The State v Jeffrey Balakau

• Jurisdiction: Papua New Guinea
• Judge: Batari AJ
• Judgment Date: 04 June 1996
• Citation: (1996) N1528
• Court: National Court
• Year: 1996
• Judgement Number: N1528

National Court: Batari AJ

Judgment Delivered: 4 June 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 575 OF 1992

THE STATE

v

JEFFREY BALAKAU

Waigani

Batari AJ

3-4 June 1996

CRIMINAL LAW — Practice and Procedure — Application for adjournment — Application to be considered on its own facts — Special and convincing reasons — Interest of injustice — Consent — Not special and convincing reason.

CONSTITUTION — s. 37 (3) — Right to "unfair trial within a reasonable time" — Breach of unreasonable delay — Consequential orders — Whether entitlement in accused to immediate remedy — Competing interests — Right of accused to speedy trial and right of people for accused to stand trial.

CRIMINAL LAW — s. 552 — Criminal Code — Remedy for delayed trial.

Cases Cited:

State v Peter Painke [1976] PNGLR 210

State v Jackson Tita Toamara & Anor (unreported National Court Judgment) N759

Jeffrey Balakau v The Independent State of Papua New Guinea (un-numbered) OS 401 of 1995

Counsel:

P Mogish for the State

M Kua for the Accused

4 June 1996

BATARI AJ: When this case was called yesterday, Public Prosecutor, Mr Mogish applied for adjournment and cited unavailibility of witnesses due to inadequacy of time given to arrange their attendance.

Mr Kua for the accused opposed the application with much vigour on the basis of the case having been fixed for trial and the accused's right to a "fair trial within a reasonable time" under s.37 (3) of the Constitution.

The order of events which delayed the speedy trial of the conspiracy charge were that; the accused was committed on 5 May, 1992 for trial on one charge of conspiracy and two charges of assault. On 24 July, 1992 he sought a review of the committal orders in the National Court. This was refused and in October/November of 1993 the accused was tried and dealt with on the two charges of assault. Thereafter, the conspiracy charge, seemingly got lost in the system. The case re-surfaced in September, 1995 following the Ombudsman Commission referral of the accused to the Public Prosecutor alleging certain misconduct in office based on the same facts which supported the conspiracy charge. However, the case was not listed as the accused had filed Originating Summons challenging his prosecution. That application was dismissed on 17 November, 1995. The case was re-listed but adjourned on two occasions because either the accused or his lawyer failed to attend. On 18 December, 1995, the trial was fixed to commence o 16 April, 1996. On 7 April, 1996 lawyers for the accused wrote to the Public Prosecutor advising of a judicial review being filed against the National Court decision of 17 November, 1995. On 16 April, I vacated the trial dates and stood the matter down for mention on 1 July, 1996 under a presumptive view that a stay of prosecution was consequential to the filing of the Review. I re-called the case and allocated new trial dates commencing 22 May, 1996. On that date, I granted an adjournment on prosecution's application but again short-dated re-listing to 27 May, 1996.

In this application, Mr Mogish in effect seeks vacation of the trial dates and allocation of new dates which would give prosecution sufficient time to prepare and assemble witnesses. I believe he also relies on the affidavit of Mr Sambua sworn on 31 May, 1996 in his submissions.

First, I deal with the constitutional effect of the delay which has now reached 4 years and 1 month. This period of waiting to be brought to trial clearly offends against s 37 (3) of the Constitution. His Honour, Los, J had described the delay in November as "outrageously long" (Jeffery Balakau v The State OS 401 dated 17 November 1995 — un-numbered). His Honour was then considering the same issue of delay on the accused's application to stay the conspiracy prosecution against him or alternatively to dismiss it.

I consider that, where in an application for adjournment the question of delay is raised under Constitution s.37 (3), the facts of each particular case should be determinative of whether or not the delay amounts to denial of the accused his right to be brought to trial within a reasonable time. If the view is formed that there had been a breach of s.37 (3), the enforcement of the accused's right is a matter of discretion and the onus is on the applicant to show that there is special cause to grant adjournment or that the adjournment sought is in the interest of justice. In all cases the accused is, in my view entitled to a remedy available to him under the Constitution or in law. The form of remedy may be decided on such factors as:

· the period the case has been...