N622

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN NUKI YAMAI

Mount Hagen
King AJ

24 September 1987

CRIMINAL LAW - Practice and procedure - Application for discharge - Failure to be brought to trial - Failure to present indictment "at the end of the sittings ... next following the application" - Entitlement to discharge arises on non presentment of indictment at sittings "next following" - Discharge may be ordered at any subsequent sittings - Criminal Code (Ch No 262), s 552(2), (4).

The Criminal Code (Ch No 262), s 552, provides that a person who has been committed for trial may make application at any sittings of the National Court "to be brought to his trial". Section 552(4) provides:

"(4) If—

(a) a person has made an application under Subsection (2); and

(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."

At the June sittings of the National Court an accused made an application under s 552(2) of the Criminal Code to be brought to his trial on a charge of robbery. At the July sittings of the Court no indictment was presented against the accused. At the September sittings of the Court the accused sought to be discharged pursuant to s 552(4).

Held:

(1) Properly construed, s 552(4) does not mean that the entitlement to discharge is intended to come to an end with the "sittings next following" the application, but that the grounds contained in s 552(4)(b)(i) or s 552(4)(b)(ii) must be shown to exist at those sittings, so that once the State has failed to present an indictment at the "sitting next following" an accused has an entitlement to a discharge which he may at his option thereafter exercise.

The State v Frank Taso Yasim [1983] PNGLR 111, applied.

(2) The accused should accordingly be discharged.

Cases Cited

The following cases are cited in the judgment:

Beckwith v The Queen (1976) 135 CLR 569; 51 ALJR 247; 12 ALR 333.
R v Byrne [1971-72] PNGLR 1.
State, The v Frank Taso Yasim [1983] PNGLR 111.
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547.

Application for discharge

This was an application by an accused made pursuant to the Criminal Code (Ch No 262), s 552(4), for discharge on the ground that no indictment had been presented against him.

Counsel:

S Norum, for the State.
D Poka, for the accused.
Cur adv vult

24 September 1987

KING AJ.: This matter came before me in Mt Hagen on 24 September 1987 when it appeared that two sittings previously, on 9 June 1987, the accused had made an application pursuant to s 552(2) of the Criminal Code (Ch No 262) to be brought to his trial upon the charge of robbery made against him. That application was noted on the court file. It also appeared that at the following sitting of the court in Mt Hagen in July 1987 no indictment was presented against the accused. I was informed, and accepted, that what had happened at the July sittings was this: on 14 July 1987, when the sittings were about a week advanced the accused was called and did not answer his bail whereupon orders were made for the issue of a warrant for his arrest and the forfeiture of his bail; that on that day he had in fact left to get a witness needed for the defence of the charge; that he thereafter presented himself in court on 20 July 1987 (which was the third last day of the sittings) when the orders of 14 July abovementioned were revoked and his bail was restored; and that the matter did not come on for hearing before the conclusion of the sittings.

Against this factual background an application was made to me on 24 September by the accused’s counsel that the accused be discharged pursuant to s 552(4) of the Code. The State strongly resisted the application. After hearing argument I acceded to the application and made an order discharging the accused. I said that I would publish reasons for so doing later and I now set forth my reasons.

Section 552 of the Code provides, so far as material:

"552 Right to be tried—

(1) In this section, ‘place of trial’ means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(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—

(a) a person has made an application under Subsection (2); and

(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."

In The State v Frank Taso Yasim [1983] PNGLR 111, Kapi Dep CJ considered the application of s 552 in a slightly different factual context. There the application pursuant to s 552(2) ("the preliminary application") had been made and noted at the sittings of the Court at the accused’s place of trial immediately before the sittings at which his Honour was presiding. Before his Honour the accused pressed that the matter be heard and on the last day of the sittings, when no indictment had been presented, made an application to be discharged. His Honour held (following R v Byrne [1971-72] PNGLR 1), that in the circumstances the accused, who had made out the ground specified in s 552(4)(b)(i), had an entitlement to be discharged if he chose to exercise it and that the Court had no discretion not to discharge him. The accused sought to be discharged and was discharged.

In this case the facts are different to this extent: the accused did not make his application to be discharged at the sittings next following that at which he made the preliminary application, but the one after that; and at the "sittings next following" he did not press for a trial. I am aware that there is a division of opinion among the judges of the Court as to whether on its true construction s 552 only operates to entitle an accused to be discharged if he makes his application for discharge at the "sittings next following" or whether all that need take place at that sittings is the failure of the State either to present an indictment or to make a genuine attempt in the circumstances to complete its case, whereupon the entitlement to be discharged arises and may be exercised then or later. I do not delude myself that my views will resolve the difference, but I hope that they may provide a useful background for the consideration of this important point by the Supreme Court at the same time.

I agree with all that Kapi Dep CJ said in Yasim’s case but I do not think it quite extends to the point thrown up by this case. The closest his Honour came to giving guidance for present purposes was in the following passage of his reasons, which appears (at 113):

"... It seems to me that where an application under s 552(2) is made by an accused the minimum action the State can take is simply to present an indictment against the accused by the last day of the sittings following the application. By taking this action the State brings the accused person to trial. This does not mean or follow that the State will complete the case at the time of the presentation of the indictment. However, the Court has a discretion to stand the matter over or adjourn it and direct that a date be given for the trial of the matter in the next sittings. In most cases the Court would be disposed to grant this as it would not have the time to complete the case when the application is made at the end of the sittings. ..."

I think that in the situation which Kapi Dep CJ was considering in that case, given that the accused had time to make an application to be discharged on the last day of the sittings, the State must have had time in the circumstance to try to comply with s 552(4)(b)(i) by physically presenting the indictment and so try to defeat the accused’s application. Apparently it did not do so. Even if it did, I think his Honour, with respect, dealt correctly with the matter. Once the accused got in first on the final day with no indictment having been presented and sought to be discharged, his Honour was of course hearing the accused’s application which was based on the very failure to present the indictment. Any belated attempt to present it, if allowed, may only have driven his Honour to a consideration of the alternative ground for a discharge under s 552(4)(b)(ii), because an attempt at the last minute to present an indictment, prompted only by the accused’s application for a discharge, could well have afforded strong grounds for thinking the prosecution had made no genuine attempt to complete its case. However, it is not necessary to dwell on these points for present purposes, nor was it in Yasim’s case and Kapi Dep CJ did not do so. Neither in that case nor this was an indictment presented at the "sittings next following" and given the factual differences of the case I repeat that I do not regard Yasim’s case as covering this case.

Accordingly I turn to my own views of s 552 in the present context.

First, I should say that apart from a healthy distaste for discharging persons from lawful custody who may have committed serious crimes — which cannot be a guide to the construction of any provision of the Code when accused persons are presumed innocent until found guilty — the view that both the non-presentation of the indictment (or the establishing of the second ground pursuant to s 552(4)(b)(ii) in an appropriate case) must take place at the "sittings next following" can only, it seems to me, be supported by reading the words "... at the end of the sittings ... next following the application" where they appear in s 552(4)(b) as indicative not just of when either of the two grounds must be established, but also of when the entitlement to be discharged both comes into being and lapses. With respect, the only warrant I can see for such a reading of the provision is to argue that because those words are the only words in the provision which point to a time for doing things they must govern every aspect of the provision as regards time.

However, the first step in construing a statute is to give its provisions their plain and natural meaning. Only if that approach produces a result repugnant to the statute as a whole, or in the case of genuine uncertainty, is it necessary to go to the many secondary rules of construction. On a natural reading of s 552 it does not seem to me that the entitlement to a discharge is intended to come to an end with the "sittings next following", but only that at that sittings ground (i) or ground (ii) of s 552(4)(b) must be shown to exist. The immediate proximity of the relevant words to those grounds, indeed the fact that those grounds are introduced in point of time by those words, seems to me to make the plain and natural meaning the one I prefer. I would have expected the legislature, if it had intended to fetter the accused’s right to be discharged by confining it to when the grounds for its arose, to adopt the simple course of adding words at the conclusion of the provision after the word "discharged" making that intention clear.

In my opinion the significance of the mention of the "sittings next following" as a relevant time is only to indicate when it is that the State must take action. The whole purpose of s 552 seems to me to be to impel the State to prompt action. Once the State has failed to present an indictment at the "sittings next following" it follows that the accused has an entitlement to be discharged which he may at his option thereafter exercise. Any criticism of this result on the basis that the accused is in effect given a licence to clutter up the Court list with his case until he seeks to be discharged at his pleasure is to my mind untenable. In practice it is unlikely that applications for discharge will be long delayed, and in an appropriate case of long delay the Court, which has inherent jurisdiction to prevent abuse of its process, could then refuse the application, but in my opinion not otherwise.

On the plain wording of the provision it does not seem to me to matter whether the accused presses to be brought on for trial: he need only make the "preliminary application".

If I am wrong in the view that there is no room for doubt as to the plain meaning of s 552 on the present facts, and the difference in the views of the judges of the Court give me grounds for a doubt to that effect, then nonetheless in my opinion such secondary aids to construction as are relevant lead to the same conclusion.

Section 552 is clearly a remedial provision, designed to benefit an accused who has been left in custody without a prompt trial. Whilst the rule of construction that remedial or beneficial statutes are to be construed liberally in favour of those intended to be benefited has lost ground (see SGG Edgar, Craies on Statute Law, (7th ed 1971), at 531) it is a rule which still has some application, as appears from the same passage in the work just cited. For example, it is very much part of the legitimate approach to construing workers’ compensation statutes, which are clearly beneficial, in that they provide rights where previously there were none: see Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, per Asprey JA, at 553. A liberal approach inevitably leads to the view I formed on the plain meaning.

Alternatively, if one bears in mind that the Criminal Code is a penal and criminal statute, even though the well known rule that in case of doubt such statutes are to be construed strictly in favour of the person charged has also lost ground and been relegated to "last resort" status (Beckwith v The Queen (1976) 135 CLR 569; per Gibbs J, at 576) to the extent that it can assist or resolve any doubt as to the true meaning of s 552 it can only favour the accused in this case.

There is no other secondary rule of construction which seems to me possibly to bear on the matter, and for all the above reasons I discharged the accused as abovementioned on 24 September 1987.

What I have said above deals with this matter within the strict limits of its own facts. But at the risk of becoming wearisome, I wish to add some further comments about s 552(4)(b)(ii).

It is almost a notorious fact that there is a substantial backlog of cases awaiting hearing in the criminal lists, especially in Mt Hagen. In my short time here I have noted with concern, and have learned that the other judges of the Court are even more concerned, that the State does not bring cases on for hearing in strict order of priority. It is common to see an accused person brought up for trial whose alleged offence and date of committal for trial took place well after those of many other accused persons in custody. At times taking cases out of order in this way is to avoid risk of a discharge from custody because a preliminary application under s 552(2) has been made at the previous sittings. Such a course on the part of the State is understandable, though some might say that even then the older matters should have their proper priority. However, at times, indeed often, cases are simply brought on when they do not on any view deserve the priority they are thus given.

Whilst this state of affair prevails, it seems to me that the State will always be likely to be in some difficulty under s 552(4)(b)(ii), even when it presents an indictment to avoid the operation of the first ground for discharge. So long as cases are not brought on systematically according to their "seniority" I think it must follow that the State will not be able to plead pressure of work as showing that a genuine effort to complete the case had been made and that only cases with priority prevented that from occurring. On the other hand, it may well be that if cases were routinely brought on by the State in strict order of priority (subject only to necessary adjournments on good grounds granted by the Court to either party), s 552(4)(b)(ii) would cease to be of much practical assistance to an accused person in custody. He would not be able to escape the fact that he will get his hearing in his proper turn.

Moreover there are other obvious positive benefits in the State pursuing such a firm policy for disposing of cases. Everyone, accused persons, prosecutors, defence counsel, witnesses, police and the Court, both judges and staff, know where they stand and can plan accordingly. Experience in all jurisdictions and classes of work shows that if the workload is tackled systematically according to priority, subject only to rare special cases on good grounds, the movement of lists seems to gather a momentum of its own.

When cases are brought on haphazardly these advantages cannot display themselves. More importantly, however, it seems to me that as things stand s 552 will remain a potent weapon in the hands of accused persons seeking discharge from lawful custody, and that of course means some, at least, guilty persons.

Accused discharged

________________________

Lawyer for the State: S Norum.
Lawyer for the accused: D Poka.