The State v Pawa Kombea [1997] PNGLR 494

• Jurisdiction: Papua New Guinea
• Citation: [1997] PNGLR 494
• Date: 11 February 1997
• Court: National Court
• Year: 1997

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

National Court: Lenalia AJ

Judgment Delivered: 11 February 1997

1 Criminal law—Practice and procedure—Indictment—Public Prosecutor's indictment—Criminal Code s526(1)—Ex Officio indictment signed by a State Prosecutor

2 Criminal Law—Practice and procedure—Signature of State Prosecutor on ex–officio indictment—Whether State Prosecutor acted ultra vires his powers—Criminal Code s524, s525 and s526(1)—The State v Esorom Burege (No 1) [1992] PNGLR 481 considered and applied

3 Criminal Law—Practice and procedure—Indictment under s526(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 s525(2) and s526(2)

4 Criminal Law—Practice and procedure—Motion to quash indictment—Criminal Code s558

5 The State v Esorom Burege (No 1) [1992] PNGLR 481 and R v Thompson; R v Clein [1975] All ER 1028 referred to

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 19 February 1977, 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 s526(2) and s526(2) indictments—Criminal Code Ch262

(2) The power to amend an indictment does not include the power to accept a new but amended bill of indictment either under s525 or s526 of the Code

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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 s100 (2) of the District Courts Act (Ch40.

Following the dismissal and refusal to commit the accused for trial a bill of ex–officio indictment was drafted in accordance with s526(1) of the Code and signed and formally presented by Mr Kesan to His Honour Woods J on 21 September 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 3 February 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 10 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 s534(2) and s558 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 s558(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 s535 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 s526 of the Code. According to Mr Shepherd, the only person who can sign an ex–officio indictment 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...