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Nabil v The State [1979] PGSC 16; [1979] PNGLR 88 (28 March 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 88 - John Rul Nabil v The State�

[1979] PNGLR 88

SC147

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN RAUL NABIL AND OTHERS

V

THE STATE

Waigani

Prentice CJ Raine DCJ Kearney J

8 March 1979

28 March 1979

CRIMINAL LAW - Practice and procedure - Indictments - Offences arising substantially out of same �facts� or out of closely related facts - �Facts� - Whether closely related a matter of degree - Criminal Code, s. 544(6).

WORDS AND PHRASES - �Facts� - Criminal law - Indictments - Joinder of charges - Offences arising substantially out of same facts - Criminal Code, s. 544(6).

Section, 554(6) of the Criminal Code provides:

�Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.�

Held

N1>(1)����� That the �facts� referred to in s. 554(6) of the Criminal Code, are not limited to facts in issue in each separate offence but include all the evidentiary facts relevant and admissible to prove the offences charged, and �closely related facts� include those of a connected series of events.

R. v. Ford[1967] TASStRp 2; , [1967] Tas. S.R. 20, adopted and applied.

N1>(2)����� The question of whether facts are closely related to one another is a question of degree, which must be decided having regard to the time, place, nature of the incidents, the similarity of scene, and identity of the victim.

Appeals

These were four appeals (heard together) against the convictions of the four appellants on charges of rape, each being convicted on a joint trial of all four.

Counsel

D. W. Kendell, for the appellants.

J. McMaster, for the State.

Cur. adv. vult.

28 March 1979

PRENTICE CJ: These are four appeals being heard together, against the conviction of the four appellants of rape allegedly committed on 27th May, 1978, in the Mt. Hagen district. On the appeals being called on, leave was sought to add a further ground of appeal. In the special circumstances obtaining, the court being of the opinion that no prejudice to the State could thereby be worked, allowed the amendment. The additional ground of appeal in the opinion of the court proved unavailing and totally misconceived.

It was alleged that the joint trial of the four appellants was not authorised by law in that it was not sought to make them each responsible for one act of rape (to which three were aiding the fourth) but each for one of four individual rapes. It was submitted in reliance upon R. v. Potter[lxxxi]¹�that the joint trial of separate offenders is contrary to the common law, and that the joint trial of these appellants was not authorised by the amendment to the Criminal Code now contained in s. 544(6) This subsection reads as follows:

�Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.�

It is contended that the �facta probanda� are not the same, substantially the same or closely related. Reliance is placed upon R. v. Russell (No. 2)[lxxxii]² and R. v. Danes[lxxxiii]³.

It is important to note at the outset, that no such point was taken at the trial�no application was made for separate trials though it was known that whereas one of the appellants was alleged to have committed the offence charged, the other three denied complicity.

For myself, I regard the distinction between �facta probanda� and other material facts admissible in evidence as somewhat unreal and would prefer with respect, to adopt the interpretation of Burbury C.J. in R. v. Ford[lxxxiv]⁴�that �facts� in s. 330(1) of the Tasmanian Criminal Code (analogous to the Papua New Guinea s. 544(6)) is not limited to the facts in issue in each separate offence, but includes all the evidentiary facts relevant and admissible to prove the crimes charged, and �closely related facts� includes those of a connected series of events. I expressed my opinion to that effect in R. v. Mugining[lxxxv]⁵�which became the subject of appeal to the Full Court in the judgment of which, I do not understand my opinion on this aspect to have been regarded as incorrect.

However, even if one were to adopt the, perhaps to Papua New Guinea�s citizens, somewhat difficult concept of �facta probanda��it seems to me quite evident that each of the rapes charged here arise out of �closely related facts�. The question of whether facts are closely related to one another is a question of degree in my opinion, as respondents� counsel has submitted�which must be decided having regard to the time, place, nature of the incidents, the similarity of scene, and identity of the victim.

It was forcefully argued that the indictment (though the trial was not irregular) was a nullity. But it seems to me that such a submission, made despite failure to object at the trial, is fanciful. Such an indictment was appropriate to a case in which say the second third and fourth appellants were alleged to have aided and abetted the first. Particulars were not sought�but it must have been clear on the committal proceedings that separate rapes were being charged, and that possibly the aiding and abetting of three to the rape by another could have been proceeded with.

I agree with the submission on behalf of the State that the facts are substantially the same or closely related; and that a substantial part of the facts is relevant to all the charges. The circumstances of the meeting of the four accused and the prosecutrix, the various journeyings, purchase and consumption of liquor and the evident sexual approaches and story of rejection of them, are common to the trial of each. As are also the evidence of complaint, the medical evidence, the evidence of Jean Kupul that the prosecutrix was wet and in distressed circumstances, and that of the accused (through the adoption of the statement from the dock by John Rul) that the girl was got out of the house from a position where she had been hiding. I am of the opinion therefore that this ground of appeal has no merit.

It was also argued that there was no real corroboration of the prosecutrix�s story, and that bearing in mind the danger of convicting without corroboration, the convictions are unsafe and unsatisfactory. It is my view that her story is amply corroborated in material particulars not only by Rul�s admission to the investigating constable which was but faintly challenged in cross-examination as resulting from a possibly bad memory, and was not denied at all in the accused Rul�s statement from the dock; but also in the respect adverted to in the last paragraph. I would dismiss the appeal on this ground also.

The additional ground particularised against severity of sentence was not proceeded with�which is hardly to be wondered at.

It is my opinion that the appeals should be dismissed and the convictions and sentences of each of the four appellants should be confirmed.

RAINE DCJ: I have read the judgment in draft of my brother the Chief Justice.

I agree with the Chief Justice that s. 544(6) of the Criminal Code Act 1974 authorised the joint trial of these four appellants. In my opinion it was proper for these men to be joined together in one indictment and to be tried together. It is not uncommon in my experience in these pack rape cases for there to be a certain amount of movement from one place to another. They are rarely what might be described as orderly affairs. Section 544(6) does not envisage or require the forming of an orderly queue. Sometimes the original group of possibly three or four men is joined by another man or men.

In my opinion each of the rapes here clearly arose out of �closely related facts�. As the Chief Justice rightly says it is a question of degree as to whether the facts are sufficiently closely related the one to the other. Here, in my opinion, there was a very close relationship.

The State has no difficulty so far as the question of time of the events is concerned. Nor has it any difficulty so far as the place or places where the events took place are concerned. The rapes all follow a pattern and the victim is the same in each case. To a large extent the four appellants worked as a group or as a team.

I agree with what the Chief Justice says about �facta probanda� and I too prefer the interpretation of Burbury C.J.

I also agree with the Chief Justice�s reasons in the conclusion he reaches so far as the submission that there was no real corroboration of the prosecutrix�s story is concerned. In my opinion there was adequate corroboration.

In my opinion the appeal should be dismissed and the convictions and sentences of each of the four appellants should be confirmed.

KEARNEY J: I have had the benefit of reading my brothers� judgments herein. I respectfully agree that the views of Burbury C.J. on the proper interpretation of the provision in the Tasmanian Code corresponding to s. 544(6) are correct, and should be applied here. I concur in my brothers� view that the appeals should be dismissed, for the reasons they give, and would add only that I consider that in cases such as this, a joint trial is in general the proper mode of trial, in the interests of justice.

That each appeal be dismissed and that the convictions and sentences of the four appellants be confirmed.

Solicitors for the appellant: McCubbery, Train Love & Thomas.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.