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State v Ayaku [2022] PGNC 289; N9708 (12 April 2022)

N9708

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1314 OF 2019

BETWEEN:
THE STATE

AND:
JOSHUA AYAKU

Vanimo: Rei, AJ
2022: 12^th April

CRIMINAL LAW – Practice and Procedure – application to discharge – denial of right to be brought to trial within reasonable time – Indictment presented – Section 552(2) notice given – matter fixed for trial – accused ready for trial – no attempts to bring witnesses to commence trial – application upheld – accused discharged – Criminal Code 552 (2) and (4) and Constitution Section 37(3).

Cases Cited:

The State -v- Morea Demuda (2021) N9198
The State -v- Fe Santos [2016] N6451
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033

Legislation:

Section 299(1) of the Criminal Code
Section 552 (2) & (4) of the Criminal Code
Section 37 (3) of the Constitution of PNG

Counsel:

Mr. G. Korei, for the State
Mr. P. Moses, for the Defence

12^th April, 2022

1. REI AJ: The accused was, on the 9^th day of June 2018, arrested and charged with the offence of unlawful killing of one Delma Ayaku.

2. The charge was laid under Section 299(1) of the Criminal Code.

3. Since the laying of the charge the State took no serious steps to have the accused brought to trial except that the State and Defence filed their respective pre-trial statements on 5^th August 2020 respectively. An indictment was presented on 8^th April 2022 for the accused to be brought to his trial.

4. Towards the end of the current circuit, the State had not yet advised whether it has witnesses to progress the matter to trial. Mr. Akem who is the OIC CID gave oral sworn evidence on 25^th April 2022 saying that he was not aware of the trial of the matter until last week that he was told. Furthermore, he said the witnesses are located at Nuku District which is in a remote part of the West Sepik Province.

5. The Defendant through Counsel now makes an application under Section 552 (2) & (4) of the Criminal Code and Section 37 (3) of the Constitution that the matter be dismissed as he has not been “brought to trial” within reasonable time after the pre trial statements (“PTS”) were filed on 5^th August 2020 and an indictment presented on 8^th April 2022.

6. Mr. Korei submits that there are reasons why the matter has not been tried within reasonable time after the indictment was presented on 8^th April 2022.

7. The main reason why Section 552 of the Criminal Code has been put in place is to give effect to Section 37(1) of the Constitution which generally provides that an accused person be accorded a fair hearing within reasonable time.

8. The reasons given by the State are that witnesses are hard to come by because they live in a remote area and are hard to be contacted.

9. I note from the committal file that arrest was effected on 9^th June 2018 and that it is now more than 3 years 4 months and the matter had not yet been tried, while the PTS were filed some 1 year 6 months ago on 5^th August 2020.

10. Section 552 is expressed in the following terms:

"552. Right to be tried.

(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 sitting 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 sitting 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."

11. The reasons advanced by the State may be valid. But given that it has taken more than 3 years for a trial to be conducted in the matter, there has evidently been unreasonable delay. I have had the benefit of referring to the case of The State -v- Morea Demuda decided by his Honour Sambua AJ. He relied on the case of The State -v- Fe Santos [2016] N6451 in which the late Kirriwom J (as he then was) stated the requirements of the law under Section 552 (2) and (4). These are:

“a) There must have been an application previously made and noted by the Court.

b) No indictment has been presented on the next hearing date.

c) Where indictment has been presented, no serious steps were taken to bring the case to trial.

d) The accused has always availed himself/herself in court for the start of his trial in every sitting.”

12. The application by Mr. Moses was done orally. It is supported by the notations in the file as to the history of the matter.

13. It appears clear that the State has not taken serious steps to bring the accused to his trial within reasonable time.

14. In The State -v- Morea Demuda (supra) Sambua AJ said at paragraph 8, 9 & 10.

“8. The Constitution of Papua New Guinea states that all persons in Papua New Guinea are entitled under Section 37(1) of the Constitution to the full protection of the law and that right must be fully available, especially to persons charged with offences. Under Section 37(3) of the Constitution a person charged with an offence must be afforded:

· a fair hearing;

· within a reasonable time;

· by an independent and impartial court (see Application by Benetius Gehasa (2005) N2817, & Application by John Ritsi Kutetoa (2005) N2819).”

“9. The “reasonable time” requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution’s case must be completed within a reasonable time (see Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).”

“10. What is a “reasonable time” will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it.”
15. In this case it is clear that there has been an inordinate delay in bringing the accused to his trial although PTR were filed some 1 year 6 months ago and matter having been fixed for trial in this Circuit. The following is a chronology of events leading to the Section 552 (4) application:

• Accused apprehended on the 07^th June 2019 and brought into custody by Vanimo Police. He was formally arrested and charged for Wilful Murder under s.299 of the Criminal Code. He has since been in custody.
• On the 13^th November 2019, the accused was committed to the National Court to stand trial.
• Pre trial Review was conducted on the 05^th August 2020. After PTR conference, the matter is ready to be given a trial date.
• Between November 2019 and November 2021, the accused was represented by Smiley Lawyers. There was no progress because the lawyer does not possess a current practising certificate.
• In December 2021, accused re-engaged the services of the Public Solicitor.
• In February 2022, the matter was listed for trial on the 09^th February 2022. State sought an adjournment to next call-over. Defence objected and made a section 552(2) application for the accused to be brought to his trial. State sought adjournment to the last week of the sittings in February 2022 to present an indictment. Matter adjourned to the 21.02.22.
• On the 21^st February 2022, State did not present an indictment as she was supposed to. The matter was adjourned to the next call-over in April 2022.
• During the April 2022 sittings, the matter was indicted to commence right after the trial of Bruno Tanfa Junior but it was adjourned due to Easter Holidays. Today, 22^nd April 2022, this matter was supposed to be tried.
• State witnesses are not available.
  

16 In line with these provisions, I am of the opinion that the State has failed to bring the accused to trial within reasonable time.

17. Accordingly, the matter is dismissed.
_______________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant