N3596
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 76-79 OF 2009

IN THE MATTER OF APPLICATIONS
BY RUBEN MICAH & JOYCE MAIMA

FOR CHANGE OF PLACE OF TRIAL &
CHANGE OF PLACE OF DETENTION, PENDING TRIAL

Madang: Cannings J
2009: 8, 9 April
Kimbe: 16 April 2009

CRIMINAL LAW – PRACTICE AND PROCEDURE – application for change of place of trial – Criminal Code, Section 522.

HUMAN RIGHTS – right of detained persons not to be transferred to an area away from that in which their relatives reside – application for change of place of custody, Constitution, Section 37(20).

Two persons were committed to stand trial at a place that is not their normal place of residence and remanded in custody at a correctional institution that is away from the area in which their relatives reside. They applied, under Section 522(2) of the Criminal Code for a change in their place of trial, and, under Sections 37(20) and 57 of the Constitution for a change in their place of custody. An earlier order of the National Court had determined the place where their committal proceedings would be held and the correctional institution at which they would be detained.

Held:

(1)	An accused person has the right to apply under Section 522 of the Criminal Code for a change in their place of trial but has the onus of showing "good cause" for the change.

(2)	An accused person who is detained in custody has a qualified right under Section 37(20) of the Constitution not to be transferred away from an area from that in which his or her relatives reside "except for reasons of security or other good cause".

(3)	Here, the applicants were unable to show good cause for a change of the place of trial, given that the National Court had earlier dealt with the question of the place of trial and for genuine logistical and practical reasons the State opposed a change of the place of trial.

(4)	Detaining the applicants at a correctional institution close to their place of trial was a reasonable course of action for the State to take and, as this issue had also been previously determined by the National Court, good cause was shown for detaining them at an area that was away from where their relatives reside.

(5)	Both applications were accordingly refused.

Cases cited

The following cases are cited in the judgment:

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212
Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819
Bail Applications by Ruben Micah & Joyce Maima, MP No 417 of 2008, 15.10.08

APPLICATIONS

These were applications by two persons committed for trial, for a change of the place of trial and a change of place of detention.

Counsel

S Toggo, for the applicants
M Ruarri, for the State

16 April, 2009 

1. CANNINGS J: Two people charged in connection with the July 2008 robbery of the Bank South Pacific branch at Madang have applied to have their place of trial changed from Madang to Lae and to have their place of detention changed from Beon Jail to Buimo Jail.

2. The applicants are Ruben Micah and Joyce Maima. They are not related. They are both aged in their 30s and are long-term residents of Lae. Mr Micah is a self-employed businessman. Ms Maima was, until she became implicated in the BSP robbery, the manager of the Lae branch of Credit Corporation.

3. They were committed by the Madang District Court on 9 January 2009 to stand trial in Madang on charges of armed robbery, kidnapping and rape. It is alleged that they arranged accommodation in Lae and transport to and from Madang for the persons who actually committed the offences in Madang. The offences were the theft by armed robbery of about K2.4 million, kidnapping of the BSP branch manager and his family and other bank officers and the rape of one of the kidnapped officers.

4. They were charged with armed robbery in August 2008 and remanded in custody at Buimo Jail, near Lae. They applied to the National Court for bail and were granted bail by Manuhu J on 15 August. Cash bail was set at K2,000.00 each.

5. In October 2008, while on bail, they were charged with kidnapping and rape. They were again detained in custody and again they applied for bail. This time their applications went before Kirriwom J, who refused bail under Sections 9(1)(c)(iii), 9(1)(f) and 9(1)(g) of the Bail Act: the offences with which they were charged involved use of firearms; there was a likelihood of interference with State witnesses; and a substantial amount of money (about K2.2 million) was still not recovered and the applicants, if released on bail, would make efforts to conceal or deal with it.

6. Kirriwom J ordered that the applicants be transferred to Beon Jail, near Madang town, pending their committal proceedings in the Madang District Court (Bail Applications by Ruben Micah & Joyce Maima, MP No 417 of 2008, 15.10.08).

THE APPLICATIONS

7. Each applicant has two applications before the court:

•	first, to have their place of trial changed from Madang to Lae;

•	secondly, to have their place of detention changed from Beon Jail to Buimo Jail.

They are not applying for bail.

THE APPLICATIONS TO CHANGE THE PLACE OF TRIAL

8. They are made under Section 522(2) (place of trial) of the Criminal Code, which states:

In relation to any pending matter in which the trial has not yet commenced, the National Court or a Judge may—

(a)	on the application of a State Prosecutor or a person awaiting trial or his counsel; and
(b)	on good cause being shown,

order that the place of trial be changed to some other place appointed under the National Court Act for sittings of the National Court.

9. In support of their applications the applicants depose that:

•	they are long term residents of Lae,
•	they have family and other dependants in Lae,
•	since being detained at Beon they have not been visited by their families,
•	their lawyers, Daniels & Associates, are based in Lae and it is proving inconvenient and expensive to have the lawyers travel between Lae and Madang for their committal proceedings,
•	their ability to make further bail applications has been prejudiced by their proposed guarantors being in Lae and not within easy reach,
•	being away from their family has been a form of punishment even though they have not yet been found guilty of any crime.

10. These are all legitimate concerns and relevant considerations for the court to take into account when deciding whether to grant the applications. However, I consider that they are outweighed by two considerations relied on by the State, which strongly opposed this application.

11. First, the Special Investigative Task Force that was formed to investigate the robbery has expressed the view, in an affidavit sworn by Manu P Pulei, a member of the National Criminal Intelligence Unit based at Lae Police Station, that the applicants should be tried at Madang. Mr Pulei states that the crime scenes are at Madang and the key State witnesses are at Madang. It would be cost efficient to have the applicants tried at Madang, rather than Lae. I consider that these are genuine logistical and practical reasons for the police wanting to have the applicants tried at Madang.

12. Secondly, Kirriwom J has already addressed the concerns raised by the applicants about their welfare and the welfare of their dependants and made a considered decision that their committal proceedings and their trials should be held in Madang. To a large extent this application is, really, asking me to review a decision that has already been made by another Judge of the National Court. I don’t think it would be proper to do that.

13. The applicants would have been better off applying for bail to the Supreme Court following the refusal by Kirriwom J of their bail applications. They could have done this under Section 13(2) of the Bail Act. They could have also sought leave to apply to the Supreme Court for review of Kirriwom J’s decision under Section 155(2)(b) of the Constitution. There are no express time limits for making either application, so those are options that the applicants might still explore, with the assistance of their lawyers. They might also consider applying for leave to seek review of my decisions on their applications.

14. An accused person who applies to have their place of trial changed bears the onus of showing "good cause" under Section 522(2)(b). In this case, having regard to the two considerations highlighted, I find that they have not shown good cause.

15. Therefore the applications are refused.

THE APPLICATIONS TO CHANGE THE PLACE OF DETENTION

16. They are made under Section 37(20) (protection of the law) of the Constitution, which states:

An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.

17. There is no doubt that Section 37(20) confers a right on an "offender" and that "offender" includes remandees as well as convicted persons (Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212).

18. A remandee has a right not to be transferred to an area away from that in which his or her relatives reside. This is a human right capable of enforcement by the National Court under Section 57 of the Constitution. But it is not an absolute right. There are two exceptions. A remandee can be transferred away from his or her relatives’ area of residence in two situations:

•	reasons of security; or
•	other good cause.

19. I examined the nature of this right in Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819, a case in which four Bougainvilleans convicted in Buka applied for enforcement of their Section 37(20) rights not to be transferred from Buka (an area where their relatives resided) to Kerevat Jail, East New Britain. I upheld the application and ordered that they not be transferred to Kerevat as I was not reasonably satisfied that there were security reasons or other good cause (reason) for them to be transferred. I held that neither the applicants nor the party opposing the application bore any onus of proof. The relevant test to apply was for the court to ask if it was ‘reasonably satisfied’ that for reasons of security or other good cause the applicants should be detained in custody in an area away from where their relatives reside.

20. Applying that test here, I am reasonably satisfied that there is good cause for detaining the applicants at Beon: they will be tried in Madang and they will be required to attend court regularly in Madang for call-overs. It would be expensive and inconvenient and it would pose a security risk to have them detained at Buimo and brought to and from Madang.

21. I therefore refuse their applications for a change of their place of custody.

ORDER

(1)	The applications under Section 522(2) of the Criminal Code for a change of their place of trial from Madang to Lae are refused.

(2)	The applications under Sections 37(20) and 57 of the Constitution for a change of their place of custody from Beon Jail to Buimo Jail are refused.

Ordered accordingly.

Daniels & Associates Lawyers: Lawyers for the applicants	
Public Prosecutor: Lawyer for the State