DC748

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE [SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 1015-1016 of 2006

BETWEEN

YATEFA WELLIS
Informant

AND

PAUL MIUGLE
First Defendant

AND

BOI KAMAN
Second Defendant

Kundiawa: M. Gauli, PM
2008: March, 31st, April 01st

CRIMINAL – Charged for unlawful Wounding – No appearance by prosecution – Dismissed for want of prosecution.

Cases Cited:
1. Ronald Nicholas –v- Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133. 

References:
Nil

Counsels:
For the Prosecution - No Appearance
For the Defendants - In person

01 April 2008

DECISION OF THE COURT

M. Gauli, PM: The defendants Paul Miugle and Boi Kaman are charged for unlawfully wounding one Bau Sine on the 26th of August 2006 at Kundiawa hotel. They appeared before me on Monday 31st of March 2008 and pleaded not guilty to the charge. I then fixed the case for trial on Tuesday 01st April 2008 at 9.00 o’clock in the morning. Unfortunately there was a National Court Legal Year opening in Kundiawa in the morning on the 1st of April. And so all the cases were generally stood over to 1.00pm the same day. The prosecutor Senior Const T. Goiye did prosecuted the case on 31st March when the case was adjourned for trial the next day with his consent and knowledge.

1. When the case was called at 1.00pm and again at 2.00pm on the 01st April, there was no prosecutor available. The Court was not informed of the reasons for the none availability of the prosecutor. Both defendants are present on extended bail. I am here on two weeks court circuit and I have already fixed two to three cases for trial each day over the duration of the circuit. The prosecutors are therefore expected to be available to prosecute their cases on the trial dates as fixed.

2. I consider s.124 of the District Courts Act as to whether or not this Court should adjourn the case to a later date. This provision gives the Court the powers to either adjourn or dismiss the information where the complainant is absent. This provision state and I quote:

 “If, on the day and at the place appointed by a summons for hearing and determining an information of a simple offence or an indictable offence triable summarily – 

(a) the defendant attends voluntarily in obedience to the summons, or is brought before the Court by virtue of a warrant; and
(b) the complainant, having had notice of the day and place, does not appear by himself or by his legal representative the Court shall dismissed the information unless for some reason it thinks proper to adjourned the hearing to some other days”.

3. The police prosecutors in all criminal proceedings in the District Courts including the Grade Five Courts, are the legal representatives of the complainants or the victims. Their absence from the Court room is detrimental to the prosecution case especially when no reasons are given to the presiding Magistrate in advance of his absence. The Court has the power to dismiss for want of prosecution but that must be treated with some cautions.

4. It was held in the case of Ronald Nicholas –v- Commonwealth New Guinea Timbers Pty Ltd [1986 PNGLR 133 that Courts power to dismiss the proceedings for wants of prosecution should be exercised only where the plaintiffs failure was intentional and inexcusable. In the present case I could not see any reason for the prosecutor not be in Court and prosecute the case at 1.00pm after the Legal Year Opening. The defendants were charged and first brought to Court on the 11th of September 2006. The election for summary trial was made and filed on the same date. The proceedings were adjourned for six times for trial but on three occasions the trials were abandoned at the prosecutor’s request while other adjournments were due to non-availability of a Grade 5 Magistrate.

5. For the prosecutor’s none availability to prosecute the case on the 01st of April 2008 is inexcusable. I find that the prosecutor’s failure to prosecute is the reason for this Court to exercise s.124 of the District Courts Act to dismiss the proceedings for want of prosecution. And I do order that the case dismissed and discharged the defendants each and severally forthwith. And that their bails be refunded.

For the Prosecution - No Appearance
For the Defendants - Present in Person