HISTORY OF OFFICE

For some years prior to 1956/57 the then Department of Law was headed by the “Crown Law Officer”, a position subsequently changed to “Secretary for Law”. Directly under the Secretary came the position of Deputy Crown Law Officer, and below and responsible to the Deputy were three Grade 1 legal officers, responsible for Drafting; Land Conveyancing and Advising, and Prosecutions respectively.
Between 1956 and 1957 there was a reorganisation of the Department and this removed the position of deputy. In the new organisation there were, immediately below the Secretary for Law, three Assistant Secretaries responsible for Advising; Drafting and Prosecutions.
In 1961, there was a further reorganisation. This resulted in the Assistant Secretary (Advising) becoming the Crown Solicitor. The prosecution function was then incorporated into his area of responsibility so that the Chief Crown Prosecutor came to be subordinated to the Crown Solicitor. That arrangement continued until Independence.
Thus, immediately prior to Independence, the prosecuting function of the State was performed by the Prosecutions Section of the Department of Law. The section was headed by a Chief Crown Prosecutor who was responsible to and controlled by the Crown Solicitor and through him, the Secretary for Law.
The status and functions of the “Crown Law Officer” were vested in the Secretary so that the exercise of the prosecution discretion was ultimately his responsibility.
Upon Independence in September 1975, the position changed significantly with the creation of the position of Public Prosecutor as a Constitutional Office-Holder.

VISION

A just and peaceful Society.

MISSION

To deliver timely, independent, fair, efficient and effective prosecution and related services to the people of Papua New Guinea.

CORE VALUES & PRINCIPLES

Independence
To make decisions independently of investigating agencies and the government, according to the Constitution.

Fairness & Equality

To exercise all duties and responsibilities without fear or favour. All persons are equal before the law. All decisions will be impartial, based on an independent assessment of the available evidence and the public interest, in accordance with the Prosecution Policy of the Office.

Transparency & Accountability

To ensure transparency and accountability in the provision of prosecution and related services.

Excellence

To strive for excellence in the provision of prosecution services in accordance with its core values and principles, in an efficient and timely manner, so as to promote justice for victims, witnesses, accused persons and the public.

POWERS AND FUNCTIONS OF THE PUBLIC PROSECUTOR

1.1 The Office of the Public Prosecutor is established by s.176 of the Constitution.
1.2 The Public Prosecutor is empowered by s.177 of the Constitution to perform the following functions:

(a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function of the State (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and
(b) to bring or decline to bring proceedings under Division III.2 (Leadership Code) of the Constitution.
1.3 Pursuant to s.177(6) of the Constitution, additional functions are provided to the Public Prosecutor by the Public Prosecutor (Office and Functions) Act, 1977.
1.4 Section 4(1) of the Act provides that the Public Prosecutor:

(a) shall control the Office; and
(b) is administratively responsible for the efficient performance of the functions of the Office; and
(c) shall control and exercise the prosecution function of the State; and
(d) may, and shall when requested to do so by the relevant person or body, advise:
(i) the State or any statutory authority or instrumentality of the State; and
(ii) the Minister; and
(iii) Departmental Head of the Department responsible for National Justice Administration; and
(iv) the State Solicitor; and
(v) the Law Reform Commission; and
(vi) any other person or body declared by the Minister, by notice in the National Gazette, to be a person or body to which this section applies, on matters related to or concerning the commission of offences against any law; and
(e) shall provide Counsel:
(i) to prosecute persons charged with any criminal offence at their trial before the National Court; and
(ii) to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and
(iii) to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest; and (f) may, in his absolute discretion, provide Counsel, to appear for and on behalf of the State, in any other proceeding before the National Court or Supreme Court in which the State has an interest; and
(g) shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required; and
(h) may, in his absolute discretion, elect the method of proceeding under Section 420 of the Criminal Code 1974, including the withdrawal of an information; and

(i) may, in his absolute discretion, provide assistance, either by provision of legal representation or otherwise, where:
(i) it is requested by the State; or
(ii) in his opinion, it is necessary to do so in the interests of justice, or in the public interest,
in the prosecution of offences or the conduct of committal proceedings before any court other than the National Court or the Supreme Court; and

(j) may advise the National Executive Council, through the Minister, to exercise its power under Section 151(2) (grant of pardon, etc.) of the Constitution to advise the Head of State to grant pardons, free or conditional, to accomplices who give evidence leading to the conviction of principal offenders.
1.5 Section 5 of the Act provides that the Public Prosecutor may grant immunity from prosecution, either absolute or conditional, to any person in relation to an offence with which the person could otherwise be charged.
1.6 In the performance of these functions the Public Prosecutor is not subject to any direction or control by any person or authority: s 176(3)(a) Constitution. This is, however, subject to the following exceptions:

(a) Pursuant to s 176(3)(b) of the Constitution, whereby the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may give a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organisation).
In this regard s 176(4) provides that the Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with the Leader of the Opposition, he considers its tabling is likely to prejudice the security, defence or international relations of Papua New Guinea.
(b) Schedule 1.19 of the Constitution, which states that where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect:

(i) control or direction by a court; or
(ii) the regulation, by or under a Constitutional Law or an Act of Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or
(iii) the exercise of jurisdiction under Division III.2 (Leadership Code), Subdivision VIII.1.B (the Auditor-General), or Subdivision VIII.1.C (the Public Accounts Committee)
and does not constitute an appropriation of, or authority to expend, funds.

1.7 As a Constitutional Office-Holder the Public Prosecutor is protected by the safeguards and subject to the responsibilities applicable to such Office-Holders.

As for his officers, s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-Holders, provides that:

"An officer whilst acting on the instructions and on behalf of a Constitutional Office-Holder in the performance of that Office-Holder’s constitutional functions is not subject to direction or control in the exercise of those functions by any person other than the Constitutional Office-Holder."

