N2500

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 1262 OF 2002,
CR 1271 OF 2002 &
CR 1272 OF 2002

JOHN KONOBO
(‘Applicant’)

V.

THE STATE
(‘Respondent’)

Waigani: Davani .J
2004: 10, 11 February

J. Mesa for the Applicant
D. Mark for the Respondent

Criminal law – practice and procedure – trial must take place in presence of accused – escape by co-accused before delivery of verdict – continuance of proceedings impracticable – Criminal Code s. 571 (1)(2).

Criminal law – Practice and Procedure – escape – conduct that renders trial impracticable – trial to proceed in co-accused’s absence.

Cases cited:
R v Stuart and Finch [1974] Qd R 297
R v Jones (No. 2) 1 W.L.R. 887

Texts cited:
Strouds Judicial Dictionary 5th Edition
Carters Criminal law of Queensland 6th Edition
Archbold, Criminal Pleading, Evidence and Practice 2001

RULING
(application to continue with trial)

11 February 2004

DAVANI .J:	I have before me an application by the Accused/Applicant (‘Applicant’) seeking orders for this court to hand down its decision on verdict in the absence of his 2 other co-accused. The application is moved by way of Notice of Motion filed on 10.2.04 and supported by the Applicants affidavit sworn on 9.2.04.

The affidavit deposes to the background of this matter which I will set out in chronological order as they form the basis of this application. These are;

1.	25.3.03 – All accused appeared in court for commencement of trial when Indictment was tendered by the State and all pleaded not guilty.
Matter proceeded to trial.
2.	27.5.03 – Completion of evidence and the court adjourned to 4.6.03 for decision on verdict.
3.	4.6.03 – All accused failed to appear to receive decision on verdict.
Court issued Warrants of Arrest.
4.	19.7.03 – Applicant was arrested.
5.	4.6.03 to 26.9.03 – Court attempted to glean information from guarantors as to whereabouts of 2 other co-accused, with no success.
6.	21.7.03 – Applicant appeared on the Bench Warrant.
7.	5.8.03 to 6.2.04 – Applicant appeared before the court on 5 occasions, where the court enquired on execution of Warrants of Arrest for 2 other accused.
8.	10.2.04 – This application was filed and heard.

The State did not raise any objections only agreeing to the position at law being that all accused must be in court for the court to hand down its decision on verdict.

Counsel for the Applicant referred me to s. 37 of the Constitution being a persons right to full protection of the law, more particularly s. 37(3), that the Accused must be afforded a fair hearing within a reasonable time, by an independent and impartial court.

In this case, evidence is complete and the court adjourned to hand down its decision on verdict. Can it do so in the absence of the 2 co-accused? If it does not do so, is that or would that be an infringement of the Applicant’s right to a fair trial? S. 571 of the Criminal Code Act (CCA) states that subject to subsection (2) of that section, a trial must take place in the presence of the accused person unless his conduct is such that would render the continuance of the proceedings in his presence, impracticable. Subsection 2 states;

"2.	The court may, in any case, if it thinks fit, permit a person charged with a misdemeanour to be absent during the whole or any part of the trial, on such conditions as it thinks proper."

In this case, the 2 co-accused Tau Baraga and Joe Vagi Boiboi, escaped before decision on verdict was handed down. Warrants of Arrest were issued but have yet to be executed. It has been 5 months since the completion of evidence. S. 571(2) gives the court a discretionary power to decide one way or the other.

The Queensland Court of Criminal Appeal has decided on this issue. I rely on that precedent because s. 571 of the PNG Criminal Code is in the exact same terms as S. 617 of the Queensland Criminal Code which code PNG adopted at Independence. In the case R v Stuart and Finch [1974] Qd R 297, the court held that the trial judge had correctly exercised his discretion in ruling that the trial proceed in the absence of the Accused. Douglas .J at pg 298 ruled that the two (2) phrases "in which case the court may order him to be removed" and "unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable" should be read disjunctively as well as conjunctively so that the court has power to deal with the situation at the trial or away from the trial where an accused person has so conducted himself as to render the continuance of the proceedings impracticable. WB Campbell .J also held that "(1) the section intends to lay down reasonable and sensible procedures to cover all circumstances in which, during the continuance of the trial, an accused person voluntarily absents himself; (2) The section gives the court power to order the accused to be removed if his conduct, either within or outside the court, renders the continuance of the trial in his presence impracticable, and the further power, in the event of such conduct, to direct that the trial proceed in his absence." (see pg. 511 of Carters Criminal Law of Queensland, 6th Edition).

In the case R v Jones Central Criminal Court Cases August 1970, a case where a defendant failed to appear after an unsuccessful no-case submission, Gillis .J proceeded with the trial in the Defendants absence and handed down sentence. He held that in such circumstances, the ordinary inference was that the defendant had of his own volition absconded, and that there was a discretion to order the continuance of the trial. The Defendant appealed in R v Jones (No. 2) 1 W.L.R. 887, the court of appeal, in refusing an application for extension of time in which to apply for leave to appeal, held that the Judge had properly exercised his discretion in allowing the trial to continue. (see Archbold, Criminal Pleading, Evidence and Practice 2001 pg 287).

In this case, the 2 co-accused escaped at the completion of evidence, and before verdict. I find that the handing down of verdict and sentence is part of the trial process. I say this relying on the definition of the word ‘Trial’ in Strouds Judicial Dictionary 5th edition at pg 2689. It reads;

"Trial – (1) A trial is the conclusion, by a competent tribunal, of questions in issue of legal proceedings … and is not complete until sentence had been passed or the offender had been ordered to be discharged…". (see also R v Grant [1951] 1 K.B. 500).

In view of the above, I find that this court can proceed to hand down decision on verdict in the absence of co-accused Tau Baraga and Joe Vagi Boiboi.

This matter is set for 1.30pm on 12.2.04 for decision on verdict.
_______________________________________________________________________
Lawyer for the Applicant	:	Public Solicitor
Lawyer for the Respondent	:	Public Prosecutor