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Kivia, N'Draku, Seski, Public Prosecutor v [1988-89] PNGLR 256 (22 December 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 256 - Public Prosecutor v Lindsay Kivia, Robert N'Draku, Peter Seski 

[1988] PNGLR 256

N686

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION UNDER S 616 OF THE CRIMINAL CODE ACT (CH NO 262)

THE PUBLIC PROSECUTOR

V

LINDSAY KIVIA, ROBERT N’DRAKU AND PETER SESKI

Lae & Waigani

Amet J

21 April 1988

22 December 1988

CRIMINAL LAW - Practice and procedure - Information - Leave to present - Application by Public Prosecutor - Respondents committed for trial but discharged when failure to present indictment - Application incompetent - Application reserved for private prosecutions - When appropriate - To whom application to be made - Criminal Code (Ch No 262), ss 552(4), 616 - Constitution, s 37(3).

The Criminal Code (Ch No 262), s 616, which is headed: “Information by leave of the Court by private prosecutors” provides that:

“(1)    Any person may by leave of the National Court present any information against any other person for an indictable offence not punishable with death that is alleged to have been committed by the other person.”

On an application by the Public Prosecutor under s 616, for leave to present informations against three persons who had been committed for trial on charges of robbery and had been discharged by the Court pursuant to s 552(4) of the Criminal Code because no indictments had been presented against them, apparently by oversight,

Held:

(Refusing the application) s 616 of the Criminal Code properly construed deals only with private prosecutions and is not available to be invoked by the Public Prosecutor or following a discharge under s 552(4) of the Criminal Code.

Smedley v The State [1980] PNGLR 379, considered.

Taking into account the right of a person charged to a “fair hearing within a reasonable time” guaranteed by s 37(3) of the Constitution, an application under s 616 of the Criminal Code following a discharge under s 552(4) of the Criminal Code would need to present some unusual if not extraordinary feature.

(Per Amet J): An application under s 616 of the Criminal Code following a discharge under s 552(4) of the Code should be made to a judge other than the judge ordering the discharge.

Cases Cited

The following case is the only case cited in the judgment:

Smedley v The State [1980] PNGLR 379.

Application for leave to present informations

This was an application made by the Public Prosecutor pursuant to s 616 of the Criminal Code (Ch No 262), for leave to present informations against three persons who had been committed for trial but discharged by reason of failure to present indictments.

Counsel:

I Langford, for the Public Prosecutor.

L Henao, for the respondent (Kivia).

M Mosoro, for the respondents (N’Draku and Seski).

Cur adv vult

22 December 1988

AMET J.: This is an application by the Public Prosecutor seeking leave of the National Court to present informations against the three respondents, pursuant to s 616 of the Criminal Code (Ch No 262), for the indictable offence of robbery.

The three respondents were accused in relation to what came commonly to be referred to as the Lae Airport robbery case. They were committed for trial but were subsequently discharged by me on 14 April 1988 upon their applications pursuant to s 552(4) of the Code.

Section 616 of the Criminal Code which is headed “Information by leave of the Court by private prosecutors” provides that:

“(1)    Any person may by leave of the National Court present any information against any other person for an indictable offence not punishable with death that is alleged to have been committed by the other person.”

This is the first occasion to my knowledge that such an application has been made by the Public Prosecutor under this section. It is also the first such application following a discharge pursuant to code s 552(4). The corresponding pre-revision section, s 628, the wording of which was also exactly the same as the pre-1974 code s 686, was discussed very briefly only once in the obiter dicta of Wilson J and Pratt J in Smedley v The State [1980] PNGLR 379.

Mr Langford for the Public Prosecutor had contended that, because the principal basis for the discharge of the respondents under s 552(4) was that no indictment had been presented against them, then relying on the obiter views of Wilson J, leave should be granted to prosecute the respondents. The failure to have presented indictments against the respondents was an oversight, there remained valid committals of each of the respondents, that their discharges were not acquittals or convictions and so the State should have leave to prosecute them properly.

In Smedley v The State the majority of the court held that the pre-revision s 538 of the Criminal Code which empowered the Public Prosecutor to present an indictment on a charge “for any offence that the evidence appears to warrant”, where a magistrate had refused to commit a person for trial for an indictable offence, did not permit of a plurality of indictments. Accordingly, where a magistrate had refused to commit a person for trial for an indictable offence, and the Public Prosecutor had reduced into writing an indictment pursuant to s 538 of the Code and a nolle prosequi had been entered pursuant to s 539 of the Code a second indictment could not be presented pursuant to s 538.

Wilson J considered that after a nolle prosequi has been entered, the Public Prosecutor may seek leave to present a new ex-officio indictment or information pursuant to s 628 of the Criminal Code. At 392, he said, “the only course open to the Public Prosecutor is to obtain leave to present a new ex-officio indictment or information (pursuant to s 628)”.

At 393 he stated:

“... If a first indictment is quashed or if, by virtue of the entering of a nolle prosequi, the person named therein is discharged from any further proceedings on the indictment to which it relates or if a first indictment otherwise fails in toto, the Act provides for the presentment ‘by any person’ (the emphasis is mine in order to show that the Public Prosecutor may himself exercise this power) of a subsequent indictment or information by leave of the National Court (see s 628). Therein lies the remedy for the State if it is desired to pursue the prosecution further. Therein also lies the right of any private person to seek leave to institute criminal proceedings against any other person. The interest of the State in bringing an accused to trial is amply safeguarded.”

Pratt J, however, held the opposite view. At 406, he said:

“The wording of this section is exactly the same as s 686 of the pre-1974 Code and was always referred to by the shorthand description ‘private prosecution’. There appears to be no doubt in the minds of the court which delivered judgment in Gouldham v Sharrett [1966] WAR 129 that such section dealt with private prosecutions only. There is likewise no real doubt in my mind ... Nevertheless, I am not prepared to say that this section may be utilised by the Public Prosecutor or one of his deputies in connection with a matter in which the Public Prosecutor has already presented an indictment and entered a nolle prosequi.”

Admittedly these obiter views of Wilson J and Pratt J were expressed in Smedley v The State in the different context of a refusal by the committal magistrate to commit for trial whereupon the Public Prosecutor presented an ex-officio indictment under s 538 (revised s 526) and then filed a nolle prosequi in respect of that first ex-officio indictment. A second ex-officio indictment was then presented which was the subject of the appeal.

In the case of these respondents, they were properly committed for trial, but no indictments were presented and on foot at the time of their discharge. I agree with the views expressed by Pratt J. I do not believe that this section can be utilised by the Public Prosecutor purporting to prosecute in his private capacity. He has no interest in this matter as a private victim or complainant. This section quite clearly, in its terms, deals with private prosecutions only. It could not be utilised in the circumstances as existed in Smedley v The State, nor can it be utilised, in my view, following a discharge under s 552(4) of the Code.

There are also additional factors in the circumstances of this application, which, if this section was available to the Public Prosecutor following a s 552(4) discharge, would militate against leave being granted. Unlike the right to present an indictment, file a nolle prosequi and re-indict which are the prerogative of the Public Prosecutor, s 552(2) and s 552(4) are rights vested in an accused person. They are rights, in my view, which give effect to the Constitution, s 37(3), which is that:

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

Any application for leave would therefore, in my view, have to be in respect of a case which “presents some unusual, if not extraordinary, feature”. Such an application should be regarded as unusual and extraordinary.

However, these considerations do not apply, because I have determined that the section is not available to the Public Prosecutor. Leave is therefore refused.

I would add some advice on the procedure for this application, this being the first time such an application was made and there being no practice rules in existence in relation to it. It was made before me, the same judge who made the orders under s 552(4) discharging the respondents. I would suggest that in future applications should preferably be made before a different judge.

Leave refused

Lawyers for the State: Public Prosecutor.

Lawyers for Lindsay Kivia: Henao Cunningham.

Lawyers for Robert N’Draku and Peter Seski: Narokobi Kirrowom Mosoro & Enda.