The State v Yolanda Tiptip & Nigel Kukuma

• Jurisdiction: Papua New Guinea
• Judge: Miviri J
• Judgment Date: 18 June 2024
• Neutral Citation: N10866
• Docket Number: CR No. 267 & 268 OF 2023
• Date: 18 June 2024
• Counsel: J, Kesan for the State,S. Wambe, for the Defendant,Counsel:
• Citation: N10866, 2024-06-18
• Hearing Date: 18 June 2024
• Court: National Court

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 1st 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:

1. PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010).

2. Aihi v The State (No 2) [1982] PGSC 8; [1982] PNGLR 44 (26 February 1982).

Counsel:

J, Kesan for the State

S. Wambe, for the Defendant

Office of Public Prosecutor: Lawyer for the State

Fortis Legal Services: Lawyer 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 to 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....