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State v Kirara [2021] PGNC 656; N9910 (3 November 2021)

N9910

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 979 OF 2018

THE STATE

V

TIMOTHY KIRARA

Kokopo/Kerevat: Suelip AJ
2021: 7^th, 13^th, 23^rd, 29^th, 30^th September & 3^rd November

CRIMINAL LAW – application to be discharged – prior s. 552(2) application made – s.552(4) of the Criminal Code – accused to be brought to trial within reasonable time – failure to prosecute case – unavailability of state witnesses – no evidence showing reasons for delay – end of the sittings – accused discharged

Case Cited

State v. Angela Yap (2015) N5891
State v. Fe Santos (2016) N6451

Counsel

T Kametan, for the State
S Pitep, for the Accused/Applicant

DECISION

3^rd November, 2021

1. SUELIP AJ: This is my decision on the application by the accused to be discharged pursuant to section 552(4) of the Criminal Code. The application was heard on the trial date, which was on 30 September 2021. That day was also the last day of the circuit.

History of proceedings

2. An indictment has not been presented.

3. This matter was first listed for trial on 4 April 2020. Trial did not take place then due to the unavailability of judges. I can confirm that as I was the only judge sitting here at the time.

4. The matter was then given priority and listed tentatively for trial on 17 September 2021 and 24 September 2021. The reason for these tentative listings was the unavailability of the witness to attend conferencing with the State lawyers and also their unavailability to attend trial. On 13 September 2021 when the Court listed this matter for trial tentatively for 24 September 2021, it made a specific order for the State to take proactive steps to preconference with its witnesses before the Pre-Trial Review on 23 September 2021. On the 23 September 2021, trial set for 24 September 2021 was vacated and re-scheduled for 30 September 2021, the last day of the circuit, for the same reasons. It was also then that the accused gave notice that he should be brought to his trial on the last day of the sittings. Term 4 of the Order of 23 September 2021 states this. “Should the State not prosecute the matter on 30 September 2021, the accused is at liberty to make the necessary application”. At the second Pre-Trial Review on 29 September 2021, the State witnesses were still unavailable, and the accused gave notice that he should be brought to his trial on 30 September 2021. On the trial date, the State’s position had not improved, thus the accused made his application to be discharged pursuant to section 552(4) of the Criminal Code. He also relies on section 37(3) and (14) of the Constitution.

Application for discharge

5. In his application, the accused says he has given notice that he will be making this application should the State failed to prosecute this matter on the trial date. He says that he has been faithful in attending the call overs and trials and was always ready to stand trial, but the State was never ready. He says he was committed to stand trial at the National Court on 22 August 2018, and it is over 3 years now in custody. He has filed his Pre-Trial Review Statement and has waited for his trial ever since. He says the reason that the police do not have logistics to get the witnesses ready is not a good excuse. The State’s other reason that the Covid 19 lockdown has caused the delay is also not a good excuse in prosecuting this matter sooner. He says the investigating officer further failed to depose an affidavit to explain the reasons for the delay.

6. The accused relies on the case of State v. Angela Yap (2015) N5891 and State v. Fe Santos (2016) N6451. In the former case, the accused was discharged when the state witnesses failed to turn up in Court. Further, there was no guarantee that the state will locate its witnesses if trial was adjourned and there was also no evidence to show that the witnesses travel to Court would be disrupted. In the latter case, the accused was also discharged primarily because the State failed in its efforts to prepare and make available its witnesses and prosecute the case. The accused in that case was in custody for more than 3 years.

State’s response

7. In response, the State says that the investigating officer has logistics issues and therefore cannot get the witnesses to attend to their lawyers and be available in Court. Counsel says that it was also because of the Covid 19 lockdown which has caused the delay. She says she can present the indictment, but an adjournment is inevitable as its witnesses are unavailable at this stage. She says the delay is caused by administrative issues, not by the State. She therefore asked for the matter be adjourned to the next call over and for a special fixture.

The law

8. The relevant provisions of the Constitution and the Criminal Code are produced hereunder: -

(a) Section 37(3) and (14) of the Constitution states: -

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

(14) 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.

(b) Section 552(2) and (4) of the Criminal Code reads: -

552. RIGHT TO BE TRIED.

(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.

...

(4) If–

(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.

(my underlining)

Consideration

9. Pursuant to section 37(3)(14) of the Constitution, any accused person is to be given a fair hearing within reasonable time and reasonable time is 4 months from the date on which he was committed. In this case, an indictment has not been presented. The accused has been in custody since 22 August 2018 and so to date, he has served a term of over 3 years. His case was initially listed for 4 April 2020 but was not heard then. It was given preference in September 2021 and was listed tentatively for trial on 17 and 24 September 2021 and confirmed for 30 September 2021. On all these occasions, the State witnesses were not ready. There is no affidavit filed to explain the reasons for the unavailability of the State witnesses. I enquired with counsels as to where the witnesses reside and they said the witnesses are from Taulil village, which is only about an hour’s drive from Kokopo.

10. I note in State v. Fe Santos (supra), late Justice Kirriwom sets out the requirements of section 552(2) and (4) and I adopt them as my own. These requirements are: -

(i) there must have been an application previously made and noted by the Court;

(ii) no indictment has been presented on the next hearing date;

(iii) where indictment has been presented, no serious steps were taken to bring the case to trial.

(iv) the accused has always availed himself/herself in court for the start of his trial in every sitting.

11. Let me satisfy myself that an earlier application has been made and noted by the Court to discharge the accused. Counsel for the accused submits that prior notice was made on the previous day when an application was made to bring the accused to trial on the last day of the circuit. Although, no specific mention of notice pursuant to section 552(2) was made, the State was put on notice that the accused be brought to his trial on the last sitting of the National Court failing which he can make the necessary application. An order of the Court provides for this specifically on 23 September 2021. As such, I am satisfied that prior notice was given. The State had ample time to prepare for trial.

12. Hence, in this case, requirements (i), (ii) and (iv) set out in State v. Fe Santos (supra) were applied and satisfied where firstly, there was an application previously made and noted by the Court. Secondly, no indictment has been presented and lastly, the accused has always availed himself in court for the start of his trial in every sitting.

Order

13. The application by the accused is granted, and the accused is discharged forthwith.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused/Applicant