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State v Yandalan [1994] PGNC 70; N1213 (17 January 1994)

N1213

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR ORDER FOR TRANSFER OF PLACE OF TRIAL

THE STATE

-V-

THEO YANDALAN, JAPETH KAPALIN & LEO MORRIS

Mount Hagen: Brown J.
1994: 17 January

Criminal Law - Place of trial - Application by State Prosecutor to change from Mount Hagen to Waigani - Relevent considerations.
Criminal Code s 52(2).

The State Prosecutor in Mount Hagen, Mr S. Carter made application for a change of venue of these three co-accused for eye-witnesses feared for their safety and threats had been made to the police by the accused's line. The facts appear from the ruling.

Held:

(i) There shall be a transfer of the place of trial from Mount Hagen to Waigani for there is a reasonable risk that witnesses will not appear through fear, were the trial to be conducted at Mount Hagen.

There were no cases cited.

Mr S. Carter, for the State Prosecutor
Mr B. Tabai, for the Public Solicitor

RULING

BROWN J.: This is an application by the Public Prosecutor Sir Kina Bona to transfer the place of trial of a criminal trial for Wilful Murder from Mount Hagen to Waigani. These three co-accused Theo Yandalan, Japeth Kapalin & Leo Morris all of the Amali line, are charged with the wilful murder, by axing, of Gabriel Piakon of Taramanda line. The State case I am told is dependant on eye-witness evidence of the axe attack on Gabriel Piakon by these 3 co-accused and one other when Gabriel Piakon called into a Mobile Service Station on the Highlands Highway some 2 km from the centre of Wabag. The evidence, the State says will go to show that these three lay in wait for Gabriel Piakon, (a senior employee of Mobil) at the Service Station until he came along and then they axed him on the 30 August 1990. The accused were arrested in a police raid in September 1993 and are presently in custody awaiting trial.

The application is made because of the fear of held by the eye witnesses for their safety if they testify at Wabag or Mount Hagen and the threats of the accused line made to the people concerned with this investigation.

The fear held by the witnesses are detailed in a statement made to the provincial Police Commander by John Piakon, the elder brother of the deceased. He said:

1. That all the accused have all come from Amala Village about a kilometre out of Wabag town.
   
2. That, tribal conflicts will loom if most of the accuses relatives are either present in the Court room or present outside the Court area listening to the State witnesses evidence being presented in full context.
   
3. That, all the State witnesses are from nearby villages and have cross marriages and have feared to give straight forward evidence during cross examination etc.
   
4. That, if held in Mount Hagen relatives of both the deceased and the accused will all be transported in truck loads during the hearing.
   
5. That transferring the case out of the two provinces, to our Nations capital Port Moresby, will limit the number of relatives from both groups travelling to witness the hearing.
   
6. That, evidence given by the State witnesses in the Court will be without fear of favour from any threats by any group or individual for that matter.
   
7. That, relatives of the deceased have prepared to meet all the cost of transport, airfares, accommodation if case is transferred to Port Moresby for the State witnesses.
   

The Investigation Officer, Det Senior Constable Anthony Manjin has stated:

"As reason No.6 in John Piakon's letter clearly states that, witness will not be subjected to fear or favour when testifying, if the matter is transferred out of Wabag and Hagen. I as the officer investigating the murder feel that, for us to have a smooth and orderly trial we should look into the possibility of having the matter transferred as outlined by John Piakon.

Engans are very emotional and hostile group of people and I am pretty sure will carry out their threats if the matter is tried in either Wabag or Mount Hagen.

Hence, to deter possible confrontations between the accused relatives and the victims relatives, I strongly feel that, the matter be transferred to Port Moresby".

Subsequently the Regional Officer in Charge C.I.D. Highlands Det Chief Inspector R.R. Huafolo wrote to the State Prosecutor on the 20 December 1993 requesting the transfer of the venue for this trial, quoting the reasons of John Piakon and stating further:

"I am currently on another investigation in the Enga Province and it is obvious that the witnesses to this case would nevertheless be interfered with. In fact the Investigation Officer, Det. Sen. Const. Anthony Manjin and his family's lives had been threatened should be pursue this case further.

As a consequence of this I am arranging D.S.C. Manjin's transfer out of the Enga Province".

Clearly the administration of justice in the Enga Province will be adversely affected if these witnesses are unwilling to give evidence because of the fear of reprisals. I am satisfied, on the custom deposed to by John Piakon, that this fear is reasonably held. I am also mindful of the propensity to threaten witnesses, in the Enga Province and Highlands Provinces generally. I touched on the effect of those threats to the proper administration of justice in my reasons handed down in Peter Raima's case. In that case a witness who was robbed by one Peter Raima refused in Mount Hagen to give evidence for death threats had been made to her and her family. I ruled that the statement made to the police at the time of the investigation into the robbery could be used in evidence. The accused Peter Raima had pleaded not guilty but he escaped during the course of his trial. After my ruling he was recaptured, again arraigned, pleaded guilty and was sentenced for the robbery.

The number of Nolle Prosequi filed by the State Prosecutor in very serious offences involving armed robbery and rape at Mount Hagen is cause for disquiet. Since the Administrative Centres at Wabag was burnt down in April 1993 Engan trials have been conducted at Mount Hagen. The number of Engan committals coming up for trial at Mount Hagen has fallen, compared to earlier years despite a common perception that tribal fights in that province have given rise to an increasing number of killings.

Section 552 applications previously were common. It is not clear what cause the State's inability to bring accused to trial but I venture to say that again customary settlement, a fear in witnesses to give evidence or some other reason extraneous to the due administration of the criminal law resulted in numerous accused being discharged before trial. That is not in my view proper administration of justice, where no trial takes place.

Possibly the worst example of the unanticipated effects of the application of s 552 or its misuse by accused persons able to pervert the course of justice by interfering with witnesses, was a case involving the discharge of five co-accused. Tumu Koeya, Gauman Nita, Langap Pyaso, Londe Pyakalyo and Paulus Pyaso, were all charged with wilful murder of two young girls aged about 11 from the Lower Lai River area of the Enga Province. Police had a complaint that these two girls had been raped, one dying in the course of the pack assault. The other was also killed. One body, weighed down by stones was found in the river, but the second (possibly not so weighed) was not. Witnesses statements had been taken by police. The area was relatively inaccessible (no access by road) A s 552(2) application was brought at Wabag in about August of 1992 (application to be brought to trial) when police were instructed by the State Prosecutor to make proper enquiries for such witnesses and ensure their attendance at the next sittings, for the suggestion was that such witnesses were avoiding the police. The police had been unable to proceed to trial in the August sittings.

The police suggested two possible reasons for the witness behaviour. The first was that the witnesses were frightened for their safety if they testified, the second was that customary compensation had been paid for the death of the two girls, the villages were no longer concerned, and thus the deaths were no business of the State. Both reasons expose the weakness in the administration of the criminal justice system if they be the reasons in fact for the subsequent discharge of these accused in January 1993 at Mount Hagen after 15 months in custody pursuant to s 552(4) (no indictment presented).

It seems to me that legislative amendment is necessary if the prosecution of offenders passes from the hands of the State Prosecutor to those of offenders able to coerce through fear or customary obligation, witnesses into either refusing to testify or absenting themselves, so that prosecutions must fail through the effect of s 552(2).

I must look not only to the particular reasons for the request for transfer in this case but the wider ramifications if the request is allowed. The State Prosecutor had the unfettered discretion as to whether or not to proceed with a particular prosecution. The Court however, must bear responsibility for the conduct of proceedings. The trial judge runs his court, applying principles of practice and rules of evidence to ensure the due administration of justice a phrase which I consider, encompasses the accused's right to a fair trial. But the trial has not started, and the State Prosecutor implies, that it may not, if the transfer of venue request is not met. There is a risk again, a Nolle Prosequi will be filed because the States witnesses have been coerced through fear from giving evidence. Clearly justice will not be served if that happens.

Fairness to the accused in this case also means that they have the opportunity to test the State case and present evidence on their own account. The transfer of venue, in my view, will not affect those rights. Their legal representation remains unaffected. As does their right to give evidence and call witnesses.

The transfer to Waigani is the State's responsibility. While the question of travelling costs for defence witnesses may be argued, the right to call evidence whether by deposition of viva voce is unaffected.

Clearly the State Prosecutor should not be thwarted in his attempt to bring this case to trial.

Section 521 of the Criminal Code provides, in subsection (2), that for good cause, the place of trial may be changed to some other place. I am satisfied good cause has been shown.

The venue for trial will be Waigani.

_________________________________________________

Mr S. Carter for the Public Prosecutor
Mr B. Tabai for the Public Solicitor