N2916

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1084 OF 2001

THE STATE

V

SAM KUMBAT & DANNY WAKON

KOKOPO: LENALIA, J.
2005: 23 March, 17 May

Criminal Law – Practice & Procedure – Application for discharge – Failure to be "brought to trial" – Indictment already presented – application can be made at any time "at the end of the sittings of the National Court at his place of trial next following the application" – Entitlement to discharged after presentment of indictment – Three sittings have lapsed since indictment was presented – No genuine attempt made by State to prosecute – Criminal Code s. 552 (2)(4), Ch. No. 262, Criminal Practice Rules 1987 O.1 rr. 11 & 12.

Cases cited:
R –v - Byrne [1971] PNGLR 1
The State -v- Frank Taso Yasim [1983] PNGLR 111
The State -v- John Nuki Yamai [1987] PNGLR 314
Lindsay Kivia, Robert N’Draku & Peter Seski -v- The State [1988] PNGLR 107
The State -v- Alphonse Wohuinangu (1991) N966

Counsel:
J. Pambel for the State
G. Kori for First & Second Accused

17 May 2005.

LENALIA, J. The two accused by their lawyer, Mr. G. Kori from the Public Solicitor’s Office in Rabaul made a verbal application at the end of the March circuit for the two accused to be discharged for want of being prosecuted pursuant to s. 552(2) (4) (a) (b) (ii) of the Criminal Code, Ch. No. 262. The application was made because the indictments were presented on 15th of September 2004. The two accused now say that, the State has since not made no genuine attempt to prosecute the two accused.

Such application was made because the indictments had been presented on 15th of September 2004, but the State had not made any genuine attempt to prosecute the two accused. 

The records show that the two accused were arrested in 2001. After their arrests they were then charged with three charges of deprivation of liberty, unlawful use of a motor vehicle and the final one for armed robbery contrary to ss. 355, 383 and 386 of the Criminal Code. 

Two accomplices arrested together with them have been discharged. After presenting three sets of indictments on the above date, Mr. Rangan of counsel for the prosecution filed a declaration and a nolle prosequi for and on behalf of John Paul and Joseph Kivung. The relevant provisions for filing such documents are ss. 525(3) and 527 of the Criminal Code.

The relevant law on this type of application is contained in s. 552(2) & (4) of the Code. I quote those provisions:

"(2) A person who has been committed for trial sentence or against whom the Public Prosecutor has laid a charge under s. 526 may make application at any sittings of the National Court to be brought to his trial."
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(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."

The endorsement on the file cover may not be accurate; however this is what it presents. The applicants first appeared for mention on 2nd of April 2002. It seemed the matter was left unattended to until the 3rd of September 2003 when the matter was called. Accused Danny Wakon did not appear that day and a Bench Warrant was issued for his arrest. 

On 16th of June 2003, the two accused were brought from custody for the matter to be pre-trialed and to be listed for trial. On the 10th of August that year their case was called but was not listed for trial due to the practice adopted by this Court whereby cases are listed following committal dates. Following that, the matter was set for trial on 15th of September 2004. During this time, the indictments were presented. After the nolle and declaration were filed for the two applicants’ accomplices, the trial could not proceed and the matters were further adjourned to 1st of November 2004 for trial. 

On that date, the State could not proceed for reasons that, the two State Prosecutors in Rabaul could not prosecute the two accused for conflict of interests. The Public Solicitor’ officers were much in the same position so the trial could not proceed. The case was adjourned to 22nd of February 2005. Still on that date, the trial could not proceed for the same reasons.

On 23rd of March, 2005, Mr. Kori of counsel for the two applicants, made a verbal application for the pair to be discharged pursuant to s. 552(2)(4) of the Criminal Code. In his brief verbal submissions, Mr. Kori argued that the two accused Constitutional rights to a speedy trial has been breached and the applicants should be discharged forthwith. 

The relevant provisions of s. 37 (1) (3) and (14) of the Constitution states:

"37. Protection of law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(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.

(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detail report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration."

The next provision referred to the Court, is s. 42(3) of the same document. That section provides for the liberty of all persons. It also sets out exceptions under which a person may be held in custody. Subsection (3) of section 42 says:

"3. A person who is arrested or detained-

a)	for purposes of being brought before a court in the execution of an order of a court; or

b)	upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer."

It was argued that the two accused had been remanded since their arrest in late 2001. Applicant Sam Kumbat had been continuously remanded since then. Danny Wakon took advantage in 2003 and escaped lawful custody.

He was arrested by the end of that year. It was argued that, the two applicants have been kept in custody for over the four months requirement in s. 37 (14) of the Constitution. 

Before I proceed further, I face the same difficulty as was in the Application of Lindsay Kivia, Peter N’ Draku and Peter Seski – v – The State [1988] PNGLR 107 where a similar application was made, but it was made verbally. In the instant application no objection was taken by Mr. Pambel of counsel for the State. I took it that the prosecutor acceded to the manner under which this application was made and therefore, I proceeded to hear the application. 

The Criminal Practice Rules of 1987, Order 1 r. 11 requires that:

"All applications allowed under the Code, Probation Act Ch. No. 381 or by these Rules shall be made by Originating Summons." 

But Rule 12 of the same Rules specifically states that, the Court may dispense with compliance if it is in the interest of justice to do so. In fact in Lindsay Kivia and Others – v – The State (supra) His Honour Mr. Justice Amet (as he then was) expressed an obiter dictum holding that, an application pursuant to section 552 of the Code should be commenced by Originating Summons. 

The issue in the instant application is, have the two applicants made preliminary application in terms of s. 552 (4) (a)(b)(i)(ii) of the Code. The above provision reads:

"(4). If –
(a)	a person has made an application under Subsection (2); and
(c)	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." 

From the historical background circumstances of this application, I am satisfied that the two applicants have not complied with s. 552(2)(4)(a)(b) of the Code in their appearance in February this year. 

It is accepted law now that, once an indictment has been presented, the State is under an obligation to proceed with the trial. It was held in R – v – Byrne [1971-72] PNGLR 1 that once an indictment against an accused is presented an accused is now brought to trial and he must be tried according to law. 

I distinguish this application from the application The State – v – John Nuki Yamai [1987] PNGLR 314, where no indictment had been presented. In that case, King A,J. said that in an application such as the one now before this Court, 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 either to present the indictment or has not prosecuted an accused, or at least, no "genuine attempt" has been made to prosecute an accused person, such person has an entitlement to be discharged. It must be noted that it is only after an application has been properly made under s 552(2) that an accused could move his application, see also the case of The State – v – Frank Taso Yasim [1983] PNGLR 111.

In the instant application although, the indictment has been presented, meaning the two accused persons trial has commenced, the two applicants did not make any application pursuant to s 552(2) of the Code. It is my view that, that provision is a prerequisite to making an application for discharge. I therefore refuse this application.

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Lawyer for the Applicants	: Public Solicitor
Lawyer for the State 		: Public Prosecutor