State v Kutapao [2022] PGNC 137; N9594 (7 April 2022)

N9594

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 662 OF 2020

THE STATE

V

OKSY KUTAPAO
Goroka: Miviri J
2022: 07^th April

CRIMINAL LAW – Break Enter & Stealing - Section 398 (a) (1) CCA – Trial – Adjournment Initially - No appearance of witnesses – No Appearance of Witnesses after Adjournment – Witnesses Notified by Police – Police At Village Witnesses Pick up – Reluctance to Come – Whether Summons appropriate Given – Section 37 (3) Constitution – Witnesses Initiating Criminal Allegations – Reluctance to come – Section 37 (3) Fair Hearing within Reasonable Time – Affidavit relied –Balance Not discharged for Adjournment– Application Refused – Denial of Section 37 (3) Constitution – Defendant Discharged Pursuant – Released from Custody forthwith.

Cases Cited:

Brown v The State [1993] PNGLR 430
Painke, The State v [1976] PNGLR 210
State v Dobuma [2002] PGNC 63; N2292

Counsel:

K. Umpake, for State
G. Apa, for Defendant

RULING

07^th April, 2022

1. MIVIRI, J: This is the ruling on an application verbatim by the State without filing of formal documents pursuant to Division 3 of the Criminal Practise Rules 1987 for adjournment of the trial today.
   
2. Reliance is placed on an affidavit filed of the 07^th April 2022 deposed to by deponent Senior Constable Terry Hobio attached with the Henganofi Rural Police Station Eastern Highlands. He was advised by Policewoman First Constable Melanie Pokanis on the 04^th April 2022 at 15.39pm over the phone that OIC of CID could not get him on the phone. His tasking was to pick up three National Court witnesses regarding a break enter and stealing at Kumuina village Henganofi Eastern Highlands Province. He was spoken to on the phone by OIC CID one Chief Sergeant David Lingen shortly thereafter to pick up the witnesses named in the matter.
   
3. On the morning of 05^th April 2022 at about 7.30am with the Police Driver Senior Constable Ben Glengu they drove to Kumuina village. There they organized some village boys as he is also from that village. He organized some village boys to go to the houses of the witnesses and to inform them to come to the Police vehicle for them to be taken to Goroka. After two (2) hours of waiting the witnesses did not show up. I returned to Henganofi Police Station. The next morning 06^th April 2022 he went again to the village. There the relatives of the witnesses showed up and raised concern about their safety issues after the completion of the case and then when the court is over as the defendant is renown for the bad habits in the village.
   
4. He also informed the arresting officer who was suspended from duties. And the two attempts he made to bring them was unsuccessful.
   
5. In the light of this evidence the State has applied for an adjournment to the next circuit and for summons to be issued for the witnesses to be secured for trial.
   
6. Defence has objected relying on Section 37 (3) that the State has not brought the defendant to his trial within a reasonable time. And that the adjournment granted on the 05^th April 2022 when the trial was initially set down could not eventuate because there was no appearance of the State witnesses. And the adjournment was granted the State to bring the witnesses today 07^th April 2022. They have failed and the committal is of the 25^th January 2021. That pursuant to section 552 right to trial of the Criminal Code, the State has not brought him to trial as set for the 05^th April 2022. The adjournment has not materialized.
   
7. This application is made for the first time. There is no indictment preferred against the defendant now. But the application is made for the discharge of the defendant pursuant to section 37 (3) of the Constitution that he has not been brought to his trial within a reasonable time. And grant of the application would deny section 37 (3) of the Constitution in his case given his facts here. The words of that section read that unless the charges are withdrawn the accused shall be afforded a fair hearing within a reasonable time by an independent and impartial court.
   
8. The material relied on by the State do not evidence that the witnesses have not been notified of the trial date. There is in fact a Police vehicle with the deponent Senior Constable Terry Hobio attached with the Henganofi Rural Police at Kumuina village to pick up the witnesses at their doorstep. They have opted twice not to come of their own volition. It is not the fault of the Police and the State that they are not before the court. They instigated this matter upon complaint to the Police as of the 24^th June 2020 when the information was laid against the accused over an allegation of the 04^th September 2020. That is now 2 year since that allegation was laid out in a formal complaint. The defendant has been remanded in custody up to the date of this application for a period of 1 year 3 months with the trial date given of the 05^th April 2022 vacated because of the non-appearance of witnesses.
   
9. The protection of the law accorded by section 37 is equally applicable to the witnesses as to the accused and there is no reason shown to discharge the balance on the material relied by the State set out above that there is need demonstrated to vacate trial date today. The witnesses have on their own refused to come despite provision of the transport by the state through the police to bring them for trial today. They instigated this matter. It is dependent for its survival on the approach that they take. If this is the attitude that the court is to be put through considering all other cases before the court, their rights do not supersede the defendant’s nor of the other cases pending before this court.
   
10. In Painke, The State v [1976] PNGLR 210, that was a period of some 14 to 16 months since the alleged offence was committed, 11 months since the accused was committed for trial and six months since the case first came before the Court for trial, during which time there had been three adjournments, two of which were at the request of the State.” Here the committal was on the 25^th January 2021 over an allegation that arose on the 04^th September 2020. That would be now 1 year almost 3 months since and the accused has been in custody. Here is the second adjournment since trial was allocated on the 05^th April 2022. To adjourn a second time would be in order considering, but it would come down to the evidence which is in the hands of the witnesses who have seen fit of their own accord not to come forward. They sought out the hand of Justice and the rule of law. But have not taken it upon themselves to see that out to the end.
    
11. For the accused he has been remanded at their convenience by the evidence they laid which has committed him to stand trial. On the eve of trial despite notice and transport to trial they have chosen not to come. Should the trial be adjourned further given these facts? Do they warrant the exercise of the discretion of the court bearing in mind that section 37 (3) is equally applicable to the witnesses because it is an allegation that they brought to seek out the protection of the law?
    
12. The State has made a genuine attempt to bring the witnesses for trial by the evidence here if viewed in the light of State v Dobuma [2002] PGNC 63; N2292 (17 October 2002) but that is not fortified by the reluctance of the witnesses of their own volition to back up the evidence they have supplied police in statements that have warranted committal to follow that up here and now. It is not for the State to force out that evidence by an application for summons for compelling them to come and to give evidence. The presentation of the indictment Brown v The State [1993] PNGLR 430 will not cure that fact of the reluctance of the witnesses to provide and to give that evidence in court.
    
13. It is clear that this is a case where the balance has not been tilted in favour of the State that an adjournment be granted as applied materially and fundamentally because the reluctance of the witnesses will not be cured by a further adjournment nor of an application granted for summons to appear to testify. The ambit of section 37 (3) of the Constitution will be breached and I hold that to be the case here given. Consequently, the application by the Defence for the accused to be brought to trial within a reasonable time is made out by the evidence set out above. It is not a case likened to Brown’s (supra). The application to vacate trial date is not made out and is refused.
    
14. The defence has discharged that this is an appropriate given what is set out above for the exercise of the discretion of the Court in accordance with section 37 (3) which is reinforced by section 552 of the Criminal Code Act. The accused has not been brought to his trial. Even then the witnesses have been reluctant to come. Their reluctance will not constitute basis to adjourn the matter any further as section 37 (3) is breached given. Consequently, the Accused is discharged of the matter forthwith committed as of the 25^th January 2021 for breaking entering and stealing pursuant to section 398 (1) (a) of the Criminal Code. He will be released from custody forthwith if he has no other reason in law to be held within.
    
15. The formal orders of the Court are:
    
    • (i) The application for adjournment is refused.
    • (ii) Defendant has discharged the required balance pursuant to section 37 (3) of the Constitution and section 552 of the Criminal Code.
    • (iii) He is discharged forthwith from any obligation in law relating to committal of 25^th January 2021 forthwith.
    • (iv) He is discharged from custody forthwith.
      

Orders Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant