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State v Tiptip [2024] PGNC 198; N10866 (18 June 2024)

N10866

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 267 & 268 OF 2023

THE STATE

V

YOLANDA TIPTIP & NIGEL KUKUMA

Minj: Miviri J
2024: 18^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Manslaughter S302 CCA – State Application to Transfer Trial Location – Both Accused on Bail – Offence Allegation Arose In Mt Hagen – Unseal Affidavits of Accused – Allegation of Threats – Both Accused on Bail – Reliance of Certificate of Death of Lucas Tiptip – No Evidence to Matter Before Court – Threats to Witness Not Made Out – No Orders Prior On Record – Application Granted – Matter Reverted to the Mt Hagen Criminal List – Both Accused Bail extended on same terms & Conditions to Monday 1^st July 24 Mt Hagen National Court.

Facts
Accused were mistakenly committed to the Minj National Court when the offence for which both stood charged of manslaughter had allegedly taken place in Mt Hagen. State applied to transfer both back to the Mt Hagen Criminal list. Application was opposed by accused.

Held
Offence alleged took place in Mt Hagen.
No threats to accused.
No evidence to warrant.
Matter remitted to the Mt Hagen Criminal List.
Both Accused bails extended to call over
Monday 1^st July 2024. Mt Hagen National Court.

Cases Cited:
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Aihi v The State (No 2) [1982] PNGLR 44

Counsel:
J, Kesan, for the State
S. Wambe, for the Defendant

RULING

18^th June 2024

1. MIVIRI J: Both Yolanda Tiptip and Nigel Kukuma are charged by information dated the 23^rd December 2022 that they on the 3^rd December 2022 at Gabina Road WHP unlawfully killed Yambaki Bamo Roiko contrary to section 302 of the Criminal Code. Both were committed of that information to stand trial of the matter. This is a matter that arose in Mt Hagen alleging that the Accused were involved in the unlawful death of the deceased. All witnesses and the scene of the allegation are all in Mt Hagen.
   
2. The State has filed an application pursuant to section 155 (4) of the Constitution and the provisions of the Criminal Practise Rules for the matter to be transferred back to the National Court in Mt Hagen for trial. But has not drawn the court to orders that were made by this Court dated the 21^st May 2024 ordering that the trial date of the 1^st July 2024 was vacated matter was brought to the June 2024 sittings of the Court. And secondly matter was adjourned to trial before this Court on the 03^rd June 2024 at 9.30am before me Justice Miviri. And bail of the Accused was extended to that date 03^rd June 2024.
   
3. The State has not drawn that order to this Court materially because it is seeking to vary that order for the matter to be reverted to the criminal list in Mt Hagen. Orders of the Court can only be varied upon proper materials filed to so vary: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). Just as adjournments were sought and refused because there were no proper materials. In the same way here, it is incumbent upon the State to show that situations that existed when the court made the orders has now subsided so the application. Here the State has referred to Section 155 (4) which does not apply here in view of Aihi v The State (No 2) [1982] PNGLR 44. That, adherence to the law the appeal period will deny her justice. Following the law would cause injustice in his defence. This is an order of this Court which is sought to be varied not drawn to the Court by counsel applying.
   
4. Reliance is placed on the affidavit of Sir Lucas Roika sworn of the 10^th June 2024 who deposes that he is the father of the deceased. And that all witnesses are in Mt Hagen because the offence arose there. And that he is not comfortable to move the trial here because of the safety of all State witnesses in the matter. He states that no formal application was made and served to move the matter for trial in the way it was done. And there was no notice to them as witnesses of the State to respond through the State. It was an offence committed where the Mt Hagen National Court could hear the matter. Convenience of the Court is not an excuse to move criminal allegations in a particular area where the Court is sitting and has gazetted location sitting as is Mt Hagen. This offence did not occur in Minj but in Mt Hagen. It must remain there and be heard there.
   
5. There is no evidence that the Mt Hagen National Court is under any threat to hear this matter. There is no evidence that witnesses of the State are under any threat to hear this matter there. There is no evidence that the witnesses of the defence are threatened in any manner now before me. I do not consider the unsealed evidence of the accused as showing anything to the contrary that continues to warrant the trial being held in Minj. It is clear from their evidence that there is no material sufficient to warrant that the matter be tried here. Mt Hagen is a Provincial centre and capital of Western Highlands Province where this offence occurred. It will not be justice to move it out here to Jiwaka where the State witnesses are not located including any witnesses of the accused both.
   
6. I have had no benefit of the basis upon which the order was made to transfer here except for the orders on file set out above. In my view whatever it may have been has no evidence before me to warrant that both matters be heard and remain here. In my view the evidence does not warrant that they are before me on this list. They originate from Mt Hagen and rightly before that court tried before their own to distil what the law sees in the accommodation. I am not swayed by the unsealed affidavits of the accused placed before me today that they remain here. In the exercise of my discretion the State has by the evidence of Sir Lucas Roika shown there is no threat to any of the Accused in any way, or form current supported by evidence. In my view the death certificate of an unrelated matter to these proceedings will not comprise evidence to avoid what the Accused are due in law before the Mt Hagen National Court. That death of that deceased is not linked in any way or form to the trial that the Accused are before this Court. Persons who are alleged in that allegation do not derail that this case goes back where it originated from to stand its trial, Mt Hagen.
   
7. I grant the application that both Accused Yolanda Tiptip and Nigel Kukuma will be heard in their trial before the Mt Hagen National Court. They will accordingly answer bail at the 1^st call over of that court on Monday 1^st July 2024 at 9.30am. The trial will be set by the Mt Hagen National Court. Not the Minj National Court which is constituted of persons who have committed offences in this Province Jiwaka, not Western Highlands.
   

Orders accordingly.

Office of Public Prosecutor : Lawyer for the State
Fortis Legal Services : Lawyer for the Defendant