Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020)

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REFERENCE BY THE PRINCIPAL LEGAL ADVISER
PURSUANT TO SECTION 26 OF THE SUPREME COURT ACT

Waigani: Salika CJ, Kirriwom J,
Batari J, Mogish J, Cannings J
2020: 25^th June, 15^th September

CRIMINAL LAW – indictments – alternative verdicts – whether an accused charged on an indictment with wilful murder can be convicted of murder or manslaughter if there is no alternative charge on indictment – Criminal Code, s 539.

The Principal Legal Adviser referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which an accused, charged with wilful murder, was entirely acquitted despite the Court finding that he had killed the deceased unlawfully with an intention to cause grievous bodily harm, thus being satisfied of proof of the elements of the offence of murder. The trial judge held that the indictment had to contain an alternative charge of murder or manslaughter before an alternative verdict could be entered, and because the indictment did not contain any alternative charge the accused was entitled to be entirely acquitted. The point of law referred to the Supreme Court was whether it is necessary, in order for the Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder.

Christopher Kutau v The State (2007) SC927
Java Johnson Beraro v The State [1988–89] PNGLR 562
Laurie Kemuel & Kopol Kepao v The State (2016) SC1640
Obed Jelis v The State (2012) SC1184
The State v Albert Monja (1987) N632
The State v Anslem Pasika (2005) N3166
The State v Bond Nanal (2009) N3597
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Henry Judah Les (2005) N2950
The State v Kikia Solowet (2007) N3154
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Peter Bobo (No 2) (2007) N3263
The State v Roka Pep (No 2) [1983] PNGLR 287
The State v Ronald Madio (2012) N5190
The State v Samuel Kawar (2011) N4234
The State v Theo Yasause (2012) N4871
The State v Wilson Mari (2011) N4359

This was a reference by the Principal Legal Adviser under s 26 of the Supreme Court Act of a point of law arising from a case in which a person tried on indictment was acquitted.

T Tanuvasa, for the Principal Legal Adviser
P Kaluwin & H Roalakona, for the Public Prosecutor
L B Mamu, for the Public Solicitor

1. BY THE COURT: The Principal Legal Adviser and Attorney-General, the Honourable Davis Steven MP, has referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which an accused, charged with wilful murder, was entirely acquitted despite the Court finding that he had killed the deceased unlawfully with an intention to cause grievous bodily harm, thus being satisfied of proof of the elements of the offence of murder.

2. The trial judge held that the indictment had to contain an alternative charge of murder or manslaughter before an alternative verdict could be entered and, because the indictment did not contain any alternative charge, the accused was entitled to an acquittal.

3. The point of law referred to this Court is whether it is necessary, in order for the National Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder.

4. In raising that point of law the Principal Legal Adviser has posed two questions:

5. We first set out s 26 of the Supreme Court Act, which confers jurisdiction on this Court to give its opinion on the point of law that has been referred. Then, to resolve the issues raised by the reference we set out the provisions of the Criminal Code that create the offence of wilful murder (s 299) and the less serious offences of murder (s 300) and manslaughter (s 301). Then we set out the two provisions of the Code specifically referred to in the reference, ss 539 and 542.

6. Section 26 (reference of point of law following acquittal on indictment) of the Supreme Court Act states:

(1) Where a person tried on indictment has been acquitted whether in respect of the whole or part of the indictment and the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law that has arisen in the case—

(a) the Principal Legal Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court; and

(b) the Court shall, in accordance with this section, consider the point and give its opinion on it.

(2) For the purpose of its consideration of a point referred to it under this section, the Supreme Court shall hear argument—

(b) if the acquitted person desires to present any argument to the Court, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself; and

(3) No report of proceedings under this section shall be published that discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.

(4) Any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.

(5) A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

10. Section 539 (charge of murder or manslaughter) of the Criminal Code states:

(1) On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

(2) On an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter but not, except as is expressly provided in this Code of any other offence other than that with which he is charged.

(3) On an indictment charging a person with the crime of manslaughter he shall not, except as is expressly provided in this Code, be convicted of any other offence.

(4) On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of—

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

11. Section 542 (charge involving specific result) of the Criminal Code states:

(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.

12. In the case in which the point of law arose, CR No 543 of 2015, the accused, a young man, was charged by indictment with one count of wilful murder of another young man with whom the accused had a long-running grievance. There was no other charge on the indictment. The accused pleaded not guilty and a trial was conducted. The State’s case was that the accused, in an unprovoked attack, killed the deceased by cutting him with a bushknife, intending to cause his death. The evidence consisted of a record of interview (admitted into evidence over the objection of the defence) containing admissions by the accused that he had injured the deceased by cutting him with a bushknife and a post-mortem report and evidence from a health extension officer who attended to the deceased after the incident. The accused remained silent.

13. In delivering the verdict, by oral judgment, at Lae on 11 August 2017 the trial judge found it proven beyond reasonable doubt that the accused killed the deceased, but not proven that the accused intended to kill him. His Honour took into account that death was not caused instantly and acceptance of the accused’s statements in the record of interview that he did not intend to kill the deceased and only wanted to hurt him and the medical evidence that showed that the accused had cut the deceased on the arm, ankle and lower leg rather than on more vulnerable parts of the body such as the head. As intention to kill is an essential element of the offence of wilful murder, his Honour entered a verdict of not guilty of wilful murder.

14. His Honour then addressed the question of whether the accused could be convicted of the lesser offence of murder under s 300(1) of the Criminal Code. His Honour found it proven beyond reasonable doubt that the accused intended to do grievous bodily harm to the deceased, and there was no defence raised to defeat the presumption that the killing of the deceased was unlawful. Thus the State had proven the elements of murder under s 300(1)(a) of the Criminal Code: unlawful killing of a person with an intention to do grievous bodily harm.

15. However, his Honour decided that the accused could not be convicted of murder as he had not been charged with murder. His Honour ruled that neither s 539 nor s 542 of the Criminal Code, which allow the Court to enter alternative verdicts, removed the Public Prosecutor’s obligation, arising from ss 525 and 526 of the Criminal Code, to state clearly in the indictment the offence with which the accused was charged.

(1) Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may—

(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(2) An indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor.

(3) Where the Public Prosecutor or a State Prosecutor declines to lay a charge, he shall, as soon as practicable—

(b) cause the original of the declaration to be filed in the National Court; and

(i) if the person is in custody—by sending it by post or messenger to the person having custody of him; or

(ii) if the person is not in custody—by delivering it to him personally or by sending it to him by post to his last-known address.

(4) On receipt of a copy of a declaration under Subsection (3), any person having custody of the person named in it shall immediately release him from custody in relation to the charge to which the declaration relates.

(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may—

(a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and

(b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.

(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.

(3) Where the Public Prosecutor reduces a charge to writing in an indictment under Subsection (1), he shall cause to be served on the accused person or his lawyer—

(b) copies of statements taken from witnesses whom the prosecution intends to call at the trial,

within such time before the commencement of the trial as is reasonable in order to allow the accused person to prepare his defence.

18. His Honour ruled that ss 554 and 555 of the Criminal Code reinforced the Public Prosecutor’s duty to state clearly in an indictment the offence with which the accused is charged.

19. Section 554 (delivery of copy of indictment) of the Criminal Code states:

(1) When a charge is laid against a person under Section 525 or 526, a copy of the indictment shall be served on the accused person or his lawyer at a reasonable time before the commencement of his trial.

(2) When the prosecution serves a notice of intention to rely on a previous conviction as a circumstance of aggravation, it shall serve a copy of the notice on the accused person or his lawyer a reasonable time before the commencement of the trial.

(3) If a copy of the indictment or the notice of intention to rely on a previous conviction as a circumstance of aggravation is not so served within such time before the commencement of the trial as is reasonable in order to allow the accused to prepare his defence, the court shall, on application, grant to the accused person an adjournment for such time as it thinks reasonable in the interest of justice.

(1) A court before which a trial has commenced may at any time, in its discretion, adjourn the trial.

(2) A court before which a trial has commenced may at any time, on application by the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act for sittings of the National Court.

(3) If a court directs that the trial in which no evidence has been taken be continued at a different place, the trial may be continued before a Judge other than the Judge before whom it commenced.

So in my view, the requirements of those provisions give further substance to the need to include an alternative on the indictment. And should it be for whatever purpose, it is there on the indictment so that it shows the Public Prosecutor has preferred a charge as an alternative, and that the accused has been given sufficient notice, and that the court is not left in a limbo or dilemma to use its own initiative to find a charge. To avoid the court being placed in a position where it decides on what is the appropriate charge, the court is left at liberty to make decisions only on finding of innocence or guilt on the evidence that is presented to him against a charge that is preferred by the Public Prosecutor, either under s 525 or 526 of the Criminal Code.

22. Having considered the evidence and the relevant provisions of the Criminal Code, his Honour was discomfited by the spectre of convicting the accused of an offence with which he had not been charged. His Honour concluded:

And when it comes to alternative charges or alternative counts, those have to be reduced also into the indictment. This is to avoid any unfairness on the accused so that he is served in reasonable time and he prepares his defence. And secondly, it is an exercise of the prerogative of the Public Prosecutor. He is the only person that can prefer the charge. He studies the file, and after he studies the file, he then will determine, what are the possible charges, and what are his chances of securing conviction under any of those charges, and what are the precautionary steps he needs to take.

And for good, diligent prosecutorial practice, I would suggest in the future the alternative charges must be included on an indictment. If the Public Prosecutor is able to secure conviction by way of evidence on the primary charge, well and good. But if he does not [opt] for any alternative, then it does not have to include them on an indictment, and it is not unfair on the accused. It does not deprive him of the right to be informed and to be prepared in his defence.

In this case, unfortunately, as I have said, the accused has only been charged with one [offence] and that is for wilful murder. I have found that the charge has not been made out, and I have acquitted the accused on the charge. There are no alternative charges on the indictment. I will therefore order that the accused is to be discharged forthwith. He has no other charges. So that is the verdict of the court.

23. In resolving the point of law that arises from the above verdict, we acknowledge the assistance of eminent counsel who appeared in these proceedings: the Public Prosecutor, Mr Kaluwin; the Public Solicitor, Mr Mamu; and the Solicitor-General, Mr Tanuvasa. It is significant that they each submitted that the particular point of law that has been referred –whether it is necessary, in order for the Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused only with wilful murder – ought to be answered in the negative. However, they disagree as to all the practical implications of resolving the point in that way, in particular where a no-case submission is made at the close of the State’s case.

24. We agree with counsel that the point of law should be resolved in the negative. We will now explain why. We will then address the practical implications of our opinion, given that the point of law that has been referred is a very particular one. Once it is resolved it will have consequences in other case scenarios and at other stages of a criminal trial, not only where the sole charge on the indictment is wilful murder, and not only in cases where evidence for both the prosecution and the defence has been presented. We conclude by formally answering the two questions that comprise the reference.

25. In resolving the point of law in the negative, we rely on four propositions.

26. There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. This is the thrust of most of the National Court cases that have grappled with this issue, including The State v Albert Monja (1987) N632, King AJ; The State v Henry Judah Les (2005) N2950, Lay J; The State v Anslem Pasika (2005) N3166, Kandakasi J; The State v Kikia Solowet (2007) N3154, Cannings J, The State v Bond Nanal (2009) N3597, Cannings J, The State v Samuel Kawar (2011) N4234, Kariko J. Lenalia J appeared to take a different view in The State v Peter Bobo (No 2) (2007) N3263, but that was a peculiar case in which the accused was indicted for rape.

27. The Supreme Court (Batari J, Mogish J, Kassman J) confirmed the absence of such a general principle in Obed Jelis v The State (2012) SC1184. In that case the Court held that the appellant was wrongly convicted of the offence of engaging in an act of sexual penetration with a child under the age of 16 years contrary to s 229A of the Criminal Code due to the age of the complainant, the adopted daughter of the appellant, being aged 17 years. The Court decided that the appellant could not be convicted of the alternative offence under s 229E of engaging in an act of sexual penetration with a child between the ages of 16 and 18 with whom there was an existing relationship of trust, authority and dependency, even though the elements of that offence had been proven, as there was no alternative charge on the indictment and there was no provision allowing for alternative verdicts in such cases. The Court noted that there was no provision in Division IV.2A (sexual offences against children) or elsewhere in the Criminal Code that allows a conviction on Section 229E to be entered where the indictment charges an accused only with an offence under s 229A.

28. The power to convict an accused of an alternative offence that is not charged on the indictment, only exists where the Criminal Code expressly provides for it. Section 539 is an example of such a provision. Section 541 is another. It provides that an accused indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain alternative offences.

On an indictment charging a person with the crime of rape or having unlawful carnal knowledge of a girl under the age of 12 years, he may be convicted of any offence—

(a) of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element and blood relationship is not an element; or

(b) of which procuring the woman or girl to have unlawful carnal connexion with any man is an element; or

(c) of administering to the woman or girl, or causing her to take any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or

(e) of unlawfully and indecently dealing with a girl under the age of 12 years or a girl under the age of 16 years.
30. Other provisions allowing for alternative verdicts in respect of specific types of charges are found in Division VIII.3 (effect of indictments), the division consisting of ss 538 to 551 of the Criminal Code, viz:

31. The scenario faced by the trial judge in the case from which this reference arose is a fairly common one: an accused is charged with wilful murder as the only charge on the indictment, and the prosecution, though proving that the accused unlawfully killed the deceased, is unable to prove an intention to do so.

32. It has been almost invariably the practice in such cases for the court to enter a conviction for murder or manslaughter, depending on the evidence, relying on s 539 of the Criminal Code. Numerous reported National Court cases show that this has been a normal and uncontroversial practice, eg The State v David Yakuye Daniel (2005) N2869, The State v Ephraim Ria Boa (2008) N3436, The State v Wilson Mari (2011) N4359, The State v Theo Yasause (2012) N4871.

33. The Supreme Court confirmed the legal correctness of such a practice in Java Johnson Beraro v The State [1988–89] PNGLR 562 and Christopher Kutau v The State (2007) SC927. In both those cases, the appellant had been convicted of wilful murder on an indictment on which that was the only charge, and the Supreme Court upheld the appeal against conviction and entered an alternative verdict of guilty of manslaughter, relying on s 539 of the Criminal Code.

34. We know of no case, other than the case that has given rise to this reference, in which the Court has found itself unable to invoke s 539 to enter a conviction for murder in the scenario that existed. The approach of the learned trial judge is as far as we know without precedent.

3 A literal interpretation of s 539 allows for alternative verdicts where the only charge is wilful murder

35. The trial judge in the case that has given rise to this reference, found the language of s 539 confusing, and felt it did not clearly authorise an alternative conviction for murder.

36. We agree that s 539 is not a model of clarity. It begins in s 539(1) by asserting that “On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged”. It then asserts in the same section, by s 539(4), without a cross-reference between the two sub-sections, that such a person can also be convicted of unlawfully doing grievous bodily harm to such other person or the other offences referred to in s 539(4).

37. We agree that the language of s 539 and the alternative verdicts it provides for could be expressed in clearer and more straightforward terms. However, the language and the alternatives provided for, are clear enough. With respect, we fail to understand why the learned trial judge found himself unable to find in s 539 the power to enter a conviction for murder in the circumstances of that case.

38. We see no good reason for not giving s 539 its literal meaning: that on an indictment charging a person with wilful murder, the court can convict the person of murder, even if there is no murder charge on the indictment.

39. The trial judge said that this is unfair to the accused. We disagree. It is very fair. The accused still has the full protection of the law and is still innocent until proven guilty, the normal rights that an accused has under s37 of the Constitution.

40. We also disagree with the view of the trial judge that only the Public Prosecutor has the power to decide what charge should be faced by the accused, and to expect the Court to consider alternative verdicts amounts to the Court entering into the exclusive domain of the Public Prosecutor. With respect, we fail to appreciate the concerns of the trial judge. Expecting the Court to consider alternative verdicts in no way interferes with the prosecutorial functions of the Public Prosecutor. Nor does it place any unusual or onerous burden on the trial judge.

41. Of course, the most compelling reason for giving s 539 its literal meaning is that it is in the interests of justice to do so. Section 158(2) (exercise of the judicial power) of the Constitution states:

In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

42. By not invoking s 539 to enter a conviction for murder in the case giving rise to this reference, the trial judge, has, with respect, not given full consideration to this constitutional imperative. His Honour has allowed a person who has been proven to have committed the crime of murder, to escape conviction on a technicality: that he was not charged with murder, he was only charged with wilful murder. That is an injustice.

43. For the above reasons we resolve the point of law referred to this Court – whether it is necessary, in order for the Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder – in the negative. It is not necessary for an alternative charge to be included on an indictment that charges an accused with wilful murder.

44. We now address the practical implications of our opinion, bearing in mind that the point of law that has been referred is a very specific one that deals only with the situation where the only charge on the indictment is wilful murder, and the only point raised is whether an alternative conviction for murder can be entered.

45. Can an alternative conviction for manslaughter be entered? Do the same principles apply if the only charge on the indictment is murder? Or manslaughter? Does s 539 apply to no-case submissions? The answer to all these questions is yes. We explain why by addressing two subjects: first, the full scope of s 539 and secondly, the application of s 539 to no-case submissions.

Charge on indictment	Alternative verdicts permitted
Wilful murder (s 299(1))	Murder (s 300(1)) Manslaughter (s 302) Unlawful grievous bodily harm (s 319) Unlawful assault doing bodily harm (s 340(1)) Unlawful wounding (s 322(1)) Unlawful assault (s 335)
Murder (s 300(1))	Manslaughter (s 302) Unlawful grievous bodily harm (s 319) Unlawful assault doing bodily harm (s 340(1)) Unlawful wounding (s 322(1)) Unlawful assault (s 335)
Manslaughter (s 302)	Unlawful grievous bodily harm (s 319) Unlawful assault doing bodily harm (s 340(1)) Unlawful wounding (s 322(1)) Unlawful assault (s 335)

48. The question we now address is whether s 539 applies, in the same way that it allows alternative verdicts to be entered after a full trial, when a no-case submission is made at the close of the State’s case.

49. We return to the case that gave rise to this reference, where the accused faced trial on a charge of wilful murder and there was no alternative charge on the indictment. Let us change the scenario slightly by assuming that after the State closed its case, the defence made a no-case submission, based on the principles in the leading case The State v Paul Kundi Rape [1976] PNGLR 96. Let us assume that the trial judge found no evidence of an intention to kill, thus upholding the no-case submission (as there was no evidence of an element of the offence) in respect of the charge of wilful murder, but considered that there was some evidence of an intention to do grievous bodily harm, which was not so slight as to warrant the exercise of discretion to entirely uphold the no-case submission.

50. Can the judge order the trial to proceed on the basis that under s 539 of the Criminal Code an alternative verdict for murder, manslaughter etc is potentially available? Or is the judge obliged to entirely acquit the accused and stop the trial?

51. When this issue was raised in the reference before us, Mr Kaluwin and Mr Tanuvasa, submitted that the trial should proceed. Mr Mamu submitted that the judge would be obliged to entirely acquit the accused.

52. That was precisely the scenario that existed in the trial, in which two accused who had been charged with wilful murder, were convicted of murder, that led to an appeal to the Supreme Court in Laurie Kemuel & Kopol Kepao v The State (2016) SC1640. By majority (David J and Sawong J, Frank J dissenting) the Supreme Court upheld the appeal, deciding that the trial judge had erred in law by allowing the trial to proceed and convicting the appellants of murder.

In the instant case, the trial judge in accepting the concession by the prosecution that the essential element of an intention to kill was not established by the prosecution evidence, instead of acquitting the appellants and their accomplice Raywill Parapen there and then on the charge of wilful murder, called upon them to answer a charge of murder and the trial continued on that basis. Clearly, in the exercise of his discretion, with respect, the trial judge applied the first limb of The State v Paul Kundi Rape incorrectly. There was no statutory basis as well, as s 539(1) of the Code applies to alternative verdicts that a trial judge may return after a trial of a person charged with the offence of wilful murder.

54. Their Honours found support for the view that s 539 only applied after a full trial, and that it had no application to no-case submissions, in the judgment of Toliken AJ in The State v Ronald Madio (2012) N5190. The accused was charged with the wilful murder of his infant son. In the course of upholding a no-case submission made at the close of the State’s case, his Honour ruled that there was no evidence that the infant had died, and then addressed the relevance of s 539. His Honour stated:

35. Now there is one final matter. And that is whether the case, as the State submitted, can proceed nonetheless on the basis that alternative verdicts of murder and manslaughter are available on an indictment for wilful murder under s539(1) of the Code.

36. The question is moot but does not render itself to be deserving of consideration at this stage because it can only be considered where the evidence has established the elements of the offence charged in the indictment. One cannot be looking at what possible verdicts may be open when the State has not established admissible evidence that the infant in question is in fact dead.

37. At this stage the court is not looking at what possible alternative charge has been established thus far by the evidence. Rather the question for the court is whether the evidence for the prosecution as it stands has established a prima facie case to support the charge on the indictment.

38. I am of the opinion that s 539 does not avail itself until after the close of the evidence both for the State and the defence. To invoke the provision at this stage of the proceedings is prejudicial to an accused person who is entitled to meet the prosecutor’s case on the charges he alleges in his indictment.

39. An accused person cannot to be left second guessing what the prosecutor might have up his sleeves except what his indictment alleges. Nor should the accused be over- burdened by what the court might find against him at this stage. If the court has to return an alternate verdict within its powers under s 539 then it will only do so after it has heard all the evidence both for the State and the accused.

41. For the above reasons I find therefore that the accused has no case to answer and accordingly order that he be discharged forthwith.

55. While we can see that his Honour appears to have expressed the view that s 539 cannot be invoked when a no-case submission is made, it must be observed that the view was expressed in a rather unusual and bizarre context. The State ran a wilful murder trial but did not adduce evidence that the person (the accused’s infant son) named on the indictment as the deceased, was in fact deceased. There was no evidence of death, let alone that the accused had caused the death.

56. Obviously there could be no alternative verdict for murder or manslaughter, so in that limited sense, s 539 had no application. The opinion expressed by his Honour was not unreasonable, when considered in the context of the peculiar facts of the case. However, it is an opinion that must be left tied to those facts.

57. That appears to be the only reported case, prior to Kemuel & Kepao, in which a judge had expressed the view that s 539 could only apply after a full trial, and that it had no application to no-case submissions. This is not surprising as that view, with respect, is not supported by the wording of s 539 and is not logical and does not advance the interests of justice. The majority opinion in Kemuel & Kepao, is unprecedented and in our respectful opinion wrong in law, and manifestly so.

58. The dissenting opinion of Frank J correctly and eruditely states the law. After examining a plethora of overseas cases that supported the view that provisions such as 539 apply at the no-case submission stage of a trial, and not just at the end of the trial, and explain that s 539 simply codifies what is the position at common law, his Honour stated:

83. In my respectful opinion, these cases reflect the correct combined effect of s539(1) and s 548 and the application of s 539, which is that where, by an indictment, an accused is charged with wilful murder under s 299 (“primary charge”), the accused is also charged in the alternative for each and every one of the offences for which the Criminal Code expressly empowers the trial court to return a verdict if the prosecution fails to adduce evidence on each and every element of the offence in the primary charge or fails to prove that charge beyond reasonable doubt, the result of which is that the trial court cannot stop the trial or discharge the accused if it upholds a no case to answer submission on the primary charge; it must complete the trial by allowing the accused the opportunity to adduce evidence and/or make a s 572 statement and close its case before it determines whether or not the accused is guilty of any of the alternative offences open to it on the indictment.

84. This is what had occurred at the trial of the appellants. Following his ruling upholding the appellants’ no case to answer submission, the learned trial judge did not err when he did not enter a verdict of not guilty and when he did not discharge the appellants; the learned trial judge correctly proceeded with and concluded the trial, after the appellants had adduced evidence and closed their case, by returning a verdict of guilty of murder, one of the alternative offences open on the charge in the indictment.

59. We endorse Frank J’s opinion. Section 539 allows the State to adduce evidence in relation to not only the offence charged on the indictment but also all other offences that are available under s 539. It does not in any way curtail the right of the accused to the full protection of the law under s 37 of the Constitution. It must also be emphasised that there is no requirement for the Court to assess and weigh the evidence adduced by the State (The State v Roka Pep (No 2) [1983] PNGLR 287).

60. Section 539 of the Criminal Code applies, not only at the close of a trial in which evidence has been presented for the defence, but also when a no-case submission is made.

61. We have resolved the point of law referred to us – whether it is necessary, in order for the National Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder – in the negative. We have focussed on s 539 of the Criminal Code. It is unnecessary to refer in detail to other provisions allowing for alternative verdicts, including s542.

62. We formally answer the two questions contained in the reference in the following terms:

Section 539 allows conviction for a lesser homicide offence or any offence prescribed by s 539(4). It is unnecessary to consider the effect of s 542.

Point of law	Opinion
Whether it is necessary, in order for the Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder.	No

Questions	Answer
(a) Is the State Prosecutor required to plead an alternative charge of murder or manslaughter on a charge of wilful murder on an indictment? (b) What is the effect of s 539 and s 542 of the Criminal Code on an indictment that does not plead an alternative homicide charge?	No Section 539 allows conviction for a lesser homicide offence or any offence prescribed by s 539(4). Unnecessary to consider effect of s 542.

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Solicitor-General: Lawyer for the Principal Legal Adviser
Public Prosecutor: Lawyer for the Public Prosecutor
Public Solicitor: Lawyer for the Public Solicitor

Supreme Court of Papua New Guinea

Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79; SC1999 (15 September 2020)