N5514

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1480 OF 2005

THE STATE

V

SAMSON YAULING

Wewak: Cannings J
2009: 18, 20 November

CRIMINAL LAW – practice and procedure – procedure to adopt after the Court finds that an accused person is not capable of understanding the proceedings – Criminal Code, Section 569(3)(c) – whether the accused should be discharged or kept in custody.

The Court, having found that an accused was not capable of understanding the proceedings, conducted a further hearing to determine whether the accused should be discharged or kept in custody.

Held:

(1)	Relevant considerations to be taken into account in deciding whether an accused person found to be of unsound mind should be discharged include: whether it is safe to release the accused into the community and whether the interests of the accused would better be advanced by his being discharged.

(2)	Here, it was not clear that it would be safe for the community for the accused to be discharged and it was in his best interests that he be detained at a psychiatric hospital.

Case cited

The following case is cited in the judgment:

The State v Samson Yauling CR 1480 of 2005, 12.11.09

RULING

This was a ruling on whether an accused who had been found to be incapable of understanding the proceedings should be discharged from custody.

Counsel

D Mark, for the State
A Hombunaka, for the accused

20th November, 2009 

1. CANNINGS J: This is a ruling under Section 569(3)(c) of the Criminal Code on whether the accused, Samson Yauling, should be discharged from custody. Section 569(3)(c) states:

If the court finds that the accused person is not capable of understanding the proceedings … the court may order the accused person—

(i)	to be discharged; or
(ii)	be kept in custody in such place and in such manner as the court thinks proper until he can be dealt with according to law.

2. I ruled on 12 November 2009 that the accused is not capable of understanding the proceedings because he is of unsound mind (The State v Samson Yauling CR 1480 of 2005, 20.11.09). A hearing has been conducted to receive information and opinion from the following office-holders on whether the accused should be discharged from custody (and if so, on what terms) or kept in custody (and if so at what place and in what manner):

(a)	Acting Chief Psychiatrist, Momase Region;
(b)	Provincial Welfare Officer;
(c)	OIC, Community Based Corrections, Wewak; and
(d)	Police Investigating Officer.

3. I also invited anybody with a legitimate interest in the matter to attend the hearing and seek the leave of the Court to express an opinion on the matter.

4. In attendance were the Provincial Welfare Officer Mrs Veronica Kurufher, the OIC of Community Based Corrections, Wewak Ms Kutan Piniou and a prisoner-friend of the accused Mr Damien Anis. Apologies were relayed on behalf of Acting Chief Psychiatrist Dr Priscilla Nad and the Police Investigation Officer.

5. Mr Anis said that it would not be a good idea to send Samson to Laloki as his relatives were agreeable to him going back into the community and would look after him.

6. Ms Piniou spoke on behalf of the office-holders and said that they are all familiar with Samson's case and his condition, they have discussed what is best for him and his family and the community, they have travelled to his village and Dr Nad has been consulted. Their collective view is that the best thing is for Samson to be sent to Laloki Psychiatric Long Stay Hospital so that he can get expert care and attention. Dr Nad has filed a recent assessment dated 13 November 2009, in which this view is clearly expressed.

7. Relevant considerations to be taken into account in deciding whether an accused person found to be of unsound mind should be discharged include: whether it is safe to release the accused into the community and whether the interests of the accused would better be advanced by his being discharged.

8. Here, it is not clear that it would be safe for the community for the accused to be discharged and I think it is in his best interests that he be detained at a psychiatric hospital. I consider that the view expressed by Ms Piniou is a more persuasive and professional view than that expressed by Mr Anis and I will make orders to give effect to the professional opinion that has been received.

ORDER

9. The National Court orders under Section 569(3)(c)(ii) of the Criminal Code that the accused shall continue to be kept in custody on the following terms:

(1)	The Commissioner of the Correctional Service and the Jail Commander, Boram Correctional Institution, East Sepik Province, shall within two months after the date of this order take all steps necessary to transfer the accused from Boram Correctional Institution, East Sepik Province, into the care and custody of the Officer-in-Charge of the Laloki Psychiatric Long Stay Hospital, National Capital District.

(2)	He shall only be released from the care and custody of the Officer-in-Charge of the Laloki Psychiatric Long Stay Hospital, National Capital District by order of the National Court; and seven days notice of any application for the accused to be released from such care and custody shall be given to the Public Prosecutor.

(3)	In the meantime he shall continue to be detained in custody at Boram Correctional Institution.

Ordered accordingly.
_________________________________________

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