An accused facing a K7 million misappropriation trial asked a civil court to stop it before it started. The Supreme Court assembled five judges to say why that can never work.
Eremas Wartoto v The State [2015] PGSC 1; SC1411; [2015] 1 PNGLR 26
Supreme Court, Waigani — Injia CJ, Sakora, Kirriwom, Kandakasi and Davani JJ, 27 January 2015. SCA 124 of 2013.
What happened
The District Court committed Mr Wartoto to stand trial on two counts of misappropriation. The State alleged that of a K7.8 million building contract only K700,000 was spent on the works and the balance went to him and his companies. After the Public Prosecutor served the indictment, Mr Wartoto commenced a separate civil action in the National Court seeking a permanent stay of the criminal proceedings. He argued that the committal material disclosed no misappropriation because the State had paid the money to a private company for services and no longer had an interest in it.
The National Court dismissed the civil proceedings. He appealed.
What was argued
Mr Wartoto relied on the National Court’s unlimited jurisdiction and on section 155(4) of the Constitution, which empowers the Court to make such orders as are necessary to do justice, arguing that a prosecution doomed to fail should be stopped before trial. The State said the criminal process, including the trial judge’s own powers, was the proper place for every such argument.
What the Court decided
1. A larger range of procedural safeguards is built into the criminal process to give the accused the full protection of the law. The National Court conducting the trial remains duty-bound to conduct it fairly and according to law, and an accused committed for trial has no reason for concern on that account.
2. The National Court’s unlimited jurisdiction and its discretionary powers under section 155(4) should not be read and applied to override the criminal trial process stipulated by the Criminal Code.
3. The argument that the alleged facts did not support the charge could be revived before the trial judge. The Supreme Court would not deal with it.
There is no legislative foundation for using civil proceedings to stay a criminal case; specific provisions exist within the criminal process and were not used. It is against good order and the due administration of justice for civil courts to intervene in criminal cases, and in the public interest that criminal proceedings take their normal course. The appeal was dismissed.
Did it make new law?
The Court affirmed the National Court’s dismissal and, sitting as five judges, laid down a rule of general application. Earlier practice had been mixed; in 2013 a differently constituted bench had by majority granted Mr Wartoto a stay pending this very appeal. Wartoto closed the door: the remedies of an accused lie within the criminal process, by objection to the indictment, a no-case submission, the trial itself, and appeal.
Why it matters
Judicial review of committal decisions is treated the same way. Later benches have held that using judicial review to challenge a committal, with the effect of stopping or delaying the prosecution, is an abuse of process.
Supreme Court review of interlocutory criminal rulings faces a heavy onus. Citing Wartoto, the Court has said an accused must show a strongly arguable want of jurisdiction, because of the overwhelming public interest in criminal trials running from beginning to end without interruption.
Stays of criminal proceedings after conviction, pending appeal, are governed by the Supreme Court Act and remain rare.
What it does not decide
Wartoto does not remove the trial court’s own power to stay a prosecution that is an abuse of its process, nor the Supreme Court’s power under section 155(2)(b) to review a National Court criminal ruling in a proper case, as in Application by Herman Leahy (2006) SC855. It concerns the use of separate civil proceedings and section 155(4) for that purpose.
Recent cases applying it
- Paraka v The State [2023] PGSC 85; SC2439 — Cannings J placed the public interest recognised in the “five-Judge Supreme Court decision in Wartoto” at the centre of refusing a stay of a verdict of guilty.
- Application by Jurgen Ruh [2023] PGSC 10; SC2352 — the “seminal, five-Judge decision” in Wartoto warned of the dangers of collateral proceedings interrupting criminal trials; leave to review refused.
- Nii v Aron [2022] PGSC 148; SC2529 — civil processes including judicial review cannot be used to stop or delay criminal proceedings; a leave application to challenge a committal was tantamount to an abuse of process.
- Yama v Yalamo [2020] PGSC 3; SC1915 — the 2013 Wartoto stay decision distinguished on its facts.
Sources
- Wartoto v The State [2015] PGSC 1; SC1411 (Injia CJ, Sakora, Kirriwom, Kandakasi and Davani JJ, 27 January 2015)
- Wartoto v The State [2013] PGSC 59; SC1298 (the earlier stay decision)
- Constitution — ss 37, 155(4); Criminal Code (Chapter 262) — ss 383A, 526 to 558
- Paraka v The State [2023] PGSC 85; SC2439; Application by Jurgen Ruh [2023] PGSC 10; SC2352; Nii v Aron [2022] PGSC 148; SC2529; Yama v Yalamo [2020] PGSC 3; SC1915
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