N3996

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 934 OF 2008

THE STATE

-v-

CAIN WOSAE

Waigani: Kariko J
2010: 22 March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Objection to validity of indictment – Objection after close of prosecution case – Three different charges before committal court – Refusal to commit on one charge – Indictment pursuant to section 525 Criminal Code – Objection on the basis that indictment includes charge which the magistrate refused to commit upon – Powers of the Public Prosecutor and State Prosecutor to lay indictments. 

Cases cited:

Smedley v The State [1980] PNGLR 379
The State v Esrom Burege (No 1) [1992] PNGLR 481
Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855
The State v Michael Nama and Others (1999) N1884
Piakali v The State (2004) SC 771

Counsels:

T Ganaii, for the State
J Mesa, for the accused

22 March, 2010

1.	KARIKO J: The accused is indicted with two counts of official corruption pursuant to section 87(1)(a) of the Criminal Code and 2 counts of misappropriation under section 383A(1)(a) of the Criminal Code. 

Objection to validity of indictment

2.	After the close of the State's case and before I called on the accused for his defence, Mr Mesa of counsel for the accused applied to the court to rule the indictment defective, so far as it relates to the counts of official corruption.

3.	In the committal proceedings, the accused was faced with three charges:

•	Misappropriation - section 383A, Criminal Code
•	Abuse of office - section 92, Criminal Code
•	Official corruption – section 87, Criminal Code. 

4.	The charges are alleged to have arisen from the same facts and circumstances, and comprised one committal file for the court's consideration. On 26 August 2008, the committal magistrate made his ruling in respect of the charges, and found sufficient evidence to commit the accused to trial in the National Court on the first two charges, while he ruled the prosecution evidence was not sufficient to put the accused on trial on the remaining charge of official corruption. In effect, the magistrate refused to commit the accused.

5.	The argument for the defence centres on section 526 of the Criminal Code, which permits the Public Prosecutor to draw up an indictment against a person whom a committal court has refused to commit to trial. Such an indictment is commonly referred to an "ex-officio indictment", terminology that the Supreme Court in Smedley v The State [1980] PNGLR 379 considered inappropriate. 

6.	Mr Mesa raised this objection after his client alluded him to the rulings of the committal court, and he was alluded to this after the adjournment at the close of the State's case. Mr Mesa submitted that there should have been two indictments presented against the accused once the Public Prosecutor decided to charge the accused with the offence under section 87 of the Criminal Code - the offence the committal magistrate refused to commit the accused upon. The first indictment would have been based on section 525 Criminal Code while the second indictment prepared pursuant to section 526 Criminal Code. 

7.	The relevant parts of these provisions read as follows:

525.	Procedure for indictment.

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

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

(b)	decline to lay a charge.

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

526.	Indictment without committal.

(1)	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.

(2)	The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.(My underlining)

8.	I understood Mr Mesa's submission to be that the charges of official corruption are ultra vires, because: 

•	the District Court refused to commit the accused on those charges;

•	the charges should not have been included in the indictment (which seemed to have been drawn up pursuant to section 525 Criminal Code); and

•	they should have been charged on a separate indictment under section 526 Criminal Code (as I said commonly referred to as an ex-officio indictment).

9.	The indictment as it was presented is therefore defective, in the Defence submission.

Powers to lay charges in an indictment

10.	There are two ways the prosecution may lay charges in an indictment – either under section 525 and or section 526 Criminal Code. This has been long settled; Smedley v The State [1980] PNGLR 379; The State v Esrom Burege (No 1) [1992] PNGLR 481. 

11.	In Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855, the court set out the preconditions to the presentation of an indictment under Section 526, as follows:

•	a court of summary jurisdiction has refused to commit a person for trial on an indictable offence;

•	the Public Prosecutor has considered the evidence contained in the depositions taken before the court (and any other relevant evidence);

•	the Public Prosecutor has reduced into writing in an indictment a charge of any offence that the evidence appears to warrant. (My emphasis).

12.	I would suggest similar preconditions to the presentation of an indictment pursuant to section 525:	

•	a person is committed for trial or sentence for an indictable offence;

•	the Public Prosecutor or a State Prosecutor has considered the evidence contained in the matter;

•	the Public Prosecutor or the State Prosecutor has reduced into writing in an indictment a charge of any offence that the evidence appears to warrant. (My emphasis).

13.	The Public Prosecutor is given great and important powers in relation to his ability to lay charges for indictable offences. The manner in which he exercises these powers are set out in sections 525 and 526 Criminal Code. The power under section 525 is shared with his State Prosecutors. 

14.	My reading of Smedley v The State (supra), is that there can only be one indictment resulting from one committal proceedings. 

Per Wilson J:	My decision in this appeal depends on the acceptance of the principle that the State can, as of right, one indictment (and one indictment only) as a result of one committal. In arriving at this conclusion I have had regard to the intention of the legislature as appears from a reading of s. 536 (1) and s. 538; it would be contrary to that intention to construe the word "indictment" in the singular in s. 538 to include the plural (see s. 6 of the Interpretation (Interim Provisions) Act 1975). 	
		
Per Pratt J: 	There are only two main forms of indictment, a s. 537 indictment and a s. 538 indictment. The first is an indictment following on committal proceedings be it for the same charge as that for which the accused was committed, or a completely different charge. Once having decided to reduce the charge to writing, and then in fact having presented the indictment to the court, that is an end to the matter. There is nothing in s. 536 which says that having presented the indictment and then subsequently under s. 539 presented or filed a nolle prosequi, he ma go back to s. 537 and draft and present another indictment. Likewise, in the instant case under appeal where the magistrate has refused to commit, the prosecutor has power under s. 538 to present an indictment despite the magistrate's refusal to commit, but again having done that, there is nothing in the section which allows him to present a further indictment.	
		
15.	The references to the provisions were the previous numbering of sections 525 (previously section 537) and 526 (previously section 538).

16.	In my view, the prosecution can apply either section 525 or section 526 Criminal Code in deciding to lay an indictment following a committal proceeding:

•	Where there is a single charge before the committal court, and the accused is committed, section 526 is applicable, and the Public Prosecutor or a State Prosecutor may indict.

•	Where there is a single charge before the committal and the court refuses to commit, the Public Prosecutor may indict pursuant to section 526.

•	Where there are multiple charges in the committals and the court commits on all charges, the Public Prosecutor or a State Prosecutor may indict under section 525. 

•	Where there are multiple charges in the committals and the court refuses to commit on all charges, only the Public Prosecutor may indict under section 526. 

•	Where there are multiple charges in the committals and an accused person is committed on at least one of the charges but not on the others, the Public Prosecutor or a State Prosecutor may indict under section 525 and include any of the offences the committal court refused to commit on if they are offences "that the evidence appears (to him) to warrant". 

17.	In all these situations, the Public Prosecutor exercises his powers by considering the evidence. As put by Kirriwom J in The State v Michael Nama and Others (1999) N1884:

… It has been the practice and continues to be so that following committal the accused is indicted with the offence that the evidence in the depositions support – see s. 525 of the Criminal Code or the one negotiated and obtained for purposes of guilty pleas … The original charges do not determine the eventual charge in the indictment. (My underlining for emphasis).

18.	To my mind, these comments are equally applicable to indictments under section 526 Criminal Code.

19.	I cannot accept the submission that separate indictments are required. Such an interpretation may well mean that for each offence that the committal court refuses to commit upon would warrant its own indictment under section 526 Criminal Code. This would indeed be an unworkable and a messy and confused scenario.

Decision

20.	I rule that the indictment presented in this case is not defective.

Objection at late stage of trial

21.	I turn now to the question I raised about the propriety of raising the objection to the indictment at this rather late stage of the trial.

22.	In my view, this objection should have been properly brought before the accused pleaded to the indictment. This could have been done under section 538 Criminal Code – Motion to quash, or section 567 Criminal Code – Demurrer.

23.	The courts have expressed reluctance to entertain such challenges to the validity of indictments at later stages of a trial. See for example Piakali v The State (2004) SC 771, where the Supreme Court held that the failure to raise objection to an indictment upon its presentation assumes the accused accepts the correctness of the indictment. The court said:

...where an accused fails to take issue with the presentation of an indictment against him soon upon its presentation or before a trial is seriously under way and in any case, before a decision on his verdict, means the indictment is in order. The reason for this is simple. It would be prejudicial in terms of costs, availability and convenience of witnesses their evidence and the fairness of a trial if the Court were to readily abort a trial that has seriously commenced and more so if the trial ended with a decision on the verdict and sentence.

24.	In that case, no objection to the indictment was taken until on appeal to the Supreme Court. The objection was based on the assertion that the counsel who presented the indictment was not a gazetted State Prosecutor. I agree with the decision of the Supreme Court in that case, but I am of the view that there may be a situation where an accused person faces a serious long term incarceration or even the death penalty, and if it is so obvious the indictment is defective – a nullity, ab initio – an objection should be entertained even at a very late stage. 

Remarks

25.	To avoid such situation, I stress that it is critical for counsel (both for the prosecution and the accused) to thoroughly and properly examine an indictment to ensure it complies with the law in form and substance. This includes checking the committal records to see if the accused person was committed to trial or not. Other matters to examine would include the name of the accused; wording of the charge (s); compliance with the rules relating to indictments under the Criminal Code; and the authority signing the indictment. This is required of counsels as part of their duty not only to their clients, but also to the court.

26.	Perhaps it should be the practice for the State Prosecutor when presenting an indictment, to advise the court if an indictment is being presented under sections 525 or 526 Criminal Code. This would help alert the defence and the court to the relevant power by which the indictment is laid, and would avoid the situation encountered in the present case.

27.	Because the powers to lay the two indictments are different, I find it interesting of the practice whereby State Prosecutors are signing indictments on behalf of the Public Prosecutor. An indictment pursuant to section 525 Criminal Code allows the State Prosecutor to lay an indictment. If the Public Prosecutor has approved the gazettal of a lawyer to be a State Prosecutor, then surely the Public Prosecutor must be satisfied that the lawyer is qualified to discharge the powers and duties of a State Prosecutor, and the Public Prosecutor has the trust and confidence in him or her to properly act on those powers and faithfully and diligently carry out the duties. The State Prosecutor should be allowed to sign an indictment under section 525 Criminal Code in his or her own name. Where an indictment is laid pursuant to section 526 Criminal Code, then of course, only the Public Prosecutor may sign the indictment. 
_________________________________________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused