N9897

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1053 OF 2017
THE STATE v. GABRIEL TAINGBAM

CR NO. 1057 OF 2017
THE STATE v. CHRIS MITPARIN

CR NO. 1058 OF 2017
THE STATE v. ALOIS NGINGA

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

CRIMINAL LAW – Part heard matters – co-offenders found guilty – submissions on sentence filed – trial judge yet to make a ruling on sentence – s576(3) of the Criminal Code – trial judge not re-appointed - whether another judge can make a ruling on sentence – trial judge recently re-appointed – matters return to trial judge to complete

Cases Cited:
Papua New Guinean 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

Counsel

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

RULING

8th July, 2020

1.	SUELIP AJ:   These are part heard matters. Gabriel Taingbam, Chris Mitiparam and Alois Ninga are co-offenders. A trial was conducted in 2019 before Justice Kassman and thereafter, the Court found each of them guilty. Counsels filed written submissions on sentence. His Honour was to deliver the Court’s ruling on sentence. However, before His Honour could decide on their sentences, his term of appointment ended. A ruling on sentence is pending. 

2.	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 these 3 co-offenders. 

3.	On 12 June 2020, the State presented its submission on whether another judge can consider and make a ruling on sentence on these co-offenders after Justice Kassman found them guilty.

4.	This is now my short ruling.

Issue

5.	Whether there is a miscarriage of justice if another judge considers and makes a ruling on sentence after the trial judge has convicted the offenders? 

The law

6.	The basis for the State’s argument is made pursuant to s.576(3) of the Criminal Code, which provides: 

“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 State says 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 therefore submitted that His Honour, Justice Kassman is incapable of proceeding due to his non-reappointment as a judge. The State further submitted that these matters can proceed to sentence before another Judge pursuant to s.576(3) of the Criminal Code, where some other judge may continue with and complete these matters. 

8.	The issue is whether it will be a miscarriage of justice if another judge completes these cases? The State referred to the case of The State v. Jenny Veisame [2004] PNGLR 13, where His Honour, Acting Justice Manuhu (as he then was), referred to the overseas case of Ex parte Attorney-General (1991) Qd R 294. In that judgment, 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.” 

9.	The State further referred to another of His Honour’s judgment in The State -v- Stuart Fancy (1994) PNGLR 548 where he stated: 

“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.”

10.	The State submitted that the delay in sentencing the offenders is causing them injustice and their interests and resources to defend themselves must also be protected. 

11.	Counsel for the co-offenders raised no objection to the State’s submissions.

Change in circumstances

12.	I have since received information from Justice Kassman of his recent re-appointment and this will effectively revert the course of these proceedings to their original status where, the trial judge is now capable of completing these part heard matters.

Summary 

13.	Therefore, 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 with these part heard matters, I make the following order: 

1.	These 3 matters are 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 Offenders