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Aigal and Kauna, The State v [1990] PNGLR 318 (12 July 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 318 - The State v Daniel Aigal and Gui Robert Kauna�

[1990] PNGLR 318

N891

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

AIGAL AND ANOTHER

Kundiawa

Brunton J

11-12 July 1990

CRIMINAL LAW - Practice and procedure - Prosecution of proceedings - Nolle prosequi - Power to reject - Where abuse of process - Where infringement of human rights - Constitution, s 57.

Whilst it appears that the National Court has no statutory powers to force the State to exercise its discretion in relation to what charge is laid in an indictment or what plea is accepted, a judge is not without power when confronted with a nolle prosequi.

The State v Gola [1990] PNGLR 206, referred to.

The National Court may, in the exercise of its residual power to prevent abuse of process and its constitutional power under s 57 of the Constitution to protect Human Rights, reject a nolle prosequi in an appropriate case.

Connelly v Director of Public Prosecutions [1964] 2 All ER 401, followed.

Cases Cited

The following cases are cited in the reasons for decision:

Connelly v Director of the Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401.

R v Abia Tambule [1974] PNGLR 250.

The State v Gola [1990] PNGLR 206.

The State v Jakai (McDermott J, N391, 11 October 1982, unreported).

Decision to accept nolle prosequi

The State presented an indictment alleging an offence of manslaughter against two accused and then filed a nolle prosequi. The following reasons were delivered for deciding to accept the nolle prosequi.

Counsel:

J Kesam, for the State.

F Tera, for the defendants.

Cur adv vult

12 July 1990

THE CHARGE

BRUNTON J.: The State presented an indictment charging the defendants with one count of manslaughter each, contrary to s 302 of the Criminal Code (Ch No 262), in that they unlawfully killed Yanopa Kaupa at Chuave on 13 August 1986.

The State filed a nolle prosequi saying that it will not proceed further against the accused, in accordance with s 527 of the Criminal Code.

In the circumstances of the case, which will be described, I was at first uneasy about accepting the nolle prosequi but the law appeared to put the Court in a position where it had no other alternative, and the nolle prosequi was accepted by the Court.

HISTORY OF THE CASE

The killing alleged in the indictment took place in August 1986, but was concealed from the authorities until it came to the attention of the Commissioner of Police who ordered an investigation. The investigation was commenced sometime at the beginning of 1989, and three persons were charged with wilful murder and committed for trial by Mr Giddings the Senior Magistrate in Kundiawa on 23 June 1989.

An indictment dated 18 August 1989 was presented in the National Court sometime in 1989 before Miriung AJ, alleging a charge of manslaughter against one of the co-accused, a 14-year-old boy (PK). PK pleaded guilty to that charge and was given a suspended sentence of 3 years imprisonment. PK admitted killing the deceased and to being the only one who caused her death. In my view it may well be that PK was picked by the community to take the blame for this killing. In his reasons for committing the three accused Mr Giddings, a very experienced magistrate, said:

�the contents of that evidence which is available, shows the killing to be in keeping with that practised against those accused of being witches and who have caused the death of another person. No doubt many others so far unnamed were involved and contributed to the death of the deceased, however, the community has sealed itself around them and evidence in addition to that gleaned by detective Pielo has not been forcoming [sic].�

My understanding is that the Public Prosecutor mounted an appeal to the Supreme Court against the leniency of the sentence imposed by Miriung AJ, but the appeal was not pressed.

[His Honour then considered the factual background as disclosed by the depositions and continued.]

THE PUBLIC INTEREST

This case involved the alleged execution of a woman, and the alleged detention and torture of seven other women. It was clear from the remarks made by the senior supervising magistrate that the secret killing of women who are suspected of being witches is a practice within the Simbu Province. There appeared then a pattern of socially approved customary terror exercised against elderly women. The terror was institutionalised, there was some evidence that the Village Courts were involved, and it was kept secret from the authorities. It goes without saying that these practices violated not only the criminal law, but the constitutional rights of the victims � the Right to Life (Constitution, s 35), the Right to Freedom from Inhuman Treatment (Constitution, s 36), and the constitutional direction to improve the status of women in the National Goals and Directive Principles.

While the initiative of the former Police Commissioner who insisted that this matter be investigated so long after it occurred, and the initiative of the CID, are to be commended, it was not a satisfactory state of affairs that these cases were not pressed.

There is now a body of sociological and historical scholarship which tends to the view that witch-hunts were � or are, not solely matters of public health � a society attempting to rid itself of what it considered to be a cause of death and illness. This view of witches, witchcraft, and witch-hunts still receives some sympathy within Papua New Guinea. Persons who are accused of witch-killings, or participating in witch-hunts are said to be reacting to genuinely held beliefs that witches are a public menace, who cause death and disease, and from whom society is justly entitled to protect itself.

A more recent understanding of the social role of witch-hunts emphasises their context in sexual politics. The political role of the witch-hunt is a form of terror that holds women in their place.

The power of older women, as against men, is limited by the threat of an allegation of witch-craft, and its consequences in coercion. As the surviving victims in this case showed, there is no defence to an allegation of witchcraft. The assertion proves itself, and the victims can only hope that they will not be killed.

The human rights of the deceased and the other victims appear to have been violated in a most serious manner. The incident is not isolated. The powers of this Court under s 57 of the Constitution are wide and although it appears that the National Court has no statutory power to force the State to exercise its discretion in relation to what charge is laid, or what plea is to be accepted � see my remarks in The State v Gola [1990] PNGLR 206 � a judge is not entirely without powers when confronted with a nolle prosequi.

In Connelly v Director of Public Prosecutions [1964] 2 All ER 401 at 409, Lord Morris said:

�There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.�

In the Farquharson Committee Report on the role of prosecuting counsel (May 1986) � see Archbold, Pleading, Evidence & Practice in Criminal Cases (43rd ed, 1990), Vol I, ss 4.47a � the Committee, on the issue of the respective powers of prosecuting counsel and judge as they relate to the acceptance of a plea to a lesser offence than charged on the indictment, said:

�The Judge may take the view that Counsel�s decision proceeds from caprice or incompetence, or simply that he entirely disagrees with the decision however carefully Counsel arrived at it. The Judge cannot in such circumstances be expected to lead himself to a process which in his judgment amounts to an abuse or to an injustice.�

Although in the final analysis a British judge may have no power to prevent counsel from proceeding, the situation in Papua New Guinea is not the same. Here a court, using its powers under s 57 of the Constitution can prevent a nolle prosequi from being filed if the filing would jeopardise an accused�s right to a fair trial within a reasonable time under s 37(3) of the Constitution, particularly if the nolle prosequi would amount to an abuse of process: R v Abia Tambule [1974] PNGLR 230; The State v Jakai (McDermott J, N391, 11 October 1982, unreported).

In principle, if a court can prevent the filing of a nolle prosequi by using its powers under s 57 of the Constitution in respect of breaches of s 37(3), then it should also be able to apply the same power in respect of other rights � certainly s 42 � but perhaps not so obviously s 35 � Right to Life and s 36 � Right to Freedom from Inhuman Treatment.

Nolle prosequi accepted

Lawyer for the State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.