State v Santos [2016] PGNC 256; N6451 (21 September 2016)

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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)

PRACTICE AND PROCEDURE - Uniformity in practice - Guidelines - Precedent setting out simple procedure of filing appropriate documents pertinent to bringing applications under s.552(2) & (4) of the Criminal Code by both Defence and Prosecution - Notice of Application - Affidavit in Support of Application by the accused - Affidavit in Response by the State - Hearing and determination.

Cases cited:
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033
Bomai Wati v David Gavera (2013) N5363
Herman Joseph Leahy v Pondros Kaluwin [2014] N5813;
McFarlane v DPP [2008] IESC 7
R v Main [1971] PNGLR 290
Re Ricky Yanepa [1988-89] PNGLR 166,
Roger Bai Nimbituo v The State [2015] N6158.

The State v Alphonse Wohuinangu [1991] N966
The State v Angela Yap [2015] N5891
The State v Elinda Moses [2015] N5892
The State v Michael Dobuma [2002] N2292
The State v Peter Painke [1976] PNGLR 210
The State v Peter Painke (No.2) [1977] PNGLR 141
The State v Wambi Nondi (No.2) [2009] N3601
The State v Yasim [1983] PNGLR 111

(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.

(a) where the application is made at a sittings 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 sittings 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.

(b) at the end of the sittings of the National Court at his place of trial next following the application—

(ii) the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

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

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.

4. This application was made orally and supported by information that is loosely scattered in the court file that I have to sift through to find as is normally the case. But in this case I requested counsel to file an affidavit providing the court with factual background information to, as a step towards establishing a more regimented and formalised procedure, follow in the future by an applicant who wishes to pursue similar application. I discuss this towards the end of this judgment.

6. On 23^rd June, 2016 I, Darrell Sakumai of M.S. WAGAMBIE LAWYERS at the Wewak Office, say on oath that:-

1. I am a Lawyer in the employ of M. S. Wagambie Lawyers based at the Wewak office and as such have the carriage of this matter.

2. Upon the perusal of the court file relating to the accused I ascertained the following:-

a. On 9^th April, 2013 I expressed my opinion on the evidence of the State against the accused as insufficient to establish and prove the charge of bribery and advised my colleague, William Tekwie of the same Law Firm during his appearances for the accused in the committal proceedings in the District Court at Wewak.

b. William Tekwie obtained further instructions from the accused and represented her in the committal proceedings before the Wewak District Court until she was committed to stand trial in the National Court on 29 October, 2013.

c. I took carriage of the matter in November, 2013 and the Defence Pre-Trial Review was filed on 6^th May, 2015. After the Pre-Trial Statements by both the State and Defence it was made known by Paul Tusais to the defence that the only relevant and key witness for the State is in Port Moresby. All attempts to set the matter down for trial were opposed by the State on the basis that it was not one of the oldest matter on the National Court list for Wewak. I continued to have carriage of the matter until an application pursuant to section 552(2) of the Criminal Code was made to bring the accused to trial and noted by the Court on 15^th February, 2016. This application was made after I was informed by the State through State Prosecutor Paul Tusais that the key witness for the State is not in Papua New Guinea and that her location is unknown.

d. The matter was set for trial in the month of March, 2016 but could not be reached due to disruptions to the National Court sittings in Wewak. The application under section 552 (2) was noted for the April sittings. On 4^th April, 2016 the trial of the matter was confirmed for the 15^th and 16^th June, 2016. These trial dates were again confirmed in the May sittings of the National Court at Wewak. On 14^th June, 2016. Both the State and Defence set the matter for 23^rd June, 2016 so it would be disposed of as a short matter.

4. About 31 months and 4 weeks since her committal to the National Court and about 4 months since she asked the National Court that she be brought to trial.

5. All the information deposed to herein are to the best of my knowledge and belief true.

7. The facts deposed in the affidavit are material to and relevant for this application, only they could have come out clearer on the aspects of unnecessary delay, inaction and lack of commitment to bring the case to finality. I have nevertheless set out the full text of Darrel Sakumai's affidavit because as a matter of precedent or form to adopt by lawyers, this heading most adequately meets the requirements for document identification which is different from initiating a new cause of action and ending up with too many duplicate files in the same matter. After all, this is an application within a live case or proceeding similar to a motion in a civil case. In the event that the proceeding is terminated by the application, the documents and decision and even file notations remain intact in the one place for future reference.

8. In fact the requirement for properly sworn affidavit setting out the relevant facts has a legal impetus to it in that when an application is made under section 552(4) where the accused is asking to be discharged, he is really complaining about the delay in being brought to trial which has now culminated in this application. And the law is that the applicant carries the onus of convincing the court that there has been delay. This was decided in The State v Alphonse Wohuinangu [1991] N966 (per Brown J):

"(1) The onus of showing that the prosecution has not made a genuine attempt to complete its case is on the applicant. Such onus is to be equated with the civil standard."

9. In The State v Wohinangu (supra) the court dismissed the application for discharge of the accused because the delay was not entirely the fault of the prosecution. And I quote this passage from the text Criminal Law and Practice in Papua New Guinea 2nd Edn at page 468 the last paragraph in the commentary under section 552:

"There is no automatic right of the accused to have the proceedings dismissed for delay alone. It is still for the trial judge to consider the particular reasons for the prosecution's failure to embark on the trial, as evidenced by R v Main [1971] PNGLR 290. Whether delay in having the accused brought to trial is shown to be owing more to circuit exigencies of the National Court rather than to any distinct failure of the prosecution to bring the applicant to trial, this is a significant factor in the determination of whether the application to dismiss should be granted: The State v Alphonse Wohinangu [1991 N966."

10. Section 552 of the Code as an import from the Queensland Criminal Code during the colonial administration of the Territory of Papua New Guinea precedes the Constitution of Papua New Guinea. This law existed before the Constitution which is now forty years old. It has characteristics and sanction similar to section 37(3) of the Constitution today, ie the right to be brought to trial within reasonable time. Section 37(3) provides:

"(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court."

11. Since Independence, section 552(2) & (4) applications have run parallel with section 37(3) of the Constitution with the later having more force and impetus because of its direct source to the Constitution.

12. Today in fact similar applications are being pursued separately under the Human Rights Track based on deprivation of rights under section s37(3) and other guaranteed rights under the Constitution giving rise to a cause of action on human rights pursuant to section 57 of the Constitution. Some of those cases include Herman Joseph Leahy v Pondros Kaluwin [2014] N5813; Roger Bai Nimbituo v The State [2015] N6158.

13. The first reported case that comprehensively discussed the accused's right to fair trial within reasonable time under section s37 (3) of the Constitution was The State v Peter Painke [1976] PNGLR 210. In that case the State presented an indictment containing one count of stealing as public servant against the accused. The accused was appearing from bail after being committed for trial eight months earlier. The indictment was presented before Edmunds AJ and the State sought adjournment to the next sitting because it was not ready. At the next sitting when the matter was to go before Raine J, it had to be adjourned to the next sitting because His Honour was required to return to Port Moresby for Supreme Court duties. Then came the next court sitting and Saldanah J again adjourned the case because the State's key witness was missing. Despite objection by defence adjournment was granted but with a direction that the case be given priority in the next sitting.

14. In the next sitting when the matter was fixed to be heard before O'Leary AJ, there had been a delay of some seven months since committal and the State was denied further adjournment. In refusing the application the court explained:

"In the result then it is now some 14-16 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. In those circumstances, I thought that to postpone the trial any longer would be, as Mr. Cavit submitted, to deny to the accused his right “to be afforded a fair hearing within a reasonable time” as guaranteed by the Constitution. Although he has been on bail throughout, I thought the accused had already been under the cloud of the charge for far too long, and to allow that position to continue any longer, would be to do a substantial injustice to him. I therefore refused the application."

15. However, His Honour then proceeded to grant leave to the Public Prosecutor to file a nolle prosequie despite strenuous objections from the defence.

16. Ten months after presentment of nolle prosequie the State sought to recharge the accused Peter Painke with another but similar charge vis-a-vis fraudulent false accounting arising out of the same circumstances or set of facts in relation to the same incident. The accused however sought a discharge on the grounds (1) that in all the circumstances the presentment of the indictment was an abuse of process of the Court and (2) that the accused had not been afforded a fair hearing within a reasonable time as required by s. 37(3) of the Constitution. This case was reported as The State v Peter Painke (No.2) [1977] PNGLR 141 and the Court per Frost CJ held:

(1) The National Court of Justice, as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process.

(2) The Court has a discretion( outside the limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay a subsequent indictment containing charges founded on the same facts as those on which a previous indictment was based or forming or being part of a series of offences based on the one incident.

(3) In all the circumstances the presentment of the indictment was an abuse of the process of the Court and the accused should be discharged.

(4) If it had been proved that the accused had not been afforded a fair hearing within a reasonable time as required by s.37(3) of the Constitution, an order pursuant to s.57(1) and (3) or s.22 of the Constitution could be made , without any question relating to the application and interpretation of s.37(3) of the Constitution being referred to the Supreme Court pursuant to s.18 of the Constitution.

17. Since then many similar applications were successfully pursued under section 552(2) and (4) of the Criminal Code while enforcing the right to a fair trial guaranteed under section 37(3) of the Constitution. Some of the most recent cases include: (1) The State v Michael Dobuma [2002] N2292 (Davani, J);(2) The State v Wambi Nondi (No.2) [2009] N3601 (Makail, J); (3)The State v Elinda Moses [2015] N5892 (Kassman J) and (4) The State v Angela Yap [2015] N5891 (Kassman J).

18. From all these reported cases the relevant factors for consideration include but not limited to the following:

	Factors	Consideration
1.	Date of offence	This information is necessary where the accused/applicant is in custody. It can also be considered together with item 2 Date of Arrest.
2.	Date of arrest	Sometimes Date of Arrest and Date of Offence are the same.
3.	Date of committal	This date is necessary to show the time frame between arrest and committal by the District Court.
4.	Date of first mention in National Court	This date is necessary to show how long it took the case to reach the National Court following committal. Delays have been experienced where committal papers take months to be typed, processed and forwarded to the National Court.
5.	Date of Pre Trial	This date informs the Court of the time lapse between committal and initial steps taken to fix the matter for trial.
6.	Date of Listing	This date informs the Court of actual date given and steps taken to bring the matter to trial.
7.	Custody or Bail	It is important to know if the accused is on bail or in custody because at times delay in prosecution could be compensated initially be grant of bail to the accused.
8.	Date when matter first listed for hearing.	This date informs the Court of the length of time taken from committal to hearing.
9.	Date when matter next listed for hearing (if any)	This date informs the Court of the length of time from the last adjournment or previous adjournments.
10.	Date when s.552(2) notice is given	This date is to inform the Court that State has been duly put on notice of imminent possibility of constitutional safeguards and protection for fair trial within reasonable time being invoked by the accused.
11.	State the dates when the accused was present for monthly call-overs.	This statistical information of dates in chronological sequence of times the accused was present for his trial is important for the Court to appraise itself of the faithfulness of the accused in observing his bail conditions and being available for his trial.
12.	Affidavit(s) showing efforts (if any) by State to bring matter on for trial.	Evidence of steps taken by State to respond positively to s.552(2) notice already given.
13.	State's reasons for inability to prosecute with due diligence	Self-explanatory.
14.	Date when s.552(4) application is filed and moved	This date is significant because after s.552(2) notice is given, the next sitting in the same location often varies according to the circuit schedule and can make a big difference on counsel's preparedness to commence trial.

19. When discharging the accused who had been waiting for his trial for 11 months in The State v Michael Dobuma (supra), Davani J set out the long history of the case and said:

2. The accused was remanded in custody on 22nd August 1997 and released on bail on 25 September 1998;

4. Based on the endorsements on the court file, this case was mentioned and adjourned on 17.4.01, 19.11.01, 22.11.01 and 11.6.02. On 11.6.02, the s. 552(2) application was made. On 8.10.02, trial dates of 16.10.02 and 17.10.02 were allocated during the listing I conducted.

20. Of the four accused arrested in 1997, including this accused, two have been sentenced, one is awaiting sentence on another offence and this Accused is awaiting the outcome of this application.

21. On 16 October 2002, the Accused was arraigned, pleading not guilty. The matter was therefore ‘brought to trial’. The State then applied for an adjournment as it submitted the Accused’s accomplices were to give evidence but that they are “somewhere in Tufi”. I was not told who these witnesses are and their whereabouts in Tufi. I note also that the accomplices counsel for State refers to may be the three who were arrested together with the Accused, because I do not know otherwise. Accused’s counsel submits that the Accused’s right to a fair trial within a reasonable time as provided in s. 37(3) of the Constitution has been jeopardised, considering the history of this case. The court is also conscious of the four months standard set in s. 37(14) of the Constitution.

22. In The State v Yasim [1983] PNGLR 111, the judge dealt broadly with the entitlement to be discharged where a person has been waiting over 11 months for his trial and where, at the previous sitting, an application was made under s. 552(2) and then, at the next sitting to which the case had been generally stood over, the accused appeared and pressed his entitlement under s. 552(4). There, the court held that the accused had foregone his right to pursue the application at ‘the next sitting’ in March, but did so in July. The court dismissed that application which was upheld on appeal to the Supreme Court.

23. The Accused has waited for his trial, since Committal on 9th October 1997, a period of 5 years. The Supreme Court said in Christopher David Brown (supra), “...in an ideal world, it be good if a person could be brought to trial within days or weeks of his committal. But this, unfortunately, is not an ideal world...”. In that case, the accused made the application to be brought to trial two weeks after committal.

24. The crucial issue before the court is whether the witness the State claims to have gone to Tufi, have maintained communication with the Police. It appears they have not. It is either that, or they are non-existent. The matter has not progressed for this Accused since Committal on 9th October 1997. I do not have affidavit material or at least submissions on the attempts made by the State since then in locating its witnesses. Therefore I find that the State has not made a genuine attempt at completing its case. As the court said in John Yuki Yama (supra);

- The court must be satisfied on the balance of probabilities that the State has not shown that it has made a genuine attempt to complete the case (my stress).

25. As to what is a reasonable time, (per s. 37 (3) of the Constitution) this was discussed by Amet .J as he then was in Re Kivia (1988) PNGLR 107 at pg 110.

“In the consideration of the reasonableness or otherwise of the time and whether or not the State had made a genuine attempt to complete its case, all the circumstances of the case needed to be taken into account, the circumstances of the country, the increase in crimes, long lists of cases, shortage of judge/court time and other logistical difficulties.”

26. There, the court considered affidavit material filed by the prosecution explaining why the matter could not be brought to trial. I do not have any materials before me explaining the five year delay.

27. For this court to allow the adjournment would be to cause substantial injustice to the Accused. As O’Leary AJ said in State v Peter Painke [1976] PNGLR 201;

“When the State applied for a further fourth adjournment, which was refused...because of the long delays before and after committal (my stress), to postpone the trial any longer would be a breach of the Accused’s right and s. 37(3)... the Accused had already been under the cloud of the charge for far too long, and to allow that position to continue any longer would be to do a substantial injustice to him.”

28. In The State v Wambi Nondi (supra) the accused was charged with misappropriation and had been awaiting his trial for 2 years and 9 months. When the matter was fixed for hearing the State applied for adjournment to a later date which request was declined. The Prosecutor then sought adjournment till after lunch which was granted. At 1:30pm the learned prosecutor presented the indictment and the accused was arraigned and he denied the charge. The State witnesses were not present to give evidence against the accused so the learned prosecutor applied for further adjournment relying on section 552 of the Criminal Code. Defence objected to the adjournment and contended that reliance on section 552 was a misapplication of the law or remedy that is available to the accused to be brought to trial which the accused has not invoked in this case. Defence argued that the case be dismissed for want of prosecution.

29. Trial judge upheld the defence submission and dismissed the charge of misappropriation against the accused for want of prosecution and discharged the accused on the indictment. It is noted here that the Court exercised its inherent powers to accord the accused who has been awaiting trial for two years and nine months his right to a fair trial within reasonable time under section 37(3) Constitution and dismissed the charge when the trial started but could not be concluded when the State witnesses failed to produce witnesses.

30. In The State v Elinda Moses (supra) the accused and one other were committed to stand trial for murder and placed in custody. After three years and two months in custody Elinda Moses went on trial with the State presenting an indictment while her accomplice who had earlier escaped remained at large. The case had been fixed for two days trial. Following presentment of indictment the State witnesses were not present so the State applied for adjournment to the following day as the arresting officer tried to find out where his witnesses were and to avail them in Court. Defence objected and gave section 552(2) notice which was noted by the Court. The next day when the Court resumed the State witnesses were not brought in so the cases were further adjourned to the last day of the sittings for the accused to make an appropriate application under section 552(4) of the Code.

"7. On 16 March 2015, counsel for the State informed the court that State witnesses were not located and are not available for the trial. Counsel for Elinda then made application pursuant to Section 552(4) of the Criminal Code for an order that Elinda be discharged.

8. The court notes Elinda and her co-accused Moses Mundipap were charged and detained in custody on or about 5 January 2012. The co-accused escaped from lawful custody and has not been recaptured. Elinda has remained in custody since then, a period of three years and two months. No affidavit has been sworn and filed by the OIC Prosecutions or the Arresting Officer as to arrangements in locating and bringing in for trial the State witnesses. The State has had three years and two months to prepare their witnesses for trial. There is no guarantee that the State witnesses will be located and brought in for trial if a further adjournment was granted. There is also no evidence suggesting the State witnesses travel to court to give evidence has been disrupted in any manner or form. The application pursuant to Section 553(4) of the Criminal Code is granted."

32. The State v Angela Yap (supra) was also decided by Kassman J on the same day as The State v Elinda Moses (supra) where the accused had been in custody for three years and six months on a charge of wilful murder and was fixed for a two day trial but struck similar impediments as in Elinda Moses case and similar application was pursued. In Yap's case even on the last day of sittings following notice under section 552(2) of the Criminal Code, no indictment was presented to have the trial commenced as witnesses were unavailable. Dismissing the case and discharging the accused the trial judge made these remarks:

"7. On 16 March 2015, counsel for the State informed the court that State witnesses were not located and are not available for the trial. Counsel for Yap then made application pursuant to Section 552(4) of the Criminal Code for an order that Angela be discharged.

8. The court notes Yap and her co-accused Werekeya Yap were charged and detained in custody in early September 2011. The co-accused escaped from lawful custody and has not been recaptured. Yap has remained in custody since then, a period of three years and six months. No affidavit has been sworn and filed by the OIC Prosecutions or the Arresting Officer as to arrangements in locating and bringing in for trial the State witnesses. The State has had three years and six months to prepare their witnesses for trial. There is no guarantee that the State witnesses will be located and brought in for trial if a further adjournment was granted. There is also no evidence suggesting the State witnesses travel to court to give evidence has been disrupted in any manner or form. The application pursuant to Section 553(4) of the Criminal Code is granted."

33. Reference to Section 553(4) is a typographical error as it should read Section 552(4) instead. Section 553 of the Code is a repealed provision which related to bail generally that has since been removed.

34. Recently two cases of enforcement of section 37(3) right under the Constitution were pursued under section 57 of the Constitution under the Special Human Rights track and succeeded. In one case the accused who has been awaiting trial for 11years was discharged and the other the accused who were kept in remand for 5 years and their matter was part heard before the Court were released on bail pending the completion of their trial. The first case was Herman Joseph Leahy v Pondros Kaluwin (supra) and the second case was that of Roger Bai Nimbituo & Ors v The State (supra).

35. In Herman Joseph Leahy v Pondros Kaluwin (Leahy v Kaluwin) the string of offences for which the accused was charged by the Police took place between 1998 and 2000. He was taken to the Committal Court and in 2004 the District Court declined to commit him due to insufficient evidence. However, he was brought before the Court by ex-officio indictment which he challenged all the way to the Supreme Court and lost. The case returned to the National Court and this time there was another challenge to the court's jurisdiction which the Court ruled and another appeal ensued to the Supreme Court. This appeal also failed, the matter once again returned to the National Court and another interlocutory application which was also appealed to the Supreme Court. The Supreme Court dismissed the application in 2012 and in 2013 the matter went before the National Court and no serious action was taken to progress the case to finality which led to the accused filing proceedings under section 57 of the Constitution to enforce his rights under section 37(3) and succeeded in obtaining a permanent stay of his prosecution. The Court while upholding the application said inter alia (as per the head notes):

"(1) In determining any application for enforcement of human rights, it is useful to apply a two-step decision-making process. First, has any right of the plaintiff actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If no, the court should not intervene. If yes, the court needs to consider whether it should grant the remedy sought or make some other order for enforcement of the right.

(2) 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.

(3) Under Section 37(3) of the Constitution a person charged with an offence must be afforded:

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

(4) 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 (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).

(5) 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.

(6) Here there was an apparently inordinate delay of nine years, five months from the presentation of the ex officio indictment (May 2005) to this trial (October 2014) during which period the prosecution had not commenced. The defendants adequately explained the delay to July 2010 (the date of the order of the National Court allowing the joint trial of the plaintiff and an alleged co-conspirator). However, the delay of more than four years after that was unexplained. The plaintiff’s third Supreme Court review of National Court decisions was dismissed in December 2012 and the inactivity of the Public Prosecutor in the 22 months since then was inexplicable and indefensible. The plaintiff has been denied the right to have the prosecution commenced within a reasonable time.

(7) He has also been denied the right to a fair trial given that the events underlying the charges occurred 14 to 16 years ago and in that period 14 persons who were possible witnesses have either died or permanently left the jurisdiction.

(8) The plaintiff therefore succeeded in proving that the Public Prosecutor infringed his rights under Section 37(3) of the Constitution."

36. In Roger Bal Nimbituo v The State (supra) there were five applicants whose charges stemmed from allegations that while dressed in police uniform they kidnapped for ransom and unlawfully detained and raped the victim by one of them between May 2009 and March 2010. Their trial in the National Court commenced 14 August 2012 where evidence was called over two months period to 17 October 2012. The Court then adjourned for submissions. The adjournment in fact extended for more than two years while the accused remained in custody. On 19 November 2014 submissions on the verdict were made and trial judge indicated judgment delivery by end of 2014. That did not eventuate so 4 August 2015, a joint application was filed by the five accused. In upholding their application for breaches of their human rights, the Court said inter alia (as per the head notes):

"(2) As to the alleged infringement of their rights under Section 37 of the Constitution: there were inordinate delays in prosecution of the applicants (in that each was remanded in custody for long periods prior to commencement of their trial) and in completion of their trials (in that submissions on verdict were not made until more than two years after completion of the evidence) and 13 months have passed since completion of submissions on verdict. The State failed to explain or justify those delays. The applicants have been denied their right to the full protection of the law under Section 37(1), in particular right to a hearing within a reasonable time under Section 37(3) of the Constitution.

(3) The extensive, significant, unexplained and unacceptable delays in prosecution of the applicants and in completion of their trial and in delivery of verdict mean that the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Section 41 of the Constitution, have been infringed.

(4) As to the alleged infringement of their rights under Section 42 of the Constitution: the applicants are being detained unreasonably in that they have been remanded in custody, being charged with criminal offences, for periods of five years, 9 months to six years, seven months without the criminal charges against them being determined."

"27. The applicants are not arguing that they have not had a fair hearing. Though it could be argued that a hearing that is unduly delayed ceases to be a fair hearing, that is not their argument. Nor are they arguing that their trial did not take place before an independent and impartial court. Their argument is that their case has not been heard within a reasonable time. They argue that Section 37(3) confers the right to have a case heard and determined within a reasonable time. I uphold that argument. There is no other way to fairly construe Section 37(3). There would be no point in giving a person the right to have the charge against him heard, if he were not given the concomitant right to have a decision on the charge handed down within a reasonable time.

28. The “reasonable time” requirement imposes obligations on all persons and institutions involved in the criminal justice system to ensure that all accused persons have the charges against them heard and determined with all due dispatch (Re Ricky Yanepa [1988-89] PNGLR 166, Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033, Bomai Wati v David Gavera (2013) N5363, Herman Joseph Leahy v Pondros Kaluwin (2014) N5813).

29. Mr Akia, for the State, did not dispute that interpretation of Section 37(3). However, he argued that the applicants had failed to prove that the alleged delays in having their case heard and determined were significant or actionable or exceeded the ‘reasonable time’ requirements of Section 37(3). He referred to the decision of the Supreme Court of Ireland in McFarlane v Director of Public Prosecutions [2008] ISEC 7, where the Court drew a distinction between three types of delay that can result in a case not being heard and determined with all due dispatch: prosecutorial delay, systemic delay and judicial delay. Mr Akia submitted that in the present case the applicants are complaining about judicial delay but have not adduced any evidence of what is the normal or average time to complete a criminal trial; nor have they demonstrated that the alleged delay in this case is so far outside the norm as to be not reasonable.

30. While I have found Mr Akia’s well researched and detailed submission very useful, as it analyses the different causes and categories of delays in the criminal justice system, I do not agree that the complaint of the applicants is only about judicial delay. Nor do I agree that the applicants have failed to adduce evidence of what is the norm for delivering a verdict. The concerns of the applicants are about delay, generally. It took a long time – more than three years after the first three of them were arrested – for their trial to commence, in August 2012. More than three years after the case commenced, they still have no decision. Their concern is about both prosecutorial and systemic delay, in getting the trial started. It is also about judicial delay, in getting a decision from the Court. They have adduced evidence in the form of a Practice Direction issued by the Registrar of the National Court which suggests that the normal time within which a judgment might reasonably be expected to be delivered is three to six months. So, it is not correct to say that they are only concerned about judicial delay or that they have not adduced evidence.

31. In determining whether they have proven a breach of their right under Section 37(3) of the Constitution, it is important to bear in mind that what is a “reasonable time” will vary from case to case. There might be a good reason for a lengthy delay. However, if there is an inordinate delay in having a case commenced or completed, it is incumbent on the person or institution allegedly responsible for the delay to explain the delay and provide good reasons for it. If the delay is not explained and good reasons are not provided, the delay must be regarded as unreasonable.

32. In this case there have been inordinate delays in both commencing the trial and the conduct of the trial.. ..."

38. Where then does this case fall under the criteria alluded to earlier? This case is caught in the first and the second limb of the law in section 552(4) in that:

(1) No indictment was presented when the matter was mentioned on 5 April, 9 May, 14, 15, 16 and 24 June when it came before the court for the last time since s.552(2) notice was given in February 2016.

(2) State produced no evidence either opposing the application or produced facts that exonerated the State from being wholly responsible for the delay in the prosecution of the case. Counsel simply admitted the State's tardiness and inability to start the trial as the key witness was overseas.

(3) On the other hand, the accused had availed herself at every call-over and on the days fixed for trial since she requested to be brought to trial. The court file notations also show consistent pattern of her attendances since her committal which is clear evidence that she was always available for her trial but was denied of her right to trial within reasonable time through prosecutorial and systemic delay.

39. In the nutshell, the accused in this case was arrested and charged on 9th April 2013 on allegation of bribery of an IRC officer in Port Moresby. She was committed to stand trial on 29 October 2013, six months later following her arrest. Pre-trial was done in or about 6 May 2015 which is about 2 years one month since her arrest and one year seven months since her committal to stand trial in the National Court. From the file notations I note that she made first appearance in this court on 25/11/2013. She made further appearances at call-overs on these dates: 07/02/14, 03/03/14, 20/03/15, 05/05/14, 21/05/14, 03/06/14, 16/06/14, 06/10/14, 03/11/14, 10/02/15, 02/03/15, 07/04/15, 13/04/15, 07/05/15, 06/07/15, 03/08/15, 07/09/15, 05/10/15, 01/12/15, 15/02/16 (s.552(2) application notice, 05/04/16, 09/05/16 two days trial fixed for 15-16/06/16, 14/06/16 and 24/06/16 section 552(4) application was made and heard. When the matter was mentioned on 14/06/16, Mr Kuvi for the State informed the Court that the State's position has not improved in respect of this matter that was subject of section 552(2) application as well as every other matter.

40. This is clearly not a case of judicial delay, a terminology introduced in Nimbituo v The State (supra) from an Irish Supreme Court case of McFarlane v DPP [2008] IESC 7. The Court was always ready and willing to hear the case but the State was not getting its witnesses to start the trial. This is a case of prosecutorial delay compounded by systemic delay in that the preference in the order of priorities of cases for prosecution was that the oldest matter gets heard first. However, even the oldest matters were not getting heard because State was not bringing in the witnesses. In this case as evidence shows the key State witness was not in the country and this evidence has not been rebutted. There is no evidence from the State on what efforts (if any) being taken to bring the witness into the country to give evidence or if there are other witnesses available to testify against the accused. In fact State has not opposed this application.

41. 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 being charged for a period of 38 months and 1 week and 31 months and 4 weeks since committal and almost one year since the pre-trial hearing. And since she requested to be brought to trial by invoking section 552(2) four months had lapsed and no genuine effort has been made to bring her to trial, not even by presentation of indictment. It is therefore quite apparent that her rights to be brought to trial within reasonable time as guaranteed under s.37(3) have been denied her or breached and she is entitled to be discharged and I order that she be discharged forthwith.

42. I wish only to add one final matter in this case which goes to the procedure of pursuing this application under section 552(4). As I indicated to counsel at the hearing of this application, without imposing any rigid rule or policy on the process, it is good practice to pursue an application under section 552(4) with a one line sentence under the heading Notice of Application with the words "The accused seeks to be discharged pursuant to section 552(4) of the Criminal Code" under the same the name of the case itself. The application must be supported by an affidavit similar to the one produced in this case and reproduced in full in the judgment. It must be registered and served on the State. The State must file answering affidavit and serve that on the accused. This is my suggestion.

43. Therefore similar applications under s.552(4) in the future must consist of:

(3) Responding affidavit from the State Prosecutor or such other responsible person on behalf of the Public Prosecutor.

44. Otherwise, this application is upheld, the accused is discharged in that her right to a fair trial within a reasonable time has been denied her or breached. She is entitled to the refund of her bail money.

Michael Wagambie Lawyers: Lawyer for the Applicant
Public Prosecutor : Lawyer for the Respondent

National Court of Papua New Guinea

State v Santos [2016] PGNC 256; N6451 (21 September 2016)