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State v Yap [2015] PGNC 30; N5891 (16 March 2015)

N 5891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 646 OF 2012

THE STATE

-v-

ANGELA YAP
Accused

Mendi: Kassman, J
2015: March 12th, 13th & 16th

CRIMINAL LAW – Willful Murder – no indictment presented – no witness for State brought in for trial – section 552(2) application for accused to be brought to trial granted – section 552(4) application that accused be discharged granted

Cases cited

Nil

Legislation cited

Criminal Code s.552 (2) and (4)

Counsel:

Sheila Luben, for the State
Cecilia Koek, for the Accused

DECISION

16. March, 2015
    
1. KASSMAN J: On 15 March 2012, Angela yap ("Yap") was committed by the District Court in Mendi to stand trial in the National Court on the charge of willful murder of Gibson Namba at Pomberal Health Centre, Nipa District Southern Highlands Province on 24 August 2011.
   
2. On 9 February 2015, pre-trial was conducted and this matter listed for trial on 12 and 13 March 2015.
   
3. On 12 March 2015, the State informed the Court that the State's witnesses were not in court. Counsel for the State advised that the OIC prosecutions Inspector Napote had informed her that the arresting officer had been tasked to locate and bring the witnesses in for the trial. The State made application for an adjournment to 9:30am the next day as this matter was set for two days trial. Counsel for the State assured the Court that she had advised Inspector Napote in writing on 23 February of all matters listed for trial in the month of March 2015 including this matter. It was also noted that the arresting officer Senior Sergeant Epara Piuk was not in court and counsel was advised that he was not in Mendi. Counsel for the Accused then gave notice of her intention to make application pursuant to section 552(2) of the Criminal Code when the matter returns for continuation of the trial the next day.
   
4. Section 552 of the Criminal Code provides:
   

Division 4.—Trial: Adjournment: Pleas: Practice.

552. Right to be tried.

(1) In this section, "place of trial" means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

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

(3) If no indictment has been presented against the applicant—

(a) where the application is made at a sittings of the National Court at the place of trial—before the end of the sittings at which the application is made; or

(b) where the application is made at a sittings of the National Court at some other place—before the end of the next sittings of the court at the place of trial, the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(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.

5. When the matter was called at 9:30am the next day 13 March 2015, the State advised that their witnesses had not been brought in to court. Counsel was not in a position to advise as to the whereabouts of the witnesses, whether they were informed of the date for trial and the prospects of them being located and brought in for the trial.
   
6. Counsel for Yap then made application that Yap be brought to trial pursuant to section 552(2) of the Criminal Code which provides a person committed for trial may make application at any sittings of the National Court to be brought to trial. In this matter, the indictment had not been filed. After deliberating further with counsel for the State and the accused, I then said I understood the words or phrase "be brought to trial" to mean that the trial be commenced and concluded. As the last day of sittings of this Court this month is on Monday 16 March 2015, I granted the application made by Yap and adjourned the trial to 9:30am on 16 March 2015.
   
7. On 16 March 2015, counsel for the State informed the court that State witnesses were not located and are not available for the trial. Counsel for Yap then made application pursuant to Section 552(4) of the Criminal Code for an order that Angela be discharged.
   
8. The court notes Yap and her co-accused Werekeya Yap were charged and detained in custody in early September 2011. The co-accused escaped from lawful custody and has not been recaptured. Yap has remained in custody since then, a period of three years and six months. No affidavit has been sworn and filed by the OIC Prosecutions or the Arresting Officer as to arrangements in locating and bringing in for trial the State witnesses. The State has had three years and six months to prepare their witnesses for trial. There is no guarantee that the State witnesses will be located and brought in for trial if a further adjournment was granted. There is also no evidence suggesting the State witnesses travel to court to give evidence has been disrupted in any manner or form. The application pursuant to Section 553(4) of the Criminal Code is granted.
   
9. The Accused Angela Yap is this day acquitted on the charge of willful murder and discharged from custody forthwith.
   

Judgment accordingly,

__________________________________________________________________

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