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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR1609 of 2002
THE STATE
-v-
FRED BUKOYA
Wabag: Ellis J
2010: 10 February
CRIMINAL LAW – Application for change of venue – Security issues - Criminal Code, sections 522(2) and 555(2)
Cases cited:
The State v Theo Yandalan & ors [1994] PNGLR 405
The State v Mathias Robert (CR1115 of 2007, Makail J, 23 March 2008)
Counsel:
Mr J Waine, for the State
Ms T Nonggorr, for the Accused
JUDGMENT APPLICATION FOR CHANGE OF VENUE FOR TRIAL
10 February, 2010
1. ELLIS, J: An amended notice of motion, filed on 15 October 2009, sought the following orders:
"1 Pursuant to sections 558(1) and 558(2)(b) of the Criminal Code the indictment dated 6 July 2009 in this proceeding be amended to remove count two regarding Jerry Yope, so that only one count remain regarding Yandari Pyali.
2. Pursuant to section 522(2) and/or section 555(2) of the Criminal Code, the proceeding be transferred from Wabag to Mount Hagen.
2 The only topic which has been ventilated today has been the application for the trial to be transferred from Wabag to Mount Hagen.
3 In support of the application, a number of affidavits were read:
(1) the affidavit of Fred Bukoya sworn on 21 August 2009;
(2) the affidavit of Goiye Gileng sworn on 28 August 2009;
(3) the affidavit of Derek Wood affirmed on 28 August 2009;
(4) the affidavit of Mark Vara sworn 9 February 2010;
(5) the affidavit of Tom Pelis sworn 9 February 2010;
(6) the affidavit of Muduka Val sworn 9 February 2010;
(7) the affidavit of Derek Wood affirmed 9 February 2010;
(8) the affidavit of Fred Bukoya sworn 25 March 2009; and
(9) the affidavit of Tiffany Nonggorr sworn 19 February 2010.
4 The affidavit of Fred Bukoya sets out the background to the criminal proceedings which arise from events which occurred at the Porgera Gold Mine in February 2002. It is sufficient to record that on 14 September 2004 Jalina J found him guilty of murder, following a trial which commenced in Wabag on 13 July 2004 but that conviction was set aside by the Supreme Court on 17 October 2007. The Supreme Court ordered that there be a re-trial which has been fixed for hearing, commencing on Monday 8th March 2010. Mr Bukoya is currently on bail with conditions which require him to report to the National Court in Waigani.
5 In paragraph 13 of his affidavit, Mr Bukoya recalls that relatives of the two deceased men sat in the back of the court each day and that a security contingent was arranged by him. Mr Bukoya also deposed that he was able to arrange for six members of the mobile squad by reason of his association with the Police Commissioner by reason of them both being involved in the work of the St John’s Ambulance.
6 Paragraph 14 of this affidavit says that people were searched before entering the court and weapons were confiscated. Paragraph 15 asserts that relatives of the deceased looked at him in a hostile manner. In paragraph 16 Mr Bukoya suggests that the brother of the deceased Jerry Yope, who was a colleague of Mr Bukoya at the time of the incident, looked at him in an aggressive manner. Paragraph 17 indicates that Mr Bukoya and his lawyer stayed overnight in Mount Hagen during the trial. Paragraph 18 includes sentences which read: "Given the general level of violence and destruction of property in Wabag in recent times, I am concerned about my safety. There are no hotels in Wabag which would be safe or suitable for me and my legal team. Furthermore, it will make things unsafe for me to travel each day from Mount Hagen to Wabag." The affidavit concludes by saying: "Now that I am self-employed, I am not able to arrange for another mobile squad to ensure my protection."
7 The affidavit of Goiye Gileng also sets out the history of the proceedings. Paragraph 11 of that affidavit says that, with leave of the Court, arrangements were made for members of the mobile squad to escort Mr Bukoya and his lawyer from Mount Hagen to Wabag. Paragraph 12 indicates that Mr Bukoya and his lawyer commuted between Mount Hagen and Wabag and asserts "Given the state of the road, the potential for armed hold ups and tribal fighting in the area, it was necessary for the mobile squad to accompany the defendant and myself at all times for security reasons". Paragraphs 13 and 14 of this affidavit suggest that relatives of the deceased, Jerry Yope, were in court during the trial and became agitated, angry and noisy when the charge relating to the death of Jerry Yope was struck out. Paragraphs 15 and 16 echo what was said in the affidavit of Mr Bukoya, namely that people attending the National Court in Wabag were searched before entering the court and repeated the claim that relatives of the deceased looked at him and Mr Bukoya "in a hostile manner".
8 Mr Wood’s affidavit indicates that he has the conduct of this matter and that he proposes to appear at the re-trial, instructing Mr Molloy who he describes as "a senior barrister", a term commonly used in this country to describe any barrister from Australia irrespective of whether or not that barrister is Queen’s Counsel or Senior Counsel.
9 In paragraph 6, Mr Wood expresses his concern about the trial being held in Wabag but does not provide any reason or basis for that concern in that paragraph. In paragraph 7 Mr Wood recounts his prior experience in the police force and with the army in Australia. He goes on to express an opinion, "based on the matters deposed in Mr Gileng’s and Mr Bukoya’s affidavit (sworn on 21 August 2009) as well my knowledge of the potential of violent tribal conflicts in parts of the Highlands region" that there are valid concerns for the safety of Mr Bukoya if the re-trial is held in Wabag. Mr Wood concludes paragraph 7 of his affidavit by recounting that "on the afternoon of 5 May 2005, after having attended at the National Court at Wabag for an unrelated matter, I witnessed part of a compensation meeting near the town of Wapenamanda relation (sic) to the death of six men in a tribal fight."
19 The application for a change of venue was based on sections 522(2) and 555(2) of the Criminal Code.
20 Section 522(2) reads:
"In relation to any pending matter in which the trial has not yet commenced, the National Court or a Judge may -
(a) on the application of a State Prosecutor or a person awaiting trial or his counsel; or
(b) on good cause being shown
order that the place of trial be changed to some other place appointed under the National Court Act for sittings of the National Court."
21 Section 555(2) provides:
"A court before which a trial has commenced may at any time, on the application of the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act for sittings of the National Court."
22 There is a reported decision in which an application for a change of venue from Mount Hagen to Waigani was considered. In The Matter of an Application for an Order of Transfer of Place of Trial: The State v Theo Yandalan & ors [1994] PNGLR 405. In that case it was noted that relatives of the deceased would still be transported to Mount Hagen if the trial was conducted there instead of in Wabag. In other words, that case suggests that moving a trial from Wabag to Mount Hagen would not stop relatives from attending that trial.
23 The court’s attention was also drawn to the decision of Makail J delivered on 23 March 2008 at Mendi in The State v Mathias Robert (CR1115 of 2007). In that judgment there appears a list of matters which may constitute "good cause": availability and location of witnesses, cost of bringing witnesses to trial, security of witnesses, availability of judges, and availability of the accused’s lawyer and the list of matters pending trial. I have considered those factors when assessing this application.
24 The State relied on the affidavit of Detective Chief Sergeant Jerry Somon sworn 8 February 2010, who investigated this matter. His opinions were based on his role as the investigator in this matter and as the Officer in Charge of the Criminal Investigation Division in Wabag from 1999 to 2008. That background is directly relevant both to this case and to the venue at which the retrial is currently fixed for hearing. The deponent notes a number of matters which include:
(1) It is now more than 8 years since the events in question.
(2) There has been no security problem at the National Court in Wabag since the establishment of the current court building.
(3) If there is any cause for concern he will arrange for the mobile squad to be present and provide security during the trial.
25 For Mr Bukoya, written submissions were lodged and they were supplemented by oral submissions. It was submitted that the main ground for the application was the question of security. The court was asked to take judicial notice of recent threats to lawyers in Waigani. I do take notice that there have been such reports. However, I also note that those matters were not placed in evidence and there was nothing to suggest that any such threats related to this matter or were in any way related to Wabag. It was submitted that the court should act in advance of anything happening as a matter of caution.
26 The State opposes the application for a change of venue. On behalf of the State, Mr Waine submitted that there was no problem with security in Wabag, that there has been no security incident since this court building was opened and that there is a mobile squad available, if required.
27 I now deal with each of the matters raised in this application.
Relatives of the deceased men sitting in the back of the Court
28 Relatives of victims are, of course, entitled to sit in court during a trial and it is important that they do in order that they may have confidence in the rule of law whereby disputes are decided in court by a judge and not by the point of a gun or the blade of a bush knife. This aspect, on its own, does nothing to support the application for a change of venue from Wabag to Mount Hagen and there is nothing to suggest that the relatives of the deceased men will attend the court in Wabag but not in Mount Hagen. Indeed, the reported decision referred to above provides support for the view that people who come to the National Court in Wabag are just as likely to attend the National Court in Mount Hagen.
Relatives of the deceased looking at Mr Bukoya in a hostile manner
29 The specific security concerns related to the forthcoming trial rise no higher than hostile looks being directed at the accused and his lawyers. Lawyers from the Office of the Public Prosecutor and the Public Solicitor’s Office endure that day in, day out. If this was held to be a sufficient basis for a change of venue then the court would be deluged with such applications and the work of the court would be dictated by people who make hostile looks.
Searching people before entering the court
30 There is nothing in the affidavits to suggest that searching people before they enter the court has not been effective. The reality in the National Court in Wabag is that, whenever there is any concern in relation to security, people are searched before they are allowed to enter the court site, not just when they enter the court itself. Accordingly, both the courtroom and its precincts are "weapon-free".
The brother of the deceased, Jerry Yope looking at Mr Bukoya in an aggressive manner
31 I repeat that I do not regard looking at someone in an aggressive manner to be sufficient to warrant a change of venue. Further, I note that the charge in relation to the death of Jerry Yope has been finalised and that such an outcome occurred in July 2004, more than five years ago, without anything more than looks being directed towards Mr Bukoya and nothing since the trial relating to the death of Jerry Yope.
"The general level of violence and destruction of property in recent times in Wabag"
32 This general allegation is insufficient to move this trial out of Wabag and if such an allegation was accepted then the National Court would have no presence in Wabag.
There are no suitable or safe hotels in Wabag
33 No basis was provided for this assertion. Having stayed in a hotel in Wabag for almost three weeks, pending the judge’s residence becoming available, I am satisfied that there are suitable and safe hotels in Wabag and there is nothing in the accommodation, meals, laundry or security aspects of that hotel which supports this bare allegation. At that establishment, breakfast and dinner are provided and lunch can be provided, if requested. My associate can provide relevant details, if so requested. Wabag may not have any five - star hotels but the same can be said of many other locations in Papua New Guinea where the National Court sits, either permanently or on circuit.
Unsafe to travel each day to and from Mount Hagen
34 As a result of the assertion that there are no suitable hotels in Wabag, it is suggested that it is necessary to travel to and from Mount Hagen each day and that such travel is unsafe. If Mr Bukoya and his lawyers choose to stay overnight in Mount Hagen and commute to Wabag then that is a matter for them. However, I do not accept that such travel is necessary. I have recently travelled the road between Mount Hagen and Wabag with and without an escort vehicle, both as a driver and as a passenger, and I do not accept that the safety issues are such as to warrant a change of venue. From an abundance of caution, I am prepared to direct that an escort vehicle be provided to ensure the safe travel of Mr Bukoya and his lawyers from Mount Hagen to Wabag for the commencement of the trial and back from Wabag to Mount Hagen at the conclusion of the trial. My associate will ensure that such an escort vehicle is provided if he is given details of the date time and place for the trip from Mount Hagen to Wabag for the commencement of the trial. However, I do not propose to extend that direction to daily travel as I am not satisfied that a daily commute from Mount Hagen is warranted.
Inability to arrange for the mobile squad to provide protection
35 Mr Bukoya indicates in his affidavit that he arranged for police assistance in relation to his security through his association with Gari Baki who is the current Police Commissioner. There is nothing to suggest that such an association does not continue. There was no suggestion that any payment was made for the provision of such security services which any member of the public is entitled to request if he or she feels that they face a security risk. Mr Bukoya’s affidavit concludes by stating that since he is now self-employed, he is not able to arrange for another mobile squad to provide him with protection.
36 On the question of obtaining security, three points need to be made. First, that there is no evidence that there was a cost of obtaining such security during the first trial. Secondly, there is no clear evidence that any such costs cannot be shouldered now. I note that Mr Bukoya is represented by private lawyers and that he intends to be represented at his trial by both an Australian barrister, instructed by a lawyer from a private law firm in Port Moresby. However, the third and crucial point is that any legitimate security needs can and will be met as occurs from time to time in the National Court in Wabag and that includes members of the mobile squad who are based in Wabag. The assistance of the mobile squad is something which any member of the public can request and there has been no suggestion that any legitimate request for such assistance or protection has been refused. The provision of security services by the police, including the mobile squad, is available to any member of the public, including Mr Bukoya and his lawyers, 24 hours a day, 7 days a week on sufficient cause being shown.
Arrangements were previously made for escort to and from Mount Hagen
37 This does not support the application for a change of venue. On the contrary, when the escort arrangements were in place, nothing untoward appears to have occurred. As I have already indicated, I am prepared to direct that a police escort vehicle be provided for Mr Bukoya and his lawyers for their trip from Mount Hagen to Wabag at the outset of the trial and from Wabag back to Mount Hagen at the conclusion of the hearing.
Relatives of the deceased, Jerry Yope, became angry when a charge was struck out
38 In relation to this aspect, two observations need to be made. First, that nothing happened when the charge relating to the death of Jerry Yope was struck out. Secondly, that the charge relating to the death of Jerry Yope was finalised more than five years ago.
Potential of violent tribal conflicts in parts of the Highlands region
39 This was another general allegation which, if accepted, would mean that no trials would ever be heard in Wabag or even Mount Hagen for that matter. I do not accept that such a general allegation warrants the transfer of Mr Bukoya’s trial.
Observation of a compensation meeting at Wapenamanda on 5 May 2005
40 If the inclusion of this observation in Mr Wood’s affidavit was intended to persuade the court to transfer Mr Bukoya’s trial from Wabag to Mount Hagen then that must fail. Indeed, the inclusion of an observation of a compensation meeting at Wapenamanda, on the road between Wabag and Mount Hagen almost five years ago, suggests that such an incident was included because there was nothing stronger that could be put forward in evidence.
The suggestion that better security arrangements can be put in place in Mount Hagen
41 This suggestion, which was an expression of opinion without any accompanying factual basis, must be rejected for a number of reasons. First, since the District Court in Wabag is housed in a separate building rather than the same building in Mount Hagen. Secondly, since the National Court in Wabag is a single court facility rather than a multiple court facility in Mount Hagen. As a result, the National Court in Wabag is easier to secure because Mr Bukoya’s trial will be the only matter being heard in the National Court in Wabag which would not be the case in Mount Hagen. Thirdly, the National Court in Wabag has more security guards than does the National Court in Mount Hagen. Indeed, the National Court in Wabag security guards on site has 24 hours a day, 7 days a week. Fourthly, the National Court in Wabag is able to provide Mr Bukoya and his lawyers with separate access not only to the site but also to the courtroom so that there will be no contact whatsoever between the accused and his lawyers with the public save for when they are inside the courtroom. Fifthly, entrance to the National Court site in Wabag is restricted to the number of people who are able to sit in the court. Sixthly, whenever there is any security concern, every person who enters through the perimeter gate is searched. Seventhly, there is a locally based mobile squad which patrols outside the courtroom but inside the perimeter fence when that is considered necessary. Eighthly, there are secure metal gates, one of which prevents entry to the court site and another which prevents entry to the courtroom. Having seen these security arrangements in operation during a very recent trial, I am fully satisfied that there are no better security arrangements anywhere else in Papua New Guinea.
42 For obvious reasons, I do not intend to set out the full extent of either the security arrangements which are regularly in place
or the additional security measures which can be taken. However, for the reasons set out in the previous paragraph, I reject the
bare assertion that better security arrangements can be put in place in Mount Hagen.
43 I note that in paragraph 8 of his affidavit, Mr Wood suggests that his client’s request is "partly founded on my view that better security arrangements can be put in place in Mount Hagen" (emphasis added). Unfortunately, the affidavit does not go on to specify what were the other foundations for his opinion. The only
basis advanced in that paragraph is the bare assertion that better security arrangements can be put in place in Mount Hagen which
must be rejected.
Mr Bukoya and his lawyers not prepared to stay overnight in Wabag
44 If Mr Bukoya and his lawyers are not prepared to stay overnight in Wabag then that is a decision they are entitled to make. However, that is not a sufficient basis for a change of venue for the forthcoming trial of Mr Bukoya. If Mr. Bukoya and his lawyers choose to subject themselves to a daily commute from Mount Hagen to Wabag then that is a matter for them.
Decision
45 To the extent that the security concerns expressed in the affidavits are general, they do not rise higher than allegations that would apply to any trial in the National Court in Wabag. Further, to the extent that those general allegations are expressed to relate to the Highlands region, they apply to Mount Hagen as well as Wabag. The specific allegations rise no higher than how people have looked at Mr Bukoya and his lawyer during the first trial. It will be a sad day in this country when the administration of justice moves around for no greater reason than because of the way in which someone looks at the accused or his lawyer.
46 The affidavits do not mention and fail to address the fact that the first trial was conducted in Wabag on Tuesday 13th, Wednesday 14th, Thursday 15th and Monday 19th July in 2004 without any security problem arising. There is no evidence that any problem arose during that trial which involved the death of two persons. The bulk of the allegations put to the court in relation to the looks directed at the accused and his lawyer were expressed to be in relation to the death of Jerry Yope whose death is not relevant to the forthcoming trial.
47 Having considered the affidavits upon which this application is based, it would appear that the accused and his lawyers prefer accommodation in Mount Hagen rather than Wabag and, for that reason, wish to have the trial heard there. That is an insufficient reason to change the venue for Mr Bukoya’s trial.
48 Section 555(2) of the Criminal Code permits a change of venue after a trial has commenced. I do not see how it can be said that the trial of Mr Bukoya has commenced. It therefore appears that the appropriate basis for this application is section 522(2) of the Criminal Code. The words of that provision plainly permit a change of venue in two situations: (1) on the application of a State Prosecutor or on the application of an accused person or his counsel, or (2) on "good cause" being shown. I would question whether the word "or" at the conclusion of section 522(2)(a) should read "and". However, interpreting the provision as it reads, no good cause has been shown so section 522(2)(b) is of no assistance to Mr Bukoya in this application. It is clear that an application is not to be automatically granted under section 522(2)(a) merely because there has been a request because of the inclusion of the word "may" in the first sentence of section 522(2). The word "may" provides the court with a discretion which must be exercised judicially. A principle of that discretion, having regard to the affidavit evidence and the submissions of counsel, does not support the application.
49 Accordingly, the application for a change of venue from Wabag to Mount Hagen is rejected.
50 I note that the Amended Notice of Motion describes the parties as being the Plaintiff and the Defendant. Further, I note that paragraph 5 of the Amended Notice of Motion seeks an order that "The plaintiff pay the defendant’s costs of this application and the proceeding." It appears that the Amended Notice of Motion was prepared by a lawyer more familiar with civil litigation than criminal proceedings and that the Amended Notice of Motion was the result of using word processing to copy a form of motion used in civil proceedings for use in criminal proceedings without any thought being given as to whether or not the orders sought were appropriate.
51 I note that the court has provided Mr Waine and Ms Nonggorr with a list of potential witnesses and an index to the files which the court holds, including the Supreme Court appeal book.
52 As to pre-trial directions, since neither Ms Nonggorr nor Mr Waine will be appearing at the forthcoming trial, it does not make sense to explore pre-trial matters in any detail. The only issues raised in the course of today’s proceedings were the desire to see the indictment. There are two legitimate reasons for that: first, to confirm that only one charge is being prosecuted; secondly, to obtain a list of the proposed witnesses.
53 I make the following directions:
(1) The State is to provide Mr Bukoya’s lawyers with a copy of the proposed indictment and indicate which witnesses it proposes to call by 4pm next Friday, 26 February 2010.
(2) The accused is to indicate which of those witnesses he requests to attend for cross-examination by 4pm on Tuesday 2 March 2010.
(3) In the event that the State seeks to tender a witness statement without calling that witness for cross-examination, or if the accused objects to the tender of any such witness statements, written submissions are to be lodged by 4pm on Friday 5 March 2010 on the question of whether or not such witness statements should be admitted into evidence.
(4) The matter is listed for hearing in Wabag, commencing on Monday 8 March 2010.
______________________________________________
Public Prosecutor: Lawyer for the State
Nonggorr & Williams Lawyers as agents for Blake Dawson Lawyers: Lawyer for the Offender
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