Independent State of Papua New Guinea v Kapo [2023] PGNC 218; N10299 (19 April 2023)

N10299

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 273 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

REX KAPO

-Accused-

Waigani: Tamade AJ

2023: 12^th & 19^th April

CRIMINAL LAW – PRACTICE AND PROCEEDURE – Criminal Code, Section 560 and 567 – demurrer –accused stated that he is wrongly named – issue of demurrer is raised when the indictment does not disclose an offence cognisable by the Court – issue of misnomer relevant and not demurrer – abuse of process – Court ordered for indictment to be amended and trial to proceed

Cases Cited
State v Nanal [2007] PGNC 240; N5480

Legislation
Criminal Code Act

Counsel
Mr Jonathan Siminji, for State
Mr David Kayok, for the Accused

18^th April, 2023

1. TAMADE AJ: On 12 April 2023, the State presented an indictment against the Accused Rex Kapo and his co-accused, Leah Kapo on the charge of wilful murder pursuant to section 299(1) and section 7(a) and (c) of the Criminal Code. Leah Kapo pleaded not guilty to the charge.
   
2. On arraignment of Rex Kapo, the Accused declines to plead any plea and demurs to the indictment pursuant to section 567 of the Criminal Code. Mr Kayok of the accused handed up the Demurrer application that the indictment presented against the Indictment names one Rex Kapo however the Accused and Mr Kayok state that the Accused is wrongly named as he is Kenny Miname and therefore he cannot answer to the indictment as Rex Kapo is not his name.
   
3. I heard submissions from the Defence, attached to the application is an Affidavit of one Kenny Miname. Kenny Miname states that he is from Winkos Village, Kompiam District, Enga Province and he attaches three copies of various Identification Cards which show him as Kenny Miname. He also produces a copy of a Bank South Pacific bank card with the name Kenny Miname and states that he is known by the name Kenny Miname.
   
4. He states that on 9 April 2021, he was at Kerema town doing his sales and when the Police made a group arrest on Engan men and on the same day, he was taken to the Boroko Police Station and charged. He states that he informed the Arresting Officer that his name is Kenny Miname but for some reason they kept referring to him as Rex Kapo. He also states that during the record of interview, he informed the police that he is Kenny Miname though they kept referring to him as Rex Kapo.
   
5. After hearing submissions from the State on the law in which Mr Siminji submitted that the Court still has the power to amend the Indictment pursuant to section 535 of the Criminal Code, the Court adjourned the matter for Mr Siminji to file an Affidavit from the Arresting Officer concerned regarding the name of the Accused. On receipt of the Affidavit of Retired Chief Inspector Leana Moere, this is my decision on the Demurrer raised by the Accused.
   
6. Retired Chief Inspector Leana Moere states that since 2022, he has retired from duties having reached his retirement age however he states that he was the arresting officer involved in this matter. He states that when the Accused was charged and processed, his finger print and photo taken, he stated that his name was Rex Kapo. Chief Inspector Moere also stated that at the Committal proceedings, the Accused never raised the issue as to his name however there is evidence that the Accused was also known as Kenny Miname by several Identification cards.
   
7. Section 567 of the Criminal Code is in the following term:
   

567. DEMURRER.

(1) When an accused person demurs only and does not plead any plea, the court shall hear and determine the matter immediately.

(2) If the demurrer is overruled, the accused person shall be called on to plead to the indictment.

(3) When an accused person pleads and demurs together, it is in the discretion of the court whether the plea or demurrer is first disposed of.

(4) No joinder in demurrer is necessary.

8. In the case of State v Nanal [2007] PGNC 240; N5480 (4 October 2007), (Justice Cannings presiding in that matter), the Court held that:

(1) The demurrer was made prematurely as there was no indictment in place yet; and therefore nothing to demur (object) to.

(2) If the demurrer were not premature, it would still not be upheld as the grounds on which it has been made are improper. The only ground on which a demurrer can properly be made is prescribed by Criminal Code, Section 560(1): the indictment does not disclose any offence cognisable by the court.

(3) The demurrer was for those two separate reasons an abuse of process and was accordingly refused.

9. I agree with the State v Nanal, that pursuant to section 560(1) of the Criminal Code, the only ground for a demurrer (an objection) to the charge is that the indictment does not disclose any offence cognisable by the Court.
   
10. In the case before me, the Accused has correctly raised the demurrer (the objection) at the time the indictment was presented by the State and I see no abuse in this regard. The abuse however is that the basis or ground for the demurrer is that the Accused does not identify with the name on the Indictment and identifies with a different name. This is therefore not the ground under section 560(1) of the Criminal Code. The presentation of the demurrer by the Defence is therefore an abuse of process and is overruled.
    
11. Section 559 of the Criminal Code is however on point in this case as it states that:
    

559. MISNOMER.

If the accused person says that he is wrongly named in the indictment, the court may, on being satisfied by affidavit or otherwise of the error, order the indictment to be amended.

12. This corresponds with section 535 of the Criminal Code which states that:
    

535. AMENDMENT OF INDICTMENTS.

(1) If on the trial of a person charged with an indictable offence–

(a) there appears to be a variance between the indictment and the evidence; or
(b) it appears that–

(i) any words that ought to have been inserted in the indictment have been omitted; or
(ii) any words that ought to have been omitted have been inserted,

the court may, if it thinks that–

(c) the variance, omission or insertion is not material to the merits of the case; and
(d) the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2) When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3) If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made

As the Accused person is also known by the name Kenny Miname, the Court will order pursuant to section 559 and section 535 of the Criminal Code that the Indictment be amended to read “Rex Kapo also known as Kenny Miname” and the Accused shall plead to the charge in the Amended Indictment accordingly and the trial shall continue.

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused