DC3017

PAPUA NEW GUINEA

                  [In the District Court of Justice sitting in its criminal Jurisdiction]

                                               CR No 04 of 2015

BETWEEN

STATE 

                                                            V

ABSALOM MONEI
                                                      (Defendant)

BUKA:  B.TASIKUL: PM
27TH MAY, 2015

CRIMINAL LAW:  Matter for trial- prosecution not ready as key witness left the region-No contact detail-Breach of his constitutional right to be heard within a reasonable time-Defendant has been on bail since charge. Case must be determined on its merits.

CASES CITED: State V Peter Painke [1976] PNGLR 210
State V Peter Kamkam Borarae [1984] PNGLR 99

REFERENCE: Constitution s.37 (3)
District Court Act s.124

Appearing for the defendants: in persons
Appearing for the Prosecution: Sergeant Florence Nohu  

RULING ON AN APPLICATION FOR ADJOURNMENT 

1.	BTASIKUL: The defendant Absalom Monei was charge for unlawfully assaulting Joanne Bakiri and doing so cause her bodily harm. He is charge pursuant to section 340(1) of the Criminal Code Act.

2.	The matter came before me on the 20th May, 2015 for trial. However, the prosecution submitted that they could not proceed on the basis that the key witness who is the victim has left the region and now reside somewhere at Goroka, East Highlands Province. The prosecution is now seeking further adjournment. 

3.	To appreciation the chorological order of this case let me highlight the following adjournment. The defendant first appeared before this court on the 12th January, 2015 through the committal proceeding. The matter was adjournment to the 11th of February, 2015 to allow for the police to carry out its investigation.

4.	On the 11th of February, prosecution further applies for further adjournment as the file was still not ready. The matter was further adjourned to the 18th March.On the 18th March the prosecution files an election certificate, and the matter was transfer to the Grade V jurisdiction for mention on the 08th April, 2015.

5.	On the 08th April the prosecution officer Senior Constable Cecelia submitted that Sgt.Florance Nohu would be prosecuting the matter, however she was not available and seek further adjournment. The matter was adjourned to the 22nd April for a pre-trial conference.

6.	After the pre-trial conference on the 22nd April, the matter was set down for hearing on the 20th May, 2015.On the 20th May the prosecution was not ready and apply for a final adjournment on the following grounds;

a.	The victim who is the key witness has left the Autonomous Region of Bougainville and she is now residing somewhere in Goroka, Eastern Highlands Province;
b.	It has been very difficult contacting her;
c.	The matter is very serious taking into account her injuries.

7.	The defence through Cornelius Momoi from the Public Solicitors Office objected to the adjournment submitting for the matter be dismiss. He submitted that the prosecution had four weeks which is enough time for the prosecution to arrange for their witness. He cited section 124 of the District Court Act.

8.	The issue before me is whether or not I should grant the final adjournment?

The Law

9.	Section 124 of the District Court Act refer by the counsel basically is mandatory for the court to dismiss the information unless for the court thinks it proper to adjourned the hearing. This provision gives the court the power to dismiss the information and also give the court the discretion to grant adjournment where it thinks fit. There must be good reasons before granting further adjournment. 

10.	Section 37 (3) of the Constitution protections the rights of every citizen and non-citizen who are charge with an offence. This rights states that;
 “A person charged with an offence shall, unless the charge is withdrawn, be affordable a fair hearing within a reasonable time, by an independent and impartial court”

11.	This particular right has three components. That is;
i.	A fair hearing,
ii.	Within a reasonable time
iii.	By an independent and impartial court.

12.	 Our concern here is the second component of that right .The question is to ask is; what is a reasonable time? In the State v Peter Painke[1976] PNGLR 210 and State V Peter Kakam Boarae [1984] PNGLR 99 (Wood.J)explain that a reasonable time will vary from case to case. They may be good reasons for a trial not to have started for what seems a long time after a person is arrested. But in the event of the delay, it is the incumbent of the prosecuting authority to explain the delay and provide good reasons for it. If no good reason is presented, the delay is unreasonable.

13.	The above two cases cited are where the defendants were already committed to stands trial in the National Court. In Peter Painke case the accused was in custody for eleven (11) months. Whereas for Peter Kamkam Borarae he was in custody for ten (10) months. The judge release both accused as their rights under s.37 (3) of Constitution was breach.

14.	S.37 (3) of Constitution also affords the same rights to person(s) charged and whether he or she in custody or on bail.

15.	The case on hand is where the defendant is charge with an indictable offence under s.340 (1) of the Criminal Code Act and he is appearing before a Grade V Court which is the trial court.

16.	The reason given by the prosecution is that the key witness has left Bougainville and could not be contacted. Yes I understand how difficult it is to get in touch with the witness. But it is the responsibility of the police or investigation officer to get all their witnesses contact detail. This is their case and if they are very serious of prosecuting the cases they should in advance make arrangement to get the witness contact details, before she left.

17.	As the prosecuting authority you must not get things for granted, serious cases are thrown out by the court because police failed to manage their cases and give priority to cases that they think are important. Case management is very important tool to successfully prosecute cases. There is no evidence before me how serious this matter is and whether they have tried contacting the key witness.

18.	Having said that, I noted that the defendant was granted bail seen he was arrested and charge by police. He has been appearing before this court on a K300.00 extended bail. All of this time he was out on bail. A pre-trial conference was conducted on the 22nd April, 2015 and the trial date was set on the 22nd May, 2015, which is month duration.

19.	If he was in custody then it would be a different scenario. I think each case must be determined on its own merit. I think the interest of this case and the defendant constitutional right while weight swung together the interest of this case must. In upholding the prosecution grounds for adjournment, I must warn the prosecution to make all necessary arrangement and get in touch with their witness.

20.	I will grant this adjournment as a final.

Order accordingly.