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State v Balakau [1996] PGNC 11; N1528 (4 June 1996)

Unreported National Court Decisions

N1528

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 575 OF 1992
THE STATE
v
JEFFREY BALAKAU

Waigani

Batari AJ
3-4 June 1996

CRIMINAL LAW - Practice and Procedure - Application for adjournment - Application to be considered on its own facts - Special and convincing reasons - Interest of injustice - Consent - Not special and convincing reason.

CONSTITUTION - s. 37(3) - Right to “unfair trial within a reasonable time” - Breach of unreasonable delay - Consequential orders - Whether entitlement in accused to immediate remedy - Competing interests - Right of accused to speedy trial and right of people for accused to stand trial.

CRIMINAL LAW - s. 552 - Criminal Code - Remedy for delayed trial.

Cases Cited:

State v Peter Painke [1976] PNGLR 210

State v Jackson Tita Toamara & Anor (unreported National Court Judgment) N759

Jeffrey Balakau v The Independent State of Papua New Guinea (un-numbered) OS 401 of 1995

Counsel:

P Mogish for the State

M Kua for the Accused

4 June 1996

BATARI AJ: When this case was called yesterday, Public Prosecutor, Mr Mogish applied for adjournment and cited unavailibility of witnesses due to inadequacy of time given to arrange their attendance.

Mr Kua for the accused opposed the application with much vigour on the basis of the case having been fixed for trial and the accused’s right to a “fair trial within a reasonable time” under s.37(3) of the Constitution.

The order of events which delayed the speedy trial of the conspiracy charge were that; the accused was committed on 5 May, 1992 for trial on one charge of conspiracy and two charges of assault. On 24 July, 1992 he sought a review of the committal orders in the National Court. This was refused and in October/November of 1993 the accused was tried and dealt with on the two charges of assault. Thereafter, the conspiracy charge, seemingly got lost in the system. The case re-surfaced in September, 1995 following the Ombudsman Commission referral of the accused to the Public Prosecutor alleging certain misconduct in office based on the same facts which supported the conspiracy charge. However, the case was not listed as the accused had filed Originating Summons challenging his prosecution. That application was dismissed on 17 November, 1995. The case was re-listed but adjourned on two occasions because either the accused or his lawyer failed to attend. On 18 December, 1995, the trial was fixed to commence on 16 April, 1996. On 7 April, 1996 lawyers for the accused wrote to the Public Prosecutor advising of a judicial review being filed against the National Court decision of 17 November, 1995. On 16 April, I vacated the trial dates and stood the matter down for mention on 1 July, 1996 under a presumptive view that a stay of prosecution was consequential to the filing of the Review. I re-called the case and allocated new trial dates commencing 22 May, 1996. On that date, I granted an adjournment on prosecution’s application but again short-dated re-listing to 27 May, 1996.

In this application, Mr Mogish in effect seeks vacation of the trial dates and allocation of new dates which would give prosecution sufficient time to prepare and assemble witnesses. I believe he also relies on the affidavit of Mr Sambua sworn on 31 May, 1996 in his submissions.

First, I deal with the constitutional effect of the delay which has now reached 4 years and 1 month. This period of waiting to be brought to trial clearly offends against s 37(3) of the Constitution. His Honour, Los, J had described the delay in November as “outrageously long” (Jeffery Balakau v The State OS 401 dated 17 November 1995 - un-numbered). His Honour was then considering the same issue of delay on the accused’s application to stay the conspiracy prosecution against him or alternatively to dismiss it.

I consider that, where in an application for adjournment the question of delay is raised under Constitution s.37(3), the facts of each particular case should be determinative of whether or not the delay amounts to denial of the accused his right to be brought to trial within a reasonable time. If the view is formed that there had been a breach of s.37(3), the enforcement of the accused’s right is a matter of discretion and the onus is on the applicant to show that there is special cause to grant adjournment or that the adjournment sought is in the interest of justice. In all cases the accused is, in my view entitled to a remedy available to him under the Constitution or in law. The form of remedy may be decided on such factors as:

· the period the case has been pending since the date of arrest and committal for trial.

· conduct of either party which contributed to the delay.

· whether the case has been fixed for trial.

· the number of times the case had been adjourned.

· whether any previous application under Constitution s.37(3) or Criminal Code s. 552 has been made.

In The State v Peter Painke [1976] PNGLR 210 prosecution applied for adjournment of the hearing of a charge of stealing as a public servant. It had been 14 to 16 months since the alleged offence was committed, 11 months since the accused was committed for trial and 6 months since the case first came before the Court for trial. During the 6 months, there had been three adjournments, two of which were at the request of prosecution. O’Leary, AJ refused the State’s application for adjournment after concluding at p.212:

“In those circumstances, I thought to postpone the trial any longer would be...to deny to the accused his right ‘to be afforded a fair hearing within a reasonable time’ as guaranteed by the Constitution.”

In refusing the accused’s application on 17 May, 1995 Los, J concluded that Constitution s. 37(3) does not confer immediate remedy for delay in prosecutions. His Honour’s view could equally be explained that the circumstances of the delay does not justify the enforcement of the Constitutional right “to be afforded a fair hearing within a reasonable time”. What appeared to have influenced His Honour’s decision then was that firstly; the applicant contributed to the delay and secondly; he had not even appeared in Court to utilize s. 552(2) of the Criminal Code Act, yet he claimed his right under Constitution s.37(3) had been breached.

In State v Jackson Tita Toamora and Simon Kongie Nunzie, (unreported National Court Judgment) No. N759, the prosecutor applied for adjournment during the trial, to call a witness who was a lawyer then employed in the State Prosecutor’s Office to rebut the evidence of the defendants. The lawyer was not available on the day of the application. The defendants had waited for nearly two years and their trial had been precipitated by a s. 552 of the Criminal Code Act application. Brunton, AJ refused the application after concluding at p.3:

“The State is not in the position that it has lost a witness through inadvertence, or because a witness has misunderstood instructions. The witness was not a layman. The witness was a State Prosecutor who made a decision not to make himself available.”

And at p. 4:

“The rights of Papua New Guineans to a fair trial within a reasonable time are superior to the indulgences of others who wish to go off on long weekends, before the weekend starts. If the State chooses to discharge its public responsibility in that way - then I will protect the individual rights of citizens.”

The authorities indicate that, when a person is charged with a criminal offence, he is entitled to a fair trial within a reasonable time and it is incumbent on those responsible for fair administration of justice; the courts, judges, magistrates, lawyers, police, correctional officers to bring his case to speedy fruition. In the event of breach, he is entitled to the protection of his right under Constitution s. 37(3). I do not however, think it follows that, he is entitled to immediate discharge as a matter of right. If the delay is without reasonable explanation, the Court may enforce the accused’s right by compelling the trial to commence or dismissed the case in its discretion. However, in all cases, s. 552 of the Criminal Code should be used as a procedure for the enforcement of Constitution s.37(3) breaches. Section 37(3) without question, provides a safeguard for accuseds against undue delays of their trials. That right to a speedy trial is itself a substantive ground for an application to be brought to trial under s. 552 of the Criminal Code as per Los, J in Jeffery Balakau v The State (OS 401/95).

I conclude that adjournments and vacation of trial dates should not be readily granted except in special circumstances, quite aside from the requirements of the Constitution s. 37 thereof that when a man is charged, his case must be brought to speedy fruition. The reason might be due to inability of judge, lawyer, accused or witness to attend because of ill-health or a witness is not immediately available due to inadvertence or that he misunderstood instructions or that the adjournment is in the interest of justice. Any such application must not appear to suggest unfair tactics, delayed justice, inconvenience, or carelessness. Mere consent is not a valid reason to adjourn or permit postponement of the hearing. Any adjournment sought after the case is fixed for trial or during the course of trial must be dealt with on proper considerations of the matters to be raised.

I now come to the circumstances of this application. On 18 December, 1995 the case was fixed for the first time for hearing. This was done in absence of the accused whose predisposition was clearly the prevention of his prosecution than the protection of his right to a speedy trial. The trial dates allocated in May, 1996 meant both parties had 4 months to prepare their cases and gather their witnesses. The accused however, took further intervening action by seeking a review of the National Court decision. And 9 days before the trial was to commence, he through his lawyers advised the Public Prosecutor of the possibility of requesting vacation of the trial dates in view of the judicial review.

On 16 May, 1996 there was no appearance for the State when the case was called. Mr Sambua explained in his affidavit that he had acted on a certain understanding reached with the accused’s lawyers to defer arrangements for witnesses attendance and he had understood the case to be adjourned by consent. A letter tendered also confirms communication being entered into on the matter and on the basis of which Mr Sambua may have believed that the Court would vacate the trial dates. His absence on 16 May showed also that he had acted on that belief.

It is obvious that the accused’s attempted to stall the commencement of his trial on the eleventh hour is adverse to the Public Prosecutor’s trial preparations. The witnesses are overseas and their travel will require time and expenses. The uncertainty of the trial proceeding no doubt had much bearing on the Public Prosecutor’s decision to review his arrangements for witnesses attendance. That, in my opinion is not an unreasonable consideration.

Having re-called the case, it could not proceed in May sittings for two reasons:

(i) the witnesses,some of them according to Mr Sambua’s affidavit are in Cairns, Australia could not be called to travel on short notice.

(ii) two other matters are still in progress. It is apparent this case will not be reached in May.

On 27 May, 1996 the matter was referred for re-listing. The allocated dates given as 3, 4, 5, 6 June was fixed by the Court as the earliest possible time the case could be listed for trial.

The competing interests that I must consider here are the interests and rights of the accused to a speedy disposition of his charge on the one hand and the interest of the people that an accused person must be brought to trial, on the other. In the circumstances of the delay, I find:

(i) The accused had, as is his right to do so, taken various actions to oppose speedy prosecution of his case. The result has been inevitable delays.

(ii) This is not a case where the Public Prosecutor has made no genuine attempt to bring the accused to trial noting however the inexplicable disappearance of the accused’s case in the system which contributed to the delay.

(iii) The difficulty the Public Prosecutor is placed in now has been attributed to in some ways by the latest filing of the Review application and the communication between the accused’s lawyers and the Public Prosecutor.

(iv) It is trite that witnesses who are overseas cannot be easily called. Time is of essence to arrange their travel and equally important to confirm their availability.

I conclude that the Public Prosecutor has shown special circumstances for his application. I grant the orders sought. The only question which remains is the trial date to be fixed for this case. The appropriate step is to have the matter referred back for re-listing. I order that:

(i) the adjournment is granted.

(ii) the trial dates be vacated and the matter referred for re-listing on 11 June, 1996.

Section 552(2) (Criminal Code Act) application by the accused is noted.

Lawyer for the State: P Mogish/Public Prosecutor

Lawyer for the Accused: Joe Wal Lawyers