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Brown v The State [1993] PGSC 5; [1993] PNGLR 430 (1 July 1993)

PNG Law Reports 1993

[1993] PNGLR 430 - Christopher David Brown v The State�

[1993] PNGLR 430

SC444

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHRISTOPHER DAVID BROWN

V

THE STATE

Mount Hagen

Woods Los Sakora JJ

24 May 1993

1 July 1993

CRIMINAL LAW - Practice and procedure - Application for discharge - Failure to present indictment at end of the sittings at his place of trial next following the application - Place of trial - Meaning and intent of Criminal Code s 552.

CONSTITUTIONAL LAW - Fair hearing within reasonable time - s 37(3) Constitution.

Facts

An application had been made to have the appellant discharged under s 552(4) of the Criminal Code as the trial date had been set down five months after the committal hearing. The application was dismissed at first instance.

Held

N1>1.������ Section 552 of the Criminal Code gives an accused the right to an expeditious trial, and the intention of this section is to move the State to act in a reasonable time.

N1>2.������ The accused was awarded his right to have a fair hearing within a reasonable time, namely within five months of the committal.

N1>3.������ Section 552(4) guarantees a right of trial at the next available sittings after the sitting in which the trial date has been decided.

Cases Cited

R v Byrne [1971-72] PNGLR 1.

State v Yasim [1983] PNGLR 111.

Counsel

A MacDonald for the appellant

V Noka for the State

1 July 1993

WOODS LOS SAKORA JJ: This is an appeal against the ruling of His Honour Justice Salika, given on 4 July 1991 at Waigani, when he dismissed an application under s 552(4) of the Criminal Code to have the accused discharged.

On 8 February 1991, the District Court at Boroko committed the accused to stand trial on one count of misappropriation and one count of corrupt commission. The accused was granted bail and ordered to appear before the National Court on 25 February for listing, this being part of the criminal procedure for the efficient listing of criminal trials. At the mention on 25 February, counsel for the accused made an application pursuant to s 552(2) of the Criminal Code to be brought to trial.

The presiding judge at this mention adjourned the matter for trial on 8 July 1991. This was done in accordance with the current listing procedures to give the accused, immediately after committal, a firm date for trial, a right enforced by s 552. This trial date gives the accused his turn in the order of committal with others. It is not possible in this listing procedure for an accused to, in effect, jump the queue.

On 8 May 1991, the accused applied by way of originating summons for an order discharging him from further prosecution, pursuant to s 552(4) of the Code. The indictment against the accused was served on him on 1 July 1991 and the matter came on for trial on 4 July 1991. At that time, the application filed on 8 May was heard. The trial judge found there was no merit in the application and dismissed it. For other reasons, the trial of the accused did not proceed on that date, and the trial was adjourned. This appeal was then filed, and the further trial was stayed pending hearing of the appeal.

The appeal alleges that His Honour erred in fact and in law in finding that s 552(4) of the Criminal Code did not entitle the appellant to be discharged in respect of the criminal charge. It is submitted that, having made an application to be brought to trial in February, it was incumbent on the State to present an indictment and bring the accused to trial at the next sitting after that February sittings. The State failing to present an indictment, the accused claims he is entitled to be discharged. It is submitted that the phrase "at the end of the sittings of the National Court at his place of trial next following the application" means the March sittings of the National Court at Waigani.

But is it necessarily the March sittings? At the mention of the matter in February, it was agreed not that the matter would be stood over generally to the next callover, as is often the case, and then s 552 matters, as we call them, are noted carefully. Rather, the matter was given a specific date and place for trial, albeit some four and half months ahead.

So, for the purpose of the application of the accused the next sitting becomes the sitting in July, when it was agreed that his trial would take place, "his place of trial" being Waigani on July 8.

But even if one took a very narrow interpretation, it could be argued that the accused had waived his right at the March sittings by not making the application under s 552(4) at the sittings in March, thereby confirming his acceptance of the next sittings for him as being July.

But the court must also take an overall view of the intention of s 552 when interpreting the relevant subsection. Section 552 is to give an accused the right to an expeditious trial. Whilst the section uses the word "present an indictment" as well as the words "bring to trial", the intention is to move the State to act in a reasonable time. As Kelly J said in R v Byrne [1971-72] PNGLR 1 at p 5:

"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. I do not consider it necessary that matters reach the stage of the accused being called upon to plead so that under s 594 the trial is deemed to begin; s 590 does not say 'and whose trial has not begun'. The object of the section appears to me to be to prevent the Crown from failing, after the lapse of a reasonable period, to bring before the Court a person who has been committed for trial and who seeks to be brought before the Court so that he may make his defence to the charge or, if the Crown is unable or unwilling to come with its witnesses to make a case against him, so that he may then be discharged."

I emphasise the words "after the lapse of a reasonable period". This section predates but is no more than reinforcing Constitution s 37(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."

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. However, the Court is always conscious of the relevance of the four months standard set in s 37(14) of the Constitution.

Here, we have an accused two weeks after committal asking to be brought to trial within the following four weeks. That is usually not possible in the listing procedures we have referred to above. In the circumstances here, the judge gave a set date four and a half months in advance. No objection was taken at the time. There would appear to have been no appearance in March to press for the s 552 follow-up, so has there been any unreasonable delay or even error, by the court in proceeding as originally planned to the date in July? The accused has been awarded his constitutional right to have a fair hearing within a reasonable time, namely within five months of the committal. This is a right which he has since abrogated.

In the case State v Yasim [1983] PNGLR 111 the judge was dealing broadly with the entitlement to be discharged where a person had 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 is no doubt in that case that after 11 months the court was entitled to so act. The circumstances are not identical in the case before us now.

The trial judge here has acted properly and fairly under the intention of s 552 and was conscious of the rights of the accused under the Constitution. The accused was not entitled to be discharged in July, when his trial had been set down to commence. We dismiss the appeal.

Lawyer for the appellant: Warner Shand.

Lawyer for the respondent: Public Prosecutor.