N7327

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 251 of 2017

THE STATE

V

TRACEY TIRAN

Waigani: Miviri AJ
2018: 25th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Conspiracy to defraud- Misappropriation – Motion to quash Indictment – meaning of sufficiency – refusal to commit – discretion of Public Prosecutor – s526 CCA – lawful exercise – indictment in order for trial.
Facts
Accused motion to quash indictment. No committal proceedings public Prosecutor ex officio indictment does not lie against accused.

Held
Motion refused
Sufficiency in language of section compatible with refusal to commit for trial
Public Prosecutor discretion properly exercised.
Indictment to proceed to trial.

Cases Cited: 
The State v Esorom Burege (No. 1) [1992] PNGLR 481.
Peter Malt v Dean Queen (2009) N3577
Review pursuant to Constitution Section 155 (2); Application by Herman Joseph Leahy [2006] SC855
Pauta and Susuve v Commissioner of for Corrective Institutions his servants and agents [1982] PNGLR 7
Amaiu v Commissioner of Corrective Institution and the State [1983] PNGLR 87
The State v Wartoto [2013] PGSC 59; SC1298 
The State v Liri  [2006] PGNC 120; N3110 

Counsel:

T. McPhee, for the State	
D. Wapu, for the Defendant
		
RULING
26th June, 2018 
1.	MIVIRI AJ: This is the ruling of notice of motion that has been filed by the accused seeking to quash the indictment presented against herself by the Public prosecutor.

Short facts

2.	The applicant was indicted by ex officio Indictment that she between the 1st day of June 2010 and the 25th day of October 2015 in Port Moresby conspired with Peter Pomat and Enoch Sihil to defraud the State of K500, 000.

3.	She is further charged that between the same dates 1st June 2010 and the 25th October 2015 she dishonestly applied to her own use K 500, 000 the property of the Independent State of Papua New Guinea.

Charge of Conspiracy to commit forgery/Misappropriation.
4.	The charges were laid pursuant to firstly sections 407 and 383A of the Criminal Code Act. Accused invokes section 534 (2) by motion that the Indictment be quashed. And she argues that by section 558 Motion to quash indictment on the basis that it is calculated to prejudice or embarrass her in her defence to the charges. It is formally defective. If it is so established the court may quash the indictment, or order its amendment in such manner as it seems just or refuse the motion under section 558 of the Code.

Defence motion to Quash Indictment
5.	Accused argues that there was no refusal to commit to stand trial by the magistrate. The orders attached as annexure “C” reading, “Case struck out against the Defendant for want of sufficiency of evidence,” cannot be the basis upon which the Public Prosecutor is empowered to indict as he has done here. He has acted ultra vires and therefore the Indictment is not properly before the court and must be quashed. The accused cannot answer a charge not properly before the court.

State

6.	   The State has submitted that the Indictment is properly before the court by virtue of the specific words under section 95 “Court to consider whether prima facie case.” That the magistrate refused to commit the accused for trial when he stated “Case Struck out against the Defendant for want of sufficiency of evidence,” he was using the words of the section it was not sufficient to put the accused on trial for the indictable offences of conspiracy to defraud the State and also dishonest application of property to her use. He refused to commit her to stand trial and therefore the discretion of the Public Prosecutor under section 526 was lawfully executed and the indictment was properly before the court. It was not the case of The State v Esorom Burege (No. 1) [1992] PNGLR 481 where the information was withdrawn and the action of the State Prosecutor to reduce it to writing and to present it before the court was clearly not in compliance of the law. There had been no refusal to commit and therefore the actions of the State Prosecutor were void ab initio there. That wasn’t the case here.

Issue

7.	Whether or not there has been committal in accordance with sections 95 and 100 of the Districts Court Act?

Purpose of legislation

8.	What is the purpose of considering whether there is prima facie case? The purpose of considering a case prima facie is depended on whether or not it is sufficient or not. It is necessary because if the evidence is sufficient the accused will be put on trial. Similarly section 100 resounds similar that indeed the accused will be put on trial if the evidence is sufficient. That is what has happened here by the magistrate because that is why the file was placed before him. Why else was the file placed before him other than that purpose. The scope of the meaning of Case Struck out against the Defendant for want of sufficiency of evidence is in that context that committal will not take place on the sufficiency of the evidence. And this is clear when seen in the light of The State v Esorom Burege (supra) because sufficiency of evidence is in that context not in a military situation of discharge or dismissal. Because both sections 95 and 100 are not sections in that regard at all and cannot be extended in that manner. The situation described by Peter Malt v Dean Queen (2009) N3577 is not applicable here because the empowering provisions of section 95 and 100 do not allow. It leaves no room to go outside other than to deal that here a committal has not taken place because the magistrate has ruled that evidence not sufficient to commit the matter for trial. That is what the words read in the context of the legislature mean not otherwise. Which would mean that there was sufficient evidence to commit but the magistrate did not. Having perused the file and opinion that it was more than enough the public Prosecutor used its’ discretion with an ex officio Indictment. Because there was no committal. The indictment is proper and comes into being by way of law and remains now against the accused.

Breach of rights
 
9.	I determine and adjudge that there has been no inordinate delay in the trial of the accused. It maybe a 2015 Indictment but is a matter upon the State to adduce evidence and therefore does not prejudice or embarrass her case the burden is upon the State to prove its case beyond all reasonable doubt. The accused is not prejudiced or embarrassed by that fact. Accused has on the eve of trial made an application to enforce her rights and filed  an affidavit and a supplementary evidence that are arguments in law rather  than facts to be relied upon in her motion. Paragraphs 1 to 6 are facts within that meaning. Paragraphs 7 to 23 are legal arguments not facts and cannot be relied upon the accused in support of the motion that she has filed. The annexure to the affidavit are facts. The further affidavit filed 12th June 2018 sworn 2nd June 2018 from paragraph 3 to 6 are not facts but legal arguments which rightly belong to a submission and not facts to be relied on in a motion as here. Along the course of the proceedings accused has not made any similar application during the way that she has come in similar fashion to enforce her rights at the end. If it was a genuine matter that is what she ought to have done to file immediately to enforce. That has not happened. She slept over her rights. She is one of the many other persons awaiting their trial on the list. It is first come first serve in that manner. Her rights do not supersede those of the others who are also waiting their trial in the list of criminal matters awaiting their further orders. 

10.	In my view the State has not breached her rights in bringing the matter to trial as it has done now. She relies on section 57 and 58 of the Constitution to enforce her rights but there are no breaches shown by her in the motion that she has filed because the evidence is not there in the affidavit that she has filed excerpts of which are pointed out above. There is no evidence to back up the contention that she makes. Reliance on sections 57 and 58 is without evidence and therefore fails. Here motion is denied. The trial will proceed on the Indictment she is not prejudiced or embarrassed in accordance with the whim of that law under section 534 (2) and motion under 558 relying upon sections 95 and 100 of the District Courts Act is not made out and is refused. This is not the situation envisaged by the Supreme Court in Review pursuant to Constitution Section 155 (2); Application by Herman Joseph Leahy [2006] SC855.

11.	Whether the evidence be it documentary or otherwise is credible or not because of the lapse in years is a matter for the trial not at this juncture of the proceedings and will not be a basis to use the powers of the court under the sections invoked. The excerpts of a chronology of events set out in the submission is contributory to her part not likened to Pauta and Susuve v Commissioner of for Corrective Institutions his servants and agents [1982] PNGLR 7 where the rights of the plaintiffs breached are set out following damages to them. That is not a case here nor is it a case of Amaiu v Commissioner of Corrective Institution and the State [1983] PNGLR 87. The particulars in the affidavit which are strictly facts in the affidavit and the further affidavit of the accused applicant show the State through the office of the Public Prosecutor and Public Prosecutor and his servants and agents together with the Police are following the letter of the law: Wartoto v State [2013] PGSC 59; SC1298 in addressing the matter with the accused so that she is properly brought into the next phase of the criminal justice process here. What the arresting officer Ubis Kibale together with the Public Prosecutor have shown is adherence to section 37 and the process of the protection of the law and not otherwise to the accused. That will not be a basis to set aside the Indictment or to quash it. Because there is no illegality with intent to prejudice or embarrass the accused in her case or defence. Section 37 and 37 (3) of the Constitution is not made out on the balance required by the applicant/accused to the required standard and proof and therefore section 57 and 58 do not lie in favour of the accused in accordance with Pauta and Susuve (supra) and Amaiu (supra). 

12.	Accordingly the motion of the Accused/Applicant by Amended Notice of Motion dated the 15th June 2018 is without merit and dismissed. The Indictment will not be quashed and will proceed to trial now: Liri v The State [2006] PGNC 120; N3110.

Ordered Accordingly

__________________________________________________________________Public Prosecutor         :  Lawyer for the State	
Punau & Co Lawyers   : Lawyer for the Defendant