State v Robert [2009] PGNC 52; N3606 (23 March 2009)

N3606

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1115 OF 2007

THE STATE

V

MATHIAS ROBERT

Mendi: Makail, J
2009: 13& 23 March

CRIMINAL LAW - Practice & Procedure - Application for change of venue of trial - Application made after commencement of trial - Accused indicted on one count of sexual penetration - Application made before or after commencement of trial distinguished - Grounds for change of venue discussed - Onus on applicant - Grounds established - Application granted - Criminal Code (as amended) - Section 347, - Criminal Code - Sections 522 & 555.

WORDS & PHRASES - "Good cause being shown" - Meaning of - Given wide and liberal interpretation - Criminal Code - Section 522(2)(b).

Cases Cited:

The State -v- Mathias Robert: CR No 1115 of 2007 (Unnumbered & Unreported Judgment of 21st October 2008)
The State -v- Theo Yandalan & 2 Ors [1994] PNGLR 405

Counsel:

Mr J Waine for the State
Mr P Kumo for the Accused

RULING ON APPLICATION FOR CHANGE OF VENUE OF TRIAL

23rd March 2009

1. MAKAIL J: This is an application by the State to change the venue of trial of the accused from Mendi National Court to Waigani National Court. The application is brought under section 555(2) of the Criminal Code. Prior to this application, on 21st October 2008, the State presented an indictment charging the accused with one count of sexual penetration of one Ellenor Iutiko at Moro Ridge, Kutubu on 27th April 2007 contrary to section 347 of the Criminal Code as amended.

2. After I had arraigned the accused, he made no plea because his then counsel, Mr Bosip Aipe made an application to adjourn the trial which I had reluctantly granted. See my ruling in The State -v- Mathias Robert: CR No 1115 of 2007 (Unnumbered & Unreported Judgment of 21st October 2008).

3. The matter was then adjourned to 2nd and 3rd December 2008 for trial to continue. However, it was further adjourned on 2nd December 2008 to a date to be fixed by the Court in 2009 due to the unavailability of the State’s witnesses. This application comes after no trial date(s) was allocated at the Criminal Call over on Monday 02nd March 2009.

STATE’S SUBMISSIONS

4. The State is applying for the change of venue of the trial from Mendi to Waigani. It is not in issue that Mendi and Waigani are places, the National Court sits. In support of its application to change the venue of trial, Mr Waine of counsel for the State essentially gives three reasons:

1. Inconvenience and costly for State witnesses.

He submits that except for witness Philip Pero who resides at Moro Ridge, all the State witnesses do not reside at Moro Ridge where the alleged offence took place. The victim is an employee of Oil Search Limited and was working at Moro Ridge at the time of the alleged offence. The other potential State witnesses were also working at Moro Ridge when the alleged offence took place and now they reside in Port Moresby, Australia and Philipines. They will not be readily available for the trial at Mendi National Court. As such, it is not convenient to have the trial at Mendi.

With respect to costs, he submits that it will be expensive to bring the witnesses from Port Moresby, Australia, Singapore to Mendi and of course to accommodate them at Mendi as it is anticipated that the trial would take more than one day. He points out that the State through Oil Search Limited has incurred considerable costs when it transported the State’s witnesses to attend trial at the last sittings in October 2008 by chartering private airline.

2. Security of victim and State witnesses.

He submits that there have been threats to the victim and the State witnesses on the previous occasion when the matter came on for trial on 21st October 2008. The relatives of the accused came in numbers and were seen at the Court house premises. At one stage, a stone was thrown at the Court house by someone amongst the relatives of the accused.

3. Meeting of costs of accused, his witnesses and lawyer.

He submits that if the application is granted, the State through Oil Search Limited is prepared to meet the costs of the accused, his witnesses and lawyer. The costs, he says will cover transportation to and from Port Moresby, accommodation and meals while in Port Moresby.

5. If the Court refuses the application, in the alternative application, he submits that the Court issue an order that the matter be tried behind closed doors. That is, the public should be restricted from entering the Court room and from observing the proceeding for security reasons.

6. For all these grounds, he relies on two Affidavits of Dennis Simpson, the Security & Emergency Services Coordinator of Oil Search Limited sworn on 27th November 2008 and filed on 4th March 2009 and 9th March 2009 and filed on 13th March 2009 respectively and also the Affidavit of Kathryn Sheehan sworn on 27th November 2008 and filed on 4th March 2009. I have perused the contents of each Affidavits and I will return to comment on them later on.

DEFENCE SUBMISSIONS

7. Mr Kumo of counsel for the accused opposes the application for change of venue of trial but did not rely on any Affidavits to support his submissions. He simply replies to the States submissions by giving three reasons. First, he submits that the accused should be tried before the National Court where he resides or closer to where he resides. Secondly, he submits that the accused should be tried before the National Court where the alleged offence took place or closer to the place where the alleged offence took place. In all of these instances, he says that it will be convenient for the accused to have ready access to witnesses as well as reduce costs for the witnesses to attend trial.

8. In that respect, since the alleged offence took place at Moro Ridge at Kutubu (Although I note Mr Kumo says in his submissions that it was at Hides Gas in Tari), the accused should be tried either at Mendi or Tari.

9. Thirdly, he submits that there are no real threats or danger to the security or personal safety of the victim and the State’s witnesses. There are policemen always present at the National Court house premises. In any case, if trial is to take place here at Mendi, the police station is only a stone throw away and any threat to State’s witnesses is minimal. But if there are any security issues that may arise during the trial, there will police at hand to attend to them.

10. Fourthly, he submits that there is no reason to threat this case differently from the other cases which this Court had dealt with prior to this case that were far more serious in nature than this one and yet there were no threats of violence and intimidation to State witnesses.

11. Finally, he submits that the suggestion that Oil Search Limited of whom the victim is employed is prepared to meet the costs travel and accommodation of the accused, his witnesses and lawyer if the matter is transferred to Waigani is improper. He says that the costs of running a criminal trial including costs of bringing witnesses to attend trial are the primary responsibility of the State. If Oil Search Limited is prepared to bear the costs of running the trial for the State, then it is acting on its own volition but such assistance is of not relevance to where the trial will be conducted or held.

12. As to the alternative application by the State to have the trial in closed door, he submits that the application is misconceived. A Court is an open Court and the public including any relatives of the accused are entitled to have free access to the Court to observe the proceedings. There are however, exceptions to this open door policy of the Court like in cases where the accused or victim is a minor. But in this case, the victim is not a minor. Thus, it would be wrong for the Court to close its door to the public.

REASONS FOR RULING

Jurisdiction of National Court

13. The first matter I wish to mention here is that, it is clear to me that the State is basing its application on section 555(2) instead of 522(2)(a)&(b) of the Criminal Code. This is because when I raised this issue with Mr Waine at the hearing, he referred to and relied upon section 555(2) of the Criminal Code as the basis of the application. I will return to dismiss this issue shortly but for now section 555 states:

"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).

14. Part VIII, Division 1 of the Criminal Code also provides for place of trial and section 521 states, "In this Division, "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". And section 522 provides:

"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).

15. I am of the view that by virtue of section 522(1)(a)(i)&(ii) cited above, a trial of an accused before the National Court is held at a place where the accused is committed to stand trial or where there is no place being specified, at a place nearest to where the accused is committed to stand trial at the National Court. That is the law.

16. In this case, the alleged offence took place at Moro Ridge somewhere at Kutubu of the Southern Highlands Province. As there is no National Court at Moro Ridge, the accused was committed by the Mendi District Court to stand trial at the National Court at Mendi. It is not in issue that Mendi is a place where the National Court sits. Thus, by virtue of section 522(1)(a)(ii) it is clear to me that the accused is to stand trial at the National Court at Mendi.

17. Returning to the issue I raised earlier and that is whether section 555(2) applies, I recall asking Mr Waine if section 555(2) applies and he says yes. His argument is that since the State had presented an indictment against the accused on 21st October 2008, and the accused was arraigned but did not make a plea, that means that trial had commenced but did not proceed any further because it was adjourned at the request of the accused. I agree.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. Relating these considerations to the present case, I accept that two out of the three considerations that Mr Waine has put forward to support this application for change of venue. That means I reject Mr Waine’s submission that since the costs of transportation and accommodation etc of the accused and his witnesses will be met by the State through Oil Search Limited is a relevant consideration. To my mind, it is irrelevant because it is an internal matter for the State in particular the Office of the Public Prosecutor, Police (Criminal Investigation Division) and Oil Search Limited to sort out.

25. As I have accepted the first two considerations as being relevant to this sort of application, does that mean that I should grant the application as of right? I do not think so. I consider that the onus is on the applicant, be it the State or the accused to establish a case for the Court to exercise that discretion. This means that an applicant must bring appropriate evidence to establish these considerations before the Court may grant the application.

26. Proceeding on this premise, has the State established these two considerations?

Availability and location of State witnesses.

27. In respect of the availability and location of bringing the State witnesses to attend trial at Mendi National Court, I am satisfied that the State has established them. There is evidence from Mr Simpson in his Affidavits that the potential witnesses of the State are employees of Oil Search Limited and reside in Port Moresby, Australia and Singapore. Mr Simpson names these potential witnesses as himself, in Brisbane but working at Moro Ridge, Andrew Warrington, in Melbourne but working at Moro Ridge and Neil Ryan who lives in Singapore. The other witnesses are Dr Maria Lavrentieva who lives in Port Moresby and Philip Pero who lives at Kutubu. See paragraphs 10 and 11 of Mr Simpson’s Affidavit sworn on 27th November 2008 and filed on 04th March 2009.

28. Given the location of these witnesses, and apart from the victim, Philip Pero and Dr Lavrentieva, I am pretty sure that their availability at trial at Mendi National Court whenever the Court fixes a date(s) is slim because they will need to travel first to Port Moresby and then onto Mendi. Besides, it will be inconvenient to each of them. On the other hand, if the trial is held at Waigani, there will be less inconvenience and the chances of them attending trial will be great as they will simply travel in to Port Moresby for the trial.

29. For these reasons, I am satisfied that the State has established this ground.

Costs of bringing witnesses to attend trial

30. Secondly, with respect to the costs, again, there is evidence from Mr Simpson in paragraphs 10 to 12 of his Affidavit sworn on 27th November 2008 and filed on 4th March 2009, to transport the witnesses from Port Moresby, Australia, Singapore to Mendi at the last hearing in October 2008 and of course to accommodate them since the trial would take more than one day. He points out that the State through Oil Search Limited has incurred considerable costs when it transported its witnesses to attend trial at the last sittings in October 2008 by chartering private airline.

31. I consider that this consideration is an extension of the first consideration but on a more specific point, that is, costs. Surely, there will be further costs incurred by the State to bring the witnesses residing outside the country to attend trial at Mendi National Court. There is the cost of flying them into Port Moresby and accommodating them there and then there is the further costs of flying them over from Port Moresby to Mendi and accommodating them here for the trial.

32. I am satisfied that the State has also established this ground.

Security of victim and State witnesses.

33. As for security of the victim and State witnesses, there is evidence from Mr Simpson in paragraphs 12 to 14 of his Affidavit that there have been threats made to the victim and the State’s witnesses at the previous occasion when the matter came on for trial at Mendi National Court. According to Mr Simpson, the relatives of the accused came in numbers and were seen in and around the Court’s premises. At one stage, large "rock fight" erupted next to was thrown at the Court house and the main road while the victim was working in the vehicle.

34. Given the tense atmosphere at that time, the victim was under a lot of stress and anxiety. In my view, this may affect her ability to give evidence at the trial. The same can be said of the other witnesses. In holding this view, I do acknowledge Mr Kumo’s submission that there is police presence at the Court premises during every Court circuits to Mendi, like in this Court circuit and of course Mendi Police Station is only a stone throw away so to speak, hence security should not be an issue if the trial of the accused is to be held at Mendi.

35. 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.

36. 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.

37. In the present case, there is undisputed evidence from Mr Simpson before me that the relatives of the accused were present in numbers in and outside the Court room at the hearing on 21st October 2008. On the other hand, there is no evidence from the accused refuting the evidence of Mr Simpson that it is not true. Further, there is no evidence from the accused to show that the relatives of the accused will not repeat what they did at the last hearing if the trial is to take place at Mendi National Court.

38. Furthermore, there is evidence from Mr Simpson in paragraphs 3 to 8 of his Affidavit sworn on 29th November 2009 and filed on 4th March 2009 and Annexures "A" to "E" showing threats and intimidation made by the accused in letter form to the victim whilst he was in remand at Buihebi CIS. The accused has not denied writing these letters to the victim. But if the accused says that he did not make any threats or intimidated the victim, let me direct the accused’s attention to his letter dated 24th July 2008 (Annexure "D") towards the end of p 2 and ask him if the content is not directed at the victim and made as a threat or intimidation:

"NOTE:

Ellenor, I am not your type.

You are of someone at your type.

Hatred stirs up strife but love in the sense of your act of pardoning me covers all sin.

How would you publicize your privacy in the Court room? I just feel like to cry when say so.

It will be sameful (sic) to me in arguing for that matter or point.

- Yu yet em pikinini meri ya.

- Save stap long yu.

- Bai mi tok wanem.

- Decision stap long han bilong yu yet.

- Yu mekim mi sem nogut tru ya.

- Why not?

- Ellenor Please!!".

39. Surely, any person reading that letter would agree that it contains threats and intimidation. This letter attempts to force the victim to drop the charge against the accused by reminding her of the guilt and shame that awaits her if she were to testify against him at the trial of how the alleged offence took place. Thus, in the end, I am satisfied that the accused wrote letters to the victim which contained threats and intimidations in an attempt to coerce her to abandon the idea of pursuing the charge against him. I am also of the view that the threats and intimidation were persistent because of the so many letters, 6 in total, he wrote to the victim over a period of 8 months.

40. Further, I am satisfied that there have been threats and intimidation made indirectly to the potential State witnesses including the victim at the last Court hearing at Mendi National Court by the mere physical presence of the relatives of the accused in and outside of the Court room. There is the potential that such a large gathering of people maybe repeated if the trial is to take place at Mendi National Court sometimes in the near future. Thus, I am satisfied that security of potential State witnesses is under threat and this Court should intervene now rather than later to prevent any serious repercussions that may happen later. This ground has been sufficiently made out.

Availability of judges.

41. Although Mr Waine did not raise or submit that availability of judges is one consideration the Court should take into account when considering an application to change a venue of trial, it is my view, one relevant consideration. I say this because, in recent times, finding a judge to hear cases is difficult given the limited number of judges there are in the country. As a result, there is a back log of cases both in the criminal and civil tracks. Thus, in my view, where there is a judge ready to preside over a matter, parties should take the opportunity and make use of it. Otherwise, it may be a long time before the opportunity comes again.

42. In this instant case, I observe in passing that the opportunity is there for both parties to take and use to their advantage, especially the State if it wants to deal with this case expeditiously. But it appears to me that the State is prepared to allow this opportunity to go by and wait for another one. If that is the State’s position, then the Court should not step in its way.

Availability of accused’s lawyer.

43. Although Mr Kumo did not submit that availability of accused’s lawyer is one consideration the Court should take into account to decide whether or not to change a venue of trial, it is in my respectful view another relevant consideration. I say this because an accused has the full protection of the law as guaranteed by section 42 of the Constitution until proven guilty by a Court of competent jurisdiction. This protection extents to and covers the accused’s right to a lawyer of his own choice.

44. To appreciate the point I am stressing here, I set out section 42(2) in full hereunder:

"(2) A person who is arrested or detained -

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection". (Underlining is mine).

45. The question I ask is; will the change of venue from Mendi National Court to Waigani National Court prejudice his defence of the charge in so far as legal representation is concern? In other words, will the accused be able to instruct a lawyer of his own choice if the trial is to take place at Waigani National Court? I have not received any submissions from either counsel, more so Mr Kumo in relation to these matters. Nonetheless, I assume that the Public Solicitor maybe the lawyer for the accused at the trial given the fact that Mr Kumo of that office now has taken over the carriage and conduct of the matter from Bosip Aipe & Co Lawyers.

46. If I am wrong to make this assumption, then I have not been filled in on this issue, hence I am not satisfied that the accused will be deprived of a lawyer of his own choice to represent him at the trial. In respect of the proposal by Oil Search to meet the costs of the lawyer for the accused to and from Port Moresby, as I said earlier, it is not a relevant consideration. It is an internal matter and does not determine where the trial would take place. In the end, I make no decision on this ground.

List of matters pending trial.

47. The final consideration which I consider relevant in an application to change the venue of trial is the number of matters pending trial. Again, neither Mr Waine nor Mr Kumo presented any evidence or submissions on this consideration. But I am of the view that the number of matters pending trial before the Court is a relevant consideration.

48. I hold this view because a party who seeks to change venue of a trial must also show to the satisfaction of the Court how many cases are pending trial at a particular place of sitting of the National Court. It is so critical at this point in time where the volume of Court cases, more so criminal cases seem to increase day by day, that cases must not be transferred as a matter of course but rather after careful consideration of the Court’s list of cases of a particular sittings of the National Court so that if the venue is changed, the matter does not unnecessarily disrupt the schedule of the National Court at that location.

49. So for example, I take judicial notice that there are 60 cases pending trial on the bail and remand list for Mendi National Court. But as there is no evidence before me and I cannot speculate and give the total number of criminal cases pending trial before the Waigani National Court, I can only say that if the number of criminal cases pending trial at Mendi National Court is less than Waigani National Court, then, it would be convenient and in the best interest of both parties for the trial to take place at Mendi rather than Waigani. For, to do otherwise would not only delay the trial, but also increase the chances of the accused applying to the Court to dismiss the charge for want of prosecution if the trial is further delayed.

50. Having said all these, again it appears to me that the State is prepared to take the risk and go to Waigani and if that is the State’s position, then the Court should not step in its way.

CONCLUSION

51. In the end, I am satisfied that the State has established a case where there are good reasons for the Court to order a change of venue of trial of the accused from Mendi National Court to Waigani National Court. I will grant the application and that means that by operation of section 556 of the Criminal Code, the accused is bound to appear at the trial at Waigani on a date to be fixed by the Court. Section 556 states as follows:

"556. Effect of adjournment.

(1) When an order is made under Section 555 adjourning a trial to a different time or place -

(a) the accused person is bound to attend the trial; and

(b) the recognizance of any person bound to attend as a witness or

otherwise applies in respect of the new time and place of trial.

(2) A person bound to appear at a trial by virtue of Subsection (1) is not liable to have his recognizance forfeited or be otherwise dealt with for failure to appear unless he has received notice within a reasonable time of the time and place to which the trial has been adjourned".

52. Further, in reaching the decision to order a change of venue of trial in this case, I observe that the decision by no means affects the accused’s bail condition since he is out on bail. Section 523 provides that where the Court orders a change of venue, the accused’s bail conditions remain uninterrupted. I set it out in full so that each party, especially the accused may appreciate its effect and comply with the bail conditions until the date of trial.

"523. Recognizance when place of trial changed.

(1) When an order is made changing the place of trial -

(a) the recognizance of bail of any person awaiting trial; and

(b) the recognizance of any person bound to attend as a witness or otherwise,

applies in respect of the sittings of the court at the new time and place of trial.

(2) A person bound by a recognizance enlarged by virtue of Subsection (1) is not liable to have his recognizance forfeited or be otherwise dealt with for failure to appear unless he has been given notice of the new time and place of trial".

52. Finally, as I have decided to order a change of venue of trial of this accused, it is not necessary for me to decide the alternative application of the State for a close door trial.

ORDERS

In the circumstances, it is the judgment of the Court that:

1. The venue of trial shall be changed from Mendi National Court to Waigani Waigani National Court.

2. The Court file shall be transferred from Mt Hagen National Court Registry to Waigani National Court Registry.

3. Bail granted to the accused shall be further extended and appropriate application shall be made to vary the condition prior to travel to Port Moresby.

____________________________________

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