Unreported National Court Decisions
N966
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
SCA. NO. 13 OF 1991
THE STATE
V
ALPHONSE WOHUINANGU
Wewak
Brown J
4 January 1991
CONSTITUTIONAL LAW - Rights to fair hearing and hearing within a reasonable time - Accused seeking discharged from indictment on ground of delay in being brought to trial - Constitution s 27(3).
CRIMINAL LAW - Prosecution must make genuine attempt to complete its case - Delay in having accused brought to trial - Delay not shown to be of prosecution making - No automatic right in accused to have proceedings dismissed for delay alone - Criminal Code Act s 552(4)(b)(ii).
The applicant had been charged with misappropriation in December 1988 at Port Moresby and committed to stand trial on the 17 February 1989. An indictment was presented by the State at Wewak on the 10 March 1990. The trial had not commenced at the time this motion came before the Court at Wewak. The circumstances surrounding the delay appeared more to be owing to circuit exigencies of the National Court than to any distinct failure on the prosecution to bring this applicant to his trial. Considerations by the Court generally to the right of the accused person to an early trial in the conditions and difficulties appertaining in Papua New Guinea at this time. The facts sufficiently appear from the judgment.
Held:
(1)      The onus of showing that the prosecution has not made a genuine attempt to complete its case is on the applicant. Such onus is to be equated with the civil standard.
(2)      The Common Law refusal to recognise the existence of a special right to a speedy trial or to a trial within a reasonable time displace by the Criminal Code Act s 552(4)(b0(ii).
Cases Cited:
The following cases were cited in the judgement:
R v. Byrne [1971] PNGLR 1
R v. Main [1971] PNGLR 290
State v. Frank Jaso Yasini [1983] PNGLR
Jago v. District Court (1989) 63 AlJR 640
State v. Yamai [1987] PNGLR 314
State v. Peter Painke (No.1) [1976] PNGLR 210
Notice of Motion
Application by way of Notice of Motion
Counsel:
L. Gavara, for the Applicant
N. Mirou, for the State
Cur adv vult
4 January 1991
BROWN J:  This application came before the Court at Wewak pursuant to s 552 (4)(b)(ii) of the Criminal Code Act. That part of the Code, Division 4, deals with a right to be tried. It states;
(4)      If -
(b)      at the end of the sittings of the National Court at his place of trial next following the application
(ii)      the Court is satisfied that the prosecution has not in the circumstances of the case made genuine attempt to complete its case, he is entitled to be discharged.
A callover in my chambers was held before the Circuit commenced. A Prosecution Officer made clear Alphonse Wohuinangu was listed for hearing. This corresponds with what Mr Soi, for the prosecution says in his letter to the Public Solicitor. This letter was touched on by Mr Gavara for the accused before me at Wewak. The Wewak Circuit, originally listed to proceed on the 3 December was postponed to commenced on Monday 10 December. Two civil trials at Waigani had been adjourned previously for continued hearing to that week commencing 3 December and I was unable to commence the Wewak Circuit until Monday 10 December. This call over was attended by Mr Soi for Prosecutions and was held before I commenced a circuit to Vanimo in November, so that to the best of my recollection the call over would have been held during the 1st week in November, and counsel advised of the postponed circuit commencement date. A representative from the Public Solicitor’s office was present but no mention was made that the other matter specially fixed, one of Jeremiah Biagamagu would be the subject of a defence application for an adjournment at this sitting as happened on Tuesday the 11 December.
Notice of such application was given the Prosecution Section in mid November, but at no time prior to Tuesday was I appraised of such application even though in a telephone conversation with Mr Soi on Thursday 6 December, he advised Jeremiah Biamaga’s case was specially fixed for hearing this week. He must be presumed to have been appraised of the defence intention to seek adjournment of that case for the letter of the Public Solicitor to Prosecution was sent in the middle of November. Jeremiah Biamaga’s case cannot proceed at these sitting nor can Alphonse Wohuinangu’s case. It is apparent the State has elected to pursue Jeremiah Biamaga’s case and due to the shortened sittings reasoned that there would be no time to try Alphonse Wohuinangu. Mr Mirou for Prosecution was asked on Tuesday whether the State was able to proceed but stated this misappropriation case will not be reached. Again he was asked on the 12 December whether he was able to embark on the case in these sittings. My notes state;
“Not able to embark on trial - rest of State witnesses in Port Moresby - 3 witnesses, Wewak. Victim and witness at Nuku. Investigating officer - Wewak. Fraud Squad Office files not affected. Committal proceedings in Port Moresby. Initially committed to stand trial. Even if State had witnesses available not able to be disposed of in this sittings.”
In those circumstances, I take it that the State in the face of Mr Gavara’s application is not prepared, nor is it willing to embark on the trial in these sittings. I then entertained Mr Gavara’s application on Wednesday 12 December and have not waited to the end of the sittings. I did this having regard to the difficulties of airline flights from Wewak to Port Moresby, (the city from whence the accused has come to answer bail), and the costs involved waiting in Wewak for no real purpose, and with the prosecution officer’s consent.
