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State v Nama; The State v Bago; The State v Fenni; The State v Mamato; The State v Memeto; The State v Fenni [1999] PGNC 34; N1884 (10 May 1999)

Unreported National Court Decisions

N1884

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 859 OF 1998
STATE
VS
MICHAEL NAMA, KENNETH BAGO, AARON FENNI, SEI MAMATO, PETER MEMETO & SOBI FENNI

Goroka

Kirriwom J
10 May 1999

Case Cited

Charles Ombusu v The State

Counsel

Mrs C. Ashton-Lewis for the State

Mr Apie’e for the Accused

RULING

10 May 1999

KIRRIWOM J: The State presented anctmeictment charging these men with four counts of wilful murder and indicated laying two additional charges against them for muand grievous bodily harm. All c relate to separate vate victims but the incidents ares are connected in place and time. They afrom one single tran transaction. At least that is the impression I get from the State’s submission. I have nod the fileI don&#don’t propose to read the file if the matter is eventually going to g to proceed as a trial. The indictmas pred intion tion toon to the four wilful murder counts for the purpose of the Court giving a ng a ruling on the appropriateness of joinour wilful murder counts in the one indictment. In other words resentationation of inof indictment was a mere necessity for the purpose of enabling the defence to lodge their application for the indictment to be quashed under s. 558.

Defence has tabjection to the indictment ment presented and applied to have the indictment quashed on the grounds:

1. ـ That tcu accused were char charged and brought before the Committal Court on two counts of wilful murder. These ae onl charhat tcused were facing and were committed to stand trial in the Nahe Nationational Coul Court, art, and not for four counts as contained i indictment. They were not charnd proceprocessed in the Committal Court with respect pect to the other two counts.

2. &##160; T60; That thesaccuoud wbe d be prejudiced in their defences by the joinder of the additional offences they were not initially charged with nor committed for to appear in the National Court. #160; The wording in sect58n 558 is that the indictment is calculated to prejudice or embarrass the accused in the defence to the charge.

I have read the submissions filed by botnsel in this matter. And regret I find myself ielf inlf in agreement with my brother Sawong J. I think it is premature to deal with this question without the benefit of knowing what evidence there is that give rise to the decision made by the State Prose. I have decided against reading the depositions for the simple reason of determiningining a procedural issue that arose that would subsequently disqualify me from presiding in the trial.

In my view the appropriate time for the objection to be taken is at the hearing of the charge or charges. Whichever way thet ruling ling falls must be and understood in the context and the circumstances of that particular case. That can only be appred afed after all the evidence has been tendered in Court.&#

The defence objectijection to the proposed course that the State is adopting is based on a perceived fear of the accused beinjudiced in the conduct of t of their defences. At best the issuonly hypothypothetical until it threatens the accused’s rights then it becomes a concern requiring the court’s intervention. It was however conside160;#160; convenient to deah the issue at a pre-trial rial level rather than at the hearing so as to save court time once hearing date has been given. Butthe rs I have given abon above, pre-trial review is not thet the appropriate time.

The objection taken by the Defence gives ri a number of contentious issues:

1. ҈ The authorithority rity of the Public Prosecutor to control the exercise erformance ofce of the prosecution function before all courts.

2. ـPu6lisecut217;s duti duties unde under ther the Constitution and other laws and the Constitutional independence of t of the office holder.

It has been in va caseh her in other jurisdictions that that in dein decidinciding on g on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor here or Crown Prosecutor elsewhere, he is not subject t diryction or control.&#1l. He has a wide discretion oion on what charge or charges to proceed with and what charges he discontinues. Committal Cour17;s g do estrie powerpowers of the Public Prosecrosecutor utor which originates from the Constitutiotution. I been the practice andinundinues to be so that following committal the accused is indicted with the offence that that the evidence in the depositions supp160; - see s. 525 of the Criminal Code or the one negotiatetiated and obtained for purposes of guilty pleas or once referred to in New South Wales as ‘Sentence reduction.’ The oal charges do not dett determine the eventual charge in the indictment. Take for example a coroinql inquiry into the sinking of a passenger vessel in the sea and lives are lost. Nois accusedny criminal inal inal act. But e evidence from the inhe inquest points to criminal culpability of say the captain of the vs, he is ultimately charged for the death of those passengers.

In relatielation to joining four counts of wilful murder in one indictment, this is permissible under the law - See the Supreme Court case of Charles Ombusu v The State. Iconvenient, cost-saving aing and a speedy disposition of a trial. If it does cause undue hardships for the accused, objection can be raised at an appropriate time.

In the circumst I direct that the case muse must proceed. The State is at liberty tc proceed in the manner it sees fit and appropriate.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor