State v Gamato [2021] PGNC 188; N8937 (26 July 2021)

N8937

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 211, 212 AND 213 OF 2020

&

CR(FC) 99 OF 2021

THE STATE

V

PATILIAS GAMATO

AND
TERENCE HETINU

Bomana: Berrigan, J
2021: 21^st and 26^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application for joint trial by the State – Application for separate trials by each accused – No exceptional circumstances warranting separation - Joinder required in the interests of justice.

Cases Cited:
Papua New Guinea Cases

The State v Jimmy Maladina & Herman Leahy (2010) N4081
Belempin Barnabas and others v The State (1998) SC549
The State v Loi (2009) N3590

Overseas Cases

Brennan v R [1936] HCA 24; (1936) 55 CLR 253
R v Grondkowski [1946] KB 369
R v Malinowski [1946] 1 KB 369
Demirok v R (1977) 137 CLR 20
R v Lewis [1996] QCA 405
R v Moghal (1977) 65 Cr App R 56
R v Miller [1952] 2 All ER 667
R v Lake (1976) 64 Cr App 172 at 175
Pham v Regina [2006] NSWCCA 3
R v Fernando & Ors [1999] NSWCCA 66
R v Beaven (1952) 69 WN 140
R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155
R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302

References Cited:

S. 568 of the Criminal Code

Counsel

Ms H Roalakona with S Mosoro, for the State
Mr J Kolo, for Mr Gamato
Mr E Nalea, for Mr Hetinu

RULING ON APPLICATION FOR JOINT TRIAL BY THE STATE
AND FOR SEPARATE TRIALS BY EACH ACCUSED

26^th July, 2021

1. BERRIGAN J: This is an application by the State to join the trials of Patilias Gamato and Terence Hetinu on charges of official corruption and conspiracy to commit a crime, contrary to ss 87(1)(a)(i)(ii) and 515 of the Criminal Code, respectively.
   
2. Each of the accused oppose the application, and apply for separate trial pursuant to s 568 of the Criminal Code.
   

Background

3. The accused Patilias Gamato was committed to stand trial in the National Court on 12 October 2020. The matter was subsequently fixed for trial to commence on 6 July 2021. On 31 May 2021 Terence Hetinu was committed for trial at the National Court. He appeared for the first time on 21 June 2021 at which time the State informed the court that it intended to join the matter with Mr Gamato’s. On 30 June 2021 the State filed an application to join the matters.
   
4. On 21 July 2021 the State presented a joint indictment against the accused in the following terms:
   

Count 1: Patilias Gamato of Sapa Village, Huon District, Morobe Province and Terrence Hetinu of Biteve Village, Kainantu District, Eastern Highlands Province stand charged that the said Patilias Gamato and Terrence Hetinu on the 27th day of June 2017 at Port Moresby, National Capital District in Papua New Guinea being employed in the Public Service as the Electoral Commissioner of the Electoral Commission of Papua New Guinea and employed as an Election Manager for the National Capital District charged by virtue to organise and conduct all elections for National Parliament and the legislative and Local-level Governments, corruptly received the cash monies in the sum of One Hundred and Eighty Four Thousand and Three Hundred Kina (K184, 300) from Michael Kandiu for themselves on account of them paying the polling officials to ensure that Michael Kandiu wins the National Capital District Regional seat in the discharge of the duties of their office, contrary to s. 87(1)(a)(i)(ii) of the Criminal Code. Count 2: Patilias Gamato of Sapa Village, Huon Gulf District, Morobe Province and Terrence Hetinu of Biteve Village, Kainantu District, Eastern Highlands Province stand charged that they the said parties Terrence Hetinu and Patilias Gamato on the 27th day of June 2017 at Port Moresby, National Capital District conspired with each other to receive cash monies in the sum of One Hundred and Eighty Four Thousand and Three Hundred Kina (K184, 300) to be used to pay polling officials to ensure that the candidate Michael Kandiu wins the National Capital District Regional seat to commit a crime, contrary to s. 515 of the Criminal Code.

5. In its Brief Facts the State alleges that:
   

1. The complainant David Wakias is an Election Manager for National Capital District (NCD) employed with the Electoral Commission. 2. The accused Patilias Gamato was employed as the Electoral Commissioner for the PNG Electoral Commission. The co-accused Terrence Hetinu, was the Election Manager of National Capital District (NCD) with the PNG Electoral Commission. 3. It is alleged that on the 27 June 2017 the day of polling in National Capital District (NCD) David Wakias an Election Manager for the Southern Highlands Province at that time and the public reported to police that the accused Terrence Hetinu was driving one of the Electoral Commission vehicles describe as, Foton, registration number ZEA 621 white in colour and was allegedly handing out cash monies as bribes to the polling officials to support one of the NCD Regional Candidates, known as Michael Kandiu. 4. The residents at China Town in East Boroko, NCD saw the accused Terrence Hetinu driving his vehicle and stoned it, it was at this juncture the police was alerted. Terrence Hetinu tried to escape both the public and police but was apprehended at East Boroko Traffic light whereby the police searched the vehicle and found cash monies with the document in the form of Memorandum of Agreement (MOA) in his small black bag. The accused was then taken to Boroko Police Station and was brought before the Commander NCD/Central & Assistant Commissioner of Police, Sylvester Kalaut for further interrogation. 5. It was at the police station, the Commander NCD/Central and in the presence of other police officers; police removed the MOA and the cash money from the accused’s small black bag and counted the money. A total sum of K184, 300 cash monies was found, these monies were bundled in K100 and K50 notes. 6. It is further alleged, that when police questioned the accused regarding the K184, 300 cash monies, he responded stating that the money was given to him by the co-accused Patilias Gamato, the Electoral Commissioner for payment of camping allowances for the polling officials. When police questioned the accused Terrence Hetinu regarding the MOA, he responded that the MOA was left on his table in the office which he picked up alongside the money; it did not come together with the MOA. 7. From police investigations the source of the cash monies did not derive from the Electoral Commission accounts, the source is knowledge known to the accused and co-accused. The co-accused Patilias Gamato had knowledge of these monies and later informed the press both the National and Post Courier that the incident involving Terrence Hetinu and the cash monies was for camping allowances for polling officials.

Submissions

6. The State’s application is supported by an affidavit from the Public Prosecutor sworn on 29 June 2021 to the effect that: the charges against Mr. Hetinu and Mr Gamato arise from their roles during the 2017 National General Elections in the National Capital District, where Mr Hetinu was the Election Manager for NCD while Mr. Gamato was the Electoral Commissioner; as the charges against them arise out of the same facts and contain the same evidence in terms of witnesses from the Electoral Commission and documentary evidence, it would be appropriate as a matter of fairness that their matters be joined for ease of trial management; it will also save judicial time in hearing the matter once and for all without having to repeat the witnesses' evidence in a joint trial; and the joinder will not prejudice the accused in any way.
   
7. The State submits that the application is made on the basis that the cases arise from the same set of facts, involve the same witnesses who testify in each case against the same accused, and it is in the interests of justice that both matters run together as a matter of convenience and to avoid differing verdicts.
   
8. Each of the accused are separately represented.
   
9. Mr Kolo relies on an affidavit sworn by Mr Gamato to submit that his matter was committed first in time, some seven months prior to Mr Hentinu’s. The case against his client is circumstantial and based entirely on the statements made by Mr Hetinu to police and his client’s statements to journalists, which statements were taken out of context. Mr Hetinu is blaming Mr Gamato for the offence. His client is not mentioned in the MOA relied upon by the State whereas several other persons are, none of whom have been charged, including Michael Kandiu, who is at large. There is no evidence of money going to Mr Gamato. Mr Gamato has an entirely separate defence, one of complete denial, on all counts, including conspiracy. The State is seeking to use the conspiracy charge to bring the evidence against Mr Hetinu before the court on his trial and he will be prejudiced by that evidence. The co-accused are being pitted against one another.
   
10. Mr Kolo relies on the decision of Cannings J in The State v Loi (2009) N3590 to make the application pursuant to s 568 of the Criminal Code prior to the commencement of the trial. In that case Cannings J also suggested that in determining whether in order to enforce the rights of an accused to a fair trial under s 37(3) of the Constitution it is necessary to order separate trials under s.57 of the Constitution, “the court should be guided by the views and intentions of the Public Prosecutor, so that if he opposes separate trials, the court should be satisfied that separate trials are necessary to enforce the constitutional rights of the applicants to, amongst other things, the full protection of the law and a fair hearing within a reasonable time by an independent and impartial court”. In that case, the Public Prosecutor having objected to the application, the applicants failed to demonstrate that separate trials were necessary and the application was accordingly refused. Whilst I agree with the fundamental proposition that it is incumbent on an accused to demonstrate why matters which the State intends to join should not proceed as such, I will consider the issue having regard to the principles discussed in more detail below.
    
11. Mr Nalea for Mr Hetinu supports Mr Kolo’s position. He relies on the fact that his client’s defence will be that he was given the monies by Mr Gamato. Counsel submits that the accused each intend to run separate defences, his client is prejudiced, including because one of the accused may go free.
    

Law

12. Section 568 of the Criminal Code, upon which each of the accused rely provides:
    

SEPARATE TRIALS.

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.

13. Section 568 provides for application to be made “any time during the trial”. It is the case that the accused have not yet been arraigned and therefore the trial has not started for the purposes of s 568 but I agree with Cannings J that it is permissible, and indeed preferable, for an accused to object to joinder prior to arraignment. Whether or not any subsequent application under s 568 of the Criminal Code is precluded as an abuse of process will depend on the facts and circumstances of the particular case.
    
14. Section 37(3) enshrines in the Constitution an accused’s right to a fair trial. This is significant because it recognises the fundamental importance of that right. What is required to give effect to that right, and, in particular, the principles governing what is fair with respect to joinder and separation, however, have been considered and developed over many years, both in this jurisdiction and others, through case law. It is important to have regard to those principles when dealing with such applications.
    
15. Neither counsel for the State or either of the accused had regard to The State v Jimmy Maladina & Herman Leahy (2010) N4081, in which Kirriwom J, considered in detail the principles governing joint trial.
    
16. As a starting point, the question as to whether there should be a joint trial is a matter of discretion for the Court: Maladina at [30] applying Brennan v R [1936] HCA 24; (1936) 55 CLR 253, to be determined having regard to the interests of justice and the interests of the accused persons: R v Grondkowski [1946] KB 369; R v Malinowski [1946] 1 KB 369, [1946] 1 All ER 559, Maladina at [33].
    
17. As a general rule, where two or more accused are charged with committing a single offence or a number of offences acting in concert as part of a common purpose or joint criminal enterprise based on the same set of facts, they should be dealt with in one trial: Grondkowski; Demirok v R (1977) 137 CLR 20; R v Lewis [1996] QCA 405; Maladina at 31.
    
18. Only in very exceptional circumstances should separate trials be ordered where two or more persons are charged with the same offence: Maladina at [30] applying R v Moghal (1977) 65 Cr App R 56.
    
19. On charges of conspiracy in particular, justice ordinarily requires that the whole matter should be tried as one case and it needs a very strong and exceptional case before it is split into two separate trials: Maladina at [31] applying R v Miller [1952] 2 All ER 667.
    
20. It is in the interests of justice and the ascertainment of truth that the cases of accused persons facing the same charges are heard together for several reasons.
    
21. The interests of justice demand that such matters should usually be heard together to save costs, time and the resources of the State, avoid inconvenience to witnesses, and promote the efficient administration of justice: Maladina at [41] to [43].
    
22. A joint trial also promotes the ascertainment of truth. It facilitates a single and final inquiry into matters that arise out of or essentially involve common issues of fact or law. It minimises the risk of inconsistent rulings and verdicts and promotes a just outcome: R v Lake (1976) 64 Cr App 172 at 175. R v Miller; Regina v Hayter [2005] UKHL 6; (2005) 1 WLR 605; Maladina at [30] and [43].
    
23. To establish that their trial should be separated, it is necessary for an accused to demonstrate actual prejudice to his defence.
    
24. There is authority overseas that separate trials may be warranted where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another, and where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and where there is a real risk that the weaker prosecution case against the applicant will be made immeasurably stronger by reason of the prejudicial material: Pham v Regina [2006] NSWCCA 3 referring to R v Middis (unreported, SCNSW, 27/3/1991) Hunt J. Not only must the applicant establish all three matters, including that the material is highly prejudicial, but they must also establish that the prejudice cannot be cured by direction to the jury.
    
25. In Papua New Guinea, however, where there is no jury trial, it has long been recognised that there must be exceptional reasons for splitting the trials of co-accused alleged to have acted as part of a common purpose or in a common enterprise: Belempin Barnabas and others v The State (1998) SC549.
    
26. The fact that each accused intends to run a “cut-throat” defence, that is where each accused blames the other, usually strengthens the interest in running a joint trial. It allows the fact finder to consider all the relevant facts. The evidence at separate trials is likely to be incomplete in relation to each accused and the jury would receive an artificial version of events: R v Fernando & Ors [1999] NSWCCA 66; R v Beaven (1952) 69 WN 140; R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155; Grondkowski. See R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302 below.
    

Consideration

27. Having regard to the circumstances of this case, I am satisfied that a joint trial is required in the interests of justice.
    
28. The State’s application is not solely dependent on the fact that one of the charges is conspiracy. The fact that the accused are jointly charged with conspiracy is highly relevant but in any event, the accused are charged with committing the same offences as part of a common purpose.
    
29. Essentially the State’s case is that the accused, in the course of performing their functions with the Electoral Commission, conspired with one another to, and did, corruptly receive monies and then distribute them as bribes to polling officials for the purpose of securing their support for one particular candidate, Michael Kandiu. One accused, Mr Hetinu, the Election Manager for NCD, was allegedly caught with the cash and an incriminating Memorandum of Agreement (MOA). The other accused, Mr Gamato, the Electoral Commissioner, allegedly made statements to journalists associating himself with the monies, claiming them as official electoral monies, when in fact they were not.
    
30. Whilst each are alleged to have played a different role in the offences, the State’s case is based on the same set of factual circumstances. The same witnesses will be called in each case. It will save the Court, the State and the State witnesses, the time, cost and inconvenience of separate trials.
    
31. While the admissions contained in Mr Hetinu’s record of interview may not be admissible against Mr Gamato, that does not mean that Mr Gamato is unfairly prejudiced. The issue may properly be cured by appropriate direction to myself. Judges are required to make such directions on a range of matters all the time in this country.
    
32. In addition, the State relies on circumstantial evidence and the statements of Mr Gamato himself to prove the case against him. The fact that the case against Mr Gamato is circumstantial is neither prejudicial nor exceptional. Many cases are circumstantial. Whether or not the evidence is sufficient to establish the offence against Mr Gamato to the requisite standard is a matter for trial.
    
33. The fact that each accused intend to run separate defences, and in particular that Mr Hetinu seeks to blame Mr Gamato, and Mr Gamato will claim no knowledge at all of Mr Hentinu’s conduct, does not establish prejudice against either of them and is not a basis for separation.
    
34. As King CJ in Collie, Kranz and Lovegrove, at 308 explained (emphasis added):
    

‘the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it’.

35. That is precisely the situation here. A joint trial will bring finality to the matters in issue and avoid inconsistent verdicts.
    
36. Nothing turns on the fact that each of the accused have come through the committal process separately. I see no reason why persons who have been separately committed for trial for offences which can lawfully be charged in the same indictment cannot be joined at trial. In this case a joint indictment has been presented. Even if that were not the case and a separate indictment had already been signed against one accused, that would not preclude joinder: see Maladina at [44] where Mr Maladina had been committed whilst the indictment against Mr Leahy was presented under s 526 of the Criminal Code.
    
37. It is a regrettable fact that matters that should be dealt with together at the committal stage are being separated by the police. Whilst in some cases it may be unavoidable, in many cases, as in this one, the reasons do not appear obvious.
    
38. Whilst Mr Gamato’s matter was fixed to commence on 6 July 2021, his matter will not be unduly delayed by the joinder. Mr Hetinu has now had sufficient time to instruct counsel.
    

Conclusion

39. In conclusion, both accused are charged with the same offences, alleged to have been committed as part of a common purpose, in connection with their official functions and responsibilities. The facts and circumstances relied upon are substantially the same. The same witnesses will testify against each of them. A joint trial will save the time, cost and inconvenience of separate trials. It will bring finality to the matters in issue and avoid inconsistent verdicts. Neither accused have demonstrated actual prejudice that will be suffered as a result of the trial being held jointly. No exceptional circumstances warranting separate trials have been established.
    
40. The trials of each accused will be heard jointly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Kolo & Associate Lawyers: Lawyer for Mr Gamato
Kamen Lawyers: Lawyer for Mr Hetinu