The State v Robin Andolu (2012) N5127

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 23 November 2012
• Citation: (2012) N5127
• Docket Number: CR. NO 1007 OF 2010
• Court: National Court
• Year: 2012
• Judgement Number: N5127

Full Title: CR. NO 1007 OF 2010; The State v Robin Andolu (2012) N5127

National Court: Kirriwom, J

Judgment Delivered: 23 November 2012

N5127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1007 OF 2010

THE STATE

–v-

ROBIN ANDOLU

Wewak: Kirriwom, J

2012: 22 & 23 November

(No. 1)

PRACTICE AND PROCEDURE – Indictment – Amendment – Variance – Evidence incompatible with charge – Variance discovered after close of defence case during final addresses – Indictment deficient - Inadequate description of charge – Whether State counsel’s failure and lack of due diligence can deprive fair trial to victim - Whether indictment can be amended – Whether deficiency in count or charge curable by amendment – Whether amendment will prejudice the accused in his defence – Whether amendment will result in injustice to the accused – Interest of justice applies both ways – Amendment ordered – Criminal Code, ss. 535-536

POWERS OF COURT – Constitutional mandate - Inherent powers – To make orders on its own volition – In the interest of justice – To prevent injustice – Constitution, ss. 155 and 155(4)

Cases Cited:

Papua New Guinea cases

Charles Ombusu v The State [1996] PNGLR 335

Epeli Dawinga v The State, SC 491 of 1995;

Gabriel Laku v The State [1981] PNGLR 350;

Dinge Damane v The State [1991] PNGLR 244;

Madeline Kiso v Angela Manumanua [1981] PNGLR 507

Mathew Totori v Bob Nenta (2003) N2373

Simili Kara -v- The State [1984] PNGLR 254

The State -v- Tanedo [1975] PNGLR. 395.

The State v Herman Joseph Leahy (2008) N3570

Application by Herman Joseph Leahy (2010) SC1018

Overseas cases

R v Smith (1951) 1 KB 53; (1950) 2 All ER 679; 34 Cr App R 168

R –v- Rymes (1953) 175 ER 573

Counsel:

C. Sambua, for the State

J. Malambaul, for the Accused

INTERLOCUTORY RULING TO AMEND DEFICIENT & DEFECTIVE INDICTMENT

23 November, 2012

1. KIRRIWOM, J.: After hearing all the evidence in this trial and in the course of final addresses, it became obvious to me that the charge and the evidence against this accused were not compatible. The evidence of the victim said one thing and the description of the offence in the charge set out in the indictment said something else. The Court on its own volition has taken this unusual step to examine the indictment and gave certain directions as are contained in the form of orders from this ruling.

2. At the close of defence final address I asked defence counsel on the application of section 7 and 8 of the Code. He replied that both provisions did not apply because both accused named in the indictment were charged as principals, not as accessories. Mr Sambua agreed with the Defence on this legal position.

3. I drew Mr Sambua’s attention to the wording in the charge and the evidence of the victim. He chose to withdraw his earlier position he took and submitted that State relied on section 7 and 8 of the Code. Even then, I had no record of State relying on section 7 and 8 of the Code. In any event, he already agreed that section 7 and 8 did not apply. Mr Sambua simply threw in the towel and as he could not be of further assistance to me to overcome the difficulty encountered in the trial. I adjourned the case and after some deliberation on the issue I faced, I gave this interlocutory ruling.

4. On 15 August, 2012 Robin Andolu and Francis Kavun, both of Kandinge Village, Ambunti, East Sepik Province were indicted with a total of 12 counts of sexual penetration of three different female victims by insertion of penis and fingers into the vagina, anus and mouth of two of the victims without their consent. The number twelve charge was one of doing grievous bodily harm with intent to Susan Misha. On the facts before me there were serious charges of rape committed with circumstances of aggravation and displaying some of the most inhuman and animalistic behaviour involving extreme violence.

5. Objection was taken of the indictment before Geita, AJ on 15 August, 2012 which led to eleven of the twelve counts being withdrawn and the two accused were arraigned on just the one count, which is the first count. This is what I am advised by Mr Malambaul for the accused. That Count One reads:

“FRANCIS KAVUN and ROBIN ANDOLU both of KANDINGE VILLAGE, AMBUNTI, East Sepik Province, stand charged that they the said FRANCIS KAVUN and the said ROBIN ANDOLU on the 23rd day of April 2010 at MAKUN SETTLEMENT in WEWAK in Papua New Guinea sexually penetrated SUSAN MISHA without her consent by inserting his penis into her vagina.”

I am not sure whether this count was agreed upon for the convenience of eliciting a plea from co-accused Francis Kavun. If so, then common sense prevailing, accused Robin Andolu who was pleading not guilty ought not be accorded the benefit of that concession or negotiated count.

1

6. I am further advised that on arraignment on this count, Francis Kavun, pleaded guilty to the charge and had been sentenced

However, I have since learnt that Francis Kavun is yet to be sentenced and I don’t know when he is likely to be sentenced. On reflection, if I had known that Franics Kavun had not yet been sentenced, I probably would not have commenced this trial until that matter was completed.

2. Robin Andolu pleaded not guilty and his trial was deferred to the next sitting before a different judge. This is the trial now before me.

7. When I read out the same charge to Robin Andolu, he maintained his plea of not guilty

I must admit however that I again arraigned the accused in tok pisin (I was not satisfied with the substitute interpreter who was the court attendant) without the benefit of brief facts for purpose of arraignment from the learned counsel for the State on the assumption that all was well.

3. His lawyer advised that the issue in the trial was one of identification and the defence raised is one of alibi. I subsequently noted that the notice of alibi was filed on 12 November 2012

8. State called only one witness, which is the victim, although Mr Sambua, Senior State Prosecutor, initially indicated calling two witnesses. After calling its first witness, the victim Susan Misha, State chose not to call any more witness. Instead two documents were tendered into evidence by consent of defence, namely, the medical report of Dr. G Naboam of Wewak General Hospital dated 23 April, 2012 and Record of Interview of Robin Andolu conducted 14 May 2010 in English between the accused and S/C Stenet Wohuinen and PWSC Lynne Sailan. Both documents were marked Exhibits 1 and 2 respectively.

9. Defence called the accused who gave his evidence of his whereabouts at the material time in question and called his only alibi witness who corroborated his story at the material time Robin Andolu was with him sleeping almost one kilometre away and therefore could not have been where the victim said he was with others doing all those sorts of things to her. Defence then closed its case.

10. It is now plain that the evidence was at variance with the charge in Count One on the indictment. This is particularly so, given the amendment to the Criminal Code in 2002 that expanded the definition of sexual penetration while replacing the phrase ‘carnal knowledge’ with the words ‘sexual penetration’ where such penetration was even possible by an object other than penis into the vagina, mouth or anus. Count One in the indictment was the only charge I was advised by Mr Sambua for the State that the prosecution was proceeding with.

11. It simply did not make sense to me that the evidence from the victim was that the accused Robin Andolu and one other named person sexually penetrated her by inserting their fingers into her vagina as Francis Kavun sat on her chest and pushed his penis into her mouth when Count One in the indictment before me was talking about inserting penis into the vagina. However, the correct charge or count I noted was Count Three in the indictment that was crossed-out which had this particular element charged in the same indictment. I wondered if there might have been a mistake made by the learned Senior State Prosecutor, particularly in the light of the specific description of the charge in sexual penetration cases as enacted in the 2002 amendment to the Criminal Code.

12. In the amended Code, sexual penetration can be effected in several ways as prescribed in section 6 of the Criminal Code. One of these is use of finger to penetrate a person’s vagina or anus or use of any other object controlled by the person charged. This is the amendment introduced in 2002 when the use of the words ‘carnal knowledge’ were repealed and replaced with the words ‘sexual penetration”. Section 6 as amended reads:

“6. Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any...