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State v Kunumb [2009] PGNC 159; N3789 (11 November 2009)

N3789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 353 OF 2009

THE STATE

V

KNOX KUNUMB

Minj: Makail, J
2009: 11th November

CRIMINAL LAW - Practice & Procedure - Application for change of venue of trial - Grounds of - Security of accused - Evidence of - Whether grounds established - No evidence to establish grounds - Application refused - Criminal Code - Section 522.

Cases cited:

The State -v- Michael Marabe (2009) N3637
The State -v- Mathias Robert (2009) N3606

Counsel:

Mr J Waine, for the State
Mr N Nagle, for the Accused

RULING ON APPLICATION TO CHANGE OF VENUE OF TRIAL

11th November, 2009

1. MAKAIL, J: By his notice of motion filed on 9th November 2009 and supported by an affidavit of Felix Kua sworn on 5th November 2009 and filed on 9th November 2009, the accused seeks to change the venue of trial from Minj to Mt Hagen. The accused in this case faces a charge of wilful murder of one James Win on 16th August 2008 at Kiam Service Station in Minj District of the Western Highlands Province contrary to section 299 of the Criminal Code. He brings the application under section 522 of the Criminal Code, which states that:

"522. Place of trial.

(1) Subject to this section, the place of trial shall be -

(a) when the person awaiting trial has been committed for trial or sentence -

(i) the place to which he has been committed for trial or sentence; or

(ii) if no place has been specified - the place appointed under the National Court Act 1975 for sittings of the National Court nearest to the place at which the person charged was committed for trial or sentence; or

(b) when the person awaiting trial has not been committed for trial or sentence - the place at which the indictment against him was presented.

(2) In relation to any pending matter in which the trial has not yet commenced, the National Court or a Judge may -

(a) on the application of a State Prosecutor or a person awaiting trial or his counsel; and

(b) on good cause being shown,

order that the place of trial be changed to some other place appointed under the National Court Act 1975 for sittings of the National Court.

(3) This section does not affect the power of the court before which a trial has commenced to adjourn the trial to a different place". (Underlining is mine).

2. In his submissions to the Court in support of the application, Mr Nagle of counsel for the accused submits that the principal ground for making the application is security of the accused. He refers to paragraphs 4 & 5 of the affidavit of Felix Kua to demonstrate that because the deceased and the complainants’ village is located along the Highlands highway between Minj and Mt Hagen, it is difficult for the accused to travel through or past through the village to attend Court at Minj. Since he is out on National Court bail, the complainants are aware that he will be attending his trial at Minj National Court and this poses serious threat to his life. Mr Nagle refers to my own judgments of The State -v- Michael Marabe (2009) N3637 and The State -v- Mathias Robert (2009) N3606 to support his submission that security of witnesses, especially in criminal cases is of paramount importance and once it is raised by one of the parties, the Court should not set it aside lightly.

3. Mr Waine of counsel for the State opposes the application and says that whilst threats to the security of the accused is no light matter, hence the Court should carefully consider the application, the Court should refuse the application in this case because there is simply no evidence being offered by the accused to support the application. He submits that, evidence of when, how, who and where of threats made to the accused should have been put before the Court but have not been done.

4. He further submits that the evidence of Felix Kua in his affidavit is as good as useless because it is hearsay, hence inadmissible. The Court should reject it. If it is rejected, then there would be no evidence to support the application. Accordingly, the application should be refused. If the application is refused, he asks for a warrant of arrest for the immediate arrest of the accused since he has not turned up at the beginning of the Court circuit on Tuesday 3rd November 2009 to be dealt with.

5. I agree with the submissions of Mr Nagle to the extent that first, the application is correctly made under section 522 of the Criminal Code as the Court has the jurisdiction to deal with such application and secondly, security of witnesses including victims and accused in cases coming before the Courts is of paramount consideration when the Court is dispensing justice. If there are allegations of threats against witnesses of one party, the Court must not lightly set them aside. The Court must seriously consider them before making a decision on the next course of action. I made this call in the above cases which Mr Nagle has referred to in his submissions. I consider that threats to security of witnesses constitute a "good cause" under section 522(2)(b) of the Criminal Code if it is shown or established by the party applying for a change of venue of trial.

6. But I must agree with Mr Waine’s submissions. As I pointed out to Mr Nagle during the hearing of the application, there is no evidence from the accused supporting the application since the threats he asserts, are made only against him. Evidence of threats therefore, should come from him and any person who is an eye witness to the threats. Nonetheless, Mr Nagle pressed on with the application by relying on the affidavit of Felix Kua.

7. I reject the affidavit of Felix Kua because it is hearsay. It is hearsay because first, he is not the accused. He is a lawyer employed in the firm of Paul Paraka Lawyers and retained by the accused to represent him in this case. He is in no position at all to depose to the factual matters in his affidavit. Mr Kua’s evidence is hearsay, hence inadmissible. I reject it.

8. Secondly, even if I accept and rely on the affidavit of Felix Kua, he does not state that he is an eye witness of the accused. He does not say anywhere in the affidavit that he witnessed the complainants threaten the accused. It is no wonder, he does not state when, how, where and who made the threats to the accused except to make a generalized statement that because the complainants’ village is located along the Highlands highway between Minj and Mt Hagen, the security of the accused is under threat or will be compromised. Thus, I find that he has no knowledge of the kind of threats made to the accused. I reject his evidence as being hearsay for this reason.

9. Since the accused has not filed an affidavit to support the application, in reality, there is simply no evidence of threats made by the complainants against the accused before the Court. There is no evidence to persuade the Court that the accused has shown "good cause" to warrant the intervention of the Court to prevent any injustice from occurring. The application must fail on this basis alone and I refuse it accordingly. As for the State’s application for a warrant of arrest to be issued in the event that the application is refused, I shall not grant the application but order that the accused appear before the Court before the arising of the Court on Friday 20th November 2009.

Ruling accordingly

______________________________________

Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused