N9902

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 OF 2018
THE STATE
V
ROLAND SIALIN
Kokopo: Suelip AJ
2020: 12th,13th, 27th November & 1st December

CRIMINAL LAW – application to be discharged – failure to be “brought to trial” within reasonable time – indictment presented – no genuine attempt to complete prosecution case – prior section 552(2) application made – section 552(4) application at end of sitting – accused entitled to be discharged 

Cases Cited

State v. Fe Santos (2016) N6451
Lindsay Kivia, Robert N’draku v. State (1988) N669

Counsel

J Batil, for the State
S Pitep, for the Accused 

RULING

1st December, 2020

1.	SUELIP AJ:	This is now my ruling on an application by the accused to be discharged pursuant to section 552(4) of the Criminal Code.

2.	On 13 November 2018, the accused was indicted and pleaded not guilty to one count of: 

(a)	breaking and entering pursuant to section 395(1)(c) of the Criminal Code Act, and 

(b)	unlawful wounding pursuant to section 322(1)(a) of the Criminal Code Act.

3.	The brief facts presented by the State are: 

“On the 27th day of November 2016, between 10pm and 11pm, the accused was at Vunapope Diocese resident area in Kokopo. The State alleges that on that date, place and time, the accused break in and entered the house of Benedict Warpin, the complainant. He cut open the window and entered the house. State further alleges that when he entered the house, he then wounded the complainant with a pocket knife on his right hand. The complainant called out for help and the accused ran away. State alleges that the actions of the accused contravened sections 395(1)(c) and 322(1)(a) of the Criminal Code Act 1974”.

4.	A similar application was previously made on 12 November 2020 when this matter was listed for trial. On the first occasion, it was noted that the accused was committed to stand trial on 7 April 2017 and has since waited for his trial. It was also noted that the alleged offences were committed at Vunapope Diocese resident area in Kokopo which is in close proximity of the National Court premises and therefore the witnesses are from around the area and should readily be available to attend Court to give evidence. 

5.	On the following day, after considering that application, I refused it on the basis that section 552(2) is a condition precedent to section 552(4) and I adjourned to Friday, 27 November 2020, being the last day of the circuit. This prompted the accused to give his notice then that he be brought to trial on the last day of the circuit. 

6.	On 27 November 2020, the State advised that their situation had not improved since 12 November 2020 as their witnesses were not available to give evidence and so the accused again made the application to be discharged. 

Application 

7.	Here, the accused again applies for his discharge pursuant to section 552(4) of the Criminal Code after having given notice pursuant to section 552(2) for the accused to be brought to his trial. The accused submitted that this is the appropriate time to make such application pursuant to section 552(4)(b) where at the end of the sittings, the Court is satisfied that the prosecution has in the circumstances not made genuine attempts to complete its case.

8.	As the State witnesses were not ready again to give evidence, the accused says that he is entitled to be discharged and that he be discharged forthwith.

9.	In response, the State says that this is the fourth time this matter is set for trial. The State says on the last 3 occasions, the trial dates were adjourned for the same reason. The State also says that the arresting officer who is also a witness in the case, has just advised earlier that morning that there were no witnesses, including himself, available to give evidence. The State therefore had to concede to the application by the accused.

Law 

10.	Before I deal with section 552 of the Criminal Code, let me first mention section 37(3) of the Constitution which states: 

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

11.	Now, the relevant parts of Section 552 of the Criminal Code reads: 

		552. RIGHT TO BE TRIED. 

(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. 

(4) If– 
(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. (my underlines)

12.	I note the requirements of section 552(2) and (4) application in State v. Fe Santos (2016) N6451, as set out by Justice Kirriwom as follows: 

(i)	there must have been an application previously made and noted by the Court. 

(ii)	no indictment has been presented on the next hearing date.

(iii)	where indictment has been presented, no serious steps were taken to bring the case to trial. 

(iv)	the accused has always availed himself/herself in court for the start of his trial in every sitting. 
13.	I also note what Justice Amet (as he was then) in Lindsay Kivia, Robert N’draku v. State (1988) N669 where he said: 

… “If on the other hand an indictment has been presented earlier, either in the sittings at which the s.552(2) application has been made or earlier in the sittings next following the application, and at the end of the sittings next following the application the court is satisfied upon application that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case, the accused is entitled to be discharged. “…

Consideration

14.	Pursuant to section 37(3) of the Constitution, any accused person is to be given a fair hearing within reasonable time. In this case, it is just a little over a year since the presentation of the indictment on 13 November 2019. However, within the year, this matter was listed for trial three times. This is the fourth time. The reason for adjournment or vacation of the trial date on each of these occasions is the same. I note that the accused was also committed to stand trial on 7 April 2017. He was indicted more than 2 years later. To this date, he has been in custody for 3 years and 7 months. Further, the alleged offenses were committed at Vunapope Diocese resident area in Kokopo which is in close proximity of the National Court premises and therefore the witnesses are from around the area and should readily be available to attend Court to give evidence. This is not the case.

15.	When applying the requirements set out in State v. Fe Santos (supra), only (i), (iii) and (iv) were met. For requirement (ii), the indictment was presented over a year ago, but trial has not been completed since. Hence, therefore, the applicant has been accorded a fair trial within reasonable time.

16.	The accused has therefore satisfied most of section 552(2) and (4) requirements where firstly, there was an application previously made and noted by the Court, secondly, where the indictment has been presented and no serious steps were taken to bring the case to trial, and lastly, the accused has always availed himself in court for the start of his trial in every sitting. 

Order

17.	The application by the accused is granted, and the accused is discharged forthwith.   
________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor:	Lawyers for the Accused