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State v Kapris [2010] PGNC 124; N4119 (12 August 2010)

N4119

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 251 0F 2010 &
1455, 1457, 1433, 1444, 1447, 235 & 287, 78 & 79,
1459, 1431, 76 & 77, 239, 237 & 235 OF 2009

THE STATE

V

WILLIAM NANUA KAPRIS
(1st accused),

JACOB PENINGI OKIMBARI
(2nd accused),

COLLIN MASILO
(3rd accused),

BONNY SOLOMON
(4th accused),

JOHNNY GUMAIRA
(5th accused),

DAMIEN INANEI
(6th accused),

KITO ASO
(7th accused),

JOYCE MAIMA
(8th accused),

KIA WARREN
(9th accused),

BOBBY SELAN
(10th accused),

RUBEN MICAH
(11th accused),

ISABELLE KIVORE
(12th accused),

ELVIS BALA AKA
(13th accused) &

PETER ALLAN POPO
(14th accused)

Madang: Cannings J
2010: 12 August

RULING

CRIMINAL LAW – practice and procedure – application for separate trials – Criminal Code, Section 568 (separate trials) – discretion of trial Judge.

After arraignment, in which one of 14 accused pleaded guilty to two charges and not guilty to others and all other accused pleaded not guilty to all charges, the accused who pleaded guilty applied to the court for an order that he be tried separately from the other 13. The application was made under Section 568 of the Criminal Code and supported by all other accused. It was opposed by the Public Prosecutor.

Held:

(1) 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 accused to, amongst other things, the full protection of the law and a fair hearing within a reasonable time by an independent and impartial court.

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

Cases cited

The following cases are cited in the judgment:

The State v Atu Kote [1978] PNGLR 212
The State v Moses Manwau CR No 1452 of 2006, 09.11.09
The State v Paul Loi & 3 Others (2009) N3590

APPLICATION

This is an application by an accused that he be tried separately from 13 other accused.

Counsel

P Kaluwin & M Pil, for the State
D Dotaona, for the 1st accused
A E Raymond, for the 2nd, 3rd, 4th, 5th, 6th, 9th & 14th accused
M Mwawesi, for the 7th, 12th & 13th accused
S Daniels, for the 8th, 10th & 11th accused

12 August, 2010

1. CANNINGS J: This is a ruling on an application by the 1st accused, William Nanua Kapris, to be tried separately from the other 13 accused. The application is made 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.

The application is supported by the other 13 accused, and opposed by the State.

2. The application was made after arraignment, ie after commencement of the trial. The 1st accused pleaded guilty to the two charges on the first of three indictments. He pleaded not guilty to the 27 charges on the second indictment. He is not facing any charges on the third indictment. All other accused pleaded not guilty to all charges on all three indictments.

3. The court was informed this morning – contrary to the indication given yesterday – that the 1st accused would not be called as a State witness in the trial of the other accused. That being the case, the normal practice is that the court puts to one side the guilty plea and revisits the question of conviction and sentence of the accused who has pleaded guilty at the end of the trial (The State v Atu Kote [1978] PNGLR 212). That is, the trial continues – there is no separate trial.

4. Are there good reasons for departing from that practice in this case? All defence counsel submit that their clients' interests will be prejudiced but I do not consider that they will be. Under the Constitution each accused has a right to a fair trial within a reasonable time before an independent and impartial court. That right will not be infringed by a joint trial.

5. As I said in The State v Paul Loi and Others (2009) N3590 in exercising its discretion under Section 568 of the Criminal Code whether to direct that separate trials be held the court should be guided in the first instance, by the views and intentions of the Public Prosecutor. 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)).

The accused have failed to convince me that separate trials are necessary.

6. There are three other matters that I have taken into account. First, the time and expense involved in mounting separate trials. Secondly, this is a very late application. Ample time has been given to all of the accused to sort out their respective positions. The pre-trial process has been ongoing for five months. Thirdly, this is not a scenario where one or more of the accused is ready to proceed but others are not. It is to be distinguished from the case of The State v Moses Manwau CR No 1452 of 2006, 09.11.09, a Wewak case in which I upheld an application by the accused, Dr Manwau, for separate trials where only he and his counsel were ready to proceed but the other two accused and their counsel were not.

ORDER

(1) The application for separate trials is refused.

(2) A joint trial of all 14 accused on the first three indictments shall proceed forthwith.

(3) The guilty plea of William Nanua Kapris on both counts on the first indictment shall remain in place and the court will revisit those two counts at the end of the trial.

Ruling accordingly.

___________________________

Public Prosecutor: Lawyer for the State
Dotaona Lawyers: Lawyers for the 1st Accused
Public Solicitor: Lawyer for the 2nd, 3rd, 4th, 5th, 6th, 9th & 14th Accused
Public Solicitor: Lawyer for the 7th, 12th & 13th Accused
Daniels & Associates: Lawyers for the 8th, 10th & 11th Accused