The State v Kathy Pitzz

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Berrigan J
• Judgment Date: 27 July 2026
• Neutral Citation: N11780
• Docket Number: CR (FC) NO. 45 OF 2026
• Date: 27 July 2026
• Counsel: R Galama for the State,M Liu for the accused,Counsel

N11780

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 45 OF 2026

The State

v.

Kathy Pitzz

WAIGANI: Berrigan J

11 July 27 July 2026

CRIMINAL LAW — PRACTICE AND PROCEDURE — SECTION 527 of the Criminal Code — Nolle Prosequi — Objection to nolle prosequi prior to the commencement of a trial — Principles applying — Objection refused.

Cases cited

Wafi v State (2025) SC2806

State v Abia Tambule [1974] PNGLR 250

State v Jonah Jakai (1982) N391

The State v Woyengu (2025) N11355

The State v Peter Painke [1976] PNGLR 210

Agen v State (2024) SC2623 at [41]

State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807

State v Wohuinangu (1991) N966

State v Kingsley (2023) N10131

Jago v District Court (NSW) 1989 168 CLR 23

Counsel

R Galama for the State

M Liu for the accused

Lawyer for the State: Public Prosecutor

Lawyer for the offender: Public Solicitor

RULING ON OBJECTION TO NOLLE PROSEQUI

1. Berrigan J: Despite the Supreme Court's decision in Wafi v State (2025) SC2806 it remains almost commonplace for defence counsel to object to the entering of a nolle prosequi prior to the commencement of a trial and to demand that the State proceed with a trial or file a declaration.

2. The law is clear. Section 527 of the Criminal Code provides that “the Public Prosecutor or a State Prosecutor may at any time inform the National Court that an indictment then pending in the Court will not be further proceeded with by filing with or presenting to the Court a document under his hand to that effect”. The presentation of the nolle prosequi brings proceedings on the indictment to an end without barring subsequent prosecution on a fresh indictment.

3. It is only in very rare or exceptional circumstances that a Court is empowered to refuse to accept a nolle prosequi: Wafi at [19].

4. In fact so rare and exceptional are the circumstances that to date there has only been one case where the Supreme Court has held that the trial judge should have refused to accept a nolle prosequi. In that case the State had called all of the evidence available to it at trial: State v Abia Tambule [1974] PNGLR 250. By two to one majority the Supreme Court held that whilst it was not necessary to decide where the line should be drawn the trial had reached a stage where to accept the nolle prosequi was to deny the accused a fair trial.

5. Considerations as to fairness once a trial is underway are different from those prior to its commencement. Moreover, presentation after the commencement of the trial does not automatically constitute an abuse of process in any event. Indeed, Abia Tambule was distinguished in State v Jonah Jakai (1982) N391 and the nolle prosequi accepted at the end of the State's main witness to allow the State to pursue further investigations.

6. As the Supreme Court in Wafi made clear, presentation of a nolle prosequi prior to the commencement of a trial will not ordinarily constitute an abuse of process. The fact that the State has reserved the right to present another indictment is merely the consequence of a nolle prosequi: Wafi at [20]; The State v Woyengu (2025) N11355 at [16] adopting The State v Peter Painke [1976] PNGLR 210.

7. In the rare and exceptional event that an accused is able to establish some abuse of process at the presentation of the nolle prosequi prior to the commencement of the trial then the appropriate remedy would be a permanent stay of the criminal proceedings, not an order that the trial proceed to verdict or an order that the State file a declaration under s 525(1)(b) of the Criminal Code.

8. It must be emphasised that the permanent stay of criminal proceedings is an extreme remedy of last resort only to be applied in exceptional circumstances: Agen v State (2024) SC2623 at [41]; State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807 at [20] to [24] considering Williams v Spautz [1992] HCA 34; Jago v District Court of NSW [1989] HCA 46; State v Wohuinangu (1991) N966; In re Namah (2018) N7194; R v Crawley [2014] EWCA Crim 1028; Thompson v Kalaut (2011) N4265; Herman Leahy v Public Prosecutor (2019) N5813.

9. In the normal course the nolle prosequi is accepted.

10. Questions of abuse of process may be raised if and when the State present a further indictment arising out of the same factual circumstances that were the subject of the original indictment. If the Court finds that the presentation constitutes an abuse of process at that stage, then again the proper remedy is a permanent stay of the proceedings, bearing in mind that it is an extreme remedy at any stage.

11. To accept the accused's contention would mean that the Court has power to order the State not only to proceed with a trial that has already commenced but to commence a trial which the Public Prosecutor has decided in controlling the prosecution function of the State should not proceed. That would be an extraordinary incursion into the constitutional powers of the State. See s 177(1)(a) of the Constitution.

12. For similar reasons the Court has no power to direct the State to file a declaration under s 525(1)(b) of the Criminal Code. If the filing of the nolle prosequi was an abuse of process then again the remedy would be a permanent stay of the criminal proceedings.

13. As an aside, I am aware of at least one case where the Court exercised its power to call witnesses thereby effectively refusing to allow the State to offer no evidence at trial (State v Loi (No 1) (2009) N4058). That was different and the case was exceptional for various reasons, including that there was real concern about the propriety of the decision by the particular State Prosecutor to offer no evidence. The trial ultimately resulted in conviction.

14. Critically, however, the accused's argument proceeds on the basis that an accused has a right to be tried, or in other words a right to compel the State to prosecute them to verdict. There is no such right: Wafi at [38].

15. Section 37(3) of the Constitution provides that 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”.

16. The right under s 37(3) of the Constitution is not a right to insist on being tried. Section 37(3) entitles an accused to be tried within a reasonable time unless the charge is withdrawn and a right not to be convicted without a fair hearing.

17. As explained in Wafi, the charge is withdrawn upon the presentation of the nolle prosequi: [38].

18. In the event that a charge is pending, s 552 of the Criminal Code provides the mechanism by which the accused might demand to be brought to trial. The...