N7158
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) 844 of 2017

JACKY ANTON
Applicant

V

THE STATE
Respondent

Lae:  Kaumi AJ
2018:16, 21, 27 February
1, 9 March

CRIMINAL LAW – Bail Application-Wilful Murder-Prolonged Detention-Considerations under section 9 (1) present-Onus shifts to Applicant to show sufficient cause why continued detention not justified-Insufficiency of evidence of adverse effect caused by prolonged detention prejudicing his defence or denying him the opportunity to adequately prepare his defence – Onus on applicant not discharged–No exceptional circumstances shown-Bail refused-Constitution-section 42 (6)-Bail Act-sections 4,6 and 9-Criminal Code-section 299.

Facts

A remanded man charged with wilful murder applied for bail. Applicant failed to show sufficient cause why continued detention is not justified. Bail was refused.

Held:

1.	 Prolonged detention alone is not sole determinative factor.
2.	 Applicant must show sufficient cause why continued detention is not justified.
3.	Applicant must show by way of appropriate evidence adversity caused by prolonged detention prejudicing his defence or denying him the opportunity to adequately prepare his defence.
4.	Applicant’s affidavit is very brief and does not depose to matters pertaining to exceptional circumstances.
5.	 Applicant’s pre-trial custody of 18 months does not amount to an inordinate period in pre-trial custody.
6.	Applicant has not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified.
7.	 Bail application is refused.

Cases Cited:

Bernard Juale v The State (1999) N1887
CR (AP) No. 11 of 2018 Francis Kevin v State N7103
CR (APP) No. 340 of 2015; In the matter of an Application for Bail; Sadrick Ken v The State (2015) N6107
CR (AP) No. 869 of 2017 Solomon Kiki Larry Israel v State (2018) N7104
Gilbert Guari v State [2015] SC1446
Herman KaglDiawo, Re [1980] PNGLR 148
John Peng v State (2010) N4134
John Raikos v The State (2001) N2040
Kuku Hayara v The State [2008] N3488
Malaki Kongo and Joe Akusi v The State (1996) N1544
Maragau v State [2016] N6280
MichealAia and MichealManeba v The State (2001) N2124
Osara v The State [2001] PGNC 149
Oumba v State [2016] N6368 
Paul Guant v The State (2009) N3576
Peter Talpa v The State CR (AP) No. 94 of 2016 N6367
Pele v The State [2001] PGNC 158; N2041 
Re Fred Keating [1983] PNGLR 133
Re Kou Dua[1984] PNGLR 22
State v Paul Tohian(1990) PNGLR 173 SC385
Steve Lester v The State (2001) N2042
The State v Beko Job Paul [1986] PNGLR 97 N537
Theo Yausase v State [2014] SC 1381
TrigaKakarabo v The State [1999] N1891
VeleWariVele v The State (2004) N2701
Wagupa v Independent State of PNG [1996] PGSC 1; SC 494 

Legislation Cited: 

Constitution of Papua New Guinea
Criminal Code Act 1974
Bail Act 1977
		
Counsel :

Ms. Matana, for the State
Ms. Katurowe, for the Applicant

RULING ON APPLICATION FOR BAIL

09th March, 2018

1.	KAUMI, AJ: This was an application for bail under s. 4 and s. 6 of the Bail Act (Chapter. 340) by the applicant charged with the wilful murder of one Wesley Yamu. The Applicant is in custody awaiting trial. The Bail Act vests jurisdiction in this court to decide his application.

                              BRIEF FACTS 

2.	Annexure A of the Applicant’s affidavit sworn on 21st November 2017 is the Summary of Facts and it alleges that on the 17th of April 2016, between 6:00pm and 6:30pm at Kaisenik Village in Wau Rural LLG of Bulolo District, the Applicant, the deceased Wesley Yau and the deceased’s younger brother Luther Yamu and another relative namely Brendon Peter were dropped off by village pmv with their cartons of green can beer. While drinking, two of their male relatives Roy Kowei and Dean David came and saw them and began telling stories with them. They didn’t join the defendant and two others with their beers.

3.	It was alleged that while drinking, the Applicant left the group without saying a word and returned after one hour and thirty minutes time. The deceased in a funny voice said to the defendant as quoted in pidgin language,”Son! Kam sindaun antap long lek blo daddy na yumi drink” and laughed.

4.	The Applicant responded back to the deceased in an angry voice and also swore at the deceased and his friend as quoted in pidgin language,”Disla em nek bilong hevi ya, kaikai kan blong mama blong yupela”. It is also alleged that the Applicant did threaten the deceased and others that he would kill one of them and insisted on fighting.

5.	It was further alleged that four youths excluding the deceased tried to stop the Applicant but he insisted and picked up a stone and threw it on the deceased’s face and the deceased fell on the ground, whilst the Applicant escaped.

6.	Two days later the Applicant was then apprehended and was taken to Wau Police Station where he was detained. At the police station he was formally arrested, cautioned, charged for wilful murder, told of his constitutional rights under section 42 (2) and locked in the police cell.

GROUNDS FOR APPLICATION 

7.	The Applicant vehemently denies and will contest the charge. At paragraph 3 of his Affidavit in Support he says he is originally from Kwembu village of the Biangai tribe of Wau Rural Local Level Government.

8.	The Applicant’s ground for bail is set out under paragraph 5 and 6 of his Affidavit in Support that he was committed to stand trial on the 27th of July 2016 and his matter was pre-trailed after a year on the 16th of August 2017 on which his trial was set for 10th to 12th June 2019. To date he would have been in custody for about 1 year and 6 months.  Therefore that he applies for bail on the ground of prolonged detention. 

RESPONDENTS SUBMISSION

9.	The Respondent/State informed the court that they were unable to obtain instructions from the Investigating Officer as she was stationed at Mumeng but were going to object to the application on points of law on bail.

10.	The Respondent response to the Applicant’s ground for his application of prolonged detention was that it was not an exceptional circumstance. Further that the prolonged detention was based on a backlog of cases and a large number of people awaiting trial at the Buimo Correctional Institution and that if this was going to be used as an exceptional circumstance then everyone on remand at Buimo would use this as a ground for applying for bail. Therefore the ground of prolonged detention relied upon by the Applicant was not an“exceptional circumstance”.

11.	That with respect to the considerations of Section 9 the State submitted that there was a use of a dangerous weapon and threats of violence.

RESPONSE BY THE APPLICANT

12.	Counsel for the Applicant replied that the summary of facts were mere allegations and the Applicant had the presumption of innocence.

13.	Further that Re Keating provided that there was still discretion in the bail authority 

                                   ISSUE

14.	Having heard submissions from both counsel and received into evidence affidavits filed in support of the application by the Applicant the following issues emerge:

[i] Has the prosecution discharged the onus on reasonable ground, and to the satisfaction of the court, of the existence of one or more of section 9 considerations?
[ii] Has the Applicant spent an inordinate period in pre-trial custody?
[iii] If so, does it amount to an exceptional circumstance?
[iv] If so, has the Applicant established it be appropriate evidence?
[v] Is the continued detention of the Applicant unjustified?

RELEVANT LAW ON BAIL
CONSTITUTION

15.	In Papua New Guinea, the law on Bail finds its genesis in its Constitution. Section 42(6) (liberty of the person) of the Constitution provides:

A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

16.	The entitlement to bail by this Constitutional guarantee is not automatic as it is qualified by the phrase “unless the interests of justice otherwise require”.  And the determination on an issue of this qualification is by the bail authority i.e. as to whether or not, “the interests of justice otherwise requires” a refusal of bail.

					  BAIL ACT

17.	“Section 9.  Bail not to be refused except on certain grounds.
(1)	Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations. 
(a)	That the person in custody will not appear at his trial if granted bail; or
(b)	That the offence with which the person has been charged was committed whilst the person was on bail; or
(c)	That the alleged act or any or the alleged acts constituting the offence in respect of which the person is in custody consists or consists of:
(i)	A serious assault; or
(ii)	A threat of violence to another person; or
(iii)	Having or possessing a firearm, imitation firearm, other offensive weapon or explosive ; 
(d)	That the person is likely to commit an indictable offence if he is not in custody; or
(e)	It is necessary for the person’s own protection for him to be in custody, or
(f)	That the person is likely to interfere with witnesses or the person who instituted the proceedings; or
(g)	That the alleged offence involves property of substantial value which has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property.
(2)	Subject to subsection (3), a bail authority shall not refuse bail on the basis of a consideration specified in Subsection (1) unless facts relating to that consideration have been established to the reasonable satisfaction of the bail authority either of its own knowledge or on the evidence furnished by a credible person.
(3)	In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.”

18.	The Supreme Court in Keating v The State [1983] PNGLR 133 held that:

1.	An application for bail by a person charged with wilful murder is to be determined pursuant to s. 9 of the Bail Act only, i.e. without reference to the interest of justice.
2.	The grant or refusal of bail pursuant to s. 9 of the Bail Act is discretionary in all cases other than wilful murder and treason.
3.	The grant or refusal of bail to s. 9 of the Bail Act is discretionary in cases of wilful murder (and treason)
4.	Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody in not justified.
5.	There are two categories of bail applicants
A.	Those who are charged with wilful murder or treason; and
B.	Those charged with other offences.
6.	Category A applicants
A.	They must appear to the National Court and the Supreme Courts for bail.
B.	Their applications for bail are not subjected to the interests of justice [see s.42(6) Constitution]
7.	Category B applicants
A.	They are guaranteed bail at all times under s.42 (6) of the Constitution.
B.	Their applications are subject to the “interests of justice” by s.42 (6) of the Constitution.
C.	They can apply to Police, Local Courts and District Courts for bail.

19.	The principles enunciated in Re Fred Keating have been reaffirmed, followed and the exercise of judicial discretion (“exceptional circumstance” test) in the grant or refusal of bail has been developed by the National Court and the Supreme Court over the last 35 years in cases that have come before them for determination of bail applications. And some of  those cases which I have studied are Re Kou Dua [1984], PNGLR 22, State v. Beko Job Paul [1986] PNGLR 97; Re Tohian (1990 PNGLR 173 SC385, Wagupa v Independent State of PNG [1996] PGSC 1; SC 494, Malaki Kongo and Joe Akusi v The State (1996) N1544,Bernard Juale v The State (1999) N1887, Triga Kakarabo v The State [1999] N1891, Steve Lester  v The State (2001) N2042, John Raikos v The State (2001) N2040, Pele v The State [2001] PGNC 158; N2041, Osara v The State [2001] PGNC 149; N2042, Re Boram Correctional Institution [2006] N3801, Dr Theo Yausase v State[2011] SC 1112, Aia v The State [2001] PGNC 116; N2124, Vele Wari Vele v The State (2004) N2701,  Kuku Hayara v The State [2008] N3488, Paul Guant v The State (2009) N3576, Gilbert Guari v The State [2015] SC 1446, CR (APP) No. 340 Of 2015; In the matter of an Application for Bail; Sadrick Ken v The State (2015) N6107, Jacob Maragau v State (2010) N4560, Oumba v State [2016] PGNC 175; N6368, Peter Talpa v The State [2016] N6367 , Solomon Kiki Larry Israel v State[2017] N7014  and  Francis Kevin v State [2018] N7103.

20.	Kapi DCJ in Re Fred Keating (supra) referred to the reasons for refusal of bail by the National Court which stated:

“First, an accused who is charged with wilful murder is not entitled to bail as of right. And the discretion to grant him bail should never be readily exercised in his favour unless exceptional circumstances that are shown that should warrant him being granted bail. And it is my opinion that the courts’ discretion in this area should be very limited indeed. I find that there are no special or exceptional circumstances at all in his case”. 

21.	Kapi DCJ continued:

“With respect to the learned judge, whilst it is true that a person charged with wilful murder has no constitutional right to bail under s. 42(6) of the Constitution, the purpose Pt II of the Bail Act 1977 is to grant bail more readily to all persons who are arrested or detained for an offence. (Section 1 of the Bail Act 1997.) I would reject the proposition that in cases of wilful murder the discretion to grant bail should never be readily exercised in his favour unless exceptional circumstances are shown, this is a principle which is contrary and alien to the criteria set out under s. 9 of the Bail Act 1977 and should not be introduced.

22.	Andrew J. in Re Fred Keating (supra) stated the correct position in law (and which I subscribe to) with respect to the use or otherwise of discretion in bail applications by applicants charged with wilful murder:

“The use of the word in s. 9(1) that the bail authority “shall not refuse bail unless satisfied…”illustrates that prima facie one is entitled to bail. That is the intent of the Constitution and the Bail Act. When one or more of the considerations in s.9 (1) is shown to exist then there is a ground for refusing bail. The use of the word “shall” does not mean, in my opinion that bail must as a matter of course be refused when those matters are proved. To read it that way would be contrary to the whole scheme and intent of the constitution and the Bail Act. Whether or not bail is refused is a matter of discretion. 

…In my judgment the use of the word “shall” in s.9 (1) of the Act shows that it can be seen that the bail authority must refuse bail if one or more of the conditions are proved unless the applicant shows cause why his detention in custody is not justified. Such an exercise is always discretionary.

…There is nothing in the terms of the Bail Act to except wilful murder from the categories of bailable offences and bail prior to conviction is to be determined by the National Court or Supreme Court as the case may be in accordance with s. 3 and s. 4 and the conditions of s.9 of the Act, There is nothing in s.9 which refers to special and exceptional circumstances.”

23.	Kirriwom. J in the case of Bernard Juale v The State (supra) stated:
“There is one school of thought that says that once I have found that one of the grounds in s.9 (1) has been established, I have no discretion to grant bail if the charge is that of wilful murder. I beg to differ with this view, even if this is the correct interpretation of the law In re Fred Keating. If that is what the law is, in my respectful view, it needs to be corrected. I think there will be, as is always the case, exceptional circumstances such as those alluded to by Andrew J in his judgment in the same case that would warrant bail even in wilful murder. The question is always on of degree. Each case must be decided on its own peculiar circumstances”.

24.	Kirriwom. J in a subsequent decision in Triga Kakarabo v. State (supra) said:

“Bail is a discretionary matter after considering all the circumstances of the case. The Court must also bear in mind that there is a right to bail under the Constitution but this right is unavailable in cases of wilful murder and treason – see Constitution s. 42 (6). However the Supreme Court held in In re Fred Keating [1983] PNGLR 133 that bail can still be considered in exceptional cases for persons charged with wilful murder as long as he is not disqualified by any of the considerations in the Bail Act s.9(1)”. 

25.	Makail. AJ (as he then was) in John Peng v State (2010) N4134 said:

“Further and more importantly, section 42(6) of the Constitution states that bail is not available as of right to a person charged for wilful murder. It is granted at the discretion of the Court and the Courts have in the past considered bail for applicants charged for wilful murder by applying the exceptional circumstances test. In other words, an applicant charged with wilful murder must establish to the satisfaction of the Court that his or her continued detention is unjustified: see Re: Fred Keating –v-The State (supra)

26.	Kandakasi. J in the case of Osara v The State (supra) succinctly summarized the legal principles emanating from various cases which I respectfully adopt. And he did so in these terms:

A.	A person arrested and charged with an offence is entitled under s.42(6) of the Constitution to bail at any time except for wilful murder and treason but a bail authority still has the discretion to refuse bail “if the interest of justice otherwise requires”.

B.	The Bail Act (Chp.340) by s.9 sets out the circumstances in which bail may be refused;

C.	The existence of one or more of the circumstances under s.9 of the Bail Act may form the basis to refuse bail but that is not automatic. There is a discretion in a bail authority to grant bail if an applicant for bail is able to show by appropriate evidence that he his “continued detention in custody is not justified”.

D.	The burden to produce appropriate evidence to form a foundation for a grant of bail is not a difficult and complicated one because by virtue of s.9(2) of the Bail Act the application of the technical rules of evidence are excluded;

E.	The list of circumstances under s.9 of the Bail Act is not exhaustive and other factors such as the following may be taken into account before deciding whether or not to grant bail:

a)	“The applicant being a habitual criminal;
b)	Whether applicant is a trustworthy person and will meet any bail terms that may be imposed;
c)	The number of bench warrants outstanding for bail jumpers for the kind of offence the applicant is held in custody for;
d)	The cost and expenses the society may be put through in trying to bring the applicant to justice  if he breaches his bail terms  which may mean delays in a speedy trail which may have the risk of the State loosing vital evidence supporting the charge against the applicant;
e)	The expenses and the trouble the society through the Police Force, has been put through to secure the applicant’s arrest and incarceration;
f)	Whether the proposed guarantors are serious in their proposal having regard to the amount of money they are able to pay in sureties;
g)	Whether the amount of cash bail proposed has any relative correspondence to the offence with which he has been charged; and
h)	Whether the applicant would have already served his penalty without a trial by reference to the offence with which he has been charged and the possible date for his trial”.

27.	Exceptional circumstances are not defined by the Bail Act and it does not say what matters the court should take into account if it finds that one or more of the circumstances in Section 9(1) exist. It therefore becomes an exercise of judicial discretion in the grant or refusal of bail in wilful murder cases. 

28.	The courts in developing various exceptional circumstances have attempted to give some definition to what they might be.

29.	What factors might constitute an exceptional circumstance is dependent on the peculiar circumstance of each case. 

30.	The determination that there exists an exceptional circumstance is not an automatic guarantee to a grant of bail as the prevailing consideration is the interests of justice. There might still exist good reasons for refusing bail therefore:

[A] In the context of a bail application involving wilful murder  the onus lies with the State to establish by evidence on reasonable grounds to the satisfaction of the court  the existence of one or more considerations under section 9 (1).

[B]Once this onus is discharged by the State it shifts to the Applicant to establish by way of appropriate evidence why his continued detention is unjustified. See Re: Fred Keating –v-The State (supra)

[C]Even where there are exceptional circumstances the prevailing consideration is the interests of justice. In other words what amounts to continued detention being unjustified will be assessed on a case by case basis and the bail authority has discretion to grant bail and a case in point is State v. Beko Job Paul (supra) where Wilson J., at page 99 in relation to a break and enter charge with intent to steal police arms said:

“However, I consider that the offence, the nature of which involves the clear intent go secure arms negates that presumption and that the interests of justice are not served by failing to give special significance to this type of crime and the consequences that flow, or could flow from it. On the basis of this reasoning I refuse bail, there being nothing in the application which convinces me that the continued detention is not justified”.

31.	In the words of Batari (AJ) in Malaki Kongo and Joe Akusi v The State (supra) “the applicants must show “sufficient cause” why their detention in custody is not justified. As to what may amount to detention not justified, will be assessed from a case to case basis, and the bail authority has discretion to grant bail”.
                               
                                 APPLICATION

32.	Persons charged with the offence of wilful murder (and treason) do not have a right to bail per se as is readily available to persons under category B ( See Re Fred Keating v The State(supra) who are charged with other offences.

33.	The wilful deprivation of another human being’s life by another human being involves, inter alia, premeditation or malice aforethought and is an act of recklessness with extreme indifference for the sanctity of life.

34.	The offence of wilful murder is the apex offence and is deservedly at the pinnacle of all criminal offences proscribed under the Criminal Code of Papua New Guinea attracting the ultimate penalty of death.

35.	And given its aberration and the uttermost abhorrence towards it by society it is little wonder Parliament in its wisdom legislated purposely not to make bail readily available to persons charged with the offence of wilful murder.

36.	However on the same token and in the spirit of fairness grounded in the constitutional guarantee of the presumption of innocence, Parliament also legislated that persons charged with the offence of wilful murder who want to wait for their trial outside the confines of a prison may do so by way of an application for bail only to the highest courts in Papua New Guinea, the Supreme and National Courts pursuant to section 4 (1) of the Bail Act.

37.	Section 4 (1) gives structure to the spirit and intent of section 42 (6) of the Constitution.

38.	The first issue I have to address is, whether or not the prosecution has discharged the onus on reason ground, and to the satisfaction of court, of the existence of one or more of section 9 (1) considerations? The State objected on the basis of the use of a dangerous weapon and use of threats which I take  to mean section 9 (1) (c) (i)-serious assault and section 9 (1) ( c) (ii)- a threat of violence to another person. I have perused the Summary of Facts (Annexure A) of the Applicant’s Affidavit in Support sworn on 21/11/17 and note from it at paragraph 4that the Applicant prior to stoning the deceased is alleged to have spoken in an angry voice to him and his friends in the pidgin language, “dispel em nek bilong heviya, kaikai kan blong mama blong yupla”. Further that he threatened the deceased and others that he would kill one of them and he wanted to fight. Further that four youths excluding the deceased tried to stop him but he still insisted and picked up a stone and threw it on the face of the deceased causing him to fall to the ground while he escaped.

39.	I note that counsel for the Applicant’s responded to this particular submission by the State saying the Summary of Facts were mere allegations and that he was presumed innocent until proven guilty. I find this response rather mundane. Be that as it may the Summary of Facts are essentially a summary of the allegations against the Applicant nevertheless it is still evidence properly before the court to consider and by the operation of section 9 subsection (2) this court may act on such information. I find that the State has discharged the onus on reasonable ground and to the satisfaction of the court of the existence of considerations under section 9 (1) and so I answer the first issue in the affirmative (yes).

40.	I consider the second issue now, has the Applicant spent an inordinate period in pre-trial custody? From my research on what amounts to an inordinate period, I have found that the courts have stated generally that in any bail application the court should take into account the length of time the applicant has been in custody, and that an applicant who has been in custody for an inordinate period may be able to show that this constitutes exceptional circumstances. However it is not automatic that an applicant who has been in custody for a longer period must be granted bail on that factor alone and that the bail authority must still consider where the interest of justice lies before deciding to grant or refuse bail. See Malaki Kongo and Joe Akusi v The State (supra), Bernard Juale v The State supra, re Boram Correctional Institution (supra), Dr Theo Yausase v The State (supra), Kuku Hayara v The State (supra) and Paul Guant v The State (supra).

41.	Batari. AJ (as he then was) in Malaki Kongo and Joe Akusi v The State (supra) stated that:

“By the time the accuseds are brought to trial in April, 1997 they would have spent over 12 months in custody if they are not released on bail. This is a relevant consideration in their favour. It is however not the sole determining factor. One may bear in mind also that, despite the long wait, case trials in Waigani could now be expeditiously dealt with through case listings so that the accuseds are not least assured of being brought to trial on fixed dates. There is no uncertainty of their being ever brought to trial”.

Besides there is no evidence or suggestion that prolonged detention is adverse to their health, for instance. Similarly a person detained on a wilful murder charge, in my view should show cause that his prolonged detention would either prejudice his defence or deny him the opportunity to adequately prepare his defence. He ought also to show cause that his detention would put his social activities and his family welfare, employment, or business engagement in jeopardy. These are some of the matters that in my view are relevant in the applicants favour and ought to have been covered in their applications. Those family difficulties they each spoke of through their lawyer inmy view are not exceptional to them. I also do not see the urgency of such consideration when they have been in custody for some seven months now”.

42.	Davani J, followed the decision of Malakai Kongo& Joe Akusi v The State (supra) in Michael Aia& Michael Maneba v The State (supra) saying:

“What are these exceptional circumstances? The Applicants have not shown any. The affidavit filed by the Applicants are very brief. They do not depose to matters pertaining to exceptional circumstance, some of which may be that, prolonged detention is adverse to their defence or that their social activities, family welfare, employment or business would be in jeopardy. These are matters that are relevant to the applicants and ought to have been covered but were not”.

43.	Makail. J in Paul Guant v The State (supra) said:

“…prolonged detention alone is not a sole determinative factor. An Applicant must also established that due to the prolonged detention, he has being denied the opportunity to properly defend himself or prepare his case, or has suffered from ill health and so forth. Unless an Applicant establishes the adverse effect of prolong detention, it alone is not a strong factor for a successful bail application.” 

44.	The Applicant was arrested on 5th May 2016 and was pre-trialed on 16th August 2017 and a trial date given for his matter on the 10th and 12th June 2019 so effectively he has been in custody for a period of 1 year 10 months. 

45.	The Applicant advances prolonged detention as an exceptional circumstance albeit that the system has failed him and this begs the question, if this is what might have happened what steps has the Applicant or his counsel taken to progress his case to an early trial. There should be genuine and serious steps taken by the Applicant to secure an early trial albeit the system has failed him. Justice as they say is a double edged sword meaning it cuts both ways, so whilst the system may have failed him for reasons beyond its control it may be equally asked of him, what you have done to secure an early trial date. The days of casting the responsibility of ensuring an early trial date for a remandee solely on the court should be a thing of the past as all stakeholders in the administration of justice should diligently work together in ensuring justice is not only done but is seen to be done.

46.	 I make the following observations:

[i] I consider a period of 24 to 36 months to be an inordinate period;
[ii] I note that there is certainty in the Applicant’s case in that a trial date for the Applicant has been fixed during a process of the court known as a Pre Trial hearing;
[iii] I note that the Applicant has not shown sufficient cause as to how his prolonged detention has either prejudiced his defence or denied him the opportunity to adequately prepare his defence. 
[iv] I note the Applicant’s affidavit was very brief and did not depose to matters pertaining to exceptional circumstances.

47.	I find that the Applicant has not spent an inordinate period in pre-trial custody. I answer the second issue in the negative.

48.	I do not need to address the last three issues.

          CONCLUSION

49.	I find that the Applicant has not by way of appropriate evidence discharged the onus of establishing that his continued detention was not justified. I refuse his application and the Applicant shall be remanded until his date of trial.
____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant.