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State v Yegiora [2011] PGNC 204; N4503 (28 June 2011)

N4503

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1326 OF 2010
&
CR 1114 OF 2006

THE STATE

V

FRANCIS YEGIORA, HELEN KII &
PETER SIWI

Kundiawa: Kangwia, AJ.
2011: 28th June

CRIMINAL LAW- Practice and procedure – Application to adjourn – State lawyer on record unable to prosecute - S. 552 (2) of Criminal Code application on foot – Accused persons entitlement to discharge under S.552 (4) discussed – Grounds for discharge not satisfied – Adjournment granted.

Cases cited:
R v Byrne [1971-72] PNGLR 01
R v Martin Main [1971-72] PNGLR 289

Counsel

V. Mauta, for the State
M. Mumure, for both accused

28 June, 2011

1. KANGWIA AJ: On the day the special fixture was created for the accused persons to be brought to trial by applications under s.522 (2) of the Criminal Code Ms Mauta was allowed leave to stand in for the State to make an application for a further adjournment. She cited the following reasons as warranting an adjournment:

1. Recent developments had rendered the Counsel on record for the State unable to appear in this Case. It was stated that various events led him to disqualify himself from prosecuting this Case which in turn had created a position where the State is unable to prosecute the Case as intended.

2. Counsel Standing in for the State had no instructions to prosecute and even if she did have instructions she would still require time owing to the voluminous file involved.

3. The charges are very serious in nature and involved substantial amounts of money belonging to the State and the State wants to prosecute the Case through another Counsel.

2. Mr. Mumure of counsel for the accused strongly objected to a further adjournment citing among others:

a) That the only option open to the Prosecution was to say it cannot prosecute and allow the accused to be discharged.

b) That the Court had no discretion after their application under s.522 (2) was made which entitled them to be discharged under s.552 (4).

3. Mr. Mumure referred to the case of R-v- Byrne [1971-72] PNGLR 01 and R-v- Martin Main [1971-72] PNGLR 289 as authority to support their arguments for the accused to be discharged.

4. Francis Yegiora and Helen Kee were indicated under s.526 through the Public Prosecutor's Ex-Officio Indictment powers by an instrument dated 9th September 2010. They made their s.552 (2) application on the 26th May 2011 for their case to be brought to Trial.

5. Accused Peter Siwi was committed through the Committal Court sometime in 2006. His s.552 (2) application was also made on the 26th May 2011. No indictment was presented against him.

6. All the three accused persons were charged with offences arising out of the same allegations of conspiracy to defraud the State of substantial sums of money in or around 2002. Because the charges arose out of the same allegations of fact they were arranged together as Special fixtures for Trial by the Court on the 21st June 2011.

7. The Provision which propels an accused person's right to be tried is s.552 (2) and the relevant parts are:

S.552 Right to be tried.

1)...

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

3)...

8. The operative words "to be brought to his trial" have been judicially defined in R v Byrne [1971-1972] PNGCR1 at 5 where Kelly J said;

"In this context I think these words mean placed in a position where he is able to be tried, that is the presentation of an indictment against him and with the Crown either ready to proceed by having its witnesses to prosecute its case against him or by the Crown Prosecutor informing the Court that the Crown will not further proceed upon the indictment in which event the accused is discharged under S.554 (4)".

9. In short it means that a person is brought to trial by-

1. Presenting an indictment against him; and

2. Prosecuting the case to its completion

10. This proposition is supported further in SS (4) as follows:

(4) If –

a) a person has made an application under Subsection (2) and

b) at the end of the sitting 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

11. There are two grounds upon which an entitlement to a discharge may operate as of right. These rights operate regardless of the type or seriousness of the offence a person is charged with.

12. First ground operates where no indictment has been presented against the accused after the application under s.552 (2) is made to bring him to trial.

13. In order to qualify under the first ground an application under s.552 (2) must be made without an indictment presented as yet. This would then operate as an invitation to the prosecution to present their indictment.

14. The two applicants (Yegiora & Kii) cannot be discharged under the first ground. They were indicted ex-officio under s.526. Their application to be brought to trial was made after they were indicted. The prosecution did not fail to bring an indictment on them.

15. Second ground operates where the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case. An accused is entitled to be discharged only on the court being satisfied of a failure by the prosecution.

16. The words "entitled to be discharged" impart a right in the accused to be discharged. Under this context it is presumed Mr. Mumure submitted that the Court had no discretion but to allow the accused to be discharged. This with respect is a wrong interpretation of the law. In this regard I refer to the words of Kelly J. in R v Byrne (Supra) where it was stated that;

"The Section does not say that the accused shall be discharged if all the other provisions of the section are met, which would compel the court to discharge him whether the accused wanted it or not, nor does it say that he may be discharged in those events which would give the court a discretion. The use of the word "entitled" seems to me to imply that it is a right which the accused has in these circumstances if he chooses to avail himself of it".

17. In other words, if the circumstances in s.552 (4) are proved the two accused should be discharged if they choose to claim the entitlement.

18. The minimum that the prosecution can do is to present the indictment. This it did through the ex-officio indictment dated 9th September 2010.

19. By presenting the indictment the prosecution had already brought the matter to trial the two accused.

20. The prosecution was required to complete the case until the recent turn of events unfolded. A sudden vacuum was created in the prosecution of the matter. A vacancy at the bar table surfaced owing to recent events relating to the Counsel on record for the State.

21. There is no evidence of witnesses not being available which would satisfy the court to permit the discharge that the two accused are entitled to.

22. A circumstance now exists where the Court cannot satisfy itself that the prosecution has not made a genuine attempt to complete its case. The prosecution at present is not placed in a position to make a genuine attempt to complete its case. I am satisfied that the recent turn of events have inadvertently rendered the prosecution incapable of completing its case. There is no proof of a lack of genuine attempt by the prosecution to complete its case.

23. I am unable to allow the accused to be discharged under the second ground as they would otherwise be entitled to.

24. As to the Defence Counsel's application for accused Peter Siwi, I find that his case is quite the opposite of the two accused referred to above. He made his s.522 (2) application on the same day as the two accused. An indictment against him is yet to be presented. His absence has rendered him ineligible to the discharge he would be entitled under the first ground. It would be most appropriate under his circumstance to restore his s.552 (2) application which was earlier ordered to be withdrawn by the court.

25. In the final analysis the application to adjourn is granted. All the three accused person's cases are adjourned to 8th August 2011 at 9:30 am for Trial as a Special fixture. Bail for each and severally is extended.

_________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants