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Regina v Dandemb [1969] PGLawRp 474; [1969-70] PNGLR 207 (8 September 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 207 - Regina v Simbene Dandemb

[1969-70] PNGLR 207

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

SIMBENE DANDEMB

Kundiawa

O’Loghlen AJ

8 September 1969

CRIMINAL LAW - Indictment - Motion to quash - Committal proceedings - Witness for prosecution concerned in charge and untried - Evidence Ordinance 1934-1964, s. 6(3)[ccxlvii]¹ - The Criminal Code, s. 596.[ccxlviii]2

S. had been committed for trial for the wilful murder of J. Several days later, in separate proceedings, B. was committed for trial for the wilful murder of A. S. was subsequently indicted for the wilful murder of J. and his counsel moved to quash the indictment. When read together the depositions of both proceedings (which were tendered on the application) indicated that in the course of what was essentially one transaction S. and B. had participated in the killing of J. and A. The depositions further disclosed that in the committal proceedings each participant had been called by the prosecution to give evidence against the other.

Held:

That:

N1>(1)      Because of the essential unity of the transaction in which they had been involved, S. and B., although separately charged, should be regarded as co-prisoners.

N1>(2)      In these circumstances the calling of B. against S. went beyond the mere irregularity that, contrary to s. 6(3) of the Evidence Ordinance 1934-1964, evidence was given by an incompetent witness.

N1>(3)      It involved the right and privilege of a person against whom a charge is pending not to be called.

N1>(4)      Accordingly, the indictment based upon the committal proceedings against S. in their relation to the associated proceedings against B. could not but have the effect of prejudicing or embarrassing S. within the meaning of s. 596 of The Criminal Code and the motion to quash must be allowed.

R. v. Grant, [1944] 2 All E.R. 311; R. v. Sharrock, [1948] 1 All E.R. 145; and R. v. Adams, [1963] Crim. L.R. 441, applied.

R. v. Norfolk Quarter Sessions; Ex parte Brunson, [1953] 1 Q.B. 503, distinguished.

R. v. London County Quarter Sessions; Ex parte Downes, [1954] 1 Q.B. 1, at p. 6; Connelly v. Director of Public Prosecutions, [1964] A.C. 1280 and R. v. Bradney (unreported, S.Ct., P. & N.G., 1969), referred to.

Motion to Quash Indictment.

Simbene Dandemb moved that an indictment presented against him charging him with the wilful murder on 23rd March, 1969 of one Joseph Agma be quashed. The relevant facts and the grounds of the application appear sufficiently from the judgment hereunder.

Counsel:

Waight, for the Crown.

P. Luke, for the accused.

8 September 1969

O’LOGHLEN AJ:  Counsel for the accused man, Simbene, has applied under s. 596 of the Code to quash the indictment. The section allows such an application to be made where the indictment is calculated to prejudice or embarrass him in his defence to the charge or it is formally defective.

In support of his application, counssel has tendered the depositions of the proceedings in the District Court at Kundiawa against Simbene which commenced at 10.30 a.m. on 27th March, 1969 and which were completed on the same day and by which Simbene was committed for trial for the wilful murder on 23rd March, 1969, of one Joseph Agma (Joseph), a boy aged about fourteen to fifteen years.

He also tendered the depositions of the proceedings in the same Court by which one Bogon Diagkl was committed for trial for the wilful murder on the same 23rd March, 1969, of another boy, William Apa (Apa), aged about twelve to thirteen years; these latter proceedings had commenced at 10 a.m. on 27th March, were then adjourned at 10.30 a.m. (to permit the subject committal proceedings against Simbene to be commenced and completed that day) and the same were resumed on 28th and 29th March, terminating in Bogon’s committal.

The two sets of depositions read together show that essentially they deal with the same transaction. Both the accused man, Simbene, and Bogon, the defendant committed in the other proceedings, were participants in the whole of that transaction.

In the course of the transaction a number of offences were committed, including the double murder of the two boys Joseph and Apa.

When it came to dealing with the matter in the District Court, the two participants were separately charged each in respect of an individual murder, the victim being in Simbene’s case, Joseph and in Bogon’s case, Apa.

The facts as set out in the depositions are these: Simbene and Bogon on the Sunday on which the trouble occurred went up Mt. Wilhelm together foraging. They came to the house of a Mr. John, looked through the louvres and saw a pumpkin in the house. They entered, possibly broke and entered, the house and took the pumpkin. They were cooking it in an outhouse when the two boys, Joseph and Apa, came up and accused them of being the men who had several times broken into the European’s house; the boys threatened to report the two to the kiap.

Simbene and Bogon talked the matter over; they considered that they had two alternatives open to them, to flee the district or to kill the boys. They decided on the latter course. They broke into a roadworks hut and stole a sledge hammer. With that they killed the two boys by blows to the head, delivered with great force.

The first victim to be killed was Joseph who was felled from behind by Simbene as the four were walking in single file with Bogon leading and Simbene bringing up the rear. The only substantial matter upon which the two participants differ is the degree of participation of Bogon in the second killing, that of the younger boy Apa.

Simbene in his statement to Constable Samar said:

“I killed Joseph and Bogon killed Apa . . . I hit Joseph on the head and he fell down. I hit him three times on the back of the head, then Bogon held Apa’s hand. He pulled the hammer off me; he hit Apa on the head and Apa fell down.”

Bogon’s contradictory version as given in his statement to the same constable was: “Simbene killed Joseph and Apa.” Samar then asked Bogon: “Did you kill anybody?” to which Bogon replied: “No . . . I only held Apa and took him to Simbene and Simbene killed him.”

In a later part of the same statement Bogon said:

“. . . then Simbene killed Joseph. I held Apa’s hand and took him to Simbene and Simbene gave me the hammer, but my feet and hands were nervous. Simbene got the hammer from me and he killed Apa.”

At this stage of the prosecution the decision was made to lay the information against Simbene for the wilful murder of Joseph and a separate information against Bogon for the wilful murder of Apa; this decision was, of course, a matter for the prosecuting authority.

However, when the two separate informations came to be heard in the District Court, an irregularity occurred which is the subject of this application to quash the indictment.

As noted above, the case against Bogon commenced at 10 a.m.; it was adjourned at 10.30 a.m. when that against Simbene was commenced and was completed the same day. The reason for the adjournment was questioned before me, but was shown to be innocent; it was to dispose of the medical witness who was common to both cases and to free him for his duties.

The irregularity was that each participant was called by the prosecution to give evidence in the case against the other, despite the fact that in so doing he had necessarily to incriminate himself and in apparent contravention of s. 6(3) of the Evidence Ordinance of the Territory of New Guinea which states:

N2>“(3)    A person charged with an offence shall not be called as a witness by the prosecutor; but every such person being a witness may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.”

I say “in apparent contravention” because the Crown was able to argue that there had in fact been no breach of the section; the Crown had furthermore indorsed Bogon’s name on the back of the indictment against Simbene; and it had informed counsel for the defence only on the morning of the sittings that it did not propose to proceed with its intention to call each participant as a witness at the trial of the other of them, both of which trials were then listed for hearing.

The defence argument was along four main lines:

N2>(a)      The unity of the transaction: that both killings were so interwoven that criminal liability between the two accused was indistinguishable; the two crimes were committed at the same place, at the same time, with, at the most, only minutes intervening and in the presence of the two defendants acting alone; that although the two men did not come before this Court as joint offenders, it was open to the Court from the perusal of the depositions to come to the conclusion that they were both joint offenders in both killings; it was furthermore within the power of the Crown later on to treat both men as principal offenders or as accessories in the killings of both victims; that the Crown had already laid an indictment against the present accused Simbene for the murder of Joseph; there was nothing to stop it from laying a further indictment against him as principal or accessory in respect of the death of the second boy, Apa; that likewise in the alternative situation, there was an indictment about to be presented against Bogon as a principal offender in the wilful murder of Apa; and there was nothing to prevent the Crown laying a second indictment against Bogon as a principal offender or accessory in the killing of Joseph.

N2>(b)      The breach of s. 6(3): the vital prohibition in the subsection is that a person charged with an offence may not be called as a witness by the prosecution; the subsection merely makes such a person competent for the defence and in that case he can be cross-examined; what occurred in both committals and in particular the subject one was that a person who had already been charged in the information laid against him on 26th March by the same police informant, Samar, was called by the prosecution and permitted to be called by the Court in deliberate and wilful breach of the subsection.

N2>(c)      The breach was wilful: it was submitted that the breach of the subsection was deliberate and wilful; the second prosecution, having commenced at 10.30 a.m. on 27th March, continued until completion, and the fifth witness called therein either by the prosecutor or at the request of the magistrate was Bogon who was the defendant in the information which had commenced at 10 a.m. and had been adjourned at 10.30 a.m.; this was at the least with the consent of the Court as shown by the warning against self-incrimination which had been administered to him; the other committal then resumed and proceeded to completion and the fifth witness for the prosecution in this case was Simbene, who was likewise cautioned; the giving of the caution showed the awareness of the Court of its disregard for the subsection.

N2>(d)      The effect of the breach: it was argued that that very disregard showed a breach which went far in excess of the admission of inadmissible evidence; it was a statutory provision which was ignored, one regulating what the prosecution may and may not do, and not a mere rule of evidence; it is contrary to the fair and proper administration of the criminal law that a person charged with the most serious criminal offence in the Code against whom proceedings are still pending should be called to give evidence which incriminates himself; it was conceded that the calling of an incompetent witness in committal proceedings would not in itself make the committal bad, but here there was an impropriety and a disregard of the Ordinance which was so gross and fundamental that having regard to the way in which both committal proceedings were managed, neither should be allowed to stand; the separation of the two accused by two committal proceedings, the adjournment and the manner of conducting the proceedings combined to infringe the criminal law immunity of accessories from being called upon to give evidence for the prosecution against one another except in certain circumstances permitted by law, and those circumstances were not applicable in this case.

The learned Crown Prosecutor conceded that it was open for a joint indictment to be presented against both Simbene and Bogon in respect of the death of Apa; he was not able to agree that it would be open to the Crown (ignoring the evidence that both had given in the committals) to present a joint indictment in respect of the victim Joseph; that only Simbene could have been successfully charged in respect of Joseph’s death; that subject to that reservation he agreed that the two crimes were closely related and that the accused participated jointly in them. Apart from this, he did not dispute the basic facts relating to the committal proceedings, as had been put forward by counsel for the defence.

He submitted that some reservation must be read into the wide wording of the subsection; for example, he quoted a person charged with stealing testifying against another charged with wilful murder; surely the subsection did not debar the prosecution from calling the person charged on the minor charge. The prohibition contained in s. 6(3) was limited to calling the accused himself in the course of a hearing which was directed against himself only. The reference to the words “question in cross-examination” recognizes the situation where the accused may be called on his own behalf and may be cross-examined, even although it may incriminate himself; that shows that the subsection is limited in its effect to where the accused is on trial and the prosecution seeks to call him in that very trial.

The Crown Prosecutor also referred to a recent Supreme Court case (R. v. Bradney[ccxlix]³) where it had been established that the mere fact that a person is still in jeopardy of further proceedings does not mean that he may not be called upon to give evidence subject to proper caution to be given to him. He submitted that evidence received in the way in which it had been as against Simbene was undesirable, but that it was in strictness admissible.

Should the Court reject that view, and find that that evidence should not have been received, then it was merely inadmissible and as such would not vitiate the whole committal proceedings.

He argued further that a breach of a rule of natural justice does not have the effect of invalidating such proceedings because same are purely ministerial, and even if a wrong were done in this case, the defendant was left without a remedy. And in any case, s. 596 of the Code was not appropriate to cover such a wrong.

The limb of the section which relates to prejudice or embarrassment is restricted to cases such as an improper joinder of counts or an unmanageable number of counts; and that which relates to formal defect is limited to cases where there is some error in the wording of the indictment; here the indictment follows the form and shows no defect.

Those were the submissions on behalf of the Crown.

The general rule of law is that an accused person is not a competent witness for the prosecution in any criminal case and there is a further rule that one co-prisoner cannot be called by the prosecution to give evidence against another.

In Simbene’s case it would appear that the witness Bogon who was called against him is not strictly a co-prisoner because each was being dealt with for a separate offence.

But the essential unity of the whole transaction as shown in both depositions indicates to me that, for the purpose of calling each of them as prosecution witnesses, it was essential that they should be treated as if they were co-prisoners. And this had to apply despite the undisputed right of the prosecution to select the charge upon which it preferred to proceed.

The defence relies for the proposition that the committal in respect of Simbene is invalid upon R. v. Grant[ccl]⁴ and R. v. Sharrock[ccli]⁵.

Archbold, 36th ed. (1966), par. 1297 dealing with these cases says:

“It is not proper for the prosecution where there is a joint charge to call as witnesses persons who are themselves concerned in the charge on which they are called; . . . and even where there is no joint charge, it has been held that a person charged with an offence against whom proceedings are still pending should not be called to give evidence of his own offence against another person, although that person is charged with a different offence.”

The learned authors then comment:

“R. v. Grant[cclii]⁶ and R. v. Sharrock[ccliii]⁷ in so far as they were authorities for the proposition that the calling of such witnesses would render the committal for trial invalid, have been dissented from in R. v. Norfolk Quarter Sessions; Ex parte Brunson[ccliv]⁸.”

The same authors at par. 174 have expressed the differences between these three cases in a somewhat narrower manner:

“But the fact that the committing magistrates have admitted evidence inadmissible in law or the evidence of an incompetent witness will not render the committal for trial unlawful: R. v. Norfolk Quarter Sessions; Ex parte Brunson[cclv]⁹, overruling on this point R. v. Grant[cclvi]¹⁰; R. v. Sharrock[cclvii]¹¹.”

To complete Archbold’s treatment of the subject matter, par. 1307, “Charged jointly”, states:

“In the case of an indictment against two or more prisoners, one prisoner may give evidence for the Crown against a co-prisoner in the following cases:—

1.       Where a nolle prosequi has been entered. . . .

2.       Where a verdict of acquittal has been given. . . .

3.       Where the prisoner in question has pleaded guilty on arraignment or during trial. . . .

4.       Where, though jointly indicted, he is not being tried with the prisoner against whom he gives evidence. . . .

“The prosecutor should not call as a witness a person who is himself concerned in the charge on which he is called, except in the above circumstances. R. v. Grant[cclviii]¹²; R. v. Sharrock[cclix]¹³. . . . The calling of such a witness will not, however, render the committal for trial invalid; R. v. Norfolk Quarter Sessions; Ex parte Brunson[cclx]¹⁴.”

Cross on Evidence, 3rd ed. (1967), p. 145, does not, however, treat R. v. Grant[cclxi]¹⁵ and R. v. Sharrock[cclxii]¹⁶ as having been overruled on the element which is of so much importance in our own case and this view is supported by the reviewer in 1963 Criminal Law Review, p. 441 commenting on the quashing of an indictment against one of the accused before him by Neild J. on a trial R. v. Adams[cclxiii]¹⁷ at the Durham Assizes where it had been shown that one of the four accused who had been defendants in the committal proceedings relating to several charges had been called to give evidence for the prosecution in respect of one of those charges.

It was there held that the procedure adopted at the committal proceedings had been most improper, but that so far as three of those defendants were concerned, it had involved only the giving of inadmissible evidence against them and the indictment would not be quashed (following R. v. Norfolk Quarter Sessions; Ex parte Brunson[cclxiv]¹⁸). So far as the fourth defendant was concerned (the man who gave the evidence), it was not a matter of inadmissible evidence but the calling of a defendant who was still untried as a witness for the prosecution. This was contrary to the principles of natural justice and the indictment against him would be quashed (following R. v. Grant[cclxv]¹⁹, R. v. Sharrock[cclxvi]²⁰; distinguishing R. v. Norfolk Quarter Sessions; Ex parte Brunson[cclxvii]²¹).

The law relating to the quashing of indictments in England has been set out by Lord Goddard L.C.J. in R. v. London County Quarter Sessions; Ex parte Downes[cclxviii]²² in the following terms:

“Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try. . . .”

This was generally accepted by the House of Lords in Connelly v. Director of Public Prosecutions[cclxix]²³ as being a correct exposition of the law on the subject except that Lord Devlin (after dwelling[cclxx]²⁴ on the danger of abuse and injustice to defendants if the prosecution in respect of the same facts were at liberty to act indiscriminately so long as for each prosecution it could find a different offence in law) proceeds to add a fifth ground to that given by Lord Goddard, namely, that if there is a gross abuse of process the court can act to remedy the situation by refusing to allow the indictment to go to trial.

It appears to me that it is open to me to deal with what happened in Simbene’s case by following R. v. Grant[cclxxi]²⁵, and R. v. Sharrock[cclxxii]²⁶, in which case it could come within the scope of a defect in substance referred to in the first of the somewhat restricted grounds enunciated by Lord Goddard; or if an abuse of process has occurred, then it could also come under the fifth ground added by Lord Devlin.

In the circumstances of the Territory, I feel that a gross abuse of process is involved where a native who is a participant in a joint crime and who belongs to the class to which I next refer is called to give evidence and incriminate himself. No amount of warnings against self-incrimination can possibly cure the situation.

I must regard the procedure as an abuse because, unless prosecutors are compelled to treat it as such, the door is left wide open to them to call, in the committal proceedings relating to an offence which is committed in a group, the evidence of any one or more of the participants. In such a case, the persuasiveness of the District Court evidence is more likely than not to induce further self-incriminating statements made to the magistrate at the close of the committal proceedings which will become evidence at the trial.

There is a widespread class of people in this Territory who must be granted the protection of the courts in this regard and that includes the two men who are involved in this case; such people are unsophisticated, ignorant, backward, generally primitive; they are not capable of understanding what is a right, let alone estimate the extent of any such right; they cannot themselves look after their rights; they are not represented; unless the magistrate does so, they are not in any way protected; they are wide open to suggestion or pressure especially if it comes from the magistrate or appears to have his approval; they are psychologically, for all practical purposes, unable to do other than what these two particular people have done, that is incriminate themselves in breach of all the rules of law which operate to protect them from being required to do that.

I consider that the present case, taken in conjunction with what happened to Bogon in his turn, goes far beyond the mere irregularity that evidence has been given at the committal proceedings by an incompetent witness: it goes to the right and privilege of a person against whom a charge is pending not to be called by the prosecution to give evidence upon the subject matter of the charge so pending.

The fact that this has occurred in respect of Simbene has prejudiced his fair trial and it follows in my view that the indictment based upon the committal proceedings against him in their relation to the associated proceedings against Bogon cannot but have the effect of prejudicing or embarrassing Simbene within the meaning of s. 596 of the Code.

The motion to quash the indictment is allowed.

Indictment quashed.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccxlvii]Infra, at p. 210.

[ccxlviii]Section 596 of The Criminal Code provides as follows:

N1>“596.     Motion to Quash Indictment.—The accused person may before pleading apply to the Court to quash the indictment on the ground that it is calculated to prejudice or embarrass him in his defence to the charge, or that it is formally defective.

Upon such motion the Court may quash the indictment, or may order it to be amended in such a manner as the Court thinks just, or may refuse the motion.”

[ccxlix]Unreported. S.Ct., P. & N.G., 1969.

[ccl][1944] 2 All E.R. 311.

[ccli][1948] 1 All E.R. 145.

[cclii][1944] 2 All E.R. 311.

[ccliii][1948] 1 All E.R. 145.

[ccliv][1953] 1 Q.B. 503.

[cclv][1953] 1 Q.B. 503.

[cclvi][1944] 2 All E.R. 311.

[cclvii][1948] 1 All E.R. 145.

[cclviii][1944] 2 All E.R. 311.

[cclix][1948] 1 All E.R. 145.

[cclx][1953] 1 Q.B. 503.

[cclxi][1944] 2 All E.R. 311.

[cclxii][1948] 1 All E.R. 145.

[cclxiii][1963] Crim. L.R. 441.

[cclxiv][1953] 1 Q.B. 503.

[cclxv][1944] 2 All E.R. 311.

[cclxvi][1948] 1 All E.R. 145.

[cclxvii][1953] 1 Q.B. 503.

[cclxviii] [1954] 1 Q.B. 1, at p. 6.

[cclxix][1964] A.C. 1280.

[cclxx][1964] A.C., at p. 1353.

[cclxxi] [1944] 2 All E.R. 311.

[cclxxii] [1948] 1 All E.R. 145.