John Konobo v The State (2004) N2500

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 11 February 2004
• Citation: (2004) N2500
• Court: National Court
• Year: 2004
• Judgement Number: N2500

Full Title: John Konobo v The State (2004) N2500

National Court: Davani J

Judgment Delivered: 11 February 2004

1 Criminal law—practice and procedure—trial must take place in presence of accused—escape by co–accused before delivery of verdict—continuance of proceedings impracticable—Criminal Code s571(1), s571(2).

2 Criminal law—Practice and Procedure—escape—conduct that renders trial impracticable—trial to proceed in co–accused's absence.

3 R v Stuart and Finch [1974] Qd R 297 and R v Jones (No 2) [1972] 1 WLR 887 referred to

RULING (application to continue with trial)

___________________________

N2500

IN THE NATIONAL COURT ]

OF JUSTICE AT WAIGANI ]

PAPUA NEW GUINEA ]

CR 1262 OF 2002,

CR 1271 OF 2002 &

CR 1272 OF 2002

JOHN KONOBO

(‘Applicant’)

V.

THE STATE

(‘Respondent’)

Waigani: Davani .J

2004: 10,11 February

J. Mesa for the Applicant

D. Mark for the Respondent

Criminal law – practice and procedure – trial must take place in presence of accused – escape by co-accused before delivery of verdict – continuance of proceedings impracticable – Criminal Code s. 571 (1)(2).

Criminal law – Practice and Procedure – escape – conduct that renders trial impracticable – trial to proceed in co-accused’s absence.

Cases cited

R v Stuart and Finch [1974] Qd R 297

R v Jones (No. 2) 1W.L.R 887

Texts cited

Strouds Judicial Dictionary 5th Edition

Carters Criminal law of Queensland 6th Edition

Archbold, Criminal Pleading, Evidence and Practice 2001

RULING

(application to continue with trial)

11 February 2004

DAVANI .J: I have before me an application by the Accused/Applicant (‘Applicant’) seeking orders for this court to hand down its decision on verdict in the absence of his 2 other co-accused. The application is moved by way of Notice of Motion filed on 10.2.04 and supported by the Applicants affidavit sworn on 9.2.04.

The affidavit deposes to the background of this matter which I will set out in chronological order as they form the basis of this application. These are;

1. 25.3.03 – All accused appeared in court for commencement of trial when Indictment was tendered by the State and all pleaded not guilty.

Matter proceeded to trial.

2. 27.5.03 – Completion of evidence and the court adjourned to 4.6.03 for decision on verdict.

3. 4.6.03 – All accused failed to appear to receive decision on verdict.

Court issued Warrants of Arrest.

4. 19.7.03 – Applicant was arrested.

5. 4.6.03 to 26.9.03 – Court attempted to glean information from guarantors as to whereabouts of 2 other co-accused, with no success.

6. 21.7.03 – Applicant appeared on the Bench Warrant.

7. 5.8.03 to 6.2.04 – Applicant appeared before the court on 5 occasions, where the court enquired on execution of Warrants of Arrest for 2 other accused.

8. 10.2.04 – This application was filed and heard.

The State did not raise any objections only agreeing to the position at law being that all accused must be in court for the court to hand down its decision on verdict.

Counsel for the Applicant referred me to s. 37 of the Constitution being a persons right to full protection of the law, more particularly s. 37(3), that the Accused must be afforded a fair hearing within a reasonable time, by an independent and impartial court.

In this case, evidence is complete and the court adjourned to hand down its decision on verdict. Can it do so in the absence of the 2 co-accused? If it does not do so, is that or would that be an infringement of the Applicant’s right to a fair trial? S. 571 of the Criminal Code Act (CCA) states that subject to subsection (2) of that section, a trial must take place in the presence of the accused person unless his conduct is such that would render the continuance of the proceedings in his presence, impracticable. Subsection 2 states;

“2. The court may, in any case, if it thinks fit, permit a person charged with a misdemeanour to be absent during the whole or any part of the trial, on such conditions as it thinks proper.”

In this case, the 2 co-accused Tau Baraga and Joe Vagi Boiboi, escaped before decision on verdict was handed down. Warrants of Arrest were issued but have yet to be executed. It has been 5 months since the completion of evidence. S. 571(2) gives the court a discretionary power to decide one way or the other.

The Queensland Court of Criminal Appeal has decided on this issue. I rely on that precedent because s. 571 of the PNG Criminal Code is in the exact same terms as S. 617 of the...