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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (AP) NO. 42 OF 2015
THE STATE
Applicant
V
KEITH LING
Defendant
Kokopo: Anis J
2019: 18 & 23 April
CRIMINAL LAW – Application for transfer of matter – section 522(2) – Criminal Code Act Chapter No. 262 – discretion – allegation of threats – whether threats on defendant good reasons to restrain exercise of discretion – whether the location of State witnesses should be paramount above other considerations – section 37 of the Constitution considered
Facts
The defendant was charged with fraud and misappropriation. The complaint against him was lodged in Buka in the Autonomous Region of Bougainville in 2015. The defendant was later arrested and charged in Kokopo in East New Britain. He was granted bail. The State claimed that investigations were completed and that the matter was ready for trial in Buka. It has therefore applied to have the matter transferred there. The defendant opposed the application. His main reason was that he feared for his life because he said that he had been threatened by the complainant and his accomplices in Buka. He wanted the matter to remain and be trialled at the Kokopo National Court.
Held
Cases cited
Nil
Counsel
Ms J. Batil, for the State
Mr N. Katosingkalara, for the Accused
RULING
23rd April, 2019
1. ANIS J: The prosecution has applied to have the matter transferred from Kokopo to Buka in the Autonomous Region of Bougainville. I heard the application on 18 April 2019 and reserved my decision to 9:30am this morning.
2. This is my ruling.
RELEVANT FACTS
3. The defendant is presently out on bail. The complaint against him was lodged in Buka in the Autonomous Region of Bougainville in or about 2015. He used to work with a company called Sankamap Exports Limited in Buka. It is alleged that between 1 June 2014 and 31 May 2015, the defendant had obtained from the company, without the company’s authority, a total sum of K168,120 for his own use or for others. By then, the defendant had left Buka and came to live with his parents in Kokopo in East New Britain Province.
4. On 20 July 2015, he was apprehended by police in Kokopo. He was charged with one count of stealing under section 372(1) and one count of misappropriation under section 383A(1), charges that were brought under the Criminal Code Act Chapter No. 262 (Criminal Code Act). On 11 February 2016, the defendant was committed to the National Court to stand trial for the offence, misappropriation, pursuant to section 383A of the Criminal Code Act.
APPLICATION
5. The application is made pursuant to section 522(2) of the Criminal Code Act. It reads, and I quote in part:
(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 for sittings of the National Court.
EVIDENCE
6. The prosecution relies on the affidavit of State Prosecutor in Buka Sabine Dusava filed on 3 April 2019. The defendant opposes the application. He relies on his affidavit filed on 17 April 2019.
ISSUE
7. The issue is whether the Court should exercise its discretion, that is, by considering whether the prosecution has disclosed good cause for this Court to order that the place of trial be changed to the Buka National Court in the Autonomous Region of Bougainville.
DISCRETION
8. The Court’s power under section 522(2) of the Criminal Code Act is discretionary and it is to be guided by good cause. The burden to show good cause of course rests with an applicant. On the same note, if such an application is contested, then the respondent must also either negate the good cause or reasons that have been put forward by the applicant, or the respondent could provide good cause or reason(s) himself or herself to demonstrate why the matter should not be transferred thus convince the Court against exercising its discretion.
9. I will make my assessment based on these.
CONSIDERATION
10. At the hearing, I indicated to counsel for the defendant Mr Katosingkalara that there seemed to be sufficient evidence that the matter should be transferred to Buka. I based these on the fact that the incident had occurred in Buka and that the witnesses were most likely to be located there. Counsel in reply, referred to the defendant’s affidavit. There, counsel pointed out the main reason, which is this. The defendant says that he fears for his life or well-being, that is, given the actions of the complainant and his accomplices towards him in the past. Counsel urged the Court to also apply the same test under section 522(2) of the Criminal Code Act, and refrain from exercising its discretion to transfer the matter. By that, counsel submits that his client has demonstrated good cause as to why the matter should not be transferred to Buka to be trialled there, but rather, that it should be trialled here at the Kokopo National Court.
11. Two notable events highlighted in the defendant’s evidence were these. The defendant said he was arrested in Kokopo in early February 2016. He said he was immediately flown over to Buka the next day where he was kept there in police custody. He said some days later, the complainant, Robert Critchley, approached him and uttered the following words in pidgin, “Yu pilim nau, bai you stap karabus long hia.” In English, he said something like this, “Do you feel it now? You will stay imprisoned here.” He was later released and was told to go back to Kokopo as ordered by the National Court. He said he was left there without his phone or resource to look for his way back to Kokopo. He said when he finally booked his flight to travel back to Kokopo, the complainant protested to Air-Niugini in Buka, and as a result, he was off-loaded from the plane. When he returned to the terminal, he said the complainant and his accomplices approached him and verbally abused him. He said the complainant uttered the following words in pidgin, “yupla olgeta lukim em stil man ya, con man ya, em wok lo laik ronawei now.” In English, he said something like this, “Everyone see this thief, he is a conman and he is trying to escape.” He said had it not been for the quick actions of police who were still there at the airport who had dropped him off earlier, he could have been assaulted by the complainant and his accomplices. He said the complainant was well-known and an influential person in the Autonomous Region of Bougainville. He said he felt that his life was in real danger at that time and even now, that is, if he is allowed back to Buka for his trial. He said he has no relatives in Buka. As such, he requests that the matter remain and be trialled at the Kokopo National Court.
12. Sabine Dusava for the prosecution gave historical accounts of the matter in her affidavit. However, no rebuttal was provided in relation to the allegations raised by the defendant either in evidence or through submission. The prosecution, however, argues that the matter should be transferred to Buka to be trialled there because (i), the State witnesses are based in Buka, and (ii), so that the public could see the outcome of the case which had been delayed by the defendant.
13. In regard to the two (2) reasons given by the prosecution, I will say this. I find the first reason to be a valid reason. The witnesses are based in Buka and cost may be saved if the trial is conducted there. The defendant did not have a direct rebuttal for this reason. I, however, do not regard the second reason as valid. The prosecuting counsel wishes the trial to be conducted at Buka so that the public could see the outcome of the case. All National Court proceedings, with limited exceptions, are public hearings. Decisions reached by the National Court are open and are available to the public for viewing. Section 37(12) of the Constitution, if I may, reads, and I quote in part:
“ Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public”.
14. Let me now consider the reason given by the defendant. Evidence of him being threatened and verbally abused by the complainant and his accomplices was not contested. The defendant said he feared for his life if the matter is to be trialled in Buka, and he gave detailed accounts of the incidents which he claimed had occurred to him in Buka in February of 2016, in his affidavit. I have covered the main incidents above in my judgment. I ask myself this. Is that a valid reason, or would that constitute good cause as to why the proceeding should not be trialled at Buka in the Autonomous Region of Bougainville?
15. To answer that, let me try to understand this. The defendant faces the criminal charge, misappropriation. He is an accused person. Should this Court therefore ignore the evidence that his life may be in danger? Or should the Court disregard the evidence because that is what is or may be expected of an accused person? And should the location of the State witnesses be regarded as paramount and should that outweigh the reason provided by the defendant? In my view, I would answer, “no,” to all the three (3) questions. In my view, I find the threats or experiences of the threats issued by the complainant upon the defendant as serious and not something to be taken lightly by this Court. The right of an accused person is equally paramount in a democratic society. The Constitution recognises the rights and privileges of its citizens. In regard to accused persons, the Constitution does not only equally recognise their rights, but it gives more emphasis of the need to protect their rights (i.e., the rights of accused persons). Section 37(1) & (4) of the Constitution reads, and I quote:
37. Protection of the law.
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
......
(c) shall be given adequate time and facilities for the preparation of his defence; and
......
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
(Underlining mine)
16. When I consider these constitutional provisions, I am obliged to uphold and so shall I. In that regard, I will say the following. In regard to observance of section 37(1), I am not satisfied that the defendant may be afforded the full protection of the law if the matter is transferred to Buka for trial. I particularly take into account what the defendant had undergone after his arrest and detention in Buka. I also and perhaps most importantly, take into account the need for his safety and protection during the course of the trial. In regard to observance of section 37(4), I am also not satisfied that if the matter is transferred to Buka, that the defendant will be duly represented in terms of preparations as well as in terms of being duly represented at the actual trial. Presently, the defendant is out on bail and resides in Kokopo. He is also represented by the Public Solicitor’s office of Kokopo. I have no information before me regarding further representations of the defendant if the matter is to be transferred, and so I can only say that it is not certain whether the Public Solicitor, through his office here in Kokopo, will continue to act for the defendant if the matter is transferred to Buka for trial.
17. In summary, I find that the good causes or reasons demonstrated by the defendant outweighs the one demonstrated by the prosecution. I will therefore refuse to exercise my discretion to transfer or order trial of the matter at Buka in the Autonomous Region of Bougainville. The trial shall take place here in Kokopo in East New Britain.
18. I also note from the prosecution’s submission that the matter is ready for trial. I will hear from counsel after this and give directions for pre-trial forms and for a trial date(s) to be set.
ORDERS OF THE COURT
Application is declined
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused
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