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State v Ambuk [2020] PGNC 512; N9942 (8 July 2020)

N9942

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 15 OF 2017

THE STATE

V

JASON AMBUK

CR NO. 16 OF 2017

THE STATE

V

STILSON JOHN

CR NO. 17 OF 2017

THE STATE

V

BELDEN YAMBAN

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

CRIMINAL LAW – Part heard matters – trial conducted – all guilty – submissions on verdict filed – trial judge yet to make a ruling on verdict – s576(1) Criminal Code – trial judge not re-appointed - whether another judge can make a ruling on verdict

Cases Cited

Guma Wau & Hon. Ano Pala & ors (2010) N6486
The State v. Jenny Veisame [2004] PNGLR 13

Counsel

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

RULING

8^th July, 2020

1. SUELIP AJ: These are part-heard matters. Trials were conducted before Justice Steven Kassman in 2019. Counsels have filed their submission on verdict. Whilst waiting for the Court’s ruling, the Judge’s term of appointment expired.
2. I then enquired with the parties as to whether it is appropriate for another judge to make a ruling on verdict. I directed that the State file written submissions in this regard. On 5 June 2020, the State filed a short-written submission. On 12 June 2020, the State presented its submission on whether another judge can consider and make a ruling on verdict on these prisoners after Justice Kassman found them guilty of the charge.

3. This is now my short ruling.

4. The issue is whether there will be a miscarriage of justice, if such a course of action is pursued?

The Law

5. Section 576 (1) of the Criminal Code provides: -

576 INCAPACITY OF JUDGE

(1) If in the course of the trial the presiding Judge becomes incapable of proceeding, a Judge may, on application by the accused person or his counsel or by a State Prosecutor order that the trial be discontinued.”

6. The State submitted that pursuant to s.576 (1) of the Criminal Code, the then presiding Judge now becomes incapable of presiding. The State says that incapacity emanates from the fact of non-reappointment. The State referred to Guma Wau and Hon. Ano Pala & 5 ors (2010) N6486 where the accused was charged with one count of attempted murder. In that case, Defence made a No Case to Answer Submission before the trial judge, the then Acting Justice Regget Marum. Without his Honour making a ruling on the No Case to Answer Submission, his appointment expired. Being aggrieved, the applicant sought declaratory orders, which were dismissed by the Court, and the Court made a formal order, amongst other, that the State would have to make the necessary application, pursuant to s.576 of the Criminal Code. On page four (4) of the judgment, His Honour, Acting Justice Liosi said: -

“Due to the expiration of the Acting Judges term of appointment, he is now incapable of completing the trial. Pursuant to Subsection (1) the matter will have to go before another judge who may on application by the accused person or by his lawyer or by a State Prosecutor order the trial to be discontinued.”

7. Going by his as a helpful legal guide, due to the expiration of Justice Kassman’s term of appointment as a judge, the State says that His Honour is now incapable of completing the trial.

8. The State further submitted that this matter should be discontinued, as similarly done as a practice before the National Court in past cases. The State says that if this Court upholds this application, it should, therefore, declare this as a mistrial, and order that the case be given a new trial date, as a matter of high priority, due to the accused persons being in the custody of the State for a long time. It is submitted that having the trial discontinued and declared a mistrial, would also avoid a miscarriage of justice. There are various circumstances of miscarriage of the justice, as said by His Honour, Acting Justice Manuhu (as he was then) in The State v. Jenny Veisame [2004] PNGLR 13.

9. The State submitted that in this case, a situation where a miscarriage of justice would arise, should another judge continue from where Justice Kassman stopped, the current judge would be making a decision on the guilt or innocence of the three (3) co-accused persons, without observing or seeing the demeanour of the State witnesses in the Courtroom, and the evidence gathered from this Courtroom within the knowledge of Justice Kassman alone, and not any other judge.

10. Counsel for the prisoners raised no objection to the submissions by the State. In doing so, I take it that the prisoner concedes to the State’s submissions.

Change in circumstances

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

Conclusion

12. I accept the State’s submission pursuant to 576 (1) of the Criminal Code that a Judge may, on application by the accused person or his counsel or by a State Prosecutor order that the trial be discontinued. 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. These three (3) matters are to return to the trial judge to consider and make a ruling on verdict.

________________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Prisoners