Police v Wamea [2021] PGDC 28; DC5084 (6 May 2021)

DC5084

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 781-882 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

TONY WAMEA
[Defendant]

His worship Paul P. Nii

6^th May 2021

TRAFFIC OFFENCE: - Fail To Report Accident - s 33(C) and Reckless and Dangerous Driving – 39(1) - Road Traffic Rules-Road User Rules 2017

TRAFFIC OFFENCE- Trial- Notice of Motion- Issue of Jurisdiction- Time Limitation for certain summary offences-Time barred- Dismissed.

PNG Cases cited:
Madum Towel v Kepas Tundual (1972) No. 719

Overseas cases cited:
Nil

References

Legislation
Road Traffic Rules – Road User Rules 2017
District Court Act
Summary Offences Act
Constitution

Counsel
Police Prosecutor: J Wamuru For the Informant
In person For the Defendant

RULING ON A NOTICE OF MOTION

06th May 2021

INTRODUCTION

NII, P: The Defendant pleaded not guilty to the charges of Fail to Report Accident contravening

contravening Section 33(c) and Reckless and Dangerous Driving contravening Section 39(1) of the Road

Traffic Rules-Road User Rules 2017.

On 18^th March 2021, Defendant had filed an application through a Notice of Motion to dismiss the two (2) charges against him for want of time limitation.

BACKGROUND FACTS

1. The following facts are assembled from the Police information sheet dated 16^th October 2020:

1.1. Police allege that on the 14^th day of June 2017, the Defendant while driving a Hyundai Tucson S/Wagon, white in color with Registration No CAP 692 was driving along Waigani Drive that was on a communal road and committed the following traffic violations;

1. Fail To Report Accident,
2. Reckless and Dangerous driving
   

2. Police allege that Defendant was driving under the influence of liquor when committed the offence. Police statement says Defendant was on high speed and has lost control of his vehicle and bumped onto a Nissan Pathfinder, S/Wagon with Registration No 313. Both the Defendant and the Complainant’s vehicle got crashed. Defendant was taken to Port Moresby General Hospital for Medical treatment but later ran away from the hospital and was never to be found until the date of his Arrest.
   
3. Defendant’s case was first mentioned on 4^th November 2020 and adjourned to the 23^rd/11/2020 where

He was arraigned for the charges and on 9^th February 2021, the matter was set for trial. However, on the 18^th March 2021, Defendant has filed a Notice of Motion sustained by an Affidavit in support to dismiss the allegations against him for being time barred.

ISSUE

Whether the Defendant’s application to dismiss the charges against him meet the requirements under the Laws that administers such applications?

DEFENDANT’S APPLICATION

4. Defendant moved his application though his Notice of Motion seeking the following terms of orders which I quote as how it was pleaded:
   
   • 4.1. Pursuant to Section 36 and 61A of the District Court Act, Section 69 of the Summary Offences Act and Section 37(3) of the Constitution and the inherent jurisdiction of this Honorable court, the proceedings herein be withdrawn/and or Dismissed due to time limitation of the proceedings, and Defect, in its entirety for want of Prosecution.
   • 4.2. Bail money of K1000.00 be refunded,
     
   • 4.3. And any further Orders the court deems appropriate,
     
   • 4.4. The time for entry of these orders is abridged to the time of the settlement by the Registrar which shall take place forthwith.
     
5. Defendant’s first argument is on the issue of Time Limitation to institute an proceeding. Defendant stated in his Affidavit in Support filed dated 18^th March 2021, that the Incident happened on 14^th June 2017 but he was not arrested at that time until on the 16^th October 2020, which was approximately after some three (3) years and months after the incident. Defendant stated the time limitation or time frame to effect arrest as provided under the Laws is six(6) months within the date of allegation. Defendant says the law is very clear but Police failed to effect arrest within 6 months after the date of allegation. Defendant supported his application through the case of Madum Towel v Kepas Tundul (1972) No 719 that “this section does not derive a court of jurisdiction but provides a defendant with a defense against an information which is out of time”.
   
6. Defendant’s second argument is on the issue of wording of charges. Defendant says that the word “Reckless Driving” is confusing with the word “Dangerous driving” and he was confused which charge he was arrested under. Defendant argues that the information upon which he was arrested and charged is defective and the manner in which he was arrested is malicious in nature. Based on the interest of justice, the Defendant says he is asking the court to consider his Notice of Motion and grant the following orders:
   
   • 6.1. The entire allegation against the Defendant be dismissed, Defendant discharged and Bail be refunded.
     

PROSECUTIONS APPLICATION

7. Mr Wamuru for the Police informed the court that police will not make any contested objections to the Defendant’s application and the subsequent remedies sought. Prosecution left the court to make its own ruling based on the documents filed by the Defendant.
   

DISCUSSIONS OF THE LAWS

8. The Defendant has cited a number of provisions in support of his application to have the charges against him dismissed. The Defendant cited Sections 36 and 61A of the District Court Act, Section 69 of the Summary Offences Act and Section 38(3) of the Constitution. The Laws are briefly explained as follows:
   

District Court Act

36. LIMITATION OF PROCEEDINGS.

(1) Subject to Subsection (2), in the case of a simple offence, unless some other time is limited for laying an information by the law relating to the particular case, the information may only be laid within six months after the time when the matter of the information arose.

(2) The time limit of six months referred to in Subsection (1) does not apply to an information laid for an offence specified in Schedule 2 to the Criminal Code Act 1974.

61A. WITHDRAWAL OF INFORMATION.

(1) Subject to Subsection (2), an informant may, at any time, advise the Court that he does not intend to proceed further in the matter the subject of the information.

(2) In relation to an offence under Section 420 of the Criminal Code 1974, no information shall be withdrawn without the consent of the Public Prosecutor.

(3) On withdrawal of an information in accordance with this section, the defendant shall be discharged from any further proceedings in connection with the information.

Summary Offences Act

69. Time limit on bringing charges.

No charge for an offence against any provision of this Act shall be laid in any court one year after the offence took place.

Constitution

37. Protection of the Law

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

9. The Constitution provides for the protection of the Laws, although the Defendant has cited this provision of law, Section 37(3) of the Constitution in support of his application to dismiss the charges against him, the Law is relevant and appropriate only after when the Defendant is arrested and charged. The Law obliges police to prosecute an accused charged with an offence within a reasonable time. The constitution does not provide time cautious before arrest but after arrest and hence the application of this Law under the constitution is not appropriate here. In the current case, the Defendant was arrested on 16^th October 2020 and filed this application on the 18^th March 2021, the Application was filed after five (5) months and some days while the matter has already progressed to trial.
   
10. The Defendant has pleaded Section 61A of the District Court Act in support of his application that the information containing the charge is defective and be withdrawn. The Law obliges the informant or the Police to withdrew information contain the charges against the Defendant at any time if they wish not to prosecute the case and subsequently court should accept the application and discharge the Applicant forthwith. This law only necessitates police to request court to withdrew the information and not the Defendant, it is improper for the Defendant to file any application to withdrew the information under this provision.
    
11. Section 36 of the District Court Act, provides for the time limitations of proceedings. As opposed to indictable and Schedule 2 offences, the offender of any simple or summary offences shall be arrested, interrogated, charged and all other subsequent activities by the Summary court prominent to the completion of the case shall be administered within 6 months after the date of allegation. This time limitation of proceedings compels Police to provide evidence regarding the allegations to be heard at a timely manner. However, Section 36 of the District Court Act is reinforced by Section 69 of the Summary Offences Act which fixed the time limitation as 12 months. Although I may develop my jurisdiction and authority from the District Court Act, I should remind myself that the application of Summary Offences Act is similarly imperative pertaining to the nature of the offence and thus identical prominence and recognition shall be given to both Provisions and their Authorities when adjudicating the Defendant’s application.
    

RULING

12. Time limitations for hearing and arrest are very significant measures set by the Laws for police to comply with when executing their authorized duties under the Constitution. Both the Police and the Defendant are subject to the laws of this country and hence when police execute their lawful duties, unabridged consideration should be given to the rule of laws. The purpose of time limitation is to guide Police not to abuse their powers and should not be discharging their duties outside of the standard rules and procedures set by Laws. Activities and actions that does not go in line with the standard practices and procedures set by the Law are improper and thus same will not be accepted by the court.
    
13. Defendant was arrested on 16^th October 2020 on an allegation that happened on 14 October 2017.

Defendant was arrested and charged after 3 years and 5 months from the date of allegation.

Indictable and schedule 2 offences are not delimited by time confines and so are the two (2) allegations

against the Defendant part of the offences that are not regulated by time limitation? The charges of Fail

to Report Accident - (33(c)) and Reckless and Dangerous Driving - (39(1)) are governed by Road

Traffic Rules-Road User Rules 2017 which are summary in nature and hence they are measured by

time limitation. The Criminal Code governs all indictable and schedule 2 offences and therefore time

limitation is considered in the current application.

14. I am satisfied the Defendant was arrested and charged after 3 years and 5 months from the date of allegation thus infringing the time limitation predicted out under Section 36 of the District Court Act and Section 69 of the Summary Offences Act which regulates offences under the Road User Rules.
    

CONCLUSSION

15. It is this court’s verdict that the Application filed by the Defendant in the Notice of Motion is granted.
    

ORDERS

16. The following are the court’s Orders:
    
    1. Defendant’s application is upheld
    2. The charges of Fail to Report Accident and Reckless and Dangerous Driving are Dismissed
    100. Defendant Discharged
    4. Bail be refunded
       

In person For the defendant
Police Prosecutor For the State