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Muno v State [2012] PGNC 194; N4753 (20 June 2012)

N4753

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 527 OF 2011

CR NO. 596 OF 2011

JOHN MUNO, EDRICK MUNO,
MEROLYNNE SIKA, JOHN SNEK WANIPA
Applicants /Accused

V

STATE

Respondent

Goroka: Ipang AJ
2012: 14 & 20 June

CRIMINAL LAW – Practice & Procedure – Application to transfer the matter from Goroka to Kundiawa – Criminal Code Act – Section 522 – Onus on the applicants to demonstrate "good cause" – Section 522 (b).

Cases Cited

State v Mathias Robert [2009] PGNC 52; N3606 (23 March, 2009)
In the matter of Applications by Rueben Micah and Joyce Maima for change of Place of Trial [2009] PGNC 48; N3596 (16 April, 2009)
State v Theo Yandalan & 2 Ors [1994] PNGLR 405

Counsel

Mr. M.Mumure, for the Applicants
Mr. T.Ai, for the Respondent

RULING
20 June, 2012

1. IPANG AJ: The applicants through their Counsel Mr. Michael Mumure from Public Solicitors office in Goroka seek to have their matter CR. No. 527 of 2011 and CR No. 596 of 2011 transferred to National Court in Kundiawa.

2. The applicants have filed OS No. 857 of 2011 on the 14th November, 2011 in compliance with Criminal Practice Rules. Notice of Motion dated 14th of November, 2011 and the affidavit of John Muno filed on the 14th November, 2011. The applicants sought withdrawal of their motion filed on the 14th November, 2011. State raised no objection. Leave was granted. Motion filed on the 14th of November, 2011 was withdrawn.
   
3. In moving their application, the applicants rely on their Originating Summons (OS) No. 857 of 2011 and the affidavit of John Muno filed on the 14th of November, 2011.
   
4. The applicants also rely on s.522 (2) of the Criminal Code Act and s.155 (4) of the Constitution to pursue their application.
   
5. The Section 522 (2) of the Criminal Code Act states:
   

552. Place of Trial

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

1. On the application of a State Prosecutor or a person awaiting trial or his Counsel; and
2. On good cause being shown,
   

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

6. The applicant John Muno deposed in his affidavit that he is the accused in CR.No. 527 of 2011 and his co-accused are John Snek, Merilyn Sika and Edward Muno in CR. No. 596 of 2011. They were all charged for the offence of attempted murder. The applicants want their case to be transferred to Kundiawa for the following reasons:
   
   1. That the allegations against them (the applicants) were not true as they claimed were only to frustrate the criminal proceedings against the complainants, they (applicants) instituted before the National Court in Kundiawa in which the applicants will be potential State witnesses.
      
   2. The applicants claim that the allegation against them arose at Chuave, Chimbu Province and so they should have been arrested and charged in Chimbu and not in Goroka.
      
   3. The applicants say all their witness are in Chuave, Chimbu Province and it has cost them lots of money to attend to Criminal Call –Overs each month in Goroka.
      
7. Pursuant to Section 522 (2) (b) of the Criminal Code Act, the place of trial can be changed provided that the applicants demonstrate "good cause". In State v Mathias Robert [2009] PGNC 52; N3606 (23rd March, 2009) Makail, J considered the following examples of matters which are relevant to constitute "good cause," these are; 1. Availability and location of witnesses; 2. Costs of bringing witnesses to attend trial; 3. Security of witnesses; 4. Availability of Judges; 5. Availability of accused's lawyers; and 6. List of matters pending trial.
   
8. I will address the first and second grounds relied on by the applicants and then deal with the third ground separately. I believe the third ground relied on by the applicants have some merits and is considered as a "good cause" in such nature of this application.
   
9. The first and second grounds relied on by the applicants in my view do not fall under or constitute "good cause" as stipulated under section 522(2) (b) of the Criminal Code Act, though I am mindful of Makail J's view in Mathias Robert's Case (supra) that s.522 (2) (b) "good cause being shown" be given a wide liberal interpretation.
   
10. These two (2) grounds do not conveniently or appropriately amount to "good cause" however; in my view these two (2) grounds raised are matters which can be considered under section 558 Motion to quash indictment under the Criminal Code Act.
    
11. What then would amount to "good cause" to be shown? It has been shown that "threats and intimidation" is one good cause. In State v Theo Yandalan & 2 Ors [1994] PNGLR 405 Brown, J (as he then was) heard an application by the State to change a venue of a trial from either Wabag or Mt. Hagen to Waigani. This application was made because of threats and intimidation were made to potential State witnesses by the relatives of the 3 accused persons charged with the murder of a deceased person from the same village, a kilometer out of the township of Wabag in the Enga Province.
    
12. In the matter of applications by Rueben Micah and Joyce Maima [2009] PGNC 48; N3596 (16 April, 2009) Cannings, J refused the applicants application for a change of the place of trial as the previous National Court had dealt with the issue. The previous National Court held that detaining the applicants at a Correction Institution close to their place of trial was a reasonable cause of action.
    
13. Does the third ground raised by the applicants amount to or constitute "good cause"? The applicants say all their witnesses are in Chuave, Chimbu Province and that it has cost them lots of money to attend to Criminal Call- Overs each month in Goroka.
    
14. The applicants cannot just say their travels from Chuave to Goroka cost them lots of money. In their respective affidavits in support of their application, they should have deposed the number of trips they have taken to Goroka for their case and travel back. The one way trip from Chuave to Goroka costs how much and for the total number of trips it has cost them how much money. So, at the time of making this application, it is very difficult to ascertain the how much money or the costs, the applicants are talking about. It's about putting facts (no. of trips) in to figures.
    
15. At this juncture, I consider the third ground raised by the applicants to be the good ground, however, I am of the view that this ground has prematurely been pursued. On this basis, I will rule out this ground as a "good cause".
    
16. In totality, I refuse the application to have the matters CR. No. 527 of 2011 and CR No. 596 of 2011 transferred to Kundiawa National Court.

____________________________________

Public Solicitor: Lawyer for the Applicants

Public Prosecutor: Lawyer for the Respondent