N6547
     PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.181 OF 2012

THE STATE

V

ALOIS KINGSLEY GOLU

     	Kokopo: Lenalia, J.	
  	2016: 8th& 9th August

CRIMINAL LAW – Misappropriation of funds – Indictment tended – Facts in brief stated – No plea taken – Section 383A, Criminal Code. 

PRACTICE & PROCEDURE – Practice prior to taking pleas in criminal charges – Motion to quash indictment pursuant to s.558 ((1) (a) & (2) (a) of the Code. 

PRACTICE & PROCEDURE – Motion to quash on basis of indictment calculated to prejudice or embarrass accused on the issue of ownership of amounts of funds pleaded on the indictment. 

Cases cited:
Aphones Sapau v The State [1990] PNGLR 302
Magistrate) & Anor (22.3.2013)
OS (JR) No.252 of 2012 Alois Kingsley Golu v Regett Marum (Committal 
R v Nakian Mandiam [1973] PNGLR 135
R v Nakian Mandiam [1973] PNGLR 135	

Counsel: 
Ms. J. McAlpine, and Ms. T. Aihi, for the State
Mr. W. Donald, for the Accused

9th August, 2016

1. 	LENALIA J:  The accused is charged with two counts of misappropriation of two large sums of money on the first count K5, 577, 000.00 and on the second count K1, 000, 050.00 the property of the Independent State of Papua New Guinea. 

2. 	The trial was set to commence on 8th this month that was yesterday. This contrary to s.383A of the Criminal Code. 

3.   The indictment containing the two charges was presented yesterday and the brief facts were stated for purposes of arraigning the accused. After the brief had been stated, Mr. Donald moved a motion to quash the indictment pursuant to s.558 (1)(a) and (2) (a) of the Criminal Code. Due to late notice, the Court adjourned to this morning. 

4. 	The Notice of Motion was filed pursuant to s.155 (4) of the Constitution. Mr. Donald moved their Motion and argued on the basis that, the indictment is calculated to prejudice or embarrasses the accused’s defence to the charge. 

5. 	Counsel referred to a number of cases including the case of Aphones Sapau v The State [1990] PNGLR 302 where the Supreme Court said that refusal to allow an offender to make an application to quash an indictment under s.558 (1) and (2) amounts to error of law which may warrant a re-trial. 

6.	 I heard, Mr. Donald on a number of issues. On the brief history of this case, the accused has appeared in court two times. The accused was committed to stand trial in the National Court by the District Court in Kokopo. He sought a review of the decision by the Committal Court and on 22nd March 2013 Justice Cannings refused leave. The accused then appealed to the Supreme Court. The appeal was dismissed. 
(See OS (JR) No.252 of 2012 Alois Kingsley Golu v Regett Marum (Committal Magistrate) & Anor (22.3.2013) 

7. 	Since the matter was dismissed, it was listed to this month for trial. I heard arguments from both counsels this morning. For the accused Mr. Donald argued that charge came about at the time the NEC ordered investigations to be carried out in relation to misappropriation of development budget funds through the National Planning & Monitoring concerning an amount of K125 million kina. 

8. 	Counsel argued that ownership issue at this stage has not been made out, because the NEC and parliamentary committee did not give any approval of the monies alleged or part of it alleged against the accused.

9. 	Counsel raised the issue about s.209 of the Constitution saying that, upon consideration of the issue of ownership, the National Court has no jurisdiction to determine Constitutional questions.  

10.	Ms. McAlpine responded to the defence submission that, the issues raised by the defence counsel are matters that, the prosecution will prove in evidence if the trial is allowed to continue and at this stage, what the defence is arguing is too premature. On the issue of ownership of the funds, counsel submitted that obviously, the money stated in the body of the indictment is part of the money that was allocated to Kokopo Community Infrastructure Development Funds. Counsel submitted the owner of the moneys was the State and that is why the accused is being indicted for the two crimes of misappropriation.

Applicable Law 

11. 	The motion to quash is made under s.558 (1) (2) of the Code which state:

	“558. Motion to quash indictment.

(1)	The accused person may, before pleading, apply to the court to quash the indictment on the ground that – 
(a)	it is calculated to prejudice or embarrass in his defence to the charge; or 
(b)	it is formally defective.

(2)	On a motion under Subsection (1), the court may – 
(a) quash the indictment; or’
(b)	order it to be amended in such manner as the court thinks just; or
(c)	refuse the motion.”

12. 	This trial has been delayed for various applications and appeal to bother the National Court and then to the Supreme Court. I find the indictment is not defective as was stated in the old case of R v Nakian Mandiam [1973] PNGLR 135. As I find, irregularities in the District Court through the committal processes in regard to consideration of or under s.209 of the Constitution was already discussed by His Honour Justice Cannings in Alois Kingsley Golu v Regett Marum (Committal Magistrate) & Anor (supra).

13. 	The court has read certain documents in the affidavit deposed to by the accused sworn and filed on 8th August 2016. If authorities now say that the raising of the funds was never appropriated through the 2010 National Budget, how did the large sum of money get out of budget for purpose to which this money was applied? 

14. 	If there was or were breaches of ss.14 and 22 of the Public Finance Management Act and if there was lack of compliance in how the money was obtained, then the State must do something to find out the nature and process and find those responsible and bring them to justice. 

15.	 Let me say that, if there are other persons involved in dealing with the money part of which the accused has now been indicted, the State has long hands to reach out to them and bring them in to face the consequences. On the instant application, I agree with Ms. McAlpine that, this application is too premature at this stage: R v Yofia Abone [1967-1968] PNGLR 227 at 282. I refuse this application and direct that the trial proper shall proceed. 

___________________________________________________________________
Public Prosecutor			:	Lawyer for the State
Donald & Company Lawyers	:      	Lawyer for the Applicant.