State v Kaki [2025] PGNC 338; N11496 (18 September 2025)

N11496

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1338 OF 2018

THE STATE

V

JUDSION KAKI

WABAG: ELLIS J
18 SEPTEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Accused charged with attempted murder – held on remand for almost seven years – non-compliance with three orders for provision of medical report – nolle prosequi presented – accused discharged – arrangements made to identify all accused for whom a medical report should be prepared – orders for the provision of those reports to be considered.

Facts
Accused committed for trial on 6 November 2018. No medical report provided despite orders made on 7 August 2024, 4 October 2024 and 22 July 2025. Defence unable to obtain instructions. State presented nolle prosequi. Accused discharged.

Held
1 Accused discharged.
2 Orders made to identify all accused awaiting trial in Wabag for whom such a report is required so that appropriate orders can be made.

Cases cited
No cases are cited.

Counse
P. Tengdui, for the State
L. Toke, for the defendant

REASONS

1. ELLIS J: This case relates to events said to have occurred on 21 June 2018. The accused was committed to stand trial on 6 November 2018. He was remanded in custody which means he has spent almost seven years in gaol, awaiting his trial.

2 It must be noted that s 37(14) of the Constitution says that “In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial. A detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration”.

3 So, in contrast to the goal of having the trial of this accused commenced within four months, almost seven years have passed, and his trial has still not been conducted.

4 More than a year ago, on 7 August 2024, the now deceased Justice Lindsay made an order that a medical report be obtained from the psychiatric ward of Mount Hagen General Hospital within 30 days. That report should have been provided by 6 September 2025. No such report was provided.

5 On 4 October 2024, the same judge made a further order for that report to be obtained. There was no compliance with that second order.

6 On 22 July 2025, another judge made an order for a mental health medical report to be provided within 30 days. That did not occur with the result that there has been a failure to comply with three orders of the National Court.

7 After adjourning so that the prosecutor, Mr Tengdui, could contact Mount Hagen hospital, he informed the Court that there was no resident doctor able to provide the requested report, only nursing officers, and that a request had to be sent to Port Moresby.

8 It therefore appears that the only way for there to be an assessment of whether this accused is fit to stand trial is for either (1) him to be taken from Mount Hagen to Port Moresby, or (2) a doctor to travel from Port Moresby to Mount Hagen.

9 However, even if that is done and this accused is found fit to stand trial, if he were to be found guilty then the sentence that would be imposed is such that this accused would be likely to spend little or no more time in prison. It is relevant to note that, while a person who is sentenced by a court to a term of imprisonment may be entitled to a reduction for good behaviour, there is no such reduction for time spent on remand.

10 The work of the National Court is not confined to hearing trials and, if an accused is found guilty, passing sentence. The work of the National Court includes (1) achieving compliance with the Constitution, (2) seeking compliance with orders of the Court, and (3) respecting the rights of all relevant people, including the accused and the victim.

11 Both the Declaration of Loyalty and the Judicial Oath require all judges to “uphold the Constitution”. Section 37(17) of the Constitution requires that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

12 Waiting for almost seven years for a trial and waiting more than a year for a medical report to be obtained in response to a court order fails that requirement.

13 The application of that provision to this accused would normally require that this Court (1) urgently ascertain whether he is fit to stand trial, (2) make appropriate orders for treatment if the accused is not fit to stand trial, and (3) conduct a trial promptly if he/she is.

14 After obtaining explanations from the attending Correctional Services officer and from Mr Tengdui, who appears for the State, the Court adjourned to 1 o’clock so that the State could consider its position. When the Court resumed, Mr Tengdui indicated that the State no longer intended to prosecute this accused, which this Court considers to be a reasonable and sensible decision.

15 The result is that this accused will be released from custody. It is noted that, prior to his arrest, he lived near this courthouse, with his parents. Arrangements will be made for him to be taken home from the Court by the Police which will finalise these proceedings.

16 However, the remaining concern is the inability to obtain an assessment of the mental health of accused persons whose case is pending in the National Court in Wabag. To address that issue, the Registry of the National Court in Wabag will need to promptly prepare a list of any other cases in which the fitness of the accused to stand trial is in issue. The Provincial Gaol Commander in Baisu plus the relevant officers in the Public Prosecutor’s Office and the Public Solicitor’s Office in Wabag should put forward, within seven days, the name of any accused person who they believe should be added to that list. It is reasonable to expect that list will warrant the attendance of a suitably qualified person, from Port Moresby if necessary, to speak with each person on that list, presumably at Mount Hagen General Hospital, and prepare a report so that the fitness to plead of each accused person on that list can be assessed by the National Court.

17 In short, the quickest and cheapest way to respect the rights of accused persons who may have a medical issue that may make them unfit to stand trial is for those people to be identified and assessed as soon as possible so that either (1) they receive the medical treatment they need, or (2) their trial is conducted without avoidable delay.

18 For those reasons, the orders of the Court will be as set out below.

1 The accused, Judsion Kaki, is discharged.
2 A Notice of Discharge is to be issued forthwith.

3. By Monday 22 September 2025 the Assistant Registrar of the National Court in Wabag is to cause a list to be prepared of those accused being held on remand in the Correctional Facility at Baisu who need to have a medical report prepared to determine whether they are fit to stand trial and provide a copy of that list, by email, to:

(1) the Provincial Gaol Commander of that Correctional Facility,

(2) the representative of the Public Prosecutor based in Wabag, and

(3) the representative of the Public Solicitor based in Wabag.

4. By Friday 26 September 2025 those three persons are to suggest, by email to the Assistant Registrar of the National Court in Wabag, the name of any accused person, held on remand in the Correctional Facility at Baisu who is awaiting trial in the National Court in Wabag, who they consider should be added to that list.
5. Upon compliance with those two orders, the Court will consider what orders are necessary for the required medical reports to be obtained.
6. The Registry is to provide a copy of these reasons to the Registry of the National Court in Mount Hagen, by email, so that a co-ordinated approach to this issue may be made.
   

Ordered Accordingly.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor