Wemp Mapa v The State

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 04 May 1979
• Citation: [1979] PNGLR 135
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC151

Supreme Court: Raine DCJ, Pritchard J, Andrew J

Judgment Delivered: 4 May 1979

1 Criminal law—evidence—joint trial—evidence of wife or husband, where objected to, not available against any co–defendant

2 Criminal law—practice and procedure—power of trial judge to order separate trials—mistrial

3 CRIMINAL LAW—Practice and procedure—Joint trial—Power to order separate trials—Discretionary power—In interests of justice as a whole.

4 CRIMINAL LAW—Evidence—Witnesses—Spouse of accused—Joint trial—Evidence of spouse objected to—Evidence not available against any co–accused—Evidence Act 1975, s71(2).

Five accused were jointly indicted on a charge of wilful murder. During the course of the trial the wife of one of the accused was called to give evidence. The trial judge on being informed that the accused husband did not consent to his wife giving evidence against him ruled that the effect of s71(2) of the Evidence Act 1975 was to prevent the reception of the wife's evidence not only against the accused husband but also as against the other four accused. The State prosecutor then sought a severance of the accused husband's trial pursuant to s567 of the Criminal Code, which the trial judge granted as being "in the discretion of the court where the interests of justice require it."

On appeal against conviction by each of the four accused tried jointly:

Held:

(1) The effect of s71(2) of...