The State v Paul Loi, Gerard Reu, Valentine Reu, Darius Dende (2009) N4058

• Jurisdiction: Papua New Guinea
• Judge: Batari, J
• Judgment Date: 16 July 2009
• Court: National Court
• Citation: (2009) N4058
• Docket Number: CR NO 929, 930, 931 & 935 OF 2005
• Year: 2009
• Judgement Number: N4058

Full Title: CR NO 929, 930, 931 & 935 OF 2005; The State v Paul Loi, Gerard Reu, Valentine Reu, Darius Dende (2009) N4058

National Court: Batari, J

Judgment Delivered: 16 July 2009

N4058

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 929, 930, 931 & 935 OF 2005

THE STATE

-V-

PAUL LOI, GERARD REU, VALENTINE REU, DARIUS DENDE

Kimbe: Batari, J

2009: 16 July

(NO 1): Ruling on an Interim matter of Procedure.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Evidence – Offer of no evidence – Prosecution election - Witness unwilling to give evidence – Discretion to call evidence - Power of the court – Whether trial judge has discretion to intervene – Overall supervisory role of judge - Duty of trial judge to secure a fair trial – Circumstances in which a judge can intervene in prosecution’s election not to call evidence.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Evidence – Offer of no evidence - Duty of prosecuting counsel – Discretion to call evidence - Proper exercise of in fair trial – Improper exercise of - Duty of prosecution to further interest of justice .

Cases Cited:

Papua New Guinea Case

The State v. Theo Yandalin & 2 Ors, (1995), N1329

Overseas Cases

R v Oliva (1965) 49 Cr. App. R 298

R v Cavanagh, R v Shaw [1972] 1 WLR

R. v. Broad (1979) 68 Cr. App. R. 281

Text

Archbold Criminal Pleading Evidence & Practice, 1992 Vol. 4-78 at p. 454

Counsel:

MR. A. Kupmain, for the State

Mr. D. Kari, for P Loi & G Reu

Mr. T Gene, for V Reu & D Dende

3 August, 2009

1. BATARI, J: On 16 July 2009, State Prosecutor, Albert Kupmain presented an indictment against the accused persons and offered no evidence following their not guilty plea. I ordered the trial to proceed in an ex tempore judgment and undertook to publish my reasons. This I now, do.

Facts

2. The accused persons were presented before the court upon indictment charging each one with wilful murder following allegations that, on 13/10/01 at Bamba village, Talasea District of West New Britain Province, they attacked one, Ignatius Reu and hacked him to death with bush-knives. Each accused person is alleged to have intended the death of Ignatius Reu, in contravention of s. 299 of the Criminal Code.

3. Upon arraignment, they all pleaded not guilty. Prosecuting counsel then informed the Court he has no evidence to offer.

Courts’ Intervention on Prosecution’s ‘Offer of No Evidence’

4. Before either Counsel for the defence could apply for formal discharge of their respective clients, I enquired of prosecuting Counsel, Mr. Kupmain what his difficulty might be in calling a witness, assuming witnesses can be easily and readily located in a village setting.

5. Counsel explained, the witnesses are available but have filed affidavits asserting that their earlier statements made to the police about the killing were made under duress and intimidation. Counsel added, any consequential enmity from the killing had abated and normalcy restored in the community through reconciliation and compensation payment.

6. I indicated to Mr. Kupmain, the course taken seemed inappropriate in the circumstances. So, I invited counsels to make submissions on the court’s discretion to direct prosecuting counsel to call evidence or to call evidence myself. I also intimated to counsel that, in the event of one or both options being open to the Court, summons may be issued for witnesses to give evidence. I then adjourned briefly to allow counsels opportunity to prepare and present submissions on the issues raised.

Submissions on Power of the Court or Judge to Intervene

7. Mr. Kupmain quite correctly and sensibly did not defend his decision. He uncommittedly submitted that the Court deal with the issue under Constitution s. 155 (4) to make such orders as are necessary to do justice in the circumstances of a particular case. Counsel contended that, the State having offered no evidence, the Court has discretion to accept and acquit the accused persons or order a trial to proceed. He also undertook to call witnesses if the court ordered a trial.

8. Defence Counsel, Mr. Kari for the accused Paul Loi and Valentine Reu submitted that, the onerous evidentiary burden of proof on prosecution to establish the guilt of the accused person carries with it, the power to call witnesses. That discretion rests entirely with prosecuting counsel and the accused person is entitled to the benefit of an election not to call evidence. Mr. Kari argued that, prosecution counsel having made a considered decision not to call evidence; his clients are entitled to formal findings of not guilty and consequent discharge on the wilful murder charge.

9. Mr Gene of Counsel for the accused Gerard Reu and Darius Dende made submissions along the same line. He contended that, prosecuting counsel has the sole responsibility and prerogative to present witnesses. Having decided against that course, the result is that, there is no evidence to sustain a lawful conviction. Counsel argued the Court is devoid of power to intervene in such a case so; his clients are entitled to acquittals on the wilful murder charge.

Constitutional Power and Duty of Prosecution to act fairly

10. The Public Prosecutor or State Prosecutor is vested unfettered discretion by the Constitution to lay criminal charges and present indictments in the National Court. He is solely responsible for that election. There is further discretion in prosecuting counsel to call evidence in an election to lay criminal charges. Section 557(2) of the Criminal Code makes it clear that, upon presentation of an indictment, the trial commences if the accused person pleads not guilty upon arraignment on the charge. The obligation on prosecuting counsel to call witnesses is then presumed.

11. A decision to call evidence is such a heavy responsibility not to be taken lightly by prosecuting counsel. The election must be based on a duty to act fairly and in the interest of promoting criminal justice administration. It must be guided by proper principles and application of the “rule of law.”

12. The maintenance of the “rule of law” requires the involvement of a fair, impartial prosecutor, consistent with ethical considerations of his role and the practice and procedure of the court, to properly discharge his duty both to the State and the Court. At stake is the public interest which is to see that those charged with serious criminal offences such as unlawful killings are properly prosecuted in a court of law.

13. The public interest represented by the State Prosecutor demands that, Counsel takes all reasonable steps to secure and adduce evidence as a general rule before prosecution case is closed. After all, that is the paramount consideration of a fair trial under s. 37(3) of the Constitution which provides:

“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court.” (Underlining, added)

Common Law Principles on Prosecution’s calling of Witnesses

14. Generally, at common law, prosecuting counsel has wide, ultimate discretion to call a witness. This responsibility carries with it, the duty to have the witnesses named on the back of the indictment, available and present in court, both to call and examine them, or to call and tender them for cross-examination, irrespective of whether a witness is helpful to his case. It is sufficient that the witness’s evidence is capable of belief. This is the principle asserted in the case of R. v. Oliva [1965] 3 All ER116; 49 Cr. App. R 298 where Lord Parker CJ in delivering the judgment of the Court of Criminal Appeal stated at pp.309-310:

“The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them, either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief then it is their duty, well recognized, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved.”

15. There appears to have only been one published case from within this jurisdiction in which this common law principle was considered and applied: The State v. Theo Yandalin & 2 Ors, (1995), N1329. With respect, I consider that it is a sound principle of law that has been adopted and followed as being appropriate and applicable to the circumstances of this country, hence, part of our underlying law.

Whether Prosecutor’s Discretion to call evidence is subject to Court intervention – Principles applied.

16. It must be clearly understood from the outset, the ultimate discretion on prosecuting counsel to offer no evidence on the Indictment is not an issue of evidence before the Court but, a policy issue pertaining to prosecution’s discharge of prosecutorial function. It is trite that, the trial only commences upon accused person pleading not guilty. No evidence at that stage has been called and the decision remains with the prosecution in the exercise of prosecutorial discretion to call evidence. Whether the ultimate discretion on prosecuting counsel to offer no evidence on an Indictment can stand depends, in my...