State v Heteya [2024] PGNC 48; N10695 (8 March 2024)

N10695

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1454 OF 2021

THE STATE

V

SAMSON TIGIBI HETEYA

Waigani: Miviri J
2024: 21^st & 23^rd February 5^th & 8^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Attempted Murder S304 – Trial Date 21/02/24 – No Witnesses – Affidavit by State Prosecutor – Attempts to Get Witness Unsuccessful 2023 – Adjournment to Friday Police Evidence – Section 552 (2) Application to be Brought to his Trial – Committal Dated 02 12 21 – 3 years Custody on Remand – S37 Constitution – Balance – Judicial Discretion – Court of record – No application on record – Application Refused.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Attempted Murder S304 – Trial Date 21/02/24 – No Witnesses – Affidavit Metropolitan Superintendent, Officer in Charge Homicide, Arresting Officer – Orders of Court to Provide –Two Days to Locate Witnesses Not enough time – Section 552 (4) Effect & Implication – Matter Adjourned Further allocation of Trial Date – No Witnesses Accused Liberty to Make application afresh.

Facts
Accused committed 2^nd December 2021 on wilful Murder and Attempted Murder. Trial date set 21^st February 2024 no witnesses adjournment sought by State. Section 552 (2) application made.
Section 552 (4) application made commencement March 24 sittings of Court for discharge of Accused as not brought to trial. Three years on remand.

Held
Serious allegation of Wilful Murder & Attempted Murder.
Opportunity to locate witnesses Leave granted.
Balance did not warrant.
No formal application on record of court both applications.
Application refused Section 552 (2) (4).
Leave to locate witnesses.
Failure opportune to make application anew.

Cases Cited:
Kivia v State [1988-89] PNGLR 107
PNG Power Ltd v Registrar of the National Court [2013] PGSC 65; SC1335
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Papua New Guinea Harbours Board v Kora [2005] PGNC 122; N2834
Byrne, Regina v [1971-72] PNGLR 1
Main, Regina v [1971-72] PNGLR 289
In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545

Counsel:
S. Patatie, for the State
E. Elison, for the Defendant

RULING ON APPLICATION TO DISCHARGE

08^th March 2024

1. MIVIRI J: This is the ruling on the application made by the accused Samson Tigibi Heteya of Kuaralai village, Koroba Kopiago Hela Province pursuant to section 552 (4) of the Criminal Code Act.
   
2. He stands committed as of the 02^nd December 2021 on two charges, Firstly of Wilful Murder contrary to Section 299 (1) of the Criminal Code Act, and secondly of attempted murder also pursuant to section 304 of the Criminal Code Act. It is over an allegation of 2^nd January 2020 at the Gerehu Mart Shop National Capital District where the applicant is alleged to have wilfully and unlawfully murdered one Hasan Ridoy a Bangladesh. Further the charge is that he on the 02^nd Day of January 2020 that same place and time attempted unlawfully to kill another person one Joesph Moka.
   
3. The brief facts are that he is alleged to have stolen a pair of shoes and was taken by the security of that shop into the office where the deceased was. There the applicant is alleged to have taken out a knife and stabbed him in the right chest killing him instantly. And the security attempted to stop the applicant but was stabbed in the head. Who attempted to escape outside but was caught outside and appears after process by police.
   
4. Primae facie this is a very serious allegation, and the rights of the victims must be protected, so too that of the Accused applicant. He must be brought to his trial. It is therefore a delicate balance that must be judicially exercised. There is no formal application on file in the court filed detailing the basis of the application made for section 552 (2) of the Code. No affidavit material is sighted as to the basis for the grant of that motion. Including the notice of motion itself in accordance with the Criminal Practice Rules Order 1 Rule 7 (1) (b) arising out of section 552 (2) on record noted and ruled. That is not the case here. The details of the oral transcript on record are not brought out by either affidavit material properly put before the Court. It is a very serious matter given what is set out in the charges against the applicant. Including how long the accused has been on remand. He must be tried and processed in law, just as he has been incarcerated and remanded awaiting. The law will not be abused, nor would justice be denied either the deceased the victim, or the accused applicant. The balance is delicate and must be carefully exercised. In this regard the records of the Court will speak. Because Court, the National Court of Justice is a court of record. And its record will be the basis to further any action in law as is the present. This is on He who alleges the applicant. He must discharge that on the balance of probabilities more than the civil balance of probabilities, but not beyond the criminal balance.
   
5. For section 552 (4) to be enforced it must lead from the proceedings in section 552 (2) of the code. Yes, the applicant has been in custody since the 02^nd December 2021. He is in custody by a process of law and to get him out is also by a process of law. Section 552 is to be evident by the record on Court not without. It means that there is compliance of the rules of court necessary to give heed to the process evidencing compliance of the law. There are pretrial review forms filed in accordance with the Criminal Practise Rules Order 6 by both parties, State of the 16^th August 2022, and Defence of the 03^rd August 2022. In similar fashion there is no notice of motion filed pursuant to move under section 552 (2) or (4) of the Code. What has been done are verbal applications verbatim. These are not before me by affidavit to that effect collected from the transcript of the proceedings earlier conducted deposed to in an affidavit by Counsel.
   
6. In my view this will not materialize the application that is sought by the applicant. It cannot be ignored that the allegation against him is as serious as wilful murder and attempted murder, both carrying the maximum penalty of life imprisonment each. I am mindful of the affidavit of Nathan Pare of the 23^rd February 2024 filed as the attempts by State to locate its witnesses and to bring the matter to trial. He is depended as Prosecuting counsel from the office of the Public Prosecutor on the police to locate bring the witnesses so that the matter is duly prosecuted. By this affidavit it is clear he has done all within his discretion and prerogative, but the matter now rests with the police to secure.
   
7. Again, he has sworn a second affidavit dated the 21^st February 2024 showing that the arresting officer Mark Moikia has failed to bring the witnesses since numerous times in 2022. And “When I called and sent him messages to bring the witness he would not respond to me. As such I would normally call his colleagues namely the officer In Charge-Homicide Sergeant Nei Pige or Constable Celcilia Dangi or Constable Ronald Sakari to inform him to bring the witnesses. They would inform him, but he failed to bring in the witnesses, so I had to go back to their office to inform him to bring in the witnesses.” He details how he has followed up with annexure “A” note to the Officer in Charge Homicide Sergeant Nei Pige. When the matter was listed for trial of the 21^st February 2024, he called Officer In Charge Homicide and informed him that he required the witnesses to prepare for the trial. He was informed that the witnesses could not be located. And he followed up in person at the Homicide office to see the Arresting Officer to no who came in late and advised that the witnesses could not be located. Annexure “B” is letter confirming the requirement to see named witnesses.
   
8. Because of the seriousness of the matter particulars set out above the Court on its own initiative pursuant to its inherent jurisdiction ordered the presence in Court of the Acting Superintendent Metropolitan Command Silva Sika who was tasked to get the witnesses. The tasking was also placed by directions of court upon the officer in Charge of Homicide Sergeant Nei Pige, and the arresting officer Mark Moikia. All were tasked to report back on Thursday 07^th March 2024, with affidavits of what they have done to secure the witnesses. All reported back on Thursday 07^th March 2024 with affidavits each filed explaining that all three witnesses required could not be located as all have changed location and address. No forwarding address has been secured. All three deponents are common that more time is needed to secure the witnesses.
   
9. No rebuttal affidavit or other material has been filed by the defence for the accused applicant. It begs whether this application is serious and ought to be granted bearing in mind the observation made out above which is not strange as coming before this Court: Kivia v State [1988-89] PNGLR 107. It was held that the application is by proper material and specially by originating summons. Here it is clear that a committal has taken place, and the accused is committed for wilful murder and attempted murder. By Order 6 Division 2 Rule 7 states “An application under s 552 of the Code to be brought to trial may be made orally or in Form 28. The details of that form are in the following: “The accused applies under s 552(2) of the Criminal Code to be brought to trial and requests that this application be accepted by the Court.

The Court is informed that:
The accused was committed for trial on......................(date)
The accused has/not (strike out what is inapplicable) been in custody in connexion with this matter during the following period(s): .........................(insert dates, if applicable).
Date: ..........................................
...................................................
DEFENSE COUNSEL

10. It is the record which is absent here from the application of the applicant. He is asking the court to research its own transcripts. That is descending into the arena for a cause by the parties which is not the territory of the Courts. The application for section 552 (2) was orally made but there is no record of the order that is entered by the Court. Which is permissive by the rule, but there is no record of the order made from that application. It is relevant because it is upon that order that section 552 (4) follows not without. In my view the records of the Court do not depict this order granted in favour of the applicant. And varying a court order is not a light matter there must be proper material not without: PNG Power Ltd v Registrar of the National Court [2013] PGSC 65; SC1335 (7 August 2013). It relates to events that were based on evidence adduced to come out and will only go with evidence of like credence. As in the case of adjournments proper material must be placed to sway variation of the trial date set, or the order initial made for the trial or proceedings set to proceed: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). In my view that is good law and applies here in respect of the application to vary the orders of this Court initially made. It is a criminal proceeding, but it is good law applicable to ensure Justice is dispensed all fair and indeed. It must be proper materials according to law to seek variation, not without, Papua New Guinea Harbours Board v Kora [2005] PGNC 122; N2834 (24 February 2005). There is no record of the orders that were made laying out the applicants cause within section 552 (2) and hence warranted to move from that to this section 552 (4).
    
11. Given that it does not warrant grant of the application that the applicant makes here. He alone does not have rights in law under the Constitution. He invokes section 37 Protection of the Law and before that is section 35 Right to life which is also a fundamental right. The deceased and the victim have those rights too like the applicant. Who has no affidavit material in support of the cause that he seeks. In my view I am not minded granting the application for the reasons I set out above. He is at liberty to make that application as he discretion. In the present the aggregate is that this is an application that cannot be granted on the material because there is none. I am minded going as I do because of the affidavit material that I have set out of the police personal above. I will now fix the matter for trial upon hearing counsel. That would give the police opportunity to bring the witnesses. If they fail the applicant can make a fresh application pursuant to section 552 (2) to be brought to his trial. If that does not happen, he can make the application under section 552 (4) to be discharged at the next sittings of the Court if he is not brought to trial then. That in my view is the procedure set out Byrne, Regina v [1971-72] PNGLR 1. Which is firmed also Main, Regina v [1971-72] PNGLR 289.
    
12. In this regard I remind the police of the Constitutional dictate of In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014) and Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998), that the Acting Superintendent Metropolitan Command Silva Sika, Officer In Charge of Homicide Sergeant Nei Pige, and arresting Officer Mark Moikia maybe considered for processes prescribed by these laws to curb that Police discharge their duties lawfully to the Court so that there is no recourse to this extreme. That is open and will be exercised if there is neglect and failure demonstrated beyond good practice and prudence.
    
13. Turning to the material relied by the applicant here, in my view I hold and determine it is not enough, nor has the balance being tilted in his favour to grant. I refuse the application and direct that Counsel liaises to confirm a date for trial in the matter. The applicant is remanded further.
    

Orders Accordingly.

__________________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Defendant