N9948

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 72 OF 2017

THE STATE

V

BERNARD SUKA

Kokopo: Suelip AJ
2020: 5th, 25th, 26th November & 1st December

CRIMINAL LAW – application to be discharged – failure to be “brought to trial” within reasonable time – indictment presented – no genuine attempt to complete prosecution case – prior section 552(2) Criminal Code application made – section 552(4) application at end of sitting – accused entitled to be discharged.

Cases Cited

Lindsay Kivia, Robert N’draku v. State (1988) [1988-89] PNGLR 107; N669
State v. Elina Moses (2015) N5892
State v. Angela Yap (2015) N5891
State v. Fe Santos (2016) N6451

Counsel

J Batil, for the State
S Pitep, for the Accused/Applicant

RULING

1st December, 2020

1.	SUELIP AJ:	On 26 November 2020, the applicant applied to be discharged pursuant to section 552(4) of the Criminal Code.  

2.	This is my ruling on that application. 

3.	The brief history of this proceeding is this. On 22 May 2017, the accused pleaded guilty to and was convicted of one count of murdering his wife, thus contravening section 300(1)(a)(b)(ii) of the Criminal Code. He was sentenced to 20 years imprisonment less the time he spent in custody. He then appealed against his conviction and sentence and on 1 May 2018, the Supreme Court upheld his appeal and ordered the matter be remitted to the National Court for retrial before another judge.

4.	The summary of facts presented by the State are these: 

That at about 11pm – 11:30pm on Wednesday, 3 August 2016, the Defendant now before the court namely Bernard Suka was at Maskikilie village, East Pomio LLG, ENB. He was at his house at that time and tied his wife Angela Chuchumor, hands to the back, to a post. He got sticks and continued to beat his wife on the head, shoulder, at the back of her neck, face, ears, and mouth. Then when witnesses heard that her cry for help was prolonging, they ran to her rescue. Two witnesses went close to them and as they tried to stop him, he resisted and told them to leave him alone otherwise he will kill her. The late Angela told them that if they leave her there, she will die and so the defendant replied ‘na bai yu dai’ meaning ‘and you will die’. He was clearly seen by other witnesses, beating the deceased up because the couple had solar lighting at their residence. After continuous beating, the defendant untied her, and forced her to stand. She fell down and was beaten again on the mouth, ears, face, and head and was stepped on the chest pressed to the ground, until she could not move anymore. There he was seen to lift her up and carry her into the house. The next day 4 August 2016, it was found out that the victim was lying in the house already dead.

5.	On 26 June 2018 after his successful appeal, another indictment was presented against the accused for the wilful murder of his wife, contravening section 299 of the Criminal Code. Since then, this matter has not been prosecuted.

6.	According to the accused, the matter was listed for trial on the following dates:

(i)	17, 20, 23 July 2018
(ii)	12 December 2019, and 
(iii)	26, 27 November 2020. 

7.	On each occasion, the accused says he was ready for trial. 

8.	In opposing the application, the State says it cannot confirm past trial dates except for 28 August 2018 when counsel herself attended Pomio National Court on circuit for this case. The other trial date known to the State is 3 December 2019 when there was no sitting.

9.	After the recent call over on 2 November 2020, this case was one of a handful of matters given priority for hearing. Then on 5 November 2020, during listings and at the request of the State to have trial towards the end of the circuit, trial was set for 26 and 27 November 2020. This was also the first occasion when the accused gave notice of his intention to make an application under section 552 of the Criminal Code for him to be discharged should the State not prosecute this case.  Then on 25 November 2020, at the pretrial review, the accused repeated his application pursuant to section 552(2) of his intention to make an application to be discharged.

10.	The State argued then that since an indictment has been presented, trial has started, and the accused can make the formal application under section 552(4) at the next sitting, not this sitting. The State then sought to vacate the trial date and list this case at the next call over in February 2021.

11.	As there was an issue as to whether the accused can now make the section 552(4) application, I considered and ruled then that sufficient notice under section 552(2) was already given on 5 and 25 November 2020. Also, on 25 November 2020, the State advised that despite advising the Officer in Charge, CID to organize and bring the witnesses from East Pomio, the witnesses are not available for trial. 

12.	On the trial date, 26 November 2020, the State’s witnesses were still not ready and so the accused made his application pursuant to section 552(4) of the Criminal Code for him to be discharged, as the circuit was nearing the end of the sittings on 27 November 2020. 

Law 

13.	Before I discuss section 552, let me mention section 37(3) of the Constitution which states: 

(3)	A person discharged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court. 

14.	Following on, the relevant parts of section 552 of the Criminal Code reads: 

		552. RIGHT TO BE TRIED. 

(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. 

(4) If– 

(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. 

(my underlining)

15.	I adopt the requirements of section 552(2) and (4) set out in State v. Fe Santos (2016) N6451 by Justice Kirriwom as follows: 

(i)	there must have been an application previously made and noted by the Court; 

(ii)	no indictment has been presented on the next hearing date;

(iii)	where indictment has been presented, no serious steps were taken to bring the case to trial. 

(iv)	the accused has always availed himself/herself in court for the start of his trial in every sitting. 

16.	I also consider what Justice Amet (as he was then) said in Lindsay Kivia, Robert N’draku v. State (1988) N669: 

… “If on the other hand an indictment has been presented earlier, either in the sittings at which the s.552(2) application has been made or earlier in the sittings next following the application, and at the end of the sittings next following the application the court is satisfied upon application that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case, the accused is entitled to be discharged. “…

Consideration

17.	Pursuant to section 37(3) of the Constitution, any accused person is to be given a fair hearing within reasonable time. On the day of the trial (26/11/20), it is exactly 2 years and 5 months since the presentation of the indictment. 

18.	In this case, both counsels were uncertain about previous trial dates. However, from the records, after presentation of the indictment, this matter was listed for trial on the following dates: 

(i)	10, 13, 14, 20 August 2018 at Pomio (4 separate trial dates vacated by the State)
(ii)	3 December 2019 (vacated) 
(iii)	2 March 2020 (vacated)
(iv)	13-17 April 2020 (vacated) 
(v)	26, 27 November 2020 (2 trial dates vacated by State) 

19.	The accused made his application pursuant to section 552(4) of the Criminal Code after his notice was given pursuant to section 552(2) was made the previous day. The reasons for his discharge are that there were vacations of previous trial dates and since this is a priority matter to be heard, the State is still not ready. Counsel further submits that there is no evidence from the State to show the availability of witnesses nor is there any evidence to show that the witnesses travel to Kokopo has been disrupted in any manner. Counsel relied on State v. Angela Yap (2015) N5891 and State v. Elina Moses (2015) N5892.

20.	On the other hand, the State says the arresting officer was informed of the trial dates but has since been ill. Further, the State says another officer was assigned to take over this matter however, no confirmation or advice of witnesses’ availability has been received. The State also submits that the witnesses are from East Pomio which is about a day or 2 days trip to Kokopo. The only evidence on file is the affidavit of Senior Constable Vanessa Niel sworn and filed 20 August 2018 which attest to the non-availability of witnesses to attend trial in Pomio in August 2018. There is no fresh or new evidence before the Court at present to say this is the same situation or there is a change in circumstances to warrant vacating the trial date.

21.	In this case, requirements (i), (iii) and (iv) set out in State v. Fe Santos (supra) applied and were satisfied.

Conclusion 

22.	The accused has satisfied section 552(2) and (4) requirements where firstly, there was an application previously made and noted by the Court, secondly, where the indictment has been presented and no serious steps were taken to bring the case to trial, and lastly, the accused has always availed himself in court for the start of his trial in every sitting. 

Order

23.	The application by the accused is granted, and the accused is discharged forthwith. 
________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor:	Lawyers for the Accused/Applicant