1.8 The Public Prosecutor is also one of the "Law Officer of Papua New Guinea", the other law officers being the Principal Legal Advisor to the National Executive Council and the Public Solicitor: s 156 the Constitution.

MOVE TO AUTONOMY

The need to have an autonomous or separate Office of the Public Prosecutor (OPP) has been an ongoing issue for a number of years. In 2005, the then Secretary and Attorney General jointly with the Public Solicitor and Public Prosecutor submitted a proposal to the National Coordinating Mechanism to examine the possibility of separating the budgets of the two constitutional offices from the Department of Justice and Attorney General (DJAG). The Office of the Public Solicitor is now an autonomous entity from the DJAG following a comprehensive report compiled by Mr Leo Tohichem on behalf of the Public Solicitor. This report forms the basis towards achieving full autonomy from the DJAG.
The Office of the Public Prosecutor is headed by the Public Prosecutor who is supported by two Deputy Public Prosecutors. At present there are 33 lawyers, 21 support staff and 6 casuals throughout Papua New Guinea. Plans are well advanced to open two additional provincial offices as well as to increase staff numbers.
The White Paper on Law and Justice in Papua New Guinea (White Paper) published in early 2007 paved the way for the OPP to move towards operational autonomy. The PP expressed the need to strengthen service delivery by way of conducting a study on the corporate structure, operations and management that is in line with the strategic vision of the OPP to achieve cost effective delivery of services.
OPP operates independently in the delivery of its core legal business however, it relied on DJAG for administrative support, particularly in the areas of finance and human resources. The relationship with DJAG did not allow the Public Prosecutor to set his own priorities, freely expend funds to perform his constitutional duties or make decisions on personnel required to improve delivery of prosecution services to the State.
This report is in line with the National Government policy of allowing an operationally driven agenda of public sector reform. It also compliments the Medium Term Development Strategy (MTDS) and the Law and Justice Sector Strategic Framework (SSF).
The key findings were that OPP was not being adequately resourced to effectively carry out its key constitutionally derived activities and that the single most important change required to improve the Office’s functioning was the granting of autonomous control over all aspects of budget and personnel.

Following on from work undertaken in 2008 to develop a PFD to be implemented over three years, the Office conducted a review of the development needs and by 2010 OPP focused its efforts on the following area:

• The performance of the OPP been severely affected by budgetary and human resource constraints.
• Being a division within DJAG, the performance of the PP and his officers been affected by controls from other officers in the department. The attendance of prosecutors on Court circuits has been hindered by lack of funding or by delayed approval to travel. Another contributing factor to the performance of the OPP is the lack of professional lawyers employed in the agency.
• In the light of competition for experienced lawyers in the private sector, higher remuneration packages are offered to attract them, and government lawyers in the DJAG have been enticed to take up these offers.
• OPP is one agency that has been affected and there is a shortage of experienced legal officers to mane Provincial offices or to attend Court circuits. However, it must be said that a handful of Prosecutors have served the organization loyally for more than 15 years. Every attempt must be made to retain experienced legal officers in the OPP. Experienced legal officers become quite proficient in preparing cases for prosecution than inexperienced ones and their experience is passed on to their junior officers.
In 2005, the OPP was ably strengthened by the recruitment of five Australian prosecutors under the Enhanced Cooperation Program (ECP) to assist the office prosecute a backlog of cases and to assist in training and mentoring of junior lawyers. This support has continued under the Strongim Gavaman Program (SGP). Currently, OPP has five prosecutors under SGP of which three are located at the Head office whilst the other two are located in Lae and Madang as well as a Development Practitioner.
In 2005 Parliament passed three pieces of legislation which became effective on the 1st March 2006 giving new powers to the Public Prosecutor to prosecute offenders in transnational crimes. Over the past three years the OPP has been the lead law and justice agency in creating awareness of the three pieces of legislation relating to Proceeds of Crime Act, Extradition Act and Mutual Assistance in Criminal Matters Act. It is clear that the Office is unable to clearly perform its functions fully as required under the Constitution. The budget allocation is insufficient to provide resources for staff and facilities required for the OPP to properly service the Courts. Even after the budget allocation is made by the National government, there is a further consideration of the allocation to re-allocate amounts by a Departmental Committee when there is a need to do so. It could be argued that this is an unauthorized interference in the obligation of the National Government to properly fund and provide facilities for the Public Prosecutor as required by Section 225 of the Constitution.
Implement appropriate organisational changes for the Office of the Public Prosecutor to become autonomous from the Department of Justice
? In 2010 we assumed both the finance and HR functions. We will retain the services of Mr Nigel Agonia to assist us with engaging with Central agencies and implementation of recommendations arising out of the report completed.
? The Corporate Services division was established in 2009 with the recruitment of five officers. The PGAS system was installed in 2010 and the office ran its first lot of payments in July 2010. This was a significant achievement for the office in gaining financial autonomy. Running our own cheques under the Recurrent Budget has made it really convenient in processing payments for lawyers’ circuit travels and also made it easier for the office to manage its own finances and make decisions that best suit the office’s interest when providing its prosecution duties and responsibilities.
? The office also recruited its Senior Human Resources Officer towards the end of 2010. Following the recruitment, consultations were made with the Department of Personnel Management and Department of Finance and the Alesco Payroll was installed for the office in December 2010. The office now manages its own Human Resource matters as all personal files have been transferred by Department of Justice and Attorney General in February, 2011.

Restructuring of legal services to comply with recent changes in legislation.

? A number of new Acts were introduced that require the PP to take the lead in implementation. These include Proceeds of Crime, Extradition and the Mutual Assistance in the Proceeds of Crime Acts.
? If this office is adequately resourced to undertake prosecutions under POCA, then there is an opportunity to generate significant revenue to the State from the recovery of illegally obtained assets.
Develop appropriate responses to the issues of family and sexual violence
? FSV remains a significant challenge for PNG. PP has taken the lead in developing response to the issue. In 2010 we wish to fully implement the medico-legal protocol to ensure that medical officers understand the role they play in ensuring offenders are brought to justice. In addition, we are establishing links with churches and other community groups to create public awareness of the protocols so that victims are aware of their rights.
? The VOC of crime unit, establish in 2009, will be further strengthened. This unit, supporting restorative justice principles will ensure that victims of crime are kept aware as to the status of their cases and are supported as their cases progress through the system.
Improve records management and management information systems

? Information is valuable resource that contributes to agency achievement of key strategic objectives and allows managers to make informed decision on performance and resource allocation. In 2008, this office commenced a significant exercise to reform our records and information management systems. In 2010 we will complete a major reorganisation of our physical records, an activity that has been successful as we focused initially on developing a procedure manual and ensure all staff were trained on it’s us.
? With PALJP support, our electronic case management system has been enhanced and it is now reliably capturing all key case information in Port Moresby. In 2010, we plan on continuing the installation of the system into provincial offices.
? Underpinning all activities is an extensive continuing legal education program. We have established a training committee that meets regularly to determine training priorities and monitor progress. Training is not only provided for PP officers, but for key external stakeholders. In 2010, training will be provided to the RPNGC investigators and prosecutors on the Disclosure Policy and to medical professionals on the use of the medico-legal protocol.
? With the new office structure being implemented, OPP will grow from its current staff ceiling of 68 to over 105 in the next 4-5 years. These activities provide the foundation onto which our growth can be built.
It is important to note that support for these key development areas will come not only from the development budget, but also from the Strongim Gavman Program advisers employed throughout the country. In addition, our recurrent budget will also be used to support these important activities.

PROCEEDS OF CRIME ACT (POCA) 2005

? The Proceeds of Crime Act 2005 (“POCA”) was passed by Parliament in July 2005 and came into force on 1 March 2006. The Act is designed to deprive criminals of the benefits of their crimes and to attack money-laundering in its broadest sense. To achieve this, the Act provides a comprehensive scheme to trace, restrain and confiscate the assets derived by criminals from their unlawful activities. It also targets property used by criminals when engaging in their unlawful activities and property of criminals who have received benefits from their crimes which cannot be traced.
? The Act provides for 2 streams of confiscation action: a conviction-based stream, which is similar to that adopted elsewhere in the world, and a civil-based stream under which confiscation action is not dependant on an offender being convicted of an offence.

? In all there are 5 types of forfeiture action available under the Act:
• A conviction-based forfeiture order;
• A conviction-based pecuniary penalty order;
• Automatic forfeiture following conviction for certain serious offences;
• A civil-based forfeiture order; and
• A civil-based pecuniary penalty order.
? The first 3 options make up the conviction-based forfeiture stream while the remaining 2 make up the civil-based forfeiture stream.

? The Act empowers the Public Prosecutor to take confiscation action under both the conviction-based stream and the civil stream. The responsibility for investigating cases and collecting evidence will rest with the police and other law enforcement agencies.

RESTRAINING ORDERS

The Act recognises that there is a need to protect and preserve property prior to final orders being made. The Public Prosecutor is therefore empowered to apply to the Court for a Restraining Order against property of an alleged offender or against property alleged to be under the effective control of the alleged offender or certain property connected with an offence.
1. Conviction-based Forfeiture.

Under the conviction-based stream, confiscation action can only be taken after a person has been convicted of an indictable offence. There are 2 types of confiscation order that may be made after conviction:
• A forfeiture order, which forfeits property to the State that is the proceeds of an offence or that was used or was intended to be used in the commission of the offence; and
• A pecuniary penalty order, which orders an offender to pay a sum of money to the State equal to the value of the benefits the offender obtained from committing the offence.
There is also provision for automatic forfeiture in some cases. If an offender has been convicted of a serious offence as defined in the Act, there is, in effect, a rebuttable presumption that any property the person owns or controls is the proceeds of crime. In these cases, property of an offender still covered by a restraining order 6 months after conviction will be forfeited to the State unless the person satisfies the court that the property was derived from a lawful source.

2. Civil-Based Forfeiture.

The civil-based stream provides a mechanism to forfeit the proceeds of crime independently of the prosecution process. A court may make a civil-based order if it is satisfied, to the civil standard of proof, that a serious offence has been committed. There is no need for an offender to be prosecuted or convicted of the offence.
There are 2 types of civil-based order that may be made under the Act:

• A forfeiture order, which, in general terms, forfeits all property covered by a restraining order to the State unless the Court is satisfied that the property was derived from a lawful source; and
• A pecuniary penalty order, which orders an offender to pay a sum of money to the State equal to the value of the benefits the offender obtained from the offence and any other unlawful activity.

3. Other Orders

The POCA provides for a number of other types of orders which can be made. For example, orders can be made to facilitate the operation of any of the above orders. Also, orders can be made to protect innocent persons and legitimate interests in property from the operation of confiscation orders.

FAMILY & SEXUAL VIOLENCE

The changes which came about as a result of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2000 (SOCAC) and Evidence (Amendment) Act 2000.

They came into effect from 10th April 2003.

– Every prosecutor and investigating officer should be aware of them.
– People in the health industry should also be aware of them as the effects of these amendments are very important.
Under the SOCAC

Corroboration is not required any more in child sexual offence cases (s229H) and also in adult sexual offences cases (s.352A).
Also the spouse of the accused is competent and compellable witness (s229I).
The Evidence (Amendment) Act 2002 under Division 3 (s. 37B-37I) provides for Special measures for vulnerable and intimidated witnesses. These measures are to be made in the following situations:-

• Witness is under the age of 18 years at the time of the hearing; or
• the complainant in a proceeding relating to a sexual offence; or
• the complainant in a proceeding relating to a crime of violence.

Additional Special Measures (s37B(2))

If, in the opinion of the Court, the quality of a witness’ evidence would likely to be diminished by reason of fear of distress in connection with testifying in the proceedings, the Court shall, order that one or more of the following special measures be used for the giving of evidence by that witness:-

• the use of a screen or other arrangement to prevent the witness from seeing the accused;
• the presence of a support person of the witness’ choosing seated with the witness when he or she is giving evidence;
• dispensing with the wearing of wigs and robes while the witness is giving evidence;
• planned seating arrangements for people who have an interest in the proceedings, including the level at which they are seated and the people in the witness’ line of vision;
• the adjournment of the proceedings or any part of the proceedings to other premises;
• the exclusion from the court, while the witness is giving evidence, of all or any persons without an interest in the proceedings;
• the examination of the witness through an intermediary, who shall communicate and explain –
• to the witness, the questions put to the witness, in a language appropriate to the witness’ age and development; and • to the court, the answers given by the witness in reply;
• permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom.

Determination of Appropriate Special Measures(s37B(3))

The Court shall consider –

• the availability of any necessary equipment or facilities; and
• the age of the witness; and
• the opinion of the witness; and
• which of the special measures would be likely to maximize as far as practicable the quality of the witness’ evidence.

Unless the order for use of Special measures is contrary to the interest of justice (s37B (4))

In determining whether the use of special measures is contrary to the interests of justice, the judge shall consider –
• the nature and alleged circumstances of the offence to which the proceedings relate; and
• the right of the accused to a fair trial; and
• whether the quality of the evidence given by the witness is likely to be diminished by reasons of fear of distress on the part of the witness in connection with testifying in the proceedings; and
• any behavior towards the witness on the part of the accused, or members of the family or associates of the accused; and
• whether the use of special measures would cause unnecessary delay in the proceedings.

VIDEO TAPED EVIDENCE (s37C)

• Where a witness is under 18 years or a complainant in a proceeding relating to a sexual offence, the Court may make an order permitting a video-recording of an interview of the witness to be admitted as the evidence in chief of the witness, provided that, at the proceedings the witness-
• identifies himself or herself and attests to the truthfulness of the contents of the recording; and
• available for cross-examination and re-examination.
• An order shall not be made if the court is of the opinion, having regard to all the circumstances of the case that it is not in the interests of justice that the evidence be so admitted.
• In considering whether a recording should be admitted the court must consider whether any prejudice will be caused to the accused if that evidence is admitted.
GIVING EVIDENCE AT PRE-TRIAL HEARING (s37D)

• Where a witness is under the age of 18 years, the Court may make an order that the child’s evidence be taken at a pre-trial hearing however with directions:-

• as to the persons who may be present at the pre-trial hearing; or
• as to the persons or classes of persons, who are authorized to have possession of the video-taped recording of the evidence; or
• as to the giving up of possession and as to the playing, copying or erasure of the recording..

Also during Pre-Trial Hearing these conditions apply:-

• no person other than a person authorized by the judge is to be present at the hearing; and
• subject to the control of the presiding judge, the witness is to give his evidence and be examined and cross-examined; and
• except as provided by this section, the usual rules of evidence apply; and
• the proceedings are to be recorded on video-tape; and
• the accused is to be in a room separate from the room in which the hearing is held but is to be capable of observing the proceedings by means of a closed circuit television system.
• An order for pre trial hearing may be varied or revoked by
• the judge who made the order; or
• a judge who has jurisdiction co-extensive with the judge.

ACCUSED NOT TO CROSS-EXAMINE COMPLAINANT PERSONALLY (s37E)

• Where a witness is under the age of 18 years or a complainant in a proceeding relating to a sexual offence, the accused shall not personally examine or cross-examine the witness.
• Where it appears that the accused has no legal representation, the court may
• invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and • require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
• If by the end of the period specified
? the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness; or
? no notification has been received by the court and it appears to the court that no legal representative is to so act,
• the court shall –
• order that any question to the witness be stated to the judge, and the judge shall repeat the question accurately to the witness; or
• appoint an intermediary and order that any question to the witness be stated by putting the question to the intermediary, and the intermediary shall repeat the question accurately to the witness.

REPUTATION EVIDENCE AND EVIDENCE OF COMPLAINANT’S SEXUAL CONDUCT (37G & 37H)

• In a proceeding with respect to a sexual offence, evidence of the sexual reputation of the complainant whether general or specific, is not admissible.
• In a proceeding in respect of any sexual offence –
• the complainant shall not be cross-examined as to his sexual activities; and
• no evidence shall be admitted as to the sexual activities of the complainant, except with the leave of the court.
• The court shall not grant leave unless the judge determines that the evidence –
• is of specific instance of sexual activity; or
• is relevant to an issue at trial; or
• has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors to be considered in determining whether the evidence is admissible

• the judge shall take into account –
• the interests of justice, including the right of the accused to make full answer and defence; and
• society’s interest in encouraging the reporting of sexual offences; and
• whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; and
• the need to remove from the fact-finding process any discriminatory belief or bias; and
• the potential prejudice to the complainant’s personal dignity and right of privacy; and
• any other factor that the fudge considers relevant.

Application for Leave

• must be made in writing and set out –
? detailed particulars of the evidence that the accused seeks to adduce; and
? the relevance of that evidence to an issue at trial; and
? must be heard in the absence of members of the public.

DISCLOSURE OF WITNESS’ ADDRESS AND TELEPHONE NUMBER (s37I)

• A witness in criminal proceedings is not required to disclose his address, telephone number or place of employment unless

– the address, telephone number or place of employment is a materially relevant part of the evidence; or
– the court makes an order requiring the disclosure.

• The court may make such an order only if it is satisfied that disclosure is not likely to present a risk to the welfare or safety of any person, or that the interests of justice outweigh any such risk.
• An address or telephone number that is not required to be disclosed and that is contained in a written statement may be deleted from the statement, or rendered illegible, before the statement is produced in court or given to the accused person.

INDICTMENT FOLLOWING COMMITTAL

2.1 Section 524 of the Criminal Code, 1974 provides that indictments may only be presented in the National Court pursuant to sections 525 and 526 of the Code.
2.2 Following committal in the District Court, all depositions, statements and other documents taken in the proceedings are remitted to the Public Prosecutor pursuant to s 118 of the District Courts Act. Exhibits are delivered to the National Court.
2.3 S 525 of the Criminal Code provides that where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence and may:

(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or
b) decline to lay a charge.
2.4 The indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor.

EX OFFICIO INDICTMENTS

3.1 S 526 of the Criminal Code provides that where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may consider the evidence contained in the depositions taken before the court, and any other relevant evidence, and draft an indictment in relation to any offence which the evidence appears to warrant. (Note that there is no longer a power to indict without a committal hearing.)

3.2 The purpose of a committal hearing is to filter out those cases where there is insufficient evidence to proceed to trial. However, the result of a committal hearing has never been regarded as binding on the prosecuting authority. Nevertheless a decision to proceed by way of ex officio indictment is a serious one. Accordingly, an ex officio indictment should only proceed where the Public Prosecutor is satisfied that:

(a) the magistrate erred in declining to commit; and/or
(b) fresh evidence has since become available, and if the evidence had been available at the time of the committal proceeding, the defendant would have been committed for trial,

ie, applying the Prosecution Policy there is a reasonable prospect of obtaining a conviction and prosecution is in the public interest.

3.3 Only the Public Prosecutor has power to sign such an indictment. However, the indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.
3.4 Pursuant to s 526(3) of the Code, where the Public Prosecutor prepares such an indictment, 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

within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.

THE DECISION TO PROSECUTE

4.1 The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender, and the community at large to ensure that the right decision is made.

4.2 It is not the rule that suspected criminal offences must automatically be the subject of criminal prosecution. The first consideration is always whether the evidence which is available, and admissible, is such that a court is likely to convict. If there is such evidence, the next question is whether prosecution is in the public interest.
4.3 Every case is unique and must be considered on its own facts and merits. While it is not possible to outline a rigid formula, the following principles should be applied when exercising the discretion whether or not to prosecute.

STAGE 1: Is there a Reasonable Prospect of Conviction?

4.4 The first stage requires an assessment of the evidence. Firstly, there must be sufficient evidence to prove a prima facie case.

4.5 The existence of a bare prima facie, case, however, is not sufficient to justify the institution or continuation of a prosecution. A prosecution should only proceed in relation to a charge for which there is a reasonable prospect of securing a conviction. This is an objective test, which will only be satisfied where it is considered that a judge hearing the matter, properly directed in accordance with the law, is more likely than not to convict the accused of the charge alleged.

4.6 In determining this issue it is necessary to evaluate the admissibility and reliability of evidence and the strength of the prosecution case when presented in court. It is also necessary to consider the effect of the case likely to be run by the defence.

4.7 In doing so regard should be had to the following, non-exhaustive, list of matters:

Is the evidence admissible?

(a) Is it likely that the evidence will be excluded by the court bearing in mind the principles of admissibility at common law and under statute? For example:

• Is the evidence in admissible form? Is documentary and other evidence produced in compliance with applicable provisions under the Evidence Act?
• Has confession evidence, identification evidence or evidence seized under warrant been properly obtained?

The possibility that any evidence might be excluded should be taken into account and, if it is crucial to the case, may substantially affect the decision whether or not to proceed with the prosecution.

Is the evidence reliable?

(b) If the case depends in part on admissions by the defendant, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the defendant?
(c) Does it appear that a witness is exaggerating, or that his or her memory is faulty, or that the witness is either hostile or friendly to the defendant, or may be otherwise unreliable? Has a witness a motive for telling less than the whole truth?
(d) Are there matters which might properly be put to a witness by the defence to attack his or her credibility, for example a previous conviction?
(e) What sort of impression is the witness likely to make? How is the witness likely to stand up to cross-examination?
(f) If there is any conflict between witnesses is it of such an extent that it would materially weaken the case?
(g) If there is a lack of conflict between witnesses, is there anything which causes suspicion that a false story may have been concocted?
(h) Are any child witnesses likely to be able to give sworn evidence?
(i) If identity is likely to be an issue how cogent and reliable is the evidence?
(j) Are all the necessary witnesses available and competent to give evidence, including any witnesses who may be overseas?
(k) Has the defendant given any explanation? Is a court likely to find it credible in light of the evidence as a whole? Does it support an innocent explanation? Does the defendant have a defence in law?
(l) Is there further evidence which investigators should be asked to seek out which may support or detract from the prosecution case?
STAGE 2: Is Prosecution required in the Public Interest?

4.8 Once it has been determined that there is a reasonable prospect of conviction, consideration must be given to whether, by virtue of the offence itself or the circumstances of its commission, a prosecution is required in the public interest. The public interest is ultimately the dominant consideration.

4.9 The following is a non-exhaustive list of factors that may be relevant to a consideration of this issue:
(a) the seriousness or, conversely, the triviality of the alleged offence;
(b) the obsolescence or obscurity of the law;
(c) the likely length and expense of a trial;
(d) the likely sentence;
(e) whether the consequences of any resulting conviction would be unduly harsh or oppressive;
(f) the difficulty in detecting such an offence;
(g) the prevalence of the offence and the need for deterrence, both personal and general;
(h) whether confiscation or reparation is likely to result from the prosecution;
(i) the availability and efficacy of alternatives to prosecution (NB defendants must not avoid prosecution merely because they pay compensation);
(j) the age of the offence, and whether or not delay has been caused by the defendant or the prosecution;
(k) any mitigating or aggravating circumstances;
(l) whether the offence involves corruption or other abuse of trust or authority;
(m) whether the offence was committed against a person serving the public, eg: a police officer, prison officer, health worker;
(n) the youth, age, intelligence, physical health or mental health of the defendant, victim or witness;
(o) the culpability or role of the defendant;
(p) the defendant’s criminal history;
(q) the attitude of the victim;
(r) whether the defendant is willing to co-operate in the investigation or prosecution of others, or the extent to which the defendant has already done so;
(s) the effect on the public, public order or public confidence of such an offence; and
(t) the need to maintain public confidence in State institutions including the Parliament and courts.

4.10 As a general rule, the more serious an offence the more likely it is that a prosecution should proceed. While there may be public interest factors which tend away from prosecution, in the great majority of cases where there is a reasonable prospect of conviction the matter should proceed, unless those factors clearly outweigh the public interest in favour of prosecution. Such factors should, however, be put before the sentencing court for consideration.

4.11 A decision whether or not to prosecute must clearly not be influenced by:

(a) the race, religion, sex, nationality, tribal group or political associations, activities or beliefs of the alleged offender or any other person involved;
(b) personal feelings concerning the alleged offender or the victim;
(c) possible political advantage or disadvantage to the government of the day or any political group or party; or
(d) the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

5. PROSECUTION OF JUVENILES

5.1 The prosecution of a juvenile is a severe step which may have serious and long term consequences for the defendant. However, prosecution should not be avoided simply because of the alleged offender’s age. In this country juveniles are responsible for many of the more serious offences. In deciding whether or not prosecution of a juvenile is warranted, consideration should be had to the public interest matters identified in paragraph 4.9 above, and in particular to:

(a) the seriousness of the alleged offence;
(b) the age and apparent maturity and mental capacity of the juvenile;
(c) the alternatives to prosecution, and their appropriateness;
(d) the juvenile’s circumstances, including prospects of rehabilitation, family or community supervision; and
(e) the juvenile’s antecedents.


6. DECLARATION THAT A CHARGE WILL NOT BE LAID

6.1 As discussed above, s 525 of the Criminal Code provides that where a person is committed for trial or sentence the Public Prosecutor or a State Prosecutor shall consider the evidence and may prepare an indictment or decline to lay a charge.
6.2 Where, having assessed the matter in accordance with the Prosecution Policy, the Public Prosecutor or a State Prosecutor declines to lay a charge, he or she shall, pursuant to s 525(3) of the Code, as soon as practicable:

(a) sign a declaration to that effect;
(b) cause the original declaration to be filed in the National Court; and
(c) deliver a duplicate of the declaration to the person committed:
(i) if the person is in custody – by sending it by post or messenger to the person having custody of him; or
(iii) if the person is not in custody – by delivering it to him personally or by sending it to him by post to his last-known address.
6.3 Note that Section 525 (4) of the Code stipulates that upon receipt of such a declaration any person having custody of the person named therein shall immediately release him/her from custody in relation to the charge to which the declaration relates.

7. SELECTION OF CHARGES 7.1

Prosecution should proceed in relation to a charge which: a) reflects the nature and extent of the criminal conduct disclosed by the evidence; and b) provides the court with an appropriate basis for sentence.

7.2 In the ordinary course the charge should be the most serious one disclosed by the evidence. In some instances, however, it may be appropriate to proceed with a charge which is not the most serious having regard to:

(a) the strength of the prosecution case;
(b) probable lines of defence to a particular charge; and
(c) the desirability of presenting the case in court in a clear and simple way.
7.3 Under no circumstances should more charges than necessary be laid with the purpose of encouraging the defendant to plead guilty to some of the charges. Similarly, a more serious charge should not be laid in order to encourage the defendant to plead guilty to a less serious one.

8. INDICTABLE OFFENCES TRIABLE SUMMARILY

8.1 Section 420 of the Criminal Code provides for a number of indictable offences identified in Schedule 2 of the Code to be tried summarily before a Principal or Senior Magistrate (formerly known as a "Grade V Magistrate") of the District Court.
8.2 Pursuant to s 4(1)(ga) of the Public Prosecutor (Office and Functions) Act, 1977 the Public Prosecutor has absolute discretion to decide whether those offences should be dealt with summarily or on indictment, or whether an information should be withdrawn.
8.3 As a general rule matters will proceed by way of indictment where the Public Prosecutor is of the view that the seriousness of the offence is such that it warrants hearing and sentence by the National Court.
8.4 While the seriousness of the offence and the likely sentence on indictment will be of paramount concern, in some cases it may also be appropriate to have regard to:

(a) the greater deterrent effect of a conviction obtained on indictment;
(b) the delay, if any, associated with proceeding on indictment and the likely effect thereof on the victim, witnesses, or defendant;
(c) the desirability of early resolution, possibly occasioned by proceeding summarily, to deter future offences.
8.5 Only the Public Prosecutor, or his delegate, may sign an election to proceed summarily, and only he may consent to the withdrawal of information before a Principal or Senior Magistrate.
8.6 Pursuant to s 219(4) of the District Courts Act the Public Prosecutor may appeal to the National Court against any sentence of the District Court in relation to an indictable offence dealt with summarily.


9. IMMUNITY FROM PROSECUTION

9.1 S. 5 of the Public Prosecutor (Office and Functions) Act, 1977 provides that the Public Prosecutor may grant immunity to a person from prosecution, either conditional or absolute, in relation to an offence with which the person could otherwise be charged, where he is of the opinion that it is in the interests of justice to do so.

9.2 Where such an immunity is granted, the person shall not:
(a) where the grant of immunity is absolute, be charged before any court with that offence; or
(b) where the grant is conditional, be charged before any court with that offence unless the Public Prosecutor has first certified in writing that the person has breached the conditions of the grant of immunity.
9.3 This section does not prevent a person who has been granted immunity in relation to an offence being charged with any other offence. 7.4 In principle the criminal justice system should operate without the need to grant concession to any person who has participated in an alleged offence in order to secure their evidence in the prosecution of others.
9.5 However, unless the accomplice has been dealt with in respect of his or her own participation in the criminal activity with the defendant, he or she will be in a position to claim privilege against self-incrimination in respect of the very matters the prosecution wishes to adduce into evidence.
9.6 In the usual course an accomplice should be prosecuted irrespective of whether or not he or she is to be called as witness. Upon pleading guilty an accomplice who is prepared to co-operate in the prosecution of another can expect the prosecution to make submissions that they should receive an appropriate reduction in sentence.
9.7 In some circumstances, however, it may be necessary in the interests of justice to grant an indemnity in order to secure the accomplice’s testimony in the prosecution of another.
9.8 An indemnity under s 5 will only be granted as a last resort when the following conditions are met:
(a) the evidence that the accomplice can give is necessary to secure the conviction of the defendant, and that evidence is not available from other sources; and
(b) the accomplice can reasonably be regarded as significantly less culpable than the defendant.
9.9 Where an accomplice receives any concession from the prosecution in order to secure his or her evidence, whether as to choice of charge or the prosecution’s position on sentence or grant of immunity, the terms of the agreement between the prosecution and the accomplice should be disclosed to the court.

10. PLEA BARGAINING

10.1 In some instances a defendant may wish to plead guilty to a less serious charge than the one alleged, or to some but not all of the charges alleged. The defendant may wish to have all other charges dropped or wish to have other charges taken into account on sentence without proceeding to conviction.

10.2 In any case a guilty plea must only be accepted where it is in the public interest and where the charges:

(a) are supported by the evidence;
(b) properly reflect the criminality of the conduct; and
(c) provide an adequate basis for sentence.
10.3 In determining whether or not to accept a proposal by the defendant, regard should also be had to the following matters:
(a) whether the defendant is willing to co-operate in the investigation or prosecution of others, or the extent that he/she has already done so;
(b) the desirability of early and certain resolution of the matter;
(c) the strength of the prosecution case;
(d) the complexity and likely length of a trial;
(e) the defendant’s criminal history;
(f) whether or not restitution has or will be made;
(g) the views of the investigating agency and the victim.
10.4 In some instances a defendant may indicate that he or she will plead guilty provided the prosecution will not object to a submission by the defendant that the sentence fall within a nominated range. The prosecution may agree to such a submission but only where the penalty or range of sentence nominated is within the appropriate range given the nature and circumstances of the offence.

11. NOLLE PROSEQUI

11.1 The Public Prosecutor or a State Prosecutor may at any time inform the National Court that an indictment pending in the Court will not be further proceeded with by filing with or presenting to the Court a document to that effect, known as a "nolle prosequi", pursuant to s 527 of the Criminal Code.

11.2 Upon the nolle prosequis being filed or presented the person named in it is to be immediately discharged from further prosecution on the indictment to which it relates. However, the nolle does not entitle the accused to an acquittal and fresh proceedings may subsequently be brought for the same offence.

11.3 No nolle prosequi is to be filed without the express consent of the Public Prosecutor or his delegate. The decision is ultimately one for the Public Prosecutor, however, where possible the views of the investigating agency will be taken into account.

11.4 Where a decision has been made not to proceed with a trial on a particular indictment that decision will not be reversed unless:

(a) the decision was made by fraud or mistake of fact;
(b) significant fresh evidence has become available; or
(c) the case is stopped so that the prosecution may obtain evidence that is likely to become available. In such a case the prosecution should inform the defendant that the prosecution may well start again.

12. OFFERING NO EVIDENCE

12.1 In some rare instances where an indictment has been presented it may be appropriate for the State to offer no evidence. This does entitle the accused to an acquittal and should normally only be used where for example at trial a defence can clearly be established, or where evidence upon which the prosecution relies is no longer available.

13. SENTENCING

13.1 On sentence the prosecution should assist the court by identifying:

(a) whether there are other matters to be taken into account on sentence under s 603 of the Criminal Code;
(b) the maximum penalty prescribed for the relevant offence;
c) relevant sentencing principles;
d) the appropriate range of sentence;
e) the offender’s antecedents;
f) the age of the offender;
g) any victim impact statements;
(h) the seriousness of the offence, ie its nature and circumstances:

• any aggravating or mitigating factors
• the degree of participation of the offender
• the need for general and/or personal deterrence
• the impact of the offence on the victim, the public or public confidence;

(
i) any assistance given to the police by the offender; (j) whether restitution has occurred or whether the Criminal Compensation Act would apply;
(k) whether an order for restriction of movement is appropriate.
13.2 The prosecution should oppose any assertion made by the defendant in relation to the facts of the offence upon which the defendant has been found, or is pleading, guilty, or to any matter in mitigation, that is inaccurate, misleading or unsubstantiated. If necessary the prosecution should ask the court to hear evidence to determine the facts upon which sentence should take place.

14. DEATH PENALTY

14.1 The death penalty was re-introduced into the Criminal Code by section 2 of the Criminal Code (Amendment) Act 1991. 14.2 It is a matter for the Public Prosecutor whether or not to seek the death penalty. In accordance with the Supreme Court’s comments in Manu Kovi v The State (2005) SC 789, the Public Prosecutor will seek the death penalty only in cases he or she considers are of the worst kind.
14.3 In this regard the Public Prosecutor will have regard to Steven Loke Ume & Ors v The State, SCRA 10 of 1997, SC 836, 19 May 2006 in which the Supreme Court suggested that the death penalty may be considered appropriate in the following types of cases:

(a) the killing of a child, a young or old person, or a person under some disability needing protection;
(b) the killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties, eg policeman, correctional officer, government officer, school teacher, church worker, company director or manager;

(c) killing of a leader in government or the community, for political reasons;
(d) killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc;
(e) killing for hire;
(f) killing of two or more persons in the single act or series of acts;
(g) offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence;
(h) the prisoner has prior conviction(s) for murder offences.
14.4 The Public Prosecutor recognizes, however, that in deciding whether or not to seek the death penalty, each case will depend upon its own facts and circumstances.

15. PROSECUTION APPEALS AGAINST SENTENCE

15.1 It is generally accepted that prosecution appeals should not be allowed to unduly circumscribe the sentencing discretion of judges. However, the Public Prosecutor will exercise his right to appeal where it is in the public interest to do so to maintain consistent and adequate standards of sentencing, ie where:

(a) an identifiable error has been made; or
(b) a sentence is clearly unreasonable given the nature and/or circumstances of the offence.
15.2 Prosecution appeals against sentence should be instituted without unnecessary delay.

16. INTERVENTION IN A PRIVATE PROSECUTION

16.1 Despite s 524 of the Criminal Code any person may by leave of the National Court present an information (rather than an indictment) against another person for an indictable offence not punishable by death, pursuant to s 616 of the Code.
16.2 The Public Prosecutor takes the view that his powers under the Constitution and the Public Prosecutor (Office and Functions) Act enable him to intervene in private prosecution where it is in the public interest to do so, either to proceed with the prosecution or discontinue it (except where to do so would be an abuse of process).

17. LEADERSHIP FUNCTION

17.1 As discussed, in addition to performing the prosecution function of the State, the Public Prosecutor is empowered by s 177(1)(b) of the Constitution to bring or decline to bring proceedings under Division III.2 (leadership code) of the Constitution.
17.2 Matters are referred to the Public Prosecutor by the Ombudsman Commission pursuant to s 27 of the Organic Law on the Duties and Responsibilities of Leaders (OLDRL). Pursuant to s 27(2) of the OLDRL, if the Public Prosecutor is satisfied that the matter should be proceeded with, he shall refer the matter, together with a statement of reasons from the Ombudsman Commission, to the appropriate tribunal.
17.3 In determining whether to refer a matter the Public Prosecutor will consider firstly whether there is sufficient cogent and credible evidence of misconduct in office. Further, the Public Prosecutor will consider whether referral is in the public interest.
EXTRADITION

The Extradition Act was passed by the Parliament of the Independent State of Papua New Guinea on 20 July 2005.
The Act was introduced as part of a package of 3 Acts to give effect to PNG’s obligations under the Honiara declaration and some aspects of the Nasonini declaration. The other Acts were the Mutual Assistance in Criminal Matters Act and the Extradition Act. The Act was gazetted on 6 April 2006 and came into effect on 1 March 2006.

Background.

The previous Extradition Act (Chapter 49) was in need of modification in the light of developments that had occurred in extradition arrangements since it was enacted in 1975. Previous arrangements for extradition were either treaty-based or, in the case of extradition requests between Commonwealth countries, based on a special arrangement referred to as the “London Scheme”. Under this scheme, the extradition arrangements were based on substantially uniform legislation among members of the Commonwealth.
The new Act puts in place a number of significant reforms and reflects current internationally agreed standards adopted by the United Nations. Significantly, the Act does away with the traditional “list” approach to categorising offences for which extradition may be requested. Under the “list” approach, the requesting country could only seek the extradition of a fugitive if the offence the fugitive was alleged to have committed was specified in a list of offences that were extraditable offences. That was not a problem when the offence was relatively universally recognised eg murder or rape. However, there could be differences in the description of some offences between countries. This could result in the failure of an extradition request simply because of an inability to find an offence in the list of extraditable offences that matched the offence alleged to have been committed by the fugitive eg one country may refer to an offence as a “fraud” while the other country may refer to “misappropriation”. Instead of listing extraditable offences, the new legislation focuses on the conduct alleged to have been engaged in by the fugitive when committing the offence for which extradition is sought. So, if some of the fugitive’s acts or omissions, if committed in PNG, would constitute a criminal offence in PNG, then the fugitive will have committed an “extradition offence” which may result in their being surrendered for extradition.
Another reform has been to do away with the need for evidence to support a request for extradition. This requirement had been a stumbling block for extradition requests between common law jurisdictions and civil law jurisdictions. It has been found to be almost impossible for a civil law jurisdiction to produce evidence in a form that would admissible in a common law court. As a result, very few requests for extradition by a civil law country to a common law country were successful. The no evidence approach has reduced this difficulty and is now the internationally accepted approach for extradition arrangements. ?

Figure 1: Lawyers

Back Row:
Augustus Bray, Laura Kuvi, Helen Roalakona, Pondros Kaluwin, Rebecca Christensen (SGP Prosecutor), David Kuvi, Timothy Ai. Front Row:
Anthony Kupmain, Nicholas Miviri, Jim Wala Tamate (APP), Tracy Ganaii, Barbara Gore.
Absent:
Camillus Sambua, Ravunama Auka, Maryanne Zurenuoc, Raphael Luman, James Morog, Miglshi Giruakonda, Paul Rutledge (Snr SGP Prosecutor), Andrew Buckland (SGP Prosecutor –POCA).

Figure 2: Administrative Staff

Back Row:
Harry Pala, Theresa Stevens, Dorothy Kakot, Ao Rei, Priscilla Andrew, Ken Richardson (Development Practitioner), Madeline Suruman, Jacqueline Wagambie, Toto Masu.

Front Row:
Roselyn Koliadi, Esther Ravugamini, Margaret Buakia, Francesca Tamate, Leah Gabuba.

Absent:
Dorcas Nathaniel, Peter Pare.



Contacts

Office of the Public Prosecutor,
Level 3 & 4, Tisa Haus, Kumul Avenue, WAIGANI
P. O. Box 662, WAIGANI, NCD
General Enquiries: Telephone: 325 0366, 325 0250, 325 0289, 325 0025, 325 11947
Fax: 325 2795
Email: pubpros@justice.gov.pg