N4087

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 300 OF 2009

THE STATE

V

ROBIN PANU

Kavieng: Kariko J
2010: 13, 14 & 17 May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Indictment – Presentation of second indictment – accused previously arraigned on first indictment – not guilty plea entered on first indictment – first indictment not withdrawn or amended – accused tried on second indictment – second indictment invalid – mistrial. 

Cases cited:

The State v William (No 1) [2004] PGNC 212
The State v Kobobo [2006] PGNC 92 
Simili Kara v The State [1984] PNGLR 254
Review pursuant to Constitution, Section 155(2)(b)Application by Herman Joseph Leahy (2010) SC1018

Counsels:

N Goodenough, for the State
L Yagro, for the Accused

17 May, 2010 

1. KARIKO J: The accused pleaded not guilty to an indictment dated 13 May 2010 and presented before me charging him with 2 counts of sexual abuse, offences under section 229E of the Criminal Code – 1 count alleging sexual penetration (on 7 September 2008) while the other alleged sexual touching (on 17 September 2008) of a child aged 17 years.

Issue: Presentation of second indictment

2. After the State closed its case, the accused elected to give sworn testimony. In his evidence in-chief, the accused intimated consensual sexual penetration, but denied sexually touching the alleged victim. During cross-examination, counsel for the prosecution, Mr Goodenough asked the following questions: 

Q. Do you remember being in the National Court here in Kavieng on 12 March 2010? 

A. Yes

Q. And in respect of the 17 September incident, you said to the court "I plead guilty to that but she allowed me to do that"- do you remember saying that?

3. This question surprised me as it obviously suggested a previous hearing of the charges. I then queried about the circumstances in which the quoted statement from the accused was alleged to have been made. Counsel advised that the accused was arraigned in the last sittings when the matter was supposed to have been a "plea" matter, but the accused made the statement upon his arraignment, and the trial judge "vacated his plea of guilty" and adjourned the case to the next sittings. 

4. After further questioning from me, the State Prosecutor confirmed that an indictment was presented in the March sittings and is still pending. That is, a separate indictment to the one presented to me at the start of the trial on Thursday 13 May 2010. I referred counsel to section 525 of the Criminal Code and posed the issue of whether the prosecution can lay more than one indictment from one committal proceeding.

5. I then adjourned the case for counsels to consider the question and address me in the morning. 

Previous proceedings 

6. After adjourning, my associate obtained from the court file a typed file note from Sevua J's associate dated 12 March 2010 the relevant part of which reads: 

Counsels:
State – L. Rangan
Defence – L. Yagro

1.	The Accused appears from custody. The matter was listed as a plea matter this morning during the Criminal Call-over.

2.	The State Prosecutor presented to the Court the indictment. The Accused is charged under section 347(2) (aggravated rape) and section 229E(1) (Abuse of trust to [sic] authority or dependency) of the Criminal Code.

3.	The State Prosecutor presented the BRIEF FACTS [sic] the judge.

4.	ARRAIGNMENT – The judge read to the Accused the charges laid against him and the list of facts that support these charges.

5.	PLEA – The Accused admitted having sexual intercourse with her consent. COURT ENTERS A PLEA OF NOT GUILTY.

6.	The matter is not ready to proceed to trial. 

ORDERS:

1.	The matter is adjourned to the next National Court sitting.

2.	The Accused to be remanded in custody.

7. I also obtained the indictment previously presented. It is dated 5th March 2010 and I will refer to it as "the First Indictment". The indictment presented to me on Thursday shall be called "the Second Indictment". The First indictment and the file note were apparently located in the court file where they could not be easily noticed.

8. Upon confirmation with counsels, and on reading the First Indictment and the file note, it seems the proceedings on 12 March 2010 were as follows:

1.	The First Indictment which was signed by Mr Rangan for the State was presented to Sevua J. 

2.	The accused was represented by Mr Yagro of Paraka Lawyers, same counsel as in the present trial. 

3.	The case was understood to be a plea matter.

4.	The indictment charged the accused with 1 count of aggravated rape and 1 count of sexual abuse (sexual touching).

5.	The wording for the second count in that indictment is slightly different from the corresponding count in the Second Indictment.

6.	When the accused was arraigned he admitted to the alleged sexual acts but added they were by consent.

7.	Sevua J considered the accused raised a possible defence, and entered pleas of not guilty to both counts. He did not vacate the pleas.

8.	The case was then stood over to the next sittings.

Application to withdraw First Indictment

9. Although Mr Goodenough initially made a tentative submission that he understood the law allowed the presentation of a further indictment which has the effect of replacing a previous indictment, on Friday he argued that the State could withdraw the First Indictment and therefore sought leave of the Court to do so, and submitted that the trial could then continue on the Second Indictment. He based this argument on the decisions in The State v William (No 1) [2004] PGNC 212 per Kandakasi J and The State v Kobobo [2006] PGNC 92 per Cannings J. 

10. In The State v William (No 1), the State previously presented an indictment for grievous bodily harm to which the accused persons pleaded guilty. The trial judge on reading the depositions felt a possible legal defence was disclosed and vacated the pleas of guilty. The case was then adjourned and came before Kandakasi J. The State considered that more serious charges should be laid and sought leave of the court to amend the indictment or present a new indictment. His Honour granted leave to withdraw the indictment and present a new indictment. His Honour noted that the trial had not commenced under section 557(2) of the Criminal Code. He added that the Public Prosecutor could in the circumstances lay whatever charges considered appropriate as this was within his powers to do. He could proceed with the same indictment, amend the indictment or present a new indictment. I note that His Honour said the prosecutor could present the same indictment but I am of the view that it is correct that the first option is to "proceed with" rather than "present" the previous indictment as that indictment had already been presented. In the end, His Honour allowed the presentation of a fresh indictment. I emphasise that the new indictment was presented after leave was granted to withdraw the previous indictment. 

11. In The State v Kobobo, the State presented an indictment charging an offence that did not exist at the time of the offence. Upon a motion to quash the indictment on that basis, Cannings J allowed the State Prosecutor leave to withdraw the indictment and present a fresh indictment. His Honour did not consider that the accused would be prejudiced by the withdrawal of the indictment as he had not been called upon to plead to the indictment. 
 
12. In both these cases, the accused had not been arraigned and had not entered their pleas and the application for leave to withdraw occurred at the outset of the trial. These cases are distinguishable from the present case. Here, the accused was arraigned in March and entered his pleas then. Any application whether for leave to withdraw that First Indictment or amend it should have been done soon after the case was called before me this month. The State did not do so but instead presented a new indictment. It is only towards the end of the trial that it has come to light that another indictment is afoot.

Validity of First Indictment

13. The First Indictment is still valid. The accused having pleaded to it was brought to trial pursuant to Section 557(2) of the Criminal Code when he was called on to plead to the charges on that indictment and say whether he was guilty or not guilty of the charges. See Simili Kara v The State [1984] PNGLR 254. So not only is the First Indictment still alive or valid but the trial of the accused based on that indictment has commenced and is afoot. The trial should be continued before Sevua J or another judge as no evidence has been called in relation to that indictment.

14. Recently in the case of Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018, a decision handed down in March this year, the Supreme Court confirmed that the Criminal Code, which set out the powers to lay and present indictments following committal proceedings, does not permit the presenting of plurality of indictments. The court confirmed the law by stating:

We also agree that the Public Prosecutor may, as Wilson J stated in Smedley, [1980] PNGLR 379, at page 393, "as of right, present only one indictment (and one indictment only) as a result of one committal". We agree with Pratt J in Smedley who stated at [1980] PNGLR 379, page 408, that "having presented the first indictment, the Public Prosecutor had exhausted his powers under the Criminal Code and there was no power in him to write out and present a second indictment".

15. It is clear that the prosecution is not permitted to present more than one indictment and elect which indictment to proceed on, which is what seems to have occurred in the present case.

Failure of counsels to alert the court 

16. I must be critical and express serious disappointment in counsels letting the case get to this stage. It appears to have been the result of a misunderstanding or not fully appreciating the law concerning indictments. 

17. While Mr Goodenough was not prosecuting counsel in March, he was aware of the First Indictment. Mr Rangan who is lead prosecutor in the current sittings was the prosecuting counsel when the case came before Sevua J in March, and Mr Yagro was defence counsel then. None of the counsels alerted the court to the fact that there is a pending indictment, that is, an indictment was presented at the last sittings. 

18. With respect, precious time has been wasted through counsels not being diligent. A prosecutor needs to be fully aware of his important powers relating to the laying of indictments and ensure that these powers are properly applied, and defence counsel must be attentive and vigilant in ensuring that his client is correctly tried and this includes checking that an indictment has been laid and presented in accordance with the law. 

Ruling

19. I rule the indictment dated 13 May 2010 and presented before me the same day to be invalid as not permitted by law. The trial pursuant to this indictment should not have commenced at all. The indictment is a nullity. I declare a mistrial and order that the trial of the accused on the indictment dated 5 March 2010 and presented before Sevua J on 12 March 2010 continue before another judge. This case is now adjourned to the next sittings of the National Court in Kavieng. The accused is regrettably remanded in custody to await his trial.

________________________________________
Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused