State v Jovu [2022] PGNC 541; N10065 (17 March 2022)

N10065

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 182 &197OF 2021,183&198OF 2021,184&199OF 2021,185&200, 186&201,188&203,189&204 OF 2021,190 &205 OF 2021,191&211 OF 2021,192&212 OF 2021,193 &213 OF 2021,194&214 OF 2021,195&215 OF 2021,196&216 OF 2021, CR(JJ)34&37 OF 2020,(JJ)35&38 OF 2020,(JJ)35&38 OF 2020, (JJ)36&39 OF 2020

THE STATE

V

CAMERON JOVU,
EMMANUEL KOVIRO,
HUMPHREY KONENE,
JOSEPH AKUMA,
BOBBY JOVU,
TIMOTHY JOFO,
MIKE JOFO,
HOWARD POU,
ZEBEDEE AKUMA,
FRANK JOHNSON,
LOIDE KOIKO SAWA,
CLANTY OROTU,
SMITH ARIKO,
BRANDON ESIKO,
TADIUS ROKO
and
ROBERT JOVU
Accused/Applicants

Popondetta: Sambua, AJ
2022: 11^th, 14^th, 15^th & 17^th March

CRIMINAL LAW – Application to quash indictment pursuant to section 558 of Criminal Code chapter 262 – brief facts did not support the charges on the indictment – indictment can be quashed if it does not establish an offence and not the brief facts – the anomaly can be cured by amendment to the brief facts - application to quash the indictment refused.

Cases Cited:
State v William (No 1) [2004] N2556
State v Sohia Kobobo [2006] N4477
State v Jeffery Ava [2010] N4161
State v Ruth Tomande [2019] N7798

Texts:

Constitution of PNG – Section 37(2) & section 155(4)
Criminal Code of PNG – Section 558
Criminal Law and Practice in PNG – 3^rd Edition

Counsel

Mr E Yavisa and Mr S Kuruwalo, for all Accuseds/Applicants
Mr R Luman and Mr S. Kuku, for the State/Respondent

RULING

17^th March, 2022

1. SAMBUA, AJ: This is a ruling on an application by the accuseds/applicants through their lawyer, Mr Yavisa from the Public Solicitor’s Office, to quash the two (2) indictments pursuant to section 558 of the Criminal Code. Mr Yavisa had submitted that the brief facts did not support the charges on the two indictments.
   
2. There were two (2) different indictments presented against the eighteen (18) co-accuseds/applicants. Sixteen (16) of them were charged with two (2) counts of wilful murder under section 299(1) of the Criminal Code while two (2) of them were indicted with two (2) counts of murder under section 300(1)(a) of the Criminal Code.
   
3. The charges on the first indictment for the sixteen (16) co-accuseds/applicants CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE, JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRENDON ESIKO, TADIUS ROKO and ROBERT JOVU who have been charged with two (2) counts of wilful murder under section 299(1) of the Criminal Code, read: -
   

HELD AT: POPONDETTA

COUNT 1: CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE, JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRENDON ESIKO, TADIUS ROKO and ROBERT JOVU, all from AMEBENE, SOHE, ORO PROVINCE stands charged that they said CAMERON JOVU, the said EMMANUEL KOVIRO, the said HUMPHREY KONENE, the said JOSEPH AKUMA, the said BOBBY JOVU, the said TIMOTHY JOFO, the said MIKE JOFO, the said HOWARD POU, the said JEBEDEE AKUMA, the said FRANK JOHNSON, the said LOIDE KOIKO SAWA, the said CLANTY OROTU, the said SMITH ARIKO, the said BRENDON ESIKO, the said TADIUS ROKO, the said ROBERT JOVU on the 13^th day of November 2019 at AMBENE in Papua New Guinea, wilfully murdered one BARTHOLOMEW UMBU.

COUNT 2: CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY, KONENE, JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRENDON ESIKO, TADIUS ROKO and ROBERT JOVU, all from AMEBENE, SOHE, ORO PROVINCE stands charged that they said CAMERON JOVU, the said EMMANUEL KOVIRO, the said HUMPHREY KONENE, the said JOSEPH AKUMA, the said BOBBY JOVU, the said TIMOTHY JOFO, the said MIKE JOFO, the said HOWARD POU, the said JEBEDEE AKUMA, the said FRANK JOHNSON, the said LOIDE KOIKO SAWA, the said CLANTY OROTU, the said SMITH ARIKO, the said BRENDON ESIKO, the said TADIUS ROKO, the said ROBERT JOVU on the 13^th day of November 2019 at AMBENE in Papua New Guinea, wilfully murdered one SIKO UMBU.

Dated this 10^th day of March 2022

PONDROS KALUWIN

Public Prosecutor

4. The charges on the second indictment for the two (2) co – accuseds/applicants ANDREW SARIKO AND JESSE AKUMA who were charged with two counts of murder under section 300(1)(a) of the Criminal Code, read:
   

HELD AT: POPONDETTA

COUNT 1: ANDEW SARIKO AND JESSE AKUMA both from AMBENE, SOHE, ORO Province stand charged that they on the 13^th day of November 2019 at Ambene, Sohe in Papua New Guinea

murdered on BARTHOLOMEW UMBU.

Count 2: ANDEW SARIKO AND JESSE AKUMA both from AMBENE,

SOHE, ORO Province stand charged that they on the 13^th day of November 2019 at Ambene, Sohe in Papua New Guinea murdered one SIKO UMBU.

Dated this 08^th day of March 2022

PONDROS KALUWIN

Public Prosecutor

5. Two (2) separate indictments were presented against all eighteen (18) accuseds/applicants because two (2) of them, Andrew Ariko and Jessie Akuma, I believe through plea bargaining with the State counsel, were pleading guilty to two (2) counts of murder under section 300(1) (a) of the Criminal, hence a separate indictment on the charge of murder while the sixteen (16) co – accuseds/ applicants CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE, JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRANDON ESIKO, TADIUS ROKO and ROBERT JOVU, were pleading not guilty to the two (2) counts of wilful murder under section 299(1)(a) of the Criminal Code. The two indictments presented arose out from the same set of circumstances.
   

The brief History of the case.

6. The State alleged that between 6.00am to 8.00am on the morning of 13^th November 2019 at Ambene village, the accused/applicants Cameron Jovu, Emmanuel Koviro, Humphrey Konene, Joseph Akuma, Bobby Jovu, Timothy Jofo, Howard Pou, Zebedee Akuma, Frank Johnson, Loide Koiko Sawa, Clanty Orotu, Smith Ariko, Brendon Esiko, Tadius Roko, Robert Jovu, Andrew Sariko and Jesse Akuma converged onto the residence of the two deceaseds, Bartholomew Umbu and Siko Umbu and attacked them with various weapons on suspicion of practicing sorcery.
   
7. The two deceaseds managed to escape and walked down to the main Ambene village to report the incident to their ward councillor. Upon arrival at the ward councillor’s house, they were surrounded by the accuseds/applicants together with others who were armed with weapons, such as homemade guns, bush knives, grass knives, hunting spears, stones etc.
   
8. The attack began when the accused/applicant Timothy Jofo called out and gave orders to the accuseds/applicants “boys move”. The accuseds/applicants immediately formed two groups and chased and attacked the two deceaseds at different locations which eventually led to their deaths.
   
9. The accuseds/applicants, Mike Jofo, Andrew Sariko, Clanty Orotu, Zethro Orotu, John Jofu and Ronald Gilbert attacked and killed the deceased, Batholomew Umbu and then joined the attack on the second deceased, Siko Umbu and killed him.
   
10. The other group which comprised of Francis Sariko, Eddie Orotu, Smith Ariko, Brandon Esiko, Jesse Akuma, Alfie Orotu, Mclean Jovu, Humphrey Kenene and others chased the second deceased. The second deceased was caught and killed by the accused/applicants. The dead body of Siko Umbu was then dragged on the ground to the village playing field where they chopped off his hands and penis and shoved his penis into his anus.
    
11. The State therefore alleged that when the 16 accused/applicants attacked and killed the two deceased persons, Bartholomew Umbu and Siko Umbu, with bush knives, grass knives, hunting spears, stones etc, they intended to cause their deaths thereby contravening section. 299 (1) of the Criminal Code. The other two accused persons, Andrew Sariko and Jesse Akuma when they attacked and killed the two deceaseds Bartholomew Umbu and Siko Umbu, they intended to cause them grievous bodily harm however death resulted thereby contravening section. 300 (1) of the Criminal Code.
    
12. The State also invoked section 7 and 8 of the Criminal Code Act in that, that under section 7 each of the accused persons aided and abetted each other in attacking and killing the two deceased persons and under section 8, the actions they took to kill the two deceased persons was unlawful and unauthorised by law.

Application to quash the indictment

13. Before I could arraign all eighteen (18) accuseds/applicants, Mr Yavisa, counsel for the accuseds/applicants made an application under section 558 of the Criminal Code to quash the indictment on grounds that the brief facts did not support the charges on their respective indictments.
    
14. Apparently, in this case, the two (2) indictments that were presented on Friday 11^th March 2022 were perfectly in order. What Mr Yavisa submitted, in his motion to quash the indictment was that the brief statement of facts did not support the two (2) counts of wilful murder under section 299(1) of the Criminal Code on the first indictment and the two counts of murder under section 300(1) of the Criminal Code on the second indictment.
    
15. He submitted that the State did not allege in the brief facts that when the sixteen co - accuseds CAMERON JOVU, EMMANUEL KOVIRO, HUMPHREY KONENE, JOSEPH AKUMA, BOBBY JOVU, TIMOTHY JOFO, MIKE JOFO, HOWARD POU, ZEBEDEE AKUMA, FRANK JOHNSON, LOIDE KOIKO SAWA, CLANTY OROTU, SMITH ARIKO, BRANDON ESIKO, TADIUS ROKO and ROBERT JOVU, attacked and killed the two (2) deceaseds Batholomew Umbu and Siko Umbu, they intended to cause their death thereby contravening section 299(1) of the Criminal Code and for the two co – accused Andrew Sariko and Jessie Akuma, Mr Yavisa submitted that the State did not allege that when the two accuseds Andrew Ariko and Jessie Akuma attacked and killed the two (2) deceased persons, Batholomew Umbu and Siko Umbu they intended to do grievous bodily harm to them but they died as a result of the injuries they inflicted on them thereby contravening section 300(1) (a) of the Criminal Code.
    
16. In my view this oversight by the State is trivial and can be cured by the court directing the State to include the oversight and the accused persons can be arraigned on the amended facts with the allegations as highlighted by Mr Yavisa in his submission. It does not invalidate the charge(s) on the indictment.
    
17. The two indictments presented by the State against all accuseds/applicants were in order and were accepted and endorsed by the court.
    
18. Section 558 makes reference to the charges on the indictment only and not to the brief facts. Section 558 of the Criminal Code provides for quashing of defective indictments.

Section 558; MOTION TO QUASH INDICTMENT.

(1) The accused person may, before pleading, apply to the court to quash the indictment on the grounds that –

• (a) It is calculated to prejudice or embarrass him in his defence to the charge; or
  
• (b) It is formally defective.
  

(2) On a motion under Subsection (1), the court may-

• (a) Quash the indictment; or
  
• (b) Order it to be amended in such manner as the court thinks just; or
  

(c) Refuse the motion

19. Section 558 (1) provided situation where an accused may apply to quash an indictment and in subsection (2) it provides actions the court may take. The court may quash the indictment or amend the indictment or refuse the motion.
    
20. The issue now is, should the court quash the indictment or order it to be amended or refuse the motion by the defence, just because the brief facts do not support the elements of the charges on the indictment? In this case the two counts of willful murder in the first indictment and the two counts of murder on the second indictment. This raises another issue of how the brief facts feature in this motion to quash an indictment.
    
21. In my view the brief facts presented by the State at the commencement of hearing of a criminal case is an overview or an outline of the evidence the State will rely on to prove each and every element of the charge on the indictment. In early days it was referred to as the opening address where the Prosecution informs the court orally of its witnesses and the nature of their respective evidence.
    
22. It was not formal as it is today whereby Prosecutors hand up a copy of the written brief facts to the court for the presiding judge to arraign the accused(s) on. It used to be oral and brief. It was an outline of the State’s evidence against the accused(s) and at the end of the trial, if the Prosecution fails to adduce the evidence it has stated in its opening address to prove each and every element of the charge, the accused(s) is/are entitled to an acquittal and that is the end of the matter.
    
23. In all criminal cases, in our criminal justice system adopted from the common law system, the prosecution is required to do the opening address. In the case of Jimmy Mostata Maladina v the State [2016] SC1495 (20 April 2016), His Honour Gavara-Nanu, had this to say:
    

“counsel for the State delivered an opening address before calling evidence, as he was entitled to do. In that address, he gave a brief outline of the evidence the prosecution intended to adduce to prove the charges. The opening address was significant in that, it informed the Court and the defence that it had such evidence........ Consequently, if the State failed to adduce the evidence, then that was a clear indication that it did not have the evidence, and more importantly, the prosecution case could be inherently weak. These were two significant factors the trial judge was entitled to have regarded to at the end of the prosecution case’.

24. In the case of State v Justin Parker [2017] N6803 (29 May 2017),Waigani, Salika DCJ (as he then was) stated that:

“52. ....the submissions of the accused through his lawyers have attacked the credibility of the evidence of Elsha. Those submissions in particular pointed out the inconsistencies in her evidence and the unlikelihood of those events taking place. While I accept the defence submission on pointing out the inconsistencies of the State’s opening address and Elsha’s evidence, I do not consider it fair to submit that the State’s opening statement must have come from Elsha. Elsha’s statement I assume was on the court depositions. If Elsha’s statement was as opened by the State, the defence was at liberty to cross-examine Elsha on that and have her statement tendered into evidence as a prior inconsistent statement but that was not the case. The defence never tendered Elsha’s statement as evidence of a prior inconsistent statement. Elsha was not here on the first day of trial. She was still in Kavieng. Where the State got its opening address from, I do not know but it did not come from Elsha. I agree the State’s opening does not match Elsha’s evidence. State Prosecutors must be careful that they allege accurately what the witness will say. For that they needed to go through the witnesses’ depositions. Elsha was not the only person who witnessed the event”.

25. I adopt the sentiments expressed by His Honour, Salika, DCJ (as he then was) in State v Justin Parker as it is applicable in this case. State Prosecutors have an important role to play in our Criminal Justice system as adopted from the common law system. State Prosecutors should be more careful and be diligent in their preparations for trial.
    
26. In State v Jeffery Ava [2010] N4161 (16 November 2010) a Wewak case by Kariko J, whereby he stated that the prosecution may with leave of the court amend an indictment after presentation and before arraignment. It is a matter of discretion for the Judge before whom the application for amendment is made, and the Judge may have regard to but is not bound by the matters prescribed by section 535 of the Criminal Code; Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018. Although this Supreme Court decision relates to an indictment laid under section 526 of the Criminal Code or what is commonly referred to as an "ex-officio indictment", the principles equally apply to an indictment laid under section 525 of the Criminal Code.
    
27. In that case His Honour Kariko, J accepted the submissions by the State and balancing the interest of the accused and the interest of justice, he granted the application to amend the indictment, however, went on further to state that the course open to the prosecution that:

“While I appreciate that being on circuit in a small town offers certain limitations in preparation for a case, including the drafting of an indictment, the prosecution duty to properly indict must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. “

28. The sentiment expressed by His Honour Kariko J are equally applicable to this case that the prosecution duty to properly indict, must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. Great care has to be taken when performing this task.
    
29. This in my view, this sentiments expressed by His Honour Kariko, J extends to and equally applies to Prosecutors drafting the brief facts or the opening addresses. The brief facts the prosecution wishes to rely on, as much as possible should try to accurately reflect the evidence in the committal depositions. This boils down to preparations. Preparations is the key to success. The outcome of a particular case/task is dependent on the quality of preparations. If the preparation is good, the result is good. If the preparation is poor, the result is poor. This in my view supports the proposition that “Proper Preparation Prevent Poor Performance.”
    
30. And I do agree with Mr Yavisa, that the brief facts handed up and read out by the State lawyer did not disclose the elements, for instance “intention to kill” in relation to the charge of willful murder under section 299(1) of the Criminal Code and “intention to cause grievous bodily harm” in relation to the charge of murder under section 300(1) (a) of the Criminal Code.
    
31. Since section 558 of the Criminal Code makes reference only to indictment and not the brief facts and in light of the statement by His Honour Justice Gavara-Nanu in the case of Jimmy Mostata Maladina v The State (supra) and the statement by His Honour Salika, CJ in his previous position as the Deputy Chief Justice in the case of State v Justin Parker (supra), I am of the view that this application to quash the indictment is misconceived because it does not invalidate the charges on the two indictments. The brief facts presented by the State is only an outline of the evidence the prosecution intends to adduce and rely on to prove the charges against the accuseds and it informs the Court and the defence that it has such evidence.
    
32. However, before making a decision as to whether or not the court should quash the indictment, a further issue arises as to whether it would be in the best interest of justice for the court to take action as prescribed under section 558 (2) of the Criminal Code.
    
33. In the case of State v Ruth Tomande [2019] N7798 (5 April 2019) a decision by Berrigan J whereby the State had presented an indictment against the accused containing one count of money laundering contrary to s.508(1) of the Criminal Code (Ch.262) (the Criminal Code). The State then sought leave to withdraw the indictment with the intention of presenting a fresh indictment containing the said count together with an additional 14 counts of obtaining property by false pretence and one count of misappropriation, contrary to s.404 and s. 383A of the Criminal Code, respectively.
    
34. The defence objected to the withdrawal of the indictment. It was not submitted that the proposed course is prejudicial to the accused, rather that it is an irregularity.
    
35. Her Honour Berrigan J was of the view that the accused was yet to be arraigned and therefore is yet to be brought to trial. A trial only begins when the accused is called on to plead to the indictment: s.557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at this stage; s.535 is, by its terms, predicated on a trial having commenced.
    
36. Leave was granted as it was in the interest of justice to do so. The interest of justice requires both the accused persons brought to trial and that they received and are seen to receive a fair trial. For these reasons it was her view that leave to withdraw the indictment in that case was granted.
    
37. The next question is, would it be in the best interest of justice to quash the indictment in this case?
    
38. In this case, all eighteen co-accuseds/ applicants were initially charged with the most serious homicide charge of willful murder under section 299 (1) of the Criminal Code. It may have been through plea bargaining that two of them are pleading guilty to a lower homicide charge of murder under section 300(1)(a) of the Criminal Code.
    
39. Therefore, it is my view that it would not be in the best interest of justice to strike out their case at this stage on a technicality. It should be allowed to go through the normal criminal process. The eighteen (18) accuseds/applicants have not been arraigned and that their trial has not commenced by operation of section 557 of the Criminal Code therefore no prejudice has been done to them. They have been arrested by police for a very serious criminal allegation. Hence, their case has to be processed and dealt with in accordance with the law.
    
40. In my view it’s only an irregularity that can be easily cured by the court directing the State to include the oversight and the accuseds/applicants can be arraigned on the amended facts with the allegations as highlighted by Mr Yavisa in his submission. It does not invalidate the charge(s) on the indictment for quashing it. And I refer to comment by Justice Berrigan in the case of State v Ruth Tomande (supra), whereby the defence objected to the withdrawal of the indictment. It was not submitted that the proposed course is prejudicial to the accused, rather it was an irregularity.
    
41. Her Honour Berrigan J was of the view that the accused was yet to be arraigned and therefore was yet to be brought to trial. A trial only begins when the accused is called on to plead to the indictment: s.557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at that stage; s.535 is, by its terms, predicated on a trial having commenced.
    
42. For the reasons I have alluded to above, I am exercising my discretion to refuse the application to quash the indictment and I grant leave to the State to redraft the brief facts to capture the oversight as highlighted in Mr Yavisa’s submission for presentation and arraignment of eighteen (18) accuseds/applicants.

Order

43. The formal orders of the court are:

1. Motion to quash the indictments is refused.
2. Leave granted to the State to re-draft the brief facts as highlighted in the defense submission to quash the indictment for presentation and arraignment of all the accused.
   

________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent