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State v Bip [2019] PGNC 67; N7795 (8 April 2019)

N7795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 03 OF 2019

THE STATE

V

CHRISTINA BIP

Waigani: Berrigan, J
2019: 8 April

CRIMINAL LAW – PRACTICE AND PROCEDURE – S. 522 of the Criminal Code – Transfer of place of trial – Considerations – Place of alleged offence.

Cases Cited:
Papua New Guinea Cases

The State v Yandalan, Kapalin and Morris [1994] PNGLR 405
The State v Robert (2009) N3606
The State v Bukoya (2010) N3888

Overseas Cases

R v Yanner [1997] 2 Qd R 209

References cited

Sections 522, 555 and 556 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr D. Mark, for the State
Mr J. Kolowei, for the Accused

RULING ON APPLICATION TO TRANSFER PLACE OF TRIAL

8 April, 2019

1. BERRIGAN J: On 17 November 2018 the accused was committed by the Waigani District Court to stand trial at the Waigani National Court on three counts of misappropriation contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. The accused is from Nipa/Kutubu in the Southern Highlands Province. At the material time she was a director of Wala Construction Limited, a company based in Mendi, a position she had held since its incorporation in 2015. It is alleged that on 27 November 2017 she forged the signature of the Company Secretary to withdraw K30,000 from the Mendi Branch of the Bank of South Pacific (BSP), which she dishonestly applied to her own use. It is further alleged that the accused then abandoned her position with the Mendi General Hospital and fled to Port Moresby where, despite the efforts of the Company Board to remove her from office, she misappropriated two further amounts of K25,000 and K29,000 from the company’s account at the Waigani Branch of BSP on 26 and 27 February 2018, respectively.
   
3. Investigators from Mendi pursued the accused to Port Moresby where ongoing efforts ultimately resulted in her apprehension and charge. She appeared from remand at the Waigani District Court and was granted bail. An application for transfer to Mendi by the police pursuant to s. 24 of the District Court Act was refused by that court.
   
4. The State now applies to have the place of trial transferred to Mendi in the Southern Highlands Province pursuant to ss. 555 and 556 of the Criminal Code.
   
5. It is not in dispute that the National Court sits in Mendi, although it currently does so at Ialibu/Pangia, following the destruction of the Mendi National Court House in 2018.
   
6. Section 555 provides that a court before which a trial has commenced may adjourn the trial to a different place. This matter is yet to come to trial, however, and neither s. 555 nor s. 556 have any current application, although both may become relevant in the future for the reasons discussed below.
   
7. Section 522 “Place of Trial” is operative and provides that:

“(1) Subject to this section, the place of trial shall be–

(a) when the person awaiting trial has been committed for trial or sentence–

(i) the place to which he has been committed for trial or sentence; or ...

(2) 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 1975 for sittings of the National Court.

(3) This section does not affect the power of the court before which a trial has commenced to adjourn the trial to a different place.”

8. To succeed in its application the State must establish “good cause” for the transfer. Essentially, the question is whether justice will be served. This means both that the State is able to bring an accused person to trial and that the accused receives and, I would add, is seen to receive a fair trial: The State v Yandalan, Kapalin and Morris [1994] PNGLR 405. What will constitute good cause is obviously a matter to be determined on a case by case basis.
   
9. Having regard to the few cases which have considered this issue, it appears that the following matters may be relevant: the cost and inconvenience of bringing witnesses to trial; the security of witnesses and the accused; the accused’s right to legal representation; the extent of disruption or cost to court resources and current listings; and any likely delay: Yandalan, supra; The State v Robert (2009) N3606; and The State v Bukoya (2010) N3888. The list is by no means exhaustive.
   
10. For the reasons discussed below, I am of the view that the place where the offence is alleged to have occurred is also a very relevant consideration.
    
11. The State submits that the complainant, witnesses and investigating team are all based in Mendi and transfer would substantially reduce the cost of a trial.
    
12. The accused opposes the application on the basis that the alleged offences took place in Port Moresby, where she was also arrested and committed. She submits that she now lives in Port Moresby with her two children, as do her witnesses. Since her husband, the complainant, abandoned her she is dependent on informal work in the city to sustain her family. She says she has no funds to travel to and from either Port Moresby or her home village of Nipa to the court house in Ialibu/Pangia. Nor will she be able to pay for her witnesses to do so.
    
13. I am satisfied that the State has established good cause to have the matter transferred to Mendi. The cost and inconvenience of bringing the complainant, State witnesses and the investigation team to Port Moresby will obviously be great. In this regard it is highly relevant that on the material before me, the alleged criminal conduct stems from the accused’s position in the company based in Mendi, a position long-held, and that the first of the charges, is alleged to have taken place in Mendi.
    
14. In my view it must not only be in the interests of the orderly and efficient administration of justice that trials should usually proceed close to the place where the offence allegedly occurred (see the discussion in R v Yanner [1997] 2 Qd R 209 with respect to the equivalent provision under the Queensland Criminal Code) but in the interests of transparency and accountability for both the accused and the local community as well. For those reasons it must be assumed that s. 522 is premised on the basis that accused persons will normally be committed in the province where the offence allegedly took place. Moreover, it cannot be the case that prosecutions fail to proceed, or only do so at significant cost and inconvenience to the State, because police have had to pursue and arrest an accused who has fled from the place of the alleged offence. It is clear to me that the accused in this case was committed in Port Moresby because she fled here. It was only due to the sustained efforts of investigators from Mendi that she was apprehended at all.
    
15. Fairness to the accused does require that she has the opportunity to test the State case and present evidence on her account if she so chooses: Yandalan. The transfer will not affect those rights. The accused has a home in Nipa in the SHP. Her evidence that her witnesses are in Port Moresby in one paragraph of her affidavit and then in Nipa in another, appears, without explanation, disingenuous. In any event, those are matters which may be raised and considered by the trial judge under the provisions highlighted above, if and when the need arises. The transfer will not affect the accused’s right to legal representation, currently provided by the Public Solicitor’s Office.
    
16. I have also had regard to the issue of any delay that might be occasioned by the proposed transfer. According to the National Court Calendar, and related enquiries, the next sitting in Mendi will take place in May. As such there is no issue in this respect either. I will, however, allow the accused to continue to meet her bail conditions here in Port Moresby until call over is conducted on 6 May 2019.
    
17. The place of trial is hereby changed from the Waigani National Court to the Mendi National Court. The court file shall be transferred accordingly. Bail is extended until, and subject to review, on Wednesday, 10 April 2019.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner