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

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

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

(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 (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

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 s299 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 s155 (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...