The State v Pawa Kombea [1997] PNGLR 494

• Jurisdiction: Papua New Guinea
• Judge: Lenalia AJ
• Judgment Date: 11 February 1997
• Citation: [1997] PNGLR 494
• Court: National Court
• Year: 1997
• Judgement Number: N1518

Full Title: The State v Pawa Kombea [1997] PNGLR 494

National Court: Lenalia AJ

Judgment Delivered: 11 February 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 1373 OF 1995

THE STATE

V

PAWA KOMBEA

Mendi

Lenalia AJ

10-11 February 1997

CRIMINAL LAW — Practice and procedure — Indictment — Public Prosecutor's indictment — Criminal Code S. 526 (1) — Ex Officio indictment signed by a State Prosecutor.

CRIMINAL LAW — Practice and procedure — Signature of State Prosecutor on ex officio indictment — Whether State Prosecutor acted ultra vires his powers — Criminal Code SS. 524, 525 and 526 (1) — The State v Esorum Buruge (No.1) [1992] PNGLR 481 considered and applied.

CRIMINAL LAW — Practice and procedure — Indictment under S. 526 (1) formally signed and presented before another circuit Judge in 1995 — Whether or not State Prosecutor has power to present a second but amended indictment bearing the Public Prosecutor's signature — What is meant to be "presented" or present" in Criminal Code SS. 525 (2) & 526 (2)

CRIMINAL LAW — Practice and procedure — Motion to quash indictment — Criminal Code S. 558

The State Prosecutor Mr Joseph Kesan in Hagen signed and presented an Ex Officio indictment before His Honour Woods J on 12th of September 1995. Four days before the trial was set to commence namely February 19, 1997, the Defence Counsel alerted the Public Prosecutor about the defective indictment. The Public Prosecutor's Office replied that they would file a new but amended indictment. The discussion on this interlocutory ruling centres around the issue of whether or not the State could present an amended indictment this time bearing the Public Prosecutor's signature.

Held:

(1) It is only once that an indictment could be preferred on the basis of one committal. This would include both SS. 526 (2) and 526 (2) indictments — Criminal Code Ch. 262.

(2) The power to amend an indictment does not include the power to accept a new but amended bill of indictment either under S.525 or 526 of the Code.

Cases Cited:

The following cases are cited in judgement:

The State v Esorom Burege (No. 1) [1992] PNGLR 481

R v Thompson R v Clein [1975] All ER 1028

Counsel:

J Kesan for the State

J Shepherd for the Accused

INTERLOCUTORY RULING

11 February 1997

LENALIA AJ: The accused was originally charged with an information laid on 26th of March 1995 charging that on 15th of September, 1991 at Yombi Village in Ialibu, Southern Highlands Province, he abducted one Maria Semal and detained her against her will thereby taking her away from her parents custody. A second charge of rape was also laid. The accused went through a lengthy period of committal proceedings in the Mendi District Court. On 23 October 1992 His Worship Mr Uras refused to commit the accused for trial on the charge of rape. On 13 June 1995 a different constituted court presided over by His Worship Mr Bepo also refused to commit the accused for trial on the charge of abduction — see S. 100 (2) of the District Courts Act Ch. No. 40.

Following the dismissal and refusal to commit the accused for trial a bill of ex officio indictment was drafted in accordance with S. 526 (1) of the Code and signed and formally presented by Mr Kesan to His Honour Woods J on September 21st 1995. Somehow the indictment containing four charges, one for abduction, and three for raping the same victim were never proceeded with until this month when Mr Kesan addressed the Court at the commencement of this circuit on February 3rd that he had decided to proceed with the case of Pawa Kombea on the second week of the circuit because it had been outstanding for a long time. This was despite the fact that, the second week of the circuit was already allocated with certain cases to be heard. The State Prosecutor then made arrangement with the defence counsel to appear on 10th of February 1997 in readiness for the commencement of the trial.

Before the trial could start, Mr Shepherd for the accused indicated that Mr Kesan had served him a notice of his intention to make an application to amend the indictment which was originally signed and presented in September 1995. Mr Shepherd also indicated that before the Court would hear the application to amend, he was filing an urgent Notice of Motion to quash the indictment under SS. 534 (2) and 558 of the Criminal Code. I allowed the defence to file the motion and invited the defence counsel to address the Court on the Notice of Motion. The motion sought the following orders:

" (1) The indictment in these proceedings be quashed.

(2) The time service of this Motion be abridged to the time of the hearing of this motion".

I granted the second order and further invited Mr Shepherd to address the Court on his motion on authority of the case of R v McEachern [1967-68] PNGLR 48. The main contention put by the defence was the indictment presented in September 1995 was a nullity and formally defective in form within the meaning of S. 558 (1) (b) of the Code and was ultra vires the powers of the State Prosecutor and was an abuse of the process. He further argued that S. 535 does not grant this Court the power to amend the indictment that was already presented on the circumstances where at the commencement of the trial of his client, the prosecution seeks leave for a copy of an amended indictment bearing the signature of the learned Public Prosecutor to be substituted for the defective original indictment. Mr Shepherd further argued that the original indictment presented on 21st of September 1995 is completely null and void by virtue of S. 526 of the Code. According to Mr Shepherd, the only person who can sign an ex officio indictmnt is the Public Prosecutor. That section say:

"526 Indictment without committal

(1) Where a Court of summary jurisdiction has refused to commit a person for an indictable offence, the Public Prosecutor may:

(a) consider the evidence contained in the depositions taken before the Court (and any other relevant evidence); and

(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.

(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Sub section (1) he shall cause to be served on the accused person or his lawyer:

(a) copies of the depositions taken at the committal proceedings; and

(b) copies of Statements taken from witnesses whom the prosecution intends to call at the trial, written such item before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence."

In support of the contention that an ex officio indictment could only be signed by the Public Prosecutor I was referred to the case of The State v Esorom Buruge (No. 1) [1992] PNGLR 481 in which His Honour Jalina J held that unlike S. 525 of the Code providing for both the Public Prosecutor and a State Prosecutor to sign indictments only the Public Prosecutor may sign indictments brought under S. 526 (1) where there has been a refusal to commit for trial. The Court further held there that the State Prosecutor's signature on the ex officio indictment was ultra vires his powers and the signature by the State Prosecutor on the ex officio indictment under S. 526 (1) was not only invalid but amounted to an abuse of the process.

Documentary evidence (see exhibits "A" "B" "C" "D" "E" and "F") was tendered by Mr Shepherd to prove that a facsimile copy of the amended indictment signed by the Public Prosecutor, Mr Panuel Mogish on Thursday 6 February, 1997 and was faxed to Mr Shepherd's office only 4 days before the commencement date of the trial of the indictment bearing the signature of the State Prosecutor.

It appears from the defence submission that the Public Prosecutor was only alerted by the defence counsel when Mr Shepherd made enquiries with the Public Prosecutor's Office on Wednesday 5 February 1997 as to whether the prosecution was still intending to prosecute on trial upon the face of the original defective indictment. The Deputy Public Prosecutor advised Mr Shepherd that the original indictment signed and presented by Mr Kesan would be re-typed and signed by the Public Prosecutor.

It is evident from the defence evidence that the initiative taken by the Public Prosecutor to sign the proposed amended bill of indictment was necessitated by enquiries by the defence counsel into the status of the original defective indictment. It is also clear that nothing was done by the Public Prosecutor's Office since September 21, 1995 to rectify or remedy the defect created by their Hagen office.

In reply to the submission and address on the motion Mr Kesan for the State briefly replied that the application to amend was quite relevant to the nature of the indictment being an ex officio indictment. He submitted further that there were no new charges added, nor...