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State v Sina [2021] PGNC 316; N9154 (19 July 2021)

N9154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1693 OF 2016

BETWEEN:
THE STATE

AND:
CHRIS SINA

Vanimo: Rei, AJ
2021: 19^th July

CRIMINAL LAW - PRACTICE AND PROCEDURE – Matter fixed for trial – no witnesses present – application to dismiss – long delay in prosecuting matter.

Cases Cited:

R.V. Main [1971 – 1972] PNGLR 289
R.V. Byrne [1971 – 1972] p.5
The State -v- Alphonse Wohuinangu [1991] N916

Legislations Cited:

Section 347 (1) of the Criminal Code Act
Section 552 (4) (b) (ii) of the Criminal Code Act
Section 47 (3) of the Constitution of PNG

Legislations cited:

Counsel:
Ms. T. Aihi, for the State
Mr. August, for the Accused

19^th July, 2021

1. REI AJ: An Indictment was presented this morning charging the accused with two (2) counts of rape laid under S. 347 (1) of the Criminal Code Act.

2. After that, the State sought an adjournment to 1:30 pm to enable her to call the two (2) complainants who are at the village some 2 to 3 hours sailing by boat.

3. Sgt Ari Kabilo, the Investigation Officer gave evidence that he did pass word to the complainants to attend.

4. He also gave evidence that he was contacted by a Village Court Magistrate and advised that the complainants have been informed and that they should be in attendance.

5. By an Order of this Court, the matter was adjourned to 1:30 pm today for the trial to proceed.

6. The complainants have not turned up by 1:30 pm where upon Mr. August on behalf of the accused made an application for the dismissal of the matters pursuant to Section 42 (3) of the Constitution of PNG and Section 552 (4) (b) (ii) of the Criminal Code Act.

7. Section 47 (3) of the Constitution and Section 552 (4) (b) (ii) provide in summary that the accused is entitled to “a fair trial within reasonable time” and that if the trial does not proceed upon the presentation of an Indictment, the accused shall be discharged.

8. These provisions are in place to protect the rights of accused persons. That is to say that they are entitled under the Constitution to be brought to trial “within reasonable time”.

9. The expression “reasonable time” depends on the circumstances of each case.

10. The cases relevant to this are R. V. Main [1971 – 1972] PNGLR 289 R. V. Byrne [1971 – 1972] PNGLR at p.5, The State -v- Alphonse Wohuinangu [1991] N916 clarify the situation.

11. The offences are alleged to have been committed in 31^st May 2014 and the accused has not been brought to trial to defend himself in the last 7 years. The offence of rape is serious. The facts read out in open court speak for themselves.

12. That is a very long time and, although I note that the National Court of Justice sittings here in Vanimo and other parts of the country were adversely affected by the general lock down because of COVID 19, I do not think that once an Indictment is presented, the matter should be adjourned for reasons that there are no witnesses.

13. This matter was mentioned during the call-over on Friday 16^th July 2021 and was fixed for trial by consent of Counsels today 19^th July 2021 which means that parties were ready to proceed.

14. The accused is ready. The State; although is ready, has been let down by its witnesses.

15. It is not the failure of lawyer. It is the failure of witnesses, who have received reasonable notice of this trial but have not turned up.

16. As there has been an unreasonable delay involved without any reasonable explanations the Indictments is therefore dismissed.
________________________________________________________________Public Prosecutor: Lawyer for the State
Msmiley: Lawyer for the Accused