Regina v Main [1971] PGLawRp 24; [1971] PNGLR 289 (10 September 1971)

[1971-72] PNGLR 289

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

MARTIN MAIN

Kieta & Port Moresby
Williams J

10-11 August 1971
10 September 1971

CRIMINAL LAW - Indictments - Application by accused to be brought to trial at second sittings after committal - Meaning of “brought to trial” - The Criminal Code, ss. 590.[ccclvi]1

On the final day of the second sittings of the Supreme Court after the committal of the accused for trial the Crown presented an indictment against him and indicated that its witnesses were in attendance. However the trial did not proceed because the Court had commitments in other centres on succeeding days and because the judge, having during the same sittings acquitted the accused on another charge arising out of the same incident, thought it undesirable that he should preside at a second trial. The accused then applied for his discharge under s. 590 of The Criminal Code on the ground that he had not been brought to trial at the second sittings after committal.

Held:

(1) &ـ An accu accused peed person is “brought to trial” within the meaning of s. 590 when he is placed in a position where he is able to be tried, that is by the presentation of dictmgainst him and wind with thth 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.

R. v. Byrne, [1971] P. & N.G.L.R. 1 followed.

(2) &#1ccordingly, the accused used had been “brought to trial” within the meaning of s. 590 and was not entitled to be dised.

This was an application by the accused Msed Martinartin Main Main for for his discharge at the second sittings after his committal for trial. The relevant facts and the ground of the application appear sufficiently from the judgment.

Counsel:

N. Pratt, for the Crown.
Williams, for the accused.
Cur. adv. vult.

10 September 1971

WILLIAMS J: Martin Main was charged on indictment in the Supreme Court at Kieta with having unlawfully wounded one Tinga Jwawalim. His trial proceeded on the 10th and 11th August, 1971, and I acquittm on the charge.

Immediately after the conclusiclusion of this trial Mr. Pratt for the Crown presented a further indictment against Martin Main charging him with the unlawful wounding of one Medas Ordang.

It was stated by Mr. Williams who appeared for the accused and agreed by Mr. Pratt that, at the previous sittings of this Court in Kieta in June 1971 an application had been made on the accused’s behalf under the first paragraph of s. 590 of the Code that he be brought to his trial on the charge of unlawfully wounding Medas Ordang. This application was made at the first sittings of this Court held at Kieta after the accused’s committal for trial.

The conclusion of the first trial of Martin Main and the presentation of the second indictment against him occurred late in the afternoon on the last day of the Court’s sittings in Kieta. The Court had commitments in other centres on succeeding days and in consequence it was not possible for the second trial to proceed at the August sittings of the Court in Kieta. In any event it appears that the second indictment arose from the same incident that gave rise to the first indictment and a number of matters relevant to the second indictment were necessarily canvassed before me on the first trial. In these circumstances it seemed undesirable to say the least of it that I should proceed to try the accused on the second indictment.

I should also mention that the Crown was ready to proceed with the second trial in the sense that an indictment had been presented and the Crown witnesses were in attendance.

Mr. Williams for the accused submitted that if the trial could not proceed at the August sittings then the accused was entitled to be discharged by reason of the provisions of the third paragraph of s. 590 of the Code.

Neither counsel nor myself were aware of any authority on s. 590 other than a decision of Kelly J., a copy of whose judgment was not available in Kieta. In the circumstances I postponed a decision on Mr. Williams’ application under s. 590 until my return to Port Moresby and meanwhile released the accused on bail to appear at the next sittings at Kieta unless previously discharged by this Court.

It seems to me that s. 590 is directed against delay on the part of the Crown in bringing a person, who has been committed for trial, before the Supreme Court for trial. If delay does occur then the section provides a means by which the person committed can compel the Crown either to bring the matter before the Supreme Court or suffer him to go free.

Section 590 of the Code was considered by Kelly J. in R. v. Byrne[ccclvii]2. With regard to the third paragraph of s. 590 Kelly J. said:

“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 think it is 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’.”

With respect I agree with these observations. In the present case the Crown by presenting an indictment and by having its witnesses present had done all it could do and the accused was in my view “brought to trial” within the meaning of the third paragraph of the section.

Under s. 592 the court before which an indictment is presented may, in any case, if it thinks fit, adjourn the trial of the accused person. Under s. 593 when a trial is adjourned, the court may direct the trial to be held at a later sitting and remand the accused person on bail. This was what was done in the present case as I see no reason why the powers conferred by these sections are not available to the court in a case to which s. 590 applies. If the phrase “brought to his trial” appearing in the third paragraph of s. 590 is to be construed as meaning that the accused must actually be tried then it would follow that the court’s discretion to adjourn the hearing would be fettered. I do not think that this was the intention of the legislature.

I, therefore, hold that the accused is not entitled to be discharged under the third paragraph of s. 590.

Ruled accordingly.

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

[ccclvi]Section 590 of The Criminal Code provides:

“A person committed for trial before any Court for any indictable offence may make application in open Court at any time during the first sittings of the Court held after his committal to be brought to his trial.

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.”

[ccclvii] [1971] PNGLR. 1, at p. 5.