Police v Balos [2021] PGDC 63; DC6018 (2 June 2021)

DC6018

Papua New Guinea

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

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 809 OF 2020
CB NO 3611 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

PETER BALOS
[Defendant]

His worship Paul P Nii

02^st June 2021

TRAFFIC OFFENCE: - Without Due care and Attention - s 28(2)(a) - Road Traffic Rules-Road User Rules 2017

TRAFFIC OFFENCE- Trial- no witness- no Evidence- Defendant pleaded no guilty

PNG Cases cited:
Police v Miori [2021] PGDC 40; DC5096 (17 May 2021)
State-v-John [2018] PGNC 62; N7144

Overseas cases cited:
Nil

REFERENCE

Legislation
Road Traffic Rules 2017

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

RULING ON VERDICT

2^nd June 2021

INTRODUCTION

NII, P Magistrate: Defendant pleaded not guilty to the charge of Driving without
Due care and Attention contravening Section 28(2)(a) of the Road Traffic Rules-Road User Rules 2017. Trial was conducted by this court on the 2^nd June 2021. Defendant was ready to proceed with his case but Police Prosecutor was not ready with their evidence and sought an adjournment but the adjournment was objected by the Defendant and this is my ruling on verdict.

FACTS

1. Defendant is aged 31 and married with three (3) children. Police allege that on 5^th October 2020, the Defendant while being the driver of a motor vehicle, where its description is encrypted by police in their information sheet bearing the charge as a Toyota Land Cruiser, 4 Door, Open back, white in color and bearing registration No. BFT 281, was driven by the Defendant at Boroko drive which was on a public road, and he drove the said vehicle without due care and attention thereby infringing Section 28 (2)(a) of Road Traffic Rules 2017.
   
2. Defendant was arrested on 5^th October 2021, for the traffic offence and subsequently arraigned by the court and the Defendant pleaded not guilty to the charge and hence the matter was rife for trial. Since then trial was outstanding and the matter was adjourned by several Magistrates unlit I was sitting on the 19^th May 2021, where I adjourned the matter to 2^nd June 2021 for trial.
   
3. On the date of trial when the Defendant was ready to open his case and present evidence, police witness were not in court. Nevertheless, Police Prosecutor informed court that the arresting officer was not ready and moreover police witness was not ready. Prosecutor then asked the court to have the matter adjourned it for the last time for them to identify and bring in their witness in the next mention. Nonetheless, the Prosecutor’s application for adjournment was strongly objected by the Defendant on the basis that this matter has been prolonging for some time and hence he argued that trial should proceed or in the alternative Defendant asked the court to dismiss the charge against him.
   

ISSUE

4. Whether the charge against the Defendant be dismissed for want of police witness on the day of trial when Prosecutor offers no evidence?
   

RELEVANT LAWS

28 GENERAL DRIVING RULES

(2) The driver of a motor vehicle on a public street must not–

(a) drive without due care and attention;

EVIDENCE

5. There are two types of arrest done by Police. First is evidence based arrest while the second is non-evidence based arrest. The former is where arrest is done after evidence is ready while the second is where arrest is done and evidence is subsequently collected during the course of the proceedings. This practice is most common in indictable offence, however, for summary offence, the same principle should be employed. If the Defendant was arrested after evidence was compiled then trial should have been already administered or alternatively if the Defendant was arrested without evidence then by now evidence against him should be ready.

.
RULINGS

6. I will adapt the principle in my own case of Police v Miori^[1] in this ruling. This matter is identical to the current circumstances. The principle in this matter is once when a matter is fixed for trial, trial should continue. Nevertheless, if prosecution decides to offer no evidence then the matter should be dismissed. My principle is also supported in the case of State-v-John^[2] . In the former case, I dismissed the charge against the Defendant because police failed to offer evidence on the date of trial and in the latter case, the court also dismissed the charge against the Defendant because police also failed to offer evidence on the date of trial.
   

37 Constitution

(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) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge

7. Section 37(4)(a)^[3] provides for the protection of the law. The protection of the constitution where it provides for presumption of innocent until proven guilty is a pillar of justice that regulates and protects the practices and process of prosecution and evidence from being abused by police. A person’s verdict will be lawfully determined after police evidence is tested by the court, without that, a person’s status before arrest shall be remained. In the absence of police establishing their case, the Defendant is eligible to be discharged.
   
8. Section 37(3) ^[4]provides that the charge against the Defendant be dealt within an equitable time and through an impartial hearing. I also accept that this is a Traffic offence and hence trial should have been conducted there and then or some weeks after the date of arrest, however, now it has gone past seven (7) months without conducting trial against the defendant. A person charged with an offence unless the charge is withdrawn, his case shall be dealt with within a reasonable time. In the eyes of the law, the delay of seven (7) months in dealing with a summary offence is unwarranted and hence this matter should come to a stop now.
   

CONCLUSSION

9. Defendant was arrested on 5^th October 2020, and now we are in June 2021, which is almost 8 months from the date of arrest. Within the 8 months, there was no progress of the charge against the Defendant than only have it adjourned one after another. The common saying, “Justice delayed is justice denied”, therefore, I order that the charge against the Defendant be dismissed.
   

ORDERS

10. Here are the sanctioned Orders:
    
    1. The charge against the Defendant is dismissed.
    2. Defendant is discharged.
    100. Defendant’s bail is refunded.
         

In person For the defendant
Police Prosecutor For the State

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1. ^[1]1 [2021] PGDC 40; DC5096 (17 May 2021)
   

^[2] [2018] PGNC 62; N7144
^[3] The Constitution of the Independent State of Papua New Guinea
^[4] Supra