[1971-72] PNGLR 1

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

v

BYRNE

Rabaul: Kelly J
29 July 1970

CRIMINAL LAW - Indictments - Presentation of in absence of accused - Application for bench warrant - Appearance of counsel for accused on application - Application by accused to be brought to trial at second Sittings after committal - Meaning of “brought to trial” - The Criminal Code, s. 5901 - The Criminal Practice Rules of 1900, O. V, r. 1.2
An indictment may be presented against an accused person in his absence.

Where an accused person released on bail after committal fails to appear to stand trial and the Crown after presentation of the indictment against him applies for a bench warrant, counsel may by leave of the Court appear on behalf of the accused upon the application.

An accused person is “brought to trial” within the meaning of s. 590 of The Criminal Code when he is placed in a position where he is able to be tried, that is by the presentation of an indictment against him and with the Crown either ready to proceed by having its witnesses to prosecute its case against him or by the Crown Prosecutor informing the Court that the Crown will not further proceed upon the indictment in which event the accused is discharged.

An accused person who because of his absence cannot be tried at the second Sittings after his committal and who, if such absence be deliberate on his part, has prevented himself from being tried is not entitled to be discharged under the provisions of s. 590.

Criminal Trial.

At the Criminal Sittings of the Supreme Court in Rabaul in July 1970 Gary Russell Byrne who had previously been committed for trial and released on bail did not appear. The Crown Prosecutor presented an indictment against him. The various applications then made by the Crown and by counsel on behalf of the accused and the trial judge’s rulings thereon appear from the reasons hereafter reported.

Counsel:
N. Pratt, for the Crown.
Flood, for the accused.

29 July 1970

KELLY J: On the last day of the criminal sittings at Rabaul the Crown Prosecutor presented an indictment against Gary Russell Byrne. The indictment contained three counts, carnal knowledge against the order of nature, committing an act of gross indecency with a male person and unlawful and indecent assault. The accused did not appear and Mr. Pratt then made an application under O. V, r. 1 of The Criminal Practice Rules of 1900 (Queensland, adopted) for a bench warrant.

Although r. 1 permits the making of such an application upon the production of the original indictment or an office copy thereof, without other evidence, Mr. Pratt quite properly chose to adduce evidence which set out the terms of a recognizance entered into by the accused on 7th May, 1970 following his committal for trial and a subsequent variation of the terms of such recognizance made on 29th June, 1970. There was no application before me to estreat the recognizance and the other evidence in support of the application for the warrant dealt with efforts to locate the accused and indicated that his present whereabouts were not known.

When Mr. Flood, Deputy Public Solicitor, announced that he appeared for the accused, Mr. Pratt submitted that Mr. Flood had no right of audience in the absence of the accused. It seems to me that the physical presence of the accused in court is not a condition precedent to a right of audience being granted to counsel on his behalf. On principle and unless there is any provision in the Code which would compel me to hold otherwise, I consider that where, as in this case, an application is being made which, if granted, would adversely affect the accused, he should be allowed representation, if not as of right, certainly in the exercise of the Court’s discretion to grant leave to counsel to appear on his behalf. I was not referred to any provision in The Criminal Code, nor can I discover any provision, which would preclude the granting of such leave. Section 616 specifically gives the accused a right to make his defence by counsel “at his trial” and by s. 594 the trial is deemed to begin when the accused is called upon to plead. I would not, however, read these provisions as forbidding representation to an accused at any stage before he is called upon to plead, and indeed counsel habitually applies on behalf of an accused person to quash the indictment pursuant to s. 596, a matter which must necessarily be determined before plea, that is, before the trial is deemed to have begun. I consider that I am not precluded from granting leave to counsel to appear for the accused at this stage and whether or not the accused is personally present does not seem to me to affect the position. I thought that in the circumstances, it was proper that I should grant leave to Mr. Flood to appear for the accused for the purpose of the present application and leave was granted accordingly.

In the course of argument it was submitted that apart from the merits of the application there was an obstacle to its being granted in that O. V, r. 1 provides for the making of “an application for a warrant to arrest a person against whom an indictment has been presented” and that it would appear that an indictment could only be presented against an accused who was present. No authority could be cited for this and it does not seem to me that this submission is well founded. The accused must certainly be present in order to plead (s. 594) and except in the circumstances provided for in s. 617 the trial must take place in his presence. There is, however, nothing in the Code which requires that the accused be present when the indictment is presented; certainly in view of ss. 594 and 617 the trial could not begin in his absence, but that is another matter. If an indictment could not even be presented in the absence of the accused, O. V, r. 1 would become virtually meaningless and the machinery provided by that rule to procure the attendance of an accused who had failed to appear to stand his trial could not be operated.

Mr. Flood also foreshadowed the making of an application under the third paragraph of s. 590 for the discharge of the accused and submitted that in any event the issue of the warrant should be deferred until after such an application had been dealt with as if the accused were to be discharged the bench warrant would become meaningless. I was not disposed to accede to this application as in my view I should dispose of the application then before me and if, having ordered that a warrant issue for the arrest of the accused, he should subsequently be discharged pursuant to s. 590 no problem would arise and at worst the warrant would merely cease to be effective.

As I considered that on the material before me the Crown had made out a case for the issue of the warrant, I made the order sought on the application.

Mr. Flood then sought to make an application for the discharge of the accused pursuant to the third paragraph of s. 590. Mr. Pratt objected to the appearance of Mr. Flood on this application, the leave previously granted to him to appear not of course extending to this matter. Mr. Pratt submitted that if the accused were not present, counsel had no right to be before the court on his behalf for the purpose of invoking s. 590. It appeared to me that somewhat different considerations applied in this case from those which applied in the previous instance where the Crown was making an application which if it were granted would adversely affect the accused, whereas here the application which it was sought to make was one on behalf of the accused. However, without finally ruling on the question of representation, I gave Mr. Flood leave to appear as amicus curiae so that I might have the benefit of his assistance as well as that of Mr. Pratt in interpreting the final paragraph of s. 590 which does not appear to be the subject of direct authority.

In this instance the accused had made application at the June sittings of the Court in Rabaul in accordance with the first paragraph of s. 590 to be brought to his trial, these being the first sittings of the Court held after his committal. The third paragraph of s. 590 then reads:

“Any person committed as aforesaid, who has made such an application to be brought to his trial, and who is not brought to trial at the second Sittings after his committal for trial, is entitled to be discharged.”

The section does not say that the accused shall be discharged if all the other provisions of the section are met, which would compel the Court to discharge him whether the accused wanted it or not, nor does it say that he may be discharged in those events which would give the Court a discretion. The use of the word “entitled” seems to me to imply that it is a right which the accused has in these circumstances if he chooses to avail himself of it.

To my mind the key words are “brought to trial”. In this context I think these words mean placed in a position where he is able to be tried, that is by the presentation of an indictment against him and with the Crown either ready to proceed by having its witnesses to prosecute its case against him or by the Crown Prosecutor informing the Court that the Crown will not further proceed upon the indictment in which event the accused is discharged under s. 563. I do not consider it necessary that matters reach the stage of the accused being called upon to plead so that under s. 594 the trial is deemed to begin; s. 590 does not say “and whose trial has not begun”. The object of the section appears to me to be to prevent the Crown from failing, after the lapse of a reasonable period, to bring before the Court a person who has been committed for trial and who seeks to be brought before the Court so that he may make his defence to the charge or, if the Crown is unable or unwilling to come with its witnesses to make a case against him, so that he may then be discharged. I do not consider that it is intended to apply to the case of an accused who because of his absence cannot be tried and who, if such act were deliberate on his part, having thus prevented himself from being tried, could then procure his discharge.

I therefore rule that the accused is not entitled to be discharged under the provisions of s. 590.

Ruled Accordingly.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.