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State v Loi [2009] PGNC 9; N3590 (13 February 2009)

N3590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 929-931 & 935 OF 2002

IN THE MATTER OF AN APPLICATION
BY GERARD REU & DARIUS DENDE

RE:

THE STATE

V

PAUL LOI, GERARD REU, VALENTINE REU & DARIUS DENDE

Kimbe: Cannings J
2009: 9, 13 February

RULING

CRIMINAL LAW – practice and procedure – application for separate trials – Criminal Code, Section 568 (separate trials) – discretion of Judge – unlimited jurisdiction of the National Court – Constitution, Section 166.

PROTECTION OF THE LAW – pre-trial applications – Constitution, Section 57.

After committal and prior to commencement of their trial, two out of four co-accused applied to the court for an order that they be tried separately from the other two. The application was made under Section 568 of the Criminal Code, on the ground that it was likely that the two groups of co-accused would be shifting blame to each other and in the circumstances their right to a fair trial may be prejudiced. The Public Prosecutor opposed the application.

Held:

(1) To the extent that the application is made under Section 568 of the Criminal Code, it is misconceived as that section only allows such applications to be made "during the trial", and, here, no trial has commenced.

(2) However, as the National Court is a court of unlimited jurisdiction, with an inherent power to make such orders as are necessary to do justice in the circumstances of a particular case, and as the order sought is a matter relevant to administration of criminal cases rather than substantive questions of guilt or innocence of any of the co-accused, the court has power, before commencement of a trial, on application by an accused or of its own motion, to order separate trials.

(3) In exercising the discretion whether to order separate trials, the court should be guided by the views and intentions of the Public Prosecutor, so that if he opposes separate trials, the court should be satisfied that separate trials are necessary to enforce the constitutional rights of the applicants to, amongst other things, the full protection of the law and a fair hearing within a reasonable time by an independent and impartial court.

(4) In the present case, the Public Prosecutor having objected to the application, the applicants failed to demonstrate that separate trials are necessary. The application was accordingly refused.

(5) Comments made on the efficacy of bringing pre-trial applications for separate trials under the Constitution, Section 57 and the need for applications under Criminal Code, Section 568, to be made by originating summons, in compliance with the Criminal Practice Rules.

Cases cited

The following cases are cited in the judgment:

Tom Longman Yaul v The State (2005) SC803
Wemp Mapa and Others v The State [1979] PNGLR 135

APPLICATION

This is an application by two co-accused that they be tried separately from two other co-accused.

Counsel

T Gene, for the applicants
F Popeu, for the State

13 February, 2009

1. CANNINGS J: Paul Loi, Gerard Reu, Valentine Reu and Darius Dende have been committed to stand trial on a charge of wilful murder. Their trial has not started yet. It is due to start within the next few months. Two of them – Gerard Reu and Darius Dende – do not want to be tried with the other two. They have applied to the court for separate trials.

COMPETING POSITIONS

2. The reason for this, according to their lawyer, Mr Gene, is that it is likely that the two groups of co-accused will be wanting to shift blame to each other and in the circumstances their right to a fair trial may be prejudiced.

3. Mr Popeu, for the State, opposed the application. He pointed out that each of the four co-accused would have the right to give whatever evidence they wanted to at the trial and bring whatever witnesses or other evidence to the court. Co-accused persons are not obliged in a joint trial to take the same position as each other. He stressed that it is proposed that they be jointly charged on the one indictment as the State will be relying on the provisions of Section 7 of the Criminal Code at the trial (those who enable or aid others to commit an offence may be charged with actually committing it). The State witnesses will be the same for all co-accused. It will involve an unnecessary duplication of resources to run two separate trials; and it would be necessary for two Judges to hear the trials, Mr Popeu submitted.

4. I agree with Mr Popeu’s submission. No good case has been made for separate trials. I will refuse this application, for two reasons.

FIRST REASON: NOT PROPERLY BEFORE THE COURT

5. Mr Gene framed the application under Section 568 (separate trials) of the Criminal Code, which states:

When two or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of any of the accused persons be held separately from the trial of the other or others of them. [Emphasis added]

6. To the extent that it is made under Section 568 of the Criminal Code, the application is misconceived as Section 568 only allows such applications to be made "during the trial". Here, no trial has commenced. The court has only reached the stage of conducting a pre-trial review, getting the matter ready for trial and listing the trial. The application is therefore not properly before the court.

SECOND REASON: NEED FOR SEPARATE TRIALS NOT DEMONSTRATED

7. Though the Section 568 application is not properly before the court I have given consideration to whether the court has power, before a trial has commenced, to order separate trials for co-accused who have been committed for trial regarding the same alleged offence. I consider that the court does have this power.

8. The National Court is, under Section 166 of the Constitution, a court of unlimited jurisdiction. It has an inherent power under Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case. As an order for separate trials is about administration of criminal cases, rather than substantive questions of guilt or innocence of any of the co-accused, the court will not be in danger of exceeding the limits of Section 155(4). It was recognised by the Supreme Court in Wemp Mapa and Others v The State [1979] PNGLR 135 that a trial judge has a broad discretion during a trial to order separate trials. That can be done either under Section 568 (on application by an accused) or pursuant to the inherent discretion of the trial judge (on application by the State or on the trial judge’s own initiative). It follows that a Judge has the power, before a trial commences, to order separate trials if the Judge considers that the interests of justice require it.

9. In exercising the discretion, the Judge should be guided, in the first instance, by the views and intentions of the Public Prosecutor. The reason I say this is that the Public Prosecutor is the independent constitutional office-holder, whose primary functions include under Section 177(1) of the Constitution the control and exercise of the prosecution functions of the State. The Public Prosecutor’s job is to consider, in light of Sections 525 and 526 of the Criminal Code, what matters should be prosecuted on indictment. The court might unwittingly encroach on the Public Prosecutor’s independence if it were not to give special consideration to the Public Prosecutor’s view on whether separate trials should be ordered. If the Public Prosecutor opposes an application for separate trials, the onus should be on the applicants to show that separate trials are necessary to enforce their constitutional rights to, amongst other things, the full protection of the law and a fair hearing within a reasonable time by an independent and impartial court (as per the Constitution, Sections 37(1) and 37(3)).

10. In the present case, the Public Prosecutor has opposed the application, and the applicants have failed to demonstrate that separate trials are necessary. Mr Gene’s submission that their right to a fair trial might be prejudiced as it is likely that they would be shifting blame to their co-accused was vague and poorly articulated.

11. To the extent that this was an application seeking to invoke the inherent power of the National Court before the commencement of a trial, to order separate trials, it is refused.

OTHER MATTERS

12. Before closing, there are three other matters worth mentioning, which might be of assistance to the present applicants or to anybody about to face trial who is considering making an application of this sort.

13. First, it would seem that the most appropriate manner in which to make such a pre-trial application would be to rely on Section 57 of the Constitution. This is the provision that allows an interested person to apply to the National Court or the Supreme Court for orders to enforce their constitutional rights.

14. Secondly, if the application for separate trials is to be made during the trial – under Section 568 – the application should be made formally, by originating summons, under the Criminal Practice Rules, Order 1, Rule 11 (Tom Longman Yaul v The State (2005) SC803).

15. Finally, it would seem that, in the present case, if the State goes ahead with the proposal of conducting a joint trial, the applicants will be at liberty to make a fresh application, under Section 568 of the Criminal Code, during the trial. By that stage, their lawyer might be better prepared and be able to demonstrate to the trial judge good reasons for there being separate trials.

RULING

(1) The application for separate trials is refused.

(2) The joint trial of the four co-accused shall proceed at a time and place to be set.

Ruling accordingly.

____________________________

Paul Paraka Lawyers: Lawyer for the applicants
Public Prosecutor: Lawyer for the State