CR.1198 OF 2009; The State v Tony Emmanuel & CR. 1201 OF 2009 The State v Edward Yau (2013) N5125

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 19 March 2013
• Citation: (2013) N5125
• Court: National Court
• Year: 2013
• Judgement Number: N5125

Full Title: CR.1198 OF 2009; The State v Tony Emmanuel & CR. 1201 OF 2009 The State v Edward Yau (2013) N5125

National Court: Kirriwom, J

Judgment Delivered: 19 March 2013

N5125

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.1198 OF 2009

THE STATE

–v-

TONY EMMANUEL

&

CR. 1201 OF 2009

THE STATE

-v-

EDWARD YAU

Wewak: Kirriwom, J

2012: 19, 20, 23, January

17 February,

29 March &

19 November

2013: 19 March

[NO.2]

CRIMINAL LAW – Sentence – Wilful Murder – Cold-Blooded Murder of Unarmed and Defenceless Relative – Repeated attack with machete severing left arm and left leg – Prisoners gave orders to attack and encouraged by words and conduct – Prisoners threatened and prevented another villager transporting deceased to hospital to seek medical assistance – Deceased bled to death – Determinate sentences appropriate.

PRACTICE AND PROCEDURE – Absence of co-prisoner – Escaped from custody after conviction and before sentence passed – Implied consent for trial to continue without him – Sentence passed in his absence.

Cases Cited:

Papua New Guinea Cases:

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 SC321

Kavali v Hoihoi [1984] PNGLR 182.

Manu Kovi v The State [2005] SC678

The State v Yapes Paege & Relya Tanda [1994] PNGLR 65

The State v Arua Maraga Hariki [2003] N2332 (3 February, 2003),

The State v Mark Poroli [2004] N2655 ( 25 August, 2004),

The State v Kepak Langa [2003] N2462 ( 26 September, 2003)

The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546

The State v Ambrose Lati (No 2) (2009) N3740

Charles Ombusu v The State [1996] PNGLR 335

Tony Imunu Api v The State [2001] SC684 (29/8/01)

The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741

Imiyo Wamela v The State [1982] PNGLR 269

Overseas Cases:

Jones (No 2) (1972) 56 Cr App R 413

Counsel:

A. Kupmain, for the State

F. Lunge, for the Prisoners

REASONS FOR SENTENCE

19 March, 2013

1. KIRRIWOM, J.: Tony Emmanuel aka Tony Emmanuel Kazira together with co-accused Edward Yau aka Edward Yau Yaulimbo, both from Kawanumbo village, Boiken, Dagua LLG ESP were found guilty and convicted of wilful murder on 17 February, 2012 after a three days trial following their not guilty pleas. The court was satisfied beyond reasonable doubt on the overwhelming evidence against them and returned a verdict of guilty for the wilful murder of George Wosimbu on 11th April, 2009.

2. Since the pronouncement of the court’s verdict, co-accused Edward Yau escaped from the custody of the Boram Corrective Institution where he was remanded to await his sentence. Today, only Tony Emmanuel appears from custody to receive his sentence. Edward Yau will also be sentenced today in absentia.

3. The law relating to the court’s powers to impose sentence or complete a trial in the absence of the accused is now settled in this jurisdiction. It is a constitutional right of persons charged with criminal offence to be present and also on appeal to be present throughout the hearing of their case or appeal. That is guaranteed under section 37(5) Constitution which provides:

“"Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence...."

4. In this case where the prisoner escaped lawful custody of the prison, does this right continue to apply to him? Obviously not. By his conduct he has forfeited his right to be present for the continuation of his trial. The same question was considered by the Supreme Court in SC321–Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 where the Court laid down three fundamental principles for consideration before a court proceeded to deal with a case in the absence of the accused. Firstly, it is the duty of the court to zealously safeguard the right of the accused guaranteed under section 37(5) Constitution and if such right must be denied the accused, it must ensure that the circumstances of a particular person come within the exception specifically outlined in the Constitution. Secondly, if the person’s consent is to be waived, court must be satisfied of special circumstances implied from the person’s conduct or behaviour that the person charged elects to be absent, and absents himself through caprice, malice or for purposes of embarrassing the trial. Thirdly, mere failure to appear cannot found implied consent. "Consent" to trial in the absence of the person charged may only be implied, where, in the absence of direct consent, there is some good reason, deriving from particular and unambiguous circumstances upon which the court can base a decision to imply consent.

5. In Thomas Kavali v Thomas Hoihoi (supra) it was a simple traffic offence of consuming beer in a moving vehicle under the Liquor (Miscellaneous Provisions) Act Ch 313 under which the Appellant was charged. Half way through the trial, the appellant did not show up. There have been numerous adjournments at the request of the defence already. The last adjournment was to allow the Appellant to secure services of another lawyer when the last lawyer walked out on him by the lawyer’s own conduct. The learned magistrate decided to continue the trial ex parte despite police prosecution application for warrant of arrest while seeking further adjournment. The court proceeded to find him guilty and convicted him and imposed a fine in default imprisonment. The appellant appealed the learned magistrate’s decision but the National Court dismissed the appeal while confirming the magistrate’s decision. See Kavali v Hoihoi [1984] PNGLR 182. The appellant further appealed to the Supreme Court.

6. Woods J seemingly taking similar view as Bredmeyer, J in the National Court said:

“I am satisfied that consent can be implied by actions as well as by express consent, however such actions must be capable of unambiguous interpretation. Thus one must look at the circumstances at the time. A mere failure to appear would not necessarily imply consent, it must be something more deliberate than that. A person who walks out of a hearing with no explanation could be deemed to be absconding or saying "I do not care if you carry on without me".

7. For purposes of this case, I am more inclined to agree with Bredmeyer, J where he relied on the English case of Jones (No 2) (1972) 56 Cr App R 413 where the Court of Criminal Appeal upheld the trial judge’s decision to proceed with the trial in the absence of the defendant held:

“'Whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless (i) he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the judge may have him removed and may proceed with the trial in his absence, or may discharge the jury, (ii) he waives that right by voluntarily absenting himself eg by absconding during the trial. In such a case the judge has a discretion, which should be exercised with a view to the due administration of justice rather than the convention or comfort of anyone, whether to proceed with the trial in the absence of the defendant or not.'

8. There are good grounds for the court in this very serious charge that the accused is required to be present for his trial, to imply consent by the accused for the case to proceed without him. He was not on bail, he was in custody and he broke out of jail. He is therefore an escapee at large with a bench warrant out for his arrest. That unlawful escape is behaviour that the court can rightly infer from to imply that the accused consented for his matter to proceed in his absence. By his conduct he waived his right to be present and the court cannot wait for him as he is an outlaw who cannot be reached by any conventional means of communication. His escape from lawful custody is also obstructing the proceeding by his unseemly outrageous behaviour that amounts to an interference with due administration of justice.

9. A further reason that I must proceed on with the case in his absence is that this case alone initially had six or seven accused, all members of the same family or clan who were detained at Boram CS in respect of this killing. At the time this trial commenced, all had escaped except two, Tony Emmanuel and Edward Yau appeared and the trial proceeded. Unfortunately Edward Yau too escaped after he heard the verdict of the court and after the address on sentence by both counsel. No useful purpose will be served to await Edward Yau to walk into this courtroom one day on his own volition for this case to be completed. That will be expecting the unreal. In the circumstances the trial will now proceed in the absence of the prisoner Edward Yau who will be sentenced in his absence.

10. The facts of this case have been meticulously set out in my judgment on verdict. It is a most vicious attack and killing of a fellow clansman by his own relatives in a very barbaric and ruthless manner akin to an...