N9227

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 163 OF 2018

THE STATE

V

SOLOMON SMITH

Lae: Murray J
2021: 10th September, 05th & 8th October

CRIMINAL LAW – practice and procedure – Application for leave to call additional witnesses - whether section 535 of the Criminal Code applicable. 

CRIMINAL LAW – practice and procedure – Application for leave to call additional witnesses – considered under Order 1 Rule 12 Criminal Practice Rules 1987 – evidence of witness to be called – has formed part of hand up brief- no prejudice to the defence – Court has power to call witnesses for just decision.

Cases Cited

The State vs. Jeffrey Ava [2010] PGNC 180; N4161
The State vs. Raphael Kewangu [2002] N2189
The State vs. Keake [2000] N2003

Counsel

Mr. J. Done, for the State
Mr. J. Huekwahin, for the Defence

RULING

8th October, 2021

1.	MURRAY J: 	The accused, Solomon Smith was indicted on 7th September 2021 with 1 count of murder.  His trial commenced soon after the indictment was presented.  On day 2 of the trial, Mr. Done for the State without first filing any application, applied for leave to add an additional witness. I then adjourned to 05th October 2021 for hearing of the application.

Preliminary Matter

2.	The application was made under Section 535 of the Criminal Code Act.  The said provision reads: 

535. AMENDMENT OF INDICTMENTS.

(1) If on the trial of a person charged with an indictable offence– 
(a) there appears to be a variance between the indictment and the evidence; or
(b) it appears that–
(i) any words that ought to have been inserted in the indictment have been omitted; or
        (ii) any words that ought to have been omitted have been inserted, the court may, if it thinks that– 
(c) the variance, omission or insertion is not material to the merits of the case; and 
(d) the accused person will not be prejudiced in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.
 
(2) When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form. 

(3) If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.

3.	Although no issue was taken by Mr. Huekwahin on whether this was an appropriate jurisdictional basis for an application for leave to call an additional witness, I am of the view that it is not. Section 535 is, in my view intended for purposes of amending a charge to conform with the form as prescribed under Section 528 of the Criminal Code Act.  The list of witnesses on the Indictment does not form the charge or even part of a charge.  It is what it is.  A list of witnesses. In other jurisdictions, the list is provided separately. In our jurisdiction, the list is on the front side of the indictment. It seems, and I stand to be corrected, there is no legislative basis for having a list on the indictment. Nor is it a rule in the Criminal Practice Rules. However, it has been the practice for convenience and continues to be so. Therefore, as it is, a list of witnesses is not capable in my view, of being amended pursuant to Section 535 of the Criminal Code Act. The only way to bring in a witness not listed on the list of indictment is to apply for leave and the appropriate jurisdictional basis to do that in my view is, Division 4 of Order 1 of the Criminal Practice Rules 1987, which reads:
	
Division 4 – Applications to the Court

11.	All applications allowed under the Code, Probation Act 1979 or by these Rules shall be made by Originating Summons.

	12.	The Court may dispense with compliance with Rule 11 where it is in 		the interests of justice so to do.

	13.	Where an application is heard under Rule 12 the Court may require 	such application be later reduced to writing.

4.     The application in this case was made orally.  As there was no issue with that, I heard the application as if it was brought under Order 1 Rule 12.

Application

5.	The application is for leave to call an additional witness whose name is not on the list of witnesses listed on the front side of the Indictment.  The application is opposed by Mr. Huekwahin.

Issue

6.	The issue is whether/not leave should be granted to the State to call an additional witness.

Submissions

7.	It is Mr. Done’s submission that the witness he is seeking leave to call had already given a statement at the investigation stage and it was part of the Hand Up Brief (HUB) in the Committal Proceedings before the Grade 5 Magistrate’s Court.  The HUB was served on the Defence counsel soon after the accused was committed to stand trial in this Court.  The witness to be called is not new.  Thus, the defence cannot say, they are caught by surprise.  As State bears the evidentiary burden to prove its case beyond reasonable doubt, it is in the interest of justice that leave be granted to call the additional witness.  

8.	It was also submitted that, as the State has not closed its case, the Court can exercise its discretion to grant leave for the State to call the additional witness to give oral testimony.  This is not a case of an ambush but rather an oversight on the State’s part.  

9.	Mr. Huekwahin, counsel for the Defendant, in objecting to the State calling the additional witness, submitted that:  based on the list of witnesses captured in the indictment, the defence drew its mind to the kind of evidence expected from them and cross examined them putting its case to them in cross-examination respectively.  Focus and concentration were not directed to the statement of Gideon Guna, the witness, the State intends to include.  Such move by the State Mr. Huekwahin submits, will amount to recent inventions and so the Court should not allow that witness to give evidence.

10.	It was also submitted that the opportunity for the defence to put its case relating to the kind of evidence that witness will be giving is missed as the mind of the defence is not focused on the statement of Gideon Guna given the fact that his name was not included on the indictment.  To grant leave to the State to call this witness would also amount to an unfair trial.  Therefore, this Court must refuse leave.

Consideration of Submission and Ruling

11.	In support of his submissions, Mr. Done referred to the case of The State vs. Jeffrey Ava [2010] PGNC 180; N4161 (16th September 2010). Although, that case concerned the issue of whether/not leave should be granted to amend the charge on the Indictment, it does offer some assistance.  The following passage per Kariko J at paragraph 12 which relates to an uncontested issue is helpful:  

“the defence did not take issue on the third amendment sought by the State, and correctly so.  Where a witness to be called by the prosecution has not given evidence in the committal proceedings, the prosecution is obliged to provide that witness’s statement to the defence within reasonable time before trial”. 

12.		Mr. Huekwahin on the other hand referred the Court to the case of The State vs. Raphael Kewangu [N2189].  In that case, the Court, in considering evidence of two (2) last minute witnesses of the State whose evidence were not in the hand up brief because they were not persons from whom statements were obtained from to bring the initial charges against the Defendant, held inter alia that:  

1.	Evidence not forming part of the earlier State case or hand up brief but called in an attempt to build a case against the accused when the 	earlier evidence failed to do so, amount to recent inventions and 	therefore unreliable in much the same way a belated raising of the defence of alibi by an accused is.

2	It would amount to a breach of s.37(3) and (4) of the Constitution to allow evidence not previously drawn to the attention of an accused person to enable 	him to determine whether to plead guilty or not guilty to a charge against him.

13.	Although that case can be distinguished from the case before me, the judgment by Kandakasi J (as he then was), is also very helpful.

14.		From that judgement three (3) things are abundantly clear to me: First, this Court can grant leave to the State seeking to call additional witnesses if the witness to be called was a person from whom statements were obtained from to bring the initial charges against the Defendant. 

15.	Second, if the State is seeking to call a witness whose evidence did not form part of the earlier State case or hand up brief, but is called in an attempt to build a case against the accused when the earlier evidence failed to do so, amount to recent inventions.

16.		Third, if the evidence of the witness to be called did not form part of the earlier State case or hand up brief, it is incumbent on the State to give the defence prior notice of the availability of additional witnesses and the evidence which are critical against an accused person.  If the State fails to give such notice, it would amount to an unfair trial.  

17.		The third point which I highlighted that emanated from Kandakasi J’s judgment is also the point made by Kariko J in the case of State vs. Ava (supra).

18.		What is a fair trial means, the accused must be given ample opportunity to test the case against him in the normal way by way of a trial and before that, he must be given ample opportunity to prepare has defence and come to Court and present it.  At the same time, a Court must be mindful of the fact that, any party before a Court should not be shut out from putting into evidence all the evidence he proposes to adduce, unless it is inadmissible for whatever reason, to allow for a just decision (State vs. Keake [2000] N2003).

19.		In the present case, the additional witness State wants to call is a person from whom a statement was obtained from to bring the initial charge against the Defendant, and it is part of the HUB which was provided to the Defence after the accused was committed to stand trial in this Court.

20.		Having regard to those circumstances in this case and also having regard to the judgments of the Courts in the cases referred to by both lawyers, including the case of State vs. Keake (supra), I reject the submissions by Mr. Huekwahin that the application by the State to call an additional witness whose name is not listed on the indictment to give evidence in Court will amount to recent inventions because the evidence of the witness sought to be called is already part of the State’s earlier case or hand up brief.

21.		I also reject the submission by Mr. Huekwahin that to grant leave to the State to call the additional witness would amount to unfair trial, because it will not.  The opportunity to put its case to this witness has not been lost.  This will be achieved in cross examination.  A right that is still there for the Defendant.  On the contrary, if I refuse leave, I will shut out the State from putting before the Court all its evidence. That would be unfair.

22.		In conclusion, I have considered that, for a just decision, leave must be granted to the State to call its additional witness who will be subject to be cross examined by the Defence.  If Mr. Huekwahin and the accused require more time to prepare and present any evidence in rebuttal to the evidence of the State’s additional witness, I will readily allow them time needed for preparation, something this Court had proposed to Mr. Huekwahin at the commencement of hearing of this application, but he chose to make submissions opposing the application for leave which I have just granted. 

Orders:

23.	The formal orders of this Court are:

	(1)	Leave is granted to the State to call its additional witness, namely, Gideon Guna to give evidence for the State and
	(2)	Matter is adjourned for mention on a date to be advised, to agree to new dates for continuation of trial. 

__________________________________________________________________
Public Prosecutor: Lawyer for the State			
Public Solicitor: Lawyer for the Defence