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State v Kingsley [2023] PGNC 37; N10131 (20 February 2023)

N10131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 141 OF 2022

THE STATE

V

ALOIS KINGSLEY

Waigani: Berrigan J
2023: 6^th February and 20^th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to permanently stay or dismiss criminal proceedings for abuse of process - Delay - Improper Purpose – Principles considered – Application refused.

Cases Cited:

Papua New Guinean Cases
Wartoto v The State (2015) SC1411
State v Painke (No 2) [1977] PNGLR 141
Herman Leahy v Kaluwin (2014) N5813
Darragh v Kayuma (2015) N6068
Brisbane South Regional Health Authority v Taylor (1996)
Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807
Somare v. Manek; Anderson Agiru v. Electoral Commission and the State (2002) SC687
Telikom (PNG) Ltd v. Rava (2018) SC1694
Pruaitch v Manek (2019) SC1884
S v Paraka, Decision on Presentation of Indictment (2019) N8229
State v Wohuinangu (1991) N966
In re Namah (2018) N7194
John Alex v Martin Golu [1983] PNGLR 117
The State v Popo [1987] PNGLR 286
Reference No 1 of 1977 [1977] PNGLR 362
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033
Thompson v Kalaut (2011) N4265
State v Sora (2018) N7168

Overseas Cases
Jago v District Court of NSW (1989) 168 CLR 12
R v Oxford City Justices; ex parte Smith (1982) 75 Cr App R 200
R v Crawley [2014] EWCA Crim 1028
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Att-Gen’s Reference (No 1 of 1990) [1992] QB 630
R v Glennon (1992) 173 CLR 592; [1992] HCA 16
R v S (SP) [2017] EWCA Crim 742; [2006] 2 Cr. App. R 23
R v McCarthy, McDonald and Isaksen (unreported, NSWCCA, 12 August 1994)

References Cited:
Sections 37, 57, 177, 185 of the Constitution
Order 1 Rules 5, 7, 8 of the Criminal Practice Rules 2022

Counsel:
Mr I Molloy and Mr J Wohuinangu, for the Applicant, Accused
Ms C Langtry, for the Respondent, State

RULING ON APPLICATION FOR PERMANENT STAY OR DISMISSAL

20^th February, 2023

1. BERRIGAN J: The accused applies to have the criminal proceedings against him permanently stayed for being an abuse of process pursuant to s 155(4) of the Constitution and Order 1 Rule 8(2) of the Criminal Practice Rules on the basis that:
   
   • (a) There has been an inordinate and inexcusable delay in bringing the complaint in this proceeding; and
   • (b) There is an improper or an ulterior motive to involve and pursue criminal prosecution for purposes of obtaining civil damages.
     
2. In the alternative, an order that the substantive proceeding be dismissed for being an abuse of process in the said circumstances.
   

BACKGROUND

3. The accused was charged with forgery, uttering and stealing by police on 24 February 2020. He was committed on 6 June 2022 to stand trial in the National Court and first appeared on 4 July 2022. The parties were subsequently directed to file their pre-trial review statements. The State complied with the directions. On 5 September 2022 the accused made written representations through his lawyer to the Public Prosecutor to have the matter discontinued. On 13 October 2022 the Public Prosecutor informed the accused’s lawyers in writing that his Office intended to proceed with the trial. According to the State’s pre-trial review statement it intends to proceed against the accused on three counts of forgery and three counts of uttering.
   
4. It is alleged that between 1997 and 1998 the accused together with Andy Kuek Kien Joo and John Kivung forged a notice of change of directors form and a notice of change of shareholders form transferring 55% of the company Blue Chip No 15. Pty Ltd to the accused (30%) and John Kivung (25%). It is further alleged that the accused and Andy Kuek Kien Joo forged a notice of change of shareholders form transferring 75% of the shares in Mabela No 88 Ltd to the accused. The accused is also charged with uttering these forms with Andy Kuek Joo and John Kivung to the Investment Promotion Authority which made the changes to the company records of both companies. It is alleged that the complainant Andrew Anis, the director and majority shareholder of the companies, did not consent to the changes and received no consideration for them.
   
5. The defence filed this application on 11 November 2022. It is yet to file its pre-trial review statement. As such, the accused’s defence is not known, for instance whether or not he denies any involvement in the alleged events or intends to raise an honest claim of right.
   

PROCEDURE

6. The accused applies for various ad hoc directions pursuant to s 185 of the Constitution and Order 1 Rule 8(1) of the Criminal Practice Rules essentially allowing the application to be brought in the manner it has been, supported by affidavit, and prior to the presentation of the indictment.
   
7. The State raised no objection to the procedure adopted and there is no need to have recourse to s 185 of the Constitution.
   
8. Order 1 Rule 7 of the Criminal Practice Rules, 2022 specifically provides for “any application provided by the Code or by these Rules or any other application in respect of criminal proceedings” to be made orally or by notice of motion. The application is sufficiently compliant with the Rules: Order 1 Rule 5.
   
9. The accused informs me that he resists the presentation of an indictment at this stage because it might prejudice judicial review proceedings of the decision to commit, which is not without merit, but which he does not ask me to determine here. The State submits that whilst the matter is not before me, and it has not addressed the matter in its submissions, I should remit the matter to the committal court if I am concerned.
   
10. The judicial review proceedings are not before me. I have not heard submissions on the alleged defects and I have not been asked to determine the issues. There has been no determination by the National Court in the judicial review proceedings. Civil proceedings take no precedence over criminal proceedings. I do not intend to wait for the civil proceedings. The matter has been committed to the National Court for trial and is currently before me. I intend to deal with it accordingly.
    

DEFENCE SUBMISSIONS

11. On the substantive application, the accused submits that in addition to the power of the Court to prevent the abuse of its process, s 37 of the Constitution provides for protection of the law and specifically s 37(3) provides that a person charged with an offence shall be afforded a fair hearing within a reasonable time. Unlike other jurisdictions it is not just a question of whether the continued prosecution would bring the law into disrepute although this is a significant factor. The power to prevent an abuse must be considered in light of the positive constitutional right. There is no reason to read “a reasonable time” as starting to run only once a person has been charged. Schedule 1.52 provides that the meaning of s 37(3) be given its fair and liberal meaning. Relevant to an application of this sort include: the length of the delay, the reasons for the delay, the accused’s contribution to the delay; and the prejudice to the accused: Jago v District Court of NSW (1989) 168 CLR 12.
    
12. It is alleged that the offences occurred in 1997 or 1998. The information was laid in 2020, a delay of approximately 22 or 23 years. By the time the matter goes to trial it will be in excess of 25 years. In State v Painke (No 2) [1977] PNGLR 141 criminal proceedings were dismissed as an abuse of process. The accused was previously charged with stealing as a public servant and discharged upon that indictment being withdrawn. There was a delay of two years between the alleged incident and a second charge which the court considered was an abuse of process. In Leahy v Kaluwin (2014) N5813 Cannings J permanently stayed criminal proceedings because of delay. The police charged the accused in 2003 allegedly committed in 1998 to 2000. In 2004 the District Court refused to commit but in 2005 the Public Prosecutor presented an ex officio indictment. Cannings J remarked on the difficult of having a fair trial after 14 years.
    
13. The reason for the delay is primarily the inaction of the complainant. He claims to have become aware of management changes without his knowledge or consent in 2001, and started investigations into his removal from his own companies. When he did take action in 2017 by civil proceedings with respect to different but related companies they were dismissed as time barred and only then, motivated by a desire to seek compensation, did he make a complaint to police. The information was laid on 24 February 2020. The accused has not contributed to the delay. He exercised his rights at the committal stage and made representations to the Public Prosecutor at the National Court stage in a timely manner.
    
14. As to prejudice, the Public Prosecutor points to records not being available, which is significant in a case such as this. In any event, there comes a time when delay by its nature and length inevitably leads to prejudice, unfairness and injustice: R v Oxford City Justices; ex parte Smith (1982) 75 Cr App R 200; Darragh v Kayuma (2015) N6068, citing Brisbane South Regional Health Authority v Taylor (1996).
    
15. Furthermore, the complainant has put in train the criminal process for civil enrichment following advice that civil proceedings will fail, as they failed in the related proceedings. This taken with the prolonged delay justifies the substantive orders.
    

STATE SUBMISSIONS

16. The State submits that the application has no merit and should be dismissed. It relies on the principles outlined in Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807, discussed below.
    
17. The State says that the accused has failed to show any inordinate delay causing prejudice to his defence such that he is unable to obtain a fair trial. It says that the delay referred to by the accused as a basis of the stay is not connected to the prosecution itself and is irrelevant. The accused refers to the number of years that have passed since the alleged offences took place but that is not material, what matters is the prosecutorial delay. There was no inordinate or unreasonable delay since the accused’s arrest or his committal to the National Court. There has been no delay caused by the police or the Public Prosecutor. The accused has not shown that he is prejudiced in his defence by the delay, for instance that exculpatory documents or other evidence favourable to his defence existed previously but have gone missing over time or that their absence makes his defence to the charges difficult.
    
18. On the matter of improper motive, the accused acknowledges in the affidavit of Mr Wohuinangu that he is not alleging that there has been an abuse of process in conducting the investigation and bringing the applicant to trial. The accused relies on the motivation of the complainant as a basis to stay the prosecution. That is a matter of credit and should be reserved for the trial proper.
    
19. The accused must demonstrate that the proceedings would not have been commenced but for the ulterior purpose. The prosecution arose from a committal which came about after a criminal complaint was laid and arrest made. There is no evidence before the Court of an ulterior motive by the police informant or the Public Prosecutor. The accused raises a real issue to be determined at the criminal trial namely whether the forms lodged with the IPA were forged.
    

GENERAL PRINCIPLES

20. In State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807 I was required to consider the law governing abuse of process in the context of criminal proceedings in some detail, including at [13] to [45] and [213] to [235]. Relevant principles are set out below. Whilst some of the authorities referred to are not binding in this jurisdiction, I am of the view that they are highly persuasive.
    
21. It is a fundamental principle of our system of criminal justice that it is for the prosecution, not the Court to decide whether a prosecution should be commenced, and if commenced, whether it should be continued. The power of the Public Prosecutor to control the prosecution function of the state is enshrined in s 177 of the Constitution.
    
22. It is also well established, however, that the Court has an inherent power to intervene at any stage of a proceeding to prevent an abuse of its process: Somare v. Manek; Anderson Agiru v. Electoral Commission and the State (2002) SC687; Telikom (PNG) Ltd v. Rava (2018) SC1694; Pruaitch v Manek (2019) SC1884:
    
23. It is evident from a review of authorities such as the ones outlined by Kirriwom J in Wartoto v The State (2015) SC1411 at [87] et seq that it is neither possible nor desirable to define in absolute terms what might constitute an abuse of process in the criminal context. Each case must be determined according to its own facts and circumstances: State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) at [19].
    
24. It also appears from the authorities that there are two broad categories of cases in which the Court has the power to permanently stay criminal proceedings for abuse of process. As explained by the Court of Appeal in R v Crawley [2014] EWCA Crim 1028:
    

“These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings... The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.”

25. In the first category, the focus is on whether it is possible for the accused to obtain a fair trial, bearing in mind the power of the court to impose lesser remedies, and give directions to control the proceedings, for instance through the exclusion of evidence, the issuance of warnings, or the granting of adjournments. In this category it is necessary for the accused to establish not only that there has been an abuse but that he or she is prejudiced in their defence such that a fair trial is not possible.
    
26. In the second category, it is not necessary for the accused to show that it is not possible for them to obtain a fair trial. He or she must show, however, that the continuance of the proceedings would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and inevitably bring it into disrepute: Crawley; Williams v Spautz. Cases where such abuse of process might arise include, but are not confined to, those cases where the proceedings are unjustifiably oppressive, or where there has been bad faith, unlawfulness or misconduct on the part of authorities.
    
27. It is possible that there will be overlap between the two categories.
    
28. It must be emphasised again, however, that the power to permanently stay criminal proceedings is an extreme remedy, or a remedy of “last resort”: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, Crawley (supra).
    
29. It is of fundamental importance that the Court should exercise, rather than refrain from exercising, its jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution: Williams v Spautz [1992] HCA 34. That is particularly so in this jurisdiction given the Constitutional power of the Public Prosecutor.
    
30. In determining whether to stay a proceeding, the Court must balance the public interest in ensuring that those charged with serious crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23.
    
31. When considered in this way, it necessarily follows that a permanent stay will only ever be required in very exceptional circumstances. State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2), supra at [24].
    
32. In addition to the Court’s inherent powers, a person is entitled to the full protection of the law: s37 of the Constitution. A person’s fundamental and qualified rights under the Constitution are enforceable by s 57 of the Constitution. Where a breach is established, s 57 creates a power in, and indeed a duty on, the Court to make such orders as are “necessary or appropriate” to enforce or protect those rights. Those rights are separate and independent of statute and common law: John Alex v Martin Golu [1983] PNGLR 117; The State v Popo [1987] PNGLR 286; Reference No 1 of 1977 [1977] PNGLR 362.
    
33. It does not follow that a breach of a right under the Constitution automatically entitles an accused person to a permanent stay of proceedings pursuant to s 57(3) of the Constitution. It is my view that in determining whether it is “necessary or appropriate” to permanently stay proceedings in the event of a failure to comply with an accused’s rights under the Constitution, the Court should have regard to the principles outlined in the authorities discussed above. Nevertheless, the power is separate and distinct. As such, whether or not those same considerations, or indeed additional considerations, might properly be regarded as having greater weight or significance in determining whether to stay the proceedings may depend on the constitutional right and the nature of the protection required of it by the Constitution.
    

Delay

34. As an exceptional remedy of last resort, it follows that a permanent stay will be very rare on the basis of delay alone: Jago v District Court of NSW (1989) 168 CLR 12, applied State v Wohuinangu (1991) N966.
    
35. In determining this issue regard should be had to: the length of the delay; reasons given by the prosecution for the delay; the accused’s responsibility and past attitude to delay; proven or likely prejudice; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes: per Deane in Jago at 61.
    
36. A similar approach is taken in England, where on an application for stay on the ground of delay, a court should bear in mind the following principles: i) even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; ii) where there is no fault on the part of the complainant or the prosecution it will be very rare for a stay to be grated; iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; and iv) on the issue of possible serious prejudice, there is a power to regulate the admissibility of evidence and the trial process itself should ensure that all relevant factual issues arising from the delay will be placed before the jury for their consideration in accordance with appropriate directions. If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted: R v S (SP) [2017] EWCA Crim 742; [2006] 2 Cr. App. R 23 restating the principles set out in Att-Gen’s Reference (No 1 of 1990) [1992] QB 630.
    
37. Whilst the accused’s right to a fair trial is paramount, the obligation is to provide a fair trial not a perfect trial: Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Glennon (1992) 173 CLR 592; [1992] HCA 16.
    
38. In R v McCarthy, McDonald and Isaksen (unreported, NSWCCA, 12 August 1994) Gleeson CJ said at p 12:
    

“The substantial question to be addressed in cases such as this is whether it can be shown that it is not possible for the accused person to obtain a fair trial. Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed.”

39. In summary, delay is not sufficient. Actual prejudice establishing that the accused is unable to obtain a fair trial is required.
    
40. I do not accept the submission that s 37(3) of the Constitution applies even before a person has been charged.
    
41. Section 37(3) of the Constitution requires that:
    

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

42. On its face the right to be afforded a fair trial within a reasonable time pursuant to s 37(3) of the Constitution applies once a person has been charged. That is clear on any fair and liberal reading of the provision. There is no ambiguity.
    
43. It is also consistent with the interests of justice. In general terms, there are no prescribed statutory time limits on the bringing of charges for indictable offences under the Criminal Code. As in many similar jurisdictions, Parliament in its wisdom has recognised that a person should not escape criminal prosecution for a serious offence because there has been a lapse of time since the date of the alleged offence and the date of charging. In some jurisdictions significant resources are committed to investigating older cases, especially those involving homicide or sexual violence. It is not uncommon for charges to be laid several decades after a homicide is alleged to have taken place as scientific or other evidence becomes available, a fugitive is apprehended, or a witness finally comes forward. Allegations of historical sexual violence are increasingly brought to trial as awareness about these crimes grows and attitudes change.
    
44. This is also consistent with the decisions in Herman Leahy v Pondros Kaluwin (2014) N5813 and Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033 in which the Court held that the "reasonable time" requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution's case must be completed within a reasonable time. Furthermore, what is a "reasonable time" will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it. The learned trial judge also made it clear that other considerations, including the seriousness of the charge, should be considered: Leahy at [42] and Buo [6].
    
45. I agree. Whether the “necessary or appropriate relief” pursuant to s 57 of the Constitution requires a permanent stay should be considered having regard to the principles outlined above in Jago and R v S, supra: State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2), supra at [222]. I do accept, however, that given the Constitutional requirement of s 37(3) greater weight may be given to the reasons for the delay on the part of prosecuting authorities.
    
46. It should also be remembered that the circumstances in Leahy were very particular to it: there was a delay of nine and half years from the presentation of the s 526 indictment to the date of the human rights application to have the matter struck out. Whilst the delay of 5 years was explained due to challenges brought by the accused in the Supreme Court, the State had failed to do anything for four years thereafter and had not attempted to mention the matter let alone bring it to trial.
    

Improper Purpose

47. In Williams v Spautz [1992] HCA 34 following dismissal from University, Dr Spautz instituted private prosecutions against former colleagues on charges of conspiracy and criminal defamation. The trial judge found that the predominant purpose of Dr Spautz in instituting and maintaining the criminal proceedings was not to obtain conviction but to exert pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case.
    
48. The High Court of Australia held that when proceedings are commenced for an improper purpose, a court does not need to be satisfied that a trial would be unfair. The abuse of process by conducting proceedings for an improper purpose is an adequate basis for ordering a stay. It will not be an abuse of process if the prosecutor has a legitimate grievance which he or she would wish to pursue even if he or she was also not motivated by the improper purpose. The accused arguing for a stay must demonstrate that the proceeding would not have been commenced, but for the ulterior purpose (Goldsmith v Sperrings Ltd [1977] 1 WLR 478).
    
49. In Thompson v Kalaut (2011) N4265 Davani J dismissed criminal proceedings on the basis that the prosecutor was aware that the allegations were “utterly false”. She outlined the exceptional nature of the remedy at [101]:
    

“This case is clearly one of abuse of process where the plaintiff was arrested on charges based on facts known to the Police Prosecutor and whoever lodged the complaint, as being incorrect and false.

As the authorities suggest and have held, 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...

50. Thompson should not be taken as authority for the proposition that the Court should enter into a consideration of the merits outside the trial process. As Kirriwom J explained in Wartoto at [94] and [95], the merits of a case are a matter for trial:
    

“The appellant in this case is invoking the court's inherent powers to permanently stay this prosecution as being an abuse of process of the court because the evidence is such that it will not return a conviction. Thus it is futile allowing the criminal prosecution to continue when it can be ended now on the materials before the court. It was and is argued before us that the prosecution simply cannot secure a conviction on the evidence before the court and the court must prevent the abuse of its process by permanently staying this prosecution. If this is the appellant's case, the issue here is, can prosecution of someone based on scarce or mere scintilla of evidence amount to an abuse of court process?

Case authorities relied on by the appellant do not support such a proposition. They are only concerned with long delays connected with prosecution, prosecution associated with ulterior motive or purpose, frivolous and vexatious prosecution, double jeopardy and the like but not one having the effect of hijacking a criminal trial from its normal conventional track on the basis of lack or insufficient evidence or on technical ground.”

51. Countless cases are defended at trial on the basis that allegations are false. It is in that forum, in accordance with the rules of evidence and procedure that those matters can be properly adjudicated. In Thompson it was the misconduct of authorities that was determinative. The essential point was that the prosecutor was aware that the allegations were false. It follows that it would have been an affront to the integrity of the justice system for the Court to allow the proceedings to continue in those circumstances.
    

CONSIDERATION

52. In this case there has been an extraordinarily long delay of about 25 years since the date of the alleged offences.
    
53. For the reasons stated above, I do not agree with the general proposition that such a delay of itself means that the accused is unable to obtain a fair trial. If that were the case none of the cases I referred to above could ever proceed. That would clearly be an affront to the interests of justice. Nor do I agree with the State that the delay is irrelevant because it occurred prior to charging.
    
54. The authorities make it clear that a permanent stay is a remedy of last resort in the criminal context. The statements made in the civil cases relied upon by the accused where extensions of time to statutory time limits have been refused have less weight in the criminal context. Whilst the potential consequences for an accused in criminal proceedings are grave, the standard of proof is much higher. Furthermore, [b]y the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness”: per Brennan CJ in Jago, supra. In addition, a judge in this jurisdiction sits as the decider of fact and must give reasons for conviction, which reasons are subject to scrutiny on appeal unlike the deliberations of a jury. I also note that the decision to permanently stay the indictment in Painke was not made on the issue of delay. The Court made it clear it was not determining that issue. The indictment was stayed because it contained charges founded on the same factors on which a previous indictment had been discharged by way of nolle prosequi.
    
55. It is not suggested in this case and there has not been any undue delay on the part of investigating or prosecuting authorities either prior to or since charging the accused. There has been no undue delay on the part of the accused. The delay lies with the complainant.
    
56. It does seem strange on the face of it that no complaint was made until 2019, some 18 years after which the complainant says that he became aware of the alleged offences, particularly given the nature of the allegations, namely the fraudulent transfer of his ownership in two companies worth K80.62m and K33m, respectively. There is some suggestion in the committal decision that this may be due to a lack of education, sophistication or access to advice on the part of the complainant. Whether or not that bears scrutiny remains to be seen but that is a matter going to the credibility of the complainant which is best considered in the context of other evidence at trial.
    
57. Critically, the accused has failed to demonstrate that he is unable to obtain a fair trial as a result of the delay.
    
58. The accused’s submission about the loss of documentary evidence is unclear. Contrary to the accused’s submissions, the Public Prosecutor did not concede in his correspondence that there had been a loss of documentary evidence. The accused has not established that any documentary evidence has been lost. He has not identified any such evidence with specificity or why without it he will be prejudiced in his defence at trial.
    
59. It has also not been established that any key witnesses have become unavailable, nor that the accused is unable to obtain a fair trial in their absence.
    
60. I accept that memories fade and recollections dim. I also accept that there are certain events that a person is more likely to recollect than others. At the risk of stating the obvious, a person is not likely to forget whether or not they killed another person. Recalling the circumstances in which they signed a document is a different matter. It is likely to depend on the significance of the document. Here is it alleged that the companies the subject of the forgeries were worth very large amounts of money, although that appears from submissions to be very much in dispute. It is not possible for me to make a determination about those matters here. Again, those are matters properly considered in the context of the evidence as a whole.
    
61. It also appears that the complaint was laid on the advice of the complainant’s lawyer after civil proceedings in respect of a related company was struck out for being time barred and at least in part with the hope of obtaining monetary restitution in the event of the conviction of the accused. Those are matters that should properly form the subject of cross-examination of the complainant, particularly when taken together with the long delay in the laying of the complaint.
    
62. But those matters do not of themselves establish that the allegation is false. Contrary to the accused’s submissions, a cursory review of the paragraphs referred to show that both the lawyer and accountant say that they conducted their own review before forming a view as to the fraudulent nature of the transfers and recommending the matter be referred to police. Their opinion about the nature of the transfers is beside the point but it does not establish either that they or the complainant believe the allegations to be false.
    
63. Criminal proceedings are not to be used as a vehicle to pursue civil claims. Prosecutions are brought by the Office of the Public Prosecutor on behalf of the State not the complainant or any alleged victim. Having said that the allegation here is criminal in nature and restitution is a well-established feature of sentencing in this jurisdiction. This is not a case like Williams v Spautz, supra, for instance, where the private prosecutor brought the complaint with the predominant purpose of obtaining an outcome – his reappointment or the settlement of his wrongful dismissal case - which could not be given by the Court upon conviction in the criminal proceedings.
    
64. Critically, there is no suggestion that the proceedings would not have commenced but for any improper purpose on the part of the investigating authorities.
    
65. In addition, it is clear from the letter from the Public Prosecutor, Mr Kaluwin, that he has made a deliberate decision after reviewing the evidence to proceed with the matter on the basis that there are reasonable prospects of conviction and that prosecution is in the public interest.
    
66. The public interest of this case may not be as great as that of a case concerning homicide or sexual violence. The charges in this case do not concern State monies. Nevertheless, forgery and other dishonesty offences are properly regarded as serious offences. Whilst in dispute, the value of the companies the subject of the charges is allegedly very large and the alleged abuse of the registration processes under the Companies Act is serious.
    
67. In my view the public interest includes the interests of other accused and the community in the efficient administration of justice and the timely disposition of cases. Having said that there will be no long delay in bringing this matter to trial nor will it cause any undue delay to other matters in this track. It does not appear that the case will be complex. The State intends to call six witnesses and tender 27 documents.
    
68. Furthermore, I am not satisfied the proceedings are unjustifiably oppressive because of the delay or the motivation of the complainant, considered separately or in combination.
    
69. In summary, this is a case that has come before the Court some 25 years after the alleged events and on the complaint of a person who is motivated at least in part by the prospect of financial restitution upon conviction. This is not a case where the delay has been unavoidable or the reasons for it are immediately apparent. There has been no delay on the part of the accused. Nevertheless, the accused has failed to demonstrate actual prejudice in his defence at trial because of the delay. The matters raised ultimately go to the credibility of the complainant and are best determined in the context of the whole of the evidence at trial. There has been no undue delay on the part of the investigating and prosecuting authorities. There has been no improper conduct on the part of investigating or prosecuting authorities. The Public Prosecutor in the exercise of his Constitutional function has reviewed the matter and made a deliberate decision that there is a reasonable prospect of conviction and that prosecution is in the public interest. I am satisfied that there is public interest in the case. It concerns serious allegations concerning the fraudulent transfer of valuable assets.
    
70. In conclusion, I am not satisfied that the accused will be unable to obtain a fair trial because of the delay. I am not satisfied that the proceeding should be stopped because their continuance would offend the Court’s sense of justice or propriety or that they would undermine public confidence in the criminal justice system and inevitably bring it into disrepute because of the complainant’s motivation, taken on its own or in combination with the delay. Public interest requires that the matter proceed to trial. It should do so as soon as possible.
    

Orders

71. Accordingly, I make the following orders:
    
    • (1) The application to permanently stay or dismiss the criminal proceedings against the accused is sufficiently compliant with the Criminal Practice Rules.
      
    • (2) The application is refused.
      

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Public Prosecutor: Lawyer for the State
Gileng & Co: Lawyers for the Accused