State v Marabe [2009] PGNC 50; N3637 (8 May 2009)

N3637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 48 OF 2005

THE STATE

V

MICHAEL MARABE

Wabag: Makail, J
2009: 7th & 8th May

CRIMINAL LAW - Practice & Procedure - Application for vacation of trial and adjournment - Application for change of venue of trial - Accused charged with attempted murder - Threats and intimidation of State witnesses - Non availability of State witnesses at trial - Constitutional right of accused to fair trial - Delay of more than 4 years - Interest of accused and interest of the State must be weighed out - Reasons for vacation of trial and adjournment genuine and satisfactory - Both applications granted - Constitution - Sections 37(3) & 42(3) - Criminal Code - Sections 304, 522, 552 & 555.

Cases Cited:
The State -v- Mathias Robert (2009) N3606
The State -v- Wambi Nondi (No 1) (2009) N3600
The State -v- Tobias Yu Uniyapmoniang (2008) N3544

Counsel:
Mr. S Kesno, for the State
Mr. P Kumo, for the Accused

RULING ON APPLICATIONS FOR VACATION OF TRIAL &
ADJOURNMENT & CHANGE OF VENUE OF TRIAL

8 May, 2009

1. MAKAIL J: There are two applications before the Court by way of a Notice of Motion filed by the State on 6th May 2009. The first one is for the trial to be vacated and matter adjourned to another date(s) pursuant to section 555(1) of the Criminal Code and the second one is for the venue of trial to be changed from Wabag National Court to Porgera National Court pursuant to section 552(2) of the Criminal Code.

STATE’S EVIDENCE

2. According to the Affidavit in Support of the police investigation officer, First Constable Gideon Gibson, the accused has been charged with one count of attempted murder and the alleged offence is said to have occurred at Kolyal in Kandep on 28th December 2004 contrary to section 304 of the Criminal Code and the five State’s witnesses are from Kandep. The accused is married to Lanekap village which is next to the Police barracks inside Wabag town area and resides there. He has a lot of relatives and in laws in town.

3. As he was advised by the State Prosecutor that the matter has been set for trial for three days from Wednesday 6th May 2009 to Friday 8th May 2009, he located and informed three of the five witnesses to come to Court for the trial. Earlier on, on Sunday 3rd May 2009, he drove to Kandep and picked up one witness by the name of Wesley Irai and brought him to Wabag where this witness was accommodated by him at Aipus Police barracks. On Monday 4th May 2009, he drove to Porgera to pick up another witness by the name of Paro Agararo. Mr. Agararo refused to come with him because of threats made to him. On Wednesday 6th May 2009, while he was at work, Wesley Irai’s relatives from Kandep went to the house at Aipus Police barracks and got Mr. Irai out of the house because of threats by the relatives of the accused. It is difficult to bring back the two witnesses to testify because of threats and intimidation made against them by the relatives of the accused. As a result, the victim Edward Delabe is the only eye witness available to give evidence.

4. He deposed that all the witnesses from Kandep feel unsafe to testify in Wabag and a safer place for them to do so would be in Porgera. Porgera would be a neutral place for all parties. Given this situation, he also believes that the State’s case could not be completed at this National Court sittings and requests for the vacation of the trial dates and for the matter to be adjourned to another date(s).

DEFENCE’S EVIDENCE

5. The defence has vigorously opposed both applications and relied on the Affidavit of the accused sworn on 7th May 2009 to rebut the evidence of the State’s witness, First Constable Gideon Gibson. The accused deposed that the offence was alleged to have been committed on 28th December 2004 and had been waiting patiently to be tried since then. Four of the charges for arson have been heard by Yalo AJ, in March 2009 and decision is pending. As a result His Honour could not hear this matter, hence Makail J, was asked to come and hear it during this Court circuit. He was looking forward to the trial when the matter was given trial dates at the National Court Criminal Call over on Monday 04th May 2009 only to be very disappointed that the State is unable to proceed now.

6. He further deposed that he has been faithfully complying with his bail conditions. He is also surprised that the State witnesses have been threatened by his relatives. This is because he is not aware of any threats made to the State witnesses by his relatives or he has not induced his relatives to threaten the State witnesses. He also stated that First Constable Gideon Gibson has failed to identify those relatives of his who have threatened the State witnesses. Furthermore, he deposed that there should be no excuse for the police being a big law enforcement agency of the National Government to fail to protect the State witnesses if indeed the State witnesses have been threatened by his relatives.

7. He also stated that this matter is not the only case before the Court because in 2003, he was charged with another lot of six charges. The State had seen no substance in the charges and had filed nollie prosequi for each of them. He claimed that the charges were politically motivated by his political opponents. He has an unblemished history as a long time LLG Council President and at one time Deputy Governor of Enga Province. He also stated that he is not married to a woman from Lanekep village as claimed by First Constable Gideon Gibson. He lives in an old Government house owned by the husband of his sister and his in law is a Nursing Officer at Longap Health Centre in Kandep. Whenever he came to Wabag, he used to stay in that house.

8. Further, he has no clansmen or relatives living in Wabag and whenever they come to Wabag, they would also seek accommodation at the same house. Currently, to witness his trial, he has two witnesses of his clan who will be traveling in from Kandep. One is Magistrate Ange and the other his is nephew Jeffrey Korale. These two witnesses had not done anything to threaten or intimidate the State witnesses. Finally, he stated that Porgera is not a conducive place for the trial to take place.

STATE’S SUBMISSIONS

9. The State prosecutor submitted that although he is hesitant to make these two applications given the fact that Yalo AJ, has disqualified himself from hearing this case and this is the opportunity for the matter to be tried before me, he is compelled to make the applications nonetheless because of the threats and intimidation made to the State witnesses. That is the main and only reason for the request to vacate the trial and have the matter adjourned to the next sittings of the National Court for allocation of new trial date(s) and also for a change of venue of trial.

10. 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 July 2009. Alternatively, he submitted that if the Court is not prepared to adjourn the matter to the next sittings of the National Court in July 2009, the Court adjourned it to the last week of this sittings of the National Court to enable the State to look for the witnesses and bring them to trial.

DEFENCE’S SUBMISSIONS

11. Counsel for the accused vigorously opposed the application for vacation of trial and adjournment and also the change of venue of trial. First, he submitted that the accused has been waiting patiently for his trial for more than four years now since the date of the alleged offence of 28th December 2004. The State bore the onus to bring the accused to trial without undue delay and in this case, a period of more than four years had gone by without any indication from the State as to when the accused would be tried. The period of more than four years of waiting is unreasonable and in breach of the accused’s constitutional right to an early or speedy trial as guaranteed by sections 37(3) and 42(3) of the Constitution.

12. Secondly, he submitted that the matter was listed for trial at the National Court Criminal Call over on Monday 4th May 2009 and as the accused has waited for a long time, the matter should proceed to trial. To further adjourn the matter would prejudice the accused in his defence of the charge because he had waited for a very long time since 28th December 2004.

13. Thirdly, he submitted that the State has not established by appropriate evidence that its witnesses have been threatened and intimidated by the relatives of the accused. He submitted that the evidence of First Constable Gideon Gibson is lacking as First Constable Gideon Gibson has not identified the persons responsible for issuing the threats and intimidation to the State witnesses. Further, he submitted that the evidence of First Constable Gideon Gibson in relation to the relatives of Mr. Irai taking Mr. Irai from First Constable Gideon Gibson house in fear of threats and intimidation from the relatives of the accused is hearsay. For that reason, the Court should not rely on that piece of evidence to find that the State witnesses including Mr. Irai have been threatened and intimidated by the relatives of the accused.

14. In relation to the State’s alternative submission that the trial be vacated and the matter be adjourned to the last week of the Court circuit, counsel for the accused submitted that there are cases already being listed for that week like the cases of The State -v- Felix Nebanat & Paul Pane: CR Nos 1105 & 1106 of 2006 commencing on Monday 18th May 2009 until Wednesday 20th May 2009. As such, any adjournment to the last week of the Court circuit is out of the question.

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

REASONS FOR RULING

16. I recall at the beginning of my first National Court circuit to Wabag on Monday 4th May 2009, I allocated three days trial on both counsels’ representations for this matter. These days were Wednesday 6th May 2009, Thursday 7th May 2009 and Friday 8th May 2009. The trial did not commence on Wednesday 6th May 2009 as a trial of another matter was carried over from the previous day to Wednesday 6th May 2009. When the matter was called on Thursday 7th May 2009, the State prosecutor did not present an indictment against the accused. Instead, he moved the above stated applications.

Application for vacation of trial and adjournment

17. I deal first with the application for vacation of trial and adjournment. The State made the application under section 555(1) of the Criminal Code which states as follows:

"555. Adjournment of trial.

(1) A court before which a trial has commenced may at any time, in its discretion, adjourn the trial.

(2) A court before which a trial has commenced may at any time, on application by the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act 1975 for sittings of the National Court.

(3) If a court directs that the trial in which no evidence has been taken be continued at a different place, the trial may be continued before a Judge other than the Judge before whom it commenced". (Underlining is mine).

18. Taking into account the submissions of both parties for and against the application, I am satisfied that the National Court has power under section 555(1) of the Criminal Code to adjourn a trial. But that power, in my view is available to the Court to exercise only after the trial has commenced.

19. In the present case, it is not disputed that the trial has not commenced. In other words, neither the State prosecutor has presented an indictment, the accused being arraigned nor brought witnesses into Court to give evidence against the accused. As none of these procedures has taken place, it is my respectful view that the State has applied under a wrong provision of the Criminal Code for the Court’s exercise of power. That being the case, I am also unable to find either a relevant provision in the Criminal Code or the National Court Act which provides for adjournments of criminal cases prior to the commencement of trial after they have been listed for trial by the Court.

20. The last resort is the Court’s inherent power under section 155(4) of the Constitution where I may tailor an order to be made if I am satisfied that the State has made out its application for vacation of trial and adjournment. Proceeding on the basis of the Court’s inherent power, I now consider the substantive application for vacation of trial and adjournment. The main and sole ground for the State’s application for vacation of the trial and adjournment of the matter is for security reasons. It claimed that State witnesses have been threatened and intimidated by the relatives of the accused. The accused has denied the State’s claim.

21. I have said in the past that security of witnesses or potential witnesses in criminal cases is of paramount concern to the Court. This is because it is an integral part of the administration of the criminal justice system in our country. I expressed this view in a recent decision in the case of The State -v- Mathias Robert (2009) N3606 delivered on 27th March 2009 in Mendi. That was a case where the accused was charged with one count of rape of a female employee of Oil Search Limited at Moro Ridge site camp and the State made an application to have the venue of trial changed from Mendi National Court to Waigani National Court. One of the reasons given in support of the application was that, there had been threats and intimidation made to State witnesses, more specifically to the victim.

22. I accepted inter alia the reason given because I found that there were threats made directly and indirectly to State witnesses including the victim by the mere fact that at the last Court hearing, relatives of the accused turned up in numbers to witness the trial of the accused and that the accused had written several threatening and intimidating letters to the victim in an attempt to coerce her to abandon the idea of pursuing the charge against him and granted the application for change of venue of trial. This is what I said at p 13 of the ruling:

"Whilst Mr Kumo’s submission maybe fairly well reflective of the situation on the ground, it must not be forgotten that security of potential witnesses in criminal cases, be it the State or the defence is an integral part of the administration of the criminal justice system. There is no doubt in my mind that this issue confronts the Court everyday when a Court deals with criminal cases. In my view also, it does not arise only at the date of trial but prior to and after trial. Thus, security of witness is a paramount concern of the Court.

I also consider that any sort of threat whether directly or indirectly, physical or mental made or forced upon a potential witness or witnesses including a victim who is required as a witness at trial like in this case, must not be set aside lightly by the Court. If that happens, there is a potential danger or actual danger that the trial may not be conducted fairly at the expense of one party. In my view, potential witnesses must be free from any form of threat and intimidation so that the Court’s decision is based on evidence of witnesses who are independent and truthful. Thus, the Court must be alert and ready to step in and assist both sides to ensure that a fair trial is conducted to do justice to both parties".

23. In the present case, there is evidence before me by way of the Affidavit of First Constable Gideon Gibson that the State witnesses have been threaten and intimidated by the relatives of the accused. Whilst it is true that he has not identified the perpetrators of the threats and intimidation, I have no reason to disbelieve his evidence. He is the police investigation officer in this case and no doubt would be fully aware of the circumstances leading up to the alleged offence after interviewing all of the witnesses including the victim and the dangers inherent in the case preparation including rounding up of witnesses to bring forth to the trial to testify against the accused.

