The State v Arey Watul and 7 Others

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 23 September 1992
• Citation: [1992] PNGLR 475
• Court: National Court
• Year: 1992
• Judgement Number: N1124

National Court: Doherty J

Judgment Delivered: 23 September 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

AREY WATUL

Bulolo

Doherty J

23 September 1992

CRIMINAL LAW — Hearing in the absence of the accused — Constitutional right — Constitution s 37 (5) — Right to hearing, where 1 only of several co-accused is re-arrested after escaping — Constitution s 37 (3) — Sentence cannot be passed without a convicted person having an opportunity to exercise his right under s 593 Criminal Code Act — Court's powers to separate co-accused.

Facts

Eight co-accused escaped from custody in remand during a trial before the prosecution had closed its case. One accused only was arrested, and there was no evidence that the others would be arrested in the near future. The question before the judge was whether the hearing could proceed against all co-accuseds.

Held

1. Section 37 (5) Constitution gives a right for an accused to be present at the hearing but envisages 2 situations where a trial may proceed in the absence of an accused: (1) with his consent or (b) his behaviour making the continued hearing impractical, leading to the Court ordering his removal.

2. Consent can be implied but it must be unambiguous.

3. Absconding can imply such consent.

4. The powers of the Court to order separate trials under s 568 is dependent upon an application of an accused.

5. An accused, including a re-captured escapee, has a right to a hearing within a reasonable time: s 37 (3) Constitution.

In the circumstances of the case, the hearing could proceed against all accuseds, but sentence could not be pronounced in their absence.

Cases Cited

Papua New Guinea cases cited

Kavali v Hoihoi [1986] PNGLR 329.

Mapa v The State [1979] PNGLR 135.

Other case cited

R v Abrahams (1895) 21 VLR 343.

Counsel

M Peter, for the State.

C Inkosopio, for the defendants.

23 September 1992

DOHERTY J: Arey Watul, Asaka John, Robert Kenemo, John Wakisa, Toms Jeremia, Iwow Iyaemos, Elisa Loti and Timon Imorenoa were all indicted on separate counts of wilful murder and robbery, which allegedly occurred in Dumawa village in the Aseki District of Morobe Province.

After three days of hearing, the matter was adjourned on Friday 15 May 1992 to resume on Monday 18 May 1992. All of the accused escaped during the weekend adjournment.

Only Elisa Loti has been recaptured and now appears before this court. A ninth accused, Simion David, escaped at committal stage and has never been recaptured; he was committed to stand trial in the National Court in his absence.

Twenty-one witnesses were listed on the indictment and, for a variety of reasons involving difficulties of bringing large numbers of witnesses from remote areas, interpreters and application of counsel, the original trial was held in Menyamya. There were preliminary rulings concerning joinder of the 2 counts and eventually separate indictments were presented. All the defendants pleaded not guilty to both counts. The trial then proceeded normally. Evidence of witnesses of events in the evening of the incident and the following day were adduced.

The State then indicated that it would be calling witnesses no 7 to no 13 on the indictment, who were wives of some of the accused. The court was adjourned for a short time to permit the defence counsel to advise his clients of their rights pursuant to s 13 of the Evidence Act Ch 48.

At a short distance from the Court, I heard considerable commotion and the Court was immediately resumed. Counsel then noted their concern at disruption caused by the defendants shouting at persons in the vicinity of the Court area. Due to this concern, plus the absence of a relevant State medical witness due to illness, an adjournment was made on Friday 15 May 1992. Before the adjournment, defence counsel stated that the defendants not only did not object to their wives being called but wanted them called. As already stated, all defendants were taken into custody but escaped over the weekend. Only Elisa Loti has been recaptured and is now before this Court.

It is understood that he is now serving sentence for escaping, but no actual warrant or certificate of conviction has been presented to the Court.

The question now before the Court is whether it can continue the hearing against all accused or if the matter must be deferred until all accused are present before the Court, as these were joint indictments and joint hearings.

The defendant still has a right to a hearing within a reasonable time under s 37 (3) of the Constitution. He has, by escaping, shown some disregard for the right. Now that he has been recaptured, can the Court proceed against him only, or must it hear evidence against all his co-accused, who were in jointly indicted with him.

Clearly, the co-accuseds could not be punished in their absence if they were found to be guilty of any offences. Section 593 of...