Kivia v State [1988] PGNC 47; [1988-89] PNGLR 107; N669 (14 April 1988)

N669

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE APPLICATIONS OF

LINDSAY KIVIA, ROBERT N’DRAKU

V

THE STATE

Lae
Amet J

14 April 1988

CRIMINAL LAW - Practice and procedure - Application for discharge - Failure to be "brought to trial" - When application may be made - Application to be by originating summons - When entitlement to discharge arises - Mere presentation of indictment not avoiding entitlement - Criminal Code (Ch No 262), s 552(2), (4) - Criminal Practice Rules 1989, O 1, r 11.

The Criminal Code (Ch No 262), s 552, provides that a person who has been committed for trial may make application at any sittings of the National Court "to be brought to his trial". Section 552(4) provides:

"(4) If —

(a) A person has made an application under Subsection (2); and

(b) At the end of the sittings of the National Court at his place of trial next following the application—

(i) no indictment has been presented against him; or

(ii) the Court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged."

At the December 1987 sittings in Lae four accused persons made applications under s 552(2) of the Criminal Code to be brought to trial.

At the end of the next sittings (February 1988) no indictments had been presented. On the last day of the March 1988 sittings the accused sought to be discharged under s 552(4). At this point the State presented indictments against all accused.

Held:

(1) An application under s 552(2) to be brought to trial can be made at any time during the sittings; it is not required to be made at the end of the sittings.

(2) The "entitlement to be discharged" accrues to or vests in the accused at the end of the sittings next following his application if he can satisfy the Court of the existence of the conditions in s 552(4)(b)(i) and s 552(4)(b)(ii) at that time.

The State v John Nuki Yamai [1987] PNGLR 314, followed.

(3) For the purposes of s 552(2) a person is "brought to trial" 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 proceed further upon the indictment.

R v Byrne [1971-1972] P&NGLR 1 at 5 and R v Martin Main [1971-1972] P&NGLR 289 at 291, adopted and applied.

The State v Frank Taso Yasim [1983] PNGLR 111 at 113, not followed.

(4) Accordingly, the presentation of an indictment on the last day of the sittings next following an application under s 552(2) will not of itself avoid or defeat the accused’s entitlement to be discharged.

The State v John Nuki Yamai [1987] PNGLR 314, considered and not followed.

(5) (Obiter) An application to be brought to trial under s 552(2) should be made by originating summons pursuant to the Criminal Practice Rules 1987, O 1, r 11, supported by affidavit and served on the State as respondent.

Cases cited

The following cases are cited in the judgment:

R v Byrne [1971-72] PNGLR 1.
R v Martin Main [1971-72] PNGLR 289.
State, The v John Nuki Yamai [1987] PNGLR 314.
State, The v Frank Taso Yasim [1983] PNGLR 111.

Application for discharge

These were applications by four accused persons made pursuant to the Criminal Code (Ch No 262), s 552(4), for discharge from further criminal proceedings before the National Court.

Counsel:

I Langford, for the State.
M Mosoro, for the accused, N’Draku and Seski.
L Henao, for the accused Kivia.

14 April 1988

AMET J: These are applications by the three accused pursuant to s 552(4) of the Criminal Code (Ch No 262) to be discharged from any further proceedings in respect of charges for which they had been committed to stand trial before the National Court. The relevant provisions of s 552 are as follows:

"(2) A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application to any sittings of the National Court to be brought to his trial.

...

(4) If —

(a) a person has made an application under Subsection (2); and

(b) at the end of the sittings of the National Court at his place of trial next following the application —

(i) no indictment has been presented against him; or

(ii) the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged."

The following is the short history of this matter.

1. Robert N’Draku was charged and taken into custody on 2 March 1987.

2. Lindsay Kivia also charged and taken into custody on 6 March 1987.

3. Both were committed for trial in the National Court on 21 April 1987.

4. Peter Seski was arrested and charged on 4 August 1987, committed on 3 November 1987 and was granted bail on 21 November 1987.

5. Counsel for Kivia in the December 1987 sittings in Lae, Mr Lupalrea contended that the preliminary s 552(2) application was made before Bredmeyer J on 15 December 1987, the last day of the sittings.

6. Mr Mosoro, counsel for N’Draku and Seski also contended that he made similar applications for his clients, pursuant to s 552(2) in December 1987 before Bredmeyer J.

7. No notation of either application was noted on the file cover endorsed by Bredmeyer J himself.

8. The February 1988 sittings before Kapi Dep CJ was a short one lasting only five sittings days.

9. Mr Mosoro submitted that because of this fact he did not press the s 552(4) application then for his clients.

10. Mr Lupalrea for Kivia did press the s 552(4) application. Kapi Dep CJ adjourned it to be argued at the next sittings, which was to be in March 1988.

11. No indictment was presented at the end of the February 1988 sittings.

12. On the last day of the March 1988 sittings before the Chief Justice on 18 March 1988, Mr Henao for Kivia and Mr Mosoro for N’Draku and Seski renewed the s 552(4) applications.

13. The Chief Justice raised the query that no file notations were recorded by Bredmeyer J, of the s 552(2) applications having been made by counsel for the accused.

14. In the course of this discussion Mr Langford, the State Prosecutor presented the indictment dated 18 March 1988 for 1.30 that afternoon.

15. This course was objected to by Mr Henao, but the Chief Justice accepted the indictment and said he would let it be in the file.

16. The applications were adjourned to Waigani in order to consult Kapi Dep CJ and Bredmeyer J on the status of the applications under s 552(2) before them respectively.

17. The report from Bredmeyer J confirmed that his notebook showed that on 15 December 1987 the last day of the sittings, Mr Lupalrea did make a s 552(2) application on Kivia’s behalf.

18. In relation to N’Draku, Bredmeyer J reported that he did not have any note in his notebook of any s 552(2) application by Mr Mosoro on the last day of the sittings, but concedes that if Mr Mosoro were to swear an affidavit that he made the application on the last day of the sittings, he would not deny it.

19. Deputy CJ Kapi’s notes confirm that Mr Lupalrea did pursue the s 552(4) application but it was adjourned to the next sittings, to be argued or for the trial to be conducted.

20. Mr Mosoro has sworn an affidavit deposing to having made the s 552(2) application on behalf of both N’Draku and Seski on 15 December 1987 before Bredmeyer J.

I am thus satisfied that s 552(2) applications were in fact made by counsel on behalf of each of the accused, before Bredmeyer J on 15 December 1987.

Mr Henao for Kivia has submitted that I should deal with his application as if it were before Kapi Dep CJ in February, because that is the sittings next following the s 552(2) application at which the s 552(4) was made but was adjourned to be argued at the next sittings because the sitting was shortened and there was no time to argue the application. Mr Henao has thus submitted that as at the end of the sittings in February 1988 before Kapi Dep CJ no indictment having been presented, this being the sittings next following the s 552(2) application, the accused Kivia is entitled to be discharged as at that time, pursuant to s 552(4).

Furthermore, both Mr Henao for Kivia and Mr Mosoro for N’Draku and Seski have submitted that in the course of the March 1988 sittings before the Chief Justice no indictment was presented. It was not until the s 552(4) applications were being made before the Chief Justice on 18 March 1988 the last day of the sittings that the indictment was belatedly presented by the State prompted by the s 552(4) applications, to deny this entitlement.

Mr Henao placed considerable reliance on the judgment of Kapi Dep CJ in The State v Frank Taso Yasim [1983] PNGLR 111, in that the minimum action required of the State, that of simply presenting an indictment by the last day of the sittings next following the s 552(2) application had not been complied with. That is that this obligation arose at the end of the February 1988 sittings. No indictment was then presented.

Mr Mosoro for N’Draku and Seski has made similar applications. He submitted that though the s 552(4) application was not pursued in February 1988 before Kapi Dep CJ, it was because the sitting was shortened to five days. In any event the State had not presented an indictment nor had it made a genuine attempt to complete its case.

It was further submitted by Mr Mosoro that, although the application was not pursued in February 1988 before Kapi Dep CJ, the right to press it at the next sitting did not lapse. The belated presentation of the indictment on the last day in the course of the s 552(4) argument should not defeat the entitlement if "the Court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case". Reliance was placed on the judgment of King AJ in The State v John Nuki Yamai [1987] PNGLR 314.

Mr Langford in reply first took objection to the applications under s 552(2) generally in that no written applications were filed pursuant to the Criminal Practice Rules 1987, O 1, r 11, which requires such National Court applications to be by way of an originating summons. Because the applications were not pursued at the end of the sittings next following the applications, they lapse, and further the State is not precluded from presenting an indictment at any time before the end of the sittings. Mr Langford submitted that the second requirement that the court should be satisfied that the prosecution has not in the circumstances made a genuine attempt to complete its case should be assessed in the context of the Constitution, s 37(3), requirement of "a fair hearing within a reasonable time". It was submitted that perhaps s 552(4)(b)(ii) is inconsistent with what might be a "reasonable time" under s 37(3) of the Constitution. In the consideration of the reasonableness or otherwise of the time and whether or not the State had made a genuine attempt to complete its case, all the circumstances of the case needed to be taken into account, the circumstances of the country, the increase in crimes, long lists of cases, shortage of judge/court time and other logistical difficulties. In this context Mr Langford filed an affidavit with an annexed statutory declaration of one Steven Tita the police investigating officer for Kivia and N’Draku who was later charged and committed for trial on 1 December 1987 for official corruption. The State Prosecutor therefore had no investigating officer to get the case ready. Senior Inspector Powis who had taken over investigations was no longer able to assist. He suggested that the Senior State Prosecutor consult with the CID at Police Headquarters in Konedobu. At the time of swearing the affidavit on 8 April 1988 Mr Langford had not yet spoken to the CID in Konedobu. This highlighted the logistical difficulty the State Prosecutor had been having in getting cases ready for trial.

SECTION 552

The first observation I make in respect of s 552(2) is that the application may be made at any time during the sittings of the National Court by an accused to be brought to his trial. The practice has grown for the application to be made at the end of sittings if the case has not been started or dealt with in that sitting. There is no reason why the application could not be made at the start of sitting or in the course of that sittings. The subsection does not stipulate that the application should be made at the end of sittings. The State can, if application is made prior to the end of the sitting, present an indictment any time after the application, prior to the end of that same sitting.

This construction is consistent with s 552(3) which states:

"If no indictment has been presented against the applicant —

(a) where the application is made at a sittings of the National Court at the place of trial — before the end of the sittings at which the application is made."

This construction is also consistent with s 552(4)(b)(ii) that: "If at the end of the sittings ... next following the application, the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete it’s case", the accused is entitled to be discharged. This ground is premised on the basis that an indictment has been presented and the accused has been "brought to his trial" within the meaning of s 552(2), but that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case.

The "entitlement to be discharged" accrues to or vests in the accused first in time at the end of the sittings next following the application, if he can satisfy the court of the existence of the conditions under subs (b)(i) or subs (b)(ii).

I do not construct s 552(4) to stipulate that the accused must make the application to enforce his entitlement at the end of the sittings next following the application. It is the time limit by which the State is obliged to act to present an indictment under subs (4)(b)(i) or if an indictment had previously been presented then to make a genuine attempt to complete its case under subs (4)(b)(ii). And if neither of these conditions are fulfilled or complied with on the part of the State, the accused "is entitled to be discharged" at his motion or application.

I concur generally with views of King AJ in The State v John Nuki Yamai that to construct s 552(4) to mean that the application for discharge must be made at the end of sittings next following the application, and if it is not, then the entitlement lapses, is to defeat the purpose and intent of the subsection.

The time limit of the end of sittings next following the application is within which or by which the State is to act. And if it does not then the entitlement of the accused shall come into existence from that time onwards, and he is entitled to be discharged upon his application, either at that time or afterwards, at the commencement of the next sittings or any other time he chooses to exercise the right to that entitlement.

It does not lapse because he chooses not to claim his right to that entitlement, otherwise such a construction would defeat the purpose of the two provisions, if at the end of the sittings next following the application the State did not present an indictment, or if an indictment had earlier been presented but that no genuine attempt was made by the prosecution to complete its case, and the position remained the same for the next several sittings, the subs (2) application would be quite useless.

I adopt the observations of Kelly J in R v Byrne [1971-1972] P&NGLR 1 at 5:

"... 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 also adopt the interpretation of "brought to trial" accepted by Kelly J (at 5):

"...

[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 ..."

and followed by Williams J in R v Martin Main [1971-1972] P&NGLR 289 at 291.

I consider that this is a little different to what Kapi J (as he then was) held in The State v Frank Taso Yasim at 113:

"... It seems to me that where an application under s 552(2) is made by an accused the minimum action the State can take is simply to present an indictment against the accused by the last day of the sittings following the application. By taking this action the State brings the accused person to trial."

I do not agree that the State, by simply presenting an indictment on the last day of the sittings next following the subs (2) application brings the accused to his trial. If the State cannot be in a position to proceed by having it’s witnesses to prosecute the case against the accused, then it cannot fairly be said that the accused was brought to trial. The State must genuinely show that it was ready with all its witnesses to prosecute its case against the accused, but for want of time. It surely is not enough merely to present an indictment on the last day of the sittings next following the application to avoid or defeat the accused’s entitlements.

I agree it does not mean the trial has to proceed, it can be adjourned for want of time, but if the State had not made any genuine attempt to bring on the trial, it cannot simply present an indictment at the end of the sittings to defeat the entitlement. It would in my view be an abuse, if, as King AJ said and I agree entirely, a belated attempt is made at the last minute to present an indictment, prompted only by the accused’s application or imminent application for a discharge, when in reality the State does not have its witnesses ready to prosecute.

The mere presentation of an indictment by the State in answer to an application such as in this case or in anticipation of an imminent s 552(4) application without being ready to prosecute with witnesses available is not "bringing to trial" and would amount in my view to an abuse of process.

The entitlement to a discharge is a continuing entitlement, just as a right to be brought to trial is. It is not defeated simply by the application not being made at the end of the sittings next following the application, nor should it be defeated simply by the State presenting an indictment at the end of the sittings without being ready with witnesses to prosecute the case, and thereafter making no genuine attempt to complete its case. For instance, if during the course of the sittings next following an application under s 552(2) the indictment is presented and the State indicates that it is ready to proceed with all its witnesses available, but the court runs out of time, then the case can properly be stood over to the next sittings. No plea has been taken. The accused has properly been "brought to his trial" within the meaning of s 552(2).

If on the other hand an indictment has been presented earlier, either in the sittings at which the s 552(2) application has been made or earlier in the sittings next following the application, and at the end of the sittings next following the application the court is satisfied upon application that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case, the accused is entitled to be discharged.

If on the other hand at the end of the sittings next following the application, the State has not presented an indictment and the accused has not moved to enforce his entitlement to be discharged, the State cannot say the accused’s entitlement has lapsed when it had not fulfilled its obligation.

The purposes of the provisions are, as the authorities sufficiently show, to prevent the State from failing, after 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.

It is true also that the applications by the accused were not by originating summons as required by the Criminal Practice Rules 1987, O 1, r 11. In the circumstances however, when the State had not taken objection to the applications being made in December 1987, February and March 1988, it cannot now seek to thwart the substantive relief by this belated objection. I dispense with compliance under O 1, r 12. 1 agree, however, that in future s 552(2) and s 552(4) applications must be made strictly in accordance with the Criminal Practice Rules by originating summons, with supporting affidavits of the grounds for such applications to avoid evidence being led from the bar table.

The suggestion that s 552 might be inconsistent with s 37(3) of the Constitution in relation to "reasonable time", I do not accept. Quite to the contrary s 552(2) and s 552(4) are giving effect to the Constitution s 37(3), for as Kelly J stated in R v Byrne (at 5):

"... the object of the section appears to me to be to prevent the Crown [State] from failing, after 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 ..." (My emphasis.)

As to the phrase "he is entitled to be discharged", I adopt the words of Kelly J in R v Byrne (at 5) that:

"The use of the word ‘entitled’ seems to imply that it is a right which the accused has in these circumstances if he chooses to avail himself of it."

It suggests that the court has no discretion in the matter. It is an imperative right. It is an entitlement at the motion of the accused. KeIly J said in R v Byrne (at 5) that:

"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."

Returning to the facts of these applications:

1. At the end of the sittings next following the s 552(2) application — in February 1988, shortened to five sitting days, no indictment was presented against all three accused.

2. The accused Kivia pursued the s 552(4) application, but it was adjourned by the court.

3. Counsel again pursued the application in March 1988, but again it was adjourned by the court. The State presented an indictment belatedly in the course of the application.

For two sittings next following the s 552(2) application the State made no genuine attempt to bring the accused to his trial and to complete its case against him. I do appreciate the State’s difficulties, and am cognizant of them but they do not detract from my positive findings and the entitlement of the accused.

The accused Lindsay Appolos Kivia is therefore discharged pursuant to s 552(4).

For the same reason, and notwithstanding the fact that he did not apply for discharge in February, for I do not consider his entitlement had lapsed thereby, the accused Robert N’Draku is also discharged pursuant to s 552(4).

In relation to the accused Peter Seski his application is the same as Robert N’Draku although his apprehension and committal dates are much more recent. The s 552(2) and s 552(4) applications do not depend upon how long or how recent the committal might have been. These facts might be relevant in the grant of the s 552(2) application, but they have no relevance to the first ground of s 552(4)(b). It may be relevant in the consideration as to whether or not the State had made a genuine attempt to complete its case, but it is not a factor in the non-presentation of the indictment. I cannot enquire beyond the grant of the s 552(2) application.

As much as I am reluctant to discharge this accused in these circumstances, the authority is clear, the establishment of the fact that no indictment was presented at the sittings next following the s 552(2) application entitles the accused to be discharged.

Accused Peter Seski is therefore discharged.

I should like to make some further observations which I hope will be of some further assistance in coming to terms with this difficult situation from the point of view of the State.

SECTION 552(2) APPLICATION

1. This should, since the coming into force of the Criminal Practice Rules 1987, be by originating summons supported by affidavit and served on the respondent State.

2. The State should be at liberty to oppose such applications if the applicants seek to jump the line. I adopt the remarks of King AJ, in The State v John Nuki Yamai (at 318) that makes it a rule to deal with all the cases in order of seniority, subject to adjournments on good grounds granted by the Court, s 552(2) and s 552(4) may not be as potent as they are presently, and courts will not so readily grant the s 552(2) application.

3. At present the s 552(2) applications are made and noted without any real argument to support them or any other objection by the State. They are noted as a matter of course producing the kind of unfair advantage to some accused over others.

Accused discharged

___________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused N’Draku and Seski: Kirriwom Mosoro Enda.
Lawyer for the accused Kivia: Henao Cunningham & Co.