Maiak v Charlie [2010] PGDC 38; DC1033 (15 September 2010)

DC1033

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]
COM: 91 of 2010

BETWEEN

NAGY MAIAK
Informant

AND

ROBERT CHARLIE
Defendant

Madang: J Kaumi

2010: 11th May, 7th June, 16th July,12th August,15th September

CRIMINAL-Hand-up brief- Defendant charged with a count of Grievous Bodily Harm contrary to section 319 of PNG Criminal Code. Defence's Notice of Motion for matter to be struck out pursuant to section 37 (3) and 42 (3) of the Constitution for want of prosecution within a reasonable time- whether there has been an unreasonable delay in completion of the Police hand up brief amounting to a want of prosecution within the context of ss.37 (3) (14) and 42(3) of the Constitution.

Cases Cited
Yanepa, Re; [1988-89] PNGLR 166; N734 (19 May 1989)
In the Matter of an Application under s 42(5) of the Constitution and In the Matter of Yamson Vamble [1989]; N743 (22 July 1989)
Benetius Gehasa Bika (2005) N2817
Hambru v Baur [2007]; N3193 (24 September 2007)

References
Constitution of Papua New Guinea
Criminal Code Act 1974
District Court Act 1963

Counsel
PW FC Rose Bussil for the Informant
Mr. Emmanuel Thomas for the Defendant

RULING ON NOTICE OF MOTION TO STRIKE OUT INFORMATION

INTRODUCTION

1. KAUMI, M.: This is a ruling on a Notice of Motion to strike out the information and charges for Grievous Bodily Harm by the defendant/applicant, pursuant to section 37(3) and 42 (3) of the Constitution.

2. The defendant is charged with the following:-

1 x Grievous Bodily Harm contravening section 319 of CCA

BRIEF FACTS

3. Detective Sergeant Nagy Maiak laid the information against the defendant on the 10th day of May 2010 alleging that on the 21st day of April 2010 at Madang the defendant, Robert Charlie aged 34 of Kambana village, Bogia District, Madang Province "unlawfully did grievous bodily harm to another person namely, Rhonda Yua thereby contravening section 319 of the Criminal Code Act Chapter 262.

4. On 11th May 2010, the defendant first appeared from custody before Mr. Wilmot the Committal Court Magistrate in Madang, the matter was further adjourned to 7/06/10. On 7/06/10 the defendant appeared from custody before Mr. Wilmot and matter adjourned to 16/07/10 for reasons advanced by Prosecution that the investigation was continuing and defendant was remanded in custody. On 16/07/10 the defendant appeared from custody before me and I informed him of the Committal process and functions of the Committal Court and of his right to make a bail application. Prosecution informed court that investigation were still continuing and applied for further adjournment and the application was granted and matter adjourned to 12/08/10 and defendant remanded in custody. On 12/08/10 the defendant appeared before me from custody and Prosecution informed that the investigation was still continuing so I adjourned the matter to 15/09/10 and remanded the defendant in custody. On 15/09/10 Mr. Thomas of Paraka Lawyers appeared for the defendant. The Prosecution was not able to produce the Police Hand up brief nor were they briefed by Det.Sgt Maiak about the status of the investigation into the charge. Court granted leave to Mr. Thomas to move his Notice of Motion seeking to have the matter struck out for want of prosecution due to unreasonable delay in completion of the Police Hand up brief. Prosecution left the decision to the discretion of the Court.

RELEVANT ISSUE

5. The defence's Notice of Motion raises one issue:

Whether or not there has been an unreasonable delay on part of the Police in completing the investigation and preparing the Police Hand up brief.

RELEVANT LAW

6. The provisions of the Constitution relevant to the issue at hand are as follows:-

Constitution

Section 37. PROTECTION OF THE LAW.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

Section 42. LIBERTY OF THE PERSON.

(3) A person who is arrested or detained–

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer.

5. APPLICATION OF ISSUE TO THE LAW

7. To put the issue into better perspective I pose the following questions:-

(i). What does case law say about this issue?

(ii). what is the practice in the District Court?

(i). What does case law say about this issue?

8. In the National Court matter of In the Matter of an Application under s 42(5) of the Constitution and In the Matter of Yamson Vamble ¹ [1989]; N743 (22 July 1989) Brunton AJ using his power under section 42 (5)(b) of the Constitution ordered the release of an applicant from custody and that his discharge from committal proceedings after the applicant had been awaiting committal proceedings for over eight months and had not exercised his right to bail and further that he had a defence to the charge. His Honour noted that even if he was convicted he may not get more than eight months. His Honour also mentioned that the applicant had become lost in the system with no committal papers being lodged with the National Court Registry, or with the District Court or the Public Prosecutor or Public Solicitor's Office.

9. In Hambru v Baur ² [2007]; N3193 (24 September 2007) Gavara-Nanu. J found that in an action for malicious prosecution that in the circumstances where a plaintiff's twenty two committal appearances as a result of the police not being ready and the matter being finally dismissed upon application by the plaintiff caused him to suffer injustice as well as inconvenience as a result...His Honour stated, "Thus, the only inescapable conclusion I can draw is that there was serious abuse of process and gross negligence by the police. In this regard, paragraph 10(4) of the Statement of Claim bears some relevance, in that the matter was not prosecuted within a reasonable time by the police, thus constituting negligence on their part. It follows that plaintiff is entitled to damages for malicious prosecution".

10. In the post committal matter of Benetius Gehasa Bika ³ (2005) N2817 the accused who was charged with Wilful Murder and detained for forty seven (47) months without having his matter heard by Court, the National Court considered his right under Section 37 (3) of the Constitution and questioned the Prosecution about the reason for the delay and was informed that the file was lost and found that there was undue delay by the Prosecution and the right of the accused to be heard within reasonable time was breached and dismissed the charge of Wilful Murder that was laid against him.

11. In another post committal matter of Yanepa, Re; ⁴ [1988-89] PNGLR 166; N734 (19 May 1989) Brunton AJ stated, "Some indication of what the Constitution means by the phrase "reasonable time" in this provision may be had from s 37(14) of the Constitution, which says that:

"In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration." (My emphasis.) ... In my view, it is clear from this provision that the Constitution itself regards a delay of four months between committal and trial as very serious, so serious as to require a detailed report by the Chief Justice to the Minister for Justice.
(ii). what is the practice in the District Court?

12. The practice in the District Court in committal proceedings regarding the length of time or number of adjournments allowed to police to complete investigations and their hand-up brief varies but the general practice would appear to be a starting point of six adjournments or three months from the date of the arrest of a defendant charged with an indictable offence.

13. Strictly speaking the above practice is not a rule of law but rather a rule of thumb that has developed over the years in view of section 37 (3) and (14) of the Constitution. The power of the committal court to strike out a matter for unreasonable delay in the completion of a Police Hand-up brief is discretionary and has been used sparingly taking into consideration the peculiar circumstances of each case, inter alia, the public interest, the nature of the charge, the reasons for the delay from the investigating/ arresting officer, whether or not the defendant is in custody, the place of the offence and the availability of witnesses and their eagerness to assist investigations.

DETERMINATION

14. The relevant issue is whether or not there has been an unreasonable delay on part of the Police in completing the investigation and preparing the Police Hand up brief.

It is apparent from the authorities already cited that what can amount to an unreasonable delay on part of Police in completing their hand-up brief must be determined strictly upon the peculiar circumstances of a given case. The time limit or number of adjournments can vary from three months and upwards dependent again on the circumstances of the case, but strictly speaking there is no time limit given by law in respect to committal matters as the only appearance of what "reasonable time" might be can be found under section 37 (14) of the Constitution of this country and again this is in respect of post committal matters.

15. In the immediate matter I note the following;-

(i). there has been no explanation forthcoming from the investigating officer for the delay in completion of the police hand-up brief;

(ii). the defendant has been in custody since his arrest on 10/05/10, a period of five months and easily available therefore for interview purposes;

(iii). the offence allegedly took place on the outskirts of Madang Town at Balasigo and easily accessible for investigation purposes;

(iv). The offence for which the defendant is charged is one of Grievous Bodily Harm and the likelihood of him getting a suspended term is real or a term equivalent to the time spent in custody possible.

16. I find that therefore that there has been an unreasonable delay by police in completing their hand-up brief and accordingly in the exercise of my discretion strike out the matter.

Police Prosecution for the Informant
Paraka Lawyers for the Defendant

_____________________________
[1]. [1989]; N743 (22 July 1989)
[2]. [2007]; N3193 (24 September 2007)
[3]. (2005) N2817
[4]. [1988-89] PNGLR 166; N734 (19 May 1989)