N1124

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1269/91 1269 "A - G"

THE STATE

-V-

AREY WATUL & 7 OTHERS

BULOLO: DOHERTY, J.
1992: 23 September

Criminal Law - hearing in the absence of the accused - Constitutional right S. 37(5) - Right to hearing, where 1 only of several co-accused is re-arrested after escaping Constitution S 37(3) - Sentence cannot be passed without a convicted person having an opportunity to exercise his right under S.593 Criminal Code Act - Court powers to separate co-accused.

Eight co-accused escaped from custody in remand during a trial before the Prosecution had closed its case. One accused only was arrested there being no evidence the others would be arrested in the near future. In considering whether the hearing could proceed against all co-accused.

Held: 

(1) 	S.37(5) Constitution gives a right for an accused to be present at the hearing but envisages two situations where a trial may proceed in the absence of an accused (1) with his consent or (2) his behaviour making the continued hearing impractical leading to the Court ordering his removal.

(2) 	Consent can be implied but it must unambiguous.

(3) 	Absconding can imply such consent.

(4) 	The powers of the Court to order separate trials under S.568 is dependant upon an application of an accused.

(5) 	An accused, including a re-captured escapee, has a right to a hearing within a reasonable time (S.37(3)) Constitution.

In the circumstances of the case the hearing could proceed against all accused but sentence could not be pronounced in their absence.

Cases Cited
Thomas Kavali -v- Thomas Hoihoi [1986] PNGLR 329
Wamp Nga & 3 Others -v- The State [1979] PNGLR 135

Mr. M. Peter for the State
Mr. C. Inkosopio for the Defendants

JUDGMENT

DOHERTY, J.: Arey Watul, Asaka John, Robert Kenemo, John Wakisa, Toms Jeremia, Iwow Iyaemos, Elisa Loti, Timon Imorenoa were all indicted on separate counts of wilful murder and robbery which allegedly occurred in Dumawa Village in the Aseki District of Morobe Province.

After three days of hearing the matter was adjourned on Friday 15th of May 1992 to resume on Monday the 18th of May 1992. All of the accuseds escaped during the weekend adjournment.

Only Elisa Loti has been recaptured and now appears before this court. A ninth accused, Simion David escaped at committal stage and has never been recaptured; he was committed to stand trial in the National Court in his absence.

Twenty-one (21) witnesses were listed on the indictment and for a variety of reasons involving difficulties of bringing large numbers of witnesses from remote areas, interpreters and application of Counsel the original trial was held in Menyamya. There were preliminary rulings concerning joinder of the two counts and eventually separate indictments were presented. All the defendants pleaded not guilty to both counts. The trial then proceeded normally. Evidence of witnesses of events in the evening of the incident and the following day were adduced.

The State then indicated that it would be calling witnesses No. 7 to No. 13 on the indictment who were wives of some of the accused and the court was adjourned for a short time to permit the Defence Counsel to advise his clients of their rights pursuant to S 13 of the Evidence Act.

At a short distance from the court I heard considerable commotion and the court was immediately resumed, Counsel then noted their concern at disruption caused by the Defendants, shouting at persons in the vicinity of the court area. Due to this concern plus the absence of a relevant State medical witness due to illness, an adjournment was made on Friday 15th of May 1992. Before the adjournment Defence Counsel stated the defendants not only did not object to their wives being called but wanted them called. As already stated all Defendants were taken into custody but escaped over the weekend, only Elisa Loti has been recaptured and is now before this Court.

It is understood that he is now serving sentence for escaping but no actual warrant or certificate of conviction has been presented to the court.

The question now before the court is whether the court can continue the hearing against all accused or if the matter must be deferred until all accused are present before the court as these were joint indictments and joint hearings.

The Defendant still has a right to a hearing within a reasonable time under S 37(3) of the Constitution, he has, by escaping shown some disregard for the right. Now that he has been recaptured can the court proceed against him only or must it hear evidence against all his co-accused who were in jointly indicted with him.

Clearly, the co-accused could not be punished in their absence if they were found to be guilty of any offences, S 593 of the Criminal Code Act Ch. 62 gives a statutory right of a person to speak before punishment is pronounced upon him. They cannot be called upon to speak if they are not present in court. But can S 37(5) Constitution prevent the hearing of the remaining witnesses in this trial against other co-accused or can the trial proceed against Elisha Loti only. The wording of S 37(5)...

"Except of 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..."

Defence Counsel stresses "and the court orders him to be removed" and submits that this is conjunctive on his own conduct rendering the continuation of the trial impracticable. The State stresses that this was a joint trial and Loti was joined by consent and arraigned with all the other Defendants. 

Section 568 of the Criminal Code gives the court a discretion at any time during a trial on the application of any of the accused persons, to direct that their trials should be held separately.

No application has been made to separate this Defendant from any other co-accused and the section of the code is not worded to allow a court to separate Defendants on its own violation. There has to be an application. (see also Supreme Court ruling in Wemp Mapa and 3 others -v- The State [1979] PNGLR 135 at 138 "an application for severence under S 580 (now S 568) could only be made by an accused".)

This raises the point - if I cannot separate these Defendants without an application from one or all of them, does this mean that Elisa Loti must wait indefinitely for his co-accused to be recaptured? There is no evidence that any of them have been found in the last four months. Considering the criminal list for Morobe and in particular persons coming from the same area as the accused, it would appear that there have been escapes and Bench Warrants outstanding for periods of three to four years. There is already been a delay of four months since his recapture. There is not even a suggestion that there is a likelihood of an immediate recapture of the co-accused.

Hence there is the Defendant's (now before the court) right to hearing within a reasonable time and the right of co-accused to hear the evidence against them.

The Supreme Court has considered the provisions of S 37(5) and the hearing of criminal trial in the absence of an accused in the case of Thomas Kavali -v- Thomas Hoihoi [1986] PNGLR 329. The background to that case was the Appellant pleaded not guilty to a traffic offence and had his bail extended for continued hearing. He did not appear and the hearing continued in his absence, the Court having ruled that he had waived his right to be present voluntarily. It was also considered "rarely in the best interests of justice that the trial of a minor offence when part-heard should be adjourned for more than a week or so".

The Supreme Court considered that there were two errors in this decision. First the statement that it was a minor offence as it considered it makes no differences with what offence a person is charged as the Constitutional right guaranteed by S 37(5) makes no discrimination between minor offences or serious offences and secondly, the finding that the Appellant, by not turning up on the appointed day for resumption of the trial, had absconded thereby waived his right to be present.

In the Supreme Court the Chief Justice considered S 37(5) can be summarised as:-

1. 	A criminal trial must not take place in the absence of the defendant.

2. 	A criminal trial may take place in the absence of the defendant with his consent.

3. 	A criminal trial may take place in the absence of the defendant if he so conducts himself as to render the continuance of the proceedings in his presence impracticable.

4. 	Whether a defendant consents or not a law may provide that a charge against a person not involving imprisonment as a penalty may be heard summarily in his absence if it is established that he has been served with a summons in relation to the alleged offence."

Hence S 37(5) envisages 2 situations where a trial may proceed in the absence of a defendant:-

(1) 	Where he consents to the proceeding in his absence and;

(2) 	Where his conduct within the Court is such that the Court proceedings become impracticable and as a result the Court orders that proceedings continue without him.

As Mr. Inkosopa has said in submission, the Defendants' conduct during the latter part of the trial could have given grounds to remove them. But the question that arises here, and is referred to by the Supreme Court, is whether the other defendants by absconding have implied their consent to the trial continuing in their absence.

Woods, J. in Kavali -v- Hoihoi (supra) (at p.337) 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 surrounding the failure to appear and only if those circumstances show deliberate intention not to appear in Court can consent be implied. Woods, J. gives the example of the person who walks out of the hearing with no explanation, effectively saying "I do not care if you carry on". 

The Supreme Court suggests a person who has absconded shows an intention not to appear and may, thereby, imply consent to the hearing proceeding in his absence.

The Chief Justice said, at page 334, considered "abscond" meant "depart secretly and flee the law" and considered in Kavali's case "there is absolutely no evidence the appellant absconded". "There is no evidence that the Appellant" departed secretly or "fled from the Law".

The Court also adopted with approval and the views expressed in R -v- Abrahams (1895) 21 VLR 343 - at p.421:-

"I wish to say that while agreeing that as a matter of law trial for misdemeanour may proceed in the absence of the defendant, it must not be understood that such course would in these days meet with approval. I think that not only has an accused person a right to be present during the hearing of any proceedings against him, but as a rule, which should never be departed from except under special circumstances, he is also bound to be there," and;

"The Court must be satisfied that the defendant elects to be absent, and absents himself through caprice, malice or for the purpose of embarrassing the trial. And absconding is mentioned as an extreme example of waiving the right," and;

"All that we are here deciding, in my opinion, is that the presiding judge may in misdemeanours proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone."

The emphasis in Kavali -v- Hoihoi is that the court must be satisfied but the Defendant has elected voluntarily to be absent and absconding can amount, by implication, to such an election. Absconding involves a define decision on the part of the accused - to depart either the jurisdiction of the Court - or even the jurisdiction (as in R -v- Jones). I consider escaping shows a definite decision to be absent voluntarily. I am conscious that this is an extremely serious case, one of the most serious under our Criminal Code. But I must weigh up the rights of the accused now before me with those of the co-accused who have absconded. There may be a power in the interest of justice to separate accused during trial (as happened in Wemp Nga and 3 others -v- The State (supra)) but the same situation does apply here and the power to separate trials is limited as described above. Elisha Loti must have a hearing, the remaining Defendants forcefully escaped Police custody and I consider they have elected to be absent.

From the provisions of S 570 of the Criminal Code, they have a right to call evidence once a case is found against them.

I consider that in the light the clear absconding by some accused and the need to have the hearing of Elisha Loti proceed this trial will proceed against all of the accuseds but sentence cannot be passed in the absence of the accused and consideration must be given to their right to call evidence at the end of the State case.

[Hearing proceeded. At the end of the State evidence it was held that there was no evidence against Elisha Loti or Asaka John and both were acquitted. All other defendants had a case to answer and the hearing was adjourned to allow them to call evidence per S 570 of the Criminal Code Act.]

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Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor