The State v Esorom Burege (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 28 February 1992
• Court: National Court
• Judgement Number: N1069

National Court: Jalina J

Judgment Delivered: 28 February 1992

N1069

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ESOROM BUREGE (NO 1)

Rabaul

Jalina J

27-28 February 1992

CRIMINAL LAW — Practice and procedure — Indictments — Public Prosecutor's indictment signed by State Prosecutor — Information ordered to be withdrawn — No refusal to commit for trial — Whether refusal to commit is a pre-requisite to signature and presentation of indictment pursuant to s 526 (1) of Criminal Code.

PRACTICE AND PROCEDURE — Whether signature of indictment by State Prosecutor ultra vires his powers — Criminal Code ss 524, 525 and 526 (1) — Whether indictment without refusal to commit amounted to an abuse of process of Court — Criminal Code s 526 (1).

Facts

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. After 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and defects in the information, the defence counsel applied to the Rabaul District Court for the information to be withdrawn, which the Court ordered.

The State Prosecutor subsequently sought to present an indictment to the National Court. The defence counsel objected to the presentation of the indictment on 2 grounds:

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

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

Held

1. The order by the District Court magistrate for the withdrawal of the Information did not amount to a refusal to commit for trial.

2. 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.

3. 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.

4. The signature by the State Prosecutor of an indictment pursuant to s 526 (1) was ultra vires his powers.

5. The signature of the indictment by the State Prosecutor under s 526 (1) was not only invalid but amounted to an abuse of process of the Court in the circumstances.

Cases Cited

Smedley v The State [1980] PNGLR 379.

Counsel

Mr Miviri, for the State.

Mr Jubilee, for the accused.

28 February 1992

JALINA J: This is a matter involving the former Member of National Parliament for the Gazelle Open Electorate, Mr Esorom Burege.

The brief history of the matter is that an information against the accused for applying to his own use the sum of K166,553.61, the property of the Papua New Guinea government, was laid on 10 January 1992. The accused appeared before the District Court on the same day and was released on conditional bail. The case was then adjourned for 14 days to 24 January 1992 as the prosecution did not have the witnesses' statements ready. When the accused appeared on 24 January 1992, he made an application for variation of condition of bail relating to the requirement that he reports to police. This was granted and, again, on 24 January 1992 the prosecution was unable to tender witnesses' statements as they were not ready, so the case was further adjourned to 4 February 1992. Even on 4 February 1992, the statements were not ready, so the case was further adjourned to 18 February 1992. However, on 11 February 1992, the accused was served through his lawyer, Mr Jubilee, with copies of the witnesses' statements. When he appered on 18 February for committal hearing, the police prosecutor informed the presiding magistrate that the witnesses' statements had only been served on the senior provincial magistrate the previous day and, as such, he was unable to present them to the court. At this stage, Mr Jubilee objected to the information on the basis that it was defective and that it did not comply with s 37 of the District Courts Act Ch 40, in that the depositions contained certain distinct allegations of offences allegedly committed by the accused and no evidence of the specific sums alleged in the information were to be found in the witnesses' statements. It was an objection to the information only. The committal proceedings had not started.

After hearing arguments in support of the objection, the presiding magistrate adjourned to 21 February 1992 to enable him to peruse the witnesses' statements and also to enable the prosecution to reply to defence counsel's objection, prior to making a ruling on such objection.

When the court resumed on 21 February 1992, the court heard submissions from the Police Prosecutor and a reply from counsel for the accused, Mr Jubilee. The Court then ruled that the...