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State v Mano [2021] PGNC 354; N9175 (13 September 2021)

N9175

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 612 OF 2019

BETWEEN:
THE STATE

AND:
SMITH MANO

Vanimo: Rei, AJ
2021: 13^th September

PRACTICE PROCEDURE – Matter fixed for trial on 13^th September 2021 – no witnesses – application to acquit and dismiss – long delay prosecuting matter – Sec. 42(3) of Constitution – Sec. 522 (4) (b) (ii) of the Criminal Code Act.

Cases Cited:

The State -v- Chris Sina CR NO. 1693 OF 2016 (19^th July 2021, Vanimo)
R -v- Main [1971 – 1972] PNGLR 289
R -v- King [1971 – 1972] PNGLR 5
Alphonse Wohuinangu [1991] N916

Legislations cited:

S.42(3) of the Constitution of PNG

S.522 (4) (b) (ii) of the Criminal Code Act

Counsel:

Mrs. P. Ambuk, for the State
Mr. P. Moses, for the Accused

13^th September,2021

1. REI AJ: BACKGROUND: This matter was fixed for trial on the 13^th of September 2021 at the commencement of the September Circuit of Vanimo, West Sepik Province.

2. On the 13^th of September 2021, the State through Ms. Ambuk presented an Indictment that:

“Smith Mano of Issi Village, Green River, West Sepik Province, stands charged, that he on the 20^th of November 2018 at Issi Village, Vanimo Green, West Sepik Province sexually penetrated one Anastasia Leka, a child under the age of 16 years – 14 years old.”

3. The State relied on Section 229 A (1) of the Criminal Code Act in laying the charge.

4. The contents of the Indictment were read to the accused as well as the brief facts of the case.

5. When asked whether he understood the charge and the facts, the accused said he did.

6. Upon arraignment, the accused entered a plea of not guilty.

7. Mr. Moses for the accused submitted that the plea was consistent with his instructions.

8. When the Court asked Ms. Ambuk of Counsel to call witnesses, she submitted that the State had no witnesses to give evidence.

9. She also submitted that the arresting officer has contacted her and advised that witnesses are not willing to come forward to testify.

10. No application was made having the effect that the matter be adjourned whereupon Ms. Ambuk submitted that the State offers no evidence against the accused.

11. The offence of sexual penetration of a child under 16 years of age is a very serious offence.

12. The statement of facts presented in Court contains evidence that the child, Anastasia Leka, protested against the accused having sexual intercourse with her.

13. However, as the State did not have witnesses to testify the veracity of this, it cannot be tested in cross examination as such, the whole case hangs in the air.

14. The alleged complaint arose on the 20^th of November 2018 and it has taken well over 2 years 6 months to be dealt with.

15. The provisions of Section 47(3) of the Constitution of Papua New Guinea summarily provides that an accused person is entitled to a fair trial within reasonable time.

16. This is not the case here.

17. In the recently decided case of The State -v- Chris Sina CR NO. 1693 OF 2016 (19^th July 2021, Vanimo), I said:

“Sec. 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.”

“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”.

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

18. I adopt the same views expressed R -v- Main [1971 – 1972] PNGLR 289, R -v- King [1971 – 1972] PNGLR 5 and Alphonse Wohuinangu [1991] N916.

19. A very long delay has been experienced in bringing justice to the accused in this case.

20. Although the matter was fixed for trial on 13^th September 2021, no witnesses were present to prosecute the matter.

21. No reasonable explanations were given except that the witnesses are not willing to come forward to testify.

22. It is not the failure of the Lawyers but witnesses.

23. There has been an unreasonable delay in prosecuting the matter, I grant an Order that the accused be acquitted and discharged forthwith.

________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant