Yandalan, Kapalin, and Morris, The State v [1994] PNGLR 405 (17 January 1994)

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CRIMINAL LAW - Practice and procedure - Application by prosecutor for change of venue - What constitutes "good cause" for change pursuant to s 522 of the Criminal Code - Witnesses' fear of giving evidence - Accused's right to legal representation and call evidence unaffected - Accused's right to be brought to trial - s 552 of the Criminal Code.

The State Prosecutor in Mount Hagen made application under s 522 of the Criminal Code for a change of venue for the trial of the three co-accused, charged with wilful murder. The prosecutor argued that the trial may not proceed if a change of venue was not granted, as State witnesses would be fearful of giving evidence and subsequent reprisals. On the other hand, the accused has a right to be brought to his trial in terms of s 552(2) of the Criminal Code.

1. There was a risk if the accused were not brought to trial that the State case would fail in terms of s 552(4) (no indictment) or by effect of s 552(2) (by application).

2. A transfer of venue would not affect the accused's right to legal representation, to evidence, or to call witnesses in their defence.

3. Section 552(2) of the Criminal Code provides that, for good cause, a place of trial may be changed to some other place. In the circumstances of this case, good cause was shown. The order for change of venue was made.

BROWN J: This is an application by the Public Prosecutor to transfer the place of a criminal trial for wilful murder from Mount Hagen to Waigani. These three co-accused, Theo Yandalan, Japeth Kapalin and Leo Morris, all of the Amali line, are charged with the wilful murder, by axing, of Gabriel Piakon of Taramanda line on 30 August 1990. The State case, I am told, is dependent on eye-witness evidence of the axe attack on Gabriel Piakon by these three co-accused and one other, when Gabriel Piakon called into a Mobil Service Station on the Highlands Highway some 2 km from the centre of Wabag. The evidence, the State says, will go to show that these three lay in wait for Gabriel Piakon, a senior employee of Mobil at the service station until he came along, and then they axed him. The accused were arrested in a police raid in September 1993 and are presently in custody awaiting trial.

The application is made because of the fear held by the eye witnesses for their safety if they testify at Wabag or Mount Hagen, and the threats of the accused's line made to the people concerned with this investigation.

The fears held by the witnesses are detailed in a statement made to the provincial police commander by John Piakon, the elder brother of the deceased. He said that:

1. all the accused all come from Amala Village, about a kilometre out of Wabag town.

2. tribal conflicts will loom if most of the accused's relatives are either present in the Courtroom or present outside the court area listening to the State witnesses' evidence being presented in full context.

3. all the State witnesses are from nearby villages and have cross marriages, and they fear to give straightforward evidence during cross-examination etc.

4. if the trial is held in Mount Hagen, relatives of both the deceased and the accused will all be transported in truck loads during the hearing.

5. transferring the case out of the two provinces, to our nation's capital, Port Moresby, will limit the number of relatives from both groups travelling to witness the hearing.

6. evidence given by the State witnesses in the Court will be without fear or favour from any threats by any group, or any individual for that matter.

7. relatives of the deceased are prepared to meet all the costs of transport, airfares, accommodation for the State witnesses if the case is transferred to Port Moresby.

"As reason No 6 in John Piakon's letter clearly states that witnesses will not be subjected to fear or favour when testifying, if the matter is transferred out of Wabag and Hagen. I as the officer investigating the murder feel that, for us to have a smooth and orderly trial we should look into the possibility of having the matter transferred as outlined by John Piakon.

Engans are very emotional and hostile group of people and I am pretty sure will carry out their threats if the matter is tried in either Wabag or Mount Hagen.

Hence, to avoid possible confrontations between the accuseds' relatives and the victims' relatives, I strongly feel that the matter be transferred to Port Moresby."

Subsequently, the regional officer in charge of the Criminal Investigations Division, Highlands, Detective Chief Inspector R R Huafolo, wrote to the State Prosecutor on the 20 December 1993 requesting the transfer of the venue for this trial, quoting the reasons of John Piakon and stating further:

"I am currently on another investigation in the Enga Province and it is obvious that the witnesses to this case would nevertheless be interfered with. In fact the Investigation Officer, Det. Sen. Const. Anthony Manjin and his family's lives had been threatened, should he pursue this case further.

As a consequence of this I am arranging D.S.C. Manjin's transfer out of the Enga Province".

Clearly, the administration of justice in the Enga Province will be adversely affected if these witnesses are unwilling to give evidence because of the fear of reprisals. I am satisfied, on the custom deposed to by John Piakon, that this fear is reasonably held. I am also mindful of the propensity to threaten witnesses in the Enga Province and Highlands provinces generally. I touched on the effect of those threats to the proper administration of justice in my reasons handed down in State v Raima [1993] PNGLR 230. In that case, a witness who was robbed by one Peter Raima refused in Mount Hagen to give evidence, for death threats had been made to her and her family. I ruled that the statement made to the police at the time of the investigation into the robbery could be used in evidence. The accused, Peter Raima, had pleaded not guilty, but he escaped during the course of his trial. After my ruling, he was recaptured, again arraigned, pleaded guilty, and was sentenced for the robbery.

The number of nolle prosequi filed by the State Prosecutor in very serious offences involving armed robbery and rape at Mount Hagen is cause for disquiet. Since the administrative centre at Wabag was burnt down in April 1993, Engan trials have been conducted at Mount Hagen. The number of Engan committals coming up for trial at Mount Hagen has fallen, compared to earlier years, despite a common perception that tribal fights in that province have given rise to an increasing number of killings.

Section 552 applications previously were common. It is not clear what caused the State's inability to bring accuseds to trial, but I venture to say that, again, customary settlement, a fear in witnesses to give evidence, or some other reason extraneous to the due administration of the criminal law resulted in numerous accused being discharged before trial. That is not, in my view, proper administration of justice, where no trial takes place.

Possibly the worst example of the unanticipated effects of the application of s 552, or its misuse by accused persons who are able to pervert the course of justice by interfering with witnesses, was a case involving the discharge of five co-accused. Tumu Koeya, Gauman Nita, Langap Pyaso, Londe Pyakalyo, and Paulus Pyaso were all charged with wilful murder of two young girls aged about 11 from the Lower Lai River area of the Enga Province. Police had a complaint that these two girls had been raped, one dying in the course of the pack assault. The other was also killed. One body, weighed down by stones, was found in the river, but the second (possibly not so weighed) was not. Witnesses' statements had been taken by police. The area had no access by road. A s 552(2) application to be brought to trial was brought at Wabag in about August of 1992, when police were instructed by the State Prosecutor to make proper enquiries for such witnesses and ensure their attendance at the next sittings, for the suggestion was that such witnesses were avoiding the police. The police had been unable to proceed to trial in the August sittings.

The police suggested two possible reasons for the witnesses' behaviour. The first was that the witnesses were frightened for their safety if they testified. The second was that customary compensation had been paid for the death of the two girls, the villages were no longer concerned, and, thus, the deaths were no business of the State. Both reasons expose the weakness in the administration of the criminal justice system if they be the reasons, in fact, for the subsequent discharge of these accuseds pursuant to s 552(4) (no indictments presented) in January 1993 after 15 months in custody.

It seems to me that legislative amendment is necessary if the prosecution of offenders passes from the hands of the State Prosecutor to those of offenders able to coerce witnesses, through fear or customary obligation, into either refusing to testify or absenting themselves, so that prosecutions must fail through the effect of s 552(2).

I must look not only to the particular reasons for the request for transfer in this case but the wider ramifications if the request is allowed. The State Prosecutor has the unfettered discretion as to whether or not to proceed with a particular prosecution. The Court, however, must bear responsibility for the conduct of proceedings. The trial judge runs his court, applying principles of practice and rules of evidence to ensure the due administration of justice, a phrase which I consider encompasses the accused's right to a fair trial. But the trial has not started, and the State Prosecutor implies that it may not, if the transfer of venue request is not met. There is a risk, again, that a nolle prosequi will be filed because the States witnesses have been coerced, through fear, from giving evidence. Clearly, justice will not be served if that happens.

Fairness to the accused in this case also means that they have the opportunity to test the State case and present evidence on their own account. The transfer of venue, in my view, will not affect those rights. Their legal representation remains unaffected. As does their right to give evidence and call witnesses.

The transfer to Waigani is the State's responsibility. While the question of travelling costs for defence witnesses may be argued, the right to call evidence, whether by deposition or viva voce, is unaffected.

Clearly, the State Prosecutor should not be thwarted in his attempt to bring this case to trial.

Section 522 of the Criminal Code provides, in subsection (2), that for good cause, the place of trial may be changed to some other place. I am satisfied good cause has been shown.

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Papua New Guinea Law Reports

Yandalan, Kapalin, and Morris, The State v [1994] PNGLR 405 (17 January 1994)

PNG Law Reports 1994