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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO 937 OF 2006
WILSON KAMIT
Informant
V
AUS-PNG RESEARCH & RESOURCES IMPEX LIMITED
Defendant
Waigani: Cannings J
2007: 19, 23, 26 January,2 February
RULING ON MOTION
OFFENCES – prosecutions – appropriate authority to institute prosecutions – whether Bank of Papua New Guinea can prosecute offences under Central Banking (Foreign Exchange and Gold) Regulation – whether Governor of Central Bank can prosecute offences under Central Banking (Foreign Exchange and Gold) Regulation – Central Banking Act 2000, Section 101 (prosecutions).
CONSTITUTIONAL LAW – Public Prosecutor – supervision of prosecution function of the State – whether leave of Public Prosecutor required for institution of criminal prosecution by the Central Bank – Constitution, Section 177 (functions of the Public Prosecutor and the Public Solicitor) – Public Prosecutor (Office and Functions) Act.
CRIMINAL LAW – PRACTICE AND PROCEDURE – whether prosecution of offences in National Court under Central Banking (Foreign Exchange and Gold) Regulation must be preceded by committal proceedings – whether prosecution must be by indictment – whether leave of the National Court required under Section 616(1) (information by leave of the court by private prosecutors) of the Criminal Code – whether prosecution required to be instituted by originating summons per Criminal Practice Rules, Order 3, Rules 4 to 8.
CRIMINAL LAW – PRACTICE AND PROCEDURE – requirement to identify informant and specify authority to lay charges – requirement for originating process to specify elements of offence with particularity.
CONSTITUTIONAL LAW – basic rights – protection against harsh and oppressive acts – whether failure of Central Bank to grant authority to export gold pending court proceedings is harsh and oppressive or otherwise contrary to Constitution, Section 41 (proscribed acts).
ADMINISTRATIVE LAW – whether a person seeking to challenge exercise of discretion by governmental body required to commence proceedings under Order 16, National Court Rules – whether appropriate for National Court to make orders under Constitution, Section 57 (enforcement of guaranteed rights and freedoms) or 155(4)(the national judicial system).
The Governor of the Bank of Papua New Guinea (the Central Bank) instituted a criminal prosecution against the defendant company, alleging breaches of the Central Banking (Foreign Exchange and Gold) Regulation. The Governor instituted the prosecution by information, in the National Court. The defendant asked the court to dismiss the prosecution as an abuse of process. While that issue was pending the Central Bank notified the defendant it would not grant its authority to trade in gold pending the outcome of the court proceedings. The defendant’s motion raised issues as to: the correct authority to institute prosecutions for breaches of the Central Banking (Foreign Exchange and Gold) Regulation; the originating process to be used; the role of the Public Prosecutor; the required procedure, particularly whether committal proceedings, indictments and/or leave of the National Court are necessary; and whether the originating process was defective due to failure to specify the informant and the elements of offences with sufficient particularity. The defendant also sought orders that the Central Bank be required to restore its authority to trade in and export gold.
Held:
(1) The Governor of the Central Bank can prosecute offences under the Central Banking (Foreign Exchange and Gold) Regulation.
(2) Offences under Sections 6 and 33 of the Regulation are indictable offences and must be prosecuted on indictment, following committal proceedings.
(3) The originating process for any prosecution by a person or authority other than the police or the Public Prosecutor should identify the informant and their authority to initiate the prosecution.
(4) The charge for any criminal offence must be drafted in terms of the elements of the offence prescribed by the law creating the offence.
(5) In the present case, the information was procedurally defective as it was not prosecuted by indictment or preceded by committal proceedings in the District Court.
(6) The charges were substantively defective as they were not drafted in the language of the law creating the offences.
(7) The defects were incapable of being cured by amendment and the information was struck out as an abuse of process.
(8) Section 41 of the Constitution (proscribed acts) protects corporate legal persons as well as individuals against harsh and oppressive actions.
(9) As the information was being dismissed and the Central Bank had refused to grant authority for the defendant to trade in gold pending the outcome of these proceedings, it would be harsh and oppressive for the Bank to maintain that position. Therefore an order was crafted under Section 155(4) of the Constitution that will do justice in the circumstances of this particular case, viz the Bank was ordered to renew the defendant’s authority to trade subject to its right to revoke that authority or vary the conditions attached to it with the leave of the court.
Cases cited:
Arthur Smedley v The State [1980] PNGLR 379
Attorney-General Michael Gene, The State and Internal Revenue Commissioner, Mr David Sode v Dr Pirouz Hamidian-Rad (1999) SC630
BPNG v Eddie Orubu Mai, OS No 224 of 2004, 12.05.05 unreported
Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PNGLR 75
Felix Bakani and OPIC v Rodney Daipo (2001) SC659
Gregory Kasen v The State (2001) N2133
Jacob Hendreich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea [1979] PNGLR 1
Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea (No 2) [1979] PNGLR 247
John Worofang v Patrick Wallace [1984] PNGLR 144
Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported
Michael Winmarang v David Ericho and The State (2006) N3040
National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim SCRA No 13 of 1997, 29.10.97, unreported
Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00, unreported
SCR No 34 of 2005; Application by Herman Joseph Leahy, 15.12.06, unreported
SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329
SCR No 5 of 1987; Application by Principal Legal Adviser re Central Banking (Foreign Exchange and Gold) Regulation [1987] PNGLR 433
The State v Esorom Burege (No 1) [1992] PNGLR 481
The State v Francis Kumo Gene [1991] PNGLR 33
The State v James Yali (2006) N2989
The State v Lindsay Kivia [1988-89] PNGLR 256
The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43
The State v Saul Ogerem (2004) N2780
Wilson Kamit v Michael Dowse Collins MP No 46 of 2002, 21.02.02, unreported
NOTICE OF MOTION
This is a ruling on a motion to dismiss a prosecution and to order that the defendant’s authority to trade be restored.
Counsel:
I Shepherd and J Parina, for the informant
E Manu, for the defendant
2 February, 2007
1. CANNINGS J: Introduction: This case is about alleged unauthorised dealings in foreign currency and gold. Those activities are subject to the regulatory authority of the Central Bank (BPNG) under a law called the Central Banking (Foreign Exchange and Gold) Regulation. The Governor of the Central Bank, Wilson Kamit, has charged a company with offences under the Regulation by laying an ‘information’ against it. Mr Kamit is the ‘informant’. The company, Aus-PNG Research & Resources Impex Ltd, is the ‘defendant’. Since laying the information the informant has told the defendant that the Central Bank will not renew the defendant’s authority to trade in gold until the court case against it (prosecution of the information) is resolved.
2. The defendant has responded by filing a notice of motion, which raises two major issues:
3. The defendant argues that the information is defective as it fails to specify the elements of the offence charged and the informant failed to follow proper procedures. It argues that the Bank should be ordered to restore its authority to trade in gold as the Bank’s treatment of it has been harsh and oppressive.
BACKGROUND
4. The defendant company has been buying and exporting gold for a number of years. It is incorporated in Australia and operates out of Lae, Morobe Province. The Central Bank has been granting it authority to trade on an annual basis under the Central Banking (Foreign Exchange and Gold) Regulation, also called the Foreign Exchange and Gold Regulation or ‘the Regulation’.
5. In February 2006, the Bank granted the defendant a gold export authority or licence, subject to conditions, until the end of 2006. The defendant subsequently entered into a joint-venture with two Australian companies, Bestway Projects Pty Ltd (Bestway) and Segel International Pty Ltd (Segel) under which Segel paid AUD$350,000.00 to the defendant to purchase gold in PNG.
6. In September 2006, Segel complained to the Bank about the defendant. Segel alleged that the defendant bought AUD$350,000.00 worth of gold but sold it to another company in Perth, Western Australia; so the defendant did not deal with the proceeds in accordance with the joint-venture agreement nor did it repay Segel’s money.
7. On 2 October 2006, the Bank refused an application by the defendant to export a shipment of gold due to the complaint from Segel. In response, on 13 October 2006, the defendant commenced proceedings in the National Court, in OS No 731 of 2006, seeking an order that the Bank’s decision to suspend its export authority be annulled. Those proceedings were withdrawn by consent on 10 November 2006.
8. On 6 December 2006, the Bank refused another application by the defendant to export gold.
9. On 8 December 2006, the Bank notified the defendant it would not process any more applications due to extensive breaches of the Central Banking (Foreign Exchange and Gold) Regulation. On the same day, 8 December 2006, the Public Prosecutor consented to prosecution of the defendant by signing an instrument in the following terms:
CONSTITUTION
Public Prosecutor (Office and Functions) Act, Chapter No. 338
CONSENT OF THE PUBLIC PROSECUTOR
I, CHRONOX MANEK, Esquire, Public Prosecutor of the Independent State of Papua New Guinea, by virtue of the powers vested in me by Section 176 of the Constitution and Section 4(1)(g) of the Public Prosecutor (Office and Functions) Act Chapter No 338, and all other powers enabling, hereby authorize the GOVERNOR OF THE BANK OF PAPUA NEW GUINEA to commence prosecution against AUS-PNG RESEARCH & RESOURCES IMPEX LIMITED (APRRIL)
Pursuant to Section 101(1) of the Central Banking Act 2000
DATED the 8th day of December 2006
CHRONOX MANEK
PUBLIC PROSECUTOR
10. On 11 December 2006, the Governor of the Central Bank initiated a criminal prosecution of the defendant by filing two documents: an information and a statement of facts in support of the information. That information is the legal process that the defendant seeks now to strike out.
11. The information states:
The prosecutor informs the court by leave that the defendant, did:
deal in foreign currency pursuant to a joint venture agreement dated 8 April 2006; and
buy and export gold from Papua New Guinea,
without proper authorisation from the Central Bank of Papua New Guinea. These are in breach of Sections 6(1) and 32 of the Central Banking (Foreign Exchange and Gold) Regulation.
12. The information was signed by Mr Ian R Shepherd.
13. The statement of facts is four pages in length. It gives details of the joint venture agreement, the alleged dealings in foreign currency, the buying and export of gold and sets out the argument that the defendant acted without authority.
14. During the week after filing the information officials from the Bank and the defendant met to discuss the matter. The Bank proposed an out of court settlement, to no avail.
15. On 18 and 20 December 2006, the information was mentioned before Mogish J in the National Court at Waigani. His Honour drew the parties’ attention to his judgment in BPNG v Eddie Orubu Mai, OS No 224 of 2004, 12.05.05 unreported, which concerned procedures for prosecuting offences under the Banks and Financial Institutions Act 2000. The matter was adjourned generally.
16. On 21 December 2006, the defendant filed a notice of motion seeking to dismiss the information. That motion, subsequently amended, is the genesis of the motion now before the court. At that stage the defendant was represented by Parkil Lawyers.
17. On 28 and 29 December 2006, the Bank wrote to the defendant, first notifying it that the restriction imposed on trading was lifted; then reminding it that its gold export licence would expire on 31 December 2006.
18. On 31 December 2006, the defendant’s authority to trade lapsed. From 1 January 2007 onwards, it required a new authority if it were to trade in gold lawfully.
19. On 8 January 2007, the Bank notified the defendant that a decision on whether to renew the authority would depend on the outcome of the current court proceedings.
20. On 15 January 2007, the defendant changed lawyers from Parkil to Manu Lawyers, which on 16 January 2007, filed an amended notice of motion in the following terms:
21. I commenced hearing that motion on 19 January 2007. In the process I granted leave to the defendant to amend paragraph 2 so that the provision of the Criminal Code referred to became Section 616.
22. The meat of the motion was in paragraphs 2, 3 and 4. Paragraph 2 raised the first major issue: abuse of process. Paragraphs 3 and 4 raised the issue of whether the Bank should be ordered to restore the defendant’s authority to trade in gold.
23. At the end of that hearing I asked Mr Manu, for the defendant, and Mr Parina, for the informant, to compile a chronology of events. They did that and presented their chronologies on the second hearing day, 23 January 2007. The facts were largely undisputed. At the end of that hearing I directed the parties to make submissions on a number of issues, some of which had not been raised before.
24. A third hearing was held on 26 January 2007 to address those issues. On that occasion Mr Shepherd appeared for the first time with Mr Parina, to represent the informant.
THE LAW
25. The defendant’s motion requires consideration of a number of different laws:
Constitution: particularly Sections 34, 37(1) and (2), 41, 57, 155(4), 176 and 177
26. Section 34 (application of Division 3) deals with application of the rights conferred by Division III.3 (basic rights) of the Constitution. Division III.3 consists of Sections 32 to 58. It confers Basic Rights that fall into 18 categories:
27. Section 41 confers a right to freedom from harsh, oppressive or other proscribed acts. The defendant claims that the Bank has breached that right. However, does a company have basic rights? Section 34 is relevant to that issue. It states:
Subject to this Constitution, each provision of this Division applies, as far as may be—
as between individuals as well as between governmental bodies and individuals; and
to and in relation to corporations and associations (other than governmental bodies) in the same way as it applies to and in relation to individuals,
except where, or to the extent that, the contrary intention appears in this Constitution.
28. Section 41 states:
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
29. Section 37 (protection of the law) confers a number of rights on persons charged with offences. Sections 37(1) and (2) are relevant to the present case:
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
30. Section 57 (enforcement of guaranteed rights and freedoms) was not referred to by the parties. But it is relevant whenever a question of enforcement of Basic Rights arises, particularly Sections 57(1), (3) and (5), which state:
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. ...
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force). ...
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement. ...
31. Section 155 (the national judicial system) states which courts comprise the National Judicial System and confers various jurisdiction and powers on them. Section 155(4) is relied on by the defendant to argue that I should order the Bank to restore its authority to trade in gold. It states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
32. Sections 176 (establishment of offices) and 177 (functions of the Public Prosecutor and the Public Solicitor) provide for appointment of the Public Prosecutor (and the Public Solicitor) and the powers, functions, duties and responsibilities of that office.
33. Section 176 states:
(1) Offices of Public Prosecutor and Public Solicitor are hereby established.
(2) The Public Prosecutor and the Public Solicitor shall be appointed by the Judicial and Legal Services Commission.
(3) Subject to this Constitution—
(a) in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but
(b) nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization).
(4) The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with the Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea.
(5) Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.
Section 177 – disregarding the provisions dealing only with the Public Solicitor – states:
(1) The functions of the Public Prosecutor are—
(a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and
(b) to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office. ...
(6) An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Prosecutor or the Public Solicitor.
Central Banking Act 2000: particularly Section 101
34. This Act repealed and replaced the Central Banking Act Chapter No 138, which established the Bank of Papua New Guinea as the country’s Central Bank.
35. References in the 2000 Act to "this Act" include any regulations – such as the Central Banking (Foreign Exchange and Gold) Regulation – made under the 2000 Act or the repealed Act (see Section 3, definitions of "this Act" and "the regulations").
36. The Bank is a corporation (Section 4). Its objectives include promoting an efficient national and international payments system for the advantage of the People of Papua New Guinea (Section 7). Its functions include managing the country’s gold, foreign exchange and other international reserves (Section 8). It has all the powers of a natural person to do all things necessary or convenient to be done for achievement of its objectives and functions (Section 9).
37. The Governor of the Central Bank is appointed for a period of five to seven years. Suspension or dismissal is subject to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (Section 15). Removal from office is subject to the procedures prescribed by Section 23 of the Central Banking Act. The Governor is not subject to the direction or control of any person except as provided for under the Act (Section 15). The Governor’s duties include ensuring that the Bank carries out the functions imposed on it, managing the Bank and directing its affairs. The Governor has authority to exercise the Central Bank’s powers for the purposes of achieving the objectives and functions of the Act and implementing the policies of the Central Bank (Section 16).
38. The Act establishes the Board of the Bank, which consists of nine (9) to 11 members (Sections 25 and 27). The Board is responsible for determining the policies of the Central Bank, other than formulation and implementation of monetary policy and regulation of the financial system, which are the Governor’s responsibility (Section 26).
39. Part X of the Act (foreign exchange and international reserves) gives the Bank power to regulate gold transactions. It consists of Sections 77 to 82. Section 79 allows the Bank to import, export, buy, sell, hold or otherwise deal in gold. Section 80 provides for the making of regulations under Section 97 relating to the control of foreign exchange and gold.
40. Section 97 (regulations) is the general empowering provision for making regulations. It states:
The Head of State, acting on advice, may make regulations which—
(a) are not inconsistent with this Act; and
(b) prescribe all matters that by this Act are—
(i) required or permitted to be prescribed; or
(ii) necessary or convenient to be prescribed for carrying out or giving effect to this Act; and
(c) provide that an offence may be prosecuted either summarily or on indictment; and
(d) provide penalties for offences against the regulation of fines, not exceeding K500,000.00 or an amount equal to 25% of the total value of the funds or property involved whichever is the greater amount or of imprisonment for a term not exceeding five years, or both such fine and imprisonment; and
(e) empower a court to order the forfeiture of any Papua New Guinea currency, foreign currency, securities, goods or gold in respect of which an offence has been committed against the regulations; and
(f) empower a court to order the sale to, or the vesting in, the Central Bank of foreign currency, gold or property retained or obtained in contravention of the regulations.
41. Part XI of the Act (miscellaneous), consisting of Sections 85 to 102, contains a number of provisions dealing with offences and prosecutions. Contravention of any provision of the Act or any regulations or directions made under it is an offence. If no specific penalty is provided, the maximum penalty is a fine of K500,000.00, five years imprisonment or both (Section 100).
42. Section 101 (prosecutions) gives the Bank power to initiate its own prosecutions. It states:
(1) The Central Bank may—
(a) prosecute any offence by a person against this Act, by summary prosecution or by prosecution as an indictable offence as the case may be; and
(b) commence a civil action against a person for any form of civil relief which is available in respect to the matters constituting the offence.
(2) A prosecution or action commenced by the Central Bank in relation to an offence committed under this Act shall be heard by the National Court.
(3) Notwithstanding Section 524 of the Criminal Code (Chapter 262), following a committal for an offence under this Act the Central Bank is authorized to present an indictment against the accused.
(4) A copy of any indictment under Subsection (3) shall be served on the Public Prosecutor and the Public Prosecutor may withdraw the indictment within 14 days of service of the indictment on him.
(5) In any prosecution or action brought under this Act by the Central Bank or against the Central Bank, the Court may award costs against any party or claimant other than the Central Bank, which costs may be recovered by the Central Bank as a debt to the Central Bank.
(6) In any action brought by the Central Bank under this Act, the Court may, on application by the Central Bank whether as interlocutory or final relief, order a person to cease any activity until further order.
(7) Any order made by the Court under Subsection (6) shall be made on condition that the Central Bank is not responsible for any loss or income or profit which may be incurred by the enterprise as a consequence of that order.
(8) Any fine, penalty or default fine or penalty to be paid by a person as a result of an action or prosecution by the Central Bank shall be paid to the Central Bank and, in addition to any other remedy, may be recovered by the Central Bank as a debt to the Central Bank.
43. Section 105 (saving of subsidiary legislation) deems regulations made under the repealed Central Banking Act Chapter 138 to be regulations made under the 2000 Act. They remain in full force and effect except if inconsistent with the 2000 Act. That includes the Central Banking (Foreign Exchange and Gold) Regulation.
Central Banking (Foreign Exchange and Gold) Regulation Chapter 138: particularly Sections 2, 6, 28, 32 and 33
44. The validity of the Regulation was affirmed by the Supreme Court (Kidu CJ, Kapi DCJ and Amet J) in SCR No 5 of 1987; Application by Principal Legal Adviser re Central Banking (Foreign Exchange and Gold) Regulation [1987] PNGLR 433.
45. Section 2 (authorised dealers) states:
(1) The Central Bank may, by notice in the National Gazette, appoint a person to be—
(a) an authorized dealer in foreign exchange for the purposes of any provision of Part II. or in respect of any class of transactions subject to any such provision; or
(b) an authorized dealer in gold for the purposes of any provision of Part III. or in respect of any class of transactions subject to any such provision.
(2) A person appointed under Subsection (1) must carry out his duties as an authorized dealer in accordance with, and shall comply with, any instructions, directions and requirements made by the Central Bank.
46. Section 6 (dealings in foreign currency) is one of the two provisions under which the defendant is charged. It creates a number of offences dealing with unauthorised foreign currency transactions. It states:
(1) Subject to Subsection (3), a person other than the Central Bank who, except with the authority of the Central Bank—
(a) buys or borrows any foreign currency from a person other than the Bank; or
(b) sells or lends any foreign currency to a person other than the Bank; or
(c) exchanges any foreign currency with a person other than the Bank,
is guilty of an offence.
(2) Subject to Subsection (3), a person other than the Central Bank, who, except with the authority of the Bank, is a party to a transaction having the effect of a transaction prohibited by Subsection (1) is guilty of an offence.
(3) The Central Bank may give authority to an authorized dealer to do any thing or be a party to any transaction referred to in Subsection (1) or (2) and those subsections do not apply to a thing done or transaction entered into in accordance with the authority.
(4) A person permitted to buy, borrow, sell, lend or exchange foreign currency under this section who enters into a transaction that provides for the conversion of Papua New Guinea currency into foreign currency, or vice versa, at a rate of exchange other than any rate of exchange fixed or authorized by the Central Bank and in force for the time being is guilty of an offence.
(5) Where any foreign currency is made available to a person by the Central Bank or by an authorized dealer—
(a) for use for a specified purpose; or
(b) subject to conditions,
he must not use the foreign currency otherwise than for that purpose, or fail or refuse to comply with the conditions, as the case may be.
47. Section 28 (authorities by Central Bank and compliance with undertakings) allows the Bank to make any authority it has granted to deal in foreign exchange or gold subject to conditions. The Bank may also revoke or vary an authority. Section 28 states:
(1) Subject to any directions of the Head of State, acting on advice, the grant of any authority by the Central Bank under this Regulation is in the absolute discretion of the Bank, and the authority may be granted—
(a) unconditionally; or
(b) subject to such conditions as the Bank thinks necessary for the purposes to which this Regulation is directed.
(2) Where the authority of the Central Bank is granted subject to conditions, a person who does not comply with all such conditions that are applicable to him is guilty of an offence.
(3) Where a person gives an undertaking in an application for authority of the Central Bank in respect of any matter the subject of this Regulation and the authority of the Bank is given in whole or in part, if he does not comply with the terms of any relevant undertaking he is guilty of an offence.
(4) Subject to any directions of the Head of State, acting on advice, the Central Bank may revoke or vary any authority granted by it under this Regulation.
48. Section 32 (evasion of this regulation) is the other provision under which the defendant is charged. It states:
A person who makes or enters into any arrangement, whether oral or in writing, for the purpose of, or that has the effect of, directly or indirectly defeating, evading or avoiding, or preventing the operation of, this Regulation in any respect, is guilty of an offence.
49. Section 33 (penalties) provides the penalties for offences under the Regulation. It states:
(1) A person who commits an offence against or fails or refuses to comply with any of the provisions of this Regulation may be prosecuted either summarily or on indictment.
(2) A person who commits an offence against, or fails or refuses to comply with, any of the provisions of this Regulation, is liable on conviction to a fine not exceeding—
(a) K100,000.00; or
(b) an amount equal to 25% of the total value of the funds or property involved,
whichever is the greater amount, or imprisonment for a term not exceeding five years.
(3) In addition to any other punishment, a Court may, if it thinks fit, order the forfeiture of any gold, Papua New Guinea currency, foreign currency, securities or goods in respect of which an offence has been committed against the regulations made for the purposes of this section.
(4) In addition to any other punishment a Court, may if it thinks fit, order the sale to or the vesting in, the Central bank of foreign currency, gold or property retained or obtained in contravention of this Regulation.
Criminal Code Chapter 262: particularly Sections 524(1), 525(1), 526(1) and 616 to 618
50. Sections 524(1), 525(1) and 526(1) provide for presentation of indictments to the National Court.51. Section 524(1) (procedure: preliminary) states:
No indictment may be presented in the National Court except in accordance with Sections 525 and 526.
52. Section 525(1) (procedure for indictment) states:
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.
53. Section 526(1) (indictment without committal) allows the Public Prosecutor to present a so-called ex officio indictment. It states:
Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may—
(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and
(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.
54. Division VIII.11 (information by private persons for indictable offences: ex officio indictments) consists of Sections 616 to 618A. These provisions allow prosecutions to be commenced other than by the Public Prosecutor, often called ‘private prosecutions’.
54. The defendant relies on Section 616 (information by leave of the court by private prosecutors) to argue that the information laid against it is defective.
55. Section 616 states:
(1) Any person may by leave of the National Court present any information against any other person for an indictable offence not punishable with death that is alleged to have been committed by the other person.
(2) An information presented under Subsection (1) shall be—
(a) signed by the person on whose application the leave is granted or some other person appointed by the National Court for the purpose; and
(b) filed in the National Court.
(3) The person who signs the information is called the prosecutor.
(4) The information is to be intituled "The Independent State of Papua New Guinea on the prosecution of the prosecutor (naming him) against the accused person (naming him)", and must state that the prosecutor informs the National Court by leave of the Court.
(5) Except as otherwise expressly provided, the information and the proceedings on it are subject to the same rules and incidents as an indictment presented by the Public Prosecutor and the proceedings on such an indictment as set out in the preceding provisions of this Code.
56. Section 617 (security to be given by prosecutor for costs of defence) states:
Before an information under this Division is presented, the prosecutor shall give security in such amount and in such manner as the National Court directs when it gives leave to present the information that he will—
(a) prosecute the information without delay; and
(b) pay to the accused person such costs incurred by him in respect of his defence to the charge as the Court orders him to pay.
57. Section 618 (costs of defence) states:
Subject to Section 618A, if in a case to which this Division applies—
(a) the Public Prosecutor informs the National Court that he will not further proceed on the information; or
(b) the accused person is acquitted on trial,
the Court or the Judge before whom the trial (if any) is had, may award costs to the accused person.
58. Section 618A (costs of successful defendant) provides that there is no presumption for or against an award of costs and sets out the matters the court is to consider before making an order for costs.
Criminal Practice Rules 1987: particularly Division III.1: Order 3, Rules 1 to 8 and Forms 1 and 2
59. These are Rules of Court made by the Judges under Section 184 of the Constitution. They regulate and prescribe the practice and procedure of the National Court in its criminal jurisdiction.
60. Order 3 (procedure) contains six divisions, consisting of Rules 1 to 23. Division III.1 (commencement) consists of Rules 1 to 8, most of which apply to prosecutions under Section 616 of the Criminal Code.
61. Rules 1 to 8 state:
1. Every proceeding in the Criminal Jurisdiction of the National Court shall be entitled "In the National Court of Justice".
2. Every indictment presented in the National Court shall be entitled as in Rule l and shall be in accordance with Form 1.
3. The statement of the offence in the indictment shall:—
(a) be in the applicable Form in Schedule 2, as appropriate; or
(b) if no Form is provided in the Schedule, be in accordance with an analogous Form in the Schedule; or
(c) if there is no such Form, be stated in the words of the Code or other Statute under which the indictment is presented.
4. An application for leave under Section 616 of the Criminal Code shall be instituted by originating summons for an order calling on the accused person to show cause why leave should not be granted and shall:—
(a) be entitled under the section in the Code;
(b) be entitled with the name of the person making the application;
(c) state briefly the particulars relied upon;
(d) be signed by the person making the application; and
(e) be filed in the Registry.
5. The application shall be supported by Affidavit.
6. The application under Rule 4 shall be served upon the Public Prosecutor.
7. An application for leave to present an information against a Judicial Officer acting in such capacity, in addition to the requirements set out in Rule 4 shall:—
(a) be served on such person seven days prior to the hearing of the application;
(b) be accompanied by a statement of the alleged offence.
8. An information presented by leave shall be in Form 2.
62. Form 1 states:
GENERAL FORM OF INDICTMENT
| In the National Court | The State |
| of Justice | v. |
| | AB |
INDICTMENT
| Held at: | (Place of trial) |
AB of X stands charged that he at (place) on the ... day of ... (set out the statement of offence and if more than one, each count to be set out separately in accordance with Second Schedule)
Dated this ... day of ...
(Sgd) By person authorised to
present indictment
(Title)
To AB
TAKE NOTE: You will be tried on this indictment at the Criminal Sessions of the National Court commencing at ... on the ... day of ... or on a date to be determined.
(The following is to be endorsed on the back of the Indictment.)
Committed for (offence) - by (Magistrate)
at (place)
on (date)
63. Form 2 states:
IN THE NATIONAL COURT OF JUSTICE
INFORMATION BY LEAVE
The Independent State of Papua New Guinea on the prosecution of the prosecutor (YZ) against the accused person (AB)
Held at (Place of trial):
The prosecutor informs the Court by leave that (AB) of Y on the ... day of ... at (place) (set out the statement of offence as in an indictment).
Dated this ... day of ...
(Sgd) By applicant or person
appointed by court
Prosecutor
To AB
TAKE NOTICE you will be tried on this information at the Criminal Sessions of the National Court commencing at ... on the ... day of ... or on a date to be determined.
Interpretation Act: particularly Sections 21 and 22
64. This Act distinguishes between indictable and summary offences.
65. Section 21 (indictable offences) states:
An offence—
(a) declared to be treason, crime, misdemeanour or indictable offence; or
(b) punishable by imprisonment for a term exceeding 12 months,
is an indictable offence.
66. Section 22 (offences punishable on summary conviction) states:
An offence that is not an indictable offence is punishable on summary conviction.
Public Prosecutor (Office and Functions) Act: particularly Section 4(1)
67. This Act has been made under Section 177(6) of the Constitution. It confers functions on the Public Prosecutor additional to those in Section 177(1). The pre-eminent constitutional position of the Public Prosecutor regarding presentation of indictments in the National Court was recently affirmed by the Supreme Court (Kapi CJ, Cannings J, David J) in SCR No 34 of 2005; Application by Herman Joseph Leahy, 15.12.06, unreported.
68. Section 4(1) (functions etc of Public Prosecutor) is relevant to the present case. It states:
The Public Prosecutor—
(a) shall control the Office; and
(b) is administratively responsible for the efficient performance of the functions of the Office; and
(c) shall control and exercise the prosecution function of the State; and
(d) may, and shall when requested to do so by the relevant person or body, advise—
(i) the State or any statutory authority or instrumentality of the State; and
(ii) the Minister; and
(iii) Departmental Head of the Department responsible for National Justice Administration; and
(iv) the State Solicitor; and
(v) the Law Reform Commission; and
(vi) any other person or body declared by the Minister, by notice in the National Gazette, to be a person or body to which this section applies,
on matters related to or concerning the commission of offences against any law; and
(e) shall provide Counsel—
(i) to prosecute persons charged with any criminal offence at their trial before the National Court; and
(ii) to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and
(iii) to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest; and
(f) may, in his absolute discretion, provide Counsel, to appear for and on behalf of the State, in any other proceeding before the National Court or Supreme Court in which the State has an interest; 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
(ga) may, in his absolute discretion, elect the method of proceeding under Section 420 of the Criminal Code, including the withdrawal of an information; and
(h) may, in his absolute discretion, provide assistance, either by provision of legal representation or otherwise, where—
(i) it is requested by the State; or
(ii) in his opinion, it is necessary to do so in the interests of justice, or in the public interest,
in the prosecution of offences or the conduct of committal proceedings before any court other than the National Court or the Supreme Court; and
(i) may advise the National Executive Council, through the Minister, to exercise its power under Section 151(2) (grant of pardon, etc.) of the Constitution to advise the Head of State to grant pardons, free or conditional, to accomplices who give evidence leading to the conviction of principal offenders.
PRECEDENTS
69. Most of the issues raised by the defendant’s motion concern the correctness of the procedure used by the informant to commence the prosecution. There was no committal proceeding, no indictment and no leave sought or granted by the National Court. This is apparently the first time these issues have been raised in the context of a prosecution under the Central Banking (Foreign Exchange and Gold) Regulation. However, there are three cases that are relevant. They were all brought to my attention by Mr Parina for the informant.
The Palpal Seoul case
70. In Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim SCRA No 13 of 1997, 29.10.97, unreported, the Supreme Court (Amet CJ, Los & Kirriwom JJ) set out the proper procedure for the Investment Promotion Authority to commence prosecutions under the Investment Promotion Act 1992. Like the Central Bank the Investment Promotion Authority is empowered by the Act which establishes it and it administers to launch prosecutions for offences against that Act.
71. Section 44A (prosecutions) of the Investment Promotion Act states:
(1) The Authority may prosecute any offence against this Act.
(2) Any action commenced under this Act shall be heard by the National Court of Papua New Guinea.
(3) In any action brought under this Act by the Authority or against the Authority the court may award costs against any party or claimant other than the Authority, which costs may be recovered by the Authority as a debt to the Authority.
(4) In any action brought by the Authority under this Act, the Court may, on application by the Authority, order an enterprise to cease the activity in the location the subject of the Authority's action until further order.
(5) Any order made by the court under Subsection (4) shall be made on condition that the Authority is not responsible for any loss of income or profit which may be incurred by the enterprise as a consequence of that order.
(6) Any fine or penalty or any default fine or penalty to be paid by an enterprise as a result of an action brought by the Authority shall be paid to the Authority and, in addition to any other remedy may be recovered by the Authority as a debt to the Authority.
72. The Supreme Court held that to commence a prosecution the Investment Promotion Authority needed the leave of the National Court, in a manner analogous to a leave application under Section 616 of the Criminal Code. If leave is granted the charges must be laid by information under the Criminal Practice Rules, Order 3, Rules 4, 5, 6 and 8. Prosecution by indictment is not appropriate as offences under the Investment Promotion Act are "civil in nature". The Court decided that the constitutional authority of the Public Prosecutor to control the exercise of the prosecution function of the State was not diminished by the Investment Promotion Act, provided the Criminal Practice Rules were followed. The Court’s reasoning appeared to be that if the Rules were followed the Public Prosecutor would be served a copy of an application for leave and could, if so minded, oppose the granting of leave.
The Michael Collins case
73. In Wilson Kamit v Michael Dowse Collins MP No 46 of 2002, 21.02.02, unreported, Mogish J, sitting in the National Court, convicted and sentenced an individual, following a guilty plea, of an offence under Section 24 (transfer of gold into or out of Papua New Guinea) of the Central Banking (Foreign Exchange and Gold) Regulation. No objection was taken to the mode of commencement of the prosecution: presenting an information, with the leave of the National Court and the consent of the Public Prosecutor. His Honour concluded that all the prosecution functions of the State, including exercise by statutory authorities of their power to prosecute, were subject to the absolute control of the Public Prosecutor, due to Section 177 of the Constitution and Section 4 of the Public Prosecutor (Office and Functions) Act:
The Central Bank is an instrumentality of the State and so it follows that consent to prosecute in any criminal matters under its legislation must be sought from the Public Prosecutor before any prosecution can occur.
74. His Honour was fortified in that view by Section 100(4) of the Central Banking Act 2000: a copy of any indictment must be served on the Public Prosecutor who can withdraw it within 14 days.
75. In that case, Mogish J did not address the issue of whether committal proceedings should precede presentation of an indictment, evidently because no objection was taken by the accused. However, his Honour did address that issue in another case concerning the prosecution powers of the Central Bank.
The Eddie Mai case
76. BPNG v Eddie Orubu Mai OS No 224 of 2004, 12.05.05, unreported, involved a prosecution by the Bank of an individual for offences under the Banks and Financial Institutions Act 2000. The Bank sought and was granted leave by the National Court under Section 616 of the Criminal Code to present an information against the accused. However, when the trial was about to start, Mogish J upheld an application by the accused that he was not obliged to plead to the charge.
77. His Honour held that a prosecution by the Central Bank had to first be brought before a committal court, ie the Bank had to institute the prosecution by committal proceedings in the District Court, which had to commit the accused for trial in the National Court. That had not been done.
78. His Honour held that the Bank has no power to invoke the private prosecution procedure of Section 616 of the Criminal Code. The National Court had decided in Arthur Smedley v The State [1980] PNGLR 379 (Pratt J) and The State v Lindsay Kivia [1988] PNGLR 256 (Amet J) that the Public Prosecutor cannot rely on Section 616 of the Criminal Code to commence any prosecution. Section 616 is only for genuinely "private" prosecutors. Not for those with a "public" character such as the Central Bank.
79. Though Eddie Mai’s case involved prosecution of different offences under a different law than in the present case, the Bank’s prosecution power – and by implication – the procedures required to institute a prosecution are almost identical. Section 56 of the Banks and Financial Institutions Act states:
(1) The Central Bank may—
(a) prosecute any offence by a person against this Act, by summary prosecution or by prosecution as an indictable offence as the case may be; and
(b) commence a civil action against a person for any form of civil relief which is available in respect to the matters constituting the offence.
(2) Any prosecution or action commenced by the Central Bank in relation to an offence committed under this Act shall be heard by the National Court.
(3) Notwithstanding Section 524 of the Criminal Code Act (Chapter 262) [sic], following a committal for an offence under this Act the Central Bank is authorised to present an indictment against the accused, and a copy of any such indictment shall be served on the Public Prosecutor and the Public Prosecutor may withdraw the indictment within 14 days of service of the indictment on him.
(4) In any prosecution or action brought under this Act by the Central Bank or against the Central Bank, the Court may award costs against any party or claimant other than the Central Bank, which costs may be recovered by the Central Bank as a debt to the Central Bank.
(5) In any action brought by the Central Bank under this Act, the Court may, on application by the Central Bank whether as interlocutory or final relief, order a person to cease any activity until further order.
(6) Any order made by the Court under Subsection (5) shall be made on condition that the Central Bank is not responsible for any loss of income or profit which may be incurred by the enterprise as a consequence of that order.
(7) Any fine, to be paid by a person as a result of an action or prosecution by the Central Bank shall be paid to the Central Bank and, in addition to any other remedy, may be recovered by the Central Bank as a debt to the Central Bank.
80. Section 56 of the Banks and Financial Institutions Act is a virtual copy-and-paste of Section 101 of the Central Banking Act. The only differences surround Sections 56(3) and 56(7). In the Central Banking Act, the equivalent of Section 56(3) is broken into two subsections: Sections 101(3) and (4). Section 56(7)’s equivalent is Section 101(8), where the wording is slightly different. Apart from those cosmetic differences, the statutory schemes are the same.
81. Mogish J considered that Section 56(3) – which authorises the Bank to present an indictment "following a committal – made it clear that there first had to be a committal. His Honour reasoned (consistently with the views he expressed about Section 101(4) of the Central Banking Act in Michael Collins’ case) that Section 56(3) maintains the Public Prosecutor’s constitutional authority. It requires that the Public Prosecutor be served a copy of the indictment. It allows the Public Prosecutor to withdraw the indictment. Therefore the Public Prosecutor can override any prosecution undertaken on behalf of the State by the Central Bank.
82. His Honour concluded that the information presented was defective but declined to quash it. It was in the public interest to bring to justice those alleged to have committed an offence, to ensure they do not escape because of technical blunders. Instead his Honour ordered that the proceedings be recommenced, in the District Court.
83. An appeal by the Bank against the judgment in Eddie Mai’s case was recently heard by the Supreme Court. Judgment is reserved. In the meantime it remains the most relevant of the three cases cited that have addressed the procedural issues raised by the present case.
OUTLINE OF ISSUES AND QUESTIONS RAISED BY THE DEFENDANT’S MOTION
84. As indicated earlier, the defendant’s motion raises two major issues:
First issue
85. A number of questions of law and fact arise here:
Second issue
86. In resolving this issue, these questions arise:
DEFENDANT’S SUBMISSIONS
First issue
87. Mr Manu, for the defendant, conceded that the Bank has power to prosecute offences under the Regulation as well as the Act. However, he submitted that under Section 101 of the Central Banking Act that power is vested only in the Bank, not the Governor. The Bank did not in this case, and cannot by law, delegate that power to the Governor. A decision to commence a prosecution must be made by the Bank’s Board. It cannot be made by the Governor acting alone. For that reason the information before the court is defective.
88. Another defect in the information – and this is the point raised directly by the defendant’s motion – arises from the failure to comply with Section 616 of the Criminal Code. The informant had to seek leave of the National Court, the prosecution had to be commenced by originating summons and the other procedures prescribed by Order 3 of the Criminal Practice Rules had to be followed. The informant was supposed to give security for costs under Section 617 of the Criminal Code. None of those things were done.
89. There was no need for a committal proceeding or an indictment. Nor was leave of the Public Prosecutor required. Mr Manu based these propositions on the Supreme Court’s decision in the Palpal Seoul case. What was required, however, was leave of the National Court and compliance with Order 3 of the Criminal Practice Rules. Leave of the court was neither sought nor obtained and Order 3 was not followed.
90. The information by leave in the present case was not in a proper form as it did not evidence the leave of the court. Nor did it identify the informant or evidence his authority to lay the charges.
91. As to the content of the charges, they are vague, referring only generally to Sections 6(1) and 32 of the Regulation. No specific offence is charged.
Second issue
92. The Bank’s actions were a total abuse of process, Mr Manu submitted. By avoiding the requirement for leave and then suspending the defendant’s authority to trade and export gold, without a hearing, the Bank was, in effect, finding the defendant guilty, breaching its constitutional rights to a fair hearing and acting harshly and oppressively contrary to Section 41 of the Constitution.
INFORMANT’S SUBMISSIONS
First issue
93. Messrs Shepherd and Parina, for the informant, submitted that both the Bank and the Governor have power to prosecute offences under both the Act and the Regulation. They pointed out that under Section 3, the Act includes the Regulation; and Section 16(2) authorises the Governor to exercise the Bank’s powers.
94. Leave of the Public Prosecutor is not required by law. However, the information in this case is being presented under Order 3, Rule 8 and Form 2 of the Criminal Practice Rules, so leave was sought and obtained. That accords with what Mogish J said in the Michael Collins case.
95. A committal proceeding does not have to precede a prosecution in the National Court, they argued. Mogish J’s decision in Eddie Mai’s case should be confined to its facts: it was a prosecution under the Banks and Financial Institutions Act, not under the laws relied on in the present case.
96. Nor is it necessary for prosecution of an offence under the Regulation to be by indictment. Both the Act and the Regulation say that an indictment is not necessary. A summary prosecution will suffice. Messrs Shepherd and Parina pointed to Section 97(c) of the Act, which states:
The Head of State, acting on advice, may make regulations which ... provide that an offence may be prosecuted either summarily or on indictment. [Emphasis added.]
97. Section 33(1) of the Regulation, consistently with Section 97(c), states:
A person who commits an offence against or fails or refuses to comply with any of the provisions of this Regulation may be prosecuted either summarily or on indictment. [Emphasis added.]
98. The effect of these provisions, they argue, is that the Bank has a discretion to prosecute offences either summarily or on indictment.
99. Leave of the National Court is not required under Section 616 of the Criminal Code as that section only applies to private prosecutions, where there is no other statutory power to prosecute. In the case of the Bank there is an express power to prosecute; and the Bank has an option to prosecute offences summarily or on indictment.
100. As there are no Rules of Court providing expressly for prosecution of summary offences in the National Court, it is appropriate to invoke Order 3, Rule 8 of the Criminal Practice Rules to present an information by leave.
101. The other provisions of Part III of the Rules relating to private prosecutions – Rules 4 to 7 – do not apply in the present case as they only apply to indictable offences.
102. As to the form and content of the information, Messrs Shepherd and Parina pointed out that the defendant’s motion did not raise any issue as to the form of the information. In any event, they submitted, there is no specific requirement under the Criminal Practice Rules to identify the informant or state his authority to lay charges. The statement of facts makes it clear that the informant is the Governor of the Bank.
103. The statement of facts also makes it clear that it is alleged that the defendant is in breach of Section 6(1)(a) of the Regulation, which relevantly provides:
Subject to Subsection (3), a person other than the Central Bank who, except with the authority of the Central Bank ... buys or borrows any foreign currency from a person other than the Bank ... is guilty of an offence.
104. A charge is not created by its section number but by the wording that creates the offence (Gregory Kasen v The State (2001) N2133, National Court, Kirriwom J).
105. Messrs Shepherd and Parina submitted that the words of the charges – "dealing in foreign currency pursuant to a joint venture agreement" and "buying and selling gold without proper authorisation from BPNG" – are sufficient to identify the nature of the offences to the defendant. It follows that those acts constitute offences under Sections 6(1)(a) and 32 of the Regulation respectively.
106. Furthermore the facts that constitute the elements of each offence are set out in detail in the statement of facts. The charges presented in the information when read together with the statement of facts allow the defendant to identify the nature of the charges and the facts constituting them. There is no denial of the full protection of the law.
Second issue
107. If the court finds the information defective, Messrs Shepherd and Parina submitted that the informant should be granted leave to amend the information under Order 2, Rule 7(c) of the Criminal Practice Rules. That was the approach taken by Mogish J in Eddie Mai’s case; and it should be followed here, if necessary. The prosecution is at a very early stage. The general rule is that amendments of an indictment or information are freely allowed prior to arraignment (The State v Francis Kumo Gene [1991] PNGLR 33, National Court, Brunton J). There would be no prejudice to the defendant as it is yet to be arraigned. If necessary the court could give directions for the further conduct of the proceedings under the Criminal Practice Rules, Order 2, Rule 2.
108. Section 41 of the Constitution does not apply as the defendant has not been convicted of an offence. It was advised to refrain from trading in gold as the complaint the Bank received from Segel Pty Ltd raised serious issues about the defendant’s authority to deal in gold, which the Bank needed to thoroughly investigate. Under Section 101(6) of the Act, the court can order the defendant to cease any activity until further order; and that is the order the court should make. Section 155(4) of the Constitution does not enlarge the primary rights of the defendant. Suspension of the defendant’s authority in 2006 and the decision not to issue a new authority for 2007 pending these court proceedings are a proper exercise of the Bank’s powers as a regulatory authority.
109. If the defendant is allowed to continue trading this will curtail the Bank’s power to enforce the Regulation. It would not deter others from circumventing the requirements of the Regulation.
THE ISSUES AND QUESTIONS IN DETAIL
110. I now move to consider the two major issues, including the 17 questions of law and fact identified earlier.
111. I raised some of the questions myself by directing the parties to make submissions on them. Mr Shepherd and Mr Parina pointed out that some of my questions were not raised by the defendant’s motion; and I took that to mean that they were submitting that I should not determine those questions. I do not accept that submission. A statutory office-holder, the Governor of the Central Bank, has purported to present an information against a company, the defendant, that exposes it to criminal sanctions. In an ordinary case where an indictment is presented against an individual, the Judge needs to be satisfied that the indictment is in a proper form, that it is presented under Sections 525 or 526 of the Criminal Code and that it is not oppressive. A Judge should not ignore defects in an originating process (The State v Francis Kumo Gene [1991] PNGLR 33, National Court, Brunton J). Nor, in my view, should a Judge restrain himself or herself from raising or determining questions as to defects in an originating process. Those principles of practice and procedure should apply in the present case.
112. It does not concern me that I am going to determine the defendant’s motion on questions of law not directly raised by the motion. I have given notice to both parties of what I regarded as relevant and they have had the opportunity to make oral and written submissions on them.
(1) DOES THE BANK OR THE GOVERNOR HAVE POWER TO PROSECUTE OFFENCES UNDER THE REGULATION?
Yes.
113. Though Section 101(1) of the Act states "the Central Bank may ... prosecute any offence by a person against this Act", without mentioning offences against the Regulation, the definition of "this Act" in Section 3 means that references to the Act include references to the Regulation.
(2) DOES THE GOVERNOR, AS DISTINCT FROM THE BANK, HAVE POWER TO PROSECUTE?
Yes.
114. Under Section 16(2) of the Act, "the Governor has the authority to exercise the Central Bank’s powers for the purposes of achieving the objectives and functions of this Act and implementing the policies of the Central Bank".
115. One of the Bank’s powers is, under Section 101(1), to prosecute offences under the Regulation. The Governor is authorised to exercise that power, provided it is exercised for the purposes set out in Section 16(2). This is consistent with the scheme of the Act, which confers most powers and functions on the Bank, not the Board. The Act establishes the Bank as a corporation. The Board of the Bank is an entity separate from the Bank with primarily policy-making functions. The duty of ensuring that the Bank carries out its statutory functions, managing the Bank and directing its affairs is imposed on the Governor under Section 16(1).
116. Prosecution of offences is an operational, not a policy, matter and responsibility rightly rests with the Governor. The Governor does not require a delegation or any other authority from the Board to initiate a prosecution.
(3) IS LEAVE OF THE PUBLIC PROSECUTOR REQUIRED?
In practice, yes.
117. Neither Section 101 nor any other provision of the Central Banking Act or the Regulation expressly make the Bank’s prosecution power subject to the consent of the Public Prosecutor. However, as pointed out by the Supreme Court in the Palpal Seoul case and by Mogish J in both Michael Collins’ case and Eddie Mai’s case, whatever procedure is adopted, the constitutional authority of the Public Prosecutor to control and supervise the prosecution function of the State, must be preserved.
118. This is achieved if the Public Prosecutor considers a case on its merits and expressly indicates his consent or grants leave to commencement of a prosecution.
(4) DID THE PUBLIC PROSECUTOR GRANT LEAVE IN THIS CASE?
No, not adequately.
119. All that the Public Prosecutor’s instrument indicated was that he consented to the Bank prosecuting the defendant under the Regulation. This gave the appearance that the Public Prosecutor had rubber-stamped the request for leave without addressing the merits of the prosecution.
120. Such an instrument should show the particulars of the offence to be charged. The precise offence should be identified, as should the date(s) on which it is alleged to have been committed. If these details are not provided the Public Prosecutor will not be exercising supervision or control in the sense required by the Constitution.
(5) MUST A COMMITTAL PROCEEDING PRECEDE PROSECUTION OF AN OFFENCE UNDER THE REGULATION?
121. I regard this as the critical issue, having a direct bearing on the legality of the information. Interestingly, both parties submitted that a committal proceeding was not necessary. However, I am not bound by agreements or concessions of the parties.
122. Nor am I bound by previous court decisions that have to some extent address this issue. I am not bound by the Supreme Court’s decision in the Palpal Seoul case – which suggested that committal proceedings and indictments are not appropriate procedures for prosecution by regulatory authorities of offences against the legislation they administer – as it related to the statutory scheme under the Investment Promotion Act. I am also not bound by Mogish J’s decision in the Eddie Mai case – which was that committal proceedings are mandatory for prosecutions under the Banks and Financial Institutions Act – as that is a National Court decision; and the National Court is not bound by its own decisions (Constitution, Schedule 2.9, Underlying Law Act 2000, Section 19).
123. However, both of those decisions have persuasive authority. I cannot ignore them. I have closely considered each of them, particularly Eddie Mai’s case as Section 56 of the Banks and Financial Institutions Act is a near mirror image of Section 101 of the Central Banking Act. With respect, Mogish J appears to have given the issue a more rigorous treatment in Eddie Mai than did the Supreme Court in Palpal Seoul. Moreover, Mogish J grappled with a statutory provision that used the language of the practice and procedure for indictable offences and linked prosecution for offences into the key provision of the Criminal Code relating to presentation of indictments, Section 524. His Honour’s interpretation of Section 56 was logical and coherent. The result was a practical and unremarkable one: if the Bank wants to prosecute an individual or company for an offence under the Banks and Financial Institutions Act, it has to first go before the District Court and establish a prima facie case. The defendant therefore has the same protections and safeguards as those accorded to an accused person charged with an indictable offence under the Criminal Code.
124. Nothing in the submissions of either party has persuaded me that Mogish J’s decision in Eddie Mai’s case was wrong. My inclination, at first blush, is to follow it.
125. But can the facts – more particularly, the statutory scheme – in the present case be distinguished? Messrs Shepherd and Parina say yes. They point to Section 97(c) of the Act, which envisages the making of regulations that allow an offence "to be prosecuted either summarily or on indictment"; and to Section 33(1) of the Regulation, which states that a person who commits an offence against the Regulation "may be prosecuted either summarily or on indictment". Further ammunition for their argument is provided by Section 101(1)(a) of the Act:
The Central Bank may ... prosecute any offence by a person against this Act, by summary prosecution or by prosecution as an indictable offence as the case may be. [Emphasis added.]
126. Section 101(1)(a) is replicated in Section 56(1)(a) of the Banks and Financial Institutions Act. Mogish J did not address its effect in the Eddie Mai case. Perhaps his Honour overlooked it. Even if he did, the more telling point of difference between the present case and Eddie Mai’s case is that there is no equivalent in the Banks and Financial Institutions Act or regulations made under it to Section 97(c) of the Central Banking Act or Section 33(1) of the Regulation.
127. There is a strong argument to say therefore that the statutory scheme of the Central Banking Act is unique: it gives the Bank a discretion to prosecute either summarily or by indictment.
128. But, is that good public policy? Should the Bank have a discretion if it is prosecuting an offence under the Central Banking (Foreign Exchange and Gold) Regulation, but no discretion if prosecuting under the Banks and Financial Institutions Act? I do not think so. It would make more sense for the same power and procedures to apply irrespective of the law under which the prosecution is commenced. That, however, is not a conclusive counterweight to the propositions advanced by the informant.
129. What I find more telling is to compare the nature and purpose of summary prosecutions with prosecution of indictable offences. A summary prosecution occurs when the case is initiated in the same court in which the trial takes place. The matter is dealt with summarily. There are no committal proceedings. The classic example is offences under the Summary Offences Act. They are prosecuted summarily in the District Court. Some indictable offences can be tried summarily before a Grade V Magistrate in the District Court, but only because special provision is made under Section 420 and Schedule 2 of the Criminal Code. Summary offences are by their nature less serious offences – the maximum penalties are less severe – than indictable offences.
130. Subject to the exceptions specifically created by the Criminal Code, prosecution of an indictable offence must, because of the nature of the offence, be preceded by committal proceedings in the District Court. It is the nature and categorisation of the offence that determines whether it must be tried summarily or by indictment (ie subject to committal proceedings) or whether there is a discretion. In most cases the Public Prosecutor has no discretion. He cannot, for example, decide to summarily prosecute a person for murder. It is an indictable offence. The law does not allow it to be tried summarily in any court. The prosecution must be by indictment. There must be a committal proceeding in the District Court. If the District Court refuses to commit, the Public Prosecutor can indict under Section 526 of the Criminal Code. But the requirement for a committal proceeding cannot be avoided.
131. Acceptance of the informant’s propositions would lead to an unusual result. The Governor of the Central Bank would have a wider discretion as to mode of prosecution of an offence than the Public Prosecutor normally enjoys. The court should be slow to sanction such an anomaly. Electing to proceed either summarily or on indictment is a special power vested only in the Public Prosecutor (The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43, Supreme Court, Kapi DCJ, Pratt J, Bredmeyer J).
132. My reluctance to uphold those propositions is enhanced by considering the distinction between indictable and summary offences drawn by Sections 21 and 22 of the Interpretation Act. If an offence is punishable by imprisonment for a term exceeding 12 months, it is an indictable offence. Any offence that is not an indictable offence is punishable on summary conviction.
133. It is necessary to look at the nature of an offence – more particularly its penalty provision – to determine whether it is an indictable offence (tried by an indictment, following committal proceedings) or a summary offence (tried summarily). The prosecuting authority’s decision whether to prosecute by indictment or summarily is driven by the categorisation of the offence, which is determined by operation of law. An indictable offence can only be tried summarily, if the law expressly provides for it.
134. I do not think that Sections 97(c) or 101(1)(a) of the Central Banking Act or Section 33(1) of the Regulation can be read as expressly conferring a discretion on the Central Bank to prosecute any offence under the Act or the Regulation summarily or on indictment, irrespective of its nature or seriousness.
135. Section 101(1)(a) says the Bank may prosecute "by summary prosecution or by prosecuting an indictable offence as the case may be". That means, in my view, depending on the nature of the case: depending on whether it is a summary or indictable offence as determined by operation of law.
136. In the present case, the defendant is charged under Sections 6(1) and 32 of the Regulation. The maximum penalties are prescribed by Section 33 of the Regulation:
137. Clearly, these are very serious offences. It would be inappropriate to try them summarily. Moreover, as a matter of law, by virtue of Section 21 of the Interpretation Act, they are indictable offences. They must be prosecuted on indictment.
138. I conclude that prosecution of the two offences charged in the information now before the court must be preceded by committal proceedings. The answer to the question posed, for the purposes of the present case, is yes.
(6) MUST AN OFFENCE UNDER THE REGULATION BE PROSECUTED BY INDICTMENT?
Yes, for the reasons given under question 5.
(7) IS LEAVE OF THE NATIONAL COURT REQUIRED TO PROSECUTE AN OFFENCE?
No.
139. If the defendant is committed for trial in the National Court, leave is not necessary. Leave of the National Court would only be required if the prosecution were regarded as a private prosecution and Section 616 of the Criminal Code were invoked. The Supreme Court decided in the Seoul Palpal case that that is the correct procedure for offences under the Investment Promotion Act. However, I agree with what Mogish J said in the Eddie Mai case: a prosecution by the Central Bank is not a private prosecution and Section 616 of the Criminal Code does not apply.
140. I reject Mr Manu’s submission that leave of the National Court was required under Section 616.
(8) SHOULD AN OFFENCE UNDER THE REGULATION BE PROSECUTED BY ORIGINATING SUMMONS?
No.
140. All offences under the Regulation are subject to the penalties provided by Section 33. They all carry a maximum term of imprisonment of five years. They are all indictable offences. They must all be preceded by committal proceedings and prosecuted by indictment.
(9) IS THE INFORMATION IN A PROPER FORM?
No.
141. To invoke the criminal jurisdiction of the National Court and prosecute an offence under the Regulation, the prosecution must commence by presentation of an indictment.
(10) DOES THE INFORMATION SPECIFY WITH SUFFICIENT PARTICULARITY THE IDENTITY OF THE INFORMANT AND HIS AUTHORITY TO LAY CHARGES?
No.
142. The originating process for a criminal prosecution must be signed and presented by a person lawfully authorised to do so (The State v Esorom Burege (No 1) [1992] PNGLR 481, National Court, Jalina J).
143. In the present case the information was signed by Mr Shepherd of Blake Dawson Waldron, lawyers for the informant. Mr Shepherd had no authority to sign the information.
(11) DOES THE INFORMATION SPECIFY WITH SUFFICIENT PARTICULARITY THE OFFENCES WITH WHICH THE DEFENDANT IS CHARGED?
No.
The rule
144. It is a fundamental rule of criminal practice and procedure that an offence be charged in the language of the law creating it. I explained the rule in Michael Winmarang v David Ericho and The State (2006) N3040:
It is part of the principles of natural justice – and part of a person’s right to the full protection of the law under Section 37(1) of the Constitution – that if a person is charged with committing a criminal or a disciplinary offence the charge must be clearly expressed in the language of the law that creates the offence. If this is not done with a reasonable degree of accuracy the person charged will not know the case that he or she has to answer. The person laying the charge and the person determining the charge (who will sometimes be a different person to the one who laid the charge) will not have a clear mind on the real issues to be decided.
145. I said that in the context of a challenge to the legality of a disciplinary charge under the Public Services (Management) Act 1995. The charge was not framed in the words of the Act, so it was struck out. The same rule applies with greater force to the drafting of criminal charges. It is a rule that has been applied by the National Court on numerous occasions, eg Jacob Hendreich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea [1979] PNGLR 1, Saldanha J; John Worofang v Patrick Wallace [1984] PNGLR 144, Bredmeyer J; Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PNGLR 75, Jalina J; Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported, Los J; Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00, unreported, Sevua J; (also see Felix Bakani and OPIC v Rodney Daipo (2001) SC659, Supreme Court, Gavara-Nanu J); Gregory Kasen v The State (2001) N2133, Kirriwom J; The State v Saul Ogerem (2004) N2780, Lay J; The State v James Yali (2006) N2989, Cannings J.
146. There is scope for flexibility in application of the rule. Citing the wrong section number of an Act, for example, will not for that reason alone render an indictment of information void. It is not just a matter of the court finding a word or two out of place and ruling that an information or indictment is void. The indictment, information or other originating process must, however, charge with sufficient particularity and disclose the elements of the offence created by the written law (Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea (No 2) [1979] PNGLR 247, Supreme Court, Prentice CJ, Raine DCJ, Andrew J).
147. Furthermore, the originating process should state the time and place at which the offence was allegedly committed.
The present case
148. The charge in the information stated:
The prosecutor informs the court by leave that the defendant, did:
(i) deal in foreign currency pursuant to a joint venture agreement dated 8 April 2006; and
(ii) buy and export gold from Papua New Guinea,
without proper authorisation from the Central Bank of Papua New Guinea. These are in breach of Sections 6(1) and 32 of the Central Banking (Foreign Exchange and Gold) Regulation.
149. The drafting is irregular and immediately opens the charge to challenge as it is double-barrelled. Two offences, at least, are alleged in the one charge: an offence under Section 6(1) and an offence under Section 32.
Paragraph (i) of the information
150. It appears to relate to the Section 6(1) offence as that section creates offences concerning foreign currency transactions. Paragraph (i) appears to allege that the defendant:
151. To determine whether that charge is properly drafted it is necessary to consider the wording of Section 6(1), which is:
Subject to Subsection (3), a person other than the Central Bank who, except with the authority of the Central Bank—
(a) buys or borrows any foreign currency from a person other than the Bank; or
(b) sells or lends any foreign currency to a person other than the Bank; or
(c) exchanges any foreign currency with a person other than the Bank,
is guilty of an offence.
152. Section 6(1) actually creates five different offences, each consisting of three cumulative elements. To obtain a conviction, the prosecutor has to prove the existence of all three elements of one of the five offences beyond reasonable doubt. I will now explain what I mean by saying that five offences are created.
1 Buying foreign currency without authority: Section 6(1)(a)
153. The elements are:
2 Borrowing foreign currency without authority: Section 6(1)(a)
154. The elements are:
3 Selling foreign currency without authority: Section 6(1)(b)
155. The elements are:
4 Lending foreign currency without authority: Section 6(1)(b)
156. The elements are:
5 Exchanging foreign currency without authority: Section 6(1)(c)
157. The elements are:
158. In the present case the elements of the actual charge do not correspond with any of those five offences, in that:
159. Furthermore the time and place of the acts said to constitute the offence have not been charged. Mention is made of the date of the joint-venture agreement. But that is irrelevant. The defendant is left guessing as to when it is alleged to have dealt in foreign currency; let alone when it bought, borrowed, sold, lent or exchanged the foreign currency. It is no answer to this omission to say that the details are in the statement of facts filed with the information. The originating process must, standing alone, disclose the offence.
160. The result is that no offence has been charged. The matters alleged by paragraph (i) of the information do not disclose an offence.
Paragraph (ii) of the information
161. This appears to relate to the Section 32 offence. It appears to allege that the defendant:
162. To determine whether that charge is properly drafted it is necessary to consider the wording of Section 32, which is:
A person who makes or enters into any arrangement, whether oral or in writing, for the purpose of, or that has the effect of, directly or indirectly defeating, evading or avoiding, or preventing the operation of, this Regulation in any respect, is guilty of an offence.
163. Section 32 actually creates 32 different offences, each consisting of seven elements. To obtain a conviction, the prosecutor has to prove the existence of all seven elements of one of the offences beyond reasonable doubt.
164. The seven elements are:
165. A charge under Section 32 must be drafted so that it captures each element, choosing only one of the sub-elements for each element that contains alternatives.
166. For example, a properly drafted charge would allege that on a particular date and a particular place, the defendant:
167. In the present case the three elements of the actual charge bear no resemblance to the required elements. Also, no date or time is mentioned.
168. The result is that no offence has been charged. The matters alleged by paragraph (ii) of the information do not disclose an offence.
169. Therefore the information does not disclose with sufficient particularity either of the offences with which the defendant is charged.
(12) IS THE INFORMATION DEFECTIVE? IS THERE AN ABUSE OF PROCESS?
Yes.
170. To summarise, the information is defective because:
171. I consider the defects numbered (2) and (4) to be relatively minor. But those numbered (1), (3) and (5) are major. The cumulative effect of two minor and three major defects is that the filing and service, let alone presentation, of the information is an abuse of process.
(13) WHAT ARE THE CONSEQUENCES?
172. Messrs Shepherd and Parina submitted that if I got to the stage of finding the information defective I should give time to the informant to apply for an amendment. In support of that approach is Mogish J’s decision in Eddie Mai’s case. I agree that it is a matter of discretion. I agree that in general the National Court allows leeway to prosecutors who apply early for amendments to indictments.
173. However, what is required to fix the information is more than amendment. What is required is a re-commencement of the whole process of charging the defendant, at the District Court. An entirely new and different sort of originating process must be drafted. What is required is neither cosmetic surgery nor major surgery but a reincarnation.
174. Each of the defects numbered (1), (3) and (5), considered alone, makes the information – and the entire proceedings – fatally flawed. The information is a nullity and I will order that it be quashed and the proceedings be dismissed.
175. That marks the resolution of the first major issue. I now move to the second. Should the Central Bank be ordered to restore the defendant’s authority to trade in gold, because its actions have been harsh or oppressive?
(14) WHAT PROTECTION DOES SECTION 41 OF THE CONSTITUTION PROVIDE GENERALLY?
176. Section 41 proscribes (ie prohibits) and gives protection against eight sorts of acts. Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
177. The leading case on interpretation and application of Section 41 is SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329. The Supreme Court (Kidu CJ and Kapi DCJ; Amet J dissenting) held that Section 41 does not create a basic right, as such, and is not enforceable under Section 57 of the Constitution. However, it is enforceable under Sections 23 or 155(4) of the Constitution.
178. As may be apparent from my categorisation of the basic rights earlier in this judgment I prefer the dissenting view of Amet J. However, it is not necessary to decide the issue in this case. It is sufficient to note that Section 41 gives a broad protection against the eight sorts of acts identified. In that sense it creates rights that are enforceable.
(15) IS SECTION 41 CAPABLE OF PROTECTING A COMPANY?
Yes.
179. This issue is foreclosed by Section 34 (application of division 3) of the Constitution, which states:
Subject to this Constitution, each provision of this Division applies, as far as may be—
(a) as between individuals as well as between governmental bodies and individuals; and
(b) to and in relation to corporations and associations (other than governmental bodies) in the same way as it applies to and in relation to individuals,
except where, or to the extent that, the contrary intention appears in this Constitution. [Emphasis added.]
(16) CAN A REMEDY OF THE TYPE SOUGHT BY THE COMPANY BE GRANTED IN PROCEEDINGS OF THIS NATURE?
180. The defendant wants the court to order that its authority to trade in gold be restored. It wants me to order the Bank to allow it to continue trading pending the determination of any criminal proceedings.
181. During submissions I asked Mr Manu whether it was open to the court while hearing a motion of this nature – essentially, a demurrer to a criminal charge – to exercise the sort of jurisdiction normally confined to judicial reviews under Order 16 of the National Court Rules. He replied yes and urged me to take an expansive, flexible approach, in view of the discretion available to the court under Section 155(4) of the Constitution.
182. That is all very well but I must be conscious of the way that administrative law has developed in PNG. The practice is that if a person wishes to have the exercise of administrative discretion reviewed by the court, Order 16 of the National Court Rules must be invoked. The Supreme Court has explained the reasons for this in two cases: National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264, Amet CJ, Kapi DCJ, Woods J, Los J, Andrew J, and Attorney-General Michael Gene, The State and Internal Revenue Commissioner, Mr David Sode v Dr Pirouz Hamidian-Rad (1999) SC630 Kapi DCJ, Sheehan J, Salika J.
183. In both cases, however, the Supreme Court acknowledged that the question of whether an applicant for relief has approached the court in the correct way will depend on the circumstances. In an appropriate case, it will not be an abuse of process to seek orders in the nature of prerogative writs outside Order 16.
184. I think the present case is an appropriate case. The defendant has succeeded in showing that the informant, on behalf of the Central Bank, has presented a defective information and abused the processes of the court. The Bank has given the commencement of these court proceedings as the reason for putting the defendant’s authority to trade in gold, on hold. On the face of it the defendant is deserving of a quick remedy of some sort to redress the injustice that may have been done. I do not think I would be dispensing justice if I were to force the defendant to start fresh proceedings against the Bank under Order 16. This would involve a delay and the defendant may suffer continuing prejudice and it would engender a multiplicity of proceedings.
185. It is therefore open to me to consider granting a remedy of the sort sought by the defendant.
(17) SHOULD THE DEFENDANT BE GRANTED A REMEDY?
186. The defendant seeks an order against the Bank on the grounds that the Bank’s actions have been harsh and oppressive for the purposes of Section 41 of the Constitution.
187. Under Section 41(2), the burden of showing that another person has committed an act falling within one of the eight categories of acts proscribed by Section 41(1) is on the party alleging it; in this case the defendant.
188. I consider that that burden has been discharged on the balance of probabilities. I agree with Mr Manu’s submission that the Bank has, in effect, pre-judged the result of the criminal proceedings by, first, suspending the defendant’s authority to trade, then restoring it, then saying that for 2007 it would not grant any authority until the court proceedings are finalised. I do not consider that there is sufficient evidence to show that the Bank has acted for any improper motive or mala fides. However, in all the circumstances the Bank has acted apparently in a manner oblivious to the commercial interests of a company that has been trading in gold and exporting gold for some years, without incident. I also agree with Mr Manu that the Bank appears to have acted harshly by not granting a right to be heard to the defendant before taking the actions it has taken.
189. In drawing that conclusion I have taken into account that the Bank will be able to resurrect prosecution of the defendant by commencement of committal proceedings in the District Court. The defendant has not been acquitted of the charges. The Bank is not in jeopardy of offending against the autrefois acquit principle in Section 37(8) of the Constitution, which states:
No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
190. If a new prosecution is commenced and the defendant is committed for trial in the National Court and found guilty it will be subject to the sanctions of Section 33 of the Regulation. The Bank’s powers and position as the statutory regulatory authority will be reinforced. Until the defendant is found guilty according to law, however, it is entitled to be presumed innocent under Section 37(4)(a) of the Constitution, which relevantly provides:
A person charged with an offence ... shall be presumed innocent until proved guilty according to law.
191. When the Bank’s actions are considered alongside the manner in which the prosecution has been handled, its acts are properly regarded as harsh and oppressive. The matter is ripe for the making of orders under Section 155(4) of the Constitution.
192. I will order that the defendant’s authority to trade be restored subject to the Bank having the right to revoke or vary the conditions attached to the authority with the leave of the court.
193. That marks resolution of the second major issue.
CONCLUSION ON THE TWO MAJOR ISSUES
194. Both are resolved in favour of the defendant.
195. First, the information will be dismissed, because it is defective and its filing and service amounted to an abuse of process.
196. Secondly, the Central Bank will be ordered to restore the defendant’s authority to trade in gold, as the Bank’s actions have been harsh or oppressive contrary to Section 41(1) of the Constitution.
COSTS
197. Though I have raised many questions of law myself and not adopted some of the central planks of the defendant’s case, both aspects of the defendant’s motion have been upheld and the orders sought granted. It is appropriate that the informant pays the costs of these proceedings.
REMARKS
198. Before pronouncing the formal orders I thank counsel for the informant, Mr Parina, for drawing the three cases concerning Central Bank or Investment Promotion Authority prosecutions to the attention of the court: Palpal Seoul, Michael Collins and Eddie Mai.
199. They were all relevant but not all favoured the informant. Nonetheless Mr Parina discharged his duty to the court as an officer of the court to bring relevant authorities to the attention of the court.
200. He deserves the court’s gratitude because regrettably all three cases are unreported. That is, they do not appear in the SC or N series of Supreme Court or National Court judgments respectively. If a judgment is ascribed such a number it will as a matter of course be electronically published in the pngInLaw database. It will be easily accessible. An electronic search will locate the judgment. If there is no SC or N number the judgment cannot be electronically located. Legal research in such circumstances becomes a hit-and-miss affair. Judgments become like ancient scrolls. They remain in the hands or minds of only a select few individuals who may have had something to do with the case that generated the judgment.
201. The National Judicial System must, in my view, ensure that all written judgments of the National Court and the Supreme Court are published electronically as a matter of routine. In that way judges are made accountable for their decisions, the task of lawyers and judges of researching the law can be efficiently carried out and the chances of judges making better, well-informed and correct decisions in accordance with the doctrine of precedent (stare decisis) are greatly improved.
ORDERS
202. I will make the following orders:
Ruling accordingly.
Blake Dawson Waldron: Lawyers for the Informant
Manu Lawyers: Lawyers for the Defendants
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