Makora v Anis [2018] PGDC 7; DC4020 (17 July 2018)

GR5CR 4 &5 of 2017

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

4 & 5 of 2017
BETWEEN

FRANK MAKORA

AND

ERNEST ALLEN ANIS

Madang: Josephine Kilage
A/Principal Magistrate

2018: 17 JULY
  

CRIMINAL- Two counts of dangerous driving causing death thereby contravening Section 398(a)(ii) of the PNG Criminal Code Act, matter was set down for trial, prosecution makes an application before the court stating that due to the delay in hearing the matter the arresting officer has found that the State witnesses place of residence have changed and that he is unable to locate the witnesses. Police Prosecutor Senior Sergeant Pitu makes an application for the matter to be struck out rather than dismissed as the file is complete and the matter is ready to be heard once the witnesses are located. The Court finds that the charge is serious and grants the application.

There is a 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, however, two lives were lost as a result of the accident caused by the defendant and for the sake of natural justice this matter should be given the opportunity to be tried if the matter is brought back before a Grade 5 court.

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. Prosecution offered advised the Court that the arresting officer had gone to notify the State’s witnesses of the date of trial. He stated that the matter was a prolonged matter and that the witnesses no longer resided at the same address given to the police. Senior Sergeant Pitu makes an application to have the matter struck out. His application was granted. The matter was struck out 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. Also considered was the seriousness of the charge, the fact that a hand out brief was completed and that there was enough evidence adduced for the matter to be tried at a subsequent date. Finally for the interest of justice the matter is struck out and not dismissed.

1. INFORMATION

The defendant Ernest Allen Anis was charged for two counts for dangerous driving causing the death of Mr Ilolik Awalel and Vincie Lalu.

The informant Sergeant Frank Makora of the Madang Police, Traffic Section laid an information alleging that Mr Ernest Allen Anis had on 28^th day of April 2016 at Goro Village, along Transgogol Road, Madang in Papua New Guinea did drive a motor vehicle to wit Isuzu Truck, Blue in colour, registration number LBO 474, on a public road to wit, Goro Village, along Transgogol Road, Madang dangerously and thereby caused the death to one namely Ilolik Awalel, a national male age 33years of Derin Village, Transgogal LLG, Madang Province thereby contravening Section 328(2)(5) of the PNG Criminal Code Act.

2. PROCEEDINGS FROM 2017 TO 2018

2017

2.1 The matter was registered as a police complaint at the Jomba Police Station. The defendant appeared from police custody on 14^th of February 2018 and was arraigned by his Worship Ignatius Kurei and the matter was adjourned to 14^th of March 2016 for mention. The defendant was remanded.

2.2 On 14^th of March 2017 the matter came before me. The defendant was in custody at Beon Correctional Services and did not appear in court. The prosecutor who had carriage of the matter, Sergeant Suamani, (as he was then) made an application for an adjournment. The matter was adjourned to Thursday 16^th of March 2017 for the defendant to be brought from custody. His warrant of remand was extended.

2.3 On 16 March 2017 the defendant appeared from custody for me. Sergeant Suamani submitted to the court that the hand out brief was yet to be completed and he made an application for a further adjournment. The application was granted and the matter was adjourned to 18^th of April 2017 for mention. The defendant’s warrant of remand was extended.

2.4 On 18^th April 2017 the defendant had not been brought down from Beon CS. The prosecution applied for an adjournment as the defendant was at Beon CS. The application was granted and the matter was adjourned to 20^th April 2018 for mention. The defendant’s warrant of remand was further extended. The election certificate from the Public Prosecutors office was also signed on 18^th April 2017.

2.5 On 20^th April 2017 the defendant had not been brought down from Beon CS. The Sergeant Suamani made an application for a further adjournment as he had given an election certificate to the office of the Public Prosecutor. The application was granted and the matter was adjourned to 4^th of May 2017 and the matter was to be mentioned at the next Beon Court Circuit. Defendants’ warrant of remand was extended.

2.6 On 4^th of May 2017 the defendant was still not brought before the court and the Sergeant Suamani informed the court and the file was ready and that the election certificate had also been signed. He made an application for an adjournment. The application was granted and the matter was adjourned to 11^th of May 2017 for mention and the defendant’s warrant of remand was extended.

2.7 On 11^th of May 2017 the matter was mentioned and the prosecutor made an application for the file to be transferred from committal court to Grade 5 court and further adjourned. The application was granted and the matter was transfer from committal court to Grade 5 court and the matter further adjourned to 16^th of May 2017 for mention. The defendant’s warrant of remand was extended.

2.8 On 16^th May 2017 the defendant was kept at Beon CS and the prosecutor requested an adjournment to bring the defendant to court. The application was granted and the matter was adjourned to 18^th May 2017.His warrant of remand was extended.

2.9 On 18^th of May 2017 the matter went before his Worship Ignatius Kurei. The defendant was still at Beon CS and Sergeant Pitu made an application for the matter be adjourned. The matter was adjourned to 30^th May 2017 and the defendant’s warrant of remand was extended.

2.10 On 30^th May 2017 Sergeant Pitu (as he was then) informed the court that he would be on election duties and that he had no objection to bail. His Worship Ignatius Kurei that had the case adjourned to 3 August 2017 for mention. The defendant was allowed on K1000.00 bail and bail reporting conditions were informed to him.

2.11 On 3 August 2017 the defendant appeared before my court and the matter was further adjourned to 21 September 2017 as there was no Grade 5 magistrate in Madang. His bail was extended.

2.12 On 17 October 2017 the court was vacated to 15^th November 2017 and bail further extended. On 15^th November 2017 his Worship Ignatius Kurei heard an application for police prosecutor Sergeant Pitu in which the prosecutor applied for the file to be adjourned as the public prosecutor has not filed a withdrawal. The application was granted and the matter was adjourned to registry.

2.13 On 26^th October 2017 I was appointed an acting Principal Magistrate. On 6^th December 2017 I took my oath of office and was sworn in before His Honor Justice Cannings at the Madang National Court.

2.14 On 18^th December 2017 the Defendant did not appear from bail. Sergeant Pitu applied for an adjournment so that he can inform the arresting officer to tell the defendant on his next mention date. I granted his application and extended bail

2018

2.15 On 24^th January 2018 the defendant did not appear and prosecutor Sergeant Pitu made another application for an adjournment to notify the defendant. The application was granted and the matter was adjourned to 6^th of March 2018 for Mention. Bail was extended.

2.16 On 6^th March 2018 the defendants’ plea was taken on both counts of dangerous driving causing death. The defendant pleaded not guilty. Prosecution applied for a trial date and indicated that he had five witnesses. The Defendant said most of the witnesses who were passengers and he did not think he would be about to find any of them. The court then adjourned the case to 21^st May 2018 for commencement of Trial. The defendant’s bail was extended.

2.17 On 21 May 2018 the defendant appeared in court from extended bail. Sergeant Pitu made an application for an adjournment as the arresting officers wife was sick and he (Pitu) was busy with last weeks’ Grade 5 cases. I granted the application and adjourned to 16 July 2018 for the commencement of trial.

2.18 On 16^th July 2018 Sergeant Watakapura appeared. He applied for leave as it was Sergeant Pitus’ case and he was on leave. I granted the application and adjourned the matter to 17^th July 2018 for mention and extended the defendants’ bail.

2.19 On 17^th July 2018 Senior Sergeant Pitu made an application before the court. He submitted that the matter was set for trial. Witnesses have changed residential addresses. He stated that the Arresting Office could not locate any of these witnesses. He made an application to the Court to have the matter struck out. I granted the application and had the matter struck out. The defendant’s bail shall be refunded to him.

2.20 I have decided not to dismiss the case for the interest of justice. The matter will be struck out for now. It is up to the families of the deceased to check the arresting officer on the status of the case and take further action if aggrieved by my decision.

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 328(2)(5) of the PNG Criminal Code Act. Section 328(2)(5) states, “a person who drives a motor vehicle on a road or a public place dangerously is guilty of a misdemeanour”. “If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.”

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 dangerous driving causing the death of Ilolik Awalel against the defendant Ernest Allen Anis.

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.

5.4 I will not dismiss the matter. I am going to struck it out. It is up to the relatives of the deceased to decide on their next course of action.

6. ORDER

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

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

Ordered on 17^th day of July 2018

Entered on 17^th day of July 2018

BY THE COURT

Ms Josephine Kilage

Acting Principal Magistrate

Senior Provincial Magistrate- Madang