The State v Justin Komboli (2005) N2891

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 September 2005
• Citation: (2005) N2891
• Docket Number: Cr No 1654 of 2001
• Court: National Court
• Year: 2005
• Judgement Number: N2891

Full Title: Cr No 1654 of 2001; The State v Justin Komboli (2005) N2891

National Court: Cannings J

Judgment Delivered: 23 September 2005

N2891

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1654 0F 2001

THE STATE

V

JUSTIN KOMBOLI

KIMBE : CANNINGS J

11, 19 MAY, 6, 7, 8, 23 SEPTEMBER 2005

JUDGMENT

Criminal law – criminal procedure – trial – accused escaped from custody after commencement of trial and failed to appear – whether the court can convict an accused person in his absence – whether the court can sentence a convicted person in his absence – Constitution, Section 37(5), protection of the law – Criminal Code, Sections 570 (defence of accused), 571 (presence of accused), 572 (evidence in defence).

Criminal law – sentencing – armed robbery – offence committed during same incident in which a person was murdered – prisoner already convicted of murder – whether double punishment – whether sentence for armed robbery should be concurrent with sentence for murder.

The accused was charged, together with two other persons, with armed robbery. They were all arraigned and pleaded not guilty. The case was adjourned but the prisoner escaped from custody and failed to appear when the trial resumed. The two other persons were present when the trial resumed and wanted it to continue.

Held:

(1) A person who escapes from custody gives up his constitutional right to be present at his trial. It is proper for the trial of such a person to go ahead in his absence.

(2) No case submissions on behalf of the other two co-accused having been upheld, the court considered the evidence and concluded that the elements of armed robbery were proven beyond reasonable doubt.

(3) The accused was accordingly convicted in his absence.

(4) The nature and extent of a person’s right to be present when being sentenced for a criminal offence is the same as their right to be present when the question of their guilt or innocence is being determined. Therefore the right to be present when being sentenced is impliedly given up when a person escapes from custody and does not attend the sentencing hearing.

(5) The accused was accordingly sentenced in his absence.

(6) In determining the appropriate sentence the court considered that the offender had already been convicted of the murder of a man that occurred around the same time that the armed robbery took place.

(7) The offender was sentenced to 4 years imprisonment, to be served cumulatively upon his sentence for murder.

Cases cited

The following cases are cited in the judgment:

Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37

Charles Bougapa Ombusu v The State [1996] PNGLR 335

Gimble v The State [1988-1989] PNGLR 271

John Konobo v The State (2004) N2500

Michael Gende v The State (1999) SC626

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC564

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

R v Stuart and Finch [1974] Qd R 297

Tau Jim Anis v The State (2000) SC642

The State v Aaron Lahu (2005) N2798)

The State v Arey Watul [1992] PNGLR 475

The State v Augustine Lausi Ogi (2004) N2761

The State v Benjamin Bin and Justin Komboli, CR Nos 1650 and 1651 of 2001, 25.11.04, unreported

The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586

The State v Gibson Salkut, Benjamin Bin and Justin Komboli, CR Nos 1649-1651 of 2001, 05.11.04, unreported

The State v James Negol (2005) N2801

The State v Lase Pale Nicholas (2002) N2270

The State v Nathan Kovoho (2005) N2810.

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

CONVICTION AND SENTENCE

This was a judgment on conviction and sentence for armed robbery, after the accused escaped from custody during the trial.

Counsel

L Rangan for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the conviction and sentence of a man for armed robbery. A peculiar aspect of the case is that the accused escaped from custody while the trial was in progress. The question arose whether the trial should continue in his absence.

BACKGROUND

The case arises from an incident at Kavui oil palm settlement near Kimbe, West New Britain, on 26 April 2001. The accused, Justin Komboli, and two of his friends, Benjamin Bin and Gibson Salkut, got drunk and went to a property owned by Maya Wasekum. There was a house and store on the property. The accused and his two friends knew Maya Wasekum. There were a number of people present watching videos. The accused and his two friends started fighting with the people that were present. They went on a drunken rampage and damaged property.

WILFUL MURDER TRIAL

Maya Wasekum’s son, Ishmael Maya, was killed in the incident and the accused and his two friends were charged with his wilful murder. They were jointly tried on an indictment before Lay J in the National Court at Kimbe in November 2004. Justin Komboli and Benjamin Bin were convicted of murder and sentenced to 16 years and 20 years imprisonment respectively. Gibson Salkut was acquitted. (The State v Gibson Salkut, Benjamin Bin and Justin Komboli, CR Nos 1649-1651 of 2001, 05.11.04, unreported; The State v Benjamin Bin and Justin Komboli, CR Nos 1650 and 1651 of 2001, 25.11.04, unreported.)

Benjamin Bin and Justin Komboli have appealed against their convictions and sentences to the Supreme Court. Their appeals have not yet been heard.

COMMENCEMENT OF ARMED ROBBERY TRIAL: MAY 2005

On 11 May 2005 the same three co-accused were jointly indicted on a charge of armed robbery relating to the same incident that led to the death of Ishmael Maya. The indictment pleaded the ‘wounding’ of Ishmael Maya as an aggravating circumstance. I endorsed the indictment and heard the brief facts from the prosecutor, Mr Rangan. At that stage I was unaware of the background of the matter. Mr Rangan informed the court that Ishmael Maya had died as a result of being wounded in the course of the robbery. I noted that it seemed unusual that there was no more serious charge laid. However, the three co-accused were arraigned and they each pleaded not guilty to the armed robbery charge.

After the pleas were entered, Mr Rangan informed me that, in fact, the three co-accused had been tried for the wilful murder of Ishmael Maya. Upon being made aware of that, I asked counsel whether it was proper for the trial on the armed robbery charge to proceed in light of the principles of autrefois convict and autrefois acquit in Section 37(8) of the Constitution and Sections 16, 17, 560 and 564 of the Criminal Code.

Section 37(8) of the Constitution (protection of the law) states:

No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

Section 16 of the Criminal Code (person not to be punished twice for same offence) states:

(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.

(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

Section 17 of the Criminal Code (former conviction or acquittal) states:

It is a defence to a charge of any offence to show that the accused person has already been—

(a) tried and convicted or acquitted, on an indictment on which he might have been convicted of the offence with which he is charged; or

(b) acquitted on indictment, or convicted, of an offence of which he might be convicted on the indictment or complaint on which he is charged.

Section 560 of the Criminal Code (pleas) states:

(1) If the accused person does not apply to quash the indictment, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.

(2) If the accused person pleads, he may plead—

(a) that he is guilty of the offence charged in the indictment, or, with the consent of a State Prosecutor, of any other offence of which he might be convicted on the indictment; or

(b) that he is not guilty; or

(c) that he has already been convicted—

(i) on an indictment on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(d) that he has already been acquitted on an indictment—

(i) on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the...