The State v John Mogo Wonom

• Jurisdiction: Papua New Guinea
• Judge: Williams J:
• Judgment Date: 06 October 1975
• Citation: [1975] PNGLR 311
• Court: Supreme Court
• Year: 1975
• Judgement Number: SC86

Supreme Court: Frost CJ, Raine J, Williams J

Judgment Delivered: 6 October 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

JOHN MOGO WONOM

Port Moresby

Frost CJ Raine Williams JJ

2 October 1975

6 October 1975

CRIMINAL LAW — Practice and procedure — Indictments — Indictments to be presented in the name of "the State".

Indictments presented under the Criminal Code (Queensland adopted) after Independence Day, 16th September, 1975, should be entitled in the name of "The State" and the learned prosecutor should be described as acting on behalf of the State.

(Per Raine J and Williams J): Under the Constitution of the Independent State of Papua New Guinea, the people having judicial authority lodged in them, have vested the administration of justice, not in the Queen as Head of State, but by virtue of s. 158 thereof, in the National Judicial System, which consists of Courts which the people themselves have created. Accordingly it is appropriate that proceedings be brought by the people in their collective corporate name "The State".

(Per Frost CJ) To effectuate the use of the forms and proceedings after Independence Day, s. 98 (1) of the Interpretation (Interim Provisions) Act 1975 requires the substitution of the expression "The State" in an indictment where the expression "The Queen" was formerly used; and this accords with the words and spirit of the Constitution of the Independent State of Papua New Guinea, under which the Queen as Head of State has no prerogative function to prosecute offences, whether that function be considered to be an executive or a judicial function.

Case Stated

This was a case stated under the provisions of s. 20 of the Supreme Court Act 1975 by Raine J as follows:

1. On Friday the 19th day of September, 1975 an indictment dated the eighteenth day of September, 1975 and signed by Leonard William Roberts-Smith being a person duly appointed to sign Indictments and present Indictments, was presented by Mr. Karzcewski of Counsel, who announced that he appeared on behalf of the State before me sitting in the National Court at Port Moresby.

2. A copy of the said indictment is annexed hereto.

3. The accused JOHN MOGO WONOM who was present in Court, was duly arraigned and pleaded guilty to both counts in the said indictment.

4. At the hearing the said prisoner was represented by Mr. Lupalrea of Counsel on behalf of the Public Solicitor's Office.

5. I recorded a verdict of guilty on both counts and remanded the said prisoner for sentence until Monday the 22nd day of September, 1975.

6. On Saturday the 20th day of September, 1975 I first became aware that the indictment was entitled in the name of "The State" and not in the name of "The Queen" and that the said Leonard William Roberts-Smith was described in the body of the indictment as "duly appointed to prosecute for the State".

7. Accordingly on Monday the 22nd day of September, 1975 I advised both Counsel who were then present at the National Court that the case would be adjourned until Tuesday the 23rd day of September, 1975 so that I might further consider the validity of the style and title used in the indictment.

8. On Tuesday the 23rd day of September, 1975 Messrs. Roberts-Smith and Karzcewski of Counsel appeared for the prosecution and Messrs. Pratt and Andrew of Counsel appeared for the accused. Counsel for the accused moved for arrest of judgment under s. 649 of the Criminal Code on the basis that the indictment was entitled in the name of The State and not in the name of The Queen and was thus a nullity.

9. Following the application for an order under the said motion I ordered as follows:

(a) The question of law namely whether the title of the proceedings should be in the name of The Queen or The State be reserved for consideration by the Supreme Court.

(b) The accused is sentenced to be imprisoned with hard labour on each count for a period of fourteen months.

(c) The conviction be respited until the question of Law has been considered and decided by the Supreme Court.

(d) The prisoner to remain in prison pending the decision of the Supreme Court.

(e) No order made on the motion for arrest of judgment.

The questions reserved for the opinion of the Supreme Court were:

1. Whether the indictment should be entitled in the name of The Queen or The State or otherwise.

2. Whether the Learned Prosecutor should be described as acting on behalf of The State or on behalf of The Queen or otherwise.

3. Whether the indictment as presented is a nullity and the proceedings therein are void ab initio.

4. Whether the Motion for arrest of judgment should be granted.

J S. Aoae Principal Legal Adviser to the National Executive Council, by leave, to support the form of indictment.

L. W. Roberts-Smith, Public Prosecutor, and J Karczewski, to support the form of indictment, submitted that since 16th September, 1975, there was only one source of law in Papua New Guinea viz. the Constitution of the Independent State of Papua New Guinea, that the Constitution as such is autochthonous and resembles the Constitution of the United States of America rather than that of Australia, and that the real question was not whether the duty (power) to prosecute had been changed from one vested in the Queen, but rather whether that duty (power) had been established as vested in Her (or any other agency) by the Constitution; that in the absence of the Constitution specifically vesting the duty to prosecute in anyone, the duty must still be retained by the people who never divested themselves of it and accordingly prosecutions ought to be brought in their name — i.e. "The State"; that under the Constitution the delegation of judicial power from the people to the judiciary is a direct vesting not a delegatio, and neither "The Crown" as an institution nor "The Queen" as Head of State being mentioned in this context, the Courts, being the Peoples' (i.e. State) Courts, could not dispense justice in the name of any authority other than that of the People; that if the power to prosecute is regarded as part of the prerogative power, it is inconsistent with the nature and the spirit of the Constitution itself, is inapplicable and inappropriate to the circumstances of the country and was not imported as part of the adopted common law in the light of s. 86 (1) of the Constitution; that if regarded merely as part of the Executive power and hence vested in the Head of State, it should not be conducted in the name of the Head of State because that would be contrary to the spirit of the Constitution, which is that all power belongs to the People, and should be exercised in the name of the People, i.e. the State — a spirit supported by the terms of the Constitution itself (e.g. s. 158) and by the Interpretation (Interim Provisons) Act 1975 (e.g. s. 98).

N. H. Pratt, Acting Public Solicitor, and W. J Andrew for the defendant, who submitted that the indictment in the name of "The State" was a nullity and should have been entitled "The Queen" or "The Queen on the advice of the National Executive Council").

Cur. adv. vult.

6 October 1975

FROST CJ: This is a case stated by Raine J, under the provisions of s. 20 of the Supreme Court Act 1975, sitting in the National Court of Justice.

The accused, John Mogo Wonom, on 19th September, 1975, that is after Independence Day, pleaded guilty upon an indictment entitled "the State", and was remanded for sentence. When the hearing was resumed on 22nd September, 1975, the trial judge referred to the departure from the practice in the former Supreme Court for indictments to be entitled in the name of "the Queen", whereupon the prisoner's counsel moved for arrest of judgment under the Criminal Code s. 649, on the ground that by reason of the change in form the indictment was a nullity.

The trial judge then made various orders and reserved the matter for the consideration of the Supreme Court. The course taken was to impose sentence and to respite the conviction until the question of law had been determined.

In this Court the Public Prosecutor appeared to support the form of the indictment as also did the Principal Legal Adviser whom the Court gave leave to intervene. The Acting Public Solicitor, who appeared on behalf of the prisoner to submit that the indictment was a nullity, argued that the indictment should have been entitled "the Queen" or "the Queen on the Advice of the National Executive Council".

The only specific provision is to be found in the forms of proceedings contained in the Schedule to the Criminal Code Practice Rules of 1900 (Queensland adopted) which were adopted in the former Territory of Papua under the Criminal Forms Rules, 1922, made under the Criminal Code Ordinance of 1902. These Rules have been regarded as also in force in the former Territory of New Guinea under the Laws Repeal and Adopting Ordinance 1921 of that Territory, s. 13. The Rules are thus now part of the adopted law — The Constitution,...