The State v Sei Nakiking Tubol and 9 Others

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 12 April 1994
• Citation: [1994] PNGLR 378
• Court: National Court
• Year: 1994
• Judgement Number: N1206

National Court: Sevua J

Judgment Delivered: 12 April 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SEI NAKIKING TUBOL AND 8 OTHERS

Lae

Sevua J

12 April 1994

CRIMINAL LAW — Criminal Practice Rules O 4 r 4 — Failure to give notice of alibi defence — Application for leave to call alibi evidence — Exercise of discretion — Onus of providing explanation for failure.

CONSTITUTIONAL LAW — Right to a fair hearing — Sections 37 (3) and 37 (4) (f) Constitution — Duration of representation by qualified counsel a factor.

Facts

The defendants were charged with wilful murder. Defence counsel failed to give notice to the prosecution of an alibi defence in accordance with the Criminal Practice Rules and, therefore, sought leave of the Court to adduce evidence of an alibi under O 4 r 4 of the Criminal Practice Rules. Defence counsel had been instructed for more than four months, but he was not ready for trial and did not inform the Court of his lack of readiness or seek an adjournment.

Held

1. The Court has a discretion to grant leave to adduce evidence of an alibi under O 4 r 4 of the Criminal Practice Rules. That discretion is to be exercised judicially.

2. The provisions of s 37 (3) and 37 (4) (f) of the Constitution give an accused person the right to a fair hearing and, therefore, may be raised in support of an application for leave to adduce alibi evidence. However, where an accused has been represented at all times by a qualified lawyer, the right to a fair trial may not be affected by a refusal to grant leave.

3. The onus is on defence counsel to give reasons for failing to give notice of an alibi defence. In the absence of any explanation of the failure, the Court should not grant leave.

Cases Cited

Papua New Guinea case cited

State v Wer [1988-89] PNGLR 444.

Other case cited

R v Sullivan [1970] 3 WLR 210; [1970] 2 All ER 681; 54 Cr App R 389.

Counsel

R Saranduo, for the State.

C Inkinsopo, for the defendants.

12 April 1994

SEVUA J: The nine defendants are indicted with wilful murder. Their trial commenced on 6 April after the defence requested an adjournment on 5 April, when the trial was listed to commence.

The State adduced evidence from five of its witnesses and has other witnesses to call. At this stage, the Court was informed that the State intended to call a witness whose name is not on the indictment to rebut the evidence of alibi the defence intended to adduce. It was at this stage of the trial that the Court learned, through the State, that the defence would be adducing alibi evidence. When the Court enquired further, the State counsel said that the defence had filed a notice of alibi on 5 April; however, O 4 r 4 of the Criminal Practice Rules had not been complied with. At my intimation that I would not entertain an application by the defence for leave to call alibi evidence, defence counsel sought an adjournment to address the Court on the question of leave. I, therefore, adjourned the trial on 9 April to yesterday to hear the application.

I will go over the history of this case, because I consider that, at the end of the day, one would be in a much better position to appreciate the reasons for the final outcome of this application.

Previously, Mr Langtry acted for these accused in a bail application, made sometime last year before Andrew J. The application was refused. I subsequently refused to entertain another similar application and urged Mr Langtry to apply to the Supreme Court, since bail had already been refused by the National Court.

On 1 November 1993, during the call over for that month, this matter was mentioned, then adjourned to 15 November for further mention. Mr Peter appeared for the State whilst the present defence counsel, Mr Inkinsopo, appeared for the defendants. Both sides did not have files then. On 15 November 1993, when the matter came for mention, the State indicated that it would call ten witnesses and its case would take about a week. The State was represented by Mr Saranduo, whilst the accused were represented by Mr Inkinsopo, who said he had obtained instructions and confirmed the trial. I listed the matter for trial before me 4 — 11 April. At that time, I was not aware that 4 April was a public holiday. When the matter was mentioned on 15 November 1993, nothing was said about alibi evidence or a voir dire, let alone the defence indicating that it had "brief" instructions. It will become apparent why I mention these aspects when one considers what defence counsel said yesterday.

After ascertaining that 4 April was an Easter holiday, the dates of trial were relisted to 5 — 14 April. Between 15 November and the trial date, the Court was never informed in writing or verbally that the defence would be adducing alibi evidence and that a voir dire would be involved. Had this information been provided to the Court, additional days could have been added to the eight days previously allocated to contain any contingencies.

On 5 April 1994, a conference between counsels (Messrs Poiya, Saranduo, Inkinsopo and Langtry) and Judges (Andrew J and Sevua J) was held in order to ascertain the availability of counsel for this case specially, as both Judges were not certain if Mr Langtry was still acting for the accused, since he was appearing before Andrew J in another matter. There was no State prosecutor available to present indictments except Mr Poiya, but he was on leave, and Mr Saranduo was unable to present indictments. These matters needed to be sorted out before both Courts commenced sittings that day. In that conference, when this matter was mentioned and I specifically referred to the duration of the trial, Mr Inkinsopo responded that it should take less than eight days. The point I emphasise here is that, either Mr Inkinsopo did not have instructions regarding the alibi and voir dire then or, if he did, he failed to give an indication. In Lae, it has become an unwritten rule in call overs or when listing cases for trials that,where a trial involves a voir dire or alibi evidence, those facts are recorded in the bench diary so that the trial Judges are aware and are informed of those aspects. In this case, these facts were not revealed.

When the case was called for trial in the mid-morning of 5 April, defence sought an adjournment to the next morning to have another conference with the accuseds. The adjournment was granted reluctantly and with a direction that the trial would commence on 6 April, with or without that conference being completed, since the Court was of the view that both the accuseds and their counsel had had more than adequate time to prepare their defence. I will reiterate here...