Attempt to oust judge fails


THE Kokopo National Court last Friday dismissed an application by state lawyers to disqualify Justice Terrence Higgins from presiding over the mv Rabaul Queen trial against Captain Peter Sharp and Anthony Tsiau.
Higgins heard submissions from state lawyer Paul Bannister and defence lawyers Robert Asa representing Sharp and Philip Kaluwin representing Tsiau before he refused the application.
Bannister made the application on Sept 9 on the basis that the state was suspicious of bias with respect to Sharp.
The state cited a judicial review decision made by Higgins in favour of Rabaul Shipping that had taken the National Maritime Safety Authority to court for issuing a defective safety certificate to one of the company’s ships.
Bannister argued that in that particular judicial review decision, Higgins found in favour of Sharp and as the ferry trial progressed, it had become the state’s concern that this was likely to occur.
Asa opposed the application, saying the issues in the previous civil case were different from the current criminal case with different scenarios and different standard of proof.
“This application is mischievous and no case has been brought forward to substantiate that the judgement of the civil case could be used to oppose the criminal case and it should be dismissed,” Asa said.
Kaluwin added that the judicial review had nothing to do with the Rabaul Queen trial and had to do with the validity of the safety certificate and there was no evidence that the judge was biased.
Higgins said the trial had carried on from time to time since it began on April 11 and had been subjected to media reporting and legal costs incurred from both the state and defence and it would be expensive to start the whole trial again therefore he would continue presiding over the trial.
Bannister told the court that the arresting officer, Benjamin Turi, had indicated to him that there were insufficient funds to mobilise witnesses, including Martin Renilson from Australia, a maritime expert.
However K150,000 would be made available soon, he said.
Asa said the funding issue was serious and suggested that the Finance Secretary be summoned to explain the delay. The defence had arranged for another lawyer to join them.
The trial will resume on Nov 2.
So far more than 90 witnesses have testified with more than 60 court exhibits tendered in court.
The Rabaul Queen sank off Finschafen, Morobe, on Feb 2, 2012, with a death toll of 172 people.
It was carrying 300 passengers, many of whom had joined the trip in Bougainville, Rabaul and Kimbe.

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