Ombusu v The State [1996] PGSC 28; [1996] PNGLR 335 (2 April 1996)

PNG Law Reports 1996

[1996] PNGLR 335 - Charles Bougapa Ombusu v The State

[1996] PNGLR 335

SC496

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHARLES BOUGAPA OMBUSU

V

THE STATE

Waigani

Amet CJ Kapi DCJ Los Injia Sawong JJ

30 November 1995

18 December 1995

2 April 1996

APPEAL - Application to grant leave to amend notice of appeal - Ground of special circumstances - Death penalty and rape.

CRIMINAL LAW - Appeal against conviction and sentence of death – Application to grant leave to amend notice of appeal – whether indictment of murder and rape amend to procedural irregularity.

Facts

The appellant was convicted for rape of one Dreda Ataembo and for wilful murder of the victim’s father Peterson Ataembo.

He appeals against both conviction and sentence of death, and in particular seeking amendment to notice of appeal, that “the ... indictment ... of wilful murder together with that ... rape amounted to procedural irregularity...”

Held

N1>1.       The joint trial of a charge of wilful murder with that of rape was irregular and occassioned a miscarriage of justice.

N1>2.       The charge of wilful murder is too serious a matter to be complicated by having the distinct indictable offence of rape joined in the same trial.

N1>3.       That there should have been an election on which indictment to proceed on.

N1>4.       Sentence quashed and set aside.

Cases Cited

Papua New Guinea cases cited

Damane v State [1991] PNGLR 244.

Rolf Schubert v State [1979] PNGLR 66.

State v Elias Subang (No 1) [1976] PNGLR 141.

State v Gibson Tamean & Ors [1985] PNGLR 346.

Other cases cited

Packett v R [1937] HCA 53; [1937] 58 CLR 190.

R v Jones [1918] 1 KB 416.

Counsel

E Batari, for the appellant.

P Mogish, for the respondent.

2 April 1996

AMET CJ KAPI DCJ LOS INJIA SAWONG JJ: The appellant, Charles Bougapa Ombusu was charged with two distinct offences by two separate indictments. One indictment charged a count of rape upon one Dreda Ataembo on 9 July 1993. The second indictment contained a charge of wilful murder of one Petersen Ataembo, on the same day.

The allegations of the State generally was that, the appellant, a prison escapee, first raped the female Dreda Ataembo in the garden. The victim went to the village and reported the matter to her father Petersen Ataembo, who armed with a shotgun went looking for the appellant in the bush. The father met and confronted the appellant, who was also armed with a shotgun. In that confrontation the appellant wilfully murdered Petersen Ataembo by shooting him with the shotgun.

The two indictments were dated 15 February 1995 and presented before the trial judge in Popondetta on 15 February 1995. They were presented concurrently and the appellant was arraigned on each of them separately. He pleaded not guilty to both charges and trials were conducted jointly in respect of the separate charges.

The appellant was subsequently found guilty of both charges and convicted on 17 February 1995. In respect of the offence of rape he was sentenced to five years imprisonment with hard labour and in respect of the offence of wilful murder he was sentenced to death.

He has appealed against both convictions and the sentence of death.

Because of the seriousness of the charges and the sentence in respect of the wilful murder conviction, the Court decided that the appeals would be dealt with separately; that the appeals in respect of the convictions would be heard first and the appeal against the sentence of death for wilful murder would be heard at a later time after judgement in the appeals against convictions if the conviction for wilful murder was upheld.

At the commencement of the hearing of the appeals against convictions, the Public Solicitor, acting for the appellant, made application to amend the notice of appeal by adding the following substantive ground of appeal against convictions:

“The lump hearing of an indictment charging the crime of wilful murder together with an indictment charging the crime of rape amounted to procedural irregularity and was such that substantial miscarriage of justice was caused to the appellant.”

This application was opposed by the Public Prosecutor for the State. The Court granted the application to amend the notice of appeal as proposed by Counsel for the appellant with reasons to be published in the judgement. This we now do.

The application to amend the notice of appeal was supported by affidavit filed by the Public Solicitor. He deposed to the fact that whether it was procedurally proper as a rule of practise, if not law, for a wilful murder charge to be tried together with other offences charged on separate indictments, was not raised either by defence counsel or the judge and that inferentially, it was a non-issue. He further deposed that the ground of appeal proposed raised a substantial question of law and is such that it might cause the Supreme Court to reverse the decision of the National Court, and further that the justice of the case warranted its determination by the Supreme Court.

It was submitted that the special circumstances of this case, which is the first one in which the “death penalty” has been imposed since independence, makes this an exceptional case and so in the discretion of the court leave should be granted to amend the notice of appeal by adding the proposed ground.

The Public Prosecutor submitted that the imposition of the death penalty did not amount to an exceptional circumstance and there being no other special circumstances, leave should be refused to amend the notice of appeal.

We note that the power to allow or not allow an amendment to a notice of appeal is in the discretion of the Court. The discretion to allow an amendment is to be exercised only in exceptional cases, where special circumstances are demonstrated. The types of exceptional cases where special circumstances were shown to exist and so leave was granted to amend the notice of appeal were: Rolf Schubert v State [1979] PNGLR 66; where: (1) respondent is not taken by surprise, (2) the original adjournment was granted at the request of the respondent, and (3) no prejudice could be said to have arisen; Damane v The State [1991] PNGLR 244; where: (1) the prisoner filed appeal in person, (2) legal representation was granted to the appellant a long time after filing of appeal, (3) the respondent was not taken by surprise having had notice of the proposed application and (4) the respondent did not oppose the application.

It is of course not possible to enumerate an exhaustive list of special circumstances which make a case an exceptional case warranting grant of leave to amend. Each case must be assessed on its own circumstances.

We think also that the expressions that have qualified this inherent discretionary power in the Court have been used interchangeably wrongly and have assumed a larger and more restrictive meaning than the correct use of the qualifying expressions in fact mean.

In Schubert v The State (supra), Prentice CJ and Andrew J said at p 68:

“Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the Court”. (emphasis added).

In exercising their discretion to allow the amendment they went on to say at 68:

“It appears to us that in the special circumstances of this case .... we propose in the exercise of our discretion, to allow the amendment.” (emphasis added)

The test therefore is whether there are special circumstances in a particular case which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal. It is not whether there are exceptional circumstances that would warrant grant of leave. The majority in Dinge Damane v The State (supra) fell into this error, of referring to the special circumstances as exceptional circumstances.

Returning now to the facts of this case, we are satisfied that the “special circumstances” of a joint trial of an indictment for wilful murder with an indictment for rape resulting in convictions in both counts and the very grave sentence of death on the conviction for wilful murder makes this an “exceptional case”, that in our discretion leave should be allowed to amend the notice of appeal to add the ground proposed.

At the commencement of the joint trials two separate indictments were presented, purportedly pursuant to s 531(4) of the Criminal Code (the Code). The two separate indictments were for one count of wilful murder and the other for one count of rape. It would appear that lawyer representing the appellant, from the Public Solicitors office, took no objection to the separate indictments being jointly prosecuted. The trial judge appears not to have enquired as to the correctness of the procedure.

The more specific allegations by the State were as follows: On the afternoon of 9 July 1993 the female Dreda Ataembo was at the garden at Karaeda village digging taro. Whilst she was doing that the appellant came out from bushes nearby and walked towards her armed with a home-made gun. He asked what she was doing. She replied that she had come to collect taro. The appellant then told her he wanted to have sex with her. She refused. He threatened to shoot her with the gun. He then held her hand and took her to the side of the garden and at gunpoint ordered her to take off her clothes, which she did in fear of being shot by him. The appellant took of his clothes and had sexual intercourse with her. The appellant then left. The woman also left the garden, went to her village and reported the incident to her father, Petersen Ataembo, who upon hearing what had happened to his daughter, got his gun and went looking for the appellant. When Petersen Ataembo came upon the appellant, the appellant shot him with the home-made gun, from which he died immediately.

The issue of law is whether it was permissible to have jointly tried two distinct offences charged in two different indictments.

Section 531. Joinder of charges: General rules.

N2>(1)      Subject to this Code, an indictment must charge one offence only and not two or more offences.

N2>(2)      Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted -

(a)      by the same acts or omissions; or

(b)      by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.

N2>(3)      If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may -

(a)      require the prosecutor to elect on which of the several charges he will proceed; or

(b)      direct that the trial of the accused person on each or any of the charges be had separately.

N2>(4)      This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

As a general rule, “an indictment must charge one offence only, and not two or more offences” per s 531(1). Subsection (2) does permit charges of distinct offences to be joined in the same indictment against the same person if the several distinct indictable offences are alleged to be constituted, (a) by the same acts or omissions or, (b) by a series of acts done or omitted to be done in the prosecution of a single purpose. Subsection (3) then qualifies subsection (2) in that if it appears to the Court that the accused person is likely to be prejudiced by the joinder, the Court may, (a) require the prosecutor to elect on which of the several charges he will proceed, or (b) direct that the trial of the accused person on each or any of the charges be had separately.

Subsection (4) then qualifies further ss (2) & (3) by stipulating that s 531 “does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence”.

The words “any other offence” in s 531(4) have been interpreted to mean “any offence other than wilful murder, murder or manslaughter”. It is thus impermissible to join in the one indictment a charge of wilful murder, murder or manslaughter with a charge of any other offence. But it is permissible or acceptable to join two or more counts of wilful murder, murder or manslaughter in the same indictment: Packett v R [1937] HCA 53; [1937] 58 CLR 190; State v Elias Subang (No. 1) [1976] PNGLR 141.

There are no specific provisions in the Code which permit the presentation of separate indictments in respect of separate indictable offences, except s 531(1) which stipulates that an indictment must charge one offence only, and not two or more offences. By inference other distinct indictable offences must be charged in separate indictments, unless they are able to be joined under s 531(2) and (3). Similarly no specific provisions exist under the Code for the joint trial of two or more charges, against the same accused, contained in separate indictments, such as in this case.

Because there are no specific provisions in the Code in respect of joint trials of wilful murder, murder or manslaughter with a charge of any other offence other than wilful murder, murder or manslaughter, there are no specific Supreme Court cases on the issues.

There is however one National Court decision on the inferential effect of s 531(4). In the State v Gibson Tamean & Ors [1985] PNGLR 346, Counsel for the State presented two separate indictments on wilful murder and robbery and indicated the State’s intention to prosecute the two charges jointly in the one trial. The Court invited counsel to address the issue as to whether or not this was possible under the provisions of the Code.

Both counsel were agreed that the two charges could not be joined together in the one indictment because of the effect of s 531(4), but that where two indictments are presented on different charges they may be tried together in the one trial.

The Court however ruled that where two indictments are presented on different charges and one indictment charged wilful murder, murder or manslaughter, and the other another offence, a joint trial on both indictments is precluded. With respect we consider that the procedure adopted and the ruling by the Deputy Chief Justice was correct and we affirm it.

In an earlier case of State v Elias Subang (No. 1) (supra) relying on the persuasive authority of Packett v The King (supra) which dealt with the equivalent Tasmanian and Queensland State Code provisions, the Court ruled that, subject to subsections (2) and (3) it was permissible to join in an indictment for wilful murder, murder or manslaughter, other counts of wilful murder, murder or manslaughter, but no other offence.

The specific reference to s 531(4) in the transcript of the trial, upon the basis of which the two separate indictments were purportedly presented, would seem to suggest that because there were no specific provisions under the Code enabling the “joint trial” of charges in separate indictments or the “lump” hearing of the same, subsection (4) was relied upon to, by inference, authorize the joint trial of a charge of wilful murder in one indictment with a charge of rape in another indictment. The rationale would appear to be that the joinder of a charge of wilful murder with a charge of another offence other than wilful murder, murder or manslaughter, in the same indictment was not permissible, but that the presentation of separate indictments containing the two separate charges of wilful murder and rape were permissible and that the joint hearing of the same was also permissible.

Quite clearly, if this was the presumption, upon the basis of which the two separate indictments were presented pursuant to s 531(4), then it is quite misconceived and a wrong inference of law. We can think of no other plausible explanation for the reference to s 531(4) other than this.

Firstly, it was not permissible to have joined the two distinct indictable offences in the same indictment, pursuant to s 531(2), because they could not be said to have been constituted by the same act or omission, or by a series of acts done or omitted to be done in the prosecution of a single purpose. Secondly, it is not permissible to join a charge of wilful murder with that of rape under subsection (4).

Again the other clear inference for the reference to s 531(4), upon the basis of which the two separate indictments were presented, is that because subsection (4) does not permit or authorize the joinder of a charge of wilful murder with a charge of any other offence, that by a converse inference a charge of wilful murder in a separate indictment and a charge of any other offence, being rape in this case, in another indictment may be jointly tried.

Pursuant to s 531(2) and (3) several distinct indictable offences alleged to be constituted, (a) by the same acts or omissions, or (b) by a series of acts done or omitted to be done in the prosecution of a single purpose, may be joined in the same indictment and tried together, unless it appears to the Court “that the accused person is likely to be prejudiced by the joinder,” then the Court may, (a) require the prosecutor to elect on which of the several charges he will proceed, or, (b) direct that the trial of the accused person on each or any of the charges be had separately.

By analogy and extension it may be said also, that where several distinct indictable offences which are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, and are charged in separate indictments may be jointly tried, unless it appears to the Court that the accused person is likely to be prejudiced by the joint trial, in which case the Court may require the prosecutor to elect on which of the several charges he will proceed or direct that the trial of the accused person on each or any of the charges be had separately.

In the case of the R. v Jones [1918] 1 KB 416 referred to by Saldanha, J in the State v Elias Subang (No. 1) (supra) the English Court of Criminal Appeal said that in a case of murder the indictment ought not to include a count of such a character as robbery with violence. The Court said:

“The charge of murder is too serious a matter to be complicated by having alternative counts inserted in the indictment. In the opinion of the Court the Indictments Act 1915, did not contemplate the joinder of counts of this kind. The proper course in a case like this is to have two indictments so that the second charge may be subsequently tried if the charge of murder fails and it is thought desirable to proceed upon the second charge”.

Whilst that case is quite clearly a very old English case founded upon the Common Law and the English Indictment Act of 1915, which has no relationship whatsoever with the Code, the basic principle remains true and can be adopted and applied to this case. Although in this case the issue is that of two separate indictments containing distinct indictable offences and not the joinder of distinct indictable offences in the same indictment, the principal issues of concern remain the same, and they are to prevent oppression, prejudice embarrassment or unfairness to an accused person by a charge of wilful murder being complicated by another serious charge of rape contained in a separate indictment being jointly tried.

Whilst in principle the separate indictments may be presented, the prosecuting authority should be required to elect on which of the charges it would proceed, or the Court should direct that trial of the accused on each of the separate indictments be held separately, to avoid prejudice, embarrassment, oppression unfairness or injustice to such an accused person.

For these reasons we consider that the joint trial of a charge of wilful murder with that of rape was irregular and occasioned a miscarriage of justice. We consider that the charge of wilful murder is too serious a matter to be complicated by having the distinct indictable offence of rape joined in the same trial. Given the allegations of facts in these cases, the likely prejudicial affect against the accused is too serious to have permitted the joint trial to continue. The proper course in the circumstances ought to have been for the Court to require of the prosecutor to elect on which of the two separate indictments he would proceed or to direct that the trial proceed on one of the indictments only and the other to be tried separately before another Court on another occasion.

We consider therefore miscarriage of justice has been occasioned and the appeals against convictions should be upheld. The convictions for rape and wilful murder are quashed and set aside. The sentences are consequently quashed and set aside as well.

We did not hear full argument as to whether the charges should be remitted for retrial if this ground succeeded. We propose that parties should address this issue before we make a ruling.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.