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State v Ngotngot [2016] PGNC 42; N6216 (14 March 2016)

N6216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 644 OF 2014 and CR NO. 1540 of 2015

THE STATE

V

JOE NGOTNGOT
AND
EREMAS MATIUL

Kokopo: Anis AJ
2016: 11^th & 14^th March

CRIMINAL LAW - motion to quash indictment based on alleged prejudice and embarrassment - section 558(1) (a) of the Criminal Code Act Chapter No. 262 discussed - state witness not a co-accused nor involved in same transaction - no evidence to suggest that state witness had deposed evidence filed that are likely to prejudice or embarrass the defence of the two accused or the proceedings - discretion exercise in favour of the State - motion refused

PRACTICE AND PROCEDURE - courts power to decide is discretionary - unless interest of justice requires, court should not peruse depositions and disturb continuation of trial.

Facts

The State charged the two accused persons with grievous bodily harm of one Miriam Papakat. After the state presented the indictment, the defence alleged that one of the witnesses was likely to cause prejudice or embarrassment to the two accused if the State was to call the witness to give evidence at trial. The said witness had earlier laid a complaint to police of alleged wilful destruction caused to his property. The police attended to the said complaint and it was during that time that the two accused persons, who were policemen, were alleged to have committed the offence.

Held:

1. That witness number 5 was not a co-accused nor was he a party to the transaction, which had led to the arrest and charge of the two accused.
   
2. The indictment and brief facts did not disclose material facts that would:
   

(i) suggest that witness number 5 could, by his actions or conduct, prejudice or embarrass the defence of the two accused or the proceeding; and or

(ii) otherwise warrant the Court to, in the interest of Justice, proceed on to and consider the Court depositions or the entire Court file in detail to ascertain any material grounds submitted by the defence in regard to the motion.

3. No such grounds have been identified and as such, the motion was refused.
   

Cases Cited:

Joe Ivoro and Gemora Yavura[1980] PNGLR 1
R v. Dandemb[1969-70] PNGLR 207
State v. Michael Namat and Ors (1999) N1884
The State v. Peter Sari [1990]PNGLR 48

Counsel:

Ms Aihi, for the State
Mr Kaluwin, for the Accused

RULING ON MOTION TO QUASH INDICTMENT

14^th March, 2016

1. ANIS AJ: The trial for the matter commenced on 11 March 2016. Immediately after the prosecution presented the indictment and brief facts, and before plea, the defence counsel made an oral application pursuant to section 558(1) (a) of the Criminal Code Act Chapter 262(Criminal Code).

Motion

2. The section reads:

558. Motion to quash indictment

(1) The accused persons may, before pleading, apply to the court to quash the indictment on the ground that-

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

Issue

3. The issue of course is whether the prosecution’s intention to call witness number 5 would prejudice or embarrass the two accused in their defence in the criminal proceedings against them.

Submission

4. The defence alleges that if the prosecution calls witness number 5, it will or is likely to cause prejudice and embarrassment to the two accused for the charges they each face, which is grievous bodily harm. Looking at the indictment, witness number 5 is Ekonia Levi Pidikier (witness number 5).

5. I note that the defence had initially included witness number 8 in its argument but later decided against that and focussed its submissions on witness number 5.

6. The defence counsel made oral submissions without relying on any material evidence.

7. I summarise the defence submissions as follows:

(i) that witness number 5 was the person who had laid the complaint with the police to investigate disturbance in the area at the material time;

(ii) for the state to use witness number 5 as a witness at the trial would be prejudicial to the defence or trial of the two accused and contrary to what the Supreme Court has held in the case of R v. Dandemb [1969-70] PNGLR 207;

(iii) that an incompetent witness cannot be called to give evidence as held by the Supreme Court in R v. Dandemb(Supra);

(iv) that they may purge themselves;

(v) that witness number 5’s inclusion in the indictment will deprive the two accused of their defence; it may be seen as a calculated move to deprive them of their defence.

8. The prosecution objected to the motion. I summarise its submissions as follows:

(i) that witnesses 5 and 8 would be subjected to cross-examination and their evidence should therefore be tested at that time;
(ii) that what the defence has alleged relate to credibility of these witnesses;
(iii) that witness number 5’s complaint was unrelated and separate to the actual complaint laid by Miriam Papakat the latter which has led to the charges the two accused now face.

Documents I have before me

9. I note that all I have at this stage before me are the following:

(i) The indictment;
(ii) Summary of brief facts as presented by the prosecution; and
(iii) Copy of the Supreme Court case of R v. Dandemb (Supra), which was handed-up in Court by the defence counsel.

10. I note that I have not taken the benefit of perusing the Court file to see the depositions and other evidence. I do not wish to go there now because to do so will mean that I cannot continue to deal with the trial of the matter (see these cases: Joe Ivoro and Gemora Yavura [1980] PNGLR 1; The State v. Peter Sari [1990] PNGLR 48).

11. I will come back to this discussion towards the end of my ruling.

Misconception

12. I now turn to the motion. I must say that I do follow the defence counsel argument. But I must also say that I had difficulty in trying to follow how inclusion of witness number 5 as a witness for the prosecution would cause prejudice or embarrassment to the defence of the two accused now before this Court. He now wants to give evidence for the prosecution. Witness number 5 is not, in my opinion, like the co-accused for example in the Supreme Court case of R v. Dandemb (Supra) which counsel has drawn this Court’s attention to.
The facts in both cases, in my opinion, are far apart and are un-comparable.

13. In the Supreme Court case, the accused Simbene applied to dismiss his indictment because the prosecution, during the committal hearings, had called Simbene and his co-accused to give evidence against each other. Later, the Court committed them to stand trial separately under separate indictments.
Justice O’Loghlen AJ held these in conclusion and I restate:

“I consider that the present case.......goes far beyond the mere irregularity that evidence has been given at the committal proceedings by an incompetent witness: it goes to the right and privilege of a person against whom a charge is pending not to be called by the prosecution to give evidence upon the subject matter of the charge so pending.

The fact that this has occurred in respect of Simbene has prejudiced his fair trial and it follows in my view that the indictment based upon the committal proceedings against him in their relation to the associated proceedings against Bogon cannot but have the effect of prejudicing or embarrassing Simbene within the meaning of s.596of the Code.”

14. Let me point out two main differences I have noticed:

(i) In the present case, based on the indictment and brief facts presented, witness number 5 was not involved with the two accused under one transaction or alleged set of facts; and
(ii) Witness number 5, again based on the indictment and brief facts presented, would not be regarded as a co-accused.

15. I note I have stated earlier that I did not wish to peruse the depositions in the Court file. This is not to say that this Court has not considered that option.
I have given some considerations. And it is my opinion that, unless justice of the case requires, the court should not take the next step and peruse court depositions. The onus should rest with the applicant to present credible submissions in law or evidence, and convince the court to take that next step, that is to peruse the court depositions or the complete file and disturb the trial process, which would have already commenced by then.

16. In the present case, however, I find that the defence has not advanced any convincing reasons in law or evidence that would suggest a real need for this Court to, in the interest of justice, proceed to peruse the depositions or the complete Court file for the matter to rule on the motion.

17. I find all the five arguments submitted by the defence as summarised above to be without merit.

Summary

18. In relation to the issue whether the prosecution’s intention to call witness number 5 would prejudice or embarrass the two accused in their defence in the criminal proceedings against them, I would answer in the negative.

ORDERS

The Court orders that:

1. The oral application by the defence made pursuant to section 558(1) (a) of the Criminal Code is refused.
   
2. The trial of the matter shall continue with parties to re-set new trial dates at the mention of the matter at 9:30am on 14 March 2016.
   

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused