N2843

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 293 OF 2005

ANTON KADIKO
Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

KIMBE: CANNINGS J
24, 25 MAY 2005

RULING ON APPLICATION

Criminal law – criminal procedure – application to be brought to trial – man detained on criminal charge of wilful murder for five months without trial – trial not commenced within four years after date on which he was committed for trial – difficulty locating State witnesses – summonses issued to witnesses – State requested more time to prepare case for prosecution – Criminal Code, Section 552, right to be tried – Constitution, Section 37(1) – right to the full protection of the law – Constitution, Section 37(3) – right to be afforded a fair hearing within a reasonable time by an independent and impartial court – matter not ready for trial during current sittings of the National Court at the place where the application was made – entitlement of accused to be admitted to bail, on application by him, unless court satisfied that there are special reasons why application should be refused – court satisfied that special reasons exist – applicant had previously escaped from custody – bail refused – State has obligation to bring matter to trial at next sittings of the court, failing which the accused will have a qualified entitlement to be discharged. 

Cases cited:
Christopher David Brown v The State [1993] PNGLR 430
Lindsay Kivia and Others v The State [1988] PNGLR 107
The State v Michael Dobuma (2002) N2292

Counsel:
O Oiveka for the applicant
F Popeu for the State

CANNINGS J: 

INTRODUCTION

This is a ruling on an application by a man charged with wilful murder to be "brought to trial". He has been detained for a long time and he wants his case resolved. If he is not brought to trial, he seeks bail immediately. He is making these applications under Section 552 of the Criminal Code.

The case is brought against the Independent State of Papua New Guinea, which is represented by the Public Prosecutor. The Public Prosecutor has notified the court, through Senior State Prosecutor, Mr Popeu, that the case against the applicant is not ready for trial and that he opposes bail.

BACKGROUND 

In February 2001 the applicant, Anton Kadiko, was arrested and charged with the wilful murder of a man, Joe Raka, in the Talasea District of West New Britain Province. The death was alleged to have occurred in August 2000. The applicant was detained in custody, pending committal for trial.

On 8 May 2001 the District Court at Kimbe committed him for trial in the National Court and remanded him in custody. However he escaped on the day of his committal and was at large for more than three years.

On 12 March 2003 the National Court (Batari J) issued a warrant for his arrest.

On 10 December 2004 the applicant was apprehended by the police and brought before the District Court at Kimbe, which again remanded him in custody. He has been in custody since then, a period of five and a half months.

In February 2005 the National Court (Cannings J) set down the applicant’s trial for hearing in March 2005. Anticipating problems in getting the cooperation of witnesses, in March 2005 the Public Prosecutor served summonses on a number of proposed witnesses, requiring their attendance at the trial to give evidence. However the trial did not proceed.

The case was then set down for trial at the sittings of the National Court this month, May 2005, in Kimbe. Again it has not proceeded, again apparently because of problems with witnesses. 

On 24 May 2005 the Public Solicitor, through Mr Oiveka, filed an originating summons, by which these applications are made. That was done in accordance with Order 1, Rule 11 of the Criminal Practice Rules, which requires that all applications allowed under the Criminal Code are to be made by originating summons. The applications are supported by an affidavit of the applicant dated 24 May 2005. He deposes that the State witnesses will not attend court to testify "as we have already solved this dispute according to our custom". He wants to be brought to trial this month. However if that is not possible he would like to be allowed bail. He can raise K500.00 cash bail and his wife, Dorothy Bonovo, will be his guarantor. He has nine children. He promises to report to the National Court registry at Kimbe twice each month and will reside at his home in Namova village, Talasea District. 

On 26 May 2005, Mr Popeu notified the court that the case was not ready to proceed. There are still problems enlisting the cooperation of witnesses. The problems are being attended to and the State still wishes to pursue the prosecution.

THE LAW

Section 552 of the Criminal Code (right to be tried) states:

(1)	In this section, "place of trial" means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(2)	A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.

(3)	If no indictment has been presented against the applicant—

(a)	where the application is made at a sittings of the National Court at the place of trial—before the end of the sittings at which the application is made; or
(b)	where the application is made at a sittings of the National Court at some other place—before the end of the next sittings of the court at the place of trial,

the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(4)	If—

(a)	a person has made an application under Subsection (2); and
(b)	at the end of the sittings of the National Court at his place of trial next following the application—

(i)	no indictment has been presented against him; or
(ii)	the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged.

Section 552 must be interpreted and applied as part of the bundle of rights conferred on all persons charged with criminal offences by the Constitution, in particular Sections 37(1) and 37(3). 

Section 37(1) (protection of the law) states:

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.

Section 37(3) (protection of the law) states:

A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

SUBMISSIONS FOR THE APPLICANT

Mr Oiveka submitted that the applicant was asserting his rights under the law to a fair hearing within a reasonable time, consistent with Section 37(3) of the Constitution. As the State is not ready to proceed he should be admitted to bail. The onus is on the State to show special reasons but there is nothing in this case to take it out of the ordinary.

SUBMISSIONS FOR THE STATE

Mr Popeu submitted that there are three special reasons that the bail application should be refused. First the applicant is facing a very serious charge of wilful murder. Secondly he was in lawful custody before, and he escaped. He was at large for a considerable period and this means that there is a real chance of him again absconding. Thirdly, though some steps may have been taken to resolve the dispute that arose over Joe Raka’s death, information received suggests that there is a real possibility of the applicant interfering with State witnesses before the trial. 

THE MAIN ISSUE: WHETHER SPECIAL REASONS EXIST

The applicant has made an application under Section 552(2) at the place of trial, Kimbe, to be brought to his trial. Today is the last day of the sittings of the National Court in Kimbe for this month. No indictment has been presented, so the applicant has made another application – this time for bail. The court is obliged by Section 552(3)(a) to admit him to bail unless it is satisfied that there are special reasons why the application should be refused. 

I am satisfied that there are special reasons. 

The applicant was previously in lawful custody in relation to the charge of wilful murder. He escaped and he was at large for more than three years before being re-detained. I accept Mr Popeu’s submission that a person with a record of escaping has demonstrated on the face of it that he cannot be trusted not to abscond on bail. I am not saying that anyone who has previously escaped will always be refused bail. However, it is certainly something that goes against them, even where, as in the present case, they have not been convicted or charged in relation to that escape. It was accepted as a fact that the applicant escaped from custody in 2001 and I have dealt with this application on that basis.

I have also taken note of the fact that the charge of wilful murder is a very serious one. That by itself does not disqualify the applicant from being granted bail. However, it is a relevant consideration that works against him. The same goes for the apparent difficulties the State has had in securing the attendance of witnesses for the applicant’s trial. I am entitled to infer from that, that those difficulties are likely to be enhanced if the applicant is permitted to return to his village in the weeks leading up to the trial.

Therefore I refuse the application for bail.

WHAT HAPPENS NEXT?

The fact that the bail application has been refused does not defeat the applicant’s rights under Section 552(4). The application that he has made under Section 552(2) subsists. It is incumbent on the State to present an indictment against the accused at the next sittings of the National Court in Kimbe – which will be next month.

Not only must the indictment be presented, the State must have its witnesses available and be ready to prosecute the case. (Lindsay Kivia and Others v The State [1988] PNGLR 107, National Court, Amet J; Christopher David Brown v The State [1993] PNGLR 430, Supreme Court, Woods J, Los J, Sakora J.) 

If the State is again not ready, the applicant will be entitled to be discharged if the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case. (See, for example, The State v Michael Dobuma (2002) N2292, National Court, Davani J, where the court was not satisfied that a genuine attempt had been made and discharged the accused.)

ORDER

The order of the Court is that:

1	The application for bail under Section 552(3)(a) of the Criminal Code is refused.

2	The substantive matter concerning the applicant, CR No 808 of 2001, is set for trial at Kimbe on 23 June 2005 at 9.00 am.

_________________________________________________

Lawyer for the applicant	: 	Public Solicitor
Lawyer for the State		: 	Public Prosecutor