The State v Murray [Murry] William, Frank William and Moses William (No 1) (2004) N2556

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 April 2004
• Court: National Court
• Citation: (2004) N2556
• Year: 2004
• Judgement Number: N2556

Full Title: The State v Murray [Murry] William, Frank William and Moses William (No 1) (2004) N2556

National Court: Kandakasi J

Judgment Delivered: 28 April 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Withdrawal of prior indictments—State seeking to present an indictment for a serious offence than one previously proffered—Public prosecutor has power to do so provided no prejudice to the accused—Amendment inappropriate where totally new charge is proffered—Criminal Code s535.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Commencement of trial—Presentation of indictment—Indictment before a different Court—Effect of—State Liberty to present same or new indictment—s557 Criminal Code.

3 CRIMINAL LAW—Attempted murder or grievous bodily harm—Accused shooting at the victim with a sling shot with intend to kill him—Critical question on intend answered in favour of prosecution—Whether any misunderstanding of relevant question—No basis to infer misunderstanding—Defence of self–defense raised—No direct evidence of accused believing on reasonable grounds of fear for his life or safety—Court cannot infer such believe—Defense not made out—Guilty verdict on attempted murder returned—Criminal Code s304, s319, s269.

4 The State v Micky John Lausi (2001) N2091, The State v Nelson Ngasele (2003) SC731, R v Agana Guguna (1965) No364, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Peter Malihombu (2003) N2365, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Ben Noel (2002) N2253, The State v Tony Pandau Hahuahori (No 1) (2002) N2185, Rosa Angitai v The State [1983] PNGLR 185, SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28 referred to

Decision on Verdict

___________________________

N2556

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 988, 1184 and 1556 of 2003

THE STATE

-V-

MURRY WILLIAM,

FRANK WILLIAM and

MOSES WILLIAM

(No. 1)

POPONDETTA: KANDAKASI, J.

2004: 23rd , 26th and 28th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Withdrawal of prior indictments – State seeking to present an indictment for a serious offence than one previously proffered - Public prosecutor has power to do so provided no prejudice to the accused – Amendment inappropriate where totally new charge is proffered – Criminal Code ss. 535.

CRIMINAL LAW – PRACTICE & PROCEDURE – Commencement of trial – Presentation of indictment – Indictment before a different Court – Effect of – State Liberty to present same or new indictment – s.557 Criminal Code.

CRIMINAL LAW – Attempted murder or grievous bodily harm – Accused shooting at the victim with a sling shot with intend to kill him – Critical question on intend answered in favour of prosecution – Whether any misunderstanding of relevant question– No basis to infer misunderstanding - Defence of self-defense raised – No direct evidence of accused believing on reasonable grounds of fear for his life or safety – Court cannot infer such believe – Defense not made out – Guilty verdict on attempted murder returned –Criminal Code ss. 304, 319, 269.

Cases cited:

The State v. Micky John Lausi (Unreported judgment delivered on 16/02/01) N2091

Nelson Ngasele v. The State (Unreported judgment delivered on 03/10/03) SCR 17 of 2002

R v. Agana Guguna (Unreported judgment delivered in 1965) N364

The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (Unreported judgment delivered on 15/05/02) N2266

The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v Ben Noel & 2 Ors. (Unreported judgment delivered on 31/05/02) N2253

The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185

The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.

Garitau Bonu and Rosanna Bonu v The State (1997) SC528.

The State v Edward Toude & Ors (No 1) (16/10/01) N2298.

Rosa Angitai v. The State [1983] PNGLR 185.

The State v. Tu'uo Ibru (20/10/99) N1940.

Articles Cited:

“The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)”, Melanesian Law Journal, Vol. 16, 1988, p.115.

SCR No. 1 OF 1980: Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, Greville Smith J

Counsel:

P. Kaluwin for the State

P. Kumo for the Accused

DECISION ON VERDICT

28th April, 2004

KANDAKASI J: Murray and Moses William, both of you pleaded guilty to a charge of attempted murder whilst Frank Johnston denied a similar charge against him and pleaded guilty to the less serious charge of causing grievous bodily harm.

Your lawyer however applied under s.563 of the Criminal Code for an entry of a not guilty plea for all of you on both the charge of attempted murder and an alternative charge of causing grievous bodily harm. The basis for that application was that all of you acted in self-defense. Going by the established practice, the Court therefore entered a not guilty plea for all of you against the two charges in the alternative.

The State presented these charges after the Court granted an application with your consent for the State to withdraw indictments previously presented but not proceeded against, rather than amend the earlier indictments. The earlier indictments were for the charge of causing grievous bodily harm, to which you pleaded guilty but the Court decided to vacate it as it was of the view that the material on file disclosed a possible legal defense of self-defense. The State sought the leave of the Court to either amend the earlier indictments or present a fresh one.

In granting the application, I saw no difficulty with a grant of the application. In so doing, I noted that s. 557 (2) of the Code, provides that a trial does not begin until an accused person is called to plead after informing him of the charge against him in a language he understands in an open court. At the same time, I noted that s. 535 (2) of the Code requires, a re-arraignment of an accused person where there is an amendment to the indictment charging him or her.

I had regard to this procedure in The State v. Micky John Lausi (Unreported judgment delivered on 16/02/01) N2091 and noted that:

“Section 557 of the Criminal Code protects a person charged from being tried without being informed of the charge against him. It also protects him from being tried without being asked to plead to the charge in the indictment. So s. 557 being a law which protects a person charged with an offence must be strictly complied with by the National Court. Also a trial must be conducted according to law.”

In this case, the State indicated, a desire to present an indictment charging you three men with a charge of attempted murder and in the alternative, causing grievous bodily harm. The first preferred charge of attempted murder was a totally, new charge. Therefore, it was not a case of amendment because of a variance between the facts and the charge or an error or omission but an introduction of a new charge.

In an article I did entitled “The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)”, Melanesian Law Journal, Vol. 16, 1988, p.115, I expressed the view that, the Court has power to allow amendments to an information charging a defendant with an offence. That power is available and is exercisable at any stage of the proceedings but before judgment. I then concluded that, whilst it is within the powers of the Court to allow amendments, it must be exercised at the earliest possible, to avoid prejudice and therefore any injustice to the defendant.

It follows therefore that, if this was merely a case of amendment that could have occurred without any difficulty. This is because, the trial had not yet commenced within the meaning of...