N5320
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF PAPUA NEW GUINEA]

CR APP NO 144 OF 2013

IN THE MATTER OF AN APPLICATION PURSUANT TO CONSTITUTION SECTIONS 155(4) AND 185

BETWEEN:

EREMAS WARTOTO
Applicant

AND:

THE STATE
Respondent

Waigani: Salika, DCJ
2013: 02 July,
15 August

CRIMINAL LAW – Control of Criminal jurisdiction in the National Court – Application for permanent stay of criminal proceedings in National Court – Discretion of the Court.
CRIMINAL LAW - Practice and Procedure - Abuse of process of Court – discretion of the Court – discretion to be exercised sparingly.

Cases Cited
Papua New Guinea Cases

Anderson Agiru v Electoral Commissioner v The State (2002) SC 687
Brian Kindi Lawi v The State [1987] PNGLR 183
National Executive Council, The attorney General and Luke Lucas v Public Employees Association of PNG [1993] PNGLR 268
Royale Thompson v Kalaut (2011) N4265
Somare v Manek & Others (2011) SC1118 

Overseas Cases

Director of Public Prosecutors v Humphreys (1976) 2 All ER 497

Counsel:
Mr L Juarth & Mr J Haiara, for the Applicant
Mr C Sambua, for the State 

15th August, 2013

1.	SALIKA DCJ: The applicant in this matter seeks the following orders:

(a)	A direction pursuant to s.185 of the Constitution for purposes of making their application for orders sought under paragraph (b).

(b)	That pursuant to s.155(4) of the Constitution, or alternatively, the inherent jurisdiction of this Honourable Court the proceedings referenced CR 780 of 2012 before this Honourable Court be permanently stayed for being an abuse of the process.

(c)	Such further orders or other orders or relief including consequential orders this Honourable Court deems proper.

(d)	Costs of this application and of proceedings in CR 780 of 2012.

2.	The application is supported by an affidavit filed by the applicant on 3 June 2013. In his affidavit the applicant deposes that he was arrested and charged with 2 counts of misappropriation under s.383A(1)(a) of the Criminal Code Act and that he is on bail. The applicant was committed to stand trial by the District Court on the 2 charges of misappropriation.

3.	The Public Prosecutor is yet to prefer the charges and has not presented an indictment as yet. At this stage we do not know what the precise charges or charges will be and it could be that the Public Prosecutor may prefer other charges as well.

4.	The applicant deposes that the charges arise out of a building contract between Sarakolok West Transport Limited (SWT) a company controlled by himself and the State. He further deposes that the State alleges that some of the work performed by SWT under the contract is defective.

I think the deponent has erred when he says the company is controlled by him and the state, I do not think the State controls that company.

5.	He deposes that SWT agreed to undertake the building works described in Section V, Clause 1.1 of the Agreement. He said the contract amount was K7,989,892,00 which was paid in two separate payments namely:

(i)	K6,791,408.20 on 30 January 2009; and
(ii)	K1,198,483.80 on 14 October 2009.

6.	He also deposes and asserts that the Prosecutor admitted that:

a)	The manner in which SWT tendered for and was awarded the Building contract was fully compliant and legal in every respect; and

b)	The Building Contract was itself legally binding and was a valid contract.
That however is not correct. It is Mr Joseph Lelang who made the statement and not the Prosecutor.

7.	Works commenced around December 2008 and a Certificate of completion was issued on 5 March 2010. He says that at no time within the Defects Liability Period or anytime thereafter was SWT given notice of any defects pursuant to Clause 33 or 35 of the Contract. He says the building contract has never been terminated or rescinded by either party.

8.	The deponent therefore contends that the proceedings in CR 780 of 2012 are an abuse of process and seeks the orders as stated in paragraph 1 of this ruling.

9.	The applicant through counsel submitted that the State is only able to bring civil proceedings against SWT and submits that once the contract price was paid to SWT the money became the property of SWT and no longer the property of the State.

10.	The applicant relies on the decision of the National Court in Royale Thompson v Kalaut (2011) N4265 for the proposition that these proceedings are an abuse of the process. I note the factual differences in the Thompson case to the facts in this case. The Court in the Thompson case held:

1.	The court has jurisdiction to protect persons from the abuse of process of the criminal jurisdiction of the court and in the exercise of that jurisdiction to permanently stay criminal proceedings in court, as distinct from the investigative powers of the Police;

2.	The abuse must be an abuse of the whole function of the criminal jurisdiction of the court, not some particular procedure. The court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general.

3.	Any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the court has itself been improperly made use of;

11.	This application is made before the National Court in its Criminal Jurisdiction itself and not in the civil jurisdiction as was the case in the Thompson case. However, in my view, on the issue of jurisdiction to deal with this application this court has inherent jurisdiction to protect persons from abuse of process of the Court in the criminal jurisdiction of this court (see Somare v Manek & Others (2011) SC1118). 

12.	The Supreme Court in the matter of the Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118 approved what another Supreme Court said in Anderson Agiru v Electoral Commissioner v The State (2002) SC 687. In that case the Supreme Court said:

"Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of the process."

13.	The Supreme Court in National Executive Council, The attorney General and Luke Lucas v Public Employees Association of PNG [1993] PNGLR 268 said:

"An abuse of the process of the court may arise where in an application for a remedy under O 16 r (1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by ... writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 as well as constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis."

All these case authorities stand for the proposition that the Court has an inherent power to protect its own processes and protect its dignity and integrity from abuse by its users or by litigants. In that regard this application is properly before the Court.

14.	An act amounts to an abuse of the process when action or actions are obviously frivolous, vexatious, or in bad faith. Those acts can be stayed or dismissed by the Court as abuse of process – See 2003 Oxford Dictionary of Law – 5th edition.

15.	In Director of Public Prosecutors v Humphreys (1976) 2 All ER 497 at 528, Lord Salmon said:

"It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene, Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred."

16.	The Thompson case highlighted practices in other common law countries relating to applications for stay or applications to permanently stay criminal proceedings. In the end Davani, J said:

"the power to stay proceedings must be exercised sparingly and only in exceptional circumstances. It is a discretion that is exercised to prevent anything which savours of abuse of process. It is a power that is jealously preserved or guarded and is exercised only in very rare cases and "sparingly". It is exercised only in the most unusual cases and its use can be justified. The exercise of that power should not be a random one and will be exercised to protect the abuse of its process."

17.	In that respect I agree with the proposition that the discretion of the court to stay proceedings must be exercised sparingly. Case authorities both domestic and overseas cited in the Thompson case support the proposition that while the court may stay proceedings as an abuse of its process it would require a very strong or exceptional case before the court can interfere with the discretion to prosecute.

18.	In this application I have read the submissions advanced by both parties. The applicant says once the payments were made the property passed on to SWT and the State no longer owns the property. On the other hand the State relies on the authority of Brian Kindi Lawi v The State [1987] PNGLR 183 which stands for the proposition that the State has an equitable interest in the money. Those legal propositions need to go to trial in my respective opinion. They are critical issues to be determined at trial and not here.

19.	The prosecutorial power of the State belongs to the Public Prosecutor under s.176 and s.177 of the Constitution. The Public Prosecutor has powers not only to prosecute but he also has powers to decline to prosecute. He has a wide discretion to make those decisions even before they get to Court. Whatever decision he makes must be based on proper basis, grounds or reasons must not be made lightly. Persons charged with offences have the right to defend themselves once formal charge or charges have been laid. If the person charged is of the opinion that the prosecution is malicious, he has a separate cause of action in separate proceedings. But it is no reason to prevent such lawful authorities from carrying out their lawful function.

20.	In the circumstances and without delving into issues involved in the case itself I am of the view that this is not a very strong or exceptional case that this Court should exercise its discretion to stay these proceedings.

21.	Application is dismissed.
_________________________________________

Steeles Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent