N8538

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 8 OF 2017

THE STATE

V

GRAHAM MICHAEL
of Vunabaur Ward, Kokopo District, ENBP

Kokopo: Suelip AJ
2020: 12th June & 8th July

CRIMINAL LAW - Part heard matters - trial conducted - prisoner found guilty - submissions on sentence filed - trial judge yet to make a ruling on sentence - s 576(3) of the Criminal Code - trial judge not re-appointed - whether another judge can make a ruling on sentence 

Cases Cited:
Papua New Guinea Cases

The State v. Jenny Veisame [2004] PNGLR 13 The State v. Stuart Fancy [1994] PNGLR 548 

Overseas Cases

Ex parte Attorney General (1991) Qd R 294

Legislations 

Criminal Code Act 

Counsel 

L Rangan, for the State 
N Katosingkalara, for the Prisoner 

RULING

8th July, 2020 

1. 	SUELIP AJ: On 12 June 2020, the State presented its submission on 
whether another judge can consider and make a ruling on sentence on this prisoner after Justice Kassman found him guilty of the charge.  

2. 	This is now my short ruling. 

Facts 
	
3. 	Graham Michael was charge for rape and trial was conducted at 
Palmalmal in 2019 before Justice Kassman and thereafter, the Court found him guilty. Counsels have made their respective submissions on sentence. His Honour was to deliver the Court's ruling on sentence. His term of appointment expired. A ruling on sentence is pending. 

Current submission 

	4. 	I then enquired with the parties as to whether it is appropriate for another judge to make a ruling on sentence. I directed that the State file written submissions in this regard. On 5 June 2020, the State filed a short-written submission for each of this prisoner. 

Issue 

	5. 	Would there be a miscarriage of justice, if such a course of action is 
pursued? 

The law 

	6. 	The basis for the State's submission is pursuant to s.576 (3) of the 
Criminal Code, which says: - 

"If after an accused person has been convicted of an offence but before sentence the presiding Judge becomes incapable of proceeding, some other Judge may, on application by the accused person or his counsel, or by a State Prosecutor, proceed to sentence as though the accused person had been convicted by him." 

7.	     The phrase " ... the presiding Judge becomes incapable of proceedings ... " in s.576 (3) of the Criminal Code also appears in s.576 (1) of the Code. It is submitted that His Honour, Justice Kassman is therefore incapable of proceeding, due to his non-reappointment as a judge. 

8. 	Essentially the State submitted that these matters can proceed to sentence before another judge pursuant to s.576 (3) of the Criminal Code. 

9. 	The most important question to bear in mind is whether it will be a 
miscarriage of justice, should another judge complete this matter? In The State v Jenny Veisame [2004] PNGLR 13, His Honour, Acting Justice Manuhu (as he then was), referred to Ex parte Attorney-General (1991) Qd R 294 where Macrossan CJ said, "Dislocation of the trial or delay in the course of it has the potential of injustice to the accused who remains in jeopardy until the trial is concluded." 

10. Further, His Honour referred to what the trial judge said in The State -v Stuart Fancy (1994) PNGLR 548 that, "It is not only the State's interest that must take prominence, the accused interest must also be protected. The State is an abstract entity, it has the means and strength to go at length, but an individual is immediately affected as a person and his resources requires to defend proceedings brought by the State." 

11. Counsel for the prisoner raised no objection to the submission by the State. 

Change in circumstances 

12. I have since received information from Justice Kassman of his recent reappointment and this reverts the course of these proceedings to their original position where, the trial judge is now capable of completing this part heard matter. 

Summary 

13. I accept the State's submission pursuant to 576(3) of the Criminal Code that another judge can consider and make a ruling on sentence for the coprisoners. However, due to the recent change in circumstances where the trial judge has been re-appointed, and he is now capable of proceeding, I make the following order:- 

1.	This matter is to return to the trial judge to consider and make a ruling on sentence.
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Public Prosecutor: Lawyers for the State
 Public Solicitor: Lawyers for the Accused