N6488
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 32, 65 & 353 OF 2016

BETWEEN:

PATMA MANDA, ROSE GENA & KELA GENA
Applicants

V

THE STATE
Respondent

Kundiawa: Liosi, AJ
        	 2016: 12th August &10th October

CRIMINAL LAW – Practice & Procedure – Applicants discharged pursuant to s.37 (3) constitution and s.552 (4) Criminal Code – Applicants rearrested again – Application for discharge s.155 (4) constitution. 

Cases cited: 
State v. Dobuma (2002) N2292
State v. Kivia [1988-89] PNGLR 256
State v. Kotange (2015) N5913
State v. Yasim [1983] PNGLR 111
State v. Yamai [1987] PNGLR 314
The State v. Yegiora (2011) N4503
Counsel:
Mr. J Kesan, for the State 
Mr. W Bigi, for the Accused 

                                                                 Ruling
10th October, 2016
1.	LIOSI AJ,   This is a ruling on the notice of motion filed by the applicants on 5th Aril 2016. The  applicants seek orders pursuant to Section 155(4) of the Constitution in the following      terms:-

1.	The applicants are discharged forthwith of the alleged offences of seven (7) counts of arson.
2.	The applicant’s bail of K300.00 be refunded. 
3.	Any other further order the court deems appropriate.

2.	The background to the matter is as follows. The applicants Kela Gena and Patma Manda were arrested and charged with 7 counts of Arson and were committed on 24th November 2010. The applicant Rose Gena was arrested and charged with the same counts of offences and was committed on 14th February, 2014. 

3.	The trial in the matters were inordinately delayed well beyond the constitutional time frame of indictments to be presented within 4 months from the date of committal. The delay was over 4 years reasons been continuous adjournments, vacation of trial dates and change of lawyers. 

4.	    On 27th December, 2014, the applicants through their lawyers made an application to the National Court under Section 37(3) of the Constitution and Section 552(4) of the Criminal Code for their discharge because their rights to be tried within a reasonable time were denied. 

5.	On 10th February 2015, the National Court comprising of Marum AJ granted the application and discharged the applicants. 

6.	In discharging the applicants, the Court also made the remarks in the following terms; 
“By this discharging order under section 552(4)(a) & (b) all or any of the accused person can be recharged.”  
7.	This concluding remarks by the judge prompted the Police to rearrest and recharge the applicants on the same charges based on the same file contents with relevant changes in the dates on the Information and witnesses statements. They were recommitted to the same Court giving rise to this application. 

8.	The issue in this case is whether the applicants can be rearrested and recharged over the same charges that they were previously discharged off under Section 37 (3) of the constitution and Section 552(4)(a) & (b) of the Criminal Code. 

9.	The applicants submit they were initially discharged after their applications were made pursuant to Section 37(3) of the Constitution and Section 552(4) of the Criminal Code as they were not tried within a reasonable time. 

10.	Further that there is nothing under Section 552(4) of the Criminal Code authorising the Court to give that option /discretion to the Police to recharge the applicants again. 

11.	The discharge under Section 552 was done in consequence of a breach of a Constitutional right of an accused person, namely the right to be tried within a reasonable time guaranteed by Section 37(3) of the Constitution. 

12.	The respondent submits that failure to be tried within a reasonable time guaranteed by Section 37(3) of the Constitution resulted in the discharge. This is clearly distinguished by filing of “Nolle Prosequi” under Section 527 of the Criminal Code where it is open to Police to rearrest and recharge an accused any time later when the situation changes upon evidence becoming available. 

13.	There have been various cases decided on the issue of discharges under Section 552(4)(a) & (b). They are State v. Kivia [1988-89] PNGLR 256, State v. Yasim [1983] PNGLR 111, State v. Yamai [1987] PNGLR 314, State v. Dobuma (2002) N2292, The State v. Yegiora (2011) N4503, State v Kotange (2015) N5913. 

14.	The accused in the above matters were discharged under Section 552(4)(a) & (b) of the Criminal Code in their peculiarly different circumstances. Notably in none of those cases above were there any comments, suggestions from the Courts as to the possibility of reviving the cases nor were there any indications to the Police to recharge the accused persons after their discharge. 

15.	Section 552 of the Criminal Code itself is silent on whether the accused persons discharged under that section can be subject to any further arrest and charge by the Police on the same evidence. 

16.	In my view, the accused herein were already discharged by operation of Section 37(3) of  the Constitution and Section 552 of the Criminal Code. Section 37(3) of the Constitution guarantees an accused right to be tried within a reasonable time. Sub-section (14) even    specifically states a time frame of 4 months from the date of committal. 

17.	Clearly the intent and the spirit of the above provisions are meant to safeguard the constitutional rights of an accused person. Furthermore, the layout of Section 552 of the      Criminal Code clearly spells this out. It provides the steps leading up to sub-section (4)     wherein the application for discharge can be made. 

18.	In my view, once a person who is subjected to a denial of his/her constitutional rights and is remedied by a discharge from police allegations, he cannot be subjected to the same process. Such a process is already provided for under Section 527 of the Criminal Code which provides for a Nolle Prosequi where the Police can rearrest and recharge upon evidence becoming available. This is not the case.

19.	As stated earlier in all of the decided cases so far, no similar situation has arisen. His Honour’s comment/advise has raised a new ground altogether. It is my view that the accused in this matter cannot be rearrested and recharged by Police again. However, this maybe a matter for interpretation by the Supreme Court as there is no direct case authority on point. 

20.	I find that the circumstance of the case warrants a discharge of the applicants and I so order that they be discharged forthwith. 

21.	   The formal Orders of the Court are; 
	a. The accused are discharged forthwith. 
	b. The bail moneys are to be refunded.        
Orders accordingly, 
__________________________________________________________
Public Prosecutor : Lawyers for the State	
Henaos Lawyers   : Lawyers for the Accused