Unreported National Court Decisions
N1329
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 195 OF 1993
STATE
v
THEO YANDALIN, JAPETH KAPILIN & LEO MORRIS
Mount Hagen
Injia J
6-8 March 1995
13 March 1995
CRIMINAL LAW - wilful murder - no case to answer submission prompted by poor standard of investigation and prosecution - state witnesses either reluctant to testify or turned hostile when called - considerations relevant to exercise of judicial discretion in deciding whether the judge should invite or require the prosecution to call other witnesses listed on indictment and if they refuse, to call the witnesses himself.
Held:
(1)      The prosecutor must exercise its discretion to call witnesses listed on the indictment in a manner calculated to further the interest of justice, and at the same time fair to the accused.  Where it appears to the judge that the prosecution was exercising its discretion improperly, the judge has a discretion to interfere and invite the prosecution to call a particular witness and if the prosecution refuse, to call the witness himself: R v Oliva [1965] Cr App R 298 applied.
(2)      Given the lengthy time lapse between the date of the offence, which is almost 3 years; the lengthy time lapse between the date of the accused’s arrest and the date of  trial, which is some 15 months; the events which occurred at the village level after the killing which appeared to have frustrated police investigation into the crime; and the lack of co-operation by the state witnesses, in particular, the state’s only principal and only witness in the trial; the court was unable to safely conclude that the prosecution had exercised its discretion improperly.
Cases Cited:
R v Oliva [1965] Cr App R 298
R v Cavanagh R v Shaw [1972] 1 WLR 676
Counsel:
J Kesan for the State
B Aipe for both Accused
13 March 1995
INJIA J:  The three accused come from Amala village which is situated just outside Wabag town.  They pleaded not guilty to a charge that on 26 July 1990 at Wabag, “they in common purpose wilfully murdered Gabriel Piakon, a male person”.
At the end of the prosecution case, the defence counsel made a no case submission saying the evidence adduced by the State was totally insufficient, inconsistent and contradicting.  The no case submission was prompted by what I think was a poor standard of investigation and prosecution and the lack of co-operation by key prosecution witnesses.
The indictment contained the names of six witnesses.  I was told by the State Prosecutor that the prosecution would call two of them, namely Gabriel Lombe who was an eye-witness and Anthony Manjin who is the police investigating officer.  However, the State only called Gabriel Lombe.  I was told that the other eye witness, Thomas Lombe, could not be called because he was reluctant to give evidence.  The other eye-witness Tepe Nakau was unavailable because she could not be located in time as she was believed to be somewhere in Lae.  Anthony Manjin was not called after listening to the evidence of Gabriel Lombe.  The police corroborating officer James Feto was not called even though he was based at Laiagam Police Station.  The final witness listed was John Wallace who was the doctor who conducted the post mortem examination and prepared a medical report.  The State Prosecutor was not sure if the doctor was still based at Sopas Hospital.  The State also did not seek to tender his medical report even though it appears to be not contested.
Gabriel gave evidence in english.  His oral evidence did not assist the State case.  He was present at the scene of the murder when the deceased was axed to death in broad daylight at Amala village.  He had accompanied the deceased in the deceased’s mazda double cab utility vehicle when they stopped at Amala to refuel.  Also present inside the double cab utility was Gabriel’s brother Thomas and another woman woman who were seated on the back seat of the utility vehicle.  The deceased and Gabriel sat in the front with the deceased driving.  The deceased came out of the vehicle to consult the person serving fuel when he was axed to death.  Gabriel went over  and tried to stop them but he couldn’t.  He left the scene in fear of his own life.  Gabriel maintained that he did not see the identity of the assailants because he is not familiar with men from Amala, his tribe being some 2 clans away from his village and his having spent most of his life away from his area.  As a result the State sought to have him declared hostile saying his evidence in Court was contradictory to an earlier statement he gave to police, on the basis of which he was called.  The State Prosecutor said that he had not personally interviewed this witness before the trial.  I granted his application and declared him hostile.
After lengthy cross-examination type interrogation of the witness by the State Prosecutor, it became clear that the witness did sign a certified statement prepared by the police.  This statement was tendered in the committal proceedings and it is now in evidence for the prosecution.  The statement is in english.  I reproduce the full text of the statement in unedited form below:
“I can recall back on Thursday the 26th July 1990, at about 4.30pm, I was at Wabag main market trying to arrange for a vehicle to go down to Mount Hagen the next day (Friday 27th July 1990).
While I was waiting there, my younger brother namely, Thomas Lombe and the deceased Gabriel Piakon, drove by and stopped.  The vehicle in which the deceased was driving was an AVIS Rent a Car, Mazda, Double Cab, white in colour.
After they had stopped, they motioned me towards them and the deceased told me that he wanted to go down to Mount Hagen and needed someone to accompany him.  I agreed to join him, so we decided to proceed to Amala and refill the car at a Service Station at the suspect’s village.
Before going straight to Amala Service Station, we stopped at Sangurap market and met Mr Peter Ipata’s wife namely, Emily also from the suspect’s village (Amala) and she jumped into the car and sat at the back seat with my younger brother Thomas I sat in the front passenger seat, while the deceased did the driving, and Emily sat behind me while my younger brother Thomas sat behind Gabriel Piakon (Deceased).  Between my brother and Emily we left the deceased’s brief case and camera.
When we got to the Service Station, Gabriel pulled over to the bowser stopped the car, and told the attendant’s to refill the tank.  About 2-3 minutes later, Thomas walked over to the deceased and got some coins from him  to buy cigarettes and Emily and I were the only ones in the car.  I opened my door and sat facing Gabriel who was about 3-5 meters away paying for the fuel.
While I was still watching, this first accused namely, Theo Yandalin approached the deceased from the back and I saw clearly that he was armed with an axe, and to my surprise, Theo Yandalin struck Gabriel (Deceased) with his axe on the back of the deceased’s head, just above the right side of the neck, and the next blow came from Jepeth Kapilin, who used a sharp long bush knife to attack from the back towards the front and he slashed off Gabriel’s face and eyebrows and part of his nose.  After the Jepeth attack, the late Gabriel Piakon fell to the ground, and Jepeth moved in again and with his bush knife, slashed Gabriel on his right hand wrist and palm while other axe blows landed on his head by the first attacker, Theo Yandalin - all this was done while late Gabriel was lying helplessly on the ground.
I stood by the car and watched helplessly as I was unarmed, I then saw Billy Pullian moved in and attacked Gabriel was still on the ground with his heavy duty axe by chopping Gabriel on his head a couple of times and one blow landed between his lips.
As if that wasn’t enough to kill late Gabriel Piakon, Leo Morris moved in again and landed two (2) more blows on the deceased’s head and one on his back with his axe.
It seems to me that, the attackers had been well prepared with their weapons and had planned the attack prior to executing their plan.
Nevertheless, I knew that Gabriel wasn’t going to make it, and I felt a bit dizzy after a close observation of the brutal killing.
It was then that 4th person, Leo Morris saw me watching them, and started running towards me with his axe full of blood - on an attempt to kill me too.  This act was for them to stop me from testifying - against them.  Upon realising that I would be the next victim, I left the car with Gabriel’s camera and brief case and started running towards Wabag, while I was running down, numerous attempts were made by others also from Amala to kill me.
During the time of running down towards Wabag, my younger brother who was also there witnessing the killing joined me by my side and we both ran down.  Luckily for me, a Govt car picked us up, and dropped us at our village - Keas.
That is all I can re-call.
I Gabriel certify that this statement is true to the best of my knowledge and belief.  I make it knowing that it is tendered in evidence, I will be liable to prosecutions if I have knowingly stated anything that is false or misleading in any particulars.
(signed)
Gabriel Lombe
(Deponent).”
Gabriel is not sure as to when he signed this statement.  The statement itself is undated.
Gabriel further says that some 2 days after the incident, he was called into Wabag Police Station where he gave his statement to the police informant who typed the statement in his presence.  He now has a copy of that statement which he did not sign.  That statement is the same as the oral evidence he gave in Court now.  After he gave his statement, the police used that information to carry out investigations and after completing the investigations, they produced the above statement which he signed.  He said he did not mention any names of suspects but the police gave him the three accused’s names and knowing that the police wee duty-bound to carry out investigations and come up with the names of those responsible for the killing, he just signed the statement on that understanding. After his oral evidence, I requested a copy of the original unsigned statement. That statement which is dated 27-07-90 was produced to the court and is in evidence.  It describes the incident in clear detail and in the sequence in which specific persons or group of persons attacked the deceased and later himself.  The sequence of events described in this unsigned statement is substantially similar to his certified statement except that the names of the attackers or group of attackers are not mentioned.
This court is a people’s court.  It is a court of justice.  Justice must not only be done by the court but seen to be done by the people.  On one hand, the three accused remain innocent until proven guilty by the State which represents the people.  They are entitled to a fair trial within reasonable time.  But the court must also consider the interest of the people to see offenders investigated and prosecuted properly, promptly and diligently by those State institutions entrusted with these duties.  The traditional role of a judge in a criminal trial which is associated with the adversarial or accusatorial system of criminal justice based on the common law system which we have adopted has always been that the judge sits as a neutral referee, arbitrator or adjudicator.  He does not play an active role in the trial.  Nevertheless, the common law has developed principles for the judge or court to intervene in situations where the exercise of the investigative and prosecutorial discretion has been exercised improperly so as not to attain the ends of justice.  These principles have been developed since 1843 and refined over succeeding years in many cases.  A summary of these principles are found in a statement of the Lord Chief Justice Parker in the English Court of Appeals in the case of R v Oliva [1965] Cr App R 298 at p. 309 - 310 where the Lord Chief Justice states:
“Accordingly, as it seems to this court, the principles are plain.  The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination.
The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved.  Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence.  If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness.”
In a situation where the prosecution is desirous of calling a particular witness but is prevented from doing so by circumstances beyond its control, different considerations apply.  I would adopt the principles canvassed by Brightman J in the Court of Appeal in R v Cavanagh, R v Shaw [1972] 1 WLR 676 at p. 679:
“The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present.  The reason for that is obvious and was expressed in Reg v Woodhead [1847] 2 C & K 520, a case at Liverpool Assizes, where Alderson B said at p. 520:
‘You are aware, I presume, of the rule which the judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment.  The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself.  You ought, therefore, to have them in court, but they are to be called by the party who wants their evidence.  That is the only sensible rule.’
If, however, it proves impossible, despite such steps, to have the witnesses present, the court may in its discretion permit the trial to proceed provided that no injustice will be done thereby.  What considerations will affect the exercise of the court’s discretion will vary infinitely from case to case.  Would the defence wish to call the witness if the prosecution did not?  What are the chances of securing the witness’s attendance within a reasonable time?  Are the prosecution prepared to proceed in his absence?  If so, to what extent would the evidence of the absent witness can be procured, will other witnesses by then have become unavailable?  There will be many other matters which may have to be considered.”
The situation in the instant case is that the prosecution has been for one reason or another unable to call most of its witnesses even though they seem to be around in Enga Province or in the country.  In the end the prosecution has ended up calling only Gabriel who turned out hostile and gave evidence which did not assist the prosecution case.  His evidence is so vague, distorted, contradictory, inconsistent and inherently suspicious that no reasonable tribunal could convict on the evidence even if the three accused were called upon to answer the charge.   The length of time lapse between the date of the offence, the date on which the three accused were arrested and charged and the date of this trial may have contributed to the poor standard of investigation and prosecution in this case.  It may also be due to the events which occurred subsequent to the killing.  There is evidence from Gabriel that tensions were high and a fight broke out between the deceased’s clan and the accused’s clan.  Then there appears to have been a series of threats issued against potential State witnesses including Gabriel himself and perhaps even defence witnesses.  Gabriel now complains of having lived under pressure from both sides all these years.  A lot of relevant circumstances which existed at the time of the killing no doubt would have changed by now which in turn influenced the attitude of these witnesses to this case.  For instance, Gabriel says the three accused were arrested after the problem was settled in the village in the traditional way. No doubt the truth of this brutal murder in broad daylight is now obscured than it was at the time of the killing or thereabouts.  That is why there is a need for the community to respect the law by not taking the law into their own hands and let the police investigate the crime promptly and properly and bring those responsible to court.  They should not frustrate the efforts of the police.  Likewise when a matter is reported to police promptly, as was the situation in the case, the police must take prompt action to secure these witnesses, obtain their evidence and preserve the evidence and ensure that the suspects are promptly arrested, charged and prosecuted.  They should not delay their investigations.  They should not succumb to pressure from the relations of the victim or the accused to solve it their own way, because their way of punishing serious offenders is not recognised or approved by the laws of this country.
If I were of the firm view that the prosecution appeared to be not exercising its discretion properly, I could have required the State to call all the other important witnesses listed on the indictment, in particular, Thomas Lombe, Tepe Nakau and Anthony Manjin.  If the prosecution still failed to do this, I would have them called myself.  However, given the lengthy time lapse between the date of the offence and the date of the three accused’s arrest, which is almost 3 years and the lengthy time lapse between the date of their arrest and the date of trial, which is some 15 months, the subsequent events which occurred at the village level which appeared to have frustrated police investigation and the lack of co-operation by witnesses generally and in particular the State’s principal and only witness in this trial, I am unable to safely conclude that the prosecution has exercised its discretion improperly.
The upshot of the foregoing discussions is that I will rule in favour of the no case submission and discharge the three accused forthwith.
Lawyer for the State:  Public Prosecutor
Lawyer for the Accused:  Public Solicitor