State v Nondi (No 1) [2009] PGNC 25; N3600 (10 March 2009)

N3600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1388 OF 2006

THE STATE

V

WAMBI NONDI

(No 1)

Mendi: Makail, J
2009: 9th & 10th March

CRIMINAL LAW - Application for vacation of trial and adjournment - Accused charged with conspiracy to defraud and misappropriation - Constitutional right of accused to speedy trial - Delay of almost 2 years and 9 months - Reasons for vacation of trial and adjournment unsatisfactory - Application refused - Constitution - Section 42(3) - Criminal Code - Sections 407(1)(b) & 383A(1)(a).

Cases Cited:
The State v Tobias Yu Uniyapmoniang, (2008) N3544

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

RULING ON APPLICATION FOR VACATION OF
TRIAL & ADJOURNMENT

10 March, 2009

1. MAKAIL J: On 23rd June 2006, the accused was charged by the Police with one count of conspiracy to defraud the Southern Highlands Provincial Government of K60,000.00 and one count of misappropriation of K60,000.00, the property of Southern Highlands Provincial Government contrary to sections 407(1)(b) and 383A 1(a) of the Criminal Code respectively. On 29th September 2006, he was committed to stand trial at the National Court but had been out on bail two weeks since being charged with these offences.

2. At the beginning of the first National Court circuit to Mendi for 2009 on Monday 2 March 2009, I allocated 2 days trial on both counsels’ representations for this matter. These days were Monday 9 March 2009 and Tuesday 10 March 2009. At the commencement of the trial on Monday 9 March 2009 at 1:30 pm, instead of the State prosecutor, Mr. Waine presenting the indictment, he made an application to vacate the trial and have the matter adjourned to another date(s). He informed the Court that there had been a change of instructions as the instructions received from his head office at Waigani was to seek a vacation of the trial dates and have the matter adjourned to the next sittings of the National Court in Mendi.

3. Mr. Waine informed the Court that the reasons for the application were that the matter would be handled by a State prosecutor outside of Mt Hagen due to the sensitivity of the matter. With the consent of the counsel for the accused, he handed up to the Court two facsimile letters. They were:

1. Facsimile letter from Acting Public Prosecutor to Mr Joe Dingi Waine dated 9th March 2009; and

2. Facsimile letter from Detective Senior Inspector T Gitua to OIC-CID Mendi dated 5th March 2009.

4. I have read the two facsimile letters. The first facsimile letter stated in part that "The above cases involve some prominent Senior Provincial Administration Public Servants and Provincial Leaders as well as are sensitive in nature. Due diligence and care should be taken when processing these cases. It is in that regard that prosecutors outside of Mt Hagen will prosecute these cases".

5. The relevant parts of the second letter read as follows:

"Four cases had been listed with the earliest matter in State -v- Wambi Nondi being for trial on Monday 09th and Tuesday 10th March 2009. The matter of the State -v- Tol Lol is schedule for 11th and 12th March respectively.

You will note that there isn’t much time given the very Short Notice for us to organized (sic) in terms of securing funds for case officers to travel as well as expenses for Court witnesses.

With this letter please convey to the State Prosecutor that it will not be possible for cases officers to attend as schedule and therefore seek that the Prosecutor apply for these matters to be listed for the next circuit. Alternatively, the two matters be considered for re-listing towards the end of this circuit.

It would be wise to ensure that the Court is informed that these Misappropriation cases are done by Detectives from outside the province (NCD) and so it would take time for officers to organize their travel and prepare for the trials".

STATE’S SUBMISSIONS

6. Mr. Waine submitted that although he does not agree with the tone of the first letter, he feared there will be repercussions if the matter was to proceed to trial on the appointed dates. Secondly, as the instructions is that a State prosecutor outside of Mt Hagen is to prosecute this case, the State is not ready to proceed to trial on the appointed dates as it will require the outside State prosecutor to travel to Mendi to attend the case. At this point in time, it is not convenient for this State prosecutor to attend given the short notice of the trial dates. Further, he said that he had not been aware of the change of instructions from his superiors at the head office at Waigani prior to the commencement of the Court circuit nor has he come across such a situation in the past. This has been his first time and it has placed him in an awkward situation as he is undecided whether or not to proceed with the trial.

7. For these reasons, he submitted that the Court grant the application to vacate the trial and have the matter adjourned to the next sittings of the National Court in May 2009. Alternatively, he submitted that if the Court is not prepared to adjourn the matter to the next sittings of the National Court in May 2009, the Court adjourned it to the last week of this sittings of the National Court to enable the State to prepare its case.

DEFENCE’S SUBMISSIONS

8. Mr. Kumo of counsel for the accused vigorously opposed the application for vacation of trial and adjournment. First, in respect of the dilemma faced by Mr. Waine, he submitted that the reasons given in the two facsimile letters are not consistent with each other. The first letter talked about replacing Mr. Waine with an outside State prosecutor while the second gave the short notice of the trial dates, hence short time to round up witnesses and arrange for the investigation officers in Port Moresby to travel to Mendi for the trial. He submitted that the reasons are not genuine as the reasons given in the first letter seemed to undermine the ability of Mr. Waine who has the carriage and conduct of this matter at this point in time whilst the reason given in the second letter is simply unacceptable and unsatisfactory.

9. He submitted that the accused has been waiting patiently for his trial for over 2 years after being arrested and charged on 23rd June 2006. The State bore the onus to bring the accused to trial without undue delay and in this case, a period of more than 2 years had gone by without any indication from the State as to when the accused would be tried. The period of 2 years of waiting is unreasonable and in breach of the accused’s constitutional right to an early or speedy trial as guaranteed by section 42(3) of the Constitution. He also made reference to section 37(14) of the Constitution to emphasis the importance of an expeditious trial of the accused where it states; "In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration".

10. Finally, he submitted that the matter was listed for trial a week ago at the Criminal Call over on Monday 2 March 2009 and the State should have organized for its witnesses to attend trial on the appointed dates. Further, he submitted that the witnesses are not living in Port Moresby. They are all in the Southern Highlands Province and can be easily located and brought to Court for the trial. Furthermore, he submitted that it is not necessary for the investigating officers to attend the trial because the investigation of the charges and collating of evidence have been completed and all it required is for the witnesses to come forward and testify against the accused.

11. For these reasons, he asked that the State’s application should be refused by the Court.

REASONS FOR RULING

12. First, in relation to Mr. Waine’s submissions that he feared there will be repercussions if the matter was to proceed to trial on the appointed dates, he has not specified or given the details of the repercussions. Is it the case where if the matter was to proceed to trial, the State prosecutor will be sacked from his job if he does not secure a conviction of the accused, or is it because there are threats made against him by the accused and his line or is it because the outcome of the case may determine the outcome of the other similar cases which are also pending before the Court? Mr. Waine had not elaborated on the nature of these alleged repercussions nor can I precisely work out them, hence I am left in the dark so to speak as to the dangers inherent in proceeding with this matter on the appointed dates. I reject his submission on this aspect.

13. Secondly, in my view, the reasons given by the State as to the allocation of another State prosecutor to prosecute the matter is an in house matter and should not have been brought to the attention of the Court nor is it a valid reason for the Court to vacate the trial and adjourn the matter to another time. It just shows that not only is the Office of the Public Prosecutor unorganized and un- decisive in terms of planning and allocation of its State prosecutors to attend to cases which may be considered of public importance and "sensitive" but also an act of interference with the due administration of justice as far as the Court is concerned.

14. It also shows to me that the State is not serious about this case. Surely, if the superiors of Mr. Waine had considered this case "involve some prominent Senior Provincial Administration Public Servants and Provincial Leaders as well as [is] sensitive in nature", they should have acted swiftly and with great care and diligence to prepare for the trial prior to the commencement of this Court circuit. It seems to me they have not and are now running around at the last minute looking for ways to avoid a serious repercussion because of their own inaction.

15. The reason to allocate this matter to a State prosecutor outside of Mt Hagen can be best described as a "slap in the face" of the prosecutor having conduct of the matter at this point in time so to speak. It may be viewed as undermining the ability of the State prosecutor on the ground and lead to a sour working relationship amongst them at the expense of the people of Papua New Guinea of which the Office of the Public Prosecutor is mandated by the Constitution and the Public Prosecutor (Office & Functions) Act 1977 to protect as far as prosecution of alleged offenders is concerned. It seems to me that there was no consultation between the State prosecutor on the ground and the superiors at the head office as to the conduct of this matter, in particular as to who should prosecute this matter prior to the commencement of this Court circuit, and if that is the case, then it is entirely their own fault. They cannot use it as a reason to ask the Court to vacate the trial and adjourn the matter.

16. In this respect, I observe that in recent times, there has been a lot of complaints and criticism leveled against the Judiciary, more so against the Judges for not dealing with or disposing of cases both in the civil and criminal tracks expeditiously or in a timely manner. It is also common knowledge that there has been an increase in the volume of Court cases coming before the National and Supreme Courts resulting in back log of cases either as part heard or awaiting judgments. But, I can confidently say that the Judiciary, under the leadership of the new Chief Justice Sir Salamo Injia is at this point in time seeking ways of addressing and perhaps improving its service delivery capacity in terms of case management and disposition. One such way to ease the workload is the recruitment of new judges to attend to the Court cases.

17. Hence, I think it is of no coincidence but timely that the Court is now making frequent Court circuits to Mendi and of course Tari, with an additional judge on the ground in Mt Hagen to deal with outstanding and fresh Court cases coming before the National Court. As the Judiciary is moving towards increasing its manpower capacity and Court circuits to places like Mendi and Tari, etc there is an urgent need for the various stakeholders involved in the administration of justice, in particular the criminal justice administration to work closely and in partnership with the Court to attend to the outstanding cases as well as fresh cases.

18. That means, it is expected of the Office of the Public Prosecutor, the Office of the Public Solicitor and private lawyers to organize themselves and get ready for cases coming before the National Court prior to each Court circuits. For example, for the State prosecutors, taking instructions as to the availability of witnesses, compilation of documentary evidence, the availability of the State prosecutors, etc are matters that should be sorted out before the commencement of the Court circuit, more so the Criminal Call over. They form the core functions and duties of the Office of the Public Prosecutor. See section 4(1) of the Public Prosecutor (Office & Functions) Act 1977. The same can be said of the accused and his lawyers be it the Public Solicitor or private lawyers. Any conduct falling below these requirements means, justice delayed and justice delayed is justice denied for an accused.

19. And whilst it is true that the Court is partly responsible for the delays in the disposition of cases, I think I would be correct to also say that much of the delay in dealing with cases is caused by lawyers and their respective clients. Delay associated with the lawyers and clients’ unpreparedness is one classic example. And in this case, it is a classic example of the State not being prepared although I get the impression that it was initially prepared for the trial at the Criminal Call over on Monday 2 March 2009. For these reasons, I find that the reasons offered by the State unacceptable and unsatisfactory.

20. Thirdly, the accused was charged on 23 June 2006 and committed to stand trial on 29 September 2006. From 23 June 2006 to today is a period of almost 2 years and 9 months. For this period of time, the accused has had the charges hanging over his head so to speak. Surely, there must be an end to this matter at some stage. Without speculating on the effect the charges may have on his life and well being, I am pretty sure that any person in his position would no doubt want an early Court decision so that life can go on regardless of the implications of the decision.

21. From my perusal of the various endorsements on the Court file, there has been 10 occasions where the matter came before the Court. Out of the 10 occasions, there had been 4 occasions where the accused had not turned up for Criminal Call over when the National Court sat in Mendi. That means that on 6 occasions the accused appeared before the Court. For one reason or the other, the matter was not tried on those dates or allocated trial dates during those 6 occasions. But, this Court will not sit and wait for the State to get its house in order. The State must be ready for the matter especially where the Court had been informed by Mr. Waine that this matter was ready to be given two days for trial when it was called at the Criminal Call over on Monday 2 March 2009.

22. Why the last minute change of instructions? I reiterate here that the allocation of a State prosecutor from outside of Mt Hagen to prosecute this matter is not relevant nor a valid reason for the trial to be vacated and matter adjourned to another date(s). I have rejected that reason and as I have said earlier, the Judiciary has taken steps to address the back log of cases coming before the National and Supreme Courts, hence it concerns me that whilst the Court is moving in that direction, lawyers and their clients are moving in the opposite direction or stalling the Court’s motion because of their unpreparedness.

23. I must make it clear that I will not tolerate this kind of conduct or lax attitude in my Court. In fact, I expressed similar concerns in the case of The State -v- Tobias Yu Uniyapmoniang (2008) N3544 which I delivered at Minj National Court whilst on Court circuit there last November and both counsel in this case were also counsel in that case. In that case, the State applied for vacation of the trial and adjournment of the matter to another date after the State’s witnesses including the arresting officer in charge of the case were not available for the trial. There, I said:

"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.

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.

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 03rd June 2007. This is about 15 months. Yesterday and today are the days he was waiting for. Why keep him waiting for another day?

Lastly, we have almost reached the end of the National Court circuit to Minj which will end tomorrow (Wednesday 19th 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.

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". (Emphasis is mine).

24. Given the warning I issued in the Tobias Yu Uniyapmoniang’s case (supra), I must say that both counsel are not new to the style and approach I take in conducting criminal cases. Further, counsel in particular Mr. Waine should have been on full alert as I have already issued a warning and should have been ready for the trial. Hence, in this case, I expected both parties to be ready for the trial, come the day. It is all the more critical in the case of the State to be ready as it bears the prime responsibility to bring the charges against the accused. If not, it stands the risk of having the entire case dismissed for want of prosecution.

25. Finally, in respect of the reasons given by the State for the vacation of the trial and adjournment in the second letter, I must agree with the submissions of Mr. Kumo that the matter was listed for trial a week ago at the Criminal Call over on Monday 2 March 2009 and the State should have organized for its witnesses to attend trial on the appointed dates. Further, as the State had not disputed the submissions of the defence that the State’s witnesses are not living in Port Moresby but in the Southern Highlands Province, I accept that they can be easily located and brought to Court for the trial. If the State had not done so prior to the trial, the fault lies squarely upon it.

26. Furthermore, I accept that unless required by the defence, it is not necessary for the investigating officer to attend trial because the investigation of the charges and collating of evidence had been completed and all it requires now is for the witnesses to come forward and testify against the accused. Accordingly, I reject the reasons given by the State in the second letter.

27. As to the alternative submission of Mr Waine that if the Court is not prepared to vacate the trial and adjourned the matter to the next National Court sittings in May 2009, the Court should adjourned the matter to any dates during the last week of this Court circuit, that I do not accede. The simple reason is that, I have already listed 6 matters for either trial or plea from Monday 23rd March 2009 to Thursday 26th March 2009. I have reserved Friday 27th March 2009 for delivering of any outstanding judgments and closing of the Court circuit. So, that week is fully booked and it just shows that once a matter like this case is given a trial date(s) during the Court circuit, it is the State’s opportune time to prosecute the accused, otherwise, there will not be another opportunity again. Given that scenario, adjournment of this matter to any dates during the last week of this Court circuit is out of the question.

28. For the foregoing reasons, I am not satisfied with the reasons given by the State to have the trial vacated and have the matter adjourned to another date be it on a later date during this Court circuit or at the next sittings in May 2009. I find them unacceptable and unsatisfactory. The accused is entitled to an early trial hence, I refuse the State’s application for vacation of the trial and adjournment and order that the trial proceed forthwith.

Orders accordingly.

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