N4162

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 1189 OF 2010

THE STATE

V

XUE ZHUFU DICKSON and CHANG JIANG GAO

Waigani: Kariko J
2010: 12 October & 3 December

CRIMINAL LAW – practice and procedure – motion to quash indictment laid under section 526 of the Criminal Code – whether indictment formally defective – whether indictment properly entitled "Ex- Officio Indictment"- whether place of trial named in the margin of the indictment.

CRIMINAL LAW – practice and procedure – motion to quash indictment laid under section 526 of the Criminal Code – whether indictment calculated to prejudice or embarrass the accused in their defence – whether charge contains sufficient particulars of the offence.

CRIMINAL LAW – practice and procedure – motion to quash indictment laid under section 526 of the Criminal Code – whether Public Prosecutor is obliged to refer case back to the committal court where he considers or acts upon further evidence to charge accused after committal proceedings. 

Cases cited:

Arthur Gilbert Smedley v The State [1980] PNGLR 379
Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (2006) SC855

Counsels:

M Zurenuoc, for the State
M Wilson, for the Accused

RULING

1.	KARIKO J: The two accused are charged with attempt murder pursuant to an indictment laid by the Public Prosecutor under section 526 of the Criminal Code or what is commonly referred to as an ex-officio indictment.

Motion to quash indictment

2.	They have both applied to quash the indictment based on section 558 of the Criminal Code claiming:

(1)	The indictment is formally defective in that:

(a)	It is entitled "EX-OFFICIO INDICTMENT" when in law there is no such indictment;

(b)	It does not state the place of trial in the margin of the indictment contrary to the requirement in section 528(7) of the Criminal Code;

(2)	The indictment is calculated to prejudice and embarrass the accused in their defence as it does not disclose particulars of how it is alleged each accused committed the offence. 

(3)	As there was other evidence apart from the evidence from the committal depositions upon which the Public Prosecutor exercised his powers under section 526 of the Criminal Code, that evidence should properly have been referred back to the committal court for its consideration together with the evidence tendered in the original committal proceedings.

3.	Under section 558(1) of the Criminal Code an accused person may, before pleading, apply to quash an indictment on grounds that:

"(a)	it is calculated to prejudice or embarrass him in his defence to the charge; or

(b)	it is formally defective."

4.	 Upon hearing such an application, the court may uphold the application, order amendment of the indictment, or refuse the motion (section 558(2) of the Criminal Code). 

Relevant provisions of the Criminal Code

5.	Other relevant provisions of the Criminal Code for the purposes of the applications by the accused are sections 526, 528 and 536.

6.	Under section 526 of the Criminal Code where a committal court has declined to commit an accused person for trial for an indictable offence, the Public Prosecutor may after considering the evidence in the committal depositions and any other relevant evidence charge the accused person on an indictment with any offence that the evidence appears to warrant. The Public Prosecutor is then obliged to serve the accused person or his lawyer copies of the committal depositions and statements of any further witnesses to be called at the trial.

7.	Section 528(1) provides that an indictment must set out the offence charged against an accused person "in such a manner" and "with such particulars .... as is necessary to inform the accused person of the nature of the charge."

8.	Section 528(7)	states that "The place of trial shall be named in the margin of the indictment."

9.	Under section 536, the court may order the prosecution to provide to an accused person particulars of any matter alleged in an indictment.

Section 526 indictment

10.	 In relation to the first challenge to the indictment, the accused rely on the view expressed by the Supreme Court in Arthur Gilbert Smedley v The State [1980] PNGLR 379 that reference to an indictment laid pursuant to section 526 of the Criminal Code as an "ex-officio indictment" is not proper as the exercise of the power to lay an indictment where a committal court refuses to commit an accused person is not inhered from the office of the Public Prosecutor but rather from statute. The Supreme Court has since approved this view in many cases including Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (2006) SC855.

11.	 While I accept that the terminology "ex-officio indictment" should not be used and that the indictment should not have been entitled "EX OFFICIO INDICTMENT", I agree with the State that this incorrect heading is a defect curable by the court exercising its powers to order amendment of an indictment pursuant to section 558(2)(b) of the Criminal Code. The defect is minor in that it only affects the heading of the indictment, but more importantly in my view, its amendment would not prejudice the accused in their defence.

12.	I would exercise my discretion and amend the indictment by deleting the word "EX-OFFICIO" from the heading.

Place of trial

13.	 The accused also argue that the indictment is defective as the place of trial has not been named in the margin of the indictment, contrary to section 528(7) of the Criminal Code.

14.	 Mr Wilson suggested that to accord with section 528(7) of the Criminal Code the place of trial should be stated in the left margin of the indictment. But this provision does not refer to a left margin. It merely speaks of a margin. The essence of this provision is to inform an accused person of the location where he is to be tried, and the place of trial must be in accordance with section 522 of the Criminal Code. 

15.	 The indictment in the present matter notes Waigani as the place of trial in three places on the indictment – not only under the heading, but significantly in the title in the top margin (although misspelt but I would order its correction) and in the notice in the bottom margin of the indictment. 

16.	 It follows that I find no breach of section 528(7) of the Criminal Code. 

Particulars of indictment

17.	Counsel for the accused also submitted that the indictment is calculated to prejudice and embarrass the accused persons because the accused are charged jointly but the indictment does not particularise the alleged acts or omissions of each of the accused that constitute the offence charged.

18.	The thrust of section 528(1) of the Criminal code is that the indictment requires wording of the offence and particulars "as is necessary to inform the accused person of the nature of the charge". 

19.	 Nothing has been put before me to demonstrate that the accused will be prejudiced or embarrassed in their defence to the charge. It was not suggested by the accused that they do not know what is being alleged against each of them. The prosecution submitted that the accused have had their copies of the police prosecution files with them since the committal proceedings including the Statement of Facts to the Information laid against each accused, and the accused are well aware of the allegations against them. 

20.	Order 3 rule 2 of the Criminal Practice Rules states that every indictment shall be in accordance with Form1, while Order 3 rule 3(a) provides that the statement of the offence shall be in the applicable form in Schedule 2, in this case Schedule 2.193. There is no argument that these rules have not been complied with. In my view, conforming to these rules meets the requirements of section 528(1) of the Criminal Code.

21.	Where the court is satisfied that the particulars are required for the accused to properly prepare their defence, the appropriate order may be made under section 536 of the Criminal Code. The accused may still apply before arraignment for particulars but they must be able to show that the lack of particulars will prejudice the preparation of their defences. 

Further Evidence

22.	 Mr Wilson further argued for his clients that the matter should have been sent back to the committal court. He relied on a letter from the Public Prosecutor dated 10 October 2010 in which the Public Prosecutor advised the accused that after considering the evidence at the committals and "other evidence" he had decided to lay charges against the accused pursuant to section 526 of the Criminal Code.

23.	Mr Wilson conceded that his clients were not asking for a judicial review of the committal proceedings but he submitted that it is unfair and improper that the Police held back further evidence against his clients during the committal proceedings and then provided it to the Public Prosecutor after the committal proceedings. As no evidence was produced to substantiate this rather serious claim, I reject the submission.

24.	The Public Prosecutor is permitted by law to consider further evidence after a committal court has refused to commit an accused person to stand trial. This is yet another significant aspect of the Public Prosecutor's unfettered discretionary power to lay an indictment in the National Court. I am unaware of any case authority and none were cited for the proposition that where further evidence comes to light for the prosecution after committal proceedings have concluded, that the matter must be remitted to the committal court to be considered again. The relevant provisions of the District Courts Act and the Criminal Code intend for one set of committal proceedings for the one charge. To interpret the provisions to allow for multiple committal proceedings for the same charge would be expensive, very-time consuming and would undoubtedly cause uncertainty. The police would have to wait for all possible evidence to be collected before prosecuting an accused person, as any evidence obtained after a committal proceeding could not be used against the accused unless the committal proceedings were conducted anew. This would totally contradict the powers granted to and frustrate the function of the Public Prosecutor to lay indictments under the laws. 

25.	The State has advised the court that contrary to the statement in the Public Prosecutor's letter of 10 October 2010, there was in fact no additional evidence considered by the Public Prosecutor. I however stress that if there are further witnesses to be called at the trial, then under section 526(3)(b) of the Criminal Code, the Public Prosecutor must provide copies of the relevant witnesses' statements to the accused or their lawyer within reasonable time before trial, and therein the rights of the accused to a fair trial are protected. 

Conclusion

26.	Accordingly, I order as follows:

(1)	 The application to quash the indictment is refused;

(2)	The indictment is amended by deleting the word "EX-OFFICIO" from its heading and correcting the place of trial in the title to read "Waigani"; and 

(3)	The case is adjourned to the registry to be listed for directions at the next criminal sittings at Waigani.

___________________________________________
Acting Public Prosecutor: Lawyer for the State
Warner Shand Lawyers: Lawyer for the Accused