Mapa v The State [1979] PGSC 15; [1979] PNGLR 135 (4 May 1979)

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CRIMINAL LAW - Practice and procedure - Joint trial - Power to order separate trials - Discretionary power - In interests of justice as a whole.

CRIMINAL LAW - Evidence - Witnesses - Spouse of accused - Joint trial - Evidence of spouse objected to - Evidence not available against any co-accused - Evidence Act 1975, s. 71(2)[cxx]¹.

Five accused were jointly indicted on a charge of wilful murder. During the course of the trial the wife of one of the accused was called to give evidence. The trial judge on being informed that the accused husband did not consent to his wife giving evidence against him ruled that the effect of s. 71(2) of the Evidence Act 1975 was to prevent the reception of the wife’s evidence not only against the accused husband but also as against the other four accused. The State prosecutor then sought a severance of the accused husband’s trial pursuant to s. 567 of the Criminal Code, which the trial judge granted as being “in the discretion of the court where the interests of justice require it.”

N1>(1) The effect of s. 71(2) of the Evidence Act 1975 is such that where two or more persons are indicted jointly, the wife or husband of any such accused, is not an available witness against any co-defendant, without the consent of the accused wife or husband.

N1>(2) Where two or more persons are jointly indicted, the trial judge has power to order separate trials (or to refuse to do so), if in the exercise of his discretion he considers it proper to do so in the interests of justice as a whole.

N1>(3) Accordingly, there being no error of law, the appeals should be dismissed.

This was an appeal against conviction by four accused — jointly indicted on a charge of wilful murder on the grounds inter alia:

That the court was wrong in law in deciding that the wife of one of the co-accused could not give evidence against the other accused who were jointly indicted with her husband.

That the court was wrong in law in that it ordered a separate trial of an accused person who was indicted jointly with the four prisoners when no application for a separate trial was made by any of the accused persons under s. 580 of the Criminal Code Act 1975.

RAINE DCJ: I have read in draft the judgment of my brother Andrew and I agree with his reasons and conclusions. I have nothing to add.

PRITCHARD J: I have had the benefit of reading the judgment of Andrew J. and I agree with the reasons advanced by him and the orders proposed.

ANDREW J: This is an appeal against the decision of the Chief Justice given in Mount Hagen on the 20th November, 1978, whereby the appellants were found guilty of an offence that on the 16th July, 1978, they wilfully murdered one Yawa Pukupa, and were imprisoned with hard labour for eleven years and six months. The appeal is brought against the conviction only.

The trial of the four appellants commenced in Mount Hagen on the 13th November, 1978. They were all jointly indicted together with a fifth accused, one Tom Guli. After the trial had progressed for three days the learned State Prosecutor called one Ruth Yaki to give evidence. She was the wife of the fifth named accused (Tom Guli) and her name had been included on the indictment as being one of the proposed witnesses. After she had been affirmed, counsel for Tom Guli stated that her evidence “may be taken and admitted against the other four but not against Tom Guli.” Thereafter the trial judge was informed that Tom Guli did not consent to his wife giving evidence against him and he ruled that the effect of s. 71(2) of the Evidence Act 1975, was to prevent the reception of the wife’s evidence not only as against the husband but also as against the other four accused.

The second ground of appeal was against this finding and is in the following terms: “That the court was wrong in law in deciding that the wife of one of the co-accused could not give evidence against the other accused who were jointly indicted with her husband.”

It is convenient to deal with the second ground of appeal first. Section 71(2) of the Evidence Act 1975 is as follows:

“Notwithstanding the provisions of Subsection (1), the wife or husband as the case may be, of a person charged with an offence shall not be called as a witness in any proceeding in connexion with that offence without the consent of that person, except:

(a) where the wife or husband, as the case may be, is compellable to give evidence; or

(b) where either the husband or the wife, as the case may be, is charged with being a party to an offence against the other.”

In my view, from a plain reading of the words “shall not be called in any proceeding in connexion with that offence ...” it is clear that the ruling of the trial judge was correct. Furthermore, with regard to a case where prisoners were charged jointly, in R. v. Thompson[cxxi]² is was made quite clear that, where two or more persons are indicted jointly, the wife or husband of any such defendant is not an available witness against any co-defendant. That rule of common law is absolute and undisturbed. See also R. v. Mount[cxxii]³. I would therefore dismiss the second ground of appeal.

Following the trial judge’s ruling the learned State Prosecutor sought a severance of Tom Guli’s trial from the others pursuant to s. 567 of the Criminal Code. Counsel for Tom Guli opposed the application but counsel for the four appellants had nothing to say. His Honour made the following ruling:

“In this matter all counsel had come to trial on the understanding that s. 71(2) would allow the evidence of Ruth Yaki to be taken and regarded as admissible against four of the accused but not against her husband, Tom Guli who would object to her giving evidence, and did so object. I have now ruled that in my opinion the section has a different effect. The trial has now proceeded for three almost full days and extensive cross-examination has been undertaken on the basis that the evidence of Ruth Yaki would be available against all the accused except Tom Guli.

In my opinion the interests of justice require that Ruth Yaki’s evidence be available against the four accused and not against the husband. I consider therefore that insofar as the interests of Tom Guli and of the other accused are diverse, the only way I can ensure that justice be done between the State and all of the accused, is to order a severance. I am of the opinion that such a course is in the discretion of the court where the interests of justice require it. The result of my making a firm order as to mistrial in relation to Tom Guli only, would be that his trial would have to recommence, but the ultimate result would be that the evidence against him on the one hand and against other four accused on the other, would be as counsel had anticipated it would be. I can envisage no prejudice to them or to the accused Tom Guli by such a course.”

“That the court was wrong in law in that it ordered a separate trial of an accused person who was indicted jointly with the four prisoners when no application for a separate trial was made by any of the accused persons under s. 580 of the Criminal Code Act 1975.”

I think the first point to note is that his Honour did not purport to act under s. 580 of the Code. The learned prosecutor made his application for severance under s. 567. Both he and counsel for Tom Guli indicated to the court that an application for severance under s. 580 could only be made by an accused.

His Honour said that he would order a severance as he was of the opinion that such a course was in the discretion of the court where the interests of justice required it. He effected the severance by making a formal order declaring Tom Guli’s trial to be a mistrial.

The National Court is a court of unlimited jurisdiction (Constitution, s. 166). In interpreting the law the courts shall give paramount consideration to the dispensation of justice (Constitution, s. 156(2)).

In my view his Honour had a discretion to conduct the trial as he did, and that, in choosing the course which was followed, there was no error of law. It was a course which a trial judge may adopt if in the exercise of his discretion he thinks it is proper to do so in the interests of justice. In exercising his discretion a judge is expected to consider the interests of justice as a whole and not solely the interests of an individual accused: R. v. Grondkowski[cxxiii]⁴, a case concerning an application for separate trials.

An appellant who argues that a trial judge has wrongly exercised his discretion in refusing to grant (or in granting) separate trials faces almost insuperable difficulties: Szekely v. The Queen[cxxiv]⁵. That this is so in the present case is quite apparent. Firstly, no objection was taken by counsel for the appellants against the proposed severance. Secondly, as his Honour pointed out, the ultimate result would be that the wife’s evidence would only be given in the trial of the appellants and not Tom Guli and that was the position which all counsel had anticipated it would be. I am unable to see how the appellants were prejudiced.

For all of these reasons I would dismiss the appeal and confirm the convictions and sentences of the four appellants.

The power of a court to order separate trials (or to refuse to do so) for persons jointly indicted, where required by the interests of justice, has long been recognised by the common law in England, R. v. Bradlaugh[cxxv]⁶, and Australia, R. v. Downey[cxxvi]⁷.

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[cxx]Infra p. 136.

[cxxi] (1872) 26 L.T. 667; (1872) L.R. 1 C.C.R. 377.

[cxxii](1934) 24 Cr. App. R. 135.

[cxxiii][1946] K.B. 369.

[cxxiv]Unreported. (South Australian Court of Criminal Appeal, 7th August, 1978.)

[cxxv](1883) 15 Cox C.C. 217.

[cxxvi][1910] ArgusLawRp 66; [1910] V.L.R. 361.

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Supreme Court of Papua New Guinea

Mapa v The State [1979] PGSC 15; [1979] PNGLR 135 (4 May 1979)

Papua New Guinea Law Reports - 1979