N9320

 PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1033 OF 2017
THE STATE
V
JACOB GUL
Bomana: Sambua, AJ
2021: 30th September & 28th October

PRACTICE & PROCEDURE – application for disqualification of a Judge – serious matter - must be on good basis – supported by affidavit disclosing factual basis for – made in good faith - application without good basis could amount to scandalising the court and contempt of court – no case made out for disqualification – application dismissed.
Cases Cited:
Papua New Guinea Cases

Boateng v The State [1990] PNGLR 342   
Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950
State v Paul Kundi Rape [1976] PNGLR 96.

Overseas Cases

R v Liverpool City Justice, Ex-parte Topping [1983] WLR 119 

Counsel:
Ms G. Gunson, for the state
Ms M. Worinu & Mr N Kopunye, for the Defendant

RULING ON APPLICATION FOR DISQUALIFICATION OF A JUDGE

28th October, 2021
1.	 SAMBUA, AJ. The Applicant/Accused through his lawyers filed a Notice of Motion with supporting affidavit to disqualify me from further dealing with his case.

Notice of Motion

2.	The Notice of Motion was filed on the 1st of September 2021 which stated that:

“The Defendant/Accused will at 9.30 am on Thursday 2nd September 2021 move the court for orders that:

i.	Pursuant to section 155 (3) and (4) of the constitution and the inherent powers of this Honourable Court to dispense justice where appropriate:

a.	His Honour Acting Justice Sambua be disqualified from conducting the trial in the proceeding herein.
b.	The trial commenced on 19th August 2021 be vacated and the matter be fixed for trial before another judge

ii.	Such further or other orders this Honourable court sees appropriate.

3.	In support of the Notice of Motion, the defence filed an affidavit of Senior Constable Gideon Ulapapik, sworn and filed on the 1st of September 2021. The pertinent parts of his affidavit are:

1.	I am Senior Constable attached with National Capital District Traffic Police.

2.	I am aware that Jacob Gul, the Defendant/Accused in the proceeding herein was charged with one count of Grievous Bodily Harm (GBH) of one namely Edgar Ali pursuant to section 319 of the Criminal Code Act Chapter 262. Mr Gul was alleged of kicking the victim in his mouth causing the tear through the skin below his lower right lip………

5.	 I agreed with Jacob Gul to give oral evidence in open court where I was to be called as a witness in the trial of this proceeding.

6.	As the Trial commenced on 19 August 2021 at National Court, Bomana, I was in attendance as I was to be called as a witness by Mr Gul

7.	On the 19th or 20th of August 2021 in the afternoon I was at Bomana for this matter. Myself and Senior Constable Rea Geno (also a witness for Mr Gul) were sitting opposite the Court house facing the building and the basketball court.

8.	 There is also a sign board saying “Restricted Area” towards the end of the basketball court and before the entrance to the Judges Car Park area and the Judges Office I assumed.

9.	From where I stood, I clearly saw the victim’s father Senior Superintendent Robert Ali walked past the gate and into the restricted area. He popped up after some minutes and walked out the gate, past the restricted area and the basketball court towards his car.
10.	From my observation I believe that Mr Ali and His Honour Sambua AJ must have communicated, and His Honour must have allowed Mr Ali to approach him at his office.

11.	 I am from East Sepik Province. I know Mr. Robert Ali as we hail from the same province, and I know him professionally as we both are in the Police Force

12.	I know that His Honour Sambua AJ is also from East Sepik Province

13.	 Prior to being appointed as a judge His Honour was a Public Prosecutor and worked closely with members of the Police Force.

14.	I know that Mr Robert Ali and His Honour know each other both professionally and personally and on previous occasions, I have seen Mr Robert Ali and His Honour together on social occasion (during the time His Honour was a Public Prosecutor)

15.	 I believe that as Mr Ali and His Honour know each other personally, it will affect the outcome of this matter.

4.	Senior Constable Gideon Ulapapik was also called however, his affidavit was not tendered in court as evidence for the Applicant/Accused.

5.	After he was called and gave evidence, it became apparent that the evidence deposed in paragraphs 8 to 15 of his affidavit was a mistaken fact and misunderstanding by Senior Constable Gideon Ulapapik.

6.	At 2.00 o’clock on the afternoon of Friday the 20th of August 2021, Chief Superintendent Robert Ali was called as a witness by the State to give evidence in Court on behalf of the State against the accused Jacob Gul.

7.	The accused Jacob Gul was indicted with one (1) count of grievous bodily harm under section 319 of the Code. The charge on indictment read:

“Jacob Gul of Waki village, Nondugl, Jiwaka Province, stands charged that he on the 12th of November 2016 at Gordons, National Capital District, unlawfully did grievous bodily harm to Edgar Ali”

8.	On arraignment, he pleaded not guilty to the charge and a trial was convened. After the close of the State’s case, the defence made a No Case to Answer Application based on the first leg of the No Case to Answer Application principle stated in State v Paul Kundi Rape [1976] PNGLR 96.

9.	Miss Worinu, counsel for the accused had submitted that the evidence adduced by the State was insufficient in that it did not establish the elements of the charge of grievous bodily harm especially the element of whether the injury that the victim Edgar Ali sustained was a permanent and/ a life threatening injury. Hence, the charge of grievous bodily harm was not made out and therefore the court should stop the case from thereon and not to call upon the accused to give evidence in his defence. 

10.	In my decision on the no case to answer application at paragraphs 36 to 44, I ruled that:

36.	On the first limb is on a question of law whether the evidence adduced by the State from its witness and the documentary evidence establishes all the elements of the charge of grievous bodily harm and on the second limb is whether the evidence so far adduced by the state is insufficient and lacking in weight that the court should exercise its discretion to stop the case here and not to call the accused to give evidence.

37.	To answer the first issue, let’s look at the elements of grievous bodily harm. The crime of grievous bodily harm is created by section 319 of the Criminal Code Act chapter 262.

Section 319 states:

“A person who unlawfully does grievous bodily harm to another person is guilty of a crime”

And grievous bodily harm is defined in section 1 of the 
Criminal Code as;

“any bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health”.

The Oxford Advanced Learners dictionary defines grievous as

 “serious or severe wound”.

The same Oxford Advance Learners dictionary defines grievous bodily harm as

 “a serious injury caused by a criminal attack.”

38.	  After discussing the crime of grievous bodily harm under section 319 of the Criminal Code Act and its definition under section 1 of the Criminal Code as well as the definition in the Oxford Advance Learners dictionary, in my view the injury suffered by the victim Edgar Ali would easily fall into the definition of grievous bodily harm which is supported and corroborated by the Medical Report that was tendered together with the affidavit of Dr John Tsiperau and marked as Exhibit “B” and the three (3) photographs that were tendered and marked as Exhibits “C1” - “C2”.

39.	Although section 1 defines grievous bodily harm as any injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health, the qualification for our present purpose is that it is likely to endanger life and likely to cause permanent injury to health.

40.	In my view the injury need not be life threatening or will cause permanent injury, as long as it is a serious or a severe injury from an unlawful or a criminal attack as defined by Oxford Advance Learners dictionary.

41.	So the elements of the charge of grievous bodily harm are as stated in the case of State v Ray Johnson [2016] N6379 by Anis AJ (as he then was)

“let me set out the elements of the offence grievous bodily harm:
•	person(1)
•	who unlawfully(2)
•	does grievous bodily harm(3)
•	to another(4)

(Numbering is mine- Anis AJ)

Now, I have looked at the case law. It shows that the elements of grievous bodily harm vary in some cases, but not to an extent outside the confines of section 319. Regardless, the two main elements are who unlawfully and does grievous bodily harm “

42.	The three photographs that were tendered into evidence by consent and marked as Exhibits “C 1” – “C3” depicts a serious injury to the victim and am sure that it was very painful and agonising to the victim Edgar Ali especially during eating and consumption of liquid whilst nursing the injury. Dr John Tsiperau had told the court that the injury is likely to leave a scar. The scar was visible when victim Edgar Ali pointed out in court where he was kicked by the Police officer.

43.	A scar is a disfiguration on a surface of a skin which is usually permanent. Hence qualifying as permanent injury as defined in section 319 of the Criminal Code Act Chapter 262. 

44.	Therefore, I am satisfied that the evidence adduced by the State thus far established all elements of the charge of grievous bodily harm under section 319 of the Criminal Code Act and the assault on the victim by the accused was uncalled for and unjustified in law. Hence the answer to the first limb of the principle of no case to answer is in the affirmative. 

11.	The application to disqualify me, was made based on paragraphs 8 to 15 of the affidavit of Senior Constable Gideon Ulapapik. After he was called and gave evidence, it became apparent that the evidence deposed in paragraphs 8 to 15 of his affidavit was a mistaken fact and misunderstanding by Senior Constable Gideon Ulapapik , that at 2.00 o’clock on the afternoon of Friday the 20th of August 2021, Chief Superintendent Robert Ali was called as a witness by the State to give evidence in Court on behalf of the State against the accused Jacob Gul, therefore, the defence abandoned the grounds under paragraph 8 to 10 and pursued grounds under  paragraphs 11 to 15 that:

(11) I am from East Sepik Province. I know Mr. Robert Ali as we hail from the same Province, and I know him professionally as we both are in the Police Force

(12) I know that His Honour Sambua AJ is also from East Sepik Province

(13) Prior to being appointed as a judge His Honour was a Public Prosecutor and worked closely with members of the Police Force.

(14) I know that Mr Robert Ali and His Honour know each other both professionally and personally and on previous occasions, I have seen Mr Robert Ali and His Honour together on social occasion (during the time His Honour was a Public Prosecutor)

(15) I believe that as Mr Ali and His Honour know each other personally, it will affect the outcome of this matter.

12.	When I was sworn - in as an Acting Judge by the Governor General Grand Chief His Excellency Sir Bob Dadae on the 5th of August 2021, I swore on oath to serve the Constitution and the laws of Papua New Guinea without fear and favour. And I will continue to do so in my judicial capacity.

13.	Let me state it clearly here, that in my previous employment, I was a State Prosecutor for 31 years and have circuited in Wewak, Maprik and Angoram in the East Sepik Province on numerous occasions and prosecuted numerous East Sepik people. One of them was Bruce Samban, the former Premier of East Sepik Province.

14.	The other prominent people of East Sepik I prosecuted included former member for Madang, Jacob Wama and Jimmy Kendi a businessman from East Sepik, in Kokopo, East New Britain Province. When I prosecuted them, I prosecuted them not as Sepiks but as offenders of law and I was duty bound by law to prosecute them as a Papua New Guinean State Prosecutor and not as a State Prosecutor from East Sepik Province. 

15.	When I first started working as a Prosecutor, I came to know Mr Robert Ali as a Police Prosecutor. However, as he progressed through the rank and file, I lost contact with him and cannot recall socialising with him ever.

16.	The defence are now arguing that because of my previous knowledge and work relationship with him, I would be prejudiced in hearing this case and referred to the Supreme Court case of Boateng v The State [1990] PNGLR 342   whereby the Court held that:

i	The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible.
ii	The presence of the trial judge's wife in court during a rape trial and her associating with the prosecutrix within the precincts of the court gave rise to such a reasonable suspicion and a new trial should be ordered.”

17.	The case of Boateng v The State [1990] PNGLR 342 is a criminal case where the Supreme Court adopted the test outlined in R v Liverpool City Justice, Ex-parte Topping [1983] WLR 119 at 123 where it stated that the test to be applied in determining whether a judge should disqualify themselves for apprehension of bias is:
	
“Would a reasonable and fair-minded person be sitting in a court and knowing all the relevant facts having a reasonable suspicion that a fair trial for the appellant was not possible.”

18.	So, the issue now is if I continue to hear this case would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the accused was not possible?

19.	In my view the facts of this case can be easily distinguished from Boateng case (supra). The facts of this case are that the witness Robert Ali was a state witness and was required by the State to testify in court against the accused.

20.	At about 2.00 pm on the afternoon of Friday 20th August 2021, he was called by the State to testify in court, and he entered through the main front entrance of the Bomana Court House. This was mistaken fact and a misunderstanding by Defence witness Senior Constable Gideon Ulapapik as it became apparent during cross-examination.

21.	Senior Constable Gideon Ulapapik had assumed that when the State witness Robert Ali entered the main Bomana Court House front entrance, he had come in to see me in my Chambers. He was mistaken. Chief Superintendent Robert Ali was called by the State, and he gave oral evidence in Court that afternoon.

22.	Therefore, in my view the Application for my disqualification from continuing to hear this case is assumptive and misconceived. That Friday afternoon Chief Superintendent Robert Ali was in court to give oral evidence in court on behalf of the State unlike the case of Boateng v State (supra) where the Judge’s wife was in Court not to give evidence but as “show of support” to the rape-victim. I am sure that it would not give rise to “would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts having a reasonable suspicion that a fair trial for the appellant was not possible?”.

23.	In the case of Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950, His Honour Kandakasi, J (as he then was) stated that:

It is a very serious matter to seek the disqualification of a judge and as such, it must be based on reasonable, genuine and objective basis or grounds and not driven by unreasonable, emotive and non-objective views of parties or their counsel. The application for my disqualification is not based on any substantial ground. 

24.	In this case the Applicant/ Accused has not demonstrated or substantiated any real grounds for my disqualification on Apprehension of biasness except to say that Chief Superintendent Robert Ali is from East Sepik and so am I. This is a cheap shot.
 
25.	In the same case of Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950, His Honour Kandakasi, J (as he then was) also stated: 

A lawyer appearing for a party making an application for a disqualification of a judge has a duty to the court which is paramount, and that duty requires the lawyer to disclose all cases or authorities on point, including those against his client. 
26.	For the defence to make this application to disqualify me from further hearing their case after I have made a ruling on their No Case to Answer application refusing same, in my view is an abuse of process. If they were genuine that there was real likelihood of apprehension of bias on my part, they should have made that application before I started hearing the evidence and not after I have made a ruling on the No Case to Answer Application against the accused. 

27.	This obviously is an attempt to have a second bite at the cherry before another judge that may rule in their favour or what may be termed as judge hopping.

28.	In this case the Applicant/Accused through his lawyers have not adduced evidence to show that a reasonable and fair-minded person sitting in this court, knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible? I would answer in the negative.

29.	 In my view this is an abuse of process and accordingly find that it is an Abuse of Process.

Order

30.     This Application for my Disqualification is dismissed.
_________________________________________________________________
Nelson Kopunye Lawyers: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent