N527

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GIBSON TAMEAN AND OTHERS

Lae
Kapi DCJ

7 November 1985

CRIMINAL LAW - Practice and procedure - Joint trials on separate indictments - Where one indictment charging murder - Joint trials prohibited - Criminal Code (Ch No 262), s 531(4).

Held

Where two indictments are presented on different charges and one indictment charges wilful murder, murder or manslaughter, a joint trial on both indictments is precluded by the Criminal Code (Ch No 262), s 531(4).

Cases Cited

Kereku v Dodd [1969-70] PNGLR 176.
State, The v Leo Nimo [1980] PNGLR 129.
Wari Mugining v The Queen [1975] PNGLR 352.

Interlocutory Ruling

This was a ruling made at the commencement of a criminal trial for a request for a joint trial on indictments charging wilful murder and robbery.

Counsel

M Mosoro, for the State.
J Everingham, for the accused.

7 November 1985

KAPI DCJ: Counsel for the State presented two separate indictments on:

(1) Wilful murder;

(2) Robbery.

In his opening remarks, he stated that the two indictments would be heard together in the one joint trial. I invited counsel to make submissions on whether or not this was possible under the provisions of the Criminal Code (Ch No 262).

Both counsel were agreed on their submissions. They submitted that where two indictments are presented on different charges, they may be tried together in the one trial. Both counsel relied on Kereku v Dodd [1969-70] PNGLR 176; Wari Mugining v The Queen [1975] PNGLR 352 and The State v Leo Nimo [1980] PNGLR 129. They submitted that the two charges, wilful murder and robbery, could not be joined together in the one indictment because of the Criminal Code, s 531(4), which is in the following terms:

"531. Joinder of charges, General Rules
...

(4) This section does not authorize the joinder of the charge of wilful murder, murder or manslaughter with a charge of any other offence."

I consider that the case of Kereku v Dodd is not directly on point. The Court there was considering a charge of unlawful striking on an appeal from the District Court. It, therefore, did not involve the consideration of a charge of wilful murder, murder or manslaughter. The Court therefore did not consider the implications of s 531(4) of the Code which is applicable only to wilful murder, murder or manslaughter.

Again the case of Wari Mugining v The Queen is also not directly on point. In this case, the Court was primarily concerned with the equivalent of s 532(9) of the Code where more than one person is charged with different offences in the same indictment. The present case is concerned with more than one person charged with the same offences, that is, charges of wilful murder and robbery. Again the Court in Wari Mugining was also concerned with different charges — grievous bodily harm, unlawful wounding, attempt to commit rape and assault with intent to rape. The Court gave no consideration to the implications of s 531(4) of the Code.

Similarly, the case of The State v Leo Nimo is also not directly on point. The case involved the joint trial of two accused persons each indicted separately on the same charge of unlawful carnal knowledge. Miles J, (at 132) stated:

"It is highly undesirable that separate indictments should be presented in one ‘lumped’ trial."

I consider that there is no authority directly on the point raised before me.

The trial of a criminal offence is instituted by presentation of an indictment. Each indictment requires a separate hearing. This can be inferred from s 528(7) of the Code. Normally, an indictment should charge one offence only: see s 531(1) of the Code. However, the Code envisages circumstances in which several offences may be charged in the one indictment. The purpose of this rule is to cut down the number of trials on different offences: see s 531(2) of the Code. However, under no circumstances can a charge of wilful murder, murder or manslaughter be joined with any other offence. The purpose of joinder of charges under s 531 and s 532 is to have some offences dealt with together in the one lumped trial. However, s 531(4) prevents any joinder of other offences with a charge of wilful murder, murder or manslaughter. If this is the purpose, can it be said that an indictment on wilful murder can be tried together with the offence of robbery which is contained in a separate indictment? To allow this is to defeat the purpose of s 531(4) of the Code. In my opinion, it is not possible to have one lumped trial concerning these two offences which are contained in separate indictments. The State will have to choose which indictment they wish to proceed with first. [After this ruling, the State decided to proceed with the indictment on robbery first.]

__________________

Lawyer for the State: E Kariko, Acting Public Prosecutor.
Lawyer for the accused: N Kirriwom, Public Solicitor.