N10317

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1492 OF 2022

THE STATE

V

MICHAEL PUTUPAI

Waigani: Linge, AJ
2023 	: 7th June

CRIMINAL LAW – application to discharge accused of non-presentation of indictment- section 552 (4) of the Criminal Code - application refused.

Cases Cited:
State v Nahuie [2016] PGNC 257; N6453
State v Ayaku [2022] PGNC 289; N9708
State v Fe Santos (2016) N6451
R v Martin Main [1971-1972] PNGLR 289
R v Byrne [1971-1972] PNGLR 1
State v Frank Taso Yasim [1983] PNGLR 111 
State v Peter Painke [1976] PNGLR 210  
State v Nahuie [2016] PGNC 257; N6453

Counsel:
Mr. Pare, for the State
Mr. Junior Yawale, for the Prisoner
		
RULING

8th June, 2023

1	LINGE AJ:  My ruling on an application by the accused seeking to strike out the information laid against him. I heard the application on the 7 June 2023 and reserved my ruling till today. 
2.	The accused filed a Notice of Motion on the 24 May 2023 invoking Section 37 (3) of the Constitution and Section 552(4)(b)(i) and (ii) of the Criminal Code Ch. 262 that the Charge or Information laid against the accused under Section 347(1) of the Criminal Code Act be struck out and the accused be acquitted and discharged forthwith for the following:
		(a)	Failure to present the indictment against him; and 
	(b)	Prosecution have not taken genuine attempt or steps under the circumstances to progress its case to trial.
	(c ) The Bail money of K1000.00 be refunded.
3.	The applicant relies on his affidavit in support of the Notice of Motion filed on the 24 May 2023.
Facts
4.	The applicant was arrested and charged by the Police on the 27 of November 2019 and bail was granted by the District Court on the 28 of November 2019.
5.	Accused was committed by the Committal Court on the 29 of November 2022 to stand trial at the National Court.  The matter was further adjourned to 5 December 2022 at 9:30am for mention.
6.	The applicant alleges that on the 5 of December 2022 at 9:30 am, he attended the National Court with his Lawyers for mention as set by the Committal Court, but the matter was not listed.  The National Court Crimes Registry advised that the file has not been brought up from the Committal Court.
7.	The file was brought up to the National Court on the 20 December 2022.  Allegedly on the 16 of January 2023, the Applicant’s Lawyer filed the Notice of Appearance and Pre-Trial Review Statement and same served on the office of the Public Prosecutor on the 18 of January 2023.
8.	The matter returned for mention on the 13 February 2023 at 9:30am, but His Honour Linge AJ was not sitting on that day and so all matters were adjourned to the Registry.
9.	The matter returned on the 20 of February 2023 at around 9:30am where the Appellant did not attend as he was attending to an urgent interview in Singapore.  Consequently, the Court had revoked and set aside the Bail granted by the District Court and a Bench Warrant was issued for his immediate arrest.
10.	The Appellant filed an application to set aside the Bench Warrant where same was granted by the Court on the 3 of March 2023 and the Warrant was set aside and matter adjourned to 6 March 2023 at 9:30am.
11.	On the 6 of March 2023 the Appellant attended Court before His Honour Linge AJ but the matter was further adjourned to 13 March 2023 for Bail review and to further allow State to file its Pre Trial-Review Statement (PTRS).
12.	On the 13 March 2023 at 9:30am, the Court had converted the District Court bail into National Court Bail.  The matter was further adjourned to 11 April 2023 at 9:30am.
13.	On the 11 of April 2023 at 9:30am, the Appellant attended Court and the matter was further adjourned to 1 May 2023 at 9:30am to allow State to file its PTRS.  On 1 of May 2023 at 9:30am the Appellant attended Court before His Honour Linge AJ for mention and the matter was further deferred to 5 June 2023 at 9:30am to obtain a trial date.
14.	The accused raised three issues for the Court’s determination, and these are:
(a)	Whether or not the State had failed to present the indictment on the Appellant?
(b)	Whether the prosecution have taken genuine steps under the circumstances to progress its case?
(c)	If issue 3.1 and 3.2 are in the Affirmative, whether the information or charge against the accused should be struck out and or dismissed pursuant to Section 37(3) of the Constitution and Section 552(4)(b)(i) and (ii) of the Criminal Code Ch. 262?	
Submissions 
15.	For the first issue, the applicant submits that there was an unreasonable delay in presenting the Indictment on the Accused.  That with the intention to defend the allegation and to expedite the trial, the accused had filed its PTRS essentially denying the allegation.
16.	Mr. Yawale for accused contends that after receiving the accused PTRS, the State did not present the indictment to the accused. He submits that a period of five (5) months has lapsed after the accused was committed by the Committal Court.  In total, a period of four (4) years has lapsed since the accused was arrested by the Police.
17.	He also submits that there is no explanation provided by the State in affidavit form to explain the delay in presenting the indictment. He further submits that the PTRS and indictment were filed at the National Court Registry on the 15 May 2023 and for some unknown reasons, was not served on the accused until 5 June 2023.
18.	Further he submits that State had failed to comply with directions of the Court to the time of serving the PTRS and Indictment on the accused. The State was directed by the Court to file its PTRS by the 13 of March 2023 but when the matter returned for mention, State did not file its PTRS. The matter was further adjourned to 11 April 2023. On the 11 of April, State did not file its PTRS and so the matter was further adjourned to 1 May, 2023. When the matter returned for mention on the 1 of May 2023, State did not file its PTRS. Without filing the PTRS and have the accused been indicted on the allegation, the Court further adjourned the matter to 5 July 2023 to obtain a trial date.
19.	Defence submits that the State had intentionally and deliberately delayed in preparing and filing the PTRS and Indictment to prosecute the matter further to trial within time, thus the accused right to a fair hearing was denied and breached.  The accused relies on a passage from Kirriwom J in State v Fe Santos (2016 N6451 at paragraph 31:
“in determining whether they have proven a breach of their right under Section 37(3) f the Constitution, it is important to bear in mind that what is a “reasonable time” will vary from case to case. There might be a good reason for a lengthy delay. However, if there is an inordinate delay in having a case commenced or completed, it is incumbent on the person or institution allegedly responsible for the delay to explain the delay and provide good reasons for it. If the delay is explained and good reasons are not provided, the delay must be regarded as unreasonable”

20.	As to the secondly issue, defence submit that no genuine steps had been taken to progress the matter to trial. That there is no evidence in the form of affidavit deposed by the State confirming the steps taken under the circumstances to progress its case to trial after the accused was committed.
21.	 He submits therefore that given that issues 1 and 2 are in the affirmative, the charge against the accused be dismissed for breaching Section 37(3) of the Constitution and Section 552(4)(b)(i) and (ii) of the Criminal Code. 
22.	Mr. Yawale also submits that as there is no affidavit material before this court to explain the delay by the State to prosecute its case, the charge against the accused be struck out and accused be discharged forthwith.
State
23.	In response, the State made oral submission and from the outset submits that the application is not properly before the National Court. 
24.	Ms. Kariko for the State submits that in order for the application under Section 552 (4) of the Criminal Code seeking the discharge of the accused to be sustained, the indictment must have been presented and that the State had failed to prosecute the indictment. That is, the accused must be “brought to trial” and the State has not proceeded with the prosecution of the indictment.
25.	She submits that this application is premature for two reasons. First is that the State procession of criminal cases is on the basis of chronology and this case is a relatively new committal and there are others ahead.
26.	She further submits that ordinarily an application made pursuant to Section 552 (2) must precede an application for discharge like here made under Section 552 (4).  She submits that in this case no indictment has been presented and no trial date set for trial and thus it is premature to apply in terms of s.552 (4) of the Criminal Code. 
26.	Counsel for the State refers me to R v Martin Main [1971-1972] PNGLR 289 to support the State’s position.

Consideration

27	I will first of all consider the submission by the State that the application is void from the start based on what I consider as the wrong procedural law. 
28.	The scheme of Section 552 under Division 4 of the Criminal Code provides for right of the accused to be tried. It provides a procedural mechanism to guide how that process is implemented.
29.	It starts off by defining the “place of trial". Section 552 (1) states:

“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.”

30.	Section 552 (2) of the Criminal Code Act provides for a Right of the accused to be tried. It reads: 
“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.”

31.	The plain meaning rule of interpretation clearly allows for application by a person committed to stand trial or a person indicted by the State Prosecutor upon exercising his power under Section 526 to present an “ex officio” indictment, to be brought to trial. The catchword is “to be brought to trial”.   
32.	Section 552 (3) states: 
“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 sittings 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.

33.	This subsection provides an avenue for admitting an applicant to bail where no indictment has been presented during the sitting of the Court where the application is made. It is not relevant for the purpose of this application.
34.	 Section 552 (4) reads:
 “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.”
35.	The applicant invokes this provision in his application. Again, utilizing the plain meaning rule of legal interpretation, it is premise upon the applicant already having made an application under subsection 2. That is, in order for an applicant to invoke this provision and thereby entitling him to be discharged he must first of all have applied pursuant to sub section 2 for his case to be brought to trial and the State had failed to do so in the next hearing date. 
36.	 Thus, if 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.” 
37.	Nothing can be clearer than the plain meaning or exact wording of subsection 2. In State v Fe Santos (2016) N6451, His Honour, Kiriwom J settled four (4) conditions to be met by an applicant when seeking to invoke Section 552(4)(a) and (b) of the Criminal Code. I adopt the four (4) preconditions, and these are: 
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.
38.	I also consider a passage in R v Martin Main [1971PNGLR 289 at 292 which states: 
“ An accused person is “brought to his trial” within the meaning of s 552(2) when the accused is place in a position where he or she is able to be tried, that is by the presentation of an indictment against the accused and with the state either ready to proceed by having its witnesses to prosecute its case against the accused, or by the Public Prosecutor informing the court that the state will not further proceed upon the indictment, in which event the accused is discharged.  If the phrase “brought to his trial” meant that the accused must actually be tried, then it would follow that the court’s discretion to adjourn the hearing, under s 555, would be fettered, contrary to the intention of the legislature”.

39.	The catchword “to be brought to trial” had been judicially considered and I refer to a passage in R v Byrne [1971 - 1972] PNGLR 1 at 5 by Kelly J wherein he stated:
“these words mean, placed in a position where he is able to be tried, that is by the presentation of an indictment against him and with the Crown either ready to proceed against him or by the Crown informing the court that the Crown will not further proceed upon the indictment in which event the accused is discharged under s 527 [nolle prosequi]

40.	Kapi DCJ expounded on the meaning of the words “to be brought to trial” in State v Frank Taso Yasim [1983] PNGLR 111. See also State v Nahuie [2016] PGNC 257; N6453 and State v Ayaku [2022] PGNC 289; N9708.

41.	The Constitutional provision of Section 37(3) of the Constitution provides for protection of the law. It states:
 
“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

42.	This is a framework provision and is to be read in conjunction with the provisions of the enabling legislation which is Section 552 of the Criminal Code in toto. 
43.	Cases considered under Section 37 (3) of the Constitution invariably focus on the question of what is “within reasonable time”. Each case is considered on its own sets of facts. What is a reasonable time may vary in each case depending on its peculiar circumstances. It is also a matter of discretion of the Court to assess and determine. There is no hard and fast rule I would think. For example, in State v Peter Painke [1976] PNGLR 210 a period of 11 months since committal and 6 months since the matter came before the trial was not within reasonable time.    In State v Borame [1984] PNGLR 99 Woods J held, 10-month delay in bringing the proceedings on was unreasonable.

This case

44.	In this case the accused was committed to stand trial on the 29 of November 2022 at the National Court and the committal file or brief was brought up to the National Court on the 20 December 2022.

45.	This application for discharge of the accused is without his first filing an application to the Court for him to be brought to trial. That is no application has been brought by the accused under subsection (2); even the accused conceded to that failure. 

46.	Secondly the State has not presented the Indictment to the Court. This condition can only be possible when the case is set down for trial (following an application to set down) and at end of the sitting no indictment has been presented against him.

47.	Even if the indictment has been presented on the next hearing date which was not, and the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case. 
This is a matter for the unfettered discretion of the Court. What was to transpire on the 5 of June 2023 was the allocation of a trial date under ordinary circumstance but for this application.

48.	The accused alleges that he has always availed himself/herself in court for the start of his trial in every sitting. On the face of the record the accused had failed to appear on the 6 February 2023 and 20 February 2023 which led to the revocation of his bail. The bail has since been restored. 

49.	In my consideration this application has not met the requirement of Section 552 (4) (a) and(b)(i)(ii). It is simply premature. 

50.	The accused has not made out a case under Section 37(3) of the Constitution and Section 552(4)(a)(b)(i)(ii) of the Criminal Code Act. 

Order
36.	The Order of the Court will be: 
1	The information/charge against the accused is not struck out and the accused stand committed to stand for his trial in the National Court.

2	The accused will appear on the 3 July 2023 and to have his case set down for trial.

Ordered Accordingly

Public Prosecutor:  	Lawyers for the State	
Public Solicitor: 		Lawyers for the Defence