[1971-72] PNGLR 320

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

TOPULUMAR AND OTHERS

Port Moresby
Kelly J

22-23 December 1971

CRIMINAL LAW - Ex officio Indictment - Presentation of, in absence of accused - Application for issue of warrant of arrest - Indictment presented at place other than place of trial - The Criminal Code (Queensland, adopted), ss. 561, 562.[ccclxxix]1

An indictment may be presented against an accused person in his absence: R. v. Byrne [1971-72] P. & N.G.L.R. 1, followed.

An indictment may properly be presented at a place other than the place named in the indictment as the place of trial but unless an order for change of venue is made, the trial itself must be held at the place so named.

Before a warrant may issue under s. 562 of The Criminal Code for the arrest of an accused person, the requirements are that he be not in custody on the charge set forth in the indictment and that he has not been committed for trial on that charge and further that he be not held to bail to attend to be tried on that charge.

Semble

s. 561 of The Criminal Code is wide enough to enable the joinder in one indictment of persons committed for trial and persons indicted ex officio.

Application for Issue of Warrants of Arrest.

Of nine accused charged with wilful murder, five were shown to have been committed for trial while the remaining four were not, but were shown to have been indicated ex officio. None of the accused was present. The four accused indicated ex officio were previously discharged by the District Court in Rabaul on committal proceedings arising out of the killing, the subject of the indictment and the Crown sought the issue of warrants under s. 562 of The Criminal Code for their arrest. The argument of counsel and trial judge’s rulings appear from the reasons hereafter reported.

Counsel:

Wall, for the Crown.
Luke, for the accused Ekonia Topalnakuk, Paul Tokivung and Markus Tolire.

23 December 1971

KELLY J:  An indictment has been presented before me against nine accused who are charged with having on 19th August, 1971 in the Territory of New Guinea wilfully murdered Errol John Emanuel. The place named in the margin of the indictment as the place of trial is Rabaul. Five of the accused are shown on the indictment as having been committed for trial on 25th October, 1971. The remaining four accused were not committed for trial and the indictment shows that they are indicted ex officio pursuant to the provisions of s. 561 of the Criminal Code. None of the accused was present in Court when the indictment was presented. Mr. Luke, who appeared for three of the four accused indicted ex officio, objected to the presentation of the indictment in Port Moresby and also to its being presented in the absence of the accused.

Mr. Wall for the Crown informed me that the purpose of presenting the indictment was to seek the issue of a warrant under s. 562 of the Criminal Code for the arrest of the four accused indicted ex officio. I was told that these accused had originally come before the District Court in Rabaul on committal proceedings arising out of the killing, the subject of the indictment, but had been discharged.

Before I concern myself with the merits of the application, several preliminary matters require consideration. The first is whether the indictment in which Rabaul is named as the place of trial may be presented in Port Moresby, no application having been made for a change of venue. Section 564 of the Code requires that the place of trial be named in the margin of the indictment. Section 594 provides that the trial is deemed to begin when the accused person is called upon to plead to the indictment. No assistance is to be derived from other sections of the Code dealing with procedural matters or, so far as I can discover from any reported decision. The position as I see it is that there is nothing to prevent an indictment being presented at a place other than the place named in the margin as the place of trial, but unless an order for change of venue is made under s. 559, the trial itself, that is, the proceedings which follow the arraignment of the accused and his pleading to the indictment, must be held at the place so named as the place of trial. That being so, this indictment may properly be presented in Port Moresby for the purpose of making the present application.

The next matter which arises is whether an indictment may be presented against an accused person who is not present. If this were not so, s. 562 would be meaningless and completely ineffective, as its only purpose is to provide for the arrest of an accused person who is not present when the indictment is presented. There is of course in this case the further consideration that the indictment is presented also against five other persons whose arrest is not being sought, they having already been committed for trial and I assume that they are already in custody. I did have occasion to consider this matter in Rabaul last year in the case of Reg. v. Byrne[ccclxxx]2 where in dealing with a submission that an indictment could only be presented against an accused who was present, I said this: “No authority could be cited for this and it does not seem to me that this submission is well founded. The accused must certainly be present in order to plead (s. 594) and except in the circumstances provided for in s. 617 the trial must take place in his presence. There is, however, nothing in the Code which requires that the accused be present when the indictment is presented; certainly in view of ss. 594 and 617 the trial could not begin in his absence, but that is another matter.” I am not persuaded that I should alter that view so that I hold that the absence of the accused is no bar to the presentation of the indictment.

There is one other preliminary matter to which I should refer, although it was not specifically raised before me by way of objection, and that is the joinder in one indictment of persons committed to trial and persons indicted ex officio. As to this I would merely say that, as I would see it, s. 561 is wide enough to enable this to be done, so that I am not precluded from proceeding to deal with this application on its merits. It is not appropriate that I should deal further with this aspect at this stage of the proceedings.

I now turn to the merits of the application. The material before me shows that one of the four accused, the subject of the application, is in custody on another matter and is due for release on 9th February, 1972. The remaining three accused concerned are not in custody at all. None of them has been committed for trial upon the charge set forth in the indictment and, although this is not expressly stated, it is apparent that they are not held to bail to attend to be tried upon that charge. On a proper reading of s. 562, I consider that the requirement is that the accused person be not in custody on the charge set forth in the indictment and that he has not been committed for trial on that charge, and further that he be not held to bail to attend to be tried on that charge. In other words, in each case the words in the section must be related to the charge set forth in the indictment. On that reading of the section I am satisfied that all these conditions are met. I do not consider that in an application of this nature it is necessary that I be satisfied of these matters beyond reasonable doubt, nor does it appear necessary that the application be made on notice to the accused as in many cases this would obviously be inappropriate. The requirement is that I should satisfy myself that the case is a proper one to issue a warrant which means, firstly, being satisfied that the conditions precedent imposed by s. 562 exist and then that it is an appropriate case in which to issue a warrant.

I appreciate Mr. Luke’s submission that the Crown has failed to show anything which should cause me to take the step of issuing a warrant. However, I must have regard to the nature of the charge, which is one of wilful murder, and notwithstanding that these men have previously been brought before the District Court and subsequently discharged I would consider it appropriate, now that an ex officio indictment has been presented against them on such a charge as wilful murder, that they should be arrested and brought before a justice to be dealt with in accordance with s. 562.

I therefore order that a warrant issue to arrest each of the following accused persons, namely Ekonia Topalnakuk, Paul Tokivung, Markus Tolire and Joseph Togigie and to bring each such accused before a justice of the peace to be dealt with in accordance with the provisions of s. 562 of the Criminal Code (Queensland, adopted). In the case of Markus Tolire I apprehend that the execution of the warrant would be delayed until after his release from his present custody but that is not my concern.

The consequence of issuing these warrants is that the accused persons could be committed to prison until they can be tried on the indictment. It is not necessary for me at this point to consider the possible operation of s. 111 of the District Courts Ordinance with s. 562 of the Criminal Code. It is sufficient for me to proceed on the footing that, putting it at its lowest, committal to prison pending trial is a real possibility. The indictment itself fails to nominate the sessions at which the accused will be tried. Mr. Luke informed me yesterday, without any demur from Mr. Wall, that the matter would not be listed for hearing until the March sittings of the Court in Rabaul. I am appalled to think that this could possibly be so. Five of the accused named in the indictment now before me were committed for trial on 25th October, 1971—nearly two months ago, and I consider it entirely wrong that it should be contemplated that they wait over another two months before being brought to their trial. The remaining four accused against whom warrants are now to issue have already been before the District Court again some two months ago and were discharged, but are now again to be placed in jeopardy. In their case also, assuming that the arrest of those not now in custody is effected with reasonable despatch, any lengthy delay in bringing them to trial is most undesirable. In view of the time that has already elapsed since the committal proceedings were concluded I find it difficult to imagine that either the Crown or the defence would not be in a position to proceed with the trial of this matter at the next Rabaul sittings in February 1972. So far as the business of this Court is concerned there is no reason whatsoever why the trial should not take plaee at those sittings; indeed, so far as the Court is concerned, the trial could have been held this year.

A trial held in February will still be some six months after the occurrence with which it is concerned. It is not in the public interest nor in the interests of the accused that it should be delayed any longer. Now that this matter is before me I have the power to make an order under s. 13(4) of the Supreme Court Ordinance 1949. That section deals generally with sittings of the Court and sub-s. (4) provides as follows: “Notwithstanding the preceding provisions of this section, the Court may, at any stage of any proceedings, order that the proceedings shall be continued at a place and time specified in the order, and may from time to time vary any such order.” I propose to exercise the power given by that section to make an order designed to have this trial take place at the February sittings in Rabaul. I therefore order that the proceedings on this indictment shall be continued in Rabaul at the sittings appointed to be held in the month of February 1972 on a date to be fixed by the judge presiding at those sittings.

As I understand the learned Crown Prosecutor, there were other persons committed for trial at the same time as some of the present accused. As there are no proceedings before me in respect of those persons, obviously I can make no similar order in their case, but the considerations to which I have referred clearly apply in their case also.

I formally make the orders that I have indicated in the course of this judgment.

Ordered accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccclxxix]Section 561 of The Criminal Code provides that “A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may present an indictment in that Court against any person for any indictable offence within the jurisdiction of the Court whether the accused person has been committed for trial or not . . .”

Section 562 of The Criminal Code provides that “When an indictment has been presented against a person who is not in custody, and has not been committed for trial or held to bail to attend to be tried upon the charge set forth in the indictment, or who does not appear to be tried upon the charge set forth in the indictment, a Judge of the Court in which the indictment is presented may issue a warrant under his hand to arrest the accused person and bring him before a justice of the peace; and the justice before whom he is brought may commit him to prison until he can be tried on indictment, or may, in a proper case, admit him to bail with sufficient sureties to attend to be tried on the indictment.”

[ccclxxx][1971-72] PNGLR. 1.