N6114

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 125 OF 2015

Between:

THE STATE

And:

THOMAS JIM NORI

Waigani: Salika, DCJ
2015: 01 & 12 June; 24 July; 03, 10 & 25 August; 09 September

CRIMINAL LAW – Practice and Procedure – Section 526 of Criminal Code – Application under Section 558 to quash indictment.

Cases cited:
The State v Michael Nama (1999) N1884

Counsel:
Mr J Apo, for the State
Mr S Japson, for the Defense

APPLICATION
09th September, 2015

1.	SALIKA DCJ: By a Notice of Motion dated 11 June 2015 and filed the same day the application seeks the following orders:

i.	The Ex-Officio indictment presented against the accused for the offence of dishonestly applying to own use a motor vehicle, Toyota Land Cruiser Registration No CAX 332, dark blue in colour ten seater, under s.383A(1)(a) of the Criminal Code Act, Chapter 284 be struck out pursuant to s.558(1)(b) of the Criminal Code Act as the charge had already been struck out for improperly framing the charges.

ii.	Such other orders this Court deems appropriate.
The application is brought under s.558 of the Criminal Code.

2.	The brief factual background is that the applicant was the First Secretary to the then Minister for Commerce Trade and Industry Honourable Gabriel Kapris. In his capacity as the First Secretary to the Minister, he wrote to Mr Diri Kobla, the Managing Director of Small Business Development Corporation requesting for a vehicle to be purchased for the Ministry for Commerce Trade and Industry for its effective operations. On 17 January 2011 Mr Kobla approved the request and a vehicle was purchased for the Ministry on 27 January 2011. A Toyota Landcruiser was purchased at the cost of K145,446.65 and the vehicle was registered as CAX 332. Sometime later the applicant shipped the vehicle from Port Moresby to Lae then driven to Mt Hagen. The applicant contested the Dei Open seat in the 2012 National Election but lost. The Police alleged that the applicant used the vehicle himself using it to campaign and not the Ministry for Commerce Trade and Industry.

3.	Mrs Greta Todurawai of Small Business Development Corporation lodged a complaint of the misuse of the vehicle to the Police. An investigation ensued from the complaint and the applicant was arrested.

4.	The applicant was charged on 3 counts namely:

1.	Being employed as the First Secretary to the Minister for Commerce Trade & Industry dishonestly applied to your own use property namely a Toyota Land Cruiser Registration No CAX 332, dark blue in color, MODEL HZJ78R-1K ENGINE NO 1HZ-0663078 belonging to the Ministry for Commerce Trade and Industry the Independent State of Papua New Guinea, s.383A(1)(a) CCA Ch262.

2.	Being employed as the First Secretary to the Minister for Commerce Trade & Industry did stole a vehicle to it a Toyota Land Cruiser Registration No CAX 332, dark blue in color, MODEL HZJ78R-1K ENGINE NO 1HZ-0663078 valued at K145,446.65 the property of Ministry for Commerce Trade and Industry that was bought by Small Business Development Corporation for the office of the Minister for Commerce Trade and Industry which came into your account of your former employer Ministry for Commerce Trade and Industry .

3.	Being employed in the Public Service as the First Secretary to the Minister for Commerce Trade and Industry, did in abuse of the authority of his office by requesting to Mr Diri Kobla, Managing Director of Small Business Development Corporation for the purchase of a Toyota Land cruiser Registration Number CAX 332 for the amount of K145,446.65 prejudicial to the lawful rights of the state.

5.	The matter went to the Committal Court for hearing and the Magistrate refused to commit the applicant for trial in the National Court on the basis that:

a)	The charges were wrongly worded and the accused could not respond to it; and

b)	The complainant did not have locus standi (no standing) to bring the complaint to the Police.

6.	It is clear from the Committal Court file records namely the written decision of the Committal Court Magistrate Pinson Pindipia that he considered the evidence and found that it was not sufficient to commit the applicant for trial in the National Court. He accordingly discharged him.

7.	The Police after the refusal by the District Court directed the file to the Public Prosecutor to consider whether the Public Prosecutor could act under s.526 of the Criminal Code. The Public Prosecutor has had a look at the file and decided to file under s.526. Section 526 reads:

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.

(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer—

(a) copies of the depositions taken at the committal proceedings; and

(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,

within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence

8.	Section 525 is also relevant. It provides:

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.

(3) Where the Public Prosecutor or a State Prosecutor declines to lay a charge, he shall, as soon as practicable—

(a) sign a declaration in duplicate to that effect; and

(b) cause the original of the declaration to be filed in the National Court; and

(c) deliver the duplicate of the declaration to the person committed—

(i) if the person is in custody—by sending it by post or messenger to the person having custody of him; or

(ii) if the person is not in custody—by delivering it to him personally or by sending it to him by post to his last-known address.

(4) On receipt of a copy of a declaration under Subsection (3), any person having custody of the person named in it shall immediately release him from custody in relation to the charge to which the declaration relates.

(5) This section does not apply to a committal for sentence under Section 421(4).

9.	It is clear from the provisions cited above that the Public Prosecutor may reduce into writing in an indictment a charge that the evidence appears to warrant. The power to reduce into writing in an indictment a charge of any offence that the evidence appears to warrant is a power that only belongs to the Public Prosecutor and no one else. This is a power that is not lightly treated. A lot of work is done on the file where the police, after the refusal by a Committal Court to commit an accused person to trial in the National Court, refer the file to the Public Prosecutor for his opinion. The Public Prosecutor will look at the file carefully and make a decision whether to lay an indictment under s.526 of the Criminal Code or not. If the Public Prosecutor is of the opinion that additional evidence needs to be obtained from relevant witnesses or source he will ask for that additional evidence and have that evidence reduced into writing so that copies of that additional evidence is given to the defence some time before trial.

10.	In The State v Michael Nama (1999) N1884, Unreported National Court decision, Kirriwom J said:

...in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor here or Crown Prosecutor elsewhere, he is not subject to any direction or control. He has a very wide discretion on what charge or charges to proceed with and what charges he discontinues. Committal Court's ruling do not restrict the powers of the Public Prosecutor which originates from the Constitution. 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. 

 I respectfully agree with His Honour's observations there.

11.	In practice a State Prosecutor is assigned such a file and he or she will work on that file. At the end of it, a recommendation will be made by the State Prosecutor and that Prosecutor will get the endorsement of the Public Prosecutor whether to lay charges or not. The Public Prosecutor must sign that indictment under s.526, but it can be presented by a State Prosecutor.

12.	In this case the charge has been reduced into writing in an indictment and was presented on 13 April 2015. The indictment is signed by the Public Prosecutor himself. His powers under s.526 is complete.

13.	One of the grounds the Magistrate refused to commit the applicant is because the charge was wrongly framed. Whether the Magistrate was right or wrong is no longer an issue because the Public Prosecutor has reduced into writing his own charge and the charge is properly before this Court.

14.	The other reason the Magistrate refused to commit the applicant to trial at the National Court was because Greta Todurawai had no standing to lay a complaint with the Police. Mrs Todurawai was an employee of Small Business Development Corporation. She got word of what happened and reported the matter to Police. The applicant submitted that she has no more interest in the property and therefore has no standing to lay any complaint to the police. The state submitted that she has an obligation to report if she suspects that a crime may have been committed.

15.	On the question of locus standi the State submitted that in criminal cases or proceedings locus standi should never be an issue. They submitted that when anyone witnesses a crime committed that witness can lay a complaint with the police and the police are obliged to investigate that complaint. It does not have to be a person who has sufficient interest to lay a complaint. The applicant argued that the Small Business Development Corporation was not the owner of the vehicle and that the Ministry for Commerce Trade and Industry owned the vehicle. He argued that if anyone was to complain it should be the said Ministry and not an officer from Small Business Development Corporation.

16.	If this matter was to be pursued as a civil suit the argument about locus standi would be a relevant issue. This is a criminal complaint and in my opinion any person who believes on reasonable suspicion that a crime has been committed, that person can report the matter to the police with the view to have the police to investigate the complaint. It is then the duty of the police to investigate the complaint. If the investigation shows no crime has been committed, no charges will be laid. That is how our system works and must continue to work. If the issue of locus standi was to be brought into the criminal law arena, I can see chaos in our society. Everyone has a moral and a legal obligation to report a crime being committed or on suspicion of a crime being committed.

17.	Apart from the grounds raised in this application it must be said once again that the role of the committal Magistrate is to consider all the evidence before him and decide whether a prima facie case has been established for the matter to go to the National Court.

18.	Considering this application, considering all the matters I have said, I dismiss this application as having no merit to quash the indictment.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Japson & Associate Lawyers: Lawyer for the Defense