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Boxtel, Re [1973] PGSC 5; [1973] PNGLR 283 (6 October 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 283 - Cornelius John Boxtel, Re

[1973] PNGLR 283

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE CORNELIUS JOHN BOXTEL

Port Moresby

Minogue CJ Frost SPJ Clarkson J

5-6 October 1972

CRIMINAL LAW - Practice and procedure - Indictment - Control by Court over Crown�s discretion as to when to present indictment - Right to speedy trial - Human Rights Ordinance 1971 ss. 16[cccxxiii]¹, 21[cccxxiv]².

B. was arrested in March 1972 on a charge of rape and in June was committed to trial on that charge. At the end of July 1972 B. was arrested on a charge of conspiracy, and committal proceedings in respect of the conspiracy commenced in August 1972 and were continuing at the time of the application. B. desired to have the rape charge dealt with in the October settings of the Supreme Court and the judge for these sittings had intimated that if an indictment were presented the case could be heard in these sittings. The Crown however refused to present an indictment against B. for rape, its intention being to refrain from doing so until the conspiracy case had been finally disposed of. There was no suggestion that the Crown evidence would not be readily available if the rape trial were heard in the October sittings. On an application by B. pursuant to ss. 16 and 21 of the Human Rights Ordinance, 1971.

Held

There had been a denial of the right enshrined in s. 16 (2) of the Human Rights Ordinance, 1971, to be afforded a fair hearing within a reasonable time, and B. was entitled to succeed on the application.

Application

The applicant applied to the Full Court for a declaration and order pursuant to s. 16 (2) and s. 21 of the Human Rights Ordinance, 1971. The facts are set out in the judgment of the Court.

Counsel

D. Sturgess, for the applicant.

J. Greville Smith, with him P. Waight, for the respondent.

W. A. Lalor, amicus curiae.

Cur. adv. vult.

6 October 1972

MINOGUE CJ FROST SPJ CLARKSON J: The applicant applies for a declaration and order pursuant to s. 16 (2) and s. 21 of the Human Rights Ordinance 1971. This Ordinance came into operation earlier this year and this is the first application under it to the Full Court.

Section 16 (2) provides that:

�A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court established by law.�

Section 21 provides:

N2>�(1)��� A right or freedom specified in this Part shall be protected and is enforceable by the Supreme Court on application by any person having an interest in the enforcement of that right or freedom, ...�

and subsection (3) provides:

�The Supreme Court may make all such orders and declarations as are necessary or appropriate for the purposes of Subsection (1) of this section, . . .�

Subsection (4) provides for the exercise of this jurisdiction by a Full Court of this court.

It should also be noted that s. 6 provides that the rights set out in the Ordinance are in addition to the rights of an individual under any other law.

No argument was addressed to us which related to the construction of the Ordinance or its effect on the existing law, although some submissions were made by the Public Solicitor regarding the law as it exists apart from this Ordinance.

The applicant�s complaint arises from events which occurred on 17th March, 1972. On 24th March he was arrested on a charge that he had on 17th March committed rape. The committal proceedings relating to this charge commenced on 5th June and on 14th June, 1972, the applicant was committed to stand his trial at the next criminal sittings of the Supreme Court at Port Moresby or at a time and date to be fixed by that Court. For reasons which are referred to in the papers the applicant was not brought to trial in July although some arrangement appears to have been made for his trial to commence on 7th August. However, on 31st July the applicant was arrested on a charge of conspiracy and it was agreed between the Crown Prosecutor and the applicant�s legal advisers that the trial on the rape charge should not commence on 7th August. The committal proceedings in respect of the conspiracy charge commenced on 24th August and when this application came before this Court on 5th October were still continuing. The applicant was released on bail several days after his arrest in March and remained on bail until he was again arrested on 31st July, 1972. He remained in custody until 8th September, 1972, when he was released on bail on the order of the Chief Justice.

On or before 13th September the applicant through his legal advisers requested the Crown that he be brought to trial on the charge of rape. In reply the Acting Crown Solicitor intimated that it was the intention of the Crown to present an indictment after the resolution of the conspiracy charge.

On 22nd September at the callover of the October list for Port Moresby the applicant applied for an order that the Crown present an indictment against him on the rape charge. The application was opposed by the Crown and the learned Judge (to whom no reference to nor submissions based upon the Human Rights Ordinance had been made) held that he had no power to grant the application, although he indicated that if an indictment were presented the trial could be held during the October sittings.

By letter dated 27th September to one of the applicant�s advisers the Acting Crown Solicitor confirmed that the Crown did not intend to present an indictment for rape against the applicant until the conspiracy charge had been determined by the District Court and if a committal resulted from those proceedings until the matter had been concluded in the Supreme Court. Thereupon on 2nd October the present notice of motion was filed.

The applicant�s submission is that his right to a trial on the charge of rape within a reasonable time is being denied and he asks for such order pursuant to s. 21 as is appropriate to protect and enforce his right.

For the Crown the Acting Crown Solicitor has opposed the application and has given a number of reasons why the Crown had adopted the attitude referred to earlier. We have considered these reasons and appreciate the difficulties which the Crown sees facing it but these difficulties in our opinion cannot determine the issue before the court.

In effect his submission is that once an accused person has been committed by a District Court for trial in the Supreme Court the Crown has a discretion firstly as to whether or not an indictment will be presented and, secondly, as to when that indictment will be presented. The Acting Crown Solicitor would appear to concede however that the discretion as to when an indictment is presented is subject to control by the Full Court under the provisions of the Human Rights Ordinance already mentioned.

We desire to make it clear that we have considered the issues raised in the light only of the provisions of the Human Rights Ordinance and we do not wish anything which we say to be taken as indicating that an accused person committed for trial for an indictable offence has apart from the Human Rights Ordinance no rights if there is an inordinate delay in his being brought to trial, nor should we be understood as saying that the Crown�s discretion as to when an indictment should be presented is as extensive as that contended for by the Acting Crown Solicitor, nor that this court lacks jurisdiction to intervene in an appropriate case.

The facts which impress us in the present case are that the accused was arrested in March and in June was committed for trial before the Supreme Court. For reasons already referred to the trial did not take place in July or August. Since the early part of September the applicant has requested that he be brought to trial. The Judge presiding at the criminal sittings in Port Moresby for October has indicated that the trial could take place during October. The applicant is ready for trial and the Crown has not suggested that all the Crown evidence is not readily available in October.

Our conclusion in all the circumstances is that the applicant has not been afforded a hearing within a reasonable time of the charge of rape. We appreciate that cases unfortunately occur where a delay of some months elapses between committal and trial and it is unnecessary now to explore the reasons for these delays. In the present case it is well over six months since the alleged offence and nearly four months since the committal. A court is available for the trial, the accused is ready to proceed and as we have mentioned there is no suggestion that the Crown evidence is not available.

In ordinary circumstances an order should follow that the accused be brought to trial on the charge of rape. The court was informed that there are now two charges of conspiracy against the applicant and committal proceedings in relation to the second charge have not yet commenced. The applicant submits that if the trial for rape is deferred until after the final resolution of both charges for conspiracy then the trial for rape would certainly not be held this year and could be delayed at least well into 1973. The Crown did not challenge this submission.

In view of the long delay which could occur if the course proposed by the Acting Crown Solicitor were followed our tentative view is that the trial should take place during the October criminal sittings in Port Moresby. The Acting Crown Solicitor has asked that if this court adopted the view which it has he should be given an opportunity of making submissions as to the date of trial. He has also indicated that appropriate undertakings would be given to avoid the necessity of a formal order and we will therefore hear further submissions before finally disposing of this application.

(After further argument) Order:

N2>1.������ That on the undertaking of the Acting Crown Solicitor to present on 23rd October, 1972, an indictment against the applicant for rape further proceedings on the motion be stayed.

N2>2.������ That the Crown pay the applicant�s taxed costs of the application.

Solicitors for the applicant: Messrs. Craig Kirke & Co.

Solicitor for the respondent: P. J. Clay, Crown Solicitor

[cccxxiii]Infra p. 284.

[cccxxiv]Infra p. 284.