24. On the other hand, I have reason to doubt the evidence of the accused in his Affidavit that there have been no threats and intimidation made to the State witnesses by his relatives. I find it hard to believe that despite him being from Kandep, he does not have relatives living in Wabag town except the two witnesses he would be calling to testify for him. I also find it hard to believe him that despite all five State witnesses are from Kandep and live in Kandep, no threats and intimidation have been made against them. Serious allegations of threats and intimidations of State witnesses have been made by the State against the accused and his relatives, yet the accused has denied these allegations. I find this hard to believe.

25. Whilst I accept that the evidence of First Constable Gideon Gibson in relation to the relatives of Mr. Irai taking Mr. Irai from First Constable Gideon Gibson’s house in fear of threats and intimidation from the relatives of the accused is hearsay and will not rely on it, I am prepared to accept that First Constable Gideon Gibson had picked up and accommodated Mr. Irai at Aipus Police barracks with the view that Mr. Irai would attend trial. But for reason other than threats and intimidation, Mr. Irai left the house.

26. Nonetheless, there is still sufficient evidence before me that the other State witnesses have been threatened and intimidated. For example, Mr. Agararo refused to come when First Constable Gideon Gibson went to Kandep to pick him up to come to Wabag for the trial. That evidence is sufficient to discharge the onus of proving a fact, the fact being a State witness, Mr. Agararo has been threatened or intimidated by the relatives of the accused. If the accused disputes the evidence of First Constable Gideon Gibson that his (accused’s) relatives have threatened and intimidated Mr. Agararo, the onus shifts to him to disprove that fact. As he has not done so, I am not persuaded that the State witnesses have not been threatened or intimidated by the relatives of the accused.

27. As I said above in the case of Mathias Robert (supra), security of witnesses is of paramount concern to the Court and where there is a suggestion that their security is under threat or breached, the Court must intervene immediately for the benefit of all parties.

28. For these reasons, I am satisfied that the State has established that the security of its witnesses has been under threat or breached and the Court must intervene now rather than later in order to prevent serious repercussions and deny both sides a fair trial.

29. In reaching this conclusion, I do acknowledge that the accused has waited for his trial for a very long time since the commission of the alleged offence on 28th December 2004. From that time to today is a period of more than four years. As I said in The State -v- Wambi Nondi (No 1)(2009) N3600, at pp 8 and 9 of the judgment:

"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".

30. The period of more than four years of waiting in my view is unreasonable and in breach of the accused’s constitutional right to an early or speedy trial as guaranteed by sections 37(3) and 42(3) of the Constitution. From my perusal of the various endorsements on the Court file, there has been 11 occasions where the matter came before the Court during the National Court Criminal Call over when the National Court sat in Wabag. For one reason or the other, the matter was not allocated trial dates during those 11 occasions. I also take note that Yalo AJ, has disqualified himself from hearing this matter because His Honour had dealt with other cases involving the accused and they are pending decisions before him. This matter was adjourned to this Court circuit for it to be heard by me and if it is to be adjourned, that means that the accused will have to wait again. His prolong wait is a deprivation of his right to a fair trial within a reasonable time and is a serious concern. But whilst I agree that the accused had waited patiently for this case and has faithfully observed his bail conditions, I have to also balance his interest with that of the State.

31. When I balance them, I am satisfied that the interest of the State must prevail at this point in time because it has sufficiently explained its un readiness at this point in time due to the unavailability of its witnesses as a result of threats and intimidation. In my view, this case is different to Mathias Robert’s case (supra) where I made it abundantly clear that, I will not tolerate lax attitude in my Court. I had also expressed a similar concern 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. 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).

32. Here is a case where the State through the police investigation officer First Constable Gideon Gibson has done everything within its control and means to secure the attendance of the State witnesses, but due to threats and intimidation by the relatives of the accused, the witnesses have either refused or absconded the trial. For example, on Sunday 03rd May 2009, First Constable Gideon Gibson drove to Kandep and picked up Mr. Irai and brought him to Wabag where this witness was accommodated by him at Aipus Police barracks. On Monday 04th May 2009, he drove to Porgera to pick up another witness Mr. Agararo. Mr. Agararo refused to come with him because of threats made to him. On Wednesday 06th May 2009, while he was at work, Mr. Irai left the house at Aipus Police barracks for reasons other than threats and intimidations by the relatives of the accused. Nonetheless, the point is it is difficult to bring the State witnesses to testify because of threats and intimidations made against them by the relatives of the accused. As a result, the victim Mr. Delabe is the only eye witness available to give evidence.

33. When I balance the two competing interests, I find that the reason given for the State’s request for vacation of trial and adjournment is genuine and satisfactory. I am inclined to vacate the trial and grant the adjournment of this matter.

34. As to the alternative submission of the State prosecutor that if the Court is not prepared to vacate the trial and adjourn the matter to the next National Court sittings in July 2009, the Court should adjourn the matter to any dates during the last week of this Court circuit, I do not accede. The simple reason is that, I have already listed three matters for trial commencing on Monday 18th May 2009 until Thursday 21st May 2009, two of which counsel for the accused has mentioned in his submissions above. I have reserved Friday 22nd May 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. The only solution is, the matter must be adjourned to the next sittings of the National Court in July 2009.

Application for change of venue of trial

35. I proceed to deal with the second application. It is the State’s application to change the venue of trial from Wabag National Court to Porgera National Court and the application is made under section 552(2) of the Criminal Code which states as follows:

"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". (Underlining is mine).

36. Again, the main and sole ground for the State’s application for change of venue of trial is for security reason. It claimed that State witnesses have been threatened and intimidated by the relatives of the accused. Again, the accused has denied the State’s claim.

37. The first comment I wish to make on the State’s application under section 552(2) of the Criminal Code is that, section 552(2) does not give power to the Court to change a venue of trial of an accused, but rather, it provides that, "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." It is remedy available to an accused rather than the State to invoke if the accused is not brought to trial or sentence within a reasonable time.

38. That power, in my view is available to the Court to exercise only after an accused makes the appropriate application. Only then can the National Court either grant bail if the accused is being held in custody or discharge the accused if no indictment is presented against the accused or the State has not made a genuine attempt to complete its case. This avenue or remedy is available to an accused because it proceeds from the accused’s constitutional right to a fair trial within a reasonable time as guaranteed by sections 37(3) and 42(3) of the Constitution.

39. In the present case, it is not the accused who seeks to invoke section 552(2) but the State. In my view, the State’s application is misconceived. It is my respectful view that the State’s application should have been brought under section 522 of the Criminal Code. That section states:

"522. Place of trial.

(1) Subject to this section, the place of trial shall be -

(a) when the person awaiting trial has been committed for trial or sentence -

(i) the place to which he has been committed for trial or sentence; or

(ii) if no place has been specified - the place appointed under the National Court Act 1975 for sittings of the National Court nearest to the place at which the person charged was committed for trial or sentence; or

(b) when the person awaiting trial has not been committed for trial or sentence - the place at which the indictment against him was presented.

(2) In relation to any pending matter in which the trial has not yet commenced, the National Court or a Judge may -

(a) on the application of a State Prosecutor or a person awaiting trial or his counsel; and

(b) on good cause being shown,

order that the place of trial be changed to some other place appointed under the National Court Act 1975 for sittings of the National Court.

(3) This section does not affect the power of the court before which a trial has commenced to adjourn the trial to a different place". (Underlining is mine).

40. Subsection 2 of that section is relevant to the present case. As the trial has not commenced against the accused, the State prosecutor may apply to the Court and the Court upon good cause being shown, order that the place of trial be changed to some other place appointed for National Court sittings for the trial to take place.

41. I can see that, that is what the State is seeking to do in the present case but has invoked an incorrect provision of the Criminal Code for the Court to exercise its power here. Be that as it may, I consider a misapplication of the provision not so fatal to the substance of the application because the ground advanced in support of the application is sound and meritorious. I also do not think that the interest of justice would be served if the Courts were to struck out or refuse an application because of counsel’s wrong citation of the provision of the Criminal Code. For these reasons, I will proceed to consider the application for change of venue of trial under section 522(2) of the Criminal Code.

42. In the case of Mathias Robert (Supra), I also had the occasion to consider the application of section 555(1) and section 522 at pp 9 &10 in the following way:

"The law on place of trial as stated in section 522(1)(a)(i)&(ii) is a place where the accused has being committed to stand trial. From my reading of section 555(2), it is also clear to me that the place of trial can be changed and this can be done on appropriate application to the Court. The application maybe made by the State prosecutor or an accused at any time of the trial to have the trial continued at a different location regardless of whether the place is appointed as a place for the National Court to sit. In other words, an application to change a venue of trial under section 555(2) can be made at anytime after the commencement of the trial. But what is not clear is that, in section 555 it does not provide the circumstances by which the Court may exercise the power to change the venue of a trial after trial has already commenced.

Unlike section 555, section 522(2) gives the Court some idea as to how it should exercise the power to change a venue of trial before the commencement of trial and that is, on "good cause being shown". So what amounts to "good cause"? In my view, the phrase should be given a wide and liberal interpretation rather than a restrictive one. It should take into account matters that affect the dispensation of justice under the administration of the criminal justice system.

In my view, some examples of matters which I consider relevant to constitute "good cause" are:

1. Availability and location of witnesses;

2. Costs of bringing witnesses to attend trial;

3. Security of witnesses;

4. Availability of judges;

5. Availability of accused’s lawyer; and

6. List of matters pending trial.

In giving this list of examples, it is by no means exhaustive. There maybe other considerations which have not come to my mind at this point in time that maybe relevant and applicable in a given case. In coming up with these examples I have also been guided by the decision of His Honour Brown J, in the case of The State -v- Theo Yandalan & 2 Ors [1994] PNGLR 405, where His Honour heard an application by the State to change a venue of trial from either Wabag or Mt Hagen to Waigani. The application was necessitated by threats and intimidation of potential State witnesses by the relatives of the 3 accused charged with the murder of a deceased person from the same village a kilometer out of the township of Wabag in the Enga Province.

My reading of His Honour’s reasons for judgment to grant the State application shows that one consideration His Honour took into account is the threats and intimidation of State witnesses. The other is, the relatives of the deceased and State witnesses were prepared to meet the costs of transportation and accommodation of State witnesses to and from Waigani to attend trial. It appears that the State brought the application after the trial had commenced as it was made pursuant to section 555(2) of the Criminal Code.

But to my mind, whilst section 555(2) does not provide grounds on which the Court may grant an application to change venue of trial, the considerations under section 522(2)(a)&(b) may be adopted and applied in an application to change a venue under section 555(2). This is because an application to change venue made under section 522(a)&(b) is also under Part VIII of the Criminal Code which talks procedure. In my view, an application to change venue be it before the commencement of trial or after the trial has commenced is a procedural matter. It does not deal with the substantive issues like the guilt or otherwise of the accused. It only concerns where the trial is to be held. Thus, I am of the view that whilst the two applications are different in nature, the considerations are the same".

43. As noted in Mathias Robert’s case (supra), I have listed 6 matters which I had considered relevant in an application to change a venue of trial. I also note that the State prosecutor has not relied on five of those considerations. He relied on only one which is the security of witnesses, more so the State witnesses. That being the case, I will not consider the other considerations here suffice to say that availability of a judge in future maybe a problem for this matter given the fact that Yalo AJ, being the resident judge of Enga Province has disqualified himself from presiding over this matter.

44. As I have found that there had been threats and intimidation to State witnesses by the relatives of the accused, I must find that the call by the State for the venue of trial to be changed from Wabag to Porgera is not unreasonable but genuine. That means that despite the accused’s claim that Porgera is a "cowboy" place and has law and order problems, I am inclined to accept that Porgera is a neutral place where both sides may attend and have this matter tried without much hassle as far as availability of witnesses are concerned. In other words, the danger or risk posed to State witnesses would be less or none if the matter is tried there.

CONCLUSION

45. In the end, I am satisfied with the reason given by the State to have the trial vacated and have the matter adjourned to another date at the next sittings in July 2009. I am also satisfied that "good cause" has been shown by the State to have the venue of trial changed.

ORDERS

The formal orders of the Court therefore are:

1. The trial dates of Wednesday 6th May 2009, Thursday 7th May 2009 and Friday 8th May 2009 are vacated.

2. The matter is adjourned to the next sittings of the National Court on Monday 6th July 2009 at 9:30 am for mention.

3. The matter shall be transferred from Wabag National Court to Porgera National Court.

4. The matter shall be tried at Porgera National Court on a date(s) to be fixed.

5. Bail is further extended.

Ruling accordingly.

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