N5127

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1007 OF 2010

THE STATE

V

ROBIN ANDOLU
(No. 1)

Wewak: Kirriwom, J
2012: 22 & 23 November

PRACTICE AND PROCEDURE – Indictment – Amendment – Variance – Evidence incompatible with charge – Variance discovered after close of defence case during final addresses – Indictment deficient - Inadequate description of charge – Whether State counsel's failure and lack of due diligence can deprive fair trial to victim - Whether indictment can be amended – Whether deficiency in count or charge curable by amendment – Whether amendment will prejudice the accused in his defence – Whether amendment will result in injustice to the accused – Interest of justice applies both ways – Amendment ordered – Criminal Code, ss. 535-536

POWERS OF COURT – Constitutional mandate - Inherent powers – To make orders on its own volition – In the interest of justice – To prevent injustice – Constitution, ss. 155 and 155(4)

Cases Cited:
Papua New Guinea cases

Charles Ombusu v The State [1996] PNGLR 335 
Epeli Dawinga v The State, SC 491 of 1995; 
Gabriel Laku v The State [1981] PNGLR 350; 
Dinge Damane v The State [1991] PNGLR 244; 
Madeline Kiso v Angela Manumanua [1981] PNGLR 507
Mathew Totori v Bob Nenta (2003) N2373
Simili Kara -v- The State [1984] PNGLR 254 
The State -v- Tanedo [1975] PNGLR. 395. 
The State v Herman Joseph Leahy (2008) N3570 
Application by Herman Joseph Leahy (2010) SC1018

Overseas cases

R v Smith (1951) 1 KB 53; (1950) 2 All ER 679; 34 Cr App R 168 
R –v- Rymes (1953) 175 ER 573

Counsel:

C. Sambua, for the State
J. Malambaul, for the Accused

INTERLOCUTORY RULING TO AMEND DEFICIENT & DEFECTIVE INDICTMENT

23 November, 2012

1.	KIRRIWOM, J.: After hearing all the evidence in this trial and in the course of final addresses, it became obvious to me that the charge and the evidence against this accused were not compatible. The evidence of the victim said one thing and the description of the offence in the charge set out in the indictment said something else. The Court on its own volition has taken this unusual step to examine the indictment and gave certain directions as are contained in the form of orders from this ruling. 

2.	At the close of defence final address I asked defence counsel on the application of section 7 and 8 of the Code. He replied that both provisions did not apply because both accused named in the indictment were charged as principals, not as accessories. Mr Sambua agreed with the Defence on this legal position.

3.	I drew Mr Sambua's attention to the wording in the charge and the evidence of the victim. He chose to withdraw his earlier position he took and submitted that State relied on section 7 and 8 of the Code. Even then, I had no record of State relying on section 7 and 8 of the Code. In any event, he already agreed that section 7 and 8 did not apply. Mr Sambua simply threw in the towel and as he could not be of further assistance to me to overcome the difficulty encountered in the trial. I adjourned the case and after some deliberation on the issue I faced, I gave this interlocutory ruling. 

4.	On 15 August, 2012 Robin Andolu and Francis Kavun, both of Kandinge Village, Ambunti, East Sepik Province were indicted with a total of 12 counts of sexual penetration of three different female victims by insertion of penis and fingers into the vagina, anus and mouth of two of the victims without their consent. The number twelve charge was one of doing grievous bodily harm with intent to Susan Misha. On the facts before me there were serious charges of rape committed with circumstances of aggravation and displaying some of the most inhuman and animalistic behaviour involving extreme violence.

5.	Objection was taken of the indictment before Geita, AJ on 15 August, 2012 which led to eleven of the twelve counts being withdrawn and the two accused were arraigned on just the one count, which is the first count. This is what I am advised by Mr Malambaul for the accused. That Count One reads:

"FRANCIS KAVUN and ROBIN ANDOLU both of KANDINGE VILLAGE, AMBUNTI, East Sepik Province, stand charged that they the said FRANCIS KAVUN and the said ROBIN ANDOLU on the 23rd day of April 2010 at MAKUN SETTLEMENT in WEWAK in Papua New Guinea sexually penetrated SUSAN MISHA without her consent by inserting his penis into her vagina." 

6.	I am further advised that on arraignment on this count, Francis Kavun, pleaded guilty to the charge and had been sentenced. Robin Andolu pleaded not guilty and his trial was deferred to the next sitting before a different judge. This is the trial now before me.

7.	When I read out the same charge to Robin Andolu, he maintained his plea of not guilty. His lawyer advised that the issue in the trial was one of identification and the defence raised is one of alibi. I subsequently noted that the notice of alibi was filed on 12 November 2012. 

8.	State called only one witness, which is the victim, although Mr Sambua, Senior State Prosecutor, initially indicated calling two witnesses. After calling its first witness, the victim Susan Misha, State chose not to call any more witness. Instead two documents were tendered into evidence by consent of defence, namely, the medical report of Dr. G Naboam of Wewak General Hospital dated 23 April, 2012 and Record of Interview of Robin Andolu conducted 14 May 2010 in English between the accused and S/C Stenet Wohuinen and PWSC Lynne Sailan. Both documents were marked Exhibits 1 and 2 respectively.

9.	 Defence called the accused who gave his evidence of his whereabouts at the material time in question and called his only alibi witness who corroborated his story at the material time Robin Andolu was with him sleeping almost one kilometre away and therefore could not have been where the victim said he was with others doing all those sorts of things to her. Defence then closed its case.

10.	It is now plain that the evidence was at variance with the charge in Count One on the indictment. This is particularly so, given the amendment to the Criminal Code in 2002 that expanded the definition of sexual penetration while replacing the phrase 'carnal knowledge' with the words 'sexual penetration' where such penetration was even possible by an object other than penis into the vagina, mouth or anus. Count One in the indictment was the only charge I was advised by Mr Sambua for the State that the prosecution was proceeding with. 

11.	It simply did not make sense to me that the evidence from the victim was that the accused Robin Andolu and one other named person sexually penetrated her by inserting their fingers into her vagina as Francis Kavun sat on her chest and pushed his penis into her mouth when Count One in the indictment before me was talking about inserting penis into the vagina. However, the correct charge or count I noted was Count Three in the indictment that was crossed-out which had this particular element charged in the same indictment. I wondered if there might have been a mistake made by the learned Senior State Prosecutor, particularly in the light of the specific description of the charge in sexual penetration cases as enacted in the 2002 amendment to the Criminal Code.

12.	In the amended Code, sexual penetration can be effected in several ways as prescribed in section 6 of the Criminal Code. One of these is use of finger to penetrate a person's vagina or anus or use of any other object controlled by the person charged. This is the amendment introduced in 2002 when the use of the words 'carnal knowledge' were repealed and replaced with the words 'sexual penetration". Section 6 as amended reads:

"6.	Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b)	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

13.	Evidence was also at variance with the charge in Count One of the indictment in that there were altogether five persons identified by the victim and only two were charged as principal suspects, namely Francis Kavun and Robin Andolu, with no reference to the involvement of others, when the evidence showed clear common purpose design in section 8 of the Code and aiding and abetting each other, a section 7 situation. And the same defect was replicated in all the six charges, namely, Counts 1, 2, 3, 4, 5 and count 12 in so far as the victim in this case is concerned. Count 12 related to bodily injury on the victim and that I could not understand why it was crossed out if this accused was pleading not guilty.

14.	Defence advised that there was objection taken of the indictment in the way the charges were lined up in the trial of Francis Kavun and this accused when it first went before Geita,A J. And examining the copy of the indictment that was given to me, I can understand why. It was so amateurishly and ambitiously drawn up with no regard for the rule against multiplicity of charges and rule against lumping different charges in the one indictment, contrary to the decision in Charles Ombusu v The State [1996] PNGLR 335 and others. 

15.	I proceed to examine rest of the 12 counts in the indictment. Count Six of the indictment charges both Francis Kavun and Robin Andolu of sexual penetration of another victim named as Jodi Gaan by inserting their penis into her vagina on that same day.

16.	Count Seven in the indictment charges both accused of sexual penetration of another female called Belinda Kuarik by inserting their penis into her mouth also on the same day.

17.	Counts Eight, Nine and Eleven are duplicate charges because they relate to sexual penetration of Belinda Kuarik by insertion of penis into the vagina of the named victim on that same day.

18.	Count Ten charged the two accused with sexual penetration of the victim Belinda Kuarik by insertion of fingers into the vagina on that same day.

19.	And Count Twelve as I said earlier it was one in respect of violence that was used on the victim Susan Misha where she received bodily injuries.

20.	Examining the charges against the accused in respect of the victim in the case before me after having gone through those others that are inapplicable to this case except for Count Twelve, Counts Two, Three, Four and Five relevantly apply to the victim in Count One, Susan Misha. But I cannot understand why there are three counts of sexual penetration of the victim's vagina by penis when insertion into the vagina by fingers and insertion of penis into the mouth have one each as far as the evidence relates. It must have been real chaotic for the Defence Team trying to work out what this 'wishy-washy' document was all about- hence their objection.

21.	So while trying to obviate the Defence dilemma by clarifying the charges, the learned State Prosecutor before Geita AJ took the easy way out by dropping all the charges and kept just the Count One. In doing so, he threw the baby out the window with the bath-tub filled with hot water, in so far as the victim in this case is concerned relative to the two accused named in the indictment. 

22.	 And what I am not able to discern is whether this was done by agreement with Defence with the aim or purpose of securing a guilty plea from the accused? In other words was this done for purpose of Francis Kavun pleading guilty to the charge or with a view to inducing them both to plead guilty? These are unanswered questions that add to my difficulty in trying to make sense of this procedural miss-mess created by this discrepancy or unorthodox course taken by the learned counsel for the State. 

23.	I have considered declaring a mis-trial in this case as I indicated before the adjournment yesterday. However, after going through the evidence and a bit of research on the law and cases, I have decided against it when there are numerous authorities that provided some useful discussions on the ways forward. It is not just to declare a mistrial for several good reasons including:

•	This trial was started on an uneven field when from the start when State Counsel did not have their office file in this matter (probably hiding away in his colleague's drawers somewhere).

•	Apart from advising me that this was the trial involving the co-accused to another matter that Geita, AJ dealt with in which the accused pleaded guilty, Mr Sambua gave me no summary of State case in respect of this accused. Because one accused had already been dealt with, I agreed that the co-accused must not wait too long and his case be dealt with expeditiously.

•	Declaration of mistrial will only protract and prolong the disposition of the case. It will not end the matter. The accused is entitled to a fair and speedy trial. This is analogous to a retrial ordered on successful appeal. I discuss this below.

•	There is no good reason to prolong finality in this matter when all material evidence is already before the Court. 

•	There is nothing wrong with the substance of the case itself. The problem is only with the indictment which is deficient and defective. A defective indictment is curable by amendment.

•	Both the deficiency and the defect can be cured by amendment to the indictment. Once amended, all that the court does is re-arraign the accused on the amended indictment and no need to re-invent the wheel or call evidence again. The evidence is already there.

24.	 There are precedents set of cases being sent for re-trial following successful appeals as the result of injustice or miscarriage of justice resulting or being caused through procedural errors or irregularities at the trial. One such classical example is Charles Ombusu v The State [supra] in which while upholding the appeal and ordering a re-trial, the Supreme Court made this observation:

"It is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of a trial, the appellate court has ordered that a new trial be conducted. See Epeli Dawinga v The State, SC 491 of 1995; Gabriel Laku v The State [1981] PNGLR 350; Dinge Damane v The State [1991] PNGLR 244; Madeline Kiso v Angela Manumanua [1981] PNGLR 507.

...........

We consider the following circumstances are relevant and apply to this case, warranting a retrial:

(a)	The public interest in bringing the accused to justice, by a full trial.

(b)	The seriousness and prevalence of the offences of rape and wilful murder.

(c)	Though a criminal trial is an ordeal which the accused ought not to be condemned to undergo for a second time through no fault of his own, the interests of justice require that he should do so.

(d)	The strength and availability of the evidence.

The special environment in the country at the present time in relation to the administration of criminal justice is a circumstance that compels a retrial. There is general concern in the community over apparent increase in incidences of serious crimes such as rape, robbery and unlawful killing."

25.	With respect, in order to avoid going down that road while this procedural error is staring at me right in the face, it is far better that I address it now than later. I do so by adopting the above view of the Supreme Court and applying the reasoning therein to this case in concluding that the way forward in this case is to amend the indictment. When choosing amendment to the indictment as the way forward, I am fortified by the following considerations:

•	This is a very serious charge with circumstances of aggravation; 

•	It will make not the slightest difference in the defence case as the accused raised the defence of alibi and the issue is one of identification. The amendment does not affect that evidence that he has already presented.

•	The amendment will enable the court to better appreciate the evidence in the light of the charge or charges.

•	The amendment ordered to the indictment on 15 August, 2012 before or by Geita AJ during the trial of Francis Kavun ought not apply to and bind the co-accused in this case.

26.	Amendment to indictments are covered by the Criminal Code in sections 535 and 536.These sections provide:

535.	Amendment of indictments.

(1)	If on the trial of a person charged with an indictable offence—

(a)	there appears to be a variance between the indictment and the evidence; or

(b)	it appears that—

(i)	any words that ought to have been inserted in the indictment have been omitted; or

(ii)	any words that ought to have been omitted have been inserted,

the court may, if it thinks that—

(c)	the variance, omission or insertion is not material to the merits of the case; and

(d)	the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2)	When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3)	If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.

536.	Particulars.

The court may—

(a)	if it thinks fit, direct particulars to be delivered to the accused person of any matter alleged in the indictment; and

(b)	adjourn the trial for the purpose of the delivery."

27.	 In my view these provisions go hand in hand when it comes to clarifying any ambiguity in an indictment. Sometimes provision of particulars only under section 536 can cure such ambiguity for the indictment to be understood. Where there are serious formal defects it may require section 534 and 535 of the Code to address the anomaly.

28.	As section 535(1) clearly states, where there appears to be variance between the indictment and the evidence or any words that ought to have been inserted have been omitted or any words that ought to have been omitted have been inserted, the court may, if it thinks that the variance, omission or insertion is not material to the merits of the case and the accused will not be prejudiced in his defence on the merits, order the indictment to be amended so far as is necessary on such terms (if any) as to postponing the trial as the court thinks reasonable.

29.	The law on amendment of indictment is pretty well settled. Mr Sambua should be the first to favour this course as he was a co-counsel in The State v Herman Joseph Leahy (2008) N3570 where this issue was addressed and should know this law like the back of his palm. This is what was said in that case:

"The role and functions of the Public Prosecutor and his right to invoke section 526 of the Code and his independent status had been fully canvassed by the Supreme Court in this same matter in the Application for Judicial Review under section 155(2)(b) of the Constitution (supra) and I need not dwell on it more. However, it is trite procedural law, as correctly observed by Humphreys J in R v Smith (1951) 1 KB 53; (1950) 2 All ER 679; 34 Cr App R 168 while allowing amendments to correct errors in description, said at pp.55;682;183:

"The responsibility for the correctness of an indictment lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point. If in his opinion the indictment needs amendment, the necessary application should be made before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called."

..........

36. The court, on its own volition, where it is deemed proper, also has power to make amendment to the indictment and this has been highlighted in several cases including R v Fraser (1923) 17 Cr. App R 182 and R v Aldridge (1993) A Crim R 371. In the latter case, Sheller AJ said at pp.377-378:

"Where before trial or at any stage of the trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

......

38. I am of the view that the application to amend the indictment as proposed now is consistent with the current trend of development of the law on amendment of indictments or charges or pleadings generally in all cases. Courts are more inclined to order amendment that enables the parties to see the issues clearly at the outset of the trial and even in the course of the trial than deny amendment purely on legalistic points of view so as to ensuring that justice is done."

30.	This decision was appealed to the Supreme Court. The Supreme Court in Application by Herman Joseph Leahy (2010) SC1018 dismissed the review and affirmed the lower court decision. 

31.	 But in this case we are not concerned with amendment before the indictment was presented. That would have been the ideal course to have taken had the learned counsel for the State read his brief thoroughly and appraised himself fully of the case before proceeding with the prosecution of the accused. Because that did not happen, but the court had picked up the error after all the evidence had been led, in my view, with respect, it does not mean that the defect be ignored. That is why the provisions in the Code are there to be invoked. 

32.	In this case, taking one step further, in my view, the indictment should have read:

"ROBIN ANDOLU of KANDINGE VILLAGE, AMBUNTI, East Sepik Province, stands charged that he ROBIN ANDOLU on the 23rd day of April 2010 at MAKUN SETTLEMENT in WEWAK in Papua New Guinea sexually penetrated SUSAN MISHA without her consent by inserting his fingers into her vagina." (insertion is underlined)(note the omission of co-accused)

33.	But this is not the only defect, there were other persons implicated according to the evidence of the victim Susan Misha and there were weapons involved. So once again in my view, the indictment ought to have read:

"ROBIN ANDOLU of KANDINGE VILLAGE, AMBUNTI, East Sepik Province, stands charged that the said ROBIN ANDOLU on the 23rd day of April 2010 at MAKUN SETTLEMENT in WEWAK in Papua New Guinea sexually penetrated SUSAN MISHA without her consent by inserting his fingers into her vagina whilst armed with dangerous weapons namely bush knife and shot-gun and in the company of other persons." (insertion is underlined)(Note the omission of co-accused)

34.	But that is not all, if the charges were laid as suggested above, Count One as presented, can remain because of sections 7 and 8 and all that is now necessary is to reactivate Counts Two (penile penetration of the anus), Three (penetration of vagina with fingers) and Count 12 (doing grievous bodily harm with intent) while rectifying the misdescription and joinder of other suspects. Much of this information would have been available to the learned counsel for the State in his brief with little bit of due diligence.

35.	This Court has very wide powers to protect its own process. It can set aside its own orders, conviction and sentence already passed as alluded to in Gabriel Laku v The State [1981] PNGLR 350, it can set aside a plea of guilty and enter a plea of not guilty in appropriate cases to do justice.

36.	Various cases have dealt with this provision of the Code. And the principle developed in those cases are almost universal in both criminal and civil cases. In a judicial review application where there was an application made for amendment of the pleadings, granting the application Lenalia, J in Mathew Totori v Bob Nenta (2003) N2373 said:

"Civilly Order 8 rr. 50 to 59 provide for an amendment to be done for purposes of determining the real issues or questions raised by or otherwise depending on the proceedings or for purposes of correcting any defect or error in the proceedings. Amendments are incorporated also to avoid multiplicity of proceedings. In the Criminal track, amendment is allowable by s. 535 of the Criminal Code on which case law says amendments should not be made after the counsel for the defence has addressed the jury: Simili Kara -v- The State [1984] PNGLR. 254, see also R –v- Rymes (1953) 175 ER. 573. The State -v- Tanedo [1975] PNGLR. 395."

37.	This is not a case of State not having any evidence to sustain the charge preferred, this is a case of gross negligence where Counsel for State failed to properly acquaint himself fully with his brief; ie the depositions, at least familiarising himself with the key witness's story and relating it to the charge in the indictment before calling the one and only but critical witness on whose testimony alone rested the entire State case in this very serious charge of rape. Counsel who don't take their oath of office seriously must reconsider their employment in such an important institution at the time law and order is such a big issue that is eating up the Nation's budget in large chunks every year.

38.	Failure to acquaint oneself thoroughly of his case is tantamount to gross negligence and dereliction of one's duty or incompetence. Incompetence or gross negligence of counsel cannot stand in the way of doing justice according to law. Provided no injustice will be caused to the accused the indictment must be amended. 

39.	I am hereby ordering Senior State Prosecutor Camillus Sambua to withdraw this defective indictment presently before me and have it amended to suit the circumstances of the case before me as per his brief or commensurate with the evidence tendered, bearing in mind the following:

a.	There were more persons than the two accused named in the indictment in this alleged offence who were acting in concert, seemingly according to a plan and there were more persons than just the two of them who sexually penetrated the victim Susan Misha that morning according to the definition of "sexual penetration" under section 6 of the Code;

b.	There were dangerous weapons used to gain entry into the house and with which the victim was attacked;

c.	The victim Susan Misha was sexually penetrated through her mouth with penis, anus with penis and vagina both with penis and fingers.

d.	Apart from sexual attacks, victim suffered physical injuries at the hands of her assailants on her body.

40.	I further direct that in addition to amending the indictment, the learned Senior State Prosecutor shall prepare a short statement of facts consistent with the amended indictment, for purpose of the court re-arraigning the accused on the amended indictment.

41.	However, before I re-arraign the accused, I will hear any submissions from the Defence on the procedure proposed and adopted by me, bearing in mind that justice must be done fairly and properly according to law. The bottom line is no injustice must be caused to the accused. 

42.	It is not for the court to coach any lawyer how to do his job. Unfortunately, to do justice in the circumstances of this case and invoking the court's inherent powers under section 155(4) of the Constitution, I do so in this case, by way of orders and directions.

43.	The saying 'Justice must not only be done, but must be seen to be done' applies to both the accused and the right of the State to bring those accused of committing crimes before the courts of law. That is why there is also a saying that 'Justice is a double edged sword', like a blind lady, neither sees nor favours anyone by beauty, colour, sex, nationality, etc.

44.	I therefore make the following orders:

1.	Senior State Prosecutor Camillus Sambua shall forthwith withdraw the indictment dated 15 August, 2012 and have the same amended to take into account the circumstances of this case, bearing in mind the following:

a.	There were more persons than the two accused named in the indictment in this alleged offence acting in concert and seemingly in prosecution of a common plan and there were more persons than just the two of them who sexually penetrated the victim Susan Misha that morning according to the definition of "sexual penetration" under section 6 of the Code;

b.	There were dangerous weapons used to gain entry into the house and with which the victim Susan Misha was attacked;

c.	The victim Susan Misha was sexually penetrated through her mouth, anus and vagina by insertion of penis as well as fingers.

d.	Apart from sexual attacks, victim suffered and received physical injuries on her body at the hands of her assailants.

2.	Mr Sambua shall prepare and file a short and concise facts for purpose of re-arraignment of the accused.

3.	Case is adjourned to 17 December, 2012.

4.	Accused's bail is extended to 17th December, 2012.

Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyer for the Defence