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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JONAH JAKAI
Lae
McDermott J
11 October 1982
CRIMINAL LAW - Section 527 Criminal Code - Nolle Prosequi - presentation at end of evidence of principal state witness - crime insufficiently investigated by police - did accused act alone or in concert - in interest of justice to have crime investigated - question of fairness considered.
Authorities
R v. Arbia Tambule (1974) P.N.G.L.R. 250
Arthur Gilbert Smedley v. The State (1980) P.N.G.L.R. 379
R v. Sneesby (1951) Q.S.R. 26 30
Connelly v. D.P.P. (1964) 2 All E.R. 401
MCDERMOTT J: Jonah Jhas been charged aned and indicted under Code s.319 of doing grievous bodily harm to Mathew Sarage. This arose as a result of a fight at Bumbu, Sepik settlement on 6th March 1982.
In op the State Prosecutor said said he would call the victim, an eye witness, tender a medical report - the doctor being available for any necessary clarification. At that stage he had not decided whether to call the police investigator or tender the record of interview.
The State case was that the accused stabbed or cut the victim 3 times with a chissel - twice in the front of the body and a more serious cut to the back.
Exhibit ‘A’ the medical report of 22nd April 1982 indicated a serious wound to the spine. The victim is lucky he is not a paraplegic. I indicated I required an up to date report or evidence given as to the victims current condition. I observed his entry into court, walking slowly with the aid of crutches.
He gave evidence. He was a labourer at Bulolo and on the day of his attack came down to Lae, went to the settlement at about 8p.m. and went to sleep about 8.30p.m.. He was awakened by fight noises, stones on the roof and went outside his wantoks house to investigate. He said there were a lot of people and indicated 4. He saw with the aid of a coleman lamp which was outside the accused’ s house. In chief he said;-
‘I got up and went outside I said I do not know anything about the fight. They fought me out and they cut my back. I called out once and I could not remember anything.’
Q. & Y60;seeu ho cwt you?
A. ҈& J60;h Jnah Jakai. Q. ҈ hat phat pe cut A0;&;1160; On my back. > <#16.&&160;&160; #160; ;
See; See what instrument he used to cut you?
Later he r he r he was awas asked: ‘Q.
< &160; Hoyodo now this is the mane man? A0;҈& &160; #160; When thughfome outsidutside the lamp lamp was still there and I knew about it.’ That there were peoplolvedame clearer in cross examinxamination: ‘Q. When people drie dngnking king did you see them? A. They weie drg.kin> Q. ; W60 Jonsh with them?
A.ټ&##160;; His line.
Q.҈&ـ You not see him?
A. #160;  &1160&#After ther they drin drink they came to fight.
Q. ټ0; Were they vhey very drunk?
A. #160; ;d They whry were very very drunk.’
He was asked further questions whatened and the particulars of the event in the cour course of which he gave the following ansg answers:
‘Q. Could you be mistak n ashoo who was the man who stabbed you?
A. ـ No. There were the men.n.Q.&##160;;ټ&#Suggest you heard later that Jonah was the man who who stabbstabbed yoed you?
>
A. ـ  onmy someis liis line.R.’ <17;
He said he saw Jonah holding the carving knife (chissel) and said a woman stabbed him and he indicahe saunds eviously.
In re-examination:
:Q
Q.. ҈ &60; ‘How manp peotae stab you this night?
A. Four men and a womp>.Q.
Q. ـ A6y ofe fou in c
A. ;¦ Th0; The; They heey here bere but they gone.’
The witness then named the assailants. It was then clear to me that peopre ind in this attack. The proor did not know this. The paue paucity city of thof the pole police investigation became apparent. As I was reluctant to ask any questions to clarify the position, I then requested the prosecutor to consider what he proposed to do.
His inclination was to file a Nolle Prosequi but considered at this stage of the trial he was unable to so do indicating he would offer no further evidence. Because of the evidence, I was reluctant to adopt this course. The accused was still implicated but what role he actually played was open.
Defence Counsel, whilst acknowledging the prosecutor’ s discretion to file a nolle prosequi submitted that it would now be unfair to the accused.
Criminal Code s.527 allows the prosecutor to inform the court that the indictment then pending will not be further proceeded with. Upon its presentation the person named therein ‘ ... is to be immediately discharged from any further proceedings on the indictment to which it relates.’
Two authorities refer to this and subsequent options of the Public Prosecutor. See R v. Arbia TambuleN391.html#_edn974" title="">[cmlxxiv]1 and r Gilbert Smedley v. The StateN391.html#_edn975" title="">[cmlxxv]2.
The prosecutor in Arbia Tambule (supraN391.html#_tml#_edn976" title="">[cmlxxvi]3) after calling all the evidence informed the court he would not proceed further against the accused there being insufficient evidence to call for a conviction. Further proceedings were contemplated no doubt with the evidence of convicted co-accused. A case was stated. It was held at that stage of trial, the indictment was still pending. However most argument seemed directed to the impact of s.16(2) of the Human Rights Ordinance now re-enacted as s.37(3) of the Constitution.
At p.253 Frost S.P.J., as he then was said:
‘But, in my opinion, if a change is not withdrawn and the hearing commences, the accused’ s right to a fair hearing becomes the paramount consideration. Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings. For the Crown to enter a nolle prosequi in circumstances similar to those of this case has been said to be unfair R v. SneesbyN391.html#_edn977" title="">[cmlxxvii]4. The reason must be that it is tantamount to the accused being placed in double jeopardy which, of course, does not strictly attach until the final verdict.’
This is embodied in the maxim ‘ a man shall not be brought into danger of his life for one and the same offence, more than once.’ The history of this development is exhaustively stated in Connelly v. D.P.P.N391.html#_edn978" title="">[cmlxxviii]5. That appeal raised the question of whether a plea of autrefois acquit should have succeeded. The court’ s power to prevent an abuse of its process and control its own procedure was affirmed. In this jurisdiction the use of a nolle prosequi and the presentation of Indictment has a somewhat different history than in England. Here both the Criminal Code and Constitution (indirectly) speak on these matters as well.
A serious crime has been committed. Besides the accused, four other named persons have been implicated by the victim. This has not been investigated. I infer from the State’ s opening that the police investigation is virtually non existent. If called, the main police witness would have been a constable who would give evidence of a record of interview which at that stage the prosecutor had not finally decided to put in evidence.
The accused’ s role could well be less than that of a principal. He may only be caught by Code s.7. The public interest requires the proper investigation of alleged crimes. It is on the confidence of this that Law and Order is built. On the other hand, as counsel submits, the accused should not be put in jeopardy again.
If I accept the nolle prosequi the accused is immediately discharged. If the opinion of Pratt, J., with whom Wilson, J., agreed in part, in Smedley (supraN391.html#_edn979" title="">[cmlxxix]6) at p.408 is the prevailing situation, then the prosecutor’ s powers to present a further indictment are exhausted, unless there is a new committal upon which a fresh indictment can be presented. This matter would then be at end though the accused could face further proceedings.
Poor investigation has led to this unhappy situation. It is in the interests of justice, i.e. for the public interest and for the accused’ s interest, that the offence which allegedly:
(1) rrecuin a public place,
,(2) ;volved a nu a number ober of persons,
(3) &#involved use of a &; wea8 wea8217;
)ټ&##160; becausecause of t of the nahe nature and consequences of it, should buld be proe properlyperly investigated.I bear in mind ords >Lordis Connelly (/u> (suprasupraN391.html#_edn980" title="">[cmlxxxmlxxx]7) at p. 409:
‘ ... there is inherent in our criminal administration a policy and a tradition that even in the case of wrong doers there must be an avoidance of anything that savours of appression.’
I see nothing appressive in the proper investigation of this offence particularly when the accused on arraignment said ‘ We were drunk and I not know what I was doing.’
This is not an autrefois convict or acquit situation. I do not consider the jeopardy position in Arbia Tambule (supraN391.html#_edn981" title="">[cmlxxxi]8) as yet reached and distinguish that case on the facts.
For this reasons stated I will accept the presentation of a Nolle Prosequi.
Solicitor for the State: Public Prosecutor
Counsel: L. Henao
Solicitor for the Defence: Public Solicitor
Counsel: S. Lupelrea
<74">N391.html#_ednref974" title="">[cmlxxiv](1974) P.N.G.L.R. 250
N391.html#_ednref975" title="">[cmlxxv](1980) P.N.G.L.R. 379
N391.html#_ednref976" title="">[cmlxxvi](1974) P.N.G.L.R. 250
N391.html#_ednref977" title="">[cmlxxvii] (1951) Q.S.R. 26 at 30
N391.html#_ednref978" title="">[cmlxxviii] (1964) 2 All E.R. 401
N391.html#_ednref979" title="">[cmlxxix](1980) P.N.G.L.R. 379
N391.html#_ednref980" title="">[cmlxxx] (1964) 2 All E.R. 401
N391.html#_ednref981" title="">[cmlxxxi](1974) P.N.G.L.R. 250
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