In other words the State has not brought Alphonse Wohuinangu to his trial in these sittings. “Brought to trial” in the meaning considered by Kelly J in R -v- Byrne (1971) PNGLR 1 @ 5 is -
“To my mind the key words are “brought to trial”. In this context this 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 -
Section 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.”
This reasoning was adopted by Williams J. in R -v- Main (1971) PNGLR 290 @ 291 where the Judge went on to say that the Court may adjourn the trial of an accused person where the Prosecutor had done all it could do and the accused was brought to trial, but the Court sittings were to conclude for instance, before the trial may reasonably expect to finish.
There is no suggestion that the prosecutor would be in a position to embark on the trial before the conclusion of these sittings on Thursday 14 December.
It follows, Mr Gavara says, that there is a right in the accused to be discharged. That right was discussed and the words entitled to be discharged received judicial consideration in the State -v- Frank Jaso Yasim (1983) PNGLR.
The Deputy Chief Justice adopted and applied R -v- Byrne @ 5 and R -v- Martin May @ 289 and said @ 113 -
“That is to say that if the circumstances of the provision are proved he should be discharged if he chooses to claim the entitlement.”
Mr Gavara made a further point that this court has no discretion but to discharge an accused if circumstances provided for in the section appertain. He says no discretion is allowed if the court has regard to the spirit of the Constitution on a reading of s 37(3).
That section says -
(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.
Mr Gavara says that although the accused made an application under s 552(2) in March 1990, (in fact at the sittings subsequent to the indictment) he does not lose his right to call for his discharge even though his application does not immediately follow in the sittings subsequent to s 552(2) application. With that submission I cannot wholly agree, s 552(2) merely opens the door to such an application as is here made. It is still for the Trial Judge to consider the particular reasons for the prosecution’s failure to embark on the trial, as touched on in Main’s Case.
The place of trial is Wewak. It was previously Port Moresby but was changed on the 29 August 1989 with the consent of the accused. He appeared at Wewak on the 16 October 1989, and again in December 1989. In March 1990 the Court noted a s 552(2) application had been made during the last sittings and the matter was set down for trial on the 14 June 1990. On the 15 June, my brother Judge, Los J. noted “that the matter not reached, the accused known to Judge” and the matter was stood over to the next sittings.
In July my brother Judge, Salika J. again noted that the matter was not reached and it was stood over to the next sittings. On the 16 October it came before my brother Judge, Jalina J. and the file again noted the s 552(2) application, the matter being stood over to the next sittings.
The accused in his affidavit read on the application before me recounted that the Prosecutor in the October and December 1989 sittings “disqualified” herself from prosecuting. He alleged a similar course was taken in March 1990. In June when it was supposedly listed for hearing he says it did not come on.
In July the Prosecutor disqualified himself. There seemed to be consensus that at least my brother judges, Los J. and Jalina J. disqualified themselves but there is no right of which I am aware in a Prosecutor to take that course. He is not judging the issues. If he is embarrased then presumably he would take steps to avoid the embarrassment. He is under a duty however to prosecute in the name of State in accordance with his appointment.
On reflection the July 1990 sittings seem to be the only sittings where the Court has had an unbridled chance to have the trial commenced.
In any event the history is a sorry one. Whilst I have had s 37(3) of the Constitution referred me I consider so far as this accused is concerned, involving as it does indictable offences, s 552 of the Criminal Code Act codifies the accused’s rights so that s 552 then is exhaustive of his rights under s 37(3) of the Constitution, to a trial within a reasonable time. The common law as it affects rights to a speedy trial in New South Wales for instance does not apply. I particularly refer to consideration of the question in Jago v. District Court (N.S.W) (1989) 63 ALJR 640, there the appellant had been charged with some thirty company directorship offences under the New South Wales Crimes Act 1900. Although the Trial Judge found that there had been an inordinate delay between the time when the applicant was committed for trial in July 1982 and when the matter was listed before the District Court in June 1986, the Judge thought that on balance, an application for a permanence stay on the indictment should be refused. An appeal was dismissed by majority. The question raised on appeal to the High Court was as to whether the common law of Australia recognises a right to speedy trial separate from the right to a fair trial. It found no such right.
In Papua New Guinea King AJ clearly identified the problems. In State -v- Yamai (1987) PNGLR 314 at 318 he says -
“Whilst this state of affairs 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 the “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.
In this case, I have regard to the more detailed reasons for these various adjournments recounted by Mr John Alman, Lawyer of Wewak, who was also present at various of these sittings (and who gave evidence before me at Wewak) and the affidavit of the accused, it is clear that the prosecution has not been to blame for in fact the more recent sittings since indictment resulted in the case not being reached or the Judge disqualifying himself.
The reasonable time constraint imposed by s 37(3) of the Constitution is not one of particular exactiude. An accused person cannot say for instance that he has not been tried within 12 months of the alleged offence and hence according to law he is entitled to be discharged from his indictment.
The matters which must bear on what is a reasonable time are set out in s 552 of the Criminal Code Act. s 37(3) of the Constitution touches on varous concepts two of which interest us here. They are the right to a fair hearing and a hearing within a reasonable time. Clearly King A.J. was dealing with the latter concept, reasonable time, and has related it, properly in my opinion, to the requirements of s 552 of the Criminal Code Act.
Constraints are placed on the prosecution in that latter context for it is not enough for the prosecution to stand mute on an application by an accused under s 552(4)(b). The prosecution must satisfy the Court on the balance of probabilities it has in the circumstances of the case made a genuine attempt to complete its case. It is certainly relevant that the victim (and a witness) is at Nuku but no evidence is before me to explain why they could not be brought by air or by road to Wewak where other witnesses are available. The real reason it would seem is that the prosecution was unprepared for this trial, expecting the trial of Jeremiah Biamaga to last the entire sittings, an expectation which has not been shown to be fully justified.
A discharge on this indictment is tantamount to a permanent stay as contemplated in Jago’s case. As the High Court there decided, a permanent stay is an extreme remedy and would be very rare on the basis of delay alone. Courts in Australia have inherent jurisdiction to control and supervise their own proceedings. I can see no good reason for departing from that principle which is implied by the unlimited jurisdiction given the National Court by s 166 of the Constitution.
Contrary to Australian common law however, there is a right in Papua New Guinea to trial within a reasonable time but it is a mistake to confuse that concept with a time frame and think in terms of six months or nine months for instance. The Criminal Code envisages an explanation to the Courts satisfaction by prosecution authorities of its attempts to complete its case. With the greatest respect to my brother, I consider O’Leary A.J’s comments in The State v- Peter Painke (No.1)(1976) PNGLR 210 @ 212 cloud the distinction between the right to a fair hearing and a trial within a reasonable time. He says (in this passage below), that to allow the charge to remain would be to do a substantial injustice to the accused. Those words import presumptive prejudice, no actual prejudice having been shown. That is not in my view part of the law in Papua New Guinea. Rather the question of delay, as Mr Gavara says, imports no discretionary considerations by the Judge but is related solely to the enquiry envisaged by s 542(4)(b). I consider that O’Leary AJ’s comments deal with presumptive prejudice and impinge on the fair hearing concept.
“It is now some 14 to 16 months since the alleged defence was committed - 11 months since the accused was committed for trial - and 6 months since the case first came before the Court for trial. In those circumstances, I thought that to postponed the trial any longer would be ... to deny to the accused his right “to be afforded a fair hearing within a reasonable time” as guaranteed by the Constitution. Although he has been on bail throughout, I thought the accused had already been under the cloud of the charge for far too long and to allow that position to continue any longer would be to do a substantial injustice to him.” The State v. Peter Painke (No.1) at p.212.
But in those circumstances the common law does not recognise the existence of a special right to a speeedy trial or to trial within a reasonable time.
In this present case I am not satisfied that the prosecution has not in the circumstances of the case, made a genuine attempt to complete its case. In those sittings other than July 1990 the Court was instrumental in having the case postponed. In July if I accept the Court file endorsement the matter was not reached and in these sittings in December through the exigencies of the sittings it has again not come on for trial. The facts since the presentation of the indictment, are found as I have set previously out.
To place undue emphasis on time frames, in contradiction to the wording of s 552(4)(b) would in my view unduly interfere with the independent role of the State Prosecutor. The resources of the State may be unnecessarily directed to prosecutions facing a cut off date as it were and those persons lucky enough to reach beyond this time frame may expect to be freed from criminal liability. I cannot perceive this to be due administration of justice. At different times, different considerations apply and this country at this time is faced with a crisis going to the root of the judicial system. The government daily has calls for greater enforcement of existing laws and for new laws to combat “a law and order” problem. Any particular person accused of an offence is entitled to demand his rights in accordance with the laws of the land but regard must be had in this overall context to the exigencies of Court work at sittings outside the Waigani Centre.
This is a case involving a lawyer charged with misappropriating personal injury damages money belonging to a member of the public who availed himself of a legal aid scheme administered by the East Sepik Provincial Government. The accused was then employed by that Provincial Government. I am informed that he has been suspended on full pay pending the outcome of these proceedings. There is no information at my disposal as to the aggrieved man’s position.
The National Court is required to consider s 158(2) of the Constitution in the dispensation of justice, which connotes justice according to law. The law cannot import notions of presumptive prejudice as I have indicated.
I gave short reasons in January and now publish my considered reasons.
Application is refused
Lawyer for the appellant: L Gavara-Nanu
Lawyer for the State: Public Prosecutor