Unreported National Court Decisions
N1884
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 859 OF 1998
STATE 
VS
MICHAEL NAMA, KENNETH BAGO, AARON FENNI, SEI MAMATO, PETER MEMETO & SOBI FENNI
Goroka
Kirriwom J
10 May 1999
Case Cited
Charles Ombusu v The State
Counsel
Mrs C. Ashton-Lewis for the State
Mr Apie’e for the Accused
RULING
10 May 1999
KIRRIWOM J:  The State presented an indictment charging these men with four counts of wilful murder and indicated laying two additional charges against them for murder and grievous bodily harm.  All counts relate to separate victims but the incidents are connected in place and time.  They arise from one single transaction.  At least that is the impression I get from the State’s submission.  I have not read the file and I don’t propose to read the file if the matter is eventually going to proceed as a trial.  The indictment was presented in relation to the four wilful murder counts for the purpose of the Court giving a ruling on the appropriateness of joining four wilful murder counts in the one indictment.  In other words the presentation of indictment was a mere necessity for the purpose of enabling the defence to lodge their application for the indictment to be quashed under s. 558.
Defence has taken objection to the indictment presented and applied to have the indictment quashed on the grounds:
1.       That the accused were charged and brought before the Committal Court on two counts of wilful murder.  These are the only two charges that the accused were facing and were committed to stand trial in the National Court, and not for four counts as contained in the indictment.  They were not charged and processed in the Committal Court with respect to the other two counts.
2.       That the accused would be prejudiced in their defences by the joinder of the additional offences that they were not initially charged with nor committed for to appear in the National Court.  The wording in section 558 is that the indictment is calculated to prejudice or embarrass the accused in the defence to the charge.
I have read the submissions filed by both counsel in this matter.  And regrettably I find myself in agreement with my brother Sawong J.  I think it is premature to deal with this question without the benefit of knowing what evidence there is that give rise to the decision made by the State Prosecutor.  I have decided against reading the depositions for the simple reason of determining a procedural issue that arose that would subsequently disqualify me from presiding in the trial.
In my view the appropriate time for the objection to be taken is at the hearing of the charge or charges.  Whichever way the Court ruling falls must be and understood in the context and the circumstances of that particular case.  That can only be appreciated after all the evidence has been tendered in Court.  
The defence objection to the proposed course that the State is adopting is based on a perceived fear of the accused being prejudiced in the conduct of their defences.  At best the issue is only hypothetical until it threatens the accused’s rights then it becomes a concern requiring the court’s intervention.  It was however considered  convenient to deal with the issue at a pre-trial level rather than at the hearing so as to save court time once hearing date has been given.  But for the reasons I have given above, pre-trial review is not the appropriate time.
The objection taken by the Defence gives rise to a number of contentious issues:
1.       The authority of the Public Prosecutor to control  the exercise and performance of the prosecution function before all courts.
2.       The Public Prosecutor’s duties under the Constitution and other laws and the Constitutional independence of the office holder.
It has been held in various cases both here and in other jurisdictions that in deciding on what charge or charges the prosecutor, whether he is called State Prosecutor or Public Prosecutor here or Crown Prosecutor elsewhere, he  is not subject  to any direction or control.  He has a very wide discretion on what charge or charges to proceed with and what charges he discontinues. Committal  Court’s ruling do not restrict the powers of the Public Prosecutor which originates from the Constitution.  It has been the practice and continues  to be so that following committal the accused is indicted with the offence that the evidence in the depositions support  - see s. 525 of the Criminal Code or the one negotiated and obtained for purposes of guilty pleas or once referred to in New South Wales as ‘Sentence reduction.’  The original charges do not determine the eventual charge in the indictment.  Take for example a coronial inquiry into the sinking of a passenger vessel in the sea and lives are lost.  No-one is accused of any criminal act.  But if the evidence from the inquest points to criminal culpability of say the captain of the vessels, he is ultimately charged for the death of those passengers.  
It seems that the charges arising from the incident that landed these accused in the hands of the law are quite serious that claimed more victims than the two that police originally charged them with.  Police decision to charge for only two killings is not binding on the Public Prosecutor.  The Committal Court did not have to commit them for all the other offences that the accused were not charged with.  Its task is only to investigate and find and obtain facts.  On these facts it determines whether evidence establishes prima facie case.  Committal Court has no power to reject evidence unconnected to the charge before it.  As long as the evidence implicated the accused before the Court, that evidence was valuable for purposes of its investigation.  The bottom line is those charged with serious crimes must be dealt with by the law.  The rights of the accused persons are secondary to the duty of the prosecution to lay charges and prosecute offenders.
In relation to joining four counts of wilful murder in one indictment, this is permissible under the law - See the Supreme Court case of Charles Ombusu v The State.  It is convenient, cost-saving and a speedy disposition of a trial.  If it does cause undue hardships for the accused, objection can be raised at an appropriate time.
In the circumstances I direct that the case must proceed.  The State is at liberty to proceed in the manner it sees fit and appropriate.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor