[1] L Wawun-Kuvi : The applicant Mary Morris (the defendant) is the defendant in the criminal proceedings alleging the charge that she on 5 October 2016, knowingly had in her possession 30 kg and 25 packs (valued at K5.00 per pack) of marijuana, being dangerous drugs, in contravention of section 3 (1) (d) of the Dangerous Drug Act.
[2] The matter is set for trial and the prosecution witnesses have not appeared in Court. Constable Kilei for the prosecution merely stated from the bar table that he telephoned the National Drug and Vice Squad and left a message for the informant. It is on that basis that Mr Adadikam for the defendant is now applying to dismiss the criminal proceedings for want of prosecution.
[3] The chronology of events is as follows:

On 12 October 2016 the defendant appeared from police custody and she pleaded not guilty on arraignment. The matter was listed for trial on 8 November 2016. The defendant advised that she would seek a lawyer to represent her. She was remanded in custody at the Bomana Goal.

On 8 November 2016, the defendant was not brought to Court however a bail application was filed on her behalf by Mr Adadikam a trainee lawyer with the Legal Training Institute (LTI). A clerk from the LTI appeared and asked for an adjournment on behalf of Mr Adadikam as he was attending the Local Bar Workshop. It is noted that the Prosecution witnesses were not present at that time, albeit it was set for trial. The matter was adjourned to the 10 November 2016 for the hearing of the bail application and the trial date was vacated.

On 10 November 2016, the defendant was not brought to Court and the matter was adjourned to 14 November 2016.

On 14 November 2016 she was not brought to Court and the matter was further adjourned to 15 November 2016.

On 15 November 2016 the defendant was present but her lawyer was not present in Court and the matter was again adjourned to 16 November 2016.

On 16 November 2016, the Defendant was brought to Court from the Badili Police Station cells. At that time, her lawyer did not have a certificate from the Director of LTI as required under s. 59 (1) (b) of the District Court Act. The matter was adjourned to 17 November 2016.

On 17 November 2016, the Defendant was present from custody and her lawyer having presented his certificate from the Director then moved the bail application. The matter was adjourned to the 18 November 2016 for decision.

On 18 November 2016, the Court did not sit and it was adjourned to 21 November 2016.

On 21 November 2016 the bail was refused and the matter was set for trial, the second time on 24 November 2016.

On 24 November 2016, the defendant was present from police custody however her lawyer was in class and he did not attend court. The Prosecution witnesses and the informant were not present in Court although the matter was listed for trial that day. The matter was adjourned to the 29 November 2016 for trial and the defendant was further remanded.

On 29 November 2016 defendant was present from police custody however the Prosecution did not have any witnesses in Court. The defendant also did not have a lawyer. An order was made for the Public Solicitor to assist the Defendant. The trial date was again vacated. The matter was adjourned to the 5 December 2016 for mention to allocate a new trial date.

On the 5 December, Mr Adadikam appeared and advised that he would represent the defendant in her trial and that he was prepared to proceed although he was not served a copy of the file. The Prosecutor then advised the Court from the bar table that he informed the informant on 30 November 2016, 2 December 2016 and again on the morning of 5 December 2016 but the informant and the witnesses were not present at the Court premises. He requested an adjournment. Mr Adadikam on behalf of the defendant did not have any objections but prayed to the Court not to give any more adjournments. The matter was adjourned to 7 December 2016 for trial and the defendant was remanded at the Badili Police Station cells.

[4] The preceding history as contended by Mr Adadikam demonstrates the lack of interest by the Informant in prosecuting this matter. It is argued that notwithstanding the numerous adjournments some of which was on the defendants part, the prosecution witnesses have never been present on the trial dates being the 8, 24, 29 November and presently. It is for those reasons that the case against her should be dismissed pursuant to s. 124 (b) of the District Court Act.
[5] Constable Kilei had no reply to Mr Adadikam submissions that his client should be dismissed of the charges against her.
[6] In determining, this application I must firstly determine whether I have jurisdiction. I am satisfied that section 124 (b) of the District Court Act vests this Court jurisdiction to dismiss proceedings for want of prosecution. Albeit, the term want of prosecution is not used, essentially the absence of a complainant who has been given sufficient notice is want of prosecution as it demonstrates a lack of interest in the matter. Want of prosecution is defined as “The failure of a litigant to purse a case in a timely manner, sometimes resulting in the dismissal of the case.” (Webster’s New World Law Dictionary Copyright (c) 2010, Wiley Publishing, Inc., Hoboken, New Jersey)
[7] Moving on to the application itself, in the Supreme Court case of Bernard Juali v The State [2001] PGSC 17; SC667, Justices Sevua and Kandakasi stated that in the Supreme Court past case authorities provide that in an application to dismiss an appeal for want of prosecution the applicant bears the onus of proving that there is a delay. That once it is done the respondent has to explain why he did not pursue the case and additional to that he has to demonstrate that he is prepared to proceed.
[8] Acting Justice Makail as he was then said obiter dictum that “Where the proceeding is dismissed for want of prosecution, it is commonly dismissed for a sole reason and that reason is that, the Plaintiff has failed to diligently prosecute it. In other words, what is relevant and important to the Court when it decides an application to dismiss a proceeding for want of prosecution at the material time is, whether or not a Plaintiff has diligently prosecuted the proceeding. The Court is not concerned with the merits of the cause of action in the proceeding but rather the reasons for the lack of its prosecution.” See Peter Malt v Dean Queen and Anor [2009] PGNC 15; N3577.
[9] Although, Bernard Juale refers to Supreme Court appeals and Peter Malt to civil cases the principles of what amounts to want of prosecution is applicable in my view as it is the nature of the proceedings and not the formal classification. It is the lack of interest in one party to purse a case that they have instigated.
[10] In the present context, the defendant has demonstrated a delay in that the defendant has appeared on the dates listed for trial but the prosecution witnesses have not been present. It is not the case where the defendant is on bail but she is remanded at the Police Station cells at Badili.
[11] The Prosecution witnesses are all police officers at the National Drug and Vice Squad based at Badili are present in Court today. The matter was set for trial four times and at all times prosecution witnesses have not been present.
[12] The Prosecutor’s explanation from the bar table for the absence of the informant and the witnesses today is that he telephoned the National Drug and Vice Squad office and advised other officers of the matter but the informant was not present.
[13] The Prosecutor on the 5 December 2016 told the Court from the bar table that he had informed the informant on the 30 November 2016, 2 December 2016 and finally on the morning of 5 December 2016 yet there was no appearance by the informant or the prosecution witnesses.
[14] It is not only that the Prosecution has not been ready but there has been nothing tangible and substantial before this Court by way of written affidavit or statements attesting to the lack of attendance and further and most importantly offering some iota of reasonable explanation as to the continued absence of prosecution witnesses.
[15] This is a summary Court where matters are expedited unlike the higher Courts. This is demonstrated by the relevant provisions in the District Court Act which provide time limitations for the prosecution of matters. Summary Courts cannot keep adjourning matters where informants have not demonstrated any reasonable explanation for the delay in bringing matters to trial.
[16] The history of the matter as demonstrated above shows that the applicant has been appearing and that the Prosecution witnesses have not been appearing. I am satisfied that the applicant has demonstrated that there has been no interest by the informant to purse this matter.
[17] This is a serious case involving a significant quantity of marijuana and the defendant is accused of being a supplier. The prosecutor’s silence in response to Mr Adadikam’s submission is indicative of his acquiescence that the informant is not interested in the matter. It is clear that he has not received instructions pertaining to this case. It therefore serves no purpose for this Court to continue to adjourn this case.
[18] Pursuant to the powers granted to this Court under s. 124 (b) of the District Court Act, the information is dismissed. The Defendant is discharged and unless there are any other charges is free to go at the rising of the Court.
[19] The drugs in relation to this matter are to be surrendered to the Clerk of Court for destruction.
[20] Any party aggrieved by this decision is at liberty to appeal to the National Court. Police Prosecutions for The Informant Legal Training Institute for The Defendant

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