State v Dobuma [2002] PGNC 63; N2292 (17 October 2002)

N2292
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT POPONDETTA]

CR 1332 of 1997

BETWEEN:

THE STATE

AND:

MICHAEL DOBUMA
(the ‘Accused’)

Popondetta: Davani, .J
2002: 16, 17 October

CRIMINAL LAW – practice and procedure – application for discharge – State has not made a genuine attempt to complete the case at the end of the sittings at his place of trial next following the application – s. 552 (4)(b)(ii) Criminal Code.

CONSTITUTIONAL LAW – fair hearing within reasonable time – s. 37(3) Constitution.

Cases cited:
The State v Peter Paingke [1976] PNGLR 201
The State v Yasing [1983] PNGLR 111

The State v Nuki Yamai [1987] PNGLR 314
Christopher David Brown v the State [1993] PNGLR 430 SC444 dated 1 July 1993

Lindsay Kivia, Robert N’Draku v the State [1998] PNGLR 107 N669 dated 14 April 1988

Counsels:

K. Umpake for the State

D. Gavara-Nanu for the Accused

17 October 2002

RULING

(Application to dismiss)

DAVANI .J: An application was made for the Accused to be discharged, such application made pursuant to s. 552 (4) of the Criminal Code Act (‘CCA’).

Defence Counsel in this case made application under s. 552(2) at the last circuit on 11.6.2001. There is an endorsement on the court file to that effect, when the matter was stood over to the ‘next sittings’. This is the ‘next sittings’.

The effect of s. 552 is that it gives an accused the right to an expeditious trial and the intention of this section is to move the State to act in a reasonable time. (see Christopher David Brown v the State [1993] PNGLR 430 SC444 dated 1 July 1993).

For the purpose of the s. 552 application, the "next sitting" becomes the sitting at which the trial would take place in this case, 16 and 17 October 2002. (see Christopher David Brown (supra); In the Applications of Lindsay Kivia, Robert N’Draku v the State [1998] PNGLR 107 N669 dated 14 April 1988; The State v John Nuki Yamai [1987] PNGLR 314. Applications of this nature should be by Originating Summons supported by affidavits as provided in O. 1 R. 11 of the Criminal Practise Rules. It appears these documents were not filed in June 2001 when the application was made.

Both Counsel appear not to have been briefed by previous counsel that this application was made at the last circuit. But counsel’s duty is to obtain updated reports on all files, even to the extent of searching court files before the commencement of circuits or hearings or trials. Clearly, that is incumbent on all lawyers to perform that function.

Even then, the application is now before me and which warrants that I outline the history of this case, based on the documents on the court file.

1. The alleged crime occurred on 1st August 1997;
2. The accused was remanded in custody on 22nd August 1997 and released on bail on 25 September 1998;
3. The accused was committed (to the National Court) on 9th October 1997;
4. Based on the endorsements on the court file, this case was mentioned and adjourned on 17.4.01, 19.11.01, 22.11.01 and 11.6.02. On 11.6.02, the s. 552(2) application was made. On 8.10.02, trial dates of 16.10.02 and 17.10.02 were allocated during the listing I conducted.
   

Of the four accused arrested in 1997, including this accused, two have been sentenced, one is awaiting sentence on another offence and this Accused is awaiting the outcome of this application.

On 16 October 2002, the Accused was arraigned, pleading not guilty. The matter was therefore ‘brought to trial’. The State then applied for an adjournment as it submitted the Accused’s accomplices were to give evidence but that they are "somewhere in Tufi". I was not told who these witnesses are and their whereabouts in Tufi. I note also that the accomplices counsel for State refers to may be the three who were arrested together with the Accused, because I do not know otherwise. Accused’s counsel submits that the Accused’s right to a fair trial within a reasonable time as provided in s. 37(3) of the Constitution has been jeopardised, considering the history of this case. The court is also conscious of the four months standard set in s. 37(14) of the Constitution.

In the State v Yasim [1983] PNGLR 111, the judge dealt broadly with the entitlement to be discharged where a person has been waiting over 11 months for his trial and where, at the previous sitting, an application was made under s. 552(2) and then, at the next sitting to which the case had been generally stood over, the accused appeared and pressed his entitlement under s. 552(4). There, the court held that the accused had foregone his right to pursue the application at ‘the next sitting’ in March, but did so in July. The court dismissed that application which was upheld on appeal to the Supreme Court.

The Accused has waited for his trial, since Committal on 9th October 1997, a period of 5 years. The Supreme Court said in Christopher David Brown (supra), "...in an ideal world, it be good if a person could be brought to trial within days or weeks of his committal. But this, unfortunately, is not an ideal world...". In that case, the accused made the application to be brought to trial two weeks after committal.

The crucial issue before the court is whether the witness the State claims to have gone to Tufi, have maintained communication with the Police. It appears they have not. It is either that, or they are non-existent. The matter has not progressed for this Accused since Committal on 9th October 1997. I do not have affidavit material or at least submissions on the attempts made by the State since then in locating its witnesses. Therefore I find that the State has not made a genuine attempt at completing its case. As the court said in John Yuki Yama (supra);

- The court must be satisfied on the balance of probabilities that the State has not shown that it has made a genuine attempt to complete the case (my stress).
- That the delay in bringing the matter to trial is of the prosecutions making.

As to what is a reasonable time, (per s. 37 (3) of the Constitution) this was discussed by Amet .J as he then was in Re Kivia (1988) PNGLR 107 at pg 110.

"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."

There, the court considered affidavit material filed by the prosecution explaining why the matter could not be brought to trial. I do not have any materials before me explaining the five year delay.

For this court to allow the adjournment would be to cause substantial injustice to the Accused. As O’Leary AJ said in State v Peter Painke [1976] PNGLR 201;

"When the State applied for a further fourth adjournment, which was refused...because of the long delays before and after committal (my stress), to postpone the trial any longer would be a breach of the Accused’s right and s. 37(3)... the Accused had already been under the cloud of the charge for far too long, and to allow that position to continue any longer would be to do a substantial injustice to him."

I will therefore refuse the application to adjourn and will, relying on s. 552(4)(b)(ii) of the CCA, discharge the accused because I find no genuine attempt was made or has been made by the Prosecution to complete this case.

Therefore, the Accused is discharged, forthwith.
________________________________________________________________________
Lawyer for the State : Public Prosecutor

Lawyer for the Accused : Public Solicitor