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State v Yasim [1983] PGNC 51; [1983] PNGLR 111; N415 (16 April 1983)

N415

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

FRANK TASO YASIM

Wabag
Kapi DCJ

16 April 1983

CRIMINAL LAW - Practice and procedure - Application for discharge - Failure "to be brought to his trial" - Failure to present indictment - Entitlement to discharge - Criminal Code, s. 552(2) and s. 552(4).

The Criminal Code, s. 552(2), provides that a person who has been committed for trial may make application at any sittings of the National Court "to be brought to his trial". Section 552(4) provides that where an application is made under s. 552(2) and at the end of the sittings next following the application no indictment has been presented against him, he is "entitled to be discharged".

Held:

(1) The words "to be brought to his trial" in s. 552(2), mean that the accused is placed in a position where he is able to be tried, by presentation of an indictment against him and the preparedness of the State to prosecute the case to its completion.

R. v. Byrne [1971-72] P.N.G.L.R. 1 at 5, and

R. v. Martin Main [1971-72] P.N.G.L.R. 289 adopted and applied;

(2) The words "entitled to be discharged" in s. 552(4) import a right in the accused to be discharged if the circumstances of the provision are proved and the accused wishes to avail himself of the right.

R. v. Byrne [1971-72] P.N.G.L.R. 1 at 5 adopted and applied.

Application

This was an application by an accused made pursuant to s. 552(4)(b)(i) of the Criminal Code to be discharged on the ground that no indictment had been presented against him.

Counsel

F. Damen, for the State.
S. Alonk, for the accused.

16 April 1983

KAPI DCJ: On the last day of the criminal sittings in Wabag, counsel for the accused made an application to discharge the accused under s. 552(4)(b)(i) of the Criminal Code. After hearing arguments from both counsel I discharged the accused and indicated that I would provide my reasons at a later date. This I now do.

The accused was committed to be tried in the National Court on 14 May 1982. He has been out on bail since the committal. Since the date of committal, there is no suggestion that the accused has failed to answer to his bail. In fact, on the first day of these sittings, this accused made his appearance in court to answer his bail. At the time of his appearance, his counsel indicated that if the matter is not brought to trial an application to discharge him from this charge would be made at the end of the sittings.

On the last day of the sittings, counsel for the State had not yet presented an indictment against the accused.

On 21 February 1983, the accused made an application for his case to be brought to trial. This application was made under s. 552(2) of the Code which is in the following terms:

"552. Right to be tried

(1) ...

(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."

The meaning of the words "brought to trial" have been judicially considered. In R. v. Byrne [1971-72] P.N.G.L.R. 1 at 5, Kelly J said the following:

"To my mind the key words are ‘brought to trial’. In this context I think these words mean placed in a position where he is able to be tried, that is by the presentation of an indictment against him and with the Crown either ready to proceed by having its witnesses to prosecute its case against him or by the Crown Prosecutor informing the Court that the Crown will not further proceed upon the indictment in which event the accused is discharged under s. 563."

This case was followed in R. v. Martin Main [1971-72] P.N.G.L.R. 289. These two cases deal with the old s. 590 of the Code which is worded slightly differently from our present provisions. With respect I agree with their Honours interpretation of the words "brought to trial". I adopt the same meaning for the words "to be brought to his trial" in our present provision. A person is brought to trial by:

(a) presenting an indictment against him; and

(b) prosecuting the case to its completion.

This meaning is supported by s. 552(4) which is in the following terms:

"552 ....

(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."

It is to be noted that this subsection sets out two grounds upon which a person is entitled to be discharged. In the instant case, the accused relies on the first ground i.e. that no indictment has been presented against him.

There was some argument as to whether or not the Court has a discretion to discharge the accused. In this regard I adopt the words of Kelly J in R. v. Byrne (supra) at 5:

"The section does not say that the accused shall be discharged if all the other provisions of the section are met, which would compel the Court to discharge him whether the accused wanted it or not, nor does it say that he may be discharged in those events which would give the Court a discretion. The use of the word "entitled" seems to me to imply that it is a right which the accused has in these circumstances if he chooses to avail himself of it."

That is to say that if the circumstances in the provision are proved he should be discharged if he chooses to claim the entitlement. It seems to me that where an application under s. 552(2) is made by an accused the minimum action the State can take is simply to present an indictment against the accused by the last day of the sittings following the application. By taking this action the State brings the accused person to trial. This does not mean or follow that the State will complete the case at the time of the presentation of the indictment. However, the Court has a discretion to stand the matter over or adjourn it and direct that a date be given for the trial of the matter in the next sittings. In most cases the Court would be disposed to grant this as it would not have the time to complete the case when the application is made at the end of the sittings. See R. v. Martin Main (supra).

In the instant case the State has not presented an indictment despite the indications by the accused at the beginning of the sittings that he would make this application at the end of the sittings. As an indictment has not been presented against the accused, he is entitled to be discharged.

Discharged accordingly.

________________________________

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.
Lawyer for the accused: A. Amet, Public Solicitor.