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State v Nahuie [2016] PGNC 257; N6453 (21 September 2016)

N6453

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1229 OF 2006
THE STATE

V

TIMOTHY NAHUIE
-Accused

Wewak: Kirriwom, J
2016: 24^th June & 21st September

CRIMINAL LAW - Application to be discharged under section 552(2) & (4) Criminal Code - Right to be brought to trial within reasonable time under section 37(3) Constitution - Denial of right - Accused jumped bail in 2007 - Returned to custody in May 2015 - No explanation for the accused's return to custody in May 2015 after long period of absence - Full disclosure of all circumstances of the case by the accused is necessary before the court can exercised its discretionary power to discharge - Application deficient and dismissed.

Cases Cited:

State v Fe Santos Cr (Fe) No. 1177 of 2013

Counsel:

David Kuvi, for the State
John Alman, for the Accused

RULING

21st September, 2016

1. KIRRIWOM J. This is an application under section 552(4) Criminal Code by the accused to be discharged. The application is necessitated by the fact that on the date fixed for this trial to proceed (which was intended to be the last adjournment when the case was last adjourned) the State was not ready to proceed with the case. The accused was one of three people charged with wilful murder allegedly committed on 14 June 2006.

2. All three were granted bail and released from custody on K500 each cash bail by Gavara-Nanu, J with reporting conditions of 20 July 2007. They were specifically directed to attend the August Call-Over as per the bail certificate.
   
3. According to the notation in the Court file on 8 August 2007 the accused failed to appear in court as directed so a bench warrant was issued for his arrest.
   
4. According to the chronology of file entries, the next entry after 8 August 2007 is 3 March 2015 when the accused was taken to court from custody. The presumption is that the accused was arrested and taken into custody. This is almost eight years after he absconded bail.
   
5. John Alman, lawyer representing the accused filed an affidavit he deposed to on 23^rd June 2016 in support of section 552(2) & (4) application. This affidavit deposes in paragraph 5 that the accused was granted bail on 8^th August 2007 which information is inconsistent with the file entry of that day. I do not think that statement is true because the bail certificate is dated 20 July 2007.
   
6. The supporting affidavit omits mentioning the period between 8 August 2007 and 19 February 2015 and there is an information gap regarding time, date and place of the arrest of the accused and return to place of detention. This information is critical to this application because the court needs to know the circumstances of the accused person’s return to confinement at Boram CS. Was he picked up on the bench-warrant or was he apprehended for a new matter against the law when it was discovered that he had an outstanding warrant and was a wanted man on the run. There have been such cases in recent past in Wewak.
   
7. Since being returned to Boram CS the accused has been in custody awaiting his trial for one year and five months. While focusing attention on earlier cases, the State Counsel has not really paid attention to this case, hence, a section 552(2) application was made on 17 May 2016 and the case was given a special fixture on 11 July 2016. However in June sitting of the court the matter was brought up before me by Mr Alman wanting to move his application under section 552(4) but I deferred it to the last day of the sitting.
   
8. On 23^rd June 2016, the last day of my sitting in Wewak, the accused renewed his application under section 552(4) Criminal Code to be discharged. I then reserved to consider before my ruling. I do so now.
   
9. After careful consideration of this matter I am not persuaded that this case is an appropriate one to be dealt with under section 552(4) procedure notwithstanding that he has not been promptly brought to trial pursuant to section 37(3) Constitutions. There are good reasons:
   
   • (i) No full disclosure. The relief that the accused is asking from the court is discretionary not an absolute right that the court has no choice but to grant. He who seeks equity must come with clean hands. Accused must give detailed account of what happened when he was last granted bail and how did he return to CS custody and when. If there are unanswered questions surrounding his case, the Court must treat him with caution.
     
   • (ii) State position is unclear. Mr Kuvi only indicated State’s position at the time this application was made. However I have no idea as to what efforts were made to bring the accused to trial and what is the likelihood of this case ever getting prosecuted given the passage of time since committal and the ability to locate witnesses. This information is unavailable
     
10. In the circumstances I am not inclined to grant the application as I find it to be deficient and wanting of more information. Therefore in accordance with my decision or ruling in the State v Fe Santos Cr (Fe) No. 1177 of 2013 where I prescribe certain procedural guidelines to be observed by applicants availing themselves of section 552(2) & (4) procedure, I make the falling orders to be complied with before the application can be pursued again:
    
    • (i) Accused must make full disclosure of those information he omitted in his instructions to his lawyer, thereby not forming part of the lawyer’s affidavit.
      
    • (ii) Lawyer for the State to file an affidavit in reply, stating in particular:
      
      • (a) state’s general position in commencing the trial
      • (b) effort made in bringing this matter to trial
      • (c) likelihood of the State commencing and completing this trial
      • (d) are witnesses available? If not, can they be located with any certainty?
        
11. Once those facts are available in the affidavits alluded to above, application can be heard afresh or de novo.
    
12. Meanwhile the application is refused and the accused is remanded in custody.
    

_____________________________________________________________
John Alman : Lawyer for the Accused
Public Prosecutor: Lawyer for the State