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State v Mamana [2020] PGNC 323; N8539 (8 July 2020)

N8539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 622 OF 2015

THE STATE

V

LOUIS MAMANA
of Uvol Ward, Pomio District, ENBP

Kokopo: Suelip AJ
2020: 12^th June & 8^th 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
8^th 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. Louis Mamana, was charged for rape and a trial was conducted at

Palmalmal, Pomio District in 2019 before Justice Kassman. The Court found him guilty. Counsels filed written submissions on sentence. His Honour was to deliver the Court's ruling on sentence. His term of appointment came to an end. 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 filed written submissions in this regard. On 5 June 2020, the State filed a short-written submission for each of the 3 prisoners.

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 proceed to sentence before another judge pursuant to s.576 (3) of the Criminal Code, where some other judge may continue with and complete this matter.
   

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), 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 re-appointment and this reverts the course of these proceedings to its 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 co--prisoners. 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.

____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner