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State v Wosae [2017] PGNC 420; N7652 (13 June 2017)

N7652

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 934 OF 2008

THE STATE

-v-

CAIN WOSAE

Waigani: Kariko J
2017: 13^th June

PRACTICE AND PROCEDURE – criminal trial – accused died pending judgement on verdict – whether or not to continue the trial – relevant considerations – persona of criminal proceedings – lack of provision on practice & procedure – orders in the interest of justice – sections 185 & 155(4) Constitution – proceedings dismissed

Cases Cited:
Papua New Guinea Cases

The State v Justin Komboli (2005) N2891
The State v Tony Emmanuel & Edward Yau (2013) N5125
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Overseas Cases

Prosecutor v Joseph Kony & Ors, Case No.ICC-02/04-01/05, 11^th July, 2007
Prosecutor v Rasim Delic, Case No: IT-04-83-A, 29^th June 2010
Prosecutor v Sam Hinga Norman & Ors, Case No.SCSL-04-14-T, 21^st May, 2007
R v Ssenyonga [1993] O.J. No. 3273 (Ont. Ct. J.-Gen. Div.)
Re Kiran Allister Sen v R [1991] FCA 296
US v. Lay, Skilling and Causey, S.D. Texas Houston Div, 7th July 2004

Legislation

Constitution
Criminal Code
Criminal Practice Rules

Counsel

Ms H Roalakona, for the State
Mr J Mesa, for the accused

RULING

13^th June, 2017

1. KARIKO, J: A trial proceeded after the accused pleaded not guilty to two counts of official corruption pursuant to section 87(1)(a) Criminal Code and two counts of misappropriation contrary to section 383A(1)(a) Criminal Code.
   
2. After hearing of the evidence concluded, the case was adjourned generally for judgement on verdict. Sadly, the accused died while awaiting that decision. He passed away on 11^th November, 2013 and a copy of the relevant Certificate of Death has been produced, which for obvious reasons the Court considers essential before it decides the issue now before it.
   

The issue

3. The question arises as to whether or not to continue the trial.
   

The law

4. The Criminal Code does not provide for the situation under discussion. There does not appear to be any case authority on point either in this jurisdiction, but there is a general principle of criminal law that a trial cannot continue in the absence of an accused person. This principle is reflected in Section 571 Criminal Code and Section 37(5) Constitution.
   
5. Section 571 Criminal Code states:
   

(1) Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court -

(a) may order him to be removed; and

(b) may direct the trial to proceed in his absence.

(2) The court may, in any case, if it thinks fit, permit a person charged with a misdemeanour to be absent during the whole or any part of the trial on such conditions as it thinks proper.

(3) If the accused person absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court.

(my underlining)

6. Subsection (1) is restated as a fundamental right under Section 37(5) Constitution.
   
7. There are many case authorities that have discussed Section 571 Criminal Code and Section 37(5) Constitution but they deal with instances where an accused person has not answered to his bail or has escaped from custody during the course of a trial; see for example Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; The State v Justin Komboli (2005) N2891; The State v Tony Emmanuel & Edward Yau (2013) N5125.
   

Submissions

8. Defence Counsel submitted that the continuation of the trial would serve no useful purpose.
   
9. The State Prosecutor however considered there is an element of public interest in criminal proceedings that requires pronouncement of a verdict, but Ms Roalakona proposed that in the circumstances where the accused died while awaiting verdict, the proper course would be to terminate or dismiss the proceeding. For that submission, she referred to the decision of The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 in the case of Prosecutor v Rasim Delic, Case No: IT-04-83-A, 29^th June 2010.
   

Case law

10. There appears to be no case authorities on the relevant issue in this jurisdiction. I was not able either to locate any case authorities on point in Australia or New Zealand. However in the case of Re Kiran Allister Sen v R [1991] FCA 296, the Federal Court of Australia decided that where an appellant dies pending his appeal against conviction, the appeal abates upon his death.
    
11. In the case cited by State counsel, Rasim Delic appealed against his conviction for crimes against humanity but he died while awaiting his appeal. The Appeals Chamber firstly noted that criminal proceedings, trial or appeal, deal with living persons and cannot be conducted in the absence of the accused or appellant unless they waive their right to be present. The Chamber then considered the decisions of other international criminal tribunals in cases where an accused person on his trial died before verdict, and also decided that the appeal abated on the death of the appellant.
    
12. The cases referred to by the Chamber included The Prosecutor v Joseph Kony & Ors Case No.ICC-02/04-01/05, 11^th July, 2007 and Prosecutor v Sam Hinga Norman & Ors Case No.SCSL-04-14-T [2007] SCSL 41 (21 May 2007).
    
13. In the Kony case, an accused charged with crimes against humanity died before he could be tried by the International Criminal Court. The Pre-Trial Chamber observed that the “purpose of criminal proceedings is to determine individual criminal responsibility and the Chamber cannot exercise jurisdiction over a person who has deceased”. The Chamber thereby terminated the proceedings.
    
14. In the Norman case, where the Trial Chamber of the Sierra Leone Special Court decided that upon the death of an accused person before judgement on verdict, the court ceases to have jurisdiction against the accused. The Chamber terminated the proceedings against the accused effective the date of death.
    
15. In arriving at its decision in the Norman case , the Chamber observed:
    
    14. In this regard, we would like to reiterate here that the responsibility in a criminal matter is, in law, individual and personalised because the main components of a criminal action which include the indictment, the conviction or an acquittal as the case may be, and the sentence in the event of a conviction, are inextricably linked to, and enforceable only against the person or the individual who is alleged to have committed the crime or crimes for which he is prosecuted.
        
16. The Chamber went on to state that:
    
    15. ......... a judgement in criminal proceedings does not, and cannot constitute, nor can it confer a successional or testamentary right because it is indeed the exclusive legal privilege and prerogative attached to the persona or the individual who was the subject matter of the Prosecution that stands abated following his death.
        
17. The Chamber further noted that the principle of abatement of a criminal proceedings upon the death of an accused before the end of the trial, was re-iterated in the Canadian case of R. v. Ssenyonga [1993] O.J. No. 3273 (Ont. Ct. J.-Gen. Div.) and the United States case of US v. Lay, Skilling and Causey, S.D. Texas Houston Div, 7th July 2004. Ssenyonga was the first man in Canada to be prosecuted for knowingly spreading the HIV virus to unsuspecting girlfriends. He died shortly before verdict was to be delivered. In the second case, Keneth Lay CEO of Enron Corporation was convicted of several counts of corporate fraud and died before sentencing.
    
18. The Chamber pointed out that by reason of his death, an accused person would be unable to give instructions as to the conduct of the balance of his trial or an appeal if convicted, and that would be contrary to the fundamental principles of the right of an accused to a fair trial and the right to appeal, if convicted.
    

Consideration

19. Pursuant to Sc.2.12 Constitution, those overseas cases are of persuasive value only.
    
20. The Criminal Code of this country deals with offences committed by natural persons. It is also understood that criminal proceedings pursuant to the Criminal Code deal with living persons. There are circumstances where a criminal trial may be conducted in absentia and I discussed those earlier, but those circumstances concern the absence of living accused persons.
    
21. I have considered whether some procedural options provided by the Criminal Code and rules of practice and procedure in criminal proceedings in this jurisdiction, could be applied to answer the issue at hand. First, is whether this case could be declared a mistrial. However there is no proper ground in the form of an irregularity that justifies making such a declaration. Second, is whether the State could opt to file a declaration that no charge will be laid pursuant to Section 525(1)(b) Criminal Code. A declaration under that provision is laid where the prosecution decides not to indict the accused and not as in the present case, after an indictment has already been presented. Third, the State could consider filing a nolle prosequi, but it is far too late in the trial for this course to be taken, and that power of the prosecution is intended to be exercised where the State is unable to proceed with a charge for the present but contemplates re-charging the accused in the future.
    
22. In the circumstances, I accept the State submission that the proceeding should be terminated or dismissed, and for reasons including the principles and considerations highlighted in the cited overseas cases.
    
23. While our Criminal Code and Criminal Practice Rules do not provide for dismissal of criminal proceedings in the circumstances at hand, I am satisfied I have the power to order the dismissal based on Sections 185 and 155(4) Constitution. Section 185 states that where there is a lack or inadequacy of a matter of practice or procedure, the Court may give ad hoc directions to remedy any such lack or inadequacy. The Court is also vested with an inherent power under Section 155(4) to make such orders as are deemed necessary to do justice in the circumstances of a particular case.
    

Order

24. This Court orders that this proceeding is dismissed effective the date of death of the accused, being 11^th November, 2013.
    

____________________________________________________________

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Accused