State v Toamara [1989] PGNC 14; N759 (24 July 1989)

Unreported National Court Decisions

N759

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1367 OF 1987

CR. 1368 OF 1987
THE STATE
V.
JACKSON TITA TOAMARA AND SIMON KONGIE NUNZIE

Lae

Brunton AJ
12-14 July 1989
17-21 July 1989
24 July 1989

JUDGMENT ON AN APPLICATION FOR AN ADJOURNMENT

21 July 1989

BRUNTON AJ: The state is case is such such that certain evidence given by the accused in their testimony on the defence-case, calls for rebuttal by the State.

The two accused have said that Mr. Toamara went to the State Prosecutor’s Office and saw Mr. Langford. Mr. Toamara is said to have showed Exhibit D - the statutory declaration signed by the alleged robbers and by Mr. Toamara to Mr. Langford. The effect of this evidence is that if it goes unchallenge the defence have shown that they sought a legal opinion on the statutory declaration, and that I am entitled to infer that the money they subsequently received from the robbers was not received corruptly.

Mr. Langford’s presence in Court is therefore important for the state case.

Mr. Peter told me that he informed Mr. Langford yesterday that he would be required as a witness today.

Mr. Peter has also told me that he believes that Mr. Langford took a “plane this morning to go to Cairns for the long weekend”.

Mr. Langtry for the accused has submitted that this case should not be adjourned further so that the State can call Mr. Langford when he returns. He has mentioned that his clients have been waiting for trial for nearly two years. That they are suspended without pay. That a s 552 application had to be made to bring this matter on. That to adjourn further would be to deny his clients their right to a fair trial within a reasonable time. (s 37(3) of the Constitution)

This trial is important. It is the first time that members of the Royal Papua New Guinea Constabulary have been charged with corruption. There has been a lengthy voir dire, and so far evidence has been heard over eight sitting days.

There has been a concern that the trial could go-over to a future sitting. I made it very clear to both counsel, both in chambers, and in court, that I would not allow this trial to be part-heard or to be stood-over. In another case these sittings, there is a matter in which the accused was hurt in a road accident after the close of the State’s case. That is now a part heard matter. The offence is one of wilful murder and will have to be stood-over to another sittings.

I have told both counsel that we may have to work over the long weekend in order to dispose of this case, and I have the impression that both counsel have been striving, within the proper scope of the conduct of their cases, to achieve an early resolution to the case.

During August 1989, I have circuit commitments elsewhere, and I would not be able to return to Lae until at least September 1989, perhaps it may be longer than that because I do not know the full extent of my circuit obligations in September.

On Saturday morning (tomorrow) I have arranged to hear civil applications of an urgent nature.

On Tuesday morning I will be the Visiting Justice to Buimo Corrective Institution.

On Tuesday afternoon I will hear civil applications. There is a long civil list in this Province and I have only been able to allocate two days to civil matters because of the state of the Criminal List.

In my view the present case must go on today, and will probably require a sitting on Monday as well.

The State is not in the position that it has lost a witness through inadvertence, or because a witness has misunderstood instructions. The witness was not a layman. The witness was a State Prosecutor who made a decision not to make himself available.

I am concerned that the accused in this case have had to wait nearly two years for their trial. They are both suspended without pay from the Police Force. They both have large families to support.

The rights of Papua New Guineans to a fair trial within a reasonable time are superior to the indulgences of others who wish to go off on long weekends, before the weekend starts. If the State chooses to discharge its public responsibility in that way - then I will protect the individual rights of citizens.

The trial is to continue.

Mr. Peters: For the State

Mr. Langtry: For the Accused.