State v Uniyapmoniang [2008] PGNC 202; N3544 (18 November 2008)

N3544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 30 OF 2008

THE STATE

V

TOBIAS YU UNIYAPMONIANG

Minj: Makail, AJ
2008: 18 November

CRIMINAL LAW - Application for adjournment - Constitutional right of accused to speedy trial - Constitution - Section 42(3) - Reasons for adjournment unsatisfactory - Accused discharged.

No Cases Cited:

Counsel:
Mr J Waine, for the State
Mr P Kumo, for the Accused

18 November, 2008

RULING ON APPLICATION FOR ADJOURNMENT

1. MAKAIL AJ: The accused stands trial before the National Court on one count of murder under section 300(1)(a) of the Criminal Code after being arrested and charged for killing his wife at Avi, in the Western Highlands Province on 3 June 2007.

2. At the beginning of the first National Court circuit to Minj on Monday 3 November 2008 after a long absence from Minj, I allocated 2 days trial on both counsels’ representation for this matter on Monday 17 November 2008 and Tuesday 18 November 2008.

3. Due to my absence on Monday 17 November 2008 as I was away in Port Moresby to witness the swearing in of the new Chief Justice of Papua New Guinea, trial did not commence until Tuesday 18 November 2008 at about 12:00 pm upon my return.

4. At the commencement of the trial, Mr Waine of counsel for the State informed the Court that the State witnesses including the arresting officer were available earlier in the morning for the trial but had since returned to Mt Hagen as there was no indication from the Court if the trial was to proceed. He sought adjournment to 1:30 pm to make contact with them of which I readily granted.

5. When the Court resumed at 1:30 pm, the situation of the State did not improve as Mr Waine was unable to make contact with the State witnesses and the arresting officer. He seeks a further adjournment.

6. Mr Kumo of counsel for the accused opposes the application for further adjournment and I take cognizance of the arguments he advances on behalf of the accused, especially the right of the accused to an expeditious trial.

7. First, I must place on record my utter disappointment that the State witnesses including the arresting officer who is the officer in charge of this matter are not available for the trial. They must not keep the Court waiting for them nor must the Court wait for them. They should be readily available to attend the trial.

8. The matter was fixed for trial 2 weeks ago and I fail to see why State witnesses and the arresting officer in this matter are not available albeit as I am informed, gone back to Mt Hagen. It shows to me that they are not interested in this matter. For the arresting officer, I could have him arrested for delaying this case, but I am not going to do that now. What I am going to do is that, I will place on record as a warning to him and other arresting officers responsible for cases coming before the National Court to be ready at all times when there is a National Court circuit to Minj, Mt Hagen or elsewhere.

9. Secondly, I am concerned of the delay of bringing the accused to an early trial. He has a right to be tried in good time. See section 42(3) of the Constitution. I am informed the accused has been in custody since 3 June 2007. This is about 15 months. Yesterday and today are the days he was waiting for. Why keep him waiting for another day?

10. Lastly, we have almost reached the end of the National Court circuit to Minj which will end tomorrow (Wednesday 19 November 2008). That means, there will be no Court circuits to Minj for this year until further notice from Waigani and this will in turn further delay the accused from being tried.

11. I must balance the interest of the accused and the interest of the public where it is expected that the Court must ensure that persons accused of committing offences be it minor and serious must not easily escape punishment and in so doing I am therefore not satisfied with the reasons given by the State for its request for a further adjournment.

12. For these reasons, I refuse the State’s application for a further adjournment and order that the trial must proceed forthwith. As the State is unable to produce its witnesses, I further order that the charge is dismissed for want of prosecution and the accused is discharged forthwith.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused