N5822

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1296 of 2013

In the matter of an application by Selwin Orosota Re:

THE STATE

V

FRANCIS LAMEI, MARK MOINA, ALEX ARING, AIPE GERE, SELWIN OROSOTA.

Lorengau: Geita J
2014: 11th & 12th November

CRIMINAL LAW – Practice and procedure – application for separate trials – Criminal Code Section 568 (separate trials) – National Court has unlimited jurisdiction – Section 166 Constitution.
CRIMINAL LAW – Applications can only be made during the trial pursuant to Section 568 of the Criminal Code- Trial has not commenced in this case - Application misconceived and refused.
CRIMINAL LAW- Parties at liberty to make fresh application during trial using set procedures under The Criminal Practise Rules.
Cases Cited:

Wemp Mapa and Others v The State [1979] PNGLR 135
The State v Paul Loi (2009) N3590

Counsel:
Mr. Francis Popeu, for the State
Mr. Tom Kaleh, for the Applicant
Mr. Darrel Sakumai, for the four Accused

12 November, 2014

RULING

1. GEITA J. The accused Selwin Orosota has applied to the court for an order that he be tried separately from the four other accused. The application was made under Section 568 of the Criminal Code, on the ground that it was likely that the he would be prejudiced if tried together and in the circumstances his right to a fair trial may be prejudiced. The Public Prosecutor opposed the application.

2. Mr Kaleh for Orosota further submitted that the granting or refusal of applications of this nature was a discretionary matter and urged court to grant orders in favour of his client. 

3. Mr. Sakumai for the four other accused supported this application and said it was properly made under Section568 Code. He argued that there was a real likelihood of his client's evidence implicating Selwin Orosota if the matter goes to trial resulting in him being subjected to cross examination: Question of fairness rose. He further submitted that there was a real likelihood of a denial being advanced by his clients during arraignment which would distance Selwin Orosota. Mr Sakumai submitted that the accused was entitled to the protection of law under sections 37and 42 Constitution and that he be accorded a separate trial. 

4. Mr Popeu, for the State, opposed the application and advanced that the application was left too late. He submitted that this was not the first time this has happened and the State has gone to great lengths and expenses to fly in their witnesses for this trial. He pointed out that State witnesses were at a state of readiness to testify and implicate all five accused persons. It will involve an unnecessary duplication of resources to run two separate trials. Mr. Popeu submitted that the question of prejudice and bias was unfounded in that all five accused will each and severally be indicted and implicated. The State witnesses will be the same for all co-accused. 

5. I now look at what Section 568 Criminal Code has to say:

"When two or more persons are charged in the same indictment, whether with the same offence or with different offences, the court may, at any time during the trial, on the application of any of the accused persons, direct that the trial of any of the accused persons be held separately from the trial of the other or others of them. [Emphasis mine]"

6. There is no question that this matter has not reached the trial stage. All we have is that the five accused have been committed to stand their trial by the Committal District Court. Likewise they all have yet to be arraigned. We are in the process of getting the matter ready for trial. Might I add here that specific directions were made during the last circuit for this matter to be tried this circuit and all counsels advised accordingly. That is not the position now. It follows that this application is misconceived as Section 568 only allows such applications to be made during the trial.

7. However notwithstanding this finding, the National Court still has an unlimited and inherent powers under Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case trials if the Judge considers that the interests of justice require it. (Wemp Mapa and Others v The State [1979] PNGLR 135). The exercise of discretion should be guided in the first instance by the views and intentions of the Public Prosecutor. This is what Cannings J said in the following case (The State v Paul Loi (2009) N3590 and I quote:

"... the Public Prosecutor is the independent constitutional office-holder, whose primary functions include under Section 177(1) of the Constitution, the control and exercise of the prosecution functions of the State. The Public Prosecutor's job is to consider, in light of Sections 525 and 526 of the Criminal Code, what matters should be prosecuted on indictment. The court might unwittingly encroach on the Public Prosecutor's independence if it were not to give special consideration to the Public Prosecutor's view on whether separate trials should be ordered. If the Public Prosecutor opposes an application for separate trials, the onus should be on the applicants to show that separate trials are necessary to enforce their constitutional rights to, amongst other things, the full protection of the law and a fair hearing within a reasonable time by an independent and impartial court (as per the Constitution, Sections 37(1) and 37(3))".

8. It follows therefore that the Public Prosecutor has opposed the application in this case. Having heard brief arguments for and against this application the applicant has failed to demonstrate that separate trial is necessary. I am not satisfied that his right to a fair trial might be prejudiced. Mr Sakumai's argument in support of this application in my view is misconceived. For a moment I venture to ask if he is arguing for orders for Selwin Orosota or for the four accused, his clients.' 

9. Due to the foregoing reasons the application seeking a separate trial this time around is refused. Furthermore application seeking to invoke the inherent powers of the National Court before the commencement of a trial, to order separate trials, is also refused. No such application was made in any event before me, save this application under Section 568 Criminal Code. Parties are at liberty to make fresh application if they so wish during trial using the set procedures available under The Criminal Practice Rules as amended to date. 

RULING

(1) The application for separate trials is refused.

(2) The joint trial of the five co-accused shall proceed at a time and place to be set.

Ruling accordingly.
_______________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent