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Painke, The State v [1976] PNGLR 210 (24 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 210 - The State v Peter Painke 

[1976] PNGLR 210

N45

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER PAINKE

Madang & Wewak

O’Leary AJ

21 May 1976

24 May 1976

CRIMINAL LAW - Practice and procedure - Application for adjournment of trial - Denial of right to “fair hearing within reasonable time” - Constitution of the Independent State of Papua New Guinea s. 37 (3)[ccxxx]¹.

CRIMINAL LAW - Practice and Procedure - Presentment of nolle prosequi - Whether abuse of process of court - “Abuse of process of court” Intention to present further indictment, effect of - Whether right in accused to demand trial - Constitution of the Independent State of Papua New Guinea s. 37 (3)[ccxxxi]².

On an application by the State for adjournment of the hearing of a charge of stealing as a public servant, where it was some 14 to 16 months since the alleged offence was committed, 11 months since the accused was committed for trial and six months since the case first came before the Court for trial, during which time there had been three adjournments, two of which were at the request of the State;

Held

To postpone the trial any longer would be to deny to the accused his right “to be afforded a fair hearing within a reasonable time”, under s. 37(3) of the Constitution of the Independent State of Papua New Guinea.

On the further question of whether the entry of a nolle prosequi should be rejected by the court;

Held

The presentment of the nolle prosequi should be accepted:

(a)      The presenting of the nolle prosequi before the commencement of the trial, reserving as it did the right of the State to present another indictment was not an abuse of the process of the Court; “abuse of the process of the court” meaning any use of the process or procedures of the court for an improper purpose or in an improper way. Tringali v. Stewardson Stubbs & Collett Ltd., [1965] N.S.W.R. 418 at p. 418; (1965) 66 S.R. (N.S.W.) 335 at p. 344; Cox v. Journeaux [1935] HCA 48; (1935) 52 C.L.R. 713 at p. 720; Re Majory, [1955] Ch. 600 and King v. Henderson[1898] UKLawRpAC 33; , [1898] A.C. 720 at p. 731 referred to.

(b)      The presenting of the nolle prosequi was a procedure clearly open to the Crown prosecutor under s. 539 of the Criminal Code Act 1974, and was not done in any improper way or for any improper purpose, or for any purpose other than that for which the procedure was designed, namely to have the accused discharged from any further proceedings on the indictment.

(c)      Any intention of presenting another indictment against the accused was not to be regarded as improper: that being the consequence in law of presenting a nolle prosequi and there being nothing improper in intending to avail oneself of such a consequence; and

(d)      Section 37(3) of the Constitution, which affords an accused a right to a fair trial does not confer any right on the accused person before the trial has commenced to demand a trial to the exclusion of the right of the State to withdraw the charge or not to proceed further with it.

Application for Adjournment of Trial

This was an application by the State for adjournment of the hearing of a charge of stealing as a servant on the ground that the State was not in a position at that time to proceed with the trial. The application having been refused for the reasons set out in his Honour’s judgment, the State then sought to present a nolle prosequi in respect of the indictment before the Court, which procedure was objected to by counsel for the accused.

Counsel

KB Egan for the State

AJ Cavit for the accused

Cur. adv. vult.

24 May 1976

O’LEARY AJ:  When I dealt with this matter in Madang on Friday last, I indicated I would reduce to writing my reasons for the decisions I then gave, there being no opportunity to do so at the time. I now publish those reasons.

The case having been called on for hearing, Mr. Egan, who appeared for the State, made an application that it be stood over to the next sittings of the Court, or alternatively, that it be stood over to a date to be specially fixed. It was suggested that that date might be about the end of June, or otherwise the earliest date when a judge would be available to hear it as a special fixture. The reason put forward for seeking the adjournment was that the State was not in a position at that time to proceed with the trial.

The application was opposed by Mr. Cavit who appeared for the accused and whose submission was, in short, that to postpone any longer the trial of the case would be to deny to the accused his right to “be afforded a fair hearing within a reasonable time” guaranteed to him under s. 37 (3) of the Constitution.

The history of the matter is that the offence with which the accused has been charged, namely one of stealing as a public servant a sum of $1081.00, is alleged to have been committed between 30th January and 3rd March, 1975. He was committed for trial on that charge on 27th June, 1975. In this Court the trial first came on for hearing before Edmunds A.J. on 20th November, 1975. On that date an indictment dated 6th November, 1975 was presented to the Court, but the matter was then stood over to the next sittings on the ground, I understand, that the State was not ready to proceed to trial. The case next came on for hearing before Raine J. on 13th January, 1976, and was again stood over to the following sittings of the Court. The reason for the adjournment on that occasion, I have been told, was that his Honour was required to return to Port Moresby for a sitting of the Supreme Court. On 10th March, 1976, the case again came on for hearing before Saldanha J. On that occasion, counsel for the State applied for a further adjournment of the trial on the ground that an important witness was missing. The application was opposed by counsel for the accused, but was nevertheless granted, though his Honour did indicate that the case should be given priority at the next sittings of the Court. It was for that reason that I was asked to commence this sitting of the Court at Madang, as I did.

In the result then it is now some 14-16 months since the alleged offence was committed; 11 months since the accused was committed for trial; and six months since the case first came before the Court for trial. In those circumstances, I thought that to postpone the trial any longer would be, as Mr. Cavit submitted, to deny to the accused his right “to be afforded a fair hearing within a reasonable time” as guaranteed by the Constitution. Although he has been on bail throughout, I thought the accused had already been under the cloud of the charge for far too long, and to allow that position to continue any longer, would be to do a substantial injustice to him. I therefore refused the application.

Having done so, Mr. Egan then informed me that he proposed to present a nolle prosequi in respect of the indictment before the Court. This course was objected to by Mr. Cavit who submitted that I should refuse to accept the nolle prosequi, that I should proceed with the trial by arraigning the accused, and if the State then failed to call any evidence that I should acquit the accused and enter a verdict of not guilty on the indictment. The basis of his submission was substantially the same as that put forward by counsel for the accused in the case of R. v. Abia Tambule and 11 Ors.[ccxxxii]³, a decision of the Full Court of the Supreme Court of Papua New Guinea, to which he referred me, namely that the presenting of the nolle prosequi, which reserved the right of the State to present another indictment, was an abuse of the process of the Court and should not be permitted.

There is no doubt that this Court, as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised, and is not confined to any closed categories of cases. It is a jurisdiction which the Court has “to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice ... may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.” Tringali v. Stewardson Stubbs & Collett Ltd.[ccxxxiii]⁴. See also Cox v. Journeaux (No. 2)[ccxxxiv]⁵, and Winfield, Present Law of Abuse of Legal Procedure, pp. 238-243.

Abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations. Thus, in civil actions, to commence or pursue proceedings which disclose no reasonable cause of action or which are frivolous or vexatious is an abuse of the process of the court. But the expression extends far beyond that. In Re Majory[ccxxxv]⁶, it was said at p. 623, 624 that “... court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused”. See also Re Bellador Silk, Ltd.[ccxxxvi]⁷. In relation to this, however, it is important to keep in mind what Lord Watson said in King v. Henderson[ccxxxvii]⁸ at p. 731: “... mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) “it must be shown that, in the circumstances in which the interposition of the Court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable.”

The steps which the court may and will take to prevent an abuse of its process must vary from one situation to another. The most usual ones are those of staying or dismissing proceedings and of striking out pleadings or parts of pleadings. However, I have no doubt that the court’s power extends, if necessary, for the purpose of a particular situation, to rejecting or declining to accept a document tendered or presented to it.

In the present case I did not see any reason for thinking that the presentment of a nolle prosequi by counsel for the State amounted to an abuse of the process of the court. It was a procedure which was clearly open to him under s. 539 of the Criminal Code, and in availing himself of it I did not think he did so in any improper way or for any improper purpose or, indeed, for any purpose other than that for which the procedure is designed, namely to have the accused discharged from any further proceedings on the indictment.

It was put to me that in presenting the nolle prosequi, he did so with the intention of leaving the way open to the State to present another indictment against the accused. If that were in fact his intention, I did not think there was anything improper about it. That is the consequence, in law, of presenting a nolle prosequi and there is nothing improper in intending to avail oneself of such a consequence. Whether, of course, any further indictment that may be presented against the accused is one that ought to be allowed to stand, or one that ought to be quashed as being vexatious or oppressive, or an abuse of the process of the court, is a question that can only arise if and when any such indictment is presented; and, of course, it is a question that can only be decided upon a consideration of the precise terms of that indictment. It is not a question that arises at this point of time. On this question, see Department of Health & Social Security v. Ereira[ccxxxviii]⁹, and Connelly v. D.P.P.[ccxxxix]¹⁰, per Lord Morris at p. 409, cited by Clarkson J. in Abia Tambule’s case[ccxl]¹¹.

There are, of course, other circumstances in which a judge may, in a proper case, decline to accept a nolle prosequi presented to him. The circumstance that arose in Abia Tambule’s case[ccxli]¹² was such a one. However, I did not think any such circumstances existed in the present case. Certainly the alternatives of either accepting the nolle prosequi or of refusing to accept it and entering a verdict of not guilty did not arise. The accused had not been arraigned and therefore the trial had not commenced.

Likewise I did not think that at the time the nolle prosequi was presented in this case any question arose under s. 37 (3) of the Constitution. It may well be that the affording of a “fair trial” to an accused person carries with it a right once the trial has commenced to have a verdict on the trial to the exclusion of any right in the State to withdraw or discontinue those proceedings. But I do not think the section confers any right on an accused person before the trial has commenced to demand a trial to the exclusion of the right of the State to withdraw the charge or not to proceed further with it. The section itself clearly contemplates a withdrawal of a charge and s. 534 of the Code clearly confers on the Secretary for Law or a State Prosecutor the right to take steps not to proceed further with an indictment. I do not think s. 37 (3) of the Constitution in any way cuts down or delimits that right, at least up to the time that the trial commences.

For these reasons then I accepted the nolle prosequi when it was presented to me, and I discharged the accused accordingly.

Accused discharged.

Solicitor for the State: L. W. Roberts-Smith, Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.