Sela Gipe v The State (2000) SC661

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Jalina J, Sakora J
• Judgment Date: 23 February 2000
• Citation: [2000] PNGLR 271
• Court: Supreme Court
• Year: 2000
• Judgement Number: SC661

Full Title: Sela Gipe v The State (2001) SC661

Supreme Court: Hinchliffe J, Jalina J, Sakora J

Judgment Delivered: 23 February 2000

SC661

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Madang]

SCRA NO. 76 OF 2000

BETWEEN:

SELA GIPE

(Appellant)

AND:

THE STATE

(Respondent)

MADANG : HINCHLIFFE, JALINA & SAKORA JJ.

2000 : 21ST & 23RD FEBRUARY

Courts and Judges — Judges — Fair Trial — Judge meeting with a key prosecution witness during trial for private commercial purposes — No objection from Counsel — Accused not consulted — Miscarriage of justice -

Criminal Law — Fair Trial — Judge meeting with a key prosecution witness during trial for private commercial purposes — Miscarriage of justice — Appearance of bias — New trial ordered.

CASES CITED:

The following cases are cited in the judgement.

Boateng v The State [1990] PNGLR 342

R v Liverpool City Justices; Exparte Topping [1983] 1 WLR 119; [1983] 1 All ER 490

APPELLANT, in person

N. MIVIRI, for the Respondent

23rd February, 2001

THE COURT: The appellant was charged that he between 28 June 1995 and 18 July 1996 whist being employed in Lae by the Morobe Provincial Government as Tax Assessor dishonestly applied to his own use K141,877.04 the property of Morobe Provincial Government. He pleaded not guilty and after a trial over a period of about 12 days between 22nd March and 17 August 2000, was then convicted. He was sentenced to 4 years imprisonment in hard labour. Two years of that sentence was ordered to be suspended if K92,761.00 was repaid within two years.

He has appealed against his conviction and sentence on the following grounds:

"(a) I never misappropriated any monies and was not responsible.

(b) The conviction was unsafe and unsatisfactory and against all the

evidence produced in court.

(c) The court cold not have been satisfied beyond a reasonable doubt as to

my guilt for the following reason.

(i) The manner of identification was prejudiced to my defence.

(ii) The witness Martha Vaviha refers to meeting the "boss of Internal Revenue in a room not occupied by me.

(iii) There was evidence of the monies paid to BSP Lae receipted and banked by Revenue Section, Morobe Prov. Government, when such evidence would have shown the monies paid to the Bank of South Pacific were replaced or refunded.

(iv) The handwriting experts' evidence was unsatisfactory & fabricated.

(v) The evidence of eyewitnesses are unsatisfactory & fabricated.

(vi) The State did not produce any of my co-workers as witness against me except Bernie Jacobs nor excluded them from being the culprits when some of them looked like me and wore the same glasses.

(vii) The sentence was excessive, as the court did not accept arguments of receipt and the sales tax by Revenue Section supported by documentary evidence.

(viii) The evidence before the court showed I had not committed the offence."

In his detailed submissions he vigorously attacked the evidence of various State witnesses including Sape Yapo, the Assistant Manager with the Lae Branch of the Bank of South Pacific. He said that the evidence against him was false and that he had been set up. That was clear, he said, because the trial Judge acknowledged various unsatisfactory aspects of the evidence at p. 403 to 404 of the Appeal Book that :

"From my own analysis of the evidence, there are other important aspects of the State's case — sorry there are other aspects of the State's case which raise concern, cause for concern. There were a total of 11 different what one might call unsatisfactory aspects of the State's case and I have discussed that fully in my judgement. I do not need to repeat those. I have canvassed the evidence of most of the State witnesses and the unsatisfactory aspect of the system of keeping records at the Morobe Provincial Government and the discrepancies in the various records kept by the provincial government. I have also discussed some of the unsatisfactory aspects of the State's four key eyewitnesses, for example, in the case of Sape Yapo. He clearly was given a problem request by a policeman on that day. He spoke to him a number of times, then he told him to go away so that he could check up with the...