PAPUA NEW GUINEA NATIONAL COURT OF JUSTICE CRIMINAL PRACTICE (FRAUD & CORRUPTION RELATED OFFENCES) RULES 2013

Transcription

1 PAPUA NEW GUINEA NATIONAL COURT OF JUSTICE CRIMINAL PRACTICE (FRAUD & CORRUPTION RELATED OFFENCES) RULES 2013 Pursuant to Section 184 of the Constitution and Section 8 of the National Court Act (Chapter No 38) and all other powers thereunto enabling, the following Rules prescribing the practice and procedure of the National Court of Justice relating to the conduct of criminal cases shall come into force on a date to be determined by the Chief Justice. These Rules are in addition to and form part of the procedure for pre-trial preparation and listing cases for trial contained in the Criminal Practice Rules Made by the Judges on this 4th day of November Chief Justice, Sir Salamo Injia, Kt Deputy Chief Justice, Gibbs Salika, CSM, OBE Justice Sir Bernard Sakora, KBE, CSM, CBE Justice Nicholas Kirriwom Justice Les Gavara-Nanu, OBE, CSM Justice Ambeng Kandakasi Justice Ellenas Batari, MBE Justice Catherine Davani Justice Salatiel Lenalia Justice Panuel Mogish Justice David Cannings Justice George Manuhu Justice Kingsley Allen David Justice Sao Gabi Justice Derek Hartshorn ML Justice Joseph Yagi Justice Colin Makail Justice Ere Kariko MBE Justice John Kawi Justice Don Sawong MBE Justice Stephen Kassman Justice Jacinta Murray Justice Berna Collier Justice John Logan RFD Justice Goodwin Poole Acting Justice Iova Geita Acting Justice Peter Toliken Acting Justice Stephen Oli MBE Acting Justice Reggett Marum Acting Justice Kewei Kawi u

2 PART 2 of the Criminal Practice Rules 1987 is amended by inserting the following: PURPOSE ORDER 2A CRIMINAL PRACTICE (FRAUD & CORRUPTION RELATED OFFENCES) RULES 2013 These Rules contain procedures in addition to those procedures set out in the Criminal Practice Rules 1987 for the purpose of facilitating a quick, fair and efficient disposition of criminal cases involving fraud, dishonesty and corruption, under a special Court track set up for that purpose. Division 1 General Rules INTERPRETATION In these Rules, unless the contrary intention appears FCC means Fraud and Corruption related cases; Judge means a Judge assigned by the Chief Justice under Rule 1; Listing process means the process set out in these Rules and in particular, Mentions, Directions Hearing, Status Conferences and Trials; List means matters on the FCC List, Bail List, Remand List, Bench Warrant List, Mention List, Directions List or the FCC Trial List. 1. Judge. The Chief Justice may assign a Judge(s) as determined in the Annual Circuit Calendar and from time to time to conduct matters on the FCC List. 2. Senior Clerk. The Registrar shall assign a Senior Clerk and such other Clerks to manage the List and to perform duties of the Registrar given under these Rules. 3. Application. The types of cases which may be dealt with under these Rules include the following: (c) offences under the Criminal Code or under any other law involving theft, fraud, dishonesty and misappropriation of property and including fraud and corruption; or offences listed in the Schedule; or applications under the Proceeds of Crime Act 2005 or the Mutual Assistance in Criminal Matters Act

3 4. Files and file references. Upon receiving a Notice of Committal from the District Court in respect of an FCC case, or upon filing of an FCC case the Registrar shall create a Court file and assign the appropriate file reference from the following: offences described in Rule 2 and : CR (FC) No of (year); applications described in Rule 2(c): OS (FC) No of (year); (c) appeals and reviews from the District Court in matters described in Rule 2: CA (FC) No of (year). Division 2 Pre-trial Procedures for Fraud and Corruption Cases. 5. Court lists. (1) The Registrar shall maintain the Lists mentioned in these Rules, in such form and content as determined by him. (2) Application may be made to the Registrar to add or remove a matter from the FCC List and the Registrar shall make a decision on the application. (3) A person aggrieved by a decision under Sub-rule (2) may apply to a Judge, by Notice of Motion, for review of the decision. The decision of the Court on a motion is final and not subject to appeal. 6. Call-overs. The Judge may conduct a Call-Over of cases appearing in the FCC List at a time determined by the Judge. 7. Mentions. (1) Upon the creation of a Court file under Rule 3, the Registrar shall list the matter before a Judge for mention. (2) There shall be a first mention of the matter before a Judge, on the first available Monday after committal or on such days as fixed by the Registrar or a Judge. (3) The accused shall appear at the first mention of the case. 3

4 (4) At the mention, the Judge may amongst other things: (c) (d) consider legal representation for the accused; review bail or remand status; confirm receipt of the Notice of Committal and District Court depositions on the matter; fix a date for a Directions Hearing. 8. Directions hearing. (1) A Directions Hearing shall be held within 21 days from the mention date. (2) The Directions Hearing shall be attended by the accused and prosecution and defence counsel who are sufficiently prepared to assist the Judge in addressing the matters mentioned in this Rule. (3) At the Directions Hearing, the Judge may amongst other things, consider and issue directions with regard to the following matters: (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) availability of District Court depositions; availability of witnesses for the parties; protecting and preserving witnesses and witnesses testimony or material evidence; early indication of the possible charge; early indication of plea; the plea at trial; prosecution witnesses required at trial as shown on the committal documents and any notices of further evidence then delivered and of the availability of such witnesses; any additional witnesses who may be called by the prosecution and the evidence that they are expected to give, and if the statements of these witnesses are not then available for service, a summary of the evidence that they are expected to give shall be supplied in writing; facts which can be and are admitted pursuant to Section 589 of the Code and which can be reduced to writing at the trial and of the witnesses whose attendance will not then be necessary; the probable length of the trial; exhibits which are to be provided and whether they are to be admitted by consent; issues, then envisaged, as to the mental or medical condition of any accused person or witness; any point of law which may arise on trial, any question as to the admissibility of evidence which then appears on the face of the papers and of any authority on which either party intends to rely as far as can be possibly envisaged at that stage; the names and addresses of witnesses from whom statements have been taken by the prosecution but who are not going to be called and, in appropriate cases, disclosure of the content of those statements; any alibi not disclosed pursuant to Order 4 of these Rules; the order and pagination of the papers to be used by the prosecution at the trial and of the order in which the witnesses for the prosecution will be called; 4

5 (q) (r) (s) (t) (u) (v) (w) the likely assistance through a request for a Probation Report; counsel representing the accused and the State at the trial; issue of witness summonses; any other significant matter which might affect the proper and convenient trial of the case; fix the date, time and venue of trial to take place within 4 months from the committal; fix a date for a status conference to take place prior to trial; and issue of a Notice of Trial. 9. Application for directions. An accused person or the State may apply for directions on three clear days notice to the other party in relation to any matter to be considered by the Judge set out in these Rules. Division 3 Special Provisions in Relation to Proceedings under the Proceeds of Crime Act and the Mutual Assistance in Criminal Matters Act. 10. Application. This Division applies to applications under the Proceeds of Crime Act 2005 ( PCA ) and the Mutual Assistance in Criminal Matters Act 2005 ( MACMA ) including (c) (d) (e) an application under Section 18 of the PCA against a cash dealer or its officers or employees; an order under Sections 32 or 33 of the PCA in relation to the detention or release of seized currency; an application for a restraining order against property or the variation of such an order or the release of property from such an order or the revocation of the order under Sections 38 to 57 of the PCA; an application for a forfeiture order, supporting orders or variations and amendments, the discharge of such orders and the protection of third-party interests under Sections 58 to 78 of the PCA; an application for a pecuniary penalty order, variation or enforcement of such orders under Sections 81 to 110 of the PCA; (f) an application for the return or retention of seized property under Sections 123 to 132 of the PCA; (g) application for restraining orders in respect of offences committed in foreign parts under Sections 137 to 144 of the PCA; 5

6 (h) an application for orders for the control and custody of property under a registered foreign restraining, or forfeiture order under Sections 145 to 170 of the PCA; (i) an application under Section 14 of the MACMA to take evidence or under Section 15 of the MACMA for the production of a document for a foreign jurisdiction; (j) (k) (l) (m) an application under Section 41 of the MACMA for the registration of foreign orders or under Section 46 of the MACMA for the cancellation of registration; application under Section 50 of the MACMA for a certificate that the taking of evidence in a foreign jurisdiction would be desirable in the interests of justice in proceedings in Papua New Guinea; any other application under either Act; similar applications under any other relevant Act. 11. Exercise of court s powers. The Court shall determine an application at a hearing (which may be in private if a Judge finds it necessary or expedient pursuant to Constitution, Section 37(13)); and in the applicant's presence. 12. Absence of respondent. The Court shall not determine an application in the absence of the respondent or any person affected, unless the absentee has had at least 2 business days in which to make representations; or the court is satisfied that (i) (ii) (iii) the applicant cannot identify or contact the absentee; or it would prejudice the investigation if the absentee were present; or it would prejudice the investigation to adjourn or postpone the application so as to allow the absentee to attend; or (c) (d) the Act under which the application is made specifically allows an ex parte application; or the Act under which the application is made authorises the applicant to request the court to proceed ex parte. 13. Persons seeking to be heard on an application. A person seeking to be heard on an application shall file and serve a Notice of Appearance. 6

7 14. Custody of documents. The Court may direct that a written application be kept in such manner as will preserve secrecy. 15. Commencement of proceedings and subsequent applications. (1) Proceedings shall be commenced by way of originating summons under the provisions of National Court Rules Order 4, Division 4, unless the application has been made orally. (2) Every application shall state the section of the PCA or MACMA on which the applicant relies. (3) Interlocutory applications in a proceeding shall be made by motion under the provisions of National Court Rules Order 4, Division Oral applications. (1) If the Public Prosecutor intends to make an oral application under a right to do so under the provisions of the PCA, an appointment shall be made with the Associate to the Judge. (2) Documents need not be filed in the Registry before the making of an oral application. (3) As soon as is practicable after making the application, unless the Judge orders otherwise, an originating summons and supporting affidavits and the order made, reflecting the application made orally and the order, shall be filed in the Registry. 17. Directions and other interlocutory applications and issues. (1) The provisions of the National Court Rules shall apply to all interlocutory directions and applications to the extent that they do not conflict with the provisions of the PCA, the MACMA or these Rules. (2) Every applicant for an order, other than application made orally or ex parte, shall provide a draft of the order to the respondent parties at least 48 hours before the hearing date of the application, and invite the respondent parties to consent to the order or to indicate what changes to the draft order would be required to obtain their consent. (3) On the hearing of an application for an order, other than an application made orally, the applicant shall provide to the court a draft of the order sought. (4) All applications, other than oral applications, whether original or interlocutory shall be placed in the List. (5) A hearing date may not be allocated to an application, other than an oral or ex parte application, until the Court is satisfied that all appropriate interlocutory steps have been taken and affidavit evidence sought to be relied upon by the parties has been filed. 7

8 18. Consent orders. (1) If the parties to an application reach a consensus they may, at least 24 hours before the hearing time, deliver (by hand, facsimile or , and in the case of the latter two methods followed by a telephone call to confirm receipt) to the Associate to the Judge minutes of the proposed consent order signed by all of the parties. Attendance by the parties at court on the return date of the application will not be required, unless the Associate to the Judge advises otherwise. (2) The Associate to the Judge will deliver the minutes of the consent order, endorsed by the Judge, to the Registry, unless otherwise ordered by the Judge. (3) The Applicant shall deliver sufficient copies of the order to the Registry for sealing. 19. Forms. The forms contained in the National Court Rules relating to listings, notice of directions hearings, status conferences, referral of matters for urgent applications, notices of trial and notices of summary determinations shall be adopted and applied with appropriate modifications. Division 4 Variation, etc. 20. Variation, extension of time for compliance or dispensation with requirements of these Rules. (1) A Judge may vary or extend time for compliance or dispense with compliance with any provision of these Rules either before or after the time for compliance has expired, on application or on the Court s own initiative. (2) An application shall be made by Notice of Motion and supported by affidavit and made without delay. 8

9 SCHEDULE Fraud and Corruption Related Offences No Offence Criminal Code Provision Offences against the executive and legislative power 1 Interference with the Legislature s 57 2 False evidence before Parliament s 59 3 Member of Parliament receiving bribes s 61 4 Bribery of member of the Parliament s 62 Disclosing official secrets 5 Disclosure of secrets relating to defences by public officers s 84 6 Obtaining disclosure of secrets relating to defences s 85 7 Disclosure of other official secrets s 86 Corruption and abuse of office 8 Official corruption s 87 9 Extortion by public officers s Public officers interested in contracts s Officers charged with administration of property of a special s 90 character or with special duties 12 False claims by officials s Abuse of office s Corruption of valuator s False certificates by public officers s Administering extra- judicial oaths s False assumption of authority s Personating public officers s Corruptly procuring withdrawal of tenders s 97A 20 Bribery of member of Public Service s 97B 21 Duty of person offered gratification s 97C Secret commissions 22 Receipt or solicitation of secret commission by an agent, etc s 97G 23 Secret gifts s 97H 24 False or misleading receipt or account s 97 I 25 Secret Commission for advice given, etc s 97J 26 Secret commission to trustee in return for substituted appointment s 97K 27 Liability of Director, etc, acting without authority s 97L 28 Penalty on conviction ss 97M, 97N Corrupt and improper practices at elections 29 Personation s Double voting s Treating s Undue influence s Bribery s 102 9

10 34 Further penalty for corrupt practices s Illegal practices s Other illegal practices s Interference at elections s Electors attempting to violate secrecy of ballot, etc s Stuffing ballot-boxes s Offences by presiding officers at elections s False answers to questions at elections s Interfering with secrecy at elections s Breaking seal of packets used at elections s Offences at elections when voting is by post s False electoral claims s 116 Selling and trafficking in offices 46 Bargaining for offices in Public Service s 117 Offences relating to the Administration of Justice 47 Judicial corruption s Official corruption not judicial but relating to offences s Perjury s Fabricating evidence s Corruption of witness s Deceiving witness s Destroying evidence s Preventing witnesses from attending s Conspiracy to bring false accusation s Conspiring to defeat justice s Compounding crimes s Compounding penal actions s Advertising reward for the return of stolen property, etc s Magistrate acting oppressively or when interested s Delay to take person arrested before Magistrate s Bringing fictitious action on penal law s Inserting advertisement without authority of Court s Attempting to pervert justice s 136 Obstructing officers of courts 65 Removing, etc, property under lawful seizure s 143 Offences relating to currency 66 Gilding, etc, metal or other material with intent to make counterfeit s 146 coin 67 Making, etc, coining instruments s Making counterfeit coin s Buying or selling of counterfeit coin s Possession of counterfeit coin, etc s Uttering counterfeit coin s Uttering metal, etc, as coin s Clipping or sweating coins s Possession of clippings, etc s Making, possessing or selling tokens, etc, resembling coins s Defacing coins s Defacing or destroying coins s

11 78 Possession of forged notes s Forging or uttering of notes s Making, etc, of false forms s Alteration of notes forbidden s Copying of notes forbidden s 162 Offences relating to posts and telegraphs 83 Stopping mails s Intercepting things sent by post or telegraph s Tampering with things sent by post or telegraph s Wilful misdelivery of things sent by post or telegraph s Obtaining letters by false pretences s Secreting letters s Fraudulent issue of money orders and postal notes s Fraudulent messages respecting money orders s Sending dangerous or obscene things by post s Retarding delivery of mails, etc s Obstructing mails s Penalty on mail-coach driver or guards loitering s Fraudulently removing stamps s Fraudulent evasion of postal laws s Carrying letters otherwise than by post s Illegally conducting postal business or obstructing post office s Destroying or damaging letter receivers s Placing injurious substances in or against letter boxes s Obstructing post and telegraph offices s Obstructing post and telegraph officers in the execution of duty, s 188 etc 104 Interference with telegraphs s Violation of secrecy s Making charges for use of telegraph line without authority s 192 Miscellaneous offences against public authority 107 False declaration as to execution of sentence of death s False statements required to be under oath or solemn declaration s False declarations and statements s 197 Offences against public health 110 False information as to health on foreign ships s Exposing for sale things unfit for food s Dealing in diseased meat s Adulterating liquor s 240 Miscellaneous offences 115 Dealing with land fraudulently acquired from the State s Fraudulent destruction or removal of goods liable to duty s 242 Offences against liberty 117 False certificates by officers charged with duties relating to liberty s Concealment of matters affecting liberty s 357 Offences relating to parental rights and duties 119 Child-stealing s 361 Stealing and similar offences 120 Stealing s

12 121 Concealing registers s Concealing wills s Concealing deeds, etc s Killing animals with intent to steal s Severing with intent to steal s Using registered brands with criminal intention s Fraudulently dealing with minerals in mines s Bringing stolen goods into Papua New Guinea s Fraudulent disposition of mortgaged goods s Fraudulent appropriation of power s Unlawfully using motor vehicle, etc s Misappropriation of property s 383A 133 Obtaining goods or credit by false pretence or wilfully false s 404 promise 134 Obtaining execution of valuable security by false pretence or s 405 wilfully false promise 135 Cheating s Conspiracy to defraud s Fraud on sale or mortgage of property s Pretending to exercise witchcraft or tell fortunes s Receiving stolen property, etc s Receiving after change of ownership s Taking reward for recovery of property obtained by means of s 412 indictable offences 142 Trustees fraudulently disposing of trust property s Directors and officers of corporations fraudulently appropriating s 414 property, keeping fraudulent accounts or falsifying books or accounts 144 False statements by officials of companies s Misappropriation by members of local authorities s Fraudulent false accounting s False accounting by public officer s 419 Forgery and like offences: personation 148 Forgery in general: punishment in special cases s Uttering false documents and counterfeit seals s Uttering cancelled or exhausted documents s Uttering cancelled stamps s Procuring execution of documents by false pretences s Obliterating crossings on cheques s Making documents without authority s Demanding property on forged testamentary instruments s Purchasing forged bank notes s False certificate of message received by telegraph s Falsifying warrants for money payable under public authority s Falsification of registers s Sending false certificate of marriage to Registrar s False statements for the purpose of registers of births, deaths and s 475 marriages 162 Attempts to procure unauthorized status s

13 163 Counterfeiting trade marks s Circulating false copies of rules or lists of members of societies or s 478 companies 165 Sending false telegrams s Forgery of seamen s tickets or documents under Acts controlling s 481 factories and shops 167 Fraudulent use of adhesive stamps s False warranties or labels relating to the sale of food s Instruments and materials for forgery s Counterfeit stamps s Paper for postal purposes s Papers and dies for postage stamps s Personation in general s Falsely acknowledging deeds, recognizances, etc s Personation of a person named in a certificate s Lending certificates for personation s 491 Offences connected with trade and breach of contract- Fraudulent debtors & offences relating to falsification of companies registers, etc 177 Absconding with property in contemplation of or immediately after s 493 insolvency 178 Frauds by insolvents s Other frauds by insolvents s Falsification of books by insolvents s Frauds by insolvents in course of insolvency proceedings s Failure by insolvents to discover property s Failure to keep proper books s Concealing documents s Receiving insolvent s property with intent to defraud s Making false claim in insolvency s Concealing property of insolvents s Fraudulent dealing with property by debtors s Concealment by officers of companies on reduction of capital s Falsification of books of companies s Mixing uncertified with certified articles s