SC2771
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 32 OF 2024

BETWEEN:
BEN GUNA
Appellant

AND:
THE STATE
Respondent

MOUNT HAGEN: MANUHU J, DINGAKE J, NUMAPO J
 25, 27 AUGUST 2025

CRIMINAL LAW – Appeal against conviction and sentence – Separate indictments on charges of wilful murder, rape and deprivation of liberty – Is a joint trial permissible - s. 531 of the Criminal Code Act.

Cases cited:
Charles Bougapa Ombusu v The State [1996] PNGLR 335
R v Jones [1918] 1 KB 416
Packett v R [1937] 58 CLR 190
State v Elias Subang (No.1) [1976] PNGLR 141
State v Gibson Tamean & Ors [1985] PNGLR 346

Counsel
V. Ngibe, for the appellant
P. Tengdui, for the respondent

1.	BY THE COURT: The Appellant was indicted, tried and convicted of wilful murder, rape and deprivation of liberty under ss. 299(1), 347(1) and 355 respectively of the Criminal Code Act. He was sentenced to life imprisonment for wilful murder, 25 years for rape and 1 year for deprivation of liberty. The sentences were made concurrent.
2.	The Appellant lodged his appeal against both the convictions and sentences. In the first ground of appeal, the Appellant raised an important procedural issue that could determine the outcome of this appeal. He pleaded that the trial judge erred in law by allowing a joint trial in respect of the three charges.
3.	The Appellant argued that the trial judge misinterpreted and misapplied the principle on joint trial as enunciated in the case of Charles Bougapa Ombusu v The State [1996] PNGLR 335. The Respondent submitted however that the trial judge was correct in permitting a joint trial; that under ss. 530 and 531 of the Criminal Code Act, a joint trial is proper where offences arise from the same facts or form part of a single continuing transaction; or where a joint trial is in the interest of justice.
4.	  Section 530 is irrelevant. Section 531 provides:

“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 connection 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.” (Our underlining)
5.	In accordance with subs. (4), separate indictments were presented for wilful murder and rape in Charles Ombusu. Following a joint trial, the appellant was convicted and sentenced to death for wilful murder and five years for rape. In his appeal, the pivotal issue was “whether it was permissible to have jointly tried two distinct offences charged in two different indictments.”
6.	The Court (Amet CJ Kapi DCJ Los Injia Sawong JJ) thoroughly considered s. 531 in conjunction with Packett v R [1937] 58 CLR 190, State v Elias Subang (No.1) [1976] PNGLR 141, State v Gibson Tamean & Ors [1985] PNGLR 346, and R v Jones [1918] 1 KB 416. In R v Jones (supra) the Court said:
“The charge of murder is too serious a matter to be complicated by having alternative counts inserted in the indictment. In the opinion of the Court the Indictments Act 1915, did not contemplate the joinder of counts of this kind. The proper course in a case like this is to have two indictments so that the second charge may be subsequently tried if the charge of murder fails and it is thought desirable to proceed upon the second charge”.
7.	The five men bench ultimately held:
“Whilst in principle the separate indictments may be presented, the prosecuting authority should be required to elect on which of the charges it would proceed, or the Court should direct that trial of the accused on each of the separate indictments be held separately, to avoid prejudice, embarrassment, oppression unfairness or injustice to such an accused person.”
“For these reasons we consider that the joint trial of a charge of wilful murder with that of rape was irregular and occasioned a miscarriage of justice. We consider that the charge of wilful murder is too serious a matter to be complicated by having the distinct indictable offence of rape joined in the same trial. Given the allegations of facts in these cases, the likely prejudicial affect against the accused is too serious to have permitted the joint trial to continue. The proper course in the circumstances ought to have been for the Court to require of the prosecutor to elect on which of the two separate indictments he would proceed or to direct that the trial proceed on one of the indictments only and the other to be tried separately before another Court on another occasion.”
8.	Accordingly, the convictions for wilful murder and rape were quashed, set aside and a retrial was ordered (in a separate ruling).
9.	In this case, two indictments were presented, one for wilful murder and the other for rape and deprivation of liberty. The presentation of the second indictment prompted the following exchanges:
“HIS HONOUR: Senior State Prosecutor, these are the indictments in the light of Charles Ombusu. Is it proper?”
“MR. KESAN: Yes, Your Honour, they are presented separately, and they can be heard together. They are different indictments. I am aware of the rule under the criminal code where it does not permit the homicide count to be on the same indictment with the other offences.”
	HIS HONOUR: Very well.
MR. KESAN: And this afternoon, I presented two separate indictments. And my application is that these indictments be heard together.
HIS HONOUR: Thank you. Yes?
10.	It would have been obvious then that the three offences were committed on different dates, different times and different locations. Wilful murder was allegedly committed on May 8, 2021. Rape was allegedly committed on May 11, 2021. Deprivation of liberty was allegedly committed between May 8 and 15, 2021. They were not committed on the same day, as in the Charles Ombusu case. At this point, the trial judge should have refused the application for a joint trial, but he did not rule on the application and permitted the trial to continue.
11.	With due respect, the trial judge was clearly misled by counsel into committing an error of law. The charges were heard in a joint trial, a clear violation of the Charles Ombusu rule. The trial judge belatedly attempted to justify the joint hearing in his ruling on verdict, as follows:
“This was not a joinder on the same indictment. Wilful murder was not joined in the same indictment so that there was a joinder of the charges which would entail the State to abandon one for another day and to pursue with the other.”
“It was not the case seen in Charles Ombusu v The State [1996] PNGLR 335. It was not a lumped hearing as the offences arose from the facts that were committed. It was not a case as seen in Ombusu where the homicide came out from the rape. Here, it was part of the same transaction...”
“There was no prejudice to the accused in running the trials together. The evidence relied on was the same and could not be broken into two trials set apart from each other...”
12.	With due respect, Charles Ombusu still stands as a binding authority on the National Court until the Supreme Court decides otherwise. The rule is simple: a “charge of wilful murder is too serious a matter to be complicated by having the distinct indictable offence of rape joined in the same trial.” It is a precautionary rule intended “to avoid prejudice, embarrassment, oppression, unfairness or injustice to the accused.”
13.	Accordingly, we are of the view that the trial judge committed an error of law when he permitted a joint trial in respect of the charges of wilful murder, rape, and deprivation of liberty. In these circumstances, we would quash and set aside the convictions and sentences and order a new trial.  The Appellant shall be remanded in custody. 
14.	It is not necessary to consider the remaining grounds of the appeal.

Orders accordingly.  

__________________________________________________________________
Lawyer for the appellant: Helen Roalakona, Acting Public Prosecutor
Lawyer for the respondent: Leslie B. Mamu, Public Solicitor