The National – Tuesday, December 7, 2010
By ILA PAILAEA
AN application to quash the indictment against two Chinese men charged with attempted murder on businessman Jason Tan was dismissed last Friday because correcting the defect in it “would not prejudice the accused in their defence.”
The public prosecutor laid the indictment against Dickson Xue Zhufu and Chang Jiang Gao pursuant to section 526 of the Criminal Code Act.
The two accused challenged the indictment citing defects in the wordings of the indictment and applied through their lawyer, Michael Wilson of Warner Shand Lawyers, under section 558 of Criminal Code to dismiss the case.
The three grounds raised in their application were:
* The indictment is formally defective because the document titled “Ex-officio indictment” does not exist in law and the placed of trial was not stated in the margin.
* The indictment failed to disclose the particulars of how each accused is alleged to have committed the offence; and
* Other evidences not included at the time of committal proceedings but presented with the indictment should be sent back to the district court for consideration.
Generally, these grounds, when considered under section 558(1) of the Criminal Code, must satisfy the criteria that “(a) it is calculated to prejudice or embarrass him in his defence to the charge; or (b) it is formally defective”.
However, in relation to the first ground, the court said the defect in the document title could be corrected by the court using its discretion under section 558(2)(b) to order an amendment to the indictment by deleting the word “ex-officio” from the heading.
On the second ground, presiding judge Ere Kariko found that the document in several places mentioned “Waigani” as the nominated place of trial and not to specifically have it written on the left margin of the indictment.
“It follows that I find no breach of section 528(7) of the Criminal Code,” he said.
Lastly, the defence was unable to provide evidence to support their rather serious allegation that the police held back further evidence which was unfair and improper to the defence case.
This evidence was later given to the public prosecutor to be used as part of the evidence in the trial.
The judge, in rejecting the submission, said: “The public prosecutor is permitted by law to consider further evidence after a committal court has refused to commit an accused to stand trial.
“This is yet another significant aspect of the public prosecutor’s unfettered discretionary power to lay an indictment in the National Court.
To interpret the provisions to allow for multiple committal proceedings for the same charge would be expensive, very time consuming and would undoubtedly cause uncertainty.”
The judge was referring to the relevant provisions of the District Courts Act and the Code relating to committal proceedings, adding that either the police prosecute the cases
without all evidence in place or wait until all evidence needed was available, which would mean a long delay in the proceedings.
“This would totally contradict the powers granted to and frustrate the function of the Public Prosecutor to lay indictments under the laws,” he said.
The case has been adjourned to the court registry.
Both Xue, 38, and Chang, 36, allegedly shot Tan at his Paga Hill home in Port Moresby early this year.
The two were arrested the same day at Baruni.
Tan sustained a gunshot wound to his arm as a result of the attack.