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OFFICE
OF THE PUBLIC PROSECUTOR
PROSECUTION POLICY
Attorney-General’s
Department
First Published 2006
This work is copyright. Apart from any use as
permitted under the Copyright and Neighbouring Rights Act 2000 no part may be
reproduced by any process without written permission from the Office of the
Public Prosecutor. Requests and inquiries concerning reproduction and rights
should be addressed to the Office of the Public Prosecutor, Level 4, TISA
Investment Haus, PO Box 662, Waigani NCD, Papua New Guinea.
CONTENTS
1.
Purpose of Prosecution Policy
2.
History of the Office
3. The
Office of the Public Prosecutor
4.
Indictment following Committal
5.
Ex officio Indictments
6. The
Decision to Prosecute
7.
Prosecution of Juveniles
8.
Declaration that a Charge will not be
Laid
9. Selection of
Charges
10. Indictable Offences
Triable Summarily
11. Immunity
from Prosecution
12. Plea
Bargaining
13. Nolle
Prosequi
14. Offering No
Evidence
15.
Sentencing
16. Death
Penalty
17. Prosecution Appeals
Against Sentence
18. Intervention
in a Private Prosecution
19.
Leadership Function
20. Office of
the Public Prosecutor – Head and Regional Offices
OFFICE
OF THE PUBLIC PROSECUTOR
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.
* * * *
Fred M Tomo
Acting Secretary &
Attorney-General
Sir Buri Kidu Haus
Waigani NCD
FOREWORD
The Office of the Public Prosecutor plays a key role in the
criminal justice system of this country. It has long been recognised that fair,
effective and open prosecution is essential to maintaining the rule of law and
achieving a just and peaceful society for all Papua New Guineans.
I therefore commend the Public Prosecutor for issuing this
Policy.
In doing so he has set out the time honoured principles
upon which decisions are made in the prosecution process. This Policy will act
as a guide to his officers in the performance of their duties and promote the
fair and consistent treatment of matters within his Office. The Policy will also
inform all persons affected by prosecution decisions, including victims, accused
persons, witnesses, and the public in general, of the principles by which such
decisions are made.
FRED M TOMO
ACTING SECRETARY &
ATTORNEY-GENERAL
* * * *
INTRODUCTION BY THE
PUBLIC PROSECUTOR
The goal of the Office of the Public Prosecutor has always
been to provide effective, independent, impartial, efficient and timely
prosecution and related services to the people of Papua New Guinea.
To achieve this there must be some principles that the
institution must believe in that will influence or guide its performance.
It is in this connection that the prosecution policy has been
developed into a document form to guide prosecutors in carrying out their
prosecution function.
It also provides other government
institutions, civil society and the general public some information about how
prosecutors and the Office of the Public Prosecutor go about in processing their
prosecutorial responsibilities for purposes of maintaining and promoting good
governance, transparency, accountability and uniformity.
I have every confidence and trust that this policy will
be fully utilized by my officers and staff and interested persons in the
performance and furtherance of the prosecution function.
MR CHRONOX MANEK
PUBLIC PROSECUTOR
*
* * *
PURPOSE OF PROSECUTION
POLICY
Fair, effective and open prosecution is essential to
maintaining the rule of law and achieving a just and peaceful society. The
purpose of this Policy is to outline the principles upon which decisions are
made by this Office in the institution and conduct of prosecutions.
In doing so the Policy aims to assist officers within the
Public Prosecutor’s Office in the assessment and conduct of individual
matters.
In providing a standard set of principles the Policy also
intends, at a broader level, to promote consistency and fairness in the exercise
of discretion by the Public Prosecutor, and where appropriate his or her
officers, in the making of such decisions. Standard principles also promote the
timely and efficient resolution of matters.
Furthermore, in accordance with the obligations
of transparency and accountability, the publication of this Policy is intended
to inform persons affected by decisions made by this Office, including the
public generally, of the principles upon which such decisions are made.
HISTORY OF THE 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 Advisings; 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
(Advisings) 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.
3 THE OFFICE OF THE
PUBLIC PROSECUTOR
3.1 The Office of the Public Prosecutor is established by s
176 of the Constitution.
3.2 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.
3.3 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.
3.4 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
(ga) 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
(h) 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
(i) 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.
3.5 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.
3.6 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.
3.7 As a Constitutional Office-Holder the Public
Prosecutor is protected by the safeguards and subject to the responsibilities
applicable to such Office-Holders.
3.8 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."
3.9 The Public Prosecutor is also one of the "Law
Officers 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.
4 INDICTMENT
FOLLOWING COMMITTAL
4.1 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.
4.2 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.
4.3 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.
4.4 The indictment may be presented to the
National Court by the Public Prosecutor or any State Prosecutor.
5 EX OFFICIO
INDICTMENTS
5.1 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.)
5.2 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.
5.3 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.
5.4 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.
6 THE DECISION TO
PROSECUTE
6.1 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.
6.2 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.
6.3 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?
6.4 The first stage requires an assessment of the
evidence. Firstly, there must be sufficient evidence to prove a prima facie
case.
6.5 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.
6.6 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.
6.7 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?
6.8 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.
6.9 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.
6.10 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.
6.11 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.
7 PROSECUTION OF
JUVENILES
7.1 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 6.9 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.
8 DECLARATION
THAT A CHARGE WILL NOT BE LAID
8.1 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.
8.2 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
ii. 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.
8.3 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.
9 SELECTION OF
CHARGES
9.1 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.
9.2 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.
9.3 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.
10 INDICTABLE
OFFENCES TRIABLE SUMMARILY
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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.
10.6 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.
11 IMMUNITY FROM
PROSECUTION
11.1 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.
11.2 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.
11.3 This section does not prevent a person who has
been granted immunity in relation to an offence being charged with any other
offence.
11.4 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.
11.5 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.
11.6 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.
11.7 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.
11.8 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.
11.9 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.
12 PLEA BARGAINING
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13 NOLLE PROSEQUI
13.1 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.
13.2 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.
13.3 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.
13.4 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.
14 OFFERING NO
EVIDENCE
14.1 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.
15 SENTENCING
15.1 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 facts
• 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.
15.2 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.
16 DEATH PENALTY
16.1 The death penalty was re-introduced into the
Criminal Code by section 2 of the
Criminal Code (Amendment) Act 1991.
16.2 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.
16.3 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.
16.4 The Public Prosecutor recognises, however,
that in deciding whether or not to seek the death penalty, each case will depend
upon its own facts and circumstances.
17 PROSECUTION
APPEALS AGAINST SENTENCE
17.1 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.
17.2 Prosecution appeals against sentence
should be instituted without unnecessary delay.
18 INTERVENTION
IN A PRIVATE PROSECUTION
18.1 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.
18.2 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).
19 LEADERSHIP
FUNCTION
19.1 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.
19.2 Matters
are referred to the Public Prosecutor 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 the Ombudsman Commission,
to the appropriate tribunal.
19.3 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.
HEAD AND REGIONAL
OFFICES
Head Office, Port
Moresby
Level 4, TISA Investment Haus
PO Box 662
Waigani
National Capital District
T: 301 2600 F: 325 2795
Lae
PO Box 2185
Lae
Morobe Province
T: 472 3223 F: 472 5410
Madang
PO Box 868
Madang
Madang Province
T: 852 3036 F: 852 3036
Goroka
PO Box 977
Goroka
Eastern Highlands Province
T: 732 1814 F: 732 1851
Mt Hagen
PO Box
1203
Mt Hagen
Western Highlands Province
T: 542 3477 F: 542 3519
Wabag
PO Box 289
Wabag
Enga Province
T: 547 1121 F: 547 1121
Kokopo
PO Box 407
Kokopo
East New Britain Province
T: 982 8716 F: 982 8726
Kimbe
PO Box
280
Kimbe
West New Britain Province
T: 983 4844 F: 983 4599
© 1998 University of the South Pacific
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