State v Ahabh [2022] PGDC 8; DC8005 (27 January 2022)

DC8005

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC NO 235 OF 2021
BETWEEN

THE STATE
Informant

AND

SAMUEL AHABH
Defendant

Waigani: O Ore Magistrate

2022: 20^th & 27^th January

Extempore Ruling

CRIMINAL – Charged of Failing to Comply with Traffic Control Lights – Section 9(2) Road Traffic Regulation – Road User Rules 2017Application for Protection Order – Application to Strike out proceedings – Want of Prosecution- Section 22 District Courts Act – Section 37 (3) of Constitution

CRIMINAL – Unreasonable Delay – Hearing within reasonable time – Factors to Consider if delay is unreasonable

PNG Cases Cited
Benetius Gehasa Bika ³ (2005) N2817
Hambru v Baur ² [2007]; N3193 (24 September 2007)
State v Demuda (N2021) N9198
Yanepa, Re; ⁴ [1988-89] PNGLR 166
Nagy Maiak v Robert Charlie DC1033
Overseas Cases

References

Legislation
Constitution of the Independent State of Papua New Guinea
District Court Act

Counsel
Prosecution – Bigam E
Defendant – In Person

DECISION ON APPLICATION TO STRIKE OUT CASE FOR WANT OF PROSECUTION

27^th January 2022

1. O Ore, Magistrate: This is my decision on an application made by the Defendant Samuel Ahab on 20^th January 2022 to have this matter struck out for want of prosecution by the Police.
   
2. The Application is dated 07^th December 2021 and is supported by his Affidavit of the same date. The Defendant also filed a written submission and relied mostly on it during submission. Sergeant Bigam for the Prosecutions responded orally.
   

FACTS

3. The Defendant in this matter appears before this Court charged with one count of Failing to Comply with Traffic Lights, an offence under Section 9 (2) of the Road Traffic Regulations – Road User Rules 2017.
   
4. The Defendant was alleged to have committed the offence on the 07^th of August 2021 and a formal information was laid 2 days later on 09^th of August.
   
5. After several non-appearances by the Defendant on his mention dates, His Worship Magistrate Paul Puri Nii upon application by the Prosecution issued a Warrant for the Arrest and Detention of the Defendant on the 25^th of October 2021.
   
6. The Defendant then appeared before me on his own recognizance on the 16^th of December 2021 where the Warrant of Arrest was set aside and his bail reinstated after consideration was given to his reasons. The Defendant was arraigned and pleaded not guilty to the charge.
   
7. When the matter returned for trial on 20^th January 2022, the Defendant opted to move his application which I proceeded to hear and have it adjourned to today for my decision.
   

ISSUE

8. The issue before this Court is whether this matter can be struck out for want of prosecution.
   

DISCUSSIONS ON THE ISSUE

9. The Defendant relies on Section 22 of the District Court Act as the base on which his application is founded on. His reliance can also be founded on section 37 (3) of the Constitution which provides that a person who is charged with an offence shall be afforded a fair hearing within a reasonable time. This section of the Constitution is as follows:
   

“Section 37. PROTECTION OF THE LAW.

(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.”

10. What then is within a reasonable time? There are a plethora of case law and practice material that deal with the issue of unreasonable delay or within reasonable time. Some of these cases include Yanepa, Re; ⁴ [1988-89] PNGLR 166; N734 (19 May 1989); Benetius Gehasa Bika ³ (2005) N2817; Hambru v Baur ² [2007]; N3193 (24 September 2007). Practise directions on the other hand viewed a three-month time period as a reasonable time. Anything beyond was seen as unreasonable. This practice of 3 months has been recently done away with by Practice Direction No 1 of 2020 issued by the Chief Magistrate. The practice now is that each case is dealt with according to the peculiar circumstances surrounding it.
    
11. All these cases mentioned above in one way or another discuss this topic. At this point I must commend the Defendant for assisting the Court with case laws in his submissions. I find these cases to be very helpful. I turn to the most recent case of State v Demuda (N2021) N9198.
    
12. In State v Demuda (supra), the Court held that there are two obligations imposed on a prosecuting authority when considering reasonable time. Firstly, after a complaint is laid, the matter must be commenced within a reasonable time and secondly that the matter mut be completed withing a reasonable time.
    
13. These two obligations do not define the term reasonable time, but form part of the criminal practice and procedure. Reasonable time depends on the circumstances of each case and varies from cases to case.
    
14. In the case of Nagy Maiak v Robert Charlie DC1033 Magistrate Kaumi J (as he was then) held that the power of the District Court to strike out a matter for want of prosecution is discretionary and depends on the circumstances of each case. He states that:
    

“The power of the committal court to strike out a matter for unreasonable delay in the completion of a Police Hand-up brief is discretionary and has been used sparingly taking into consideration the peculiar circumstances of each case, inter alia, the public interest, the nature of the charge, the reasons for the delay from the investigating/ arresting officer, whether or not the defendant is in custody, the place of the offence and the availability of witnesses and their eagerness to assist investigations.”

15. Going by His Worships decision, I find that there are 6 considerations that the Court has to take into account when addressing reasonable time. These considerations are as follows:
    
    1. Public Interest
    2. Nature of the Charge
    100. Reasons for delay from the investigating/arresting officer
    4. Whether or not the Defendant is in custody
    5. The place of the offence
    6. Availability of the witnesses and their eagerness to assist investigations
       
16. All these need to be taken into consideration in deciding whether a delay in having a matter prosecuted is unreasonable.
    

REASONS FOR DECISION

17. The Defendant submitted that there was undue delay in commencing this proceeding. I find this argument to be baseless. From the Court file before me, proceedings were commenced within a reasonable time. He allegedly committed the offence on the 07^th of August 2021 and a formal information was laid 2 days later on 09^th August 2021. His matter was first mentioned on 30^th August 2021. He did not appear at that time.
    
18. The Court Records show that the matter was mentioned several times in September 2021. It was mentioned on the 07^th, 21^st, and 28^th of September 2021. The Defendant did not appear. In his submission, he states that during the month of September 2021 he did not appear because he had family/personal matters to attend to. As to what those matters were, I do not know because he has not stated them specifically in his Affidavit. I also cannot find any letter or memo on file from the Defendant advising the Court of his travel. The Court was not informed formally of his travels. This would have amounted to a breach of bail conditions had there been any.
    
19. The Defendant in his Affidavit of 07^th December 2021 states that he attended Court on 18^th October 2021 and noted that the matter was not listed. From the Court records, the Court did sit on that day and noted his absence. Through all these adjournments, the Defendant was on bail and had his bail extended.
    
20. On 25^th October 2021, the matter was mentioned and since there was no appearance from the Defendant, a Warrant of Arrest was issued for his apprehension and remand with his bail forfeited. The matter was adjourned to the 08^th of December for further mention.
    
21. The Defendant says that from October 25^th 2021 through to November 2021 he tested positive for Covid 19 and was bed ridden and had to be isolated. He supports this with evidence of lab test results of Pacific International Hospital in his Affidavit. I accept this as true.
    
22. On 08^th December 2021, the Court did not sit because all Magistrates attended to the Ceremonial Sittings of Late Justice Dan Koeget. The matter was stood over to 16^th December for review of the Warrant of Arrest.
    
23. When the matter returned, the Defendant appeared before me and applied to have the Warrant of Arrest set aside. Upon being satisfied with his reasons, the Court set aside the Warrant of Arrest and reinstated his bail. Since this was his first formal appearance in Court, he was arraigned and pleaded not guilty. The matter was then adjourned for trial. Before trial commenced, the Defendant moved this application.
    
24. The Defendant has submitted that his case has not been prosecuted for more than 5 months and puts the blame on the Court and the Prosecution for this unreasonable delay. He says that he showed up on several occasions and the matter was adjourned because of the Court and Prosecutions doing. I find this hard to believe because the Court records show that the Defendant failed to appear until 16^th December 2021. If the matter was not listed, the onus was on him to constantly follow up on the status of his matter.
    
25. If there is one to blame for this unreasonable delay, it is the Defendant. His failure to attend, inform the Court of his whereabouts and promptly do follow up at the Court registry were the sole cause of a delay of 2 months. I am also reminded that the Defendant had the luxury of being out on bail. He was not restricted from doing follow ups on his matter.
    
26. This is a straight forward matter which would have been completed in 2021 had it not being for the Defendant’s ignorance. This case is distinguishable from the State v Demuda (supra) case. In the Demuda case, the accused was kept in custody and had appeared in Court for over a year. In other words, the accused had constantly appeared form custody when his matter was mentioned. This is totally different from this case where the Defendant who is out on bail has not been appearing.
    
27. As said in equity, he who comes to equity must come with clean hands. You cannot expect the Court give you justice when you are at fault yourself.
    
28. There is no need for the prosecution to explain why there was an unreasonable delay given the glaring Court records showing the Defendant’s failure to attend Court dates. Because of the above reasons, I find this application to be misconceived and must be dismissed.
    

COURT ORDERS

29. I therefore make the following orders;
    
    1. The application by the Defendant to have this matter struck out for Want of Prosecution is refused.
       

Lawyer for the Prosecutions: Bigam E
Lawyer for the Defendant: Defendant in Person