THE court has ruled that despite the procedural failures on three separate cases including the fraud cases of two former permanent secretaries, Henry Murray and Edmond Sikua, those procedural failures can be rectified.
Chief Magistrate Emma Garo in her ruling found that the procedural irregularity in these three cases although they relate to the institution of the criminal process against the defendants; these could still in her view be rectified by the court.
“I further find that the procedural irregularity in these three cases although they relate to the institution of the criminal process against the defendants, these could still in my view be rectified by this court,” Ms Garo ruled yesterday.
“This Court has the power to issue directions on how to give meaning and effect to the law and procedures which governs the institution of cases before it and the conduct of cases before it according to law,” she added.
“There is in fact and in law no charge before this court to be dismissed.
“It is in my view that in light of the public interest to prosecute those charged with offences according to law, and to bring those charged with criminal offences, to court, according to law.”
Ms Garo then said that prosecution should be given more time to rectify the procedural error on these three cases by complying with the law on institution of the process of prosecution in court.
The ruling is in relation to the technical issues Ms Garo earlier raised about the charge not being signed by a Magistrate.
Another issue she raised is in regard to the “Notice of Offence Charged” form (NOOC) used by the Police to prefer the charges against the defendants are different from the “Charge (Compliant by a Public Officer)” Form 6 – Magistrates Court Act, as prescribed by the Chief Magistrate who formulated the Magistrates Courts (Forms) Rules 1992, in the exercise of the powers conferred on him under section 79 of the Magistrates Courts Act.
These were the technical issues raised on the cases of Murray and his wife who were accused of defrauding the government of more than $1.1 million, Papua New Guinea national Rose Kaius who faces a charge of restriction on making liquor and unlawful presence and Sikua who was charged for allegedly awarding government tenders worth $630,436.50 to Beeds Investment, a company registered and owned by his two daughters.
All the defence counsels representing these accused have submitted that the court should quash or dismiss the charges against their clients.
Leslie Kwaiga of L & L Lawyers represents Murray and his wife, Maelyn Bird of Emerald Lawyers representing Kaius, while Gabriel Suri of Suri’s Law Practice represents Sikua.
Ms Garo had asked the defence counsels to assist the court with where in the law the court derives its powers to dismiss the charges; they were not able to point the court to any specific authority.
She said the Murrays and Kaius have not yet taken their pleas while Sikua had already entered not guilty pleas to seven counts of official corruption.
She added that the issue now before the court is one of procedural irregularity.
“The procedure set out for commencing the process of prosecution in court not yet complied with, but, the failure to comply is not necessarily illegal to amount to the commission of a specific law offence,” Ms Garo added.
She further stated that there is no evidence on the face of legislation, to suggest that it is the intention of Parliament that a procedural irregularity of this nature should not be capable in some way of rectification.
“Turning to the issue of interest of justice it would appear clear that it is in the interest of justice and in the public interest for the cases to proceed to be adjudicated upon following fair process.
“I also find that both the prosecution and the defence have not suffered any material prejudice on account of the procedural failure.
“It would therefore follow that the procedural irregularity in the current case is capable of rectification to allow the cases to proceed in accordance with the law.
“I further find that the defendants are not in any way prejudiced by the failure of a Magistrate to sign the charges.”
Ms Garo had found that the NOOC form used by Police in these cases is inconsistent with the Form prescribed by the law.
“It is a legal requirement pursuant to section 76 of the CPC that the Complaint and Charge Sheet be signed by the Magistrate.
“There is no requirement for the Charge Sheet to be sworn before the Magistrate.
“In these cases the legal requirements were not met.
“The formal taking of the Charge Sheet is evidenced by the signature of the Magistrate and is the act which triggers the initiation of proceedings.
“The errors in these cases amount to procedural irregularities capable of rectification,” Ms Garo found.
Ms Garo then made orders directing that all Charges to be presented to the Court must be in Form 6 in compliance with the applicable rules, namely the Magistrates Courts (Forms) Rules 1992 and that all charges instituted under 76 of the CPC shall be formally taken by a Magistrate who shall affix his or her signature to the charges.
The Police are given 14 days to comply with the orders to prepare fresh charges for accused in these three cases and have the charges signed by a Magistrate before filing, the charges at the registry.
The matter of Murray and his wife, and Sikua will return to the court again on November 16 while Kaius’s matter was adjourned to today.
Ms Garo ordered that the Director of Immigration or his designated officer is to appear in court today and to assist the court with information as to whether or not the court should exercise its powers to release Kaius and give her 21 days to leave the country.
Any party aggrieved by the Court’s decision, or orders made, may appeal to the High Court within 14 days.
Public Prosecutor Florence Joel is appearing on behalf of the Crown for these matters.
By ASSUMPTA BUCHANAN
