State v Moses [2015] PGNC 115; N5892 (16 March 2015)

N5892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 275 OF 2012

THE STATE

V

ELINDA MOSES

Mendi: Kassman, J
2015: 9th, 10th and 16th March

CRIMINAL LAW – Murder – indictment presented - plea of not guilty – no witness for State brought in for trial – section 552(2) application for accused to be brought to trial granted – section 552(4) application that accused be discharged granted

Legislation cited

Criminal Code c.552 (2) and (4)

Cases cited

Nil

Counsel

Sheila Luben, for the State
Cecilia Koek, for the Accused

DECISION

16th Mach, 2015

1. KASSMAN J: On 9 March 2015, the State presented an indictment charging Elinda Moses ("Elinda"), with the murder of Wari Mundipap on 31 December 2011 at Alat Village, Imbongu District in the Southern Highlands Province. Elinda pleaded not guilty to the charge.
   
2. The brief facts presented by the State are:
   

"On 31st December 2011 between the hours of 2am and 3am the accused Elinda Moses and her husband (co-accused Moses Mundipap) were at home at Alat village, Imbongu District, Southern Highlands Province. Terrias Wari the son of the deceased called Terrias out of the accused's house and asked him where he had put the cooking oil. When Terrias answered that he did not know where it was, the deceased hit his son with a stick. The deceased then asked his brother Moses (co-accused) for the cooking oil. At that point Moses picked up an iron bar and rushed towards the deceased. He hit the deceased on the head with the iron bar. Deceased ran towards the garden. It is alleged that both Moses and Elinda ran after the deceased. Moses was armed with a stick. Elinda had a bush knife. The deceased was assaulted by both accused and her husband. The deceased died of severe head injury and massive blood loss from the deep wounds to the scalp and left forearm. It is further alleged that the accused intended to cause grievous bodily harm to the deceased thereby causing his death. The accused by her actions was an active participant and aided her husband in assaulting the deceased. The charge is laid pursuant to s. 300(1)(a) of the Criminal Code. The State also invokes s. 7(1)(c) of the Criminal Code.

3. Following presentation of the indictment and brief facts, the State informed the Court that the State's two witnesses Terias Wari and Benjamin Paul were not in court and Counsel for the State advised that the OIC prosecutions Inspector Napote had informed her that the arresting officer had been tasked to locate and bring the witnesses in for the trial. The State made application for an adjournment to 9:30am the next day as this matter was set for a two-day trial. Counsel for the State assured the Court that she had advised Inspector Napote in writing on 23 February of all matters listed for trial in the month of March 2015 including this matter. It was also noted that the arresting officer Senior Sergeant Epara Piuk was not in court and counsel was advised that he was not in Mendi. Counsel for the Accused then gave notice of her intention to make application pursuant to section 552(2) of the Criminal Code when the matter returns for continuation of the trial the next day.
   
4. Section 552 of the Criminal Code provides:
   

Division 4.—Trial: Adjournment: Pleas: Practice.

552. Right to be tried.

(1) In this section, "place of trial" means the place appointed under the National Court Act 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.

5. When the matter was called at 9:30am the next day 10 March 2015, the State advised that their witnesses had not been brought in to court. Counsel informed the court that she was advised by Inspector Napote that they were on their way to Kiburu to locate and bring in the two State witnesses. Counsel was not in a position to advise as to the whereabouts of the witnesses, whether they were informed of the date for trial and the prospects of them being located and brought in for the trial.
   
6. Counsel for Elinda then made application that Elinda be brought to trial pursuant to section 552(2) of the Criminal Code which provides a person committed for trial may make application at any sittings of the National Court to be brought to trial. In this matter, the indictment had been filed thus the trial had already commenced. After deliberating further with counsel for the State and the accused, I then said I understood the words or phrase "be brought to trial" to mean that the trial be commenced and concluded. As the last day of sittings of this Court this month is on Monday 16 March 2015, I granted the application made by Elinda and adjourned the trial to 9:30am on 16 March 2015.
   
7. On 16 March 2015, counsel for the State informed the court that State witnesses were not located and are not available for the trial. Counsel for Elinda then made application pursuant to Section 552(4) of the Criminal Code for an order that Elinda be discharged.
   
8. The court notes Elinda and her co-accused Moses Mundipap were charged and detained in custody on or about 5 January 2012. The co-accused escaped from lawful custody and has not been recaptured. Elinda has remained in custody since then, a period of three years and two months. No affidavit has been sworn and filed by the OIC Prosecutions or the Arresting Officer as to arrangements in locating and bringing in for trial the State witnesses. The State has had three years and two months to prepare their witnesses for trial. There is no guarantee that the State witnesses will be located and brought in for trial if a further adjournment was granted. There is also no evidence suggesting the State witnesses travel to court to give evidence has been disrupted in any manner or form. The application pursuant to Section 553(4) of the Criminal Code is granted.
   
9. The Accused Elinda Moses is this day acquitted on the charge of murder and discharged from custody forthwith.
   

Judgment accordingly:
_________________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused