case is a classical illustration where the Public Solicitor, the guardian and protector of human rights and the rule of law, grossly failed in this duty to uphold the Constitution and accord this accused this basic right to bail. And this does not auger well for the Public Solicitor especially when the remand centre at Buimo Prison is over-crowded and holding remandees beyond its capacity. As an important partner and counterpart concerned about the due process and speedy disposition of cases pending before the Courts and alleviating over-crowding and easing the tensions in the prison, Public Solicitor must measure up to the public expectation of his Constitutional office.

37.	Apart from these issues, I am not in agreement with the prosecution that a declaration is justified in the pending charge. The case must be appropriately proceeded with and brought to its finality.

38.	Order accordingly.

_________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner