N8655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 201 OF 2014

THE STATE

v

KAPI KOROP

Goroka: Yagi J
2020: 03rd & 04th December

CRIMINAL LAW – trial - particular offence – murder – Criminal Code, s. 300(1)(a) – retrial pursuant to Supreme Court order – anomaly in the Supreme Court orders – previous conviction by National Court not quashed and set aside - proceeding ruled a mistrial.

Cases Cited:

Nil

Counsel:

Mr D. Kuvi, for the State
Mr V. Agusave, for the Accused

RULING

04th December, 2020

1.	YAGI J:	This is a ruling on the trial of the accused who has been indicted on one count of murder. He is charged in relation to a killing of a man named Bangye Konge on 06 September 2013 at Kup Station in the Kerowagi District of the Simbu Province. 

2.	The indictment was presented before the National Court in Kundiawa on 07 April 2016 pursuant to s. 300(1)(a) of the Criminal Code Act.

3.	The background of the case is as follows. The accused pleaded guilty to the indictment on 07 April 2014 and was convicted and sentenced to 25 years imprisonment in hard labour. He appealed against the sentence on the basis it was excessive.

4.	The Supreme Court sitting in Mt Hagen heard his appeal on 01 and delivered its decision on 03 May 2018. The decision of the Supreme Court is published and numbered as Kapi Korop v The State (2018) SC 1670.

5.	The Supreme Court found that the trial Judge erred in law in not vacating the guilty plea by the accused when the accused made statements during allocutus which clearly suggested a legal defence of self defence was available to the accused. This point, though not a ground of appeal, was raised and agreed to by counsel representing the appellant and the State. This legal point was the basis on which the Supreme Court directed or ordered that the matter be remitted to the National Court for a new trial. The formal orders made by the Supreme Court are as follows:

	1.	Leave to appeal sentence is granted.

	2.	The sentence of 25 years IHL is quashed.

3.	The matter is remitted back to the National Court for new trial hearing by another judge.

6.	Consequently, the case was transferred from Kundiawa to Goroka and was fixed for 2 days trial. The trial commenced on 03 December and adjourned for continuation on 04 December 2020.

7.	During the night I had taken time to carefully read the Supreme Court judgment SC 1670 delivered on 03 May 2018 when I observed that the Supreme Court did not quash and set aside the conviction entered by the Kundiawa National Court on 07 April 2014.

8.	When the trial resumed on 04 December 2020, I raised this legal point with Mr Kuvi, the prosecuting counsel, and, Mr Agusave, the defence counsel. Both counsels were asked to seriously consider the issue and seek advice and guidance from their respective superiors. Each are to inform the Court as to whether a mistrial should be ordered as a matter of course on the basis of a serious anomaly on the face of the record. The trial was therefore adjourned briefly for that purpose.

9.	Following the brief adjournment, Mr Kuvi and Mr Agusave, informed the Court that after due consultation with their respective superiors and having serious consideration over the issue the State and the Defence conceded that the issue has substantial merit and that a mistrial should be ordered.

10.	For the foregoing reasons the Court considers the interest of justice warrants that the proceeding must be ruled a mistrial and should be aborted forthwith.

11.	In passing the State’s attention is drawn to the provisions of Order 11 Rule 32 of the Supreme Court Rules 2012 which would appear to be the appropriate remedy in the circumstances of the case.

Ruled accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State			
Public Solicitor: Lawyer for the Accused