State v Demuda [2021] PGNC 427; N9198 (3 September 2021)

N9198

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 311 OF 2018

THE STATE

V

MOREA DEMUDA
Accused

Bomana: Sambua, AJ
2021: 12^th ,17^th & 23^rd August, 1 & 3^rd September

CRIMINAL LAW - Application to be discharged - Denial of right to be brought to trial within reasonable time - No presentment of indictment despite section 552(2) notice given - Accused always ready for trial - No genuine attempt to commence prosecution case - Application upheld and accused discharged - Criminal Code, s.552(2) and (4) and Constitution, s.37(3)

Cases Cited:
State v Fe Santos [2016] N6451
Application by Benetius Gehasa (2005) N2817
Application by John Ritsi Kutetoa (2005) N2819).
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033

Texts

Criminal Law and Practice in Papua New Guinea, 2nd Ed by Chalmers, et al..
Counsel:

Mr B Popeu, for the Accused/Applicant
Mr J Gubon, for the State

RULING

3^rd September, 2021

1. SAMBUA, AJ. This is an application by the accused pursuant to section 552(4) of the Criminal Code requesting the Court to exercise its discretion to discharge him after there was a long delay since the 20^th of July 2020 when the matter was last mentioned in which the State offered no evidence regarding a charge of willful murder. And since then, the State had failed to organize and make available its witnesses to give evidence in court against the accused/applicant in relation to the current charge of armed robbery contrary to section 386 (1) and (2) of the Criminal Code Act chapter 262.
   
2. State wanted to present an indictment against the accused/applicant when the matter was last mentioned on the 23^rd of August 2021 when the defence made the section 552(2) application however were denied the opportunity because the State had not demonstrated or shown any genuine effort that the witnesses will be arranged and will be available when the case was to be next mentioned for the trial to commence, hence this application.
   
3. Section 552 is expressed in these terms:

"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 sitting 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 sitting 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."

4. In the case of State v Fe Santos [2016] N6451, His Honour the late Kirriwom J (as he then was) stated that the requirements by law under section 552(2) and (4) are that:

a) There must have been an application previously made and noted by the Court.

b) No indictment has been presented on the next hearing date.

c) Where indictment has been presented, no serious steps were taken to bring the case to trial.

d) The accused has always availed himself/herself in court for the start of his trial in every sitting.
5. This application was made orally and though not supported by an affidavit but counsel Mr. Popeu for the accused/applicant pinpointed the critical dates from the 20^th of July last year and the 12^th of August 2021 which is one year and a month since the State dealt with a charge of wilful murder where it offered no evidence. This was confirmed with the court’s file notations. The same enthusiasm should have been taken by the State to dispose off the remaining charge of armed robbery as it did with the wilful murder charge.

6. The State did not call evidence or file any affidavit to show or demonstrate that they had made genuine effort or serious steps to arrange and make available its witnesses to give evidence in court.

7. The important dates of the case are:

i. Date of the offence – 5^th June 2015

ii. Date of Arrest/Information – 19^th June 2017

iii. Committal Date – 12^th March 2018

iv. First mention in National Court – 3^rd April 2018

v. State file PTR statement - 18^th June 2018

vi. Case set for trial- 14^th May 2020

vii. Hearing Date -20^th July 2020- State offered No Evidence ( wilful murder) ( Non-availability of State witnesses)

viii. Case mentioned before me – 12^th August 2021 – Accused/ Applicant appeared from custody and advised that they are ready for trial. State advised court of non-availability of witness. Adjourned to 17^th August for State to inform court on readiness of State with its witness for trial

ix. Next mention date – 17^th August 2021- State not ready with witnesses. Defence indicated making Section 552(2) Application.

x. Section 552(2) Application – 23^rd August 2021- State no witnesses

xi. Section 552(4) Application – 1^st September 2021- State no witnesses

8. The Constitution of Papua New Guinea state that all persons in Papua New Guinea are entitled under Section 37(1) of the Constitution to the full protection of the law and that right must be fully available, especially to persons charged with offences. Under Section 37(3) of the Constitution a person charged with an offence must be afforded:

· a fair hearing;

· within a reasonable time;

· by an independent and impartial court (see Application by Benetius Gehasa (2005) N2817, & Application by John Ritsi Kutetoa (2005) N2819).

9. The “reasonable time” requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution’s case must be completed within a reasonable time (see Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).

10. What is a “reasonable time” will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it.

11. In this case there was an apparent delay of three years since the case was mentioned in the National Court on 3^rd April 2018 and one year and two months since the State dealt with the wilful murder charge by offering no evidence against the accused/applicant.

12. In this case the State produced no evidence either opposing the application or produced facts that would exonerate the State from being wholly responsible for the delay in the prosecution of the case. Counsel simply admitted the State's inability to start the trial as the key witness was in Losuia in Kirriwina Island in Milne Bay Province.

13. On the other hand, the accused had availed himself at every call-over and on the days fixed for trial since he was committed to stand trial. The court file notations also show consistent pattern of his attendances since his committal which is clear evidence that he was always available for his trial but was denied of his right to trial within reasonable time through the prosecution’s delay.

14. I am satisfied on the evidence presented that this is an appropriate case for section 552(4) application. From the records and the chronology of events the accused has been waiting to be tried since 12^th of March 2018 after being committed to stand trial in the National Court which is about three years and five months and about one year and two months after the State had offered no evidence against him on a charge of wilful murder. No genuine effort has been made to bring him to trial, not even by presentation of indictment. Hence his rights to be brought to trial within reasonable time as guaranteed under s.37(3) have been denied or breached and he is entitled to be discharged.

15. This application under section 552(4) of the Criminal Code Act is upheld; the accused is discharged in that his right to a fair trial within a reasonable time has been denied and breached.

Accused is to be discharged from CS custody forthwith.

________________________________________________________________
Public Solicitor : Lawyer for the Applicant
Public Prosecutor : Lawyer for the Respondent