Police v Philip [2018] PGDC 4; DC4021 (7 May 2018)

DC4021

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

GFCr 07 of 2017
BETWEEN

GABRIEL OPENEFA
Informant

AND

VINCENT PHILIP
Defendant

Madang: Josephine. Kilage

2018: 7 MAY
  

CRIMINAL- One count of break and enter thereby contravening Section 398(a)(ii) of the PNG Criminal Code Act, matter was set down for trial, prosecution offers no evidence, court dismisses the matter, need to uphold constitutional rights of those charged with an offence under s37 of the Constitution and uphold that a person is innocent until proven guilty in a court of competent jurisdiction.

Cases Cited
In the Matter of an Application by Benetius Gehasa [2005] PGNC 140;N2817
In the Matter of Complaints of Unlawful and Unreasonable Detention by Michael Walge & 6 Ors [2006] N3022

References
Constitution of the Independent State of Papua New Guinea
Papua New Guinea Criminal Code Act

Counsel
Police Prosecutor Senior Sergeant Pitu, for the Informant
Defendant appearing in Person

J.K.Kilage: This matter was set down for trial. Arresting officer and witnesses were notified of the trial date. No appearance of State witnesses or the arresting officer to explain the nonappearance of witnesses. Prosecution offered no evidence. Matter was dismissed for want of prosecution. Constitution requirements under section 37(3) considered when making the decision and the underlying presumption of innocence of the defendant until proven otherwise in a court of competent jurisdiction.

1. INFORMATION

The informant Constable Gabriel Openefa of the Ramu Police who laid an information alleging that Mr Vincent Philip had on 27^th day of January 2017 at Jeffcott Estate Division Six Gusap, Markam Morobe did break and enter a building adjacent to the dwelling house of the Ramu Agri-Industries Limited which was occupied with but not part of the dwelling house and did commit the crime of stealing 17x door frames valued at K2068.03 in that building thereby contravening Section 398(a)(ii) of the PNG Criminal Code Act.

2. PROCEEDINGS IN 2017

2.1 The matter was registered as a police complaint at the Ramu Police Station. A hand out brief was completed and the file was elected by the Public Prosecutor on 30^th May 2017 for the matter to be heard summarily by the Grade Five court.
2.2 On the 17^th day of July 2017 the file was transferred by the Ramu District Court to the Madang District Court as there was no Grade 5 magistrate at the Ramu District Court.
2.3 On 7^th September 2017 the matter was first mentioned in the Madang District Court. Senior Sergeant Pitu requested an adjournment to get the defendant’s bail detail. The matter was adjourned to 19^th September 2017 for mention.
2.4 On 19^th September 2017 Senior Sergeant Pitu advised the court that the defendant was on K1000.00 and that there was no appearance of the defendant. He requested for an adjournment to advise the arresting officer to inform the defendant that his case had been transferred to the Madang District Court. The matter was further adjourned to 19^th October 2017. Then further adjourned pm 19^th October 2017 to 24 January 2018 as the defendants had not appeared at the Madang District Court.
2.5 On 24^th January 2018 the defendant had not yet appeared and Senior Sergeant sought another adjournment. The matter was the adjourned for mention on 6 March 2018 for mention. This was to give ample time to notify the defendant of his pending Grade 5 matter at the Madang District Court.
2.6 On 6^th March 2018 the defendant was present from extended bail and plea was taken. He pleaded not guilty. Senior Sergeant Pitu made an application to the court for a date for trial. He said the police would provide 7 witnesses for the case against the defendant. Defendant said he had 3 witnesses, his co-accused Vincent Philip and himself. The matter was adjourned to 7 May 2018 for Trail.
2.7 On matter was heard on 7 May 2018 and the defendant and his co-accused Vincent Philip were present in court. Senior Sergeant Pitu called for the arresting officer and for the state witnesses. None were present. Senior Sergeant offered no evidence in the matter before the court.

3. RELEVANT LAWS

3.1 Section 37(1) of the Constitution of Papua New Guinea (the Constitution) states that every person has the right to the full protection of the law, and that right is fully available to persons in custody or charged with offences.

3.2 Section 37(3) of the Constitution states that 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.

3.3 Section 37(4)(a) of the Constitution states that a person charged with an offence shall be presumed innocent until proven guilty according to law.

3.4 The defendant was charged under Section 398(a)(ii) of the PNG Criminal Code Act. Section 398(a)(ii) states ; “a person who breaks and enters a building that is adjacent to a dwelling house and occupied with it, but is not part of it and commits a crime in it is guilty of a crime.

4. RELEVANT JUDICIAL AUTHORITY

4.1 In the Matter of an Application by Benetius Gehasa [2005] PGNC 140; N2817 Justice Cannings held that ‘it is the middle competent (of s37(3)sic) that is at issue here. What is a reasonable time will vary from case to case. There may be good reasons for a trial not have started for what seems a long time after a person is arrested or committed for trial. But is the event of delay, it is incumbent on the prosecuting authority to explain the delay and provide a good reason for it. If no good reason, the delay is unreasonable.”.

4.2 In the matter of complaints of unlawful and unreasonable detention by Michael Walge & 6 Ors and in the Matter of Enforcement of Basic Rights under the Constitution [2006] Justice Cannings held that Constitutional rights such as Section 36(1) freedom from inhuman treatment, Section 37(1), (17) protection of the law “these rights are intended to be real and enforceable”.

5 FINDINGS

5.1 The police offered no evidence in relation to the charge of break and enter against the defendant Vincent Philip.

5.2 To further adjourn would serve no good purpose as the matter has been set down for trial and the arresting officer and the witnesses were given sufficient time to attend court.

5.3 The defendant is innocent until proven guilty. His guilt has not been proven by the State.

5.4 The defendant therefore has the right to the full protection of the law in that he is to be given a fair hearing within a reasonable time by an independent and impartial court. He is innocent until proven guilty. The burden of proof lies with the police and they have failed to prove their case against the defendant.

6. ORDER

The police have not offered any evidence for the successful prosecution of this case. I therefore make the following orders:

1. Case dismissed for want of prosecution.
2. Defendant is discharged from the offence.
3. Bail is to be refunded to the defendant.
   

Given by my hand on the 7^th day of May 2018

Ms Josephine Kilage

Senior Provincial Magistrate- Madang