Regina v Abia Tambule and 11 Others [1974] PNGLR 250

• Jurisdiction: Papua New Guinea
• Judge: Clarkson J:
• Judgment Date: 19 April 1974
• Court: Supreme Court
• Citation: [1974] PNGLR 250
• Year: 1974
• Judgement Number: FC57

Full Title: Regina v Abia Tambule and 11 Others [1974] PNGLR 250

Full Court: Minogue CJ, Frost SPJ, Clarkson J

Judgment Delivered: 19 April 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

ABIA TAMBULE & OTHERS

Port Moresby

Minogue CJ Frost SPJ Clarkson J

31 October 1973

1 November 1973

19 April 1974

CRIMINAL LAW AND PROCEDURE — Trial — Nolle prosequi — Whether Crown may enter nolle prosequi at close of Crown evidence — The Criminal Code (Queensland adopted) s. 563, — Human Rights Act 1968 s. 16 (2)

HUMAN RIGHTS — Fair hearing within a reasonable time — Whether Crown may enter nolle prosequi at close of Crown evidence — Human Rights Act 1971 s. 16 (2)

Section 16 (2) of the Human Rights Act 1971 provides: "A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial Court established by law".

Held

(Clarkson J. dissenting) That for the Crown to enter a nolle prosequi at a stage of a trial when the Crown had called all the evidence available and it was insufficient to sustain the charge, was to deny the accused a fair hearing under s. 16 (2) of the Human Rights Act 1971.

R. v. Comptroller-General of Patents, [1899] 1 Q.B. 909, at p. 914; Connelly v. D.P.P., [1964] A.C. 1254; R. v. Sneesby, [1951] Q.S.R. 26; In re the Rev. S. F. Green (1882) 51 L.J.Q.B. 25, at p. 44; R. v. Kellett (1856) 1 V.L.T. 5; Tobin & Another v. The Queen (1863) 32 L.J.R. (N.S.) 216, at p. 224 referred to.

Reserved Question

This matter came before the Full Court in the form of a question reserved by Frost S.P.J. under s. 26 of the Supreme Court (Full Court) Act 1968, and arose from the Crown Prosecutor informing the Court pursuant to s. 563 of the Criminal Code (Queensland adopted) at the stage in the trial when the Crown had called all the evidence available to it, that the Crown would proceed no further against the accused. The question reserved was, "Should a nolle prosequi have been entered in respect of the three accused and the accused discharged or should verdicts of not guilty have been entered."

Counsel

C. F. Wall, for the Crown.

J. Bradshaw, for the accused.

Cur. adv. vult.

19 April 1974

MINOGUE CJ: I agree with my brother Frost that the three accused concerned in this case were entitled to an acquittal and for the reasons which he has given.

I feel that further consideration of the meaning to be ascribed to the expression "Unless the charge is withdrawn" will be necessary, but whatever be the proper ambit of that expression in my view this trial had reached a stage where the accused men were entitled to have a determination of the charge against them.

FROST SPJ: The question reserved by me at the trial arose from the Crown Prosecutor informing the Court pursuant to s. 563 of the Criminal Code at the stage in the trial when the Crown had called all the evidence available to it, that the Crown would not further proceed against three accused. It was conceded by the Crown that there was insufficient evidence upon which any of those accused could have been convicted, but the Crown had in mind the possibility of further proceedings. The course taken by me, for convenience, was to enter the nolle prosequi and discharge the three accused, reserving for the Full Court the question whether that was the proper course or whether a verdict of acquittal should be entered.

In England the modern position is that, "the Attorney-General alone has the power to enter a nolle prosequi, and that power is not subject to any control". R. v. Comptroller-General of Patents [1899] 1 Q.B. 909 per Smith L.J. at p. 914. The entry of a nolle prosequi in the circumstances of the present case would be quite contrary to current English practice, which it appears, is "to confine the exercise of the power almost entirely to cases where, after the indictment has been signed, it is found that the accused is unlikely ever to be fit to stand his trial (so that it is not possible to place him in charge of the jury with the object of bringing the proceedings to an end with a formal verdict of not guilty) "1958 Criminal Law Review 573 at p. 578. See also 1969 Cambridge Law Journal 43 at p. 49. Any abuse of the Attorney-General's power would lead to political rather than legal consequences 1958 Criminal Law Review at p. 582. But once a case is before a judge it is withdrawn only with the leave of the jdge (R. v. Comptroller-General of Patents [1899] 1 Q.B. 909), and as I understand the English practice, only upon verdict of acquittal. In Victoria the Attorney-General's statutory power is confined, in effect, to declining to file a presentment Crimes Act (1958) s. 357, Fourth and Fifth Schedules.8.

The case for the accused before this Court was that the procedure adopted by the Crown was, in the circumstances, an abuse of the Court's process, and also a breach of the accuseds' rights under s. 16 (2) of the Human Rights Ordinance 1971.

It is established that the Court has the power inherent in the Court's jurisdiction, to prevent any abuse of its process, and to control its own procedure, Connelly v. D.P.P. [1964] A.C. 1254; [1964] 2 All E.R. 401.

But the question whether this inherent power is applicable to s. 563 of the Code must depend on the interpretation of the Code.

In other sections of the Code the legislature has expressly conferred on the Court a discretion to make orders to prevent the accused from being prejudiced by the Court's procedure. Instances are to be found in s. 567, which deals with the joinder of counts in an indictment, s. 572 as to the amendment of indictments, and s. 596 which confers on the Court the power to quash an indictment on the ground (inter alia), that it is calculated to prejudice or embarrass the accused in his defence. This consideration is sufficient in my opinion to show that the power conferred on the Crown Law Officer and certain other officers appointed by the Governor-in-Council to...