State v Nondi (No 2) [2009] PGNC 26; N3601 (10 March 2009)

N3601

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1388 OF 2006

THE STATE

V

WAMBI NONDI

(No 2)

Mendi: Makail, J
2009: 10th March

CRIMINAL LAW - Application for adjournment after presentation of indictment and plea taken - Accused charged with misappropriation - Constitutional right of accused to speedy trial - Delay of almost 2 years and 9 months - Invoking of section 552 right of Criminal Code by State - Section 552 inapplicable - Application refused - Charge of misappropriation dismissed for want of prosecution - Accused discharged - Criminal Code - Sections 383A(1)(a) & 552.

Cases Cited:
The State -v- Wambi Nondi (No 1): CR No 1388 of 2006 (Unreported and Unnumbered Judgment of 10th March 2008)

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

RULING ON APPLICATION FOR ADJOURNMENT

10 March, 2009

1. MAKAIL J: After my decision this morning refusing the State’s application for vacation of trial and adjournment of matter to another date(s), the matter was stood down to 1:30 pm for the State to organize itself before the trial was to start this afternoon.

2. On resumption at 1:30 pm, Mr. Waine of counsel for the State presented an indictment against the accused based on only one count of misappropriation of K60,000.00, being the property of the Southern Highlands Provincial Government contrary to section 383A 1(a) of the Criminal Code and the accused was arraigned by the Court on the brief allegations of the fact as presented by Mr. Waine. The accused when called upon to make a plea, denied the charge of misappropriation and a plea of not guilty was entered.

3. Upon the plea of not guilty, the State was called upon to present evidence against the accused but the Court was informed that the State wanted a further adjournment of the matter because it was not ready with its witnesses.

STATE’S SUBMISSIONS

4. Mr. Waine relied upon section 552 of the Criminal Code and submitted that as the State had presented the indictment against the accused, the Court has power by virtue of that provision to adjourn the trial to the next National Court sittings in May 2009.

DEFENCE’S SUBMISSIONS

5. Obviously, this prompted Mr. Kumo of counsel for the accused to again vigorously oppose the application for a further adjournment. First, he submitted that the State’s application for a further adjournment is an attempt to "water down" the effect of the Court’s decision of this morning which ordered that the trial should proceed today. See my judgment of The State -v- Wambi Nondi (No 1): CR No 1388 of 2006 (Unreported and Unnumbered Judgment of 10th March 2008).

6. Secondly, he submitted that section 552 of the Criminal Code which Mr Waine referred and sought to rely upon is inapplicable in this case as that provision is only invoked by an accused in a case where the State is unable to present an indictment so as to start the trial of an accused during the sittings of the National Court.

7. For these reasons, he submitted that the application by the State should be refused and the charge be dismissed for want of prosecution and the accused be discharged forthwith.

REASONS FOR RULING

8. I agree entirely with the submissions of Mr Kumo. I accept that what the State has sought to do now is to "water down" or avoid the effect of the Court’s decision of this morning which ordered that the trial must commence today. As I said in my earlier decision, the State should have been ready to proceed with the trial and if it had not, it stood the risk of having the charge against the accused dismissed for want of prosecution.

9. I also accept the second submission of Mr Kumo that section 552 of the Criminal Code is inapplicable in the present case because it has not been the accused who has invoked this provision but, the State. It states:

"552. Right to be tried.

(1) In this section, "place of trial" means the place appointed under the National Court Act 1975 for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(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 at any sittings of the National Court to be brought to his trial.

(3) 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; or

(b) where the application is made at a sittings of the National Court at some other place-before the end of the next sittings of the court at the place of trial,

the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(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".

10. My reading of this provision is that, the State cannot invoke it. Here is a case where the State has presented an indictment against the accused but is unable to proceed any further because no witnesses are available to testify against the accused.

11. In the circumstances of this case, as the State has been unable to proceed any further with the case, I must give the accused who has been waiting for almost 2 years and 9 months for this trial to proceed the benefit, and allow him to go free.

ORDERS

Accordingly, I make the following orders:

1. The one count of misappropriation of K60,000.00, being the property of the Southern Highlands Provincial Government contrary to section 383A 1(a) of the Criminal Code against the accused is dismissed for want of prosecution.

2. The accused shall be discharged forthwith.

3. The accused’s bail money shall be refunded forthwith.

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