N4058

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 929, 930, 931 & 935 OF 2005

THE STATE

V

PAUL LOI, GERARD REU, VALENTINE REU, DARIUS DENDE

Kimbe: Batari, J
2009: 16 July

(NO 1): Ruling on an Interim matter of Procedure.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Evidence – Offer of no evidence – Prosecution election - Witness unwilling to give evidence – Discretion to call evidence - Power of the court – Whether trial judge has discretion to intervene – Overall supervisory role of judge - Duty of trial judge to secure a fair trial – Circumstances in which a judge can intervene in prosecution’s election not to call evidence. 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Evidence – Offer of no evidence - Duty of prosecuting counsel – Discretion to call evidence - Proper exercise of in fair trial – Improper exercise of - Duty of prosecution to further interest of justice 

Cases Cited:

Papua New Guinea Case
The State v. Theo Yandalin & 2 Ors, (1995), N1329

Overseas Cases
R v Oliva (1965) 49 Cr. App. R 298
R v Cavanagh, R v Shaw [1972] 1 WLR
R. v. Broad (1979) 68 Cr. App. R. 281

Text

Archbold Criminal Pleading Evidence & Practice, 1992 Vol. 4-78 at p. 454

Counsel:

MR. A. Kupmain, for the State
Mr. D. Kari, for P Loi & G Reu
Mr. T Gene, for V Reu & D Dende

3 August, 2009

1. BATARI, J: On 16 July 2009, State Prosecutor, Albert Kupmain presented an indictment against the accused persons and offered no evidence following their not guilty plea. I ordered the trial to proceed in an ex tempore judgment and undertook to publish my reasons. This I now, do.

Facts

2. The accused persons were presented before the court upon indictment charging each one with wilful murder following allegations that, on 13/10/01 at Bamba village, Talasea District of West New Britain Province, they attacked one, Ignatius Reu and hacked him to death with bush-knives. Each accused person is alleged to have intended the death of Ignatius Reu, in contravention of s. 299 of the Criminal Code. 

3. Upon arraignment, they all pleaded not guilty. Prosecuting counsel then informed the Court he has no evidence to offer. 

Courts’ Intervention on Prosecution’s ‘Offer of No Evidence’

4. Before either Counsel for the defence could apply for formal discharge of their respective clients, I enquired of prosecuting Counsel, Mr. Kupmain what his difficulty might be in calling a witness, assuming witnesses can be easily and readily located in a village setting. 

5. Counsel explained, the witnesses are available but have filed affidavits asserting that their earlier statements made to the police about the killing were made under duress and intimidation. Counsel added, any consequential enmity from the killing had abated and normalcy restored in the community through reconciliation and compensation payment. 

6. I indicated to Mr. Kupmain, the course taken seemed inappropriate in the circumstances. So, I invited counsels to make submissions on the court’s discretion to direct prosecuting counsel to call evidence or to call evidence myself. I also intimated to counsel that, in the event of one or both options being open to the Court, summons may be issued for witnesses to give evidence. I then adjourned briefly to allow counsels opportunity to prepare and present submissions on the issues raised.

Submissions on Power of the Court or Judge to Intervene 

7. Mr. Kupmain quite correctly and sensibly did not defend his decision. He uncommittedly submitted that the Court deal with the issue under Constitution s. 155 (4) to make such orders as are necessary to do justice in the circumstances of a particular case. Counsel contended that, the State having offered no evidence, the Court has discretion to accept and acquit the accused persons or order a trial to proceed. He also undertook to call witnesses if the court ordered a trial.

8. Defence Counsel, Mr. Kari for the accused Paul Loi and Valentine Reu submitted that, the onerous evidentiary burden of proof on prosecution to establish the guilt of the accused person carries with it, the power to call witnesses. That discretion rests entirely with prosecuting counsel and the accused person is entitled to the benefit of an election not to call evidence. Mr. Kari argued that, prosecution counsel having made a considered decision not to call evidence; his clients are entitled to formal findings of not guilty and consequent discharge on the wilful murder charge.

9. Mr Gene of Counsel for the accused Gerard Reu and Darius Dende made submissions along the same line. He contended that, prosecuting counsel has the sole responsibility and prerogative to present witnesses. Having decided against that course, the result is that, there is no evidence to sustain a lawful conviction. Counsel argued the Court is devoid of power to intervene in such a case so; his clients are entitled to acquittals on the wilful murder charge. 

Constitutional Power and Duty of Prosecution to act fairly 

10. The Public Prosecutor or State Prosecutor is vested unfettered discretion by the Constitution to lay criminal charges and present indictments in the National Court. He is solely responsible for that election. There is further discretion in prosecuting counsel to call evidence in an election to lay criminal charges. Section 557(2) of the Criminal Code makes it clear that, upon presentation of an indictment, the trial commences if the accused person pleads not guilty upon arraignment on the charge. The obligation on prosecuting counsel to call witnesses is then presumed. 

11. A decision to call evidence is such a heavy responsibility not to be taken lightly by prosecuting counsel. The election must be based on a duty to act fairly and in the interest of promoting criminal justice administration. It must be guided by proper principles and application of the "rule of law." 

12. The maintenance of the "rule of law" requires the involvement of a fair, impartial prosecutor, consistent with ethical considerations of his role and the practice and procedure of the court, to properly discharge his duty both to the State and the Court. At stake is the public interest which is to see that those charged with serious criminal offences such as unlawful killings are properly prosecuted in a court of law. 

13. The public interest represented by the State Prosecutor demands that, Counsel takes all reasonable steps to secure and adduce evidence as a general rule before prosecution case is closed. After all, that is the paramount consideration of a fair trial under s. 37(3) of the Constitution which provides: 

"A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court." (Underlining, added)

Common Law Principles on Prosecution’s calling of Witnesses

14. Generally, at common law, prosecuting counsel has wide, ultimate discretion to call a witness. This responsibility carries with it, the duty to have the witnesses named on the back of the indictment, available and present in court, both to call and examine them, or to call and tender them for cross-examination, irrespective of whether a witness is helpful to his case. It is sufficient that the witness’s evidence is capable of belief. This is the principle asserted in the case of R. v. Oliva [1965] 3 All ER116; 49 Cr. App. R 298 where Lord Parker CJ in delivering the judgment of the Court of Criminal Appeal stated at pp.309-310:

"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 recognized, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved."

15. There appears to have only been one published case from within this jurisdiction in which this common law principle was considered and applied: The State v. Theo Yandalin & 2 Ors, (1995), N1329. With respect, I consider that it is a sound principle of law that has been adopted and followed as being appropriate and applicable to the circumstances of this country, hence, part of our underlying law.

Whether Prosecutor’s Discretion to call evidence is subject to Court intervention – Principles applied.

16. It must be clearly understood from the outset, the ultimate discretion on prosecuting counsel to offer no evidence on the Indictment is not an issue of evidence before the Court but, a policy issue pertaining to prosecution’s discharge of prosecutorial function. It is trite that, the trial only commences upon accused person pleading not guilty. No evidence at that stage has been called and the decision remains with the prosecution in the exercise of prosecutorial discretion to call evidence. Whether the ultimate discretion on prosecuting counsel to offer no evidence on an Indictment can stand depends, in my view, on whether a prosecutorial decision not to call evidence is subject to court or judge intervention. 

17. It is commonly accepted that, where prosecuting Counsel proposes to offer no evidence or Counsel when making a decision not to call a witness, to explain his reasons for so doing to the court. It is then open to the judge to express his views. If a judge disapproves of the course taken, he will say so. In that case, Counsel is under an obligation to reconsider the matter. Conversely, if Counsel still feels strongly the decision taken is the correct one, then he must persist in the course he originally proposed although great weight should be given to the judge’s view. 

18. I find helpful support for this proposition in Archbold, Criminal Pleading Evidence and Practice 1992 Vol. 4-78 where the learned authors on the Topic, Guidelines to Prosecution Counsel discussed at 454:

"Counsel may in his discretion invite the trial Judge to assist him in his decision (whether to offer no evidence or to accept or to refuse pleas tendered by the accused) but he is never under a duty to do so nor should he do so as a means of avoiding his personal responsibility.: "Counsel should in any case be ready to explain his decision in open Court and to reconsider it in the light of any observations made by the trial Judge." (Underlying added)

19. Although Prosecuting Counsel is not bound to invite the Judge’s approval of his decision to offer no evidence, he cannot avoid conveying his decision for the court or judge’s endorsement. If he does so, it will always be in the discretion of the judge whether to accept the decision of the prosecution and he must abide by the judge’s decision. This is because, the Judge will not merely approve of a decision taken by prosecution on a matter pending before the Court unless good cause is shown as stated in R. v. Broad (1979) 68 Cr. App. R. 281 per Roskill L.J:

"When Counsel for the Crown invites the Judge to give approval to some course which he wishes to take the seeking of that approval is no idle formality. The Judge in such circumstances is not a rubber stamp to approve a decision by Counsel without further consideration, a decision which may or may not be right." 

20. This sentiment also fortifies the ultimate responsibility of the trial judge over the court’s own processes and the duty to ensure the proper conduct of criminal trial proceedings. The judge has the overall supervisory role over trial matters before the court. It is a crucial role first and foremost, to secure a fair trial in the general criminal justice administration. In that context, intervention by the Court is appropriate and expected where prosecuting counsel appears to be improperly exercising his discretion for varying reasons including but not limited to: 

•	indiscretion and carelessness;

•	furthering an illegal act as in witnesses compromising their positions;

•	prosecution is acting contrary to instructions;

•	Counsel’s decision proceeds from caprice or incompetence; 

•	no real or genuine attempt to secure attendance of witness;

•	familiarity with the accused or a relative of accused or a witness. 

21. It will not be amiss of the Judge, in any of such a situation arising, to intervene and direct calling of a witness if in his or her judgment, it appears a decision to offer no evidence will amount to an abuse of process or injustice or will not further the interest of justice.

22. The discretion of the judge to intervention in any of those circumstances was averted to in the case of, The State v. Theo Yandalin & 2 Ors, (1995), N1329, where Injia J (as he then was) in reviewing the common law role of a judge and discretion in the court or the judge to interfere where important witnesses were not called by prosecution, said: 

"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." 

23. From the same passage in R v Oliva (ibid), Lord Parker CJ was more succinct. The Judge can intervene to invite the prosecution to call a witness or the Judge himself can call that witness where the prosecution appears to be improperly exercising its discretion to call evidence:

 "Their discretion must be exercised in a manner which is calculated to further the interests 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." 

Ruling

24. In this case, prosecuting Counsel has offered no evidence because witnesses have recanted on their position, alleging their initial statements were involuntarily obtained by police. It is also on record that, consequential animosity from the unlawful killing had been negotiated and settled by reconciliation and compensation payment. 

25. The latter, it seems to me, is the primary underlying reason for the witnesses’ reluctance to give evidence. Documents including affidavits tendered showed heavy involvement of churches and government representatives to broker peace amongst the villagers following the killing. It is possible; a number of factors had come into play causing reluctance of witnesses to give evidence. 

26. One of those factors is that the witnesses had been compromised. The most serious crime in the land had been settled at community level by reconciliation, compensation payment and written undertakings by the witnesses not to pursue against the other party, issues or actions which may return instability and disharmony to the community. The ritual peace ceremony had become a solemn and sacred event such that it compromised the witnesses. So, to pursue criminal proceedings against the accused persons would only undo the peace settlement and normalcy. There can also be real threat of being ostracized if the witnesses backed down on their personal undertakings at the peace ceremony. 

26. In the end, the witnesses would have no doubt been overborne in their free will and choice by the enormity of the ceremonial peace settlement, to testify against perpetrators of the killing. 

27. However, the real dilemma the prosecution faced in the prosecution of the killing charge is the witnesses’ decision to change their story. This is not an issue of insufficiency of evidence or a case of unavailability of witness due to death, mental incapacitation, or the witness having left the country or is not easily available or located. The witnesses are available but have undertaken not to give evidence. This clearly suggests a conspiracy to pervert the course of justice. It was no doubt a calculated move to defeat the administration of justice. 

28. Prosecuting counsel should have been more prudent and diligent to weigh up the situation at hand. If counsel did, he would have clearly discerned the motive and propriety of the witnesses’ stance. In failing to do so and in electing to offer no evidence, counsel appeared to have embraced an illegal and unconstitutional solution, let alone a duty to be discreet, attentive, firm and uncompromising in upholding the rule of law. 

29. The decision of the State Prosecutor, if allowed to stand will likely result in unfair and unjust administration of justice. Besides, it is against public policy which requires accused persons to be brought to trial and punished if convicted. Furthermore, the improper exercise of prosecutorial function may create a false public perception that a law-breaker let alone a killer can escape punishment simply by summary settlement of his or her crime through reconciliation and compensation payment at community level, contrary to the fundamental constitutional right of every man, woman and child to the full protection of the law. That protection necessarily imposes on relevant authorities, the obligation to uphold the laws of this country. 

30. Be it as it may, a deliberate choice by a witness not to give evidence because settlement had been reached with the accused person is not a bar to calling that witness. He remains a competent and compellable witness. If the witness desires no longer to assist the prosecution, his or her reliability is a matter for the court, not the community, the police or the prosecution, to decide. Further, in such a situation where a witness changes his or her story, prosecution would not be left without remedy. It is open to prosecuting counsel to seek leave of the court to declare the witness hostile so that the witness may be cross-examined on his or her prior statement to the police. 

Conclusion 

31. In the upshot, the course taken by the State Prosecutor here is inappropriate. It appeared to have resulted from caprice and ill-advice and has the potential to undermine prosecutorial function in the maintenance of the rule of law and criminal justice administration. I am of the firm view that, prosecuting counsel was not exercising his discretion properly in his decision to offer no evidence. The circumstances of prosecuting counsel’s discretion not to call evidence are such that the court’s intervention is appropriate to attain the ends of justice. 

32. Hence, I refuse to endorse counsel’s offer of no evidence and direct that the trial proceeds. As Mr. Kupmain have advised of the availability of the witnesses, I so direct Counsel to call and examine the witnesses or to call and tender them for cross-examination. 

(Semble: At the conclusion of trial on wilful murder, three accused persons were found guilty on the testimony of prosecution witness and convicted on alternative verdicts of murder and one on unlawful assault.) 

_______________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Defendants