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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 402 OF 2004
&
CR No. 835 OF 2005
THE STATE
V
JIMMY MOSTATA MALADINA
&
HERMAN JOSEPH LEAHY
Waigani: Kirriwom, J
2010: 05th & 12th July
CRIMINAL LAW – Practice and Procedure – Separate indictments – Same offences – Same charges – Whether separate or joint trial – Application by State to combine both trials – Criminal Code, ss.531, 532 & 564
PRACTICE AND PROCEDURE – Ex officio indictment – whether good reason to order separate trial – interest of justice paramount - trial judge's exercise of discretion – Criminal Code, s.265
The two accused Herman Joseph Leahy and Jimmy Mostata Maladina are separately indicted with one count of conspiracy and one count of misappropriation amounting to K2m property of the Board of Trustees of the National Provident Fund.
It is alleged that they conspired with others to defraud NPF and stole K2m by fraudulent means and thereafter spent the money for their own use and for the use of others.
As one accused was indicted pursuant to section 526 of the Code following refusal to commit by the Committal Court, both accused are entitled to be tried separately as they are indicted separately, but the State applied to have both their trials combined and resisted by the accused, held:
Cases cited:
PNG Cases
The State v Herman Joseph Leahy [2008] N3570
Herman Joseph Leahy [2009] SC1018
State v Leo Nimo [1980] PNGLR 129
State v Elias Subang (No. 1) (1976) PNGLR 141
Overseas Cases
Regina v Hayter (2005)1 WLR 605
R v Assim [1966] 2 QB 249
Brennan v R [1936] HCA 24; (1936) 55 CLR 253
R v Moghal (1977) 65 Cr App R. 56
R v Lake (1976) 64 Cr App R 172
R v Grondkowski and Malinowski (1946) 1 KB 369; (1946] All ER 559
R v Miller (1952) 2 All ER 667; (1952) 36 Cr App R 169 at 173-5
R v Stuart and Finch [1974] Qd R 297.
Crane v Director of Public Prosecutions (1921) 2 AC 299
Counsel:
C. Sambua, for the State
J. Griffin QC, for Jimmy Maladina
I. R. Molloy, for Herman Leahy
12th July, 2010
1. KIRRIWOM, J: This is an application by the prosecution to combine or lump the hearing of charges of conspiracy and misappropriation against the two accused Jimmy Maladina and Herman Leahy in a single or joint trial so as to save time, energy, resources, funds and for purposes of convenience and public interest. The application is strongly opposed by both accused.
2. The points that are fundamental of noting for purposes of this application are that:
3. Indictment against Jimmy Maladina was presented on 11th August 2008 charging him with conspiracy to defraud NPF Board of Trustees in the sum of K2.65million pursuant to section 407 of the Criminal Code and a further charge of misappropriation or dishonestly applying to his own use or use of another, the said K2.65million property of NPF Board of Trustees.
4. The indictments in respect of both accused are set out below:
INDICTMENT OF JIMMY MOSTATA MALADINA
Presented to Justice Kirriwom on the 11th August 2008 at Waigani National Court
COUNT 1: JIMMY MOSTATA MALADINA of MENA'ALA, ESA'ALA, MILNE BAY PROVINCE stands charged that he, between the 1st day of November 1998 and the 10th day of October 2000, at Port Moresby, National Capital District in Papua New Guinea, did conspire with HERMAN JOSEPH LEAHY, HENRY FABILA, SHUICHI TANIGUCHI, KAZU KOBAYASHI and other persons to defraud the NATIONAL PROVIDENT FUND BOARD OF TRUSTEES of the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND KINA (K 2, 650, 000.00) by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, National Capital District. (S.407 of the CCA)
COUNT 2: AND ALSO THE SAID JIMMY MOSTATA MALADINA further stands charged that he, between the 26th day of February 1999 and the 30th day of July 1999 at Port Moresby, National Capital District in Papua New Guinea, dishonestly applied to his own use and to the use of others the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND KINA (K 2, 650, 000.00), the property of the NATIONAL PROVIDENT FUND BOARD OF TRUSTEES. (S. 383A of the CCA)
EX OFFICIO INDICTMENT OF HERMAN JOSEPH LEAHY
Presented to Justice Kirriwom at Waigani National Court
COUNT 1: HERMAN JOSEPH LEAHY of KOUKOU, PORT MORESBY, NATIONAL CAPITAL DISTRICT stands charged that he, between the 1st day of November 1998 and the 10th day of October 2000, at Port Moresby, National Capital District in Papua New Guinea, did conspire with JIMMY MOSTATA MALADINA, HENRY FABILA, SHUICHI TANIGUCHI, KAZU KOBAYASHI and other persons to defraud the NATIONAL PROVIDENT FUND BOARD OF TRUSTEES of the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND KINA (K 2, 650, 000.00) by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, National Capital District.
COUNT 2: AND ALSO THE SAID HERMAN JOSEPH LEAHY further stands charged that he, between the 26th day of February 1999 and the 30th day of July 1999 at Port Moresby, National Capital District in Papua New Guinea, dishonestly applied to his own use and to the use of others the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND KINA (K 2, 650, 000.00), the property of the NATIONAL PROVIDENT FUND BOARD OF TRUSTEES.
5. The prosecution application for joint trial is supported by an affidavit of Jack Pambel, Acting Public Prosecutor sworn 7th August 2008 and deposes to the following:
AFFIDAVIT IN SUPPORT BY JACK PAMBEL
1. I am the Acting Public Prosecutor of Papua New Guinea and as such I am able to depose to the contents of this affidavit.
2. The matter of Herman Leahy and Jimmy Maladina, relating to the alleged defrauding of the National Provident fund is criminal matter, hence carriage by the Office of the Public Prosecutor.
3. Jimmy Maladina was committed and will be tried in the National Court for the following offences:
(a) S.407 (b) - Conspiracy to defraud.
(b) S.383(1)(a) - Misappropriation
4. Herman Leahy was indicted by way of ex-officio and will be tried in the National Court for the following offences:
(a) S.407 (b) - Conspiracy to defraud.
(b) S.383(1)(a) - Misappropriation
5. The State basically alleges that the offences under which the accused persons are charged with arise from the similar set of facts. It is alleged that Jimmy Maladina demanded money from Kumagai Gumi and in order to facilitate the transfer of such monies, Herman Leahy assisted him by misleading the National Provident Fund Board members into believing that these monies were for legitimate purposes.
6. The State also alleges that the Accused persons either prepared or gave orders for the preparation of false documentation that would make the transfer of the said monies look legitimate.
7. The State further alleges that the accused persons put the said monies to their own personal and private use.
8. In all the State alleges that all the events mentioned above in paragraphs 5, 6 and 7 are closely related and are a series of connected events that led to the commissioning of the offences stated in paragraphs 3 and 4, therefore warrant a joint trial.
9. There is nothing exceptional as to why the trials should be split. In fact there are good reasons why these accused should be tried together – the same issues will be canvassed, same witnesses, including overseas witnesses and the utilization of valuable resources.
10. I make the above believing such to be true to the best of my knowledge.
6. There was strong objection raised as to the State's reliance on this affidavit which I have given due consideration. To an extent there are some merits in the criticisms of the defence in relation to the style of affidavit deposed to by Mr. Pambel which falls in the same vein as that of Mr. Sambua that I was critical of when it was filed in support of the amendment application in respect of the accused Herman Joseph Leahy – see The State v Herman Joseph Leahy [2008] N3570 (supra).
7. The above deposition taken from Jack Pambel per se does not support this application for joint trial except asserting generally an opinionated narrative of facts deduced from facts as summarized and attached to his affidavit marked as annexure A. It was submitted that I must not rely on this evidence as the basis for deciding this application. No authority was provided for this proposition.
8. While I accept the basis upon which these objections are mounted, I am however satisfied that based on the annexures to the affidavit, there are strong and cogent reasons for me to not disregard the evidence therein supplied as they relate to the real issue to be addressed in this application. Although the concerns raised are valid, to judge this case on the niceties of the procedure alone would not be in the best interest of doing justice to everyone.
9. This court is mandated by law to go beyond those facts, however superficial or generic in the narrative of the deponent, by closely examining those facts set out in the attachments. And the scenario that unfolds when one closely peruses the 18 pages of statement of facts (annexure A) that the prosecution relies on as laying the basis of these charges of conspiracy and misappropriation against both accused links the two as acting in concert to defraud the National Provident Fund, one being the Chairman of the Board of National Provident Fund and the other being the Secretary to the Fund, both lawyers, the Chairman being a partner in the law firm Carter Newell and the other was also the in-house lawyer for the Fund apart from being the Corporate Secretary.
10. Over a period of two years both men, holding their respective positions in relation to the National Provident Fund, a major shareholder in the construction of a high rise building in downtown Port Moresby called NPF Tower during the construction period but what has now since come to be known as Deloitte Tower, and together with others including Henry Fabila, Shuichi Taniguchi and Kazu Koboyashi conspired to defraud the National Provident Fund.
11. And the allegation was that during the contract period of the construction of the tower by Kumagai Gumi company Limited whose General Manager was Shuichi Taniguchi, the company awarded the contract at K45, 447,388.00, Kumagai Gumi ran into financial difficulties as the buying power of the kina fell drastically due to devaluation of the kina brought about by the Asian financial crisis. Kumagai Gumi requested for increase in the contract price to K50m which drew no response from NPF and Kumagai Gumi threatened to shut down operations.
12. An NPF Board resolution of 22nd December 1998 approved a sum of K50.5m for the completion of the project. There was a counter proposal by Kumagai Gumi of K51.3 million.
13. It is alleged that while these negotiations were going on between NPF, Pacific Architects Consortium Pty Ltd (PAC) and Kumagai Gumi, the accused Jimmy Maladina was appointed a member of the NPF Board and eventually ascending to the Chairmanship of the Board. As the Chairman of the Board, it is alleged, the accused began having direct contact with Taniguchi where he requested Taniguchi's cooperation to have included in the revised contract price an additional amount that Taniguchi will pay to the accused in accordance with given instructions for the conveyance of the money.
14. Consequently, it is alleged, in the NPF Board Meeting of 8 February, 1999 which was chaired by the accused Jimmy Maladina as Chairman and also present was the accused Herman Leahy as the Corporate Secretary/Principal Legal Counsel) the Board approved on the Corporate Secretary's briefing a sum of K54 million to be paid to Kumagai Gumi which was far in excess of K51, 545,646.00 earlier requested.
15. The difference of the sum between K54m and K51, 545,646.00 the prosecution alleges is the amount that was not approved by the Board because both accused conspired to conceal this fact from the Board.
16. State further alleged that the accused Jimmy Maladina was paid these monies from this alleged conspiracy by Kumagai Gumi on six separate installments, four occasions through a third party called Ken Yapane Associates where a total sum of K2, 095,843.43 was remitted and last two payments were made through Carter Newell law firm trust account where a total sum of K2, 650,00.00 was remitted in favour of the accused Maladina.
17. Relying on the facts summarized above for purpose of this application, I am led to the conclusion that the factual circumstances pleaded in the annexures provide enough evidence for the court to consider the primary and ancillary issues pertaining to this case based on the principles highlighted by various case law authorities on the question of joinder. At this juncture all that I am concerned about is whether there is evidence upon which I can direct the course of the substantive trial on this question of joint trial.
Issues
18. The issue before me is whether the factual and other circumstances of this case justify a joint trial of the two accused?
Related issues
19. Other related issues include:
20. Counsel for the State referred to a large volume of cases originating from common law that provide some very persuasive authorities for the court to order a joint trial in this case.
21. From these body of decided cases the following general principles emerge which I summarize as follows:
22. Counsel for the State submits that in the light of those principles and the criteria developed in numerous cases cited both locally
and overseas on what ought to be taken as the relevant factors and considerations that must guide the court in arriving at its ruling,
bear the following in mind:
This will be a lengthy and expensive trial and holding two separate trials will impose unnecessary burden on court time and the public
purse.
23. The two accused are separately indicted on two different indictments; one was committed to stand trial by the District Court where as the other was discharged by the District Court and an ex officio indictment was presented against him. Are these sufficient reasons for the court to direct two separate trials as opposed to a single joint trial?
24. I raised the question of joint-trial in situation where both accused were indicted in the one indictment given that the charges are the same and arise out of the same set of circumstances and all the witnesses are the same and the legal issues are said to be the same. If that were the case, as pointed out by Mr. Molloy of Counsel for Mr. Leahy that it would be them seeking leave of the court to separate their cases from each other so that each of them is tried separately.
25. Counsel for Jimmy Maladina, John Griffin QC and Counsel for Herman Leahy, Mr. Ian Molloy each submitted that there can be no joinder of accused persons in a joint trial where two separate indictments were presented at separate times albeit containing much the same or similar charges. They say that this is prohibited in common law and this common law position is now codified into the Criminal Code of Papua New Guinea. The Code makes this clear they submit that in the circumstances of this case where one accused was committed to trial and the other was discharged but was charged by an ex officio indictment, these two indictments cannot be heard together in the one trial except separate trials.
26. The relevant laws that deal with joinder of charges and joinder of accused are found in the Criminal Code of Papua New Guinea sections 531 and 532 which also have corresponding equivalence in the Queensland Criminal Code with useful discussions on those sections in the commentaries by the learned author of Carter's Criminal Law of Queensland. Because our Criminal Code is founded on the original Queensland Criminal Code, case anecdotes to these sections have persuasive authority and valuable to guide this Court in its interpretation and application of the corresponding sections of the law in our Criminal Code.
27. Sections 531 and 532 provide:
"531. Joinder of charges: General rules.
(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.
(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—
(a) by the same acts or omissions; or
(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,
charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.
(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may—
(a) require the prosecutor to elect on which of the several charges he will proceed; or
(b) direct that the trial of the accused person on each or any of the charges be had separately.
(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.
532. Joinder of charges: Special cases.
(1) In an indictment against a person for stealing money, the accused person may be charged and proceeded against for the amount of a general deficiency, notwithstanding that the general deficiency is made up of any number of specific sums of money the taking of which extended over any space of time.
(1A) In an indictment against a person for misappropriation of property he may be charged and proceeded against for the amount of a general deficiency even though—
(a) any number of specific applications of property have resulted in the general deficiency; and
(b) such applications of property have extended over any space of time; and
(c) the property applied belongs to different persons and has come into the possession or control of the accused person at different times and subject to different trust, directions, conditions or duties to account.
(2) In an indictment against a person for stealing, he may be charged with two or three distinct acts of stealing the property of the same person, committed by him within the space of six months from the first to the last of such acts.
(3) If on the trial of a person charged with stealing it appears that property alleged to have been stolen at one time was stolen at different times, the prosecutor is not for that reason required to elect on which act of stealing he will proceed, unless it appears that—
(a) there were more than three acts of stealing; or
(b) more than six months elapsed between the first and the last of such acts.
(4) In a case referred to in Subsection (3), the prosecutor must elect to proceed in respect of two or three acts of stealing that appear to have taken place within the period of six months from the first to the last of the acts.
(5) Charges of stealing any property and of receiving the same property, or any part of it, knowing it to have been stolen, may be joined in the same indictment, and the accused person may, according to the evidence, be convicted—
(a) of stealing the property; or
(b) of receiving, the property or any part of it, knowing it to have been stolen.
(6) Subject to Subsection (7), when an indictment referred to in Subsection (5) is preferred against two or more persons—
(a) all or any of the accused persons may be convicted of stealing the property or of receiving it, or any part of it, knowing it to have been stolen; or
(b) according to the evidence, one or more of them may be convicted of stealing the property, and the other or others of them of receiving it, or any part of it, knowing it to have been stolen.
(7) If on an indictment referred to in Subsection (6) the court finds specially that—
(a) the accused person, or all or any of the accused persons, when the indictment is preferred against two or more persons, either stole the property, or received it, or any part of it, knowing it to have been stolen; and
(b) it is unable to say which of those offences was committed by such person or persons as the case may be,
such person or persons are not for that reason entitled to be acquitted, but the court shall enter a conviction for the offence for which the lesser punishment is provided.
(8) Any number of persons charged with—
(a) committing or procuring the commission of the same offence, although at different times; or
(b) being accessories after the fact to the same offence, although at different times; or
(c) receiving, although at different times—
(i) any property that has been obtained by means of—
(A) a crime or misdemeanour; or
(B) an act that if it had been done in Papua New Guinea would be a crime or misdemeanour and that is an offence under the laws in force in the place where it was done; or
(ii) any part of any property so obtained,
may—
(d) be charged with substantive offences in the same indictment; and
(e) be tried together,
notwithstanding that the principal offender or the person who so obtained the property—
(f) is not included in the same indictment; or
(g) is not amenable to justice.
(9) Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together."
28. But I also find section 568 useful not because of what the section expressly states with respect to the need for separate trials in those circumstances warranted by the facts of the case, but moreso by reason of what the case authorities have decided against separate trials where two or more accused are charged for the same offence. And I find much help in Carter's Criminal Law of Queensland where the learned author summarized some leading cases in the commentary on section 606 which is the Queensland Criminal Code equivalence of section 568.
29. Section 568 reads:
"568. Separate trials.
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."
30. And the commentary begins by stating the law as established in Brennan v R [1936] HCA 24; (1936) 55 CLR 253 which is simply reaffirming the common law that the question whether persons charged conjointly should have a separate trial is one for the discretion of the trial judge. Only in very exceptional circumstances should separate trial be ordered where two or more persons are charged with the same offence: R v Moghal (1977) 65 Cr App R. 56. And a reason forcefully advanced by Mr. Sambua in his submission was the one to ensure that there is only one outcome or verdict in respect of all persons charged together for the same offence. This is founded on common law and this principle is set out in R v Lake (1976) 64 Cr App R 172.
31. The common law position is clear where the Crown alleges a common purpose in two or more persons to commit the offence charged prima facie they should be tried together: see R v Grondkowski and Malinowski (1946) 1 KB 369; (1946] All ER 559. For the same reasoning and consistent with common sense the law has been long recognized that on charges of conspiracy, justice ordinarily requires that the whole matter should be tried as one case and it needs a very strong and exceptional case before it is split up in two separate trials: R v Miller (1952) 2 All ER 667; (1952) 36 Cr App R 169 at 173-5.
32. The defence position as to why the trials of both accused must remain separate as they have been indicted separately based on the manner in which both accused are charged or indicted, which has already been subject of a separate proceeding for the accused Herman Joseph Leahy, is not so obvious. The law is settled that where one accused blames the other in case where two or more persons are charged together for the same offence, that is no reason for separating their trials. It was not suggested that this was the case here.
33. The Criminal Court of Appeal in England in R v Grondkowski and Malonowski (supra) said that in exercising his discretion the judge has to consider the interests of justice as a whole and not the interest of the prisoner only. It is also suggested that if interests of justice required that trials of co-accused must be separated, such application can be entertained when such circumstance arises and not before: see R v Stuart and Finch [1974] Qd R 297.
34. Courts have always recognized that "questions of joinder, be they of offences or offenders, are matters of practice on which the court has, unless restrained by Statute, inherent power to formulate its own rules and to vary them in the light of current experience and the needs of justice"– Sachs, J in R v Assim [1966] 2 QB 249.
35. So the common law position in England is no different to those jurisdictions that have adopted the Criminal Code. There has been sustained development in the legal principles by the courts throughout the commonwealth without discrimination as to the source of the laws called into question or considered in resolving issues.
36. Only one decided case with similar facts as this was referred by counsel on both sides in their submissions. This is the case of State v Leo Nimo [1980] PNGLR 129 in which two accused were charged with the same offence but on two separate indictments. Both were jointly tried without any objection being raised. After the trial had progressed some length, objection was raised by defence counsel seeking to stop the trial proceeding. Miles J held that the trial had proceeded on an irregularity but there was no substantial miscarriage of justice done and as such the proceedings cannot be annulled. The trial judge went on to ultimately acquit one and convicted the other.
37. I have given careful considerations to the submissions by Counsel and the overall circumstances of the whole case and I am of the view that justice will best be served by these two trials being heard jointly. No exceptional circumstances have been demonstrated before me for these two trials being separated notwithstanding that they are indicted separately. This is a legalistic argument that cannot outweigh the need for the State to bring this matter to completion by adopting the most efficient means possible to give both accused a fair trial as guaranteed under the Constitution.
38. In my view the following considerations justify a joint trial:
39. For these reasons we have pre-trial rules and procedures in our criminal practice and procedure tailored and suited to our local circumstances which guide the practice here. With the current caseloads that the National Court nationwide is forced to carry, the question of joint trial or separate trial is very critical and significant for purposes of due administration of justice while the court tries to dispense justice to everyone.
40. I ask myself do we have the luxury of time, money and resources to afford multitude or multiplicity of trials in a single matter where two or more persons are alleged to be involved? On present indications we don't as evident by large volume of backlog of cases in both crime and civil track. And I ask myself the same question that Saldanha J asked in State v Elias Subang (No. 1) (1976) PNGLR 141: "Can a poor country such as ours afford the expense of a multiplicity of trials when all the offences arising out of the same facts could be dealt with at one trial?"
41. Judge Saldanha was faced with a similar issue over thirty years ago in our court and thirty four years on we are faced with the same question. While the years moved on but the problem noted by His Honour has not. In fact it is far worse now than that time and the courts are still battling with this issue today, hence the necessity for rules of practice and procedures.
42. In my view justice of the case will be best served with a joint trial in the matter than two separate trials. And it is immaterial that the accused are separately indicted. I am aware that there are common law cases where the Courts have overturned convictions where courts have proceeded to convictions of multiple offenders charged with the same offences but tried on separate indictments and prosecution was done jointly for different reasons including inadvertence or lack of notice such as Crane v Director of Public Prosecutions (1921) 2 AC 299. But I remind myself that times have changed and circumstances have changed and the law is always changing with the tide of change. While I accept strong defence argument that there cannot be any joint trial on separate indictments because the Code makes no provision for joint trial, issues of trial practice and procedure today are part and parcel of case management system of the whole criminal justice administration which are dictated by, inter alia, volume of cases, manpower and resources. Some of the very fine strictly legal principles that were developed in the eighteenth and nineteenth centuries in English and Australian courts are no longer applicable today where money and resources dictate the effectiveness of the courts.
43. And I am fortified in the conclusion I have reached by the remarks of Lord Steyn when giving his opinion in the House of Lords case of Regina v Hayter (2005)1 WLR 605:
"The practice favouring joint criminal trials is clear. It has been accepted for a long time in English practice that, subject to a judge's discretion to order separate trials in the interests of justice, there are powerful public reasons why joint offences should be tried jointly: R v Lake (1976) 64 Cr App R 172, 175, per Widgery CJ. While considerations of the avoidance of delay, costs and convenience, can be cited in favour of joint trials this is not the prime basis of the practice. Instead it is founded principally on the perception that a just outcome is more likely to be established in a joint trial than in separate trials. The topic is connected with public confidence in [jury] trials. Subject to a judge's discretion to order otherwise, joint trials of those involved in a joint criminal case are in the public interest and are the norm. This practice hardly requires citation of authority but in recent times the practice has been affirmed by the Privy Council in Lobban v The Queen (1995) 1 WLR 877, 884B-D and by the House of Lords in R v Randall [2003] UKHL 69; (2004) 1 WLR 56, para 16, 61F."
44. Applying this same reasoning in this case, the facts of this case, lead me to conclude with unreserved view that this is a paradigm case for a joint trial regardless of how the two accused separated at the close of the committal hearing and brought together again for this trial. Therefore, as far as the ex officio indictment in respect of Herman Joseph Leahy is concerned, that is no excuse or reason for opposing a joint trial with the accused Jimmy Maladina. And the fact that Jimmy Maladina was committed alone and is indicted alone is, in my view, no excuse that his trial and that of Herman Leahy cannot be joined. Interest of justice will be greatly enhanced in this case in favour of both accused by a joint trial and both accused are accorded speedy trial under the Constitution.
45. As I said earlier, there have been no exceptional circumstances demonstrated by the accused as to why each must have a separate trial as such neither of them is going to be prejudiced in their defence in a joint trial.
46. Both accused are ordered to stand trial jointly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Young & Williams Lawyers: Lawyers for the First & Second Respondents/Defendants
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