SC2869

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO 64 OF 2024

ANDREW DAMA
Applicant

v

THE STATE
Respondent

LAE: MANUHU J, GEITA J, CHRISTENSEN J
26, 27 MARCH 2026

REVIEW – CRIMINAL LAW – Review of conviction – s 229D Criminal Code – persistent sexual abuse of a child – sexual abuse of biological daughter over a period of years – 40 years imprisonment imposed – material irregularity in arraignment and sentence proceeding – miscarriage of justice – remedied by order for new trial 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sentencing – intention of persistent sexual abuse provision – single charge – particulars of charge – elements of charge – procedure on arraignment – procedure at sentence hearing – applicable maximum penalty 

The applicant pleaded guilty to sexual offending against his biological daughter and was sentenced to a period of 40 years imprisonment.  The applicant was indicted with only one count of persistent sexual abuse of a child contrary to s 229D of the Criminal Code.  However, he was sentenced for persistent sexual abuse of a child, and also an offence of sexual penetration of a child contrary to s 229A of the Criminal Code.  This occurred due to material irregularities in the sentence proceeding.  

Held

1.	A material irregularity and miscarriage of justice occurs where an accused is convicted and sentenced for more than one offence when the indictment charged only a single offence.   

2.	A charge of persistent sexual abuse of a child pursuant to s 229D of the Criminal Code is an unusual and unique offence provision as it legislatively permits multiple acts of alleged distinct criminal offending to constitute a single offence and charge.    

3.	Section 229D of the Criminal Code has a purpose of ensuring offenders can still be brought to account when repetitive sexual abuse of a child occurs and the complainant is unable to recall with precise particularity the occasions of alleged sexual abuse.
4.	An indictment with a sole charge of persistent sexual abuse of a child pursuant to s 229D of the Criminal Code involves a sentencing exercise for one offence constituted by multiple acts of offending conduct.  

5.	An indictment charging only an offence contrary to s 229D of the Criminal Code is to be regarded as involving a single charge (or count), with the particulars of the allegations in the charge (or count) being contrary to Division 2A of the Criminal Code.  

6.	The elements that the State has the burden of proving in such an indictment are the elements as prescribed by s 229D and, as a consequence, additionally any elements of the allegations in the charge contrary to Division 2A of the Criminal Code.  

7.	The applicable maximum penalty in an indictment with a single charge (or count) contrary to s 229D of the Criminal Code is the maximum penalty as provided solely by s 229D of the Criminal Code.  

8.	In a sentence proceeding for an offence contrary to s 229D of the Criminal Code the accused should be asked as to whether they are guilty or not guilty only after the entire substance and particulars of the allegation as set out in the charge (or count) are carefully explained and put to the accused.  

9.	The matter then proceeds to either trial on the single charge (with the particulars as alleged with reference to the Division 2A offence provision/s) or to a sentence hearing on the single charge (with the particulars, and applicable maximum penalty, as alleged). 

10.	The National Court decision in State v Makai [2009] PGNC 239, N3841 is an informative and authoritative decision on s 229D of the Criminal Code.   

11.	The miscarriage of justice that occurred here can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make.  

Cases cited

Beng v The State [1977] PNGLR 115
Bukoya v The State [2007] PGSC 15, SC887
Jelis v The State [2012] PGSC 26, SC1184
Kemp (No 2) [1996] QCA 514
KRM v R (2001) 206 CLR 221; [2001] HCA 11
Ombusu v The State [1997] PNGLR 699
Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79, SC1999
State v Makai [2009] PGNC 239, N3841
Tugein v Gotaha [1984] PNGLR 137

Counsel 

J Bibilo with E Misikali for the applicant 
P Matana for the respondent 

1.	BY THE COURT: By way of application for leave to review filed 24 October 2024, and a grant of leave on 7 March 2025, the applicant seeks a review of conviction and sentence.  The review is sought following the entry of a plea of guilty at a sentence hearing that occurred on 14 and 29 November 2022.  

2.	On 1 December 2022, the applicant was purportedly sentenced to 40 years imprisonment for offending involving the sexual abuse of a child. The child is his biological daughter and the State alleged that the applicant engaged in sexual activity with her from when she was 8 years of age, through until an act of sexual penetration occurred when she was 13 years of age.  

3.	We have deliberately described the sentence as one ‘purportedly’ imposed because the review against conviction raises irregularities in the conviction and sentence proceeding such that it is not possible to discern on what charge the applicant was lawfully convicted and sentenced.  

4.	The State does not disagree with this finding.  The State concedes that there was a material irregularity in the course of the trial (s 23 (1)(c) of the Supreme Court Act) and accepts that a miscarriage of justice has accordingly occurred.  

5.	We agree that there was a material irregularity and a miscarriage of justice.  The reasons for this will be explained, as well as consideration given to the consequential orders that are therefore required.  The issues that arose in this matter are such that it is also appropriate that we set out the irregularities and give consideration as to the proper procedures to be applied in sentencing for an offence of persistent sexual abuse contrary to s 229D of the Criminal Code.  

The review

6.	The grounds of the review are:

(a)	The trial judge erred in fact and in law by placing little to no weight on the mitigating factors available in the applicant’s case.  

(b)	The trial judge erred by taking into account irrelevant matters wherein the applicant did not plead guilty to, thereby resulting in the imposition of a higher sentence. 
(c)	The sentence of 40 years imprisonment is manifestly excessive, and the trial judge should have applied the totality principle.  

7.	It is sought that the review be allowed, the sentence set aside, and it be substituted with a lower sentence.  

8.	As already observed, it is necessary only to consider the law that applies to a review of conviction.  This law is well settled.  The review is governed by s 23 of the Supreme Court Act, being that the Supreme Court shall allow an appeal against conviction if it thinks that:

(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)	the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)	there was a material irregularity in the course of the trial.  

9.	In the event one of the grounds is established, the Court is then to consider whether a miscarriage of justice has actually occurred.  If not, the appeal may be dismissed: Beng v The State [1977] PNGLR 115.  

10.	We note that the contended grounds of review in this matter do not specifically address any allegations with respect to the entry of the conviction.  However, in circumstances where the State concedes the review and there has plainly been a material irregularity, we will proceed on the basis that the review is concerned with this Court’s view in an application of s 23(1)(c) of the Supreme Court Act.  

The National Court proceeding

11.	The applicant was indicted with one charge contrary to s 229D of the Criminal Code which provides:

229D	Persistent Sexual Abuse of a Child

 (1)   A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this division, is guilty of a crime of persistent abuse of a child.
 
Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
 
(2)   For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
 
(3)   In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
 
(4)   A charge of an offence against this section -
(a)   must specify with reasonable particularity the period during which the offence against this section occurred; and

(b)    must describe the nature of the separate offences alleged to have been committed by the accused during that period.
 
(5)   For an accused to be committed of an offence against this section -
(a)   the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this division in relation to a particular child; and

(b)   the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.
 
(6)   If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

12.	The indictment as presented in this matter can be summarised as reflecting the following single charge: 

Between 1 June 2016 and 28 August 2021, at Lae, the applicant engaged in persistent sexual abuse of a child under the age of 16 years, namely ED, then 8 years old. 

In the course of the persistent sexual abuse: 

-	on an unknown date between 1 June 2016 and 31 July 2016, for sexual purposes, the applicant touched with his fingers the vagina of a child under the age of 16 years, namely ED, then 8 years old. 

-	on an unknown date between 1 June 2016 and 31 July 2016, for sexual purposes, the applicant compelled a child under the age of 16 years, namely ED, then 8 years old, to touch with her fingers the sexual parts of the applicant’s body, namely, his penis.  

-	on 27 August 2021, the applicant sexually penetrated a child under the age of 16 years, namely ED, then 13 years old, by inserting his penis into her vagina.  

And in the course of the persistent sexual abuse, the applicant was in a position of trust, authority and dependency to ED, as he was her father.  

13.	The indictment, in terms of how it reflected the elements of an offence provided by 
s 229D of the Criminal Code, was correct.  It was also correct that the indictment contained a sole, single, or only one charge.  The offence provision in s 229D of the Criminal Code is concerned not with individual charges, but, as with the other offence provisions in the Criminal Code, a single charge per offence, or section, provision (further as to this, see below).  

14.	However, the face of the indictment did not include the section under which the charge was laid.  This was, and is, less than desirable, and, importantly, contrary to the Criminal Practice Rules 2022 (see in particular Form 13, noting Order 2, rules 7, 13, 15 and Schedule 1, s 229D).  

15.	The absence of the charge provision relied upon was likely instrumental in the irregularities that followed.  It also undermined appropriate clarity as to the circumstance of aggravation relied upon, as provided by s 229D, and the applicable maximum penalty: s 229D(6) Criminal Code.   

16.	It appears that the State Prosecutor presenting the indictment recognised the
non-compliance with the Criminal Practice Rules, and the lack of clarity that arose, and it sought to remedy this.  Regrettably, in doing so, a fundamental lack of clarity was introduced to the entire sentence proceeding.  

17.	The procedural background, with emphasis added as to the number of charges (or counts) described, involves in summary: 

(a)	The State presented an indictment containing one charge, in the terms as summarised above at [23]. 

(b)	The State Prosecutor informed the Court that the charge was contrary to s 229D(1), (6) of the Criminal Code, and that the “other counts” were the particulars of what was alleged as occurring “in the course of the persistent sexual abuse” as summarised above at [23].

(c)	The State Prosecutor stated that the charge was pursuant to s 229D(1) and (6), and that the “State also considers invoking 229A(1) of the Criminal Code” [sic]. 

(d)	The State Prosecutor then sought to amend the “last count on the charges for sexual penetration” and sought to amend the indictment s 229A(1) of the Criminal Code.  There was no objection to this by counsel for the applicant.  The transcript reflects that the indictment was returned, but the review book reflects no amendments to the indictment.  The only recorded amendment is to the brief facts which, in addition to it being typed “the actions of the accused contravened section 229D(1)(6) of the Criminal Code”, has a handwritten notation (with the State Prosecutor’s initials) of “S229A(1) CC”.  The State Prosecutor was then excused. 

(e)	The applicant was arraigned by firstly setting out the terms of the indictment without reference to any charge or count description.  The applicant was informed that the State alleged the actions contravened s 229D(1) and (6) and s 229A(1) of the Criminal Code.  

We pause to note that this approach, to the extent that it did not contend there was more than one charge or count, was correct.  

(f)	However, when the plea was sought, each particular of the charge was put to the applicant as a “count”, being from the “first” through to the “fourth” count. The applicant was asked with respect to each purported count whether he pleaded guilty or not guilty and he entered a plea of guilty.  

(g)	The primary judge then sought to confirm with counsel for the State that there were “four counts”, which was agreed. A provisional plea of guilty was entered.  

(h)	The depositions were tendered and the primary judge indicated their satisfaction that the evidence contained therein satisfied “the elements of the various counts he has pleaded guilty to”.

(i)	The primary judge convicted the applicant “on the four counts”.   

(j)	The sentencing prosecutor introduced the sentence hearing as being that the applicant has been “charged with one count of sexual – pardon me, three counts of persistent sexual abuse pursuant to s 229D(1) and (6)”.   The State sought a head sentence of 15 years imprisonment.  

(k)	The defence counsel introduced their submissions as being that it related to “the charge” and submitted that a sentence of 10 years imprisonment was appropriate.  

18.	In the sentencing decision, the primary judge accurately set out the charge in accordance with the terms of the indictment.  It was described as “the charge”.  The primary judge stated that the State alleged that the applicant contravened s 229D(1) and (6) and s 229A(1) of the Criminal Code.  His Honour then made reference to there being a submission as to totality with respect to “count one and count two”.  

19.	The primary judge observed the maximum penalty to be:

For an offence against s 229D(1) and (6), the relevant provision and its penalty provides for a maximum penalty of life.  For an offence under s 229A(1) the maximum penalty is 25 years.  

20.	At the stage of ordering sentence, the primary judge stated:

For the offence – now I am coming to the head sentence having referred to all these factors, head sentence for the s 229D(1), (6), persistent sexual abuse, I give him a 20 year sentence [with hard labour].  

For the offence of sexual penetration under s 229A(1), I give him 20 years [with hard labour].  

These sentences are cumulative...I have deducted 11 months from the 40 years.  That leaves him 39 years 1 month [with hard labour].  

21.	The warrant of commitment dated 1 December 2022 records that on 14 December 2022 the applicant was found guilty of persistent sexual abuse pursuant to s 229D(1), (6) and sexual penetration of a minor pursuant to s 229A(1) of the Criminal Code.  The length of sentence imposed was “40 years imprisonment (20 years for each charge to be served cumulatively)”. 

22.	As is apparent, rather than the sentence hearing and the sentence order correctly reflecting an indictment containing one charge contrary to s 229D of the Criminal Code, the sentence hearing and sentence order was entirely tainted by the introduction of purported additional, and uncharged, offences.  

The offence provided by s 229D – Persistent Sexual Abuse of a Child

23.	A charge of persistent sexual abuse of a child laid pursuant to s 229D of the Criminal Code involves an unusual, and unique, offence provision.  This is because it legislatively permits the joining of multiple acts of alleged distinct criminal offending within one charge.  Accordingly, it involves a sentencing exercise for one offence constituted by multiple acts of offending conduct.  

24.	This offence provision has had some consideration in the Supreme Court.  However, this primarily relates to sentencing appeals or reviews and there appears to only be one authority from the Supreme Court of interest for current purposes.  This authority (Jelis v The State [2012] PGSC 26, SC1184) has observed the “travesty of justice” that could arise where appropriate alternative charges are not laid.  This appears to remain binding authority (see Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code [2020] PGSC 79, SC1999) that ought be borne in mind by the prosecuting authority.  

25.	In the National Court, the offence provision has been the subject of consideration with respect to numerous sentencing decisions.  In addition, the elements of the offence provision were considered in State v Makai [2009] PGNC 239, N3841 in which it was correctly held:

(1) For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:
(a) he engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;
(b) on two or more occasions;
(c) each occasion was on a separate day; and
(d) the material facts of the occasions are clear.

(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.

(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.

26.	We recognise State v Makai as an informative and authoritative decision on s 229D of the Criminal Code and approve what was observed therein.  

27.	From a perusal of these authorities, it is apparent that it is well recognised that there is a complexity to the sentencing exercise in an offence under this provision.  The complexity of sentencing pursuant to s 229D is not though directly relevant for current purposes.  

28.	The offence provision has, as far as we could ascertain, not otherwise been the subject of consideration in Papua New Guinea as to the alleged criminality that is intended to be reflected in the offence provision. It is therefore informative to have regard to jurisprudence that is available from Australian jurisdictions with respect to the offence provision.  This is because, as we understand it, the introduction of the s 229D Criminal Code offence provision in Papua New Guinea was modelled, or at least drawn from, similar offence provisions in Australia. 

29.	In so doing, it warrants recording that the similar provisions in Australian jurisdictions reflect legislative history variations as to the title given to the offence provision.  It has, for example, been variously described as an offence of maintaining an unlawful sexual relationship with a child or persistent sexual abuse of a child.  Caution is necessary in the application of principles from Australian jurisdictions given the particular legislative provisions and the elements of those offences, and their consequential relevance to Papua New Guinea’s persistent sexual abuse provision contrary to s 229D of the Criminal Code.   

30.	Nonetheless, for current purposes, principles of general application as to intention of offence provisions of this type are relevant to observe.  These include: 

•	In KRM v R (2001) 206 CLR 221; [2001] HCA 11 at [68] it was stated that “the discernible intent of the section was to create an offence, the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will...be difficult for a complainant...”.

•	In Kemp (No 2) [1996] QCA 514 it was stated that offence provisions of the subject type recognise that “where repetitive acts of a sexual nature are committed upon children, it will often be difficult to give the degree of particularity usually demanded when a charge is brought.  [The section] has as one of its purposes attempting to ensure that, in an area where repetitive conduct of a similar kind is not infrequent in respect of a vulnerable segment of society and where, because of the repetitive and secretive nature of the conduct, precise particularity of the occasion is often lacking, offenders do not escape punishment merely because the degree of particularity that would ordinarily be required cannot be given”.  

31.	All of this is to say that:

(a)	The persistent sexual abuse offence provision permits multiple acts of alleged sexual abuse to constitute a single offence. 

(b)	An indictment charging only an offence contrary to s 229D of the Criminal Code is to be regarded as involving a single charge (or count), with the particulars of the allegations in the charge (or count) being contrary to Division 2A of the Criminal Code.  

(c)	The elements that the State has the burden of proving in such an indictment are the elements as prescribed by s 229D of the Criminal Code and additionally as a consequence, any elements of the allegations in the charge contrary to Division 2A of the Criminal Code.  

(d)	The applicable maximum penalty in an indictment with a single charge (or count) contrary to s 229D of the Criminal Code is the maximum penalty as provided solely by s 229D of the Criminal Code.  

32.	Accordingly, and consistent with the offence provision in Papua New Guinea, we observe that an arraignment of an accused on an indictment that alleges only one charge (or count) contrary to s 229D of the Criminal Code, even where a circumstance of aggravation pursuant to subsection (6) is contended, involves an arraignment on only one, or a sole or single, charge or count.  The accused should be asked as to whether they are guilty or not guilty only after the entire substance and particulars of the allegation as set out in the charge (or count) are carefully explained and put to the accused.  

33.	It would follow from such a procedure that the plea entered relates to the offence as provided by s 229D of the Criminal Code.  The matter then proceeds to either trial on the single charge (with the particulars as alleged with reference to the Division 2A offence provision/s) or to a sentence hearing on the single charge (with the particulars, and applicable maximum penalty, as alleged). 

Review of conviction

34.	Having considered what should have occurred in this proceeding, we return to consideration of what did, erroneously, occur. 

35.	As already observed, the State concedes that the review against conviction ought to be upheld.  This is a correct and appropriate concession. 

36.	The entry of the conviction, and the consequential sentencing exercise, involved material irregularities that can be characterised as being grave and significant.  They resulted in the issuing of sentencing orders for offences that were not the subject of the indictment, and the imposition of a totality of sentence that was contrary to law.  This outcome reflected an erroneous approach from the outset by the State as to indictment and sentence proceeding.  There can be no question that the extent of material irregularity is such that a miscarriage of justice occurred. 

37.	Accordingly, we will uphold the review, quash the conviction order, and set aside the sentence order.  

Consequential orders

38.	As to consequential orders arising from the finding of a material irregularity and a miscarriage of justice, the question arises as to what power ought be exercised pursuant to the Supreme Court Act (the Act).  

39.	The State submitted, following their appropriate concession as to irregularity in the conviction and the miscarriage of justice, that the overwhelming evidence and the public interest dictated an order of remittal for a further hearing.  

40.	On behalf of the applicant, it was submitted that there was an obvious irregularity and that issues of unfairness to the applicant now arise from the manner in which the proceeding has progressed. It was acknowledged that the determination as to consequential orders was a discretionary matter for this Court.  

41.	Section 23(3) of the Act provides that:

If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered. 

42.	We understand this to mean that, subject to the Act, upon an appeal against conviction being allowed, the conviction must be quashed and a verdict of not guilty be entered.  We do not understand there to be any basis that this is not equally of application on a review matter in which, as here, a review against conviction is being allowed.  Notably, as s 23(3) provides, the mandatory requirement is conditional on the Act itself.   It follows that s 28 of the Act is of relevance, and application.  Section 28 of the Act provides:

28	         New trial

(1)   If on an appeal against conviction, the Supreme Court thinks that –
(a)   a miscarriage of justice has occurred;  and
(b)   having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.

(2)   Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.

43.	It is relevant in this context to also observe s 27 of the Act, which in s 27(1), (2) relevantly provides:

27 		Powers of Supreme Court in special cases 

(1)   If it appears to the Supreme Court that an appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other charge, or on some other count or part of the charge, the Court may –
(a)   affirm the sentence passed on the appellant;  or
(b)   pass such sentence in substitution for it as it thinks proper and is warranted in law by the verdict on the charge or on the count or part of the charge, on which the Court considers that the appellant has been properly convicted.

 (2)   Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts that proved him
guilty of that other offence, instead of allowing or dismissing the appeal the Court may –
(a)   substitute for the verdict a verdict of guilty of the other offence;  and
(b)   pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.

44.	We do not find that section 27 of the Act is of application to the circumstance here.  This is because the extent of material irregularity that occurred is such that it cannot be ascertained if there was a proper conviction on another charge or count (s27(1)), nor whether the applicant was convicted of ‘an offence’ (s 27(2)).  

45.	It follows that, in accordance with s 23(3) and s 28 of the Act, the issue for determination is whether, in having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make.  If this Court “thinks” this, the Court may, of its own motion or on the application of the application, order a new trial in such manner as it thinks proper. 

46.	We are of the view that what occurred here is a miscarriage of justice that can be more adequately remedied by an order for a new trial.  The material irregularity that occurred was in the nature of an irregularity in form rather than substance.  That is, it involved issues of procedure rather than issues going to the appropriateness of a finding of guilt for sexual abuse of a child.  It must be recalled that the applicant accepted guilt in this regard, but the mechanism by which this guilt was the subject of sentence was irregular.  It remains that the applicant himself accepts he is a person responsible for the sexual abuse of a child and that an appropriate sentence order is warranted.    

47.	While we recognise that the applicant will be prejudiced by a delay in finalisation of the proceeding, the proposed order nonetheless secures the applicant’s rights under the Constitution by:

-	ensuring he receives the full protection of the law (s 37(1));
-	enabling that he is only convicted of an offence and the subject of a prescribed penalty that is defined by a written law (s37(2)); and
-	affording a fair hearing (s 37(3)).  

48.	Additionally, the proposed orders give effect to s 37(8) of the Constitution being that no person convicted shall again be tried for that offence or any other offence except upon the order of a superior court made in the course of review proceedings relating to the conviction.  

49.	In short, we are readily satisfied that having regard to all of the circumstances the miscarriage of justice that occurred here can be more adequately remedied by an order for a new trial.  This conclusion is in accordance with Tugein v Gotaha [1984] PNGLR 137, Ombusu v The State [1997] PNGLR 699 and Bukoya v The State [2007] PGSC 15, SC887.  The matter will be remitted to the National Court. 

50.	Furthermore, noting the apparent sufficiency of evidence contained in the depositions relied upon at sentence and that a plea of guilty was entered to at least some form of sexual abuse of a child, we think it proper that an order be made continuing the applicant’s detention in custody: s 28(2) of the Act. 

Conclusion 

51.	We are satisfied that there was a material irregularity in the course of the trial that resulted in the actual occurrence of a miscarriage of justice such that the review against conviction ought be allowed.  

52.	Further, we are satisfied that, consequentially, an order that remits the matter for proper determination in the National Court is appropriate.  

Orders

53.	For those reasons, the following orders are made:

(1)	The review against conviction is upheld. 

(2)	The conviction entered on 14 November 2022 is quashed. 

(3)	The sentence of 40 years imprisonment ordered on 1 December 2022 is set aside.  
(4)	The proceeding is remitted for further hearing, on the current indictment or a substituted indictment if sought by the State, in the National Court. 

(5)	The applicant is remanded in custody pending further hearing of the matter in the National Court, and subject to any further orders of the National Court with respect to that detention in custody.  

________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor