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Noka, Acting Public Prosecutor, an Application [1987] PNGLR 216 (18 June 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 216 - SC Review No 5 of 1987; Application by Noka, Acting Public Prosecutor 

[1987] PNGLR 216

SC342

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REVIEW NO 5 OF 1987

REVIEW PURSUANT TO S 155(2)(B) OF THE CONSTITUTION; APPLICATION BY NOKA ACTING PUBLIC PROSECUTOR OF PAPUA NEW GUINEA

Waigani

Kidu CJ Woods Hinchliffe JJ

15 June 1987

18 June 1987

CRIMINAL LAW - Public prosecutor - Standing and role of - No standing to seek judicial review on demurrer to indictment - Constitution ss 156, 177 - Public Prosecutor (Office and Functions) Act (Ch No 338), s 4 - Supreme Court Act (Ch No 37), ss 4, 21, 24, 25, 26.

LAWYERS - Law officer of the State - Public Prosecutor - Nature and powers of position - Constitution, ss 156, 177 - Public Prosecutor (Office and Functions) Act (Ch No 338), s 4 - Supreme Court Act (Ch No 37), ss 4, 21, 24, 25, 26.

CONSTITUTIONAL LAW - Law officer of State - Public Prosecutor - Nature and powers of position - Constitution, ss 156, 177 - Public Prosecutor (Office and Functions) Act (Ch No 338), s 4 - Supreme Court Act (Ch No 37), ss 4, 21, 24, 25, 26.

The Public Prosecutor is a Law Officer of the State whose responsibilities and powers are defined in the Constitution, the Public Prosecutor (Office and Functions) Act (Ch No 338) and the Supreme Court Act (Ch No 37).

In the absence of any statutory enabling provision the Public Prosecutor does not have power or standing to seek judicial review, pursuant to s 155(2)(b) of the Constitution of a point of law on a demurrer to an indictment, that is, before arraignment and where there is no acquittal.

Cases Cited

State, The v The Principal Magistrate, District Court, Port Moresby Ex parte the Public Prosecutor [1983] PNGLR 43.

Application for Judicial Review

Following a ruling on a demurrer to an indictment in criminal proceedings the Public Prosecutor sought judicial review of the ruling pursuant to s 155(2)(b) of the Constitution.

Editor’s Note

For determination of substantive issue see SC Rev No 5 of 1987; Re Central Banking Regulations [1987] PNGLR 433.

Counsel

B K C Thompson QC and G Toop, for the applicant.

R S O’Regan QC and I Molloy, for the defendant/respondent.

Cur adv vult

18 June 1987

KIDU CJ WOODS HINCHLIFFE JJ: The Acting Public Prosecutor has sought a review of a ruling by his Honour Mr Justice Wilson on a demurrer to an indictment charging a number of counts based on offences under the Central Banking (Foreign Exchange and Gold) Regulation (Ch No 138).

Counsel for the defendant charged in that indictment has appeared and challenged the standing of the Public Prosecutor to seek such a review before this Court. This review is sought pursuant to s 155(2)(b) of the Constitution and that section states as follows:

“The Supreme Court:

...

(b)      has an inherent power to review all judicial acts of the National Court ...”

It is necessary to look at the position of the Public Prosecutor and ascertain the sources of his powers and responsibilities. As set out in s 156 of the Constitution the Public Prosecutor is a Law Officer of the State. For his functions we turn to s 177 of the Constitution which states as follows:

“(1)    The functions of the Public Prosecutor are:

(a)      in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and

(b)      to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.”

There has been an Act of Parliament as provided for under this section and this is called the Public Prosecutor (Office and Functions) Act (Ch No 338). Section 4 of that Act sets out his functions as follows:

“(1)    The Public Prosecutor:

(a)      shall control the Office; and

(b)      is administratively responsible for the efficient performance of the functions of the Office; and

(c)      shall control and exercise the prosecution function of the State; and

(d)      may, and shall when requested to do so by the relevant person or body, advise:

(i)       the State or any statutory authority or instrumentality of the State; and

(ii)      the Minister; and

(iii)     the Secretary for Justice; and

(iv)     the State Solicitor; and

(v)      the Law Reform Commission; and

(vi)     any other person or body declared by the Minister, by notice in the National Gazette, to be a person or body to which this section applies,

on matters related to or concerning the commission of offences against any law; and

(e)      shall provide Counsel:

(i)       to prosecute persons charged with any criminal offence at their trial before the National Court; and

(ii)      to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and

(iii)     to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest; and

(f)      may, in his absolute discretion, provide Counsel, to appear for and on behalf of the State, in any other proceeding before the National Court or Supreme Court in which the State has an interest; and

(g)      shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required; and (ga) may, in his absolute discretion, elect the method of proceeding under Section 420 of the Criminal Code, including the withdrawal of an information; and

(h)      may, in his absolute discretion, provide assistance, either by provision of legal representation or otherwise, where:

(i)       it is required by the State; or

(ii)      in his opinion, it is necessary to do so in the interests of justice, or in the public interest;

in the prosecution of offences or the conduct of committal proceedings before any court other than the National Court or the Supreme Court; and

(i)       may advise the National Executive Council, through the Minister, to exercise its power under Section 151(2) (grant of pardon, etc.) of the Constitution to advise the Head of State to grant pardons, free or conditional, to accomplices who give evidence leading to the conviction of principal offenders.” (Amended by Act No 44 of 1980.)

It is also necessary to look at the Supreme Court Act (Ch No 37) to ascertain when and how the Public Prosecutor can proceed if he is dissatisfied with a decision of the National Court. We start at s 4(2) of the Supreme Court Act which provides for the right of appeal from the National Court. Section 4 states as follows:

“(1)    An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.

(2)      An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal:

(a)      on a question of law; or

(b)      on a question of mixed fact and law; or

(c)      with the leave of the Supreme Court, on a question of fact.”

However, there is a further Div 3 in Pt III of the Supreme Court Act specifically related to appeals in criminal cases. First, s 22 provides that a person convicted by the National Court may appeal against his conviction. Section 24 covers appeals by the Public Prosecutor against sentence; however, this is not applicable in this case before us. Section 25 seems to be the only provision providing for an appeal on the analogy of a convicted person appealing against a conviction. Section 25 states as follows:

“Appeal against quashing of conviction

Where the National Court has given a judgment quashing a conviction, or any count or part of a charge, the Public Prosecutor may appeal to the Supreme Court against the judgment, and the Supreme Court may:

(a)      determine the appeal; and

(b)      if the appeal is sustained make such order for the prosecution of the trial as it thinks necessary or desirable.”

It is quite clear however that s 25 is not applicable in this case before us as this case involves a decision on a point of law before arraignment so there is no judgment quashing a conviction or any count or any part of a charge.

A further section to look at is s 26 of the Supreme Court Act which involves references of points of law following acquittal on indictment. However, this section is specifically related to acquittals on indictment and again in the case before us at present there has been no arraignment and therefore no acquittal on indictment. Therefore s 26 cannot apply. One should note here of course that s 26 only gives the power to refer a point of law to the Principal Legal Adviser and not to the Public Prosecutor.

There is another section which could be used namely s 21 of the Supreme Court Act which relates to reservation of points of law. The relevant part of s. 21 is subs (1):

“(1)    When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.”

Of course this only allows a reservation by the Court itself, not by the Public Prosecutor; however, it is obvious that the Public Prosecutor could ask the Court to refer any relevant point at the time. This, however, was not done in this case before us, so again s 21 is not relevant.

There does not appear to be any other way that the Public Prosecutor can come to this Court. His responsibility and powers are clearly stated in all the appropriate legislation and if he does not avail himself of the opportunity of asking for a reservation under s 21 there appears to be no other way whereby he can appeal on a point of law before arraignment where there has been no acquittal. It is clear that the legislation has very carefully given the Public Prosecutor all the power necessary for him to exercise his prosecution functions. We make no reference at this stage to s 19 of the Constitution as this case before us does not involve the interpretation of a constitutional law.

One must carefully note the wording of s 26 of the Supreme Court Act, where on a reference on a point of law following acquittal, it is not the Public Prosecutor who has the power to refer the matter but the Principal Legal Adviser and we feel that this analogy is the appropriate analogy when we are considering matters under s 155(2) of the Constitution.

There do not appear to be any cases where this issue has been raised, although in The State v The Principal Magistrate, District Court, Port Moresby; Ex parte The Public Prosecutor [1983] PNGLR 43, the Supreme Court clearly did deal with an application by the Public Prosecutor to the National Court under s 155(2) of the Constitution. However, we note at 45 the words of Pratt J in that case:

“The Public Prosecutor made application to a National Court Judge for an order nisi for a writ of certiorari to remove the matters out of the Magistrates Court and to quash the convictions on the basis of lack of jurisdiction. Under the rules of the court the order nisi has been made returnable before the Supreme Court and thus comes before us. No point was taken at this hearing on the standing of the Public Prosecutor in the matter. Likewise no issue was made by either party over the form which this application has taken.”

Whilst therefore the Supreme Court has heard an application by the Public Prosecutor under this section it quite clearly did not consider all the points that we are considering now and therefore this Court is not bound by the actions taken by the Court in 1983.

We are therefore satisfied that the Public Prosecutor does not have the standing to seek a review in these circumstances under s 155(2)(b) of the Constitution.

Application dismissed

Lawyer for the applicant: The Public Prosecutor.

Lawyer for the defendant: Beresford Love Francis & Co.