SC2835
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NOS 49 & 50 OF 2025

DOMINIC TERUPO & MORGAN MOGU 
Appellants 

V

THE STATE
Respondent

WAIGANI: CANNINGS J, TOLIKEN J, BERRIGAN J
15, 24 DECEMBER 2025
 
SUPREME COURT – NATURAL JUSTICE – application for disqualification of bench appointed to hear appeal – whether reasonable apprehension of bias arises from the Judges appointed to hear criminal appeals being the same Judges who decided in a previous case the point of law intended to be relied on by appellants contrary to the way that the appellants intend to argue it. 

The appellants applied for disqualification of the three Judges appointed to hear their appeals against conviction. They argued that a reasonable apprehension of bias arises from the Judges being the same three Judges who previously heard an appeal from one of their co-offenders and determined the same point of law that the appellants intend to rely on, against the appellant in the previous case. They argued that a reasonable person with knowledge of the facts would reasonably believe that the same Judges might decide the case other than on its merits due to the Judges having decided the previous case in a certain way.

Held: 

(1)	For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts and having a working knowledge of the way in which judges and lawyers work have a reasonable suspicion or apprehension that a fair hearing was not possible?

(2)	In ascertaining whether a Judge’s pronouncement in a previous case amounts to a pre-judgment of issues arising in a later case, the question to ask is whether the previous pronouncement forecloses the Judge’s determination in the latter case such that it can be said that there is a reasonable apprehension that the Judge will not decide the case impartially. A reasonable apprehension that a Judge will decide the case adversely to a party is not the relevant criterion to apply.

(3)	The appellants were unable to show how the Judges’ determination of the argument intended to be relied upon by the appellants in the previous case gave rise to an impression that the Judges would not discharge their judicial duty to decide the appellants’ case impartially.

(4)	The previous case was recently decided and the appellants would be obliged, whether the same Judges or different Judges presided in the present case, to show that the previous case was wrongly decided and that exceptional circumstances warranted departure from the decision in the previous case. It is a heavy onus to discharge and the appellants are not prejudiced by the same Judges as in the previous case being appointed to hear their appeals.

(5)	The application for disqualification was refused. 

Cases cited

Application by Herman Joseph Leahy (2006) SC981
Carlos D’Attanasio v The State (2025) SC2757
Darbyshire v Tongia [1984] PNGLR 148
Lionel Gawi v The State (2006) SC850
MVIT v Reading [1988] PNGLR 236
Peter Yama v Bank South Pacific Ltd (2008) SC921
Philip Kaman v The State (2021) SC2227
SC Ref No 2 of 1992, Reference by the Public Prosecutor re Leadership Code [1992] PNGLR 336
Titi Christian v Rabbie Namaliu (1996) SC1583
Tzen Pacific Ltd v Innovest Ltd (2012) N4713

Counsel

N Hukula for the appellants
H Roalakona & M Mirou for the respondent

1.      BY THE COURT: The appeals of Dominic Terupo and Morgan Mogu were ready for hearing in the November 2025 sittings of the Supreme Court. They are appealing against their conviction for money laundering under s 509B of the Criminal Code and their sentences of 18 years imprisonment. At the start of the hearing they expressed concern through their counsel, Mr Hukula, about the composition of the Court. 

2.     They argued that the Court was not appropriately constituted as it was the same Court that heard an appeal by one of their co-offenders and that in determining that appeal, we had decided a point of law that they intend to rely on, in a way contrary to their intended argument. Mr Hukula submitted that it would be proper for us to disqualify ourselves and allow a differently constituted Court to hear their appeals. We declined to disqualify ourselves but adjourned the appeals to allow the appellants to file a formal application.

APPLICATION

3.     They filed a formal application for our disqualification on 5 December 2025. They argue that a reasonable apprehension of bias arises from our decision on 31 July 2025 in the appeal against conviction by one of their co-offenders. 

4.     That previous case is Carlos D’Attanasio v The State (2025) SC2757. In that case, we dismissed an argument by the appellant that the trial Judge had misinterpreted the elements of the offence of money laundering. We ruled that his Honour made no error in his analysis of the elements.

5.     In their appeal, the appellants are running the same argument: that the trial Judge ought to have taken a purposive approach when analysing the elements of the offence, and that if his Honour had not erred in misinterpretation of the elements of the offence, they would not have been convicted.

6.     They argue that because we have determined their argument in that previous case, we have prejudged their argument. They argue that a reasonable person with knowledge of the facts would reasonably believe that we might decide the case other than on its merits. In other words, that a reasonable apprehension of bias on our part arises from our pre-judgment of their argument. 

TEST 

7.     We agree with the way in which the appellants have framed their argument for disqualification. For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts and having a working knowledge of the way in which judges and lawyers work, have a reasonable suspicion or apprehension that a fair hearing was not possible? (Application by Herman Joseph Leahy (2006) SC981, Peter Yama v Bank South Pacific Ltd (2008) SC921, Philip Kaman v The State (2021) SC2227).

8.     In ascertaining whether a Judge’s pronouncement in a previous case amounts to a pre-judgment of issues arising in a later case, the question to ask is whether the previous pronouncement forecloses the Judge’s determination in the latter case such that it can be said that there is a reasonable apprehension that the Judge will not decide the case impartially.

9.     A reasonable apprehension that a Judge will decide the case adversely to a party is not the relevant criterion to apply (Tzen Pacific Ltd v Innovest Ltd (2012) N4713). 

THIS CASE

10.     We are not satisfied that our determination of the argument, which the appellants intend to rely on, in D’Attanasio, would give rise to an apprehension in the mind of a reasonable person that we would not discharge our judicial duty to decide the appellants’ case impartially.

11.     The appellants, and their counsel, might reasonably believe that their argument about the elements of the offence is likely to meet the same fate as a similar argument in D’Attanasio. However, as explained by Hartshorn J in Tzen Pacific, that is not the relevant test. 

12.     D’Attanasio was decided less than five months ago. The appellants will be obliged, whether we hear their appeals or different Judges preside, to show that it was wrongly decided and that exceptional circumstances warrant departure from it. The Supreme Court is not bound by its own decisions but will only depart from them in exceptional circumstances where it is shown after full argument and careful scrutiny that the previous decision was clearly wrong (Darbyshire v Tongia [1984] PNGLR 148, MVIT v Reading [1988] PNGLR 236, SC Ref No 2 of 1992, Reference by the Public Prosecutor re Leadership Code [1992] PNGLR 336, Titi Christian v Rabbie Namaliu (1996) SC1583, Lionel Gawi v The State (2006) SC850).

13.     Whoever hears their appeals, it is a heavy onus the appellants have to discharge. They are not prejudiced in any way by our presiding in their appeals.

CONCLUSION 

14.     The appellants’ application for disqualification must be refused. We are seized of the appeals and will hear the appeals. 

ORDER 

1.	The application for disqualification of Judges filed on 5 December 2025 is refused.

2.	The appeals shall be heard by the Court as presently constituted at the next available sittings of the Supreme Court.
__________________________________________________________________
Lawyer for the appellants 	:	Public Solicitor
Lawyer for the respondent 	:	Public Prosecutor