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Borarae, Makian, Sarep, Sagat, Gomang, Kamdong and Jirau, The State v [1984] PNGLR 99 (1 May 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 99 - The State v Peter Kakam Borarae, Magun Makian, Martin Bargang Sarep, Anton Mogen Sagat, Boibo Gomang, Rudolph Kamdong and Andrew Boto Jirau 

[1984] PNGLR 99

N460(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER KAKAM BORARAE, MAGUN MAKIAN, MARTIN BARGANG SAREP, ANTON MOGEN SAGAT, BOIBO GOMANG, RUDOLPH KAMDONG AND ANDREW BOTO JIRAU

Madang

Woods J

1 May 1984

HUMAN RIGHTS - Unreasonable detention - Right to fair hearing within reasonable time - Charge of wilful murder - No hearing after eleven months - Order for release pending trial made - Constitution, s. 37(3), s. 42(5).

CRIMINAL LAW - Practice and procedure - Trial within reasonable time - Charge of wilful murder - No hearing after eleven months - Order for release pending trial made - Constitution, s. 37(3), s. 42(5).

Section 37(3) of the Constitution provides that a person charged with an offence shall be afforded a fair hearing within a reasonable time.

Section 42(5) provides that on complaint made that a person is unreasonably detained, the National Court shall inquire into the complaint and where the person is detained on remand pending trial, unless satisfied that the detention is lawful and does not constitute an unreasonable detention having regard, in particular, to its length, shall order the person’s release either conditionally or subject to such conditions as the court thinks fit.

On 4 July 1983 seven accused were charged with wilful murder following the death of an alleged sorcerer at Maragis village in the Madang Province.

In February 1984 the court because of the long delay granted bail to the accused which they were unable to raise.

In April the court indicated its expectation that the accused would be brought to trial but arrangements were not made to that end.

Held

(1)      The delay in bringing the proceedings on was unreasonable and the right of the accused under s. 37(2) of the Constitution to be afforded a fair hearing within a reasonable time was being denied.

(2)      In the circumstances, and despite the charge being one of wilful murder, the court should exercise its power under s. 42(5) of the Constitution and order the release of all seven accused from detention pending hearing on condition that they report to the next sitting of the National Court in Madang.

Application for Release Pending Trial

This was a ruling on an application for release pending trial under s. 42(5) of the Constitution.

Counsel

F. Damen, for the State.

M. Konido, for the accused.

1 May 1984

WOODS J: The accused have been committed for trial on a charge of wilful murder. On 31 May, a man was brought before a village councillor at Maragis village and accused of causing a death by sorcery. The relatives of the deceased are alleged to have punched and kicked the alleged sorceror who fell down during the beating and apparently died from a ruptured spleen. These relatives are, I understand, the accused before me now. They were arrested on 4 June 1983 and have been in custody ever since.

Because of the long delay and in spite of the fact that it was a charge of wilful murder, the National Court in February granted bail to the accused. However, they were unable to raise the cash bail. At that stage, it was quite clear that every attempt should have been made by the State to bring this matter on before the National Court as soon as possible.

At the commencement of the April sittings of the National Court, I made it clear to the State that I would be sitting here in Madang for a full three weeks and I expected all efforts would be made to get any long outstanding matters dealt with as there was ample time to make any difficult arrangements to bring in witnesses. Near the end of the three weeks as no attempt seemed to have been made to bring this matter on, I gave the State ample time to have this matter brought on by 17 April asking the State if they thought they could arrange for this matter to be heard after Easter. Then on 19 April, I said I would be returning on 30 April to specially hear this matter.

The arrangements made by the State to have this matter ready for hearing seem to have failed.

The public solicitor’s officer has referred me to ss 37(3) and 42(5) of the Constitution and has submitted that eleven months custody is unreasonable detention and that the accused should be released from custody. The public solicitor’s officer is also making application under s. 552 of the Criminal Code that the accused be brought to trial.

I find that there has been unreasonable delay and the right of the accused under s. 37(3) of the Constitution to be afforded a fair hearing within a reasonable time is being denied. I have been acquainted with the alleged facts and in spite of the fact that the accused are committed on a charge of wilful murder, I will use my power in s. 42(5) of the Constitution and order the release of all seven accused from any detention pending the hearing of this matter. However, I impose a condition that they report to the next sittings of the National Court here in Madang on Monday, 4 June when their right to be tried as set out in s. 552 of the Criminal Code will apply.

I must comment here that there are two sides to justice. There is the need to bring wrongdoers to justice. This requires the efforts of the people involved as witnesses or complainants and the authorities. I emphasise that it is the responsibility of the police to take all steps necessary to bring law breakers to justice. Then there is the other side that justice must be seen to be done and human rights must not be infringed. People must not be detained for an unreasonably long period of time without a full and fair hearing. Eleven months is without doubt an unreasonable length of time.

There has been no satisfactory explanation for the poor effort to have this case ready for hearing. It is not as though the authorities do not know where everyone is. The witnesses presumably all come from the same village which, whilst distant, is known and accessible. The authorities must act when required and in particular, must be conscious of any unreasonable passage of time. The National Court is always ready to assist with hearing schedules where communication and access are difficult. This is what I did for this case. There has been adequate warning of the need to bring this case on and I feel there has been a lack of proper commitment by the authorities in the circumstances of this particular case.

Ruled accordingly.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.