Kumuewa v Lonohombo [2007] PGDC 9; DC527 (31 January 2007)

DC527

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 83 of 2006

BETWEEN

MISEK KUMUEWA
Informant

AND

DILON LONOHOMBO
Defendant

Goroka: M Gauli
2007: January 31

CRIMINAL- Practice and procedure – Dismissal for non-appearance by prosecution witnesses – witnesses not been informed – No reasonable explanation given for not informing witnesses.

Cases Cited
Bernard Juali –v- The State SC 667 SCRA No. 43 of 1998 (unreported)
Public Prosecutor –v- Allen Ebu Marai SC 447 SCA 148 of 1993 (unreported)

References
District Courts Act, s 124 s s. 22
O4 r36 of the National Court Rules

Counsel
Prosecutor – Senior Constable Pipi of Goroka Police Station
Lawyers for Defendant – Ms. R. Kot of Warner Shand Lawyers, Goroka

31 January 2007

DECISION OF THE COURT

M Gauli, PM: The defendant appeared before this Court charged for breaking and entering the Kongo Coffee warehouse and stealing green coffee valued K9, 360.00 on the 03 of November 2006, pursuant to Section 398 of the Criminal Code Act. The proceedings were adjourned from 20 December 2006 to 31 January 2007 for trial. A period of six weeks was given for the parties to prepare for the trial.

2. On the 31 January 2007, the day for the trial, the prosecutor informed the Court that he is not ready for the trial as the police informant has yet to inform the witness. He therefore seeks for further adjournment. He gave explanations for the failure in notifying the witnesses.

3. The defence council objected to further adjournment as the defendant is ready for the trial. The council then submitted to have the proceedings dismissed under s 124 of the District Courts Act. This provision States and I quote:

“124 Absence of Complainant

If, on the day and at the place appointed by summons for hearing and determining an information of a simple offence or an indictable offence triable summarily –

(a) The defendant attends voluntarily in obedience to the summons, or is brought before the Court by virtue of a warrant; and

(b) The complainant, having had notice of the day and place, does not appear by himself or by his legal representative,

the Court shall dismiss the information unless for some reason if thinks proper to adjourn the hearing to some other day”.

4. In the present proceedings the prosecutor was present but his witnesses were not been informed of the trial date. The Kongo Coffee warehouse is located within Goroka town and the witnesses are the residents of Goroka town. I could not see any reason why the police witnesses could not have been informed within the six weeks period when the case was last adjourned for trial. The prosecutor gave no explanations for the failure in informing their witnesses.

5. Under s124 of the District Courts Act this Court has the jurisdiction to dismiss the proceedings on the failure of the complainant, or the prosecution for that matter, to prosecute the case. In the present case the prosecution failed to prosecute the matter by failing to produce witnesses in Court at the trial.

6. The Order 4 rule 36 of the National Court Rules does provide that where the plaintiff fails to conduct his case the Court may stay or dismiss the proceedings. O4 r 36 states and I quote:

“36 Want of prosecution

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings”.

7. By the provision of Section 22 of the District Courts Act, the District Court Magistrates and the Principle Magistrate have this general ancillary jurisdiction to exercise as ought to be granted or given by the National Court under O4 r 36 of the National Court Ruler. The Section 22 of the District Courts Act states and I quote:

“22 General Ancillary jurisdiction

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it –

(a) grant such relief redness or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counter-claim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner”.

8. In determining whether to dismiss the proceedings for want of prosecution the Court must have regard the reasons given by the prosecution seeking for adjournment. Has the prosecution provided the reasons for the adjournment and if so are the reasons given reasonable. The burden is on the prosecution to satisfy and convince the Court that he has a good reason for an adjournment. The prosecutions only reason was that the witnesses have not been informed. He gave no further reasons why the witnesses were not been informed. I am satisfied that the prosecution failed to provide reasonable explanation for an adjournment.

9. I have no case laws directly applicable to the present situation to dismiss the proceedings for want of prosecution where witnesses failed to appear. However I consider that the following Supreme Court decisions regarding the failure by the appellants to prosecute the appeals are in my view relevant and applicable to the present proceedings.

10. In BERNARD JUALI –V- THE STATE CR A No. 43 of 1998 (Unreported) in which the appeal took 2 years 10 months to prosecute their Honours Sevua J, and Kandakasi J, in dismissing the appeal said:

“We are satisfied that the appellant has not provided a reasonable explanation for the delay of more than 2 years 10 months. No explanation has been offered for the delay or lack of any activity from the date of lodgement of the appeal _ _ _ _.”

11. And in THE PUBLIC PROSECUTOR –V- ALLEN EBU MARAI SC 447 SCA 148 of 1993 (unreported) in dismissing the appeal the Supreme Court held and I quote:

“The power to dismiss the appeal for want of prosecution under O7 r 53 of the Supreme Court Rules is to be exercised where the appellant has not prosecuted the appeal with due diligence having regard to the fact that no explanation has been given by the appellant for the delay in prosecuting the appeal.”

12. These two Supreme Court decisions point to one factor, that is the appellant failed to give an explanation for the delay in prosecuting the appeal. And where there is no explanation given or where there is no reasonable explanation given for the delay in prosecuting the proceeding the Court has the power to dismiss it.

13. In the present proceeding the only reason given by the prosecutor was that the witnesses have not being informed. He gave no further explanations why the witnesses were not being informed. I perceived that the witnesses are within Goroka town and the prosecution had been given six weeks to prepare his case. Given the situation as it is where the prosecutor failed to give reasonable explanation of the failure in informing the witnesses I exercise the provision of s 124 of the District Courts Act and order that the case be dismissed for want of prosecution.

Prosecutor - S/C Pipi of Goroka Police Station
Lawyer for the Defendant - Ms. R. Kot of Warner Shand Lawyers