N11226
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1903 OF 2023 & CR(FC) 317 OF 2023

THE STATE

V

JONAH SAKOL LANGAH

AND
CR 1904 OF 2023 & CR(FC) 318 OF 2023

THE STATE

V

SHALATEE DONG BASIL

AND
CR 1905 OF 2023 & CR(FC) 319 OF 2023

THE STATE

V

RUBEN TANGU

AND
CR 1906 OF 2023 & CR(FC) 320 OF 2023

THE STATE

V

DONALD NARUA

AND
CR 1907 OF 2023 & CR(FC) 321 OF 2023

THE STATE

V

VINENT JACK

AND
CR 1908 OF 2023 & CR(FC) 322 OF 2023

THE STATE

V

DUNDEE OTTOGOMA
Accused

BUIMO/LAE: POLUME-KIELE J
4, 21 OCTOBER 2024; 5 FEBRUARY, 3, 17 MARCH 2025

CRIMINAL LAW – Practice and procedure – motion seeking to quash indictment moved pursuant to Section 558(1) - Criminal Code – Indictment laid under section 526 of the Criminal Code – whether indictment formally defective – whether indictment properly laid by a proper person or authority’ and whether the property which is alleged to have been stolen is the property of the “Wau/Bulolo" or the State - whether the indictment is properly before the Court – Indictment not defective – Indictment accepted

CRIMINAL LAW – Practice and procedure – motion to quash indictment laid under section 526 of the Criminal Code – whether indictment calculated to prejudice or embarrass the accused in their defence – whether charge contains sufficient particulars of the offence  - indictment is properly before the Court – Indictment properly before the Court and is accepted - Application dismissed.

Cases cited

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Pruaitch v Manek (2019) SC1884
Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (2006) SC855
Roland Tom v The State (2019) SC1833 at [28] 
State v Douba [2018] N7627 
State v Louise Paraka (2002) N2317
State v Paraka [2020] N8229
The State v Burege (No 1) [1992] PNGLR 481
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
The State v Jason Dongoma (2000) N2038
The State v John Koma (2002) N2176
The State v Michael Nama and Others (1999) N1884
The State v Michael Nama and Others (1999) N1884
The State v Muro (2013) N5289 
The State v Ngasele (2003) SC731

Counsel

Ms S Joseph, for the State
Mr. G Gileng & Ms K Bun for the accused

RULING ON APPLICATION TO QUASH THE INDICTMENT

1.	POLUME-KIELE J:  On 21 October 2024, I heard an application moved pursuant to s 558 of the Criminal Code by the accused; Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma seeking to dismiss the indictment presented by the State Prosecutor on 4 October 2024. 

2.	I reserved my decision which I now deliver.

Brief background

3.	The accused Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma, all were charged and committed to stand trial on 29 August 2023 with one (1) count of stealing contrary to s 372 (1) of the Criminal Code together with a further charge of break and enter contrary to s 395 (1) (c) of the Criminal Code.

Objection

4.	On 4 October 2024, at the National Court sitting held at Buimo National Court, Lae, two indictments were presented by the State Prosecutor, Mr. Done of the Public Prosecutor’s Office charging all the accused persons, Jonah Sakol Langah of Kumgumanda Village, Wapendamanda, Enga Province, Shalatee Dong Basil of Boring Village, Finschaffen, Morobe Province, Ruben Tangu of Nangusap Village, Ambunti, East Sepik Province, Donald Narua of Kadawa Village, South Fly, Western Province, Vincent Jack of Tente Village, Mendi, Southern Highlands Province and Dundee Ottogoma of Nupura Village, Lufa, Eastern Highlands Province with one count of stealing contrary to s 372 (1) (10) of the Criminal Code together with  one count of break and enter contrary to s 395 (1) (c ) also of the Criminal Code. 

5.	On arraignment of the indictment and prior to the accused, Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma taking their plea; their counsel, Ms Bun objected to the indictment on the ground that her clients were committed pursuant to s 372 (1) only in the Committal Proceedings and therefore, the charges as presented in the indictment under s 372 (1) (10) presented before the Court on 4 October 2024 is defective in form on the grounds that the accused were never committed to stand trial on the count of stealing under s 372(1) (10) of the Criminal Code. 

6.	The objection raised by Counsel was dealt with by the Court there and then when the Court intimated that the Court was dealing with the indictment as presented by the Public Prosecutor and or a State Prosecutor. Here, an indictment as presented by the Public Prosecutor or a State Prosecutor is within his powers under s 525 of the Criminal Code.  

7.	Section 525 (1) of the Criminal Code states that:

“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 (underlining mine)

(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	…
	4	…
	5.	…” 

The charges in the Indictment

8.	The first count is STEALING contrary to s 372 (1) (10) of the Criminal Code

“(1) 	Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: 	Subject to this section, imprisonment for a term not exceeding three years.

(2)	 If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) 	If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) 	If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5) 	If–

(a) 	the thing is stolen from the person of another person; or

(b) 	the thing is stolen in a dwelling-house, and–

(i)	its value exceeds K10.00; or

(ii)	 the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c)	 the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d)	 the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e)	 the thing is stolen from a public office in which it is deposited or kept; or

(f)	 the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument, the offender is liable to imprisonment for a term not exceeding seven years.

(6) 	If the offender is a person employed in the Public Service, and the thing stolen–

(a)	 is the property of the State; or

(b) 	came into the possession of the offender by virtue of his employment, he is liable to imprisonment for a term not exceeding seven years.

(7)	 If the offender is a clerk or servant, and the thing stolen–

(a) 	is the property of his employer; or

(b) 	came into the possession of the offender on account of his employer, he is liable to imprisonment for a term not exceeding seven years.
(8) 	If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.

(a)	If the thing stolen is–

(a) 	property that has been received by the offender with a power of attorney for its disposition; or

(b) 	money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or

(c)	 the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or

(d)	 the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction, the offender is liable to imprisonment for a term not exceeding seven years.

(10) 	If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11) 	If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.

(12) 	If the offender, before committing the offence–

(a) 	had been convicted on indictment of an indictable offence against any provision of this Division; or

(b) 	had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character, he is liable to imprisonment for a term not exceeding seven years” 

9.	The second count is a charge of break and enter under Section 395 (1) (c) of the Criminal Code Act. Section 395 states:

“395. 	HOUSEBREAKING: BURGLARY.

(1) 	A person who–

(a)	breaks and enters the dwelling-house of another with intent to commit a crime in it;

or

(b)	having–

(i)	entered the dwelling-house of another with intent to commit a crime in it; or

(ii)	committed a crime in the dwelling-house of another, breaks out of the dwelling-house; or

(c) 	breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) 	If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life”. 

Section 558 Application to quash the indictment

10.	It must be pointed out that in spite of the Court dealing with the application on 4 October, on 17 October 2024, the accused/applicants filed a Motion under s 558(1) of the Criminal Code to quash the Indictment. The application to quash the indictment is made pursuant to s 534 and s 558(1) of the Criminal Code. 

11.	Section 558 provides for a Motion to quash indictment. Section 558 states:

(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 him 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.	Essentially s 534 provides for formal defects: Section 534 states:

(1) 	An indictment is not open to objection–

(a)	 by reason of the designation of any person by a name of office or other descriptive title instead of by his proper name; or

(b)	for omitting to state the time at which the offence was committed, unless the time is an essential element of the offence; or

(c)	for stating imperfectly, the time at which the offence was committed; or

(d)	for stating the offence to have been committed on an impossible day, or on a day that never happened or has not yet happened.

(2)	An objection to an indictment for a formal defect apparent on its face must be taken by motion to quash the indictment before the accused person pleads to the indictment.

13.	Two main grounds of objection are set out in the Notice of Motion. They are outlined as follows: 

14.	With regard to the charge of Break and Enter under s 395(1) (c) of the Criminal Code: They claim that: 

(a)	The indictment is materially defective in that:

(i)	the owner of the dwelling house named in the indictment, namely Sam Basil is deceased who died intestate and the dwelling house the subject of the charge is vested forms part of the estate of the late Sam Basil, the owner of which is vested in Public Trustee as the interim administrator of the estate pursuant to s 44 of the Wills Probate and Administration Act, pending determination of the appointment of an Administrator in National Court proceedings MP 111 of 2022, In the Matter of An Application under the Wills Probate and Administration Act and In the Application for Administration of the Estate pf Samuel H Basil of Mumeng, Morobe Province, Deceased, Nahina Rillana Temuri (Applicant), Jacob Popuna, Public Trustee (First Respondent) and Shalatee Dong Basil (Second Respondent); and that the consent of the Public Trustee was not obtained include “Sam Basil “as the owner of the dwelling house the subject of the charge.

(ii)	the owner of the property named in the indictment “Sam Basil” lacks legal capacity to be named as the owner of the property.

(iii)	the owner of the properties listed in the indictment allegedly stolen is not named in the Indictment.

(iv)	The Indictment omits to plead the principal offender and those that aid and abetted the commission of the crime pursuant to s 7 of the Criminal Code.

(b)	Regarding the charge of Stealing under s 372 (1) and (10) of the Criminal Code; they claim that:

(i)	The owner of the money pleaded in the Indictment lacks legal capacity to own the property alleged to have been stolen by the accused in that the people of Wau- Bulolo District” is not a body corporate, legal entity. 

(ii)	The indictment omits to plead the principal offender and those that aid and abetted the commission of the crime pursuant to s 7 of the Criminal Code. 

Committal Process

15.	To address this application, let me begin with the committal proceedings process. 

16.	In this present case, the information was instituted in Lae District Court in proceedings registered as CB 2854/2023 & COM NO. 377 of 2023 for the charges laid against the accused, Jonah Sakol Langah. 

17.	For the accused Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma, the committal proceedings is registered as COM No. 366-370 of 2023 (CB No. 2862-2871 of 2023). 

18.	The information leading to the charges now before the Court were laid at the Lae District Court on 17 July 2023 by Sergeant Samuel Gwingin of the Criminal Investigation Division, (Breaking Squad), National Capital District, Papua New Guinea.

19.	The information laid was under Oath before Magistrate His Worship, Mr. Lavutul of Lae District Court were in relation to two charges against the accused. They are in the following terms: 

“1.	On Tuesday, 2nd August 2022, at Mumeng Station, Bulolo District, Morobe Province, Papua New Guinea, the accused Jonah Sakol Langah,  Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma did break and enter into the dwelling house of the late Honourable Member for Bulolo, Mr. Sam Basil and whilst in that house opened two (2) safes by using the lock combinations and therein stole properties to wit: Seven Hundred and Eighty Thousand Kina in cash (K780,000.00) in cash; 1 x colt MK IV 80 Series Pistol Serial Number 3588IMR valued at K24,000.00; 1 x 9 mm Box containing 50 pieces of ammunition valued at K409.10; 3 x Empty Magazines valued at K3,000.00; 1 x Packet of Winchester 12 Gauge Buck Shots containing 12 cartridges valued at K568.20; total value at K27,977.30 the property of Bulolo District Wards and the late Sam Basil, Member for Bulolo and the Deputy Prime Minister of Papua New Guinea and broke out of the said dwelling house” 

Thereby contravening Section 395(1) (c ) of the Criminal Code Act, in conjunction with Section 7 (1) (a) (b) (c ) (d) of the Criminal Code Act, Chapter 262” 

2.	On Tuesday, 2nd August 2022, at Mumeng Station, Bulolo District, Morobe Province, Papua New Guinea, the accused Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma did each and severally stole cash money the property of Wau/Bulolo District Wards, valued at a total of Seven Hundred and Eighty Thousand Kina in cash (K780,000.00) 

Thereby contravening Section 372(1) of the Criminal Code Act, in conjunction with Section 7(1) (a) (b) (c ) (d) of the Criminal Code Act, Chapter 262” 

20.	All the accused Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma were each and severally charged for one count of stealing contrary to s 372(1) of the Criminal Code; together with a further charge of one count of break and entering contrary to  s 395(1) (c) of the Criminal Code. Section 7 (1) (2) (a) (b) (c ) (d) of the Criminal Code was also invoked.

21.	The accused Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma were committed to stand trial at the National Court, Lae  on 29 August 2023. 

22.	Section 96 Statement was also administered to all the accused on 29 August 2023. 

23.	All the accused; Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma  exercised their right to remain silent. 

The Law on Indictment

24.	I now address the objection.

25.	Firstly, s 525 of the Criminal Code provides for the procedure for indictment. It states:

“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.
			…
			…
			…” 

Defect in Indictment

26.	I will attempt to address (this application by reiterating the statement made by his Honour Toliken A.J (then) in the case of The State v Muro (2013) N5289 where, an objection was raised regarding the indictment before the accused was arraigned. In that case, the defence argued that the accused had no knowledge of the charge of misappropriation. They only know of the three counts of false pretence upon which the accused was committed to Court for trial. His Honour Toliken AJ (then) held that the law makes it clear that the Public Prosecutor has the power to indict for any offence warranted by the evidence under s 525 (1) of the Criminal Code: see  also State v Louise Paraka (2002) N2317; State v Douba [2018] N7627.

27.	Further in the case of The State v John Koma (2002) N2176, the accused was charged with one count of robbery and two counts of attempted rape. At the committal, the accused was only charged with robbery and was committed to stand trial for the crime of robbery. At the commencement of the trial, counsel for the accused moved an application under s 558 of the Criminal Code to have the indictment quashed alleging that the indictment presented by the Public Prosecutor was defective in form and was calculated to prejudice or embarrass the accused in his defence since he was never committed to stand trial on the two counts of attempted rape; neither was he questioned by police during the record of interview on the two counts of attempted rape. The Court stated that “The Public Prosecutor is "to control the exercise and performance of the prosecution function within the state of Papua New Guinea " ( Arthur Gilbert Smedley v the State (1980) PNGLR 379). The Power of the Public Prosecutor and the State Prosecutors deriving from the Constitution (ss.176 and 177), the Public Prosecutor (Office and Functions) Act ch.338, s.4(1) and the Criminal Code, ss.524, 525 and 526, to lay indictment is an absolute one, it is for the prosecutor to choose the charge” 

28.	 In this present case I am led to understand by the submission of Ms Joseph that the State Prosecutor has considered the evidence in the matter and in the exercise of his discretion under s 525 (1) (a) of the Code presented an indictment for the offence of stealing under s 372(1) (10) of the Criminal Code in his opinion is supported by the evidence in the committal depositions as warranted. There is no defect here. Further there is no bar to the exercise of discretion by the Public Prosecutor to indictment for a charge of stealing contrary to s 372(1) (10) of the Criminal Code: see State v Muro (supra). The exercise of and performance of the prosecution function and particularly as authorised under s 524 and 525 to indict an accused on the evidence as appears to him to warrant the laying of the charges is an absolute one: State v Kamo (supra). 

29.	The application here raises similar issues although the facts are different. 

30.	In this present case the accused say that they were committed for a charge of stealing under s 372 (1) only. They were not charge for the offence of “Stealing under s 372 (1) (10)” of the Criminal Code). Ms. Bun, Counsel for the accused submitted that since the accused were never committed for stealing under s 372 (10), the indictment was therefore defective and should be quashed. 

31.	As alluded to earlier in this judgment, this objection has been dealt with by the Court as it was pointed out to counsel then that this Court is dealing with the indictment, which is presented by the Public Prosecutor, in this case, the State Prosecutor. It is clear that the Public Prosecutor or any State Prosecutor has the power to indict for any offence warranted by the evidence under s 525 (1) of the Criminal Code.  

32.	Whilst I note that at the Committal Proceeding stage, the accused were charged for stealing contrary to s 372(1), this does not bar the State Prosecutor from indicting the accused for one count of stealing contrary to s 372(1) (10) of the Criminal Code. In the current case the accused were committed to stand trial for stealing under s 371 (1) and the discretion under s 525(1) of the Criminal Code empowers the State Prosecutor, Mr. Done to indict the accused for the offence of stealing contrary to 372(1)(10) of the Criminal Code warranted by the evidence before him. 

33.	I must also point out here that during the presentation of the indictment, the accused Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma were present in Court when the indictment was presented by the State Prosecutor, Mr. Done. Thereafter, the Court read out the terms of the indictment and the accused were each asked if they wish to address the Court on the Indictment presented against them. During the administration of this process, each of the accused (applicants) responded to the indictment  and each of them responded as  “Not True” to the indictment. 

34.	After administering this process, Ms Joseph for the State then proceeded to read out the Brief Allegations to the accused persons and also read out that State in this case, invoked s 7 (1) (2) (a) (b) (c) (d) of the Criminal Code. As to the process of arraignment, this process was to be administered prior to trial as advised by Ms Joseph for the State and the matter was set down for a 5-day trial to be held at Bulolo. This is due to most of the witnesses being located at Bulolo area.

35.	So given these processes, any objections which is now raised by the defence had been dealt with and the matter was ready for trial. 

36.	Consequently, the application now raised under Section 534 and Section 558(1) of the Criminal Code is misconceived and must be dismissed.

37.	But in any event, I have heard counsel on the application and will address it accordingly.

Application under s 558 of the Criminal Code

38.	Given, that the applicants had on 17 October 2024, filed an application pursuant to s 558 (1) and s 534 (2) of the Criminal Code and s 185 of the Constitution seeking to quash the indictment, it was listed for hearing on 21 October 2024. 

39.	It was heard on 21 October 2024 as there is no issues raised by the State as to the appropriateness of the application under s 558 (1) and 534 (2) of the Criminal Code  I find no issue regarding the procedure involving the filing of the motion under the provision of s 558 (1) which allows an applicant to apply to quash an indictment alleging defects in the laying of the charges under s 534 of the Criminal Code. 

40.	Regarding the application being moved pursuant to s 185 of the Constitution, I find that there are sufficient provisions provided for this application under s 558 and 534 of the Criminal Code so the application under s 185 of the Constitution is unnecessary.

41.	Here the application is supported by an affidavit deposed to by Ms Bun, counsel for the accused. However, I note that the affidavit really related to the charge of stealing under s 372(1) (10) of the Criminal Code only. It does not dispute the presentation of the indictment relating to laying of the charges under s 395(1) (c) of the Criminal Code.

42.	 In any event, it appears that the applicants themselves have failed to file any affidavit in support of their application to quash the indictment. Further, the affidavit deposed to by Ms Bun on related to the initial objection which was raised on 4 October 2024 and that matter has been dealt with by the Court. In that s 526 (1) of the Criminal Code makes it clear that the Public Prosecutor or any State Prosecutor has the power to indict for any offence warranted by the evidence under s 525 (1) of the Criminal Code: see  The State v Muro (supra); State v Louise Paraka (supra); State v Douba (supra); State v Koma (supra).

43.	Given these matters, I find that the affidavit of Ms Bun filed in support of this current application misconceived as the objection raised by her had been dealt with on 4 October 2024: see State v Tommy [2024] N5575. 

44.	So, with regard to the application filed on 17 October 2024, I note that there is really no fresh affidavit sworn and filed by either of the accused, Jonah Sakol Langah, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma to support their application to quash the indictment presented on 4 October 2024.

45.	The motion to quash the indictment stands on its own with no supporting document stating the grounds or prejudice which would affect their primary rights in their defence of the charges laid against them individually and or severally. 

46.	In any event, let me address the issue relating to the presentation of the Indictment.  In this case, s 525 (1)(a) of the Code clearly empowers the Public Prosecutor or a State Prosecutor to indict a person who has been committed for trial or sentence, for "any offence that the evidence appears to him to warrant” or Conversely, he may decline to lay a charge at all by filing the appropriate declaration. (Subs. (1)(b)). It is therefore misconceived to suggest that the Public Prosecutor's prosecutorial powers which include the power to lay charges or to decline to do so, can be avoided, restricted or limited by the rulings of a committal court: see State v Muro (supra); State v Louise Paraka (supra); State v Douba (supra). State v Koma (supra).

47.	Committal proceedings are administrative in nature. In that the Magistrate in the exercise of discretion evaluates or analyses the evidence to see if it is sufficient to commit the defendant to stand trial or for sentence in the National Court. The magistrate must act judiciously when exercising this function. It must be pointed out that the orders and rulings of a committal court do not in any way bound the Public Prosecutor (or a State Prosecutor for that matter) in the exercise of his absolute and exclusive discretion to present an indictment for any offence that, in his opinion is supported by the evidence in the committal depositions. The Public Prosecutor may in his discretion decline to lay any charge at all and may even file a nolle prosequi. (Ss 525(1)(b);527 of the Code; s. 4 of Public Prosecutor (Office and Functions) Act Ch. 338): see State v Paul Paraka [2020] N8229. 

48.	A similar power is vested in a committal magistrate by Section 95 (3) of the District Court Act Ch. 40, that if he "is of the opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, [he] shall proceed with the examination in accordance with this Division." This clearly empowers a magistrate to commit a defendant for any indictable offence at all which in his opinion, is established by the evidence in the prosecutor's brief. A Magistrate is not restricted or bound by the charge preferred against a defendant in the information before him.

49.	Furthermore, section 35 of the District Courts Act says:

“35. 	Form of Information

(1)	Where it is intended to issue a warrant in the first instance against a party charged, the information shall be in writing and on oath either by the informant or some other person. (underling mine)

(2)	Where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing or on oath, but may be verbal only and without oath, whether the law under which the Information is laid requires it to be in writing or not.

50.	Section 35 (1) of the District Court Act is used where a warrant of arrest is to be issued in the first instance against an accused and it is only than that the information shall be both in writing and shall be on oath by the informant or some other person. Section 35 (2) is where a summons is to be issued instead of a warrant in the first instance. 

51.	The accused were arrested on the 14 and 15 of July 2023 and charged respectively. 

52.	The accused, Jonah Sakol Langah was arrested on 14 July 2023.

53.	The accused, Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack, and Dundee Ottogoma were all arrested on 15 July 2023 respectively.

54.	 If the accused had any issues with regard to any the defects contained in the information leading to the laying of the charges at the Committal Proceedings, these matters should have been raised at the Committal Proceedings, not here at this stage at the presentation of the indictment.  In any event, the accused exercise their right to remain silent. So, I leave it there.

55.	The accused were committed to stand trial one count of stealing under s 372 (1) and one count of break and enter under s 395(1) (c) of the Criminal Code. As alluded to in the case of State v Muro (supra), State v Koma (supra), the Public Prosecutor is empowered to indict for any offence warranted by the evidence under s 525 (1) of the Criminal Code. In applying these principles to this current case, the Public Prosecutor had exercised his powers under s 525 of the Criminal Code which allows for the Public Prosecutor to indict the accused for any offence that the evidence warrants. Therefore, I find that the indictment for the offence of stealing under s 372(1) (10) of the Criminal Code against the accused is in order and I find no defect in the indictment presented on 4 October 2024.

56.	Consequently, I ruled that the objection raised in the Motion filed on 17 October 2024 and moved on 21 October 2024 misconceived and must be refused. Section 525 (1)(a) of the Code clearly empowers the Public Prosecutor or a State Prosecutor to indict a person who has been committed for trial or sentence, for "any offence that the evidence appears to him to warrant”

(i)	Here the charges laid against the accused, Jonah Sakol Langah, Shalatee Dong Basil, Reuben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma for one count of stealing under s 372 (1) (10) of the Criminal Code is not defective. 

(ii)	 The Orders and rulings of a committal court is not binding on the Public Prosecutor or State Prosecutor in the exercise of his absolute and exclusive discretion to present an indictment for any offence that in his opinion, is supported by the evidence in the committal depositions pursuant to s 4 of the Public Prosecutor (Office and Functions) Act Chapter 338. 

57.	I must also add that an indictment doesn’t mean the accused has been found guilty of a crime. An indictment is a formal accusation which is based on the available evidence that there existed a probable cause to charge the accused with a crime in order for that someone to be convicted of a crime, the state must convince the Court beyond a reasonable doubt that the accused committed a crime. Overall, it means that based on the available evidence that it is reasonable to assume a crime occurred and that the accused committed that crime. 

58.	This present case is distinguished from the case of The State v Burege (No1) [1992] PNGLR 481 (28 February 1992), where the accused was charged with applying to his own use a sum of K166,553.61 being the property of the State. He was placed on bail pending the finalization of prosecution statements prior to the committal hearing. Following numerous delays caused by prosecutor's omission to serve witnesses' statements and defects in the information, the defence counsel applied to the Rabaul District Court for the information to be withdrawn. The District Court subsequently make an order to have the Information withdrawn.

59.	This decision led to the State Prosecutor presenting an indictment to the National Court. The defence counsel objected to the presentation of the indictment raising objection based on 2 ground which are as follows:

(1)	It was defective or ultra vires as it was signed by the State Prosecutor, not by the Public Prosecutor, under s 526(1) of the Criminal Code;

(2)	there was no refusal by the court of summary jurisdiction to commit the accused for trial.

60.	In its deliberation, the Court held that:

(i)	 the District Court magistrate making an order for the withdrawal of the Information did not amount to a refusal to commit for trial.

(ii)	Refusal to commit for trial is a pre-requisite to the exercise by the Public Prosecutor of his powers under s 526 (1) of the Criminal Code.

(iii)	Unlike s 525, which provides for the Public Prosecutor and State Prosecutor to sign indictments, only the Public Prosecutor may sign indictments under s 526 (1) when there was a refusal to commit for trial.

61.	Therefore, the signature by the State Prosecutor of an indictment pursuant to s 526 (1) was ultra vires his powers; not only invalid but amounted to an abuse of process of the Court in the circumstances.

62.	This present case is different and is distinguished from the case of State v Burege (supra). 

63.	Here, the learned Magistrate has ruled on the information and decided that the information be accepted, and the proceedings has progressed this far. The learned Magistrate has the responsibility to assess the evidence, and he is satisfied that it is properly laid. He has considered the evidence and decided to commit the accused for trial. The decision to commit the accused to stand trial was made on 29 August 2023. The learned magistrate was entitled to make an order for the accused to stand trial at the National Court on the information and material presented before him. 

64.	In any event, the accused (applicants) did not object to the laying of the information at this stage and thus their application stating the grounds set out in Grounds a (i) to (iv) and Ground b (i) to (ii) of their application is misconceived and must be refused.

65.	I must also add that s 7 of the Criminal Code was invoked by the State in the Committal Proceedings, so the accused (applicants) cannot now claim that they were not informed. They were well aware of the nature of the charges and elected not to raise objections to the information laid at the District Court Committal Proceedings. They exercised their rights to remain silent.

66.	Section 525 (1)(a) of the Code clearly empowers the Public Prosecutor or a State Prosecutor to indict a person who has been committed for trial or sentence, for "any offence that the evidence appears to him to warrant”. In that 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 reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant… 

67.	Section 524 regulates the signature and presentation of indictments. In this situation, it is can either be the Public Prosecutor or any State Prosecutor who can sign and present an Indictment and the applicants have not raised any defects regarding the signature and presentation of the indictment.

Particulars of indictment

68.	Section 528 provides for the form of indictment. It states: 

(1)	An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged–

(a) 	in such a manner; and

(b) 	with such particulars as to–

(i) 	the alleged time and place of committing the offence; and
(ii) 	the person (if any) alleged to be aggrieved; and
(iii) 	the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

(2)	Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.

(3)	Where the circumstance of aggravation intended to be relied on is previous conviction, the conviction shall not be charged in the indictment, but written notice of an intention to rely on it as circumstance of aggravation shall be served on the accused person or his lawyer, before the commencement of the trial.

(4)	Where a written notice has been served in accordance with Subsection (3) and the accused person has been convicted–

(a) 	of the offence charged in the indictment; or

(b) 	of any other offence of which he might be convicted under the indictment, the prosecution may, after the conviction of the accused person but before sentence is imposed, allege and prove the previous conviction.

(5)	On proof of the previous conviction the court may–

(a)	convict the accused person of the aggravated offence as if the previous conviction had been charged in the indictment; and

(b) 	substitute a conviction for the aggravated offence for the conviction already recorded in the trial, and the accused person is liable to punishment accordingly.

(6) 	It is sufficient to describe an offence in the words of this Code or the other written law defining it.

(7) 	The place of trial shall be named in the margin of the indictment.

69.	Counsel for the accused also submitted that the indictment is calculated to prejudice and embarrass the accused persons because the accused are charged jointly under s 7 (1) (a) (b) (c) (d) of the Criminal Code, but the indictment does not particularise the alleged acts or omissions of each of the accused that constitute the offence charged.

70.	I understand from the provisions of s 528(1) of the Criminal code is that the indictment requires wording of the offence and particulars "as is necessary to inform the accused person of the nature of the charge". Nothing has been put before me to demonstrate that the accused will be prejudiced or embarrassed in their defence to the charge. It is not suggested by the accused (applicants) that they do not know what is being alleged against each of them. Here the accused are charged for the offence of break and enter stealing under s 395(1) (c) and s 372 (1) (10) of the Criminal Code. 

71.	Whilst I have not had the opportunity to read the police brief, Counsel for the State, Ms Joseph in her submission intimated since the committal proceedings the accused are well aware of the allegations against them. The indictment is in accordance with the Criminal Practice Rules and there has been no argument raised that these rules have not been complied with. It conforms to these rules and meets the requirements of 528(1) of the Criminal Code. Therefore, Ground (a) (i) to (iv) and Ground b (i) and (ii) of the Application, do not in any way raise the issue of the Public Prosecutor or State Prosecutor failure to comply with s 526 of the Criminal Code. In the same vein, it can be said that these grounds are an abuse of the court process to raise the same objection again: see the discussion in Pruaitch v Manek (2019) SC1884; State v Tommy [2014]N5575

72.	It is also clear that the civil and criminal jurisdictions of the National Court are “two distinct jurisdictions with their own separate and distinct processes and procedures without any overlapping”. The National Court’s criminal jurisdiction is granted mainly by the Criminal Code: see Wartoto [2013] SC1298 at [53]; State v Paul Paraka (supra). It therefore follows that this Court sitting in its criminal jurisdiction must itself be satisfied in accordance with its procedures that s. 526 of the Criminal Code has been complied with before accepting the indictment, a process which this Court has avail itself to and administered in respect of the charges laid against the accused before the Court. 

73.	I understand that the indictment, which has the effect of initiating a prosecution, “of any offence that the evidence appears to warrant” was signed by the State Prosecutor, Mr. Done pursuant to s 526 of the Criminal Code following his consideration of the evidence presented in the Committal proceedings and Police Brief. The indictment is dated 4 October 2024. 

74.	On that note, I am satisfied on the materials presented and the submission of counsel for the State that the State Prosecutor has considered the evidence contained in the depositions taken before the District Court for the purposes of s 526(1)(a). Whether or not a copy is obtained from the District Court Registry is immaterial. Whilst not in issue here it is important to make clear that the Public Prosecutor is not constrained in making his decision under s 526 to consider only the evidence contained in the depositions. He may also consider “any other relevant evidence”: see State v Paul Paraka (supra)

75.	The objection with respect to s 526(1)(a) of the Criminal Code is therefore dismissed.

Fresh Offence

76.	The presentation of the indictment under s 372 (1) (10) of the Criminal Code is within the powers of the Public Prosecutor. It is well settled that pursuant to s. 525 and s. 526 of the Criminal Code, the Public Prosecutor has an absolute power to consider the evidence, and at his discretion, indict on a charge “of any offence that the evidence appears to warrant”. That power is not subject to any direction or control from or by anybody: The State v Ngasele (2003) SC731; see also the discussion in Leahy at [149]. That power has been affirmed in several cases, including: The State v Jack Gola and Mopana Aure [1990] PNGLR 206; The State v Jason Dongoma (2000) N2038; The State v Michael Nama and Others (1999) N1884; The State v John Koma (2002) N2176.

77.	In the case of The State v Michael Nama and Others (1999) N1884: his Honour Kirriwom J stated: 

“... in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor ... 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. A Committal Court’s rulings do not restrict the powers of the Public Prosecutor which originate 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... or the one negotiated and obtained for purposes of guilty pleas ... The original charges do not determine the eventual charge in the indictment.”

78.	It must be pointed out that the only distinction between s. 525 and s. 526 in this regard is that the power with respect to the latter is confined to the Public Prosecutor himself, whilst any State Prosecutor may do so under s. 525 of the Criminal Code.

79.	For the present case, the State had determined to proceed with charges under s 372 (1) (10) in the National Court and this differs to the charge on which the accused were originally charged at committal based on a review of the available evidence (further of which it may seek through the police), having regard to the applicable law, and having considered the availability and reliability of witnesses. This is again consistent with the powers of the Public Prosecutor to control the exercise and performance of the prosecution function pursuant to s. 176 and 177 of the Constitution. This is to ensure that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct as disclosed by the evidence. This also provides the court with an appropriate basis for sentence in the event of conviction. Further, in the ordinary course of event, the charge selected should be the most serious one disclosed by the evidence. Similarly, a prosecution should only proceed in relation to a charge where there is a reasonable prospect of securing a conviction, and where prosecution is in the public interest. Such principles are recognised in similar common law jurisdictions: see State v Paul Paraka (supra), State v Agen (No.2) [2022] N10276, State v Wohuinagu [1991] N966, Re Namah (2018) N7194, Thompson v Kalaut (2011) N4265.

80.	Relevantly, these are matters within the discretionary powers of the Public Prosecutor under s 526 of the Criminal Code: see The State v Louise Paraka (2002) N2317 where his Honour Kandakasi J (then) stated, and I quote: 

“s. 526 proceeds on the basis that the Public Prosecutor ... “is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffer the charge he considers sustainable": see also Regina v Burusep [1963] PNGLR 181; Regina v Ebulya [1964] PNGLR 200. In Burusep it stands as early authority that the Public Prosecutor may indict on any charge the evidence appears to warrant. In that case the accused was committed for sentence on the lesser charge of indecent assault but indicted for rape” 

81.	Hence, there is no ambiguity in the provisions of s 526. Further case law is also clear. Although I do note that there is no affidavit evidence from the Office of the Public Prosecutor on the processes involved in the consideration of the evidence, the law is quite clear that prior to the presentation of an indictment, the Public Prosecutor and in this case, the State Prosecutor has “may indict on any charge the evidence appears to warrant”. 

82.	Applying this principle to this present case, here the accused were committed on 29 August 2022 for a charge of stealing under s 372(1), but indicted for stealing under s 372(1) (10), Subsection 10 relates to the value of the thing stolen. Here the thing stolen is of the value of K780,000.00….

83.	The law clearly allows the Public Prosecutor or State Prosecutor to obtain additional material pursuant to s 526(1)(a) but in this case it is clear on the evidence that the charge arises out of the same material before the District Court Proceedings, CB 2854/2023 & COM NO. 377 of 2023 for the charges laid against the accused, Jonah Sakol Langah). For other accused; Shalatee Dong Basil, Ruben Tangu, Donald Narua, Vincent Jack and Dundee Ottogoma, the committal proceedings is registered as COM No. 366-370 of 2023 (CB No. 2862-2871 of 2023). All were charged for one count of stealing contrary to s 372(1) of the Criminal Code; together with a further charge of one count of break and entering contrary to  s 395(1) (c) of the Criminal Code. For the offence of stealing, the amount in this case exceeds the sum of K1,000.00 thus the inclusion of s 372 (1) (10) of the Criminal Code. 

Offence known to written law

84.	Overall, the indictment does contain an offence known to written law as required pursuant to s. 37(2) of the Constitution. Further, the indictment set out the “relevant facts disclosing the relevant elements” of any offence known to law, or in particular under s.395 and s 372 of the Criminal Code.

85.	Essentially, s 37(2) (Protection of the Law) of the Constitution provides: 

“Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law
….” 

86.	As to the first objection, it is not a matter relating to form. Section 528 of the Criminal Code sets out the formal requirements of an indictment for current purposes:

“(1) 	An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged–

(a)	in such a manner; and

(b)	 with such particulars as to–

(i)	the alleged time and place of committing the offence; and
(ii)	 the person (if any) alleged to be aggrieved; and
(iii)	the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

(2)	Subject to Subsections (3) and (4), if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.

(3)	Where the circumstance of aggravation intended to be relied on is a previous conviction...

(4)	…

(5)	…

(6)	It is sufficient to describe an offence in the words of this Code or the other written law defining it.

(7)	The place of trial shall be named in the margin of the indictment.”

87.	Section 528(6) of the Criminal Code reflects the need for an accused person to be charged with an offence which is defined by a written law: s. 37(2) of the Constitution. Order 2, Division 4, (Charging Instruments) Rule13 of the Criminal Practice Rules states (in part) that every indictment shall be in accordance with Form 13 to the Rules.

88.	Order 2 Rule 13 provides that:

“(1)	In prosecutions conducted by the Public Prosecutor, the charging instrument shall be an indictment, set out in Form 13;

(2) 	The statement of the offence in the indictment may be of the words of:

(a)	the Schedule 1 Form for the offence, with changes necessary to make the words consistent with the particular circumstances of the alleged offence;

(b)	if there is no Schedule 1 form for the offence.”

89.	It must be pointed out that neither the Rules nor s. 528 of the Criminal Code require the particular offence provision number to be stated in the indictment and nothing prevents the State from doing so. Given that it is accepted that the indictment has been drafted in accordance with longstanding practice in this jurisdiction. I must at this juncture say that the grounds of objections do not raised any defects in the form or format of the indictment and or lack of compliance by the Public Prosecutor. 

90.	From my understanding of the grounds raised in the objection, I must say that there can be no doubt that the accused (Applicants) are well aware that the Public Prosecutor intends to proceed with the charges under s 395(1) (c) and s 372 (1) (10) of the Criminal Code. This is clearly set out and is apparent on the face of the indictment presented on 4 October 2024 against the accused/applicants.

91.	Essentially, the elements of an offence against the accused under s 395 of the Criminal Code.

“395. 	HOUSEBREAKING: BURGLARY.

(1) 	A person who–

(a)	… 

(b)	… 

(c) 	breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

92.	It is clear that the indictment in this case contains each of these elements and further that it is compliant with s.528 of the Criminal Code as to the provision of particulars as to date and time, the property in question, and circumstance of for the purposes of the offence. 

93.	In this case, it is important that the accused must be accorded the right to fair trial “is the right of every accused to know the case which the prosecution seeks to advance at trial”. This includes the “particular act, matter or thing alleged as the foundation of the charge”: see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J. At the same time, it must be noted that there is also a distinction to be drawn between the essential elements of the offence alleged and the particulars of that offence: Roland Tom v The State (2019) SC1833 at [28] as applied in the case of State v Paul Paraka (supra). In applying this principle to this current case, I find that all the essential elements of the offence are stated in the indictment. The “basic facts” the accused refers to are the particulars upon which the State will rely to establish the elements of the offence against the accused. 

94.	If the accused are in any doubt about the nature of the charge, they are at liberty to apply for additional particulars pursuant to Order 1, Division 1, Rules 7 and 8 of the Criminal Practice Rules.

95.	I accept that from the submission of counsel for the State that the Public Prosecutor has considered the evidence contained in the depositions taken before the District Court and the Public Prosecutor has reduced into writing in an indictment a charge of an offence the evidence appeared to warrant for the purposes of s 526(1)(b) of the Criminal Code, The Public Prosecutor has that power under s 526(1) (a) to exercise that power. There is no bar to the exercise of his powers.

96.	I therefore find that the objections with respect to s 526(1)(b) of the Criminal Code are unfounded and must be dismissed.

Orders of the Court

(1)	The application to quash the Indictment presented pursuant to s 526 of the Criminal Code by the State under Ground 2 (a) (i) (ii) (iii) (iv) of the Notice of Motion filed on 17 October 2024 is dismissed.

(2)	The objections to the presentation of the indictment signed by the State Prosecutor on 4 October 2024 pursuant to s 526 of the Criminal Code under Ground 2 (b) (i) (ii) of the Notice of Motion filed on 17 October 2024 are refused.

(3)	The indictment signed by the State Prosecutor on 4 October 2024 and presented on 4 October 2024 pursuant to s 526(1) (a) of the Criminal Code is accepted.

(4)	The accused/applicants are to identify on which, if any, of the remaining grounds of their notice of motion they wish to rely on as part of the pre-trial process, they are at liberty to do so.

(5)	The matter is adjourned to 1 April 2025, at 9 .30 a.m. for Call-Over.

(6)	Bail is extended to 1 April 2025 at 9.30 a.m. 
________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the accused/applicants: SLM Lawyers