N5033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 476 0F 2007

APPLICATION FOR ENFORCEMENT OF BASIC RIGHTS
BY BOISEN BUO AND ALI BUO

Kimbe: Cannings J
2007: 5, 11 December

Basic rights (human rights) – right to a fair hearing within a reasonable time – Constitution, Section 37(3)

The State started a criminal trial for wilful murder against two accused that could not be finished by the end of the court circuit. Two further circuits passed, then the matter was re-set for trial twice and could not proceed due to the unavailability of State witnesses. The accused made an application for enforcement of their rights under Section 37(3) of the Constitution to a fair trial within a reasonable time by applying for an order that they be discharged from the indictment.

Held:

(1)	Under Section 37(3) of the Constitution an accused person must be afforded:

•	a fair hearing;
•	within a reasonable time;
•	by an independent and impartial court.

(2)	The "reasonable time" right imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution's case must be completed within a reasonable time.

(3)	What is a "reasonable time" will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the State to explain the delay and provide good reasons for it.

(4)	Here there was an apparently inordinate delay. However, the State provided reasons for it, so, in the circumstances, the delay was not unreasonable. No breach of the right under Section 37(3) had yet occurred.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
The State v Peter Kakam Borarae [1984] PNGLR 99
The State v Peter Painke [1976] PNGLR 210

APPLICATION

This was an application for enforcement of basic rights.

Counsel

T Gene, for the applicants
C Sambua, for the State

11 December, 2007 

1. CANNINGS J: Boisen Buo and Ali Buo have been charged with wilful murder of a man at Vitu Island, West New Britain in February 2004. Their trial started in the National Court in Kimbe in August 2007 but could not be finished and was adjourned to November 2007. When their case was called in November the State could not proceed as its witnesses were not available. I adjourned the case to this month but the State is again not ready and the same reason has been given: unavailability of witnesses. The accused have now brought an application to be discharged from the indictment – they want an order that their case be dismissed – on the ground that they have been denied their right under Section 37(3) of the Constitution to a fair trial within a reasonable time. Their lawyer, Mr Gene, has submitted that I should make such an order under Section 57 of the Constitution, which is the law that allows, indeed obliges, the National Court to enforce the basic rights (also known as human rights or constitutional rights) of all people in Papua New Guinea. The State opposes the application. Senior State Prosecutor Mr Sambua says there are special reasons for the delay and that the State has made a genuine attempt to complete the case only to be thwarted by circumstances beyond its control. There are two issues to address:

•	Have the accuseds' rights been breached?
•	If yes, should the court order that their case be dismissed?

HAVE THE ACCUSEDS' RIGHTS BEEN BREACHED?

2. Every person charged with an offence must be granted the full protection of the law under Section 37(3) of the Constitution, which states:

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.

3. This particular right has three components (The State v Peter Painke [1976] PNGLR 210; The State v Peter Kakam Borarae [1984] PNGLR 99; Application by Benetius Gehasa (2005) N2817). The person charged must be afforded:

•	a fair hearing;
•	within a reasonable time;
•	by an independent and impartial court.

4. It is the middle component that is at issue here: the accused's hearing must be conducted within a reasonable time. In my view this right imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution's case must be completed within a reasonable time. As to the first obligation, if the accused is charged with an indictable offence the Constitution gives a pointer to what might be regarded as an unreasonable delay in Section 37(14), which states:

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 detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

5. It is the second obligation that is in issue in the present case. The prosecution has started the case but the prosecution has stalled. Has the State breached its obligation to complete the case within a reasonable time? What is a "reasonable time" will vary from case to case. If there is an apparently inordinate delay in having a charge heard it is incumbent on the State to explain the delay and provide good reasons for it. Here there has been an apparently inordinate delay. However, I am satisfied with the reasons provided. The witnesses have to come from Bali Island. Communication with Bali is difficult and transport between Kimbe and Bali is unreliable. The State has made reasonable and genuine efforts to bring the witnesses to Kimbe but it has proven difficult. In these circumstances I find that the delay was has not been unreasonable. No breach of the obligation to complete the prosecution case within a reasonable time has occurred. Therefore the accuseds' rights under Section 37(3) have not been breached.

6. If a breach had been established I would still have declined to make an order that they be discharged as the power to enforce basic rights under Constitution, Section 57 is a matter of discretion and the following factors favour declining to discharge the applicants: the very serious nature of the charge and the fact that there is another co-accused involved in this case who has not appeared for his trial and is the subject of an arrest warrant.

7. However, the delay is a matter of concern and if the State does not complete its case at the next circuit in Kimbe the accused will be able to make the same application again and it will be incumbent on the State to prove extraordinary and exceptional reasons for not discharging them.

ORDER

(1)	The application to be discharged from the indictment is refused.

(2)	The applicants will remain on bail pending their trial.

(3)	The parties shall appear at the next National Court callover in Kimbe.

(4)	The State must complete its case at the next scheduled circuit period for the National Court at Kimbe, failing which:

(a)	the applicants will be able to make the same application again; and
(b)	it will be incumbent on the State to prove extraordinary and exceptional reasons for not discharging them from the indictment; and
(c)	if such extraordinary and exceptional reasons are not proven, the applicants will be discharged.

Ruling accordingly.
__________________________________________

Paul Paraka Lawyers: Lawyer for the Applicants
Public Prosecutor: Lawyer for the State