Wamela v The State [1982] PGLawRp 428; [1982] PNGLR 269 (26 April 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 269 - Imiyo Wamela v The State 

[1982] PNGLR 269

SC227

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IMIYO WAMELA

V

THE STATE

Waigani

Kidu CJ Andrew Pratt JJ

29-30 September 1981

26 April 1982

CRIMINAL LAW - Parties to offences - Counsellor or procurer - Whether can be convicted of more serious offence than principal - What constitutes counsellor - Criminal Code, s. 7[xlvii]¹, s. 9[xlviii]².

N1>CRIMINAL LAW - Murder and infanticide - Principal offender pleading to infanticide - Counsellor convicted of wilful murder - Whether conviction for more serious offence than principal should stand - Criminal Code, s. 7[xlix]³, s. 9[l]⁴.

N1>CRIMINAL LAW - Appeal against sentence - Disparity - Co-accused - Need for sentences to be comparable.

N1>CRIMINAL LAW - Sentence - Matters of aggravation - Relevance - Where dispute as to - Need to prove matters of aggravation - Version of facts upon which court to act.

A counsellor or procurer may be convicted under s. 7 of the Criminal Code of a greater offence than the principal.

To constitute a person a counsellor or procurer under s. 7 the essential requirement is the committing of an offence: it need not be the offence for which the perpetrator or principal offender is subsequently convicted.

W had a relationship with his step-daughter from which a child was conceived. W informed his step-daughter that she must kill the child at birth which she did. Both were committed for trial for wilful murder; the step-daughter pleaded guilty to a charge of infanticide and was sentenced to ten months; W was convicted of wilful murder and sentenced to 10 years. On appeal by W against conviction and sentence;

Held

N1>(1)      W was properly convicted of wilful murder as a counsellor or procurer pursuant to s. 7 of the Criminal Code;

N1>(2)      the offence committed was unlawful killing which may be punished as wilful murder, murder, infanticide or manslaughter according to the individual circumstances: here the offence counselled was the offence executed, though circumstances personal to the perpetrator made her punishable for infanticide only;

N1>(3)      where sentences imposed on co-accused are to be viewed as so disparate as to require intervention they must also be comparable in the sense that the same offence is proved against both.

Wurramarbra v. The Queen (1979) 28 A.L.R. 176 applied;

N1>(4)      the sentences here being imposed in respect of different offences charged were not comparable and could not be considered for disparity;

N1>(5)      matters of aggravation should not be taken into account on sentence unless they are admitted or properly proved, either in the course of the trial, or after conviction and prior to sentence.

R. v. Kennedy [1919] ArgusLawRp 93; (1979) 25 A.L.R. 367;

Law v. Deed [1970] S.A.S.R. 374 at pp. 377 to 378;

R. v. Tait [1979] FCA 32; (1979) 24 A.L.R. 473 at p. 483; and

Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300 at p. 307 followed;

N1>(6)      matters of aggravation, however, not having been properly proved, the version of the facts most favourable to W justified a sentence of five years’ imprisonment only.

Cases Cited

Brennan v. The King [1936] HCA 24; (1936) 55 C.L.R. 253.

Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300.

Law v. Deed [1970] S.A.S.R. 374.

Matusevich v. The Queen [1977] HCA 30; (1977) 51 A.L.J.R. 657.

Murray v. The Queen [1962] TASStRp 18; [1962] Tas. S.R. 170.

R. v. Anthony [1965] 2 Q.B. 189.

R. v. Bainbridge [1960] 1 Q.B. 129.

R. v. Bourne (1952) 36 Cr. App. R. 125.

R. v. Cogan [1975] EWCA Crim 2; [1975] 3 W.L.R. 316.

R. v. Conroy and Conroy [1954] Crim. L.R. 141.

R. v. Hartley [1978] 2 N.Z.L.R. 199.

R. v. Kennedy [1919] ArgusLawRp 93; (1979) 25 A.L.R. 367.

R. v. Martyr [1962] Qd. R. 398.

R. v. Quick [1973] EWCA Crim 1; [1973] Q.B. 910.

R. v. Richards [1973] 3 All E.R. 1088.

R. v. Solomon [1959] Qd. R. 123.

R. v. Tait [1979] FCA 32; (1979) 24 A.L.R. 473.

R. v. Yigwai and Aku [1963] P. & N.G.L.R. 40.

Remillard v. R. (1921) 59 D.L.R. 340.

Schultz v. Pettitt (1980) 25 S.A.S.R. 427.

Stuart v. The Queen [1974] HCA 54; (1974) 134 C.L.R. 426.

Wurramarbra v. The Queen (1979) 28 A.L.R. 176.

Appeal

This was an appeal against conviction and sentence on a charge of wilful murder where the accused had been charged as a counsellor under s. 7 of the Criminal Code.

Counsel

C. Bruce and M. Doiwa, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

26 April 1982

KIDU CJ ANDREW PRATT JJ: In this case the appellant appeals against both his conviction and sentence by the National Court on 6th July, 1981, upon a charge of wilful murder for which he was sentenced to ten years’ imprisonment with hard labour.

The appellant pleaded guilty to the charge. Briefly stated, the facts were that he had a relationship with his step-daughter from which a child was conceived. Thereafter he informed his step-daughter that she must kill the child at birth, his motive being apparently both shame for his actions and fear of repercussions from his fellow villagers. The child was killed by the step-daughter at birth.

It appears that they were both committed for trial upon the charge of wilful murder. However, the step-daughter pleaded guilty, at an earlier sitting of the court, to a charge of infanticide for which she received a sentence of ten months.

The grounds of appeal are as follows:

“Appeal against Conviction:

1.       The conviction is wrong at law in that the Appellant (a counsellor) was convicted of a more serious offence than the co-offender—gabin hagigi (principal).

2.       At law under section 7 of the Criminal Code an accessory cannot be convicted of a more serious offence than the principal.

Appeal against Sentence:

1.       The disparity in the sentence imposed by the trial judge in the case of the co-offender Gabin Hagigi of ten months’ imprisonment with light labour for infanticide and the sentence imposed on the appellant of ten years’ imprisonment with hard labour for the offence of wilful murder.

2.       The sentence in all the circumstances is manifestly excessive.”

The lawfulness of the appellant’s conviction for the crime of wilful murder by reason of his participation in counselling or procuring Gabin Hagigi to kill the child depends upon the interpretation and application of s. 7 and s. 9 of the Criminal Code, which are as follows:

N2>7.       PRINCIPAL OFFENDERS

(1)      When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

(a)      every person who actually does the act or makes the omission which constitutes the offence; or

(b)      every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; or

(c)      every person who aids another person in committing the offence; or

(d)      any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

N2>9.       MODE OF EXECUTION IMMATERIAL

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

It is clear that the appellant was convicted by virtue of s. 7(d) of the Code, viz. that he counselled or procured another to commit the offence.

The problem of whether or not a counsellor or procurer may be convicted of a greater offence than the principal remains strangely bereft of authority. We have been able to find only two cases which refer directly to this point but in both cases the views expressed are strictly obiter. In R. v. Yigwai and Aku [1963] P. & N.G.L.R. 40 at pp. 43-44, Mann C.J. said as follows:

“I think, therefore, that the proper verdict is guilty of wilful murder in Yigwai’s case.

In Aku’s case, I have no doubt that the same verdict applies. Section 7(d) of the Code directly covers Aku, and even if it did not, the last paragraph of section 7 would apply, whether Yigwai was guilty of either offence or innocent, ‘(referring to wilful murder or infanticide)’ for the act which led to the child’s death, although not specified by Aku in his instructions to his daughter, was clearly an act of the kind contemplated by his instructions, and was therefore an act procured by him, which, if committed by him, would, in the events which happened, render him guilty of wilful murder. I think, therefore, that regardless of Yigwai’s verdict, Aku is guilty of wilful murder by virtue of section 7.”

Despite the fact that the definition of infanticide contained in the Infanticide Act 1953 was considerably different from s. 306 of the Code, and that the definition of unlawful homicide did not specifically include the crime of infanticide as is found in the present s. 303, we consider the comments of Sir Alan Mann most apt.

In R. v. Conroy and Conroy [1954] Crim. L.R. 141 at p. 143, Glyn-Jones J. directed the jury as follows:

“That if they were satisfied that there was a common purpose to murder the child, but that the woman would not have gone through with the killing if the balance of her mind had not been disturbed, then they should return a verdict of guilty of murder against the man and a verdict of guilty of infanticide against the woman.”

In the interpretation of s. 7 of the Code we think that recourse may be made to the well known joint judgment of Dixon J. (as he then was) and Evatt J. in Brennan v. The King [1936] HCA 24; (1936) 55 C.L.R. 253 at p. 263, where they said, in reference to s. 8 of the Western Australian Criminal Code:

“But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered...”

However where the Code is particularly dealing with common law language in stating criminal responsibility or in defining a crime, we think that a useful approach is expressed by Burbury C.J. in Murray v. The Queen [1962] TASStRp 18; [1962] Tas. S.R. 170 at pp. 172-173, a case dealing with a common design to commit murder:

“The truth is that a general principle of criminal responsibility although expressed in statutory form in a code is nevertheless a flexible and dynamic concept. And once it appears that a provision of the code only attempts to express a pre-existing established principle its interpretation and its application to a particular set of facts cannot be undertaken without recourse to its common law matrix. A study of such cases as Callaghan v. The Queen ((1952) 87 C.L.R. 115), Vallance v. The Queen ((1961) [1961] HCA 42; 35 A.L.J.R. 182) and Brennan v. The King ((1936) [1936] HCA 24; 55 C.L.R. 253) itself shows that basic principles of criminal responsibility firmly established before the introduction of a code play an important and sometimes dominant part in judicial reasoning in its interpretation and may influence a court to lean against a narrow literal interpretation in order to keep criminal responsibility under a code in conformity with basic concepts. This is particularly so where a code uses the language of the common law in stating a principle of criminal responsibility or in defining a crime. The court will then incline to hold the view that the intention of the legislature was to retain the pre-existing legal concept as part of the criminal law and will in spite of semantic difficulties which may arise from the literal interpretation of related provisions of the code give effect to that intention as a controlling interpretative factor.”

Nevertheless it is essential to bear in mind the warning by Philp J. in R. v. Martyr [1962] Qd. R. 398 at p. 413:

“But it must be remembered that the Queensland Criminal Code is no mere codification of the criminal law as it stood in 1899. Many parts of that Code designedly make fundamental changes in the law.”

The position of a counsellor and procurer was specifically averted to by Philp J. in R. v. Solomon [1959] Qd. R. 123 at p. 129:

“The position at common law concerning aiders and counsellors is considered in R. v. Betts and Ridley ([1930] 22 C.A.R. 148 at p. 155). At common law it was essential to constitute the offence of being an accessory that the party should be absent at the time the offence was committed... but the Code does not speak of accessories before the fact. By s. 7 the counsellor or procurer is a principal offender and may be charged as actually having committed the offence counselled; he does not cease to be a counsellor or procurer because he is near or at the scene of the crime.”

The criticisms of the judgment of Philp J. in Solomon by Bradbury C.J. in Murray (supra) at pp. 184-185 supported by Gibbs J. (as he then was) in Stuart v. The Queen [1974] HCA 54; (1974) 134 C.L.R. 426 at p. 445, do not in any way detract from the emphasis which his Honour properly gives to certain vital distinctions existing between the Code and the principles of common law.

The contention that a counsellor or procurer cannot be convicted of a greater offence than the principal draws some support from the judgment in R. v. Hartley [1978] 2 N.Z.L.R. 199 at p. 203, and in R. v. Richards [1973] 3 All E.R. 1088 and from the learned author in Gillies The Law of Criminal Complicity. The first mentioned case is of little assistance as, for the purposes which are relevant here, the court merely makes the remark that “obviously an accessory could not be guilty of a greater crime than that committed by the principal offender”. But that was a case of persons acting together in concert where one had shot someone in the course of a raid upon a house. In the circumstances of the case it may have been correct to say that the accomplice could not be convicted of an offence greater than that of the person who actually fired the gun.

In Richards’ case (supra) the appellant arranged for two others to attack her husband. All three were arraigned on an indictment containing two counts: (1) wounding with intent, and (2) unlawful wounding. The co-accused were acquitted on count 1, but were convicted on count 2. The appellant was convicted of the more serious offence in count 1. On appeal the conviction on the first count was quashed and a conviction of the lesser offence substituted, it being said that on the evidence only one offence had been proved, viz. unlawful wounding, and it could not have been said that what had been done had been done with the intention of the appellant. But this case has been severely criticized: see [1974] Crim. L.R. at p. 96 where it is pointed out that the court mistakenly re-introduced the distinction between accessories before the fact and principals in the second degree (the aider and abettor) and that distinction had been abolished by the Criminal Law Act 1967, making all parties principals at common law. As is pointed out in R. v. Solomon (supra), such a distinction was abolished in the Queensland and the Papua New Guinea Code.

We are also in agreement with the learned author Glanville Williams in Textbook of Criminal Law at p. 322, that prior to the decision in Richards’ case (supra) in 1973, it was thought to be clear that an instigator could be guilty of a crime of greater enormity than that intended by the person who actually did it. It means, for example, that while a person who kills under provocation is guilty only of manslaughter, another who assists the killing and who is not affected by the provocation can, on principle, be convicted of murder.

In our opinion this proposition is entirely correct and Richards’ case (supra) should not be followed. The learned judges made no reference to the Criminal Law Act 1967, whereas we are called upon to construe the provisions of our own Code and not the common law. There are many cases which stress that there must be a common sense approach in these situations and that it is wholly unreasonable that the partial guilt of the agent should operate as a defence to the instigator. And in considering this kind of problem: “The facts of each case... have to be considered and in particular what is alleged to have been done by way of aiding and abetting.” (R. v. Quick [1973] EWCA Crim 1; [1973] Q.B. 910 at 923.)

An analogy may be seen with cases in which the principal is acquitted; for if it is argued that the counsellor or procurer cannot be convicted of a higher offence than the principal, it must follow logically, on that argument, that if the principal is acquitted then so must the counsellor. The decided cases do not support this contention. In R. v. Cogan [1975] W.L.R. 316, one L counselled C to rape his (L’s) wife. This C did but his conviction was quashed on the basis of a reasonable belief that the woman had consented. L appealed on the ground that as C’s conviction for rape had been quashed, his conviction for aiding and abetting was vitiated. His appeal was dismissed, the court holding that it would be anomalous if a person who admitted to a substantial part in the perpetration of a crime as aider and abettor could not be convicted on his own admission merely because the person alleged to have been aided and abetted was not or could not be convicted. The court went further in saying that it would be an affront to justice and common sense. Similarly in Matusevich v. The Queen [1977] HCA 30; (1977) 51 A.L.J.R. 657 at p. 660, Gibbs A.C.J. (as he then was) said as follows:

“If the applicant knew that T intended to strike W blows of considerable severity with an axe, and, himself intending that W should be killed or seriously injured, assisted T, the applicant would be guilty of murder. It would be an affront to justice and to common sense that T’s insanity should exculpate the applicant in those circumstances.”

In R. v. Anthony [1965] 2 Q.B. 189, it was held that where a person was charged with committing a felony with a named person and other persons unknown, there was no principle of law which prevented him from being found guilty as an accessory unless the principal felon was convicted; that it was the felony which must be proved, and since the second count alleged that the felony, if not committed by O, was committed by other persons unknown, although O had been acquitted, the jury was entitled to find A guilty as an accessory to the felony committed by those other persons.

This decision is consistent with R. v. Cogan (supra), R. v. Quick (supra) and with R. v. Bourne (1952) 36 Cr. App. R. 125, that what is required on the part of the actual perpetrator is an appropriate actus reus. These decisions have been followed in the recent case of Schultz v. Pettitt (1980) 25 S.A.S.R. 427, where is was held that S could be guilty of aiding and abetting an offence actually committed by his daughter but where she lacked the legal capacity (by reason of her age) to commit an offence of any kind.

It could hardly be said that A could counsel B to kill C, knowing that B was insane and thus escape liability. Thus if a person could act through a completely innocent agent, there is no reason why he should not act through a semi innocent agent (see Glanville Williams Textbook of Criminal Law at p. 323). Thus if A counselled B to wilfully murder C and B does so but is convicted only of manslaughter on the basis of diminished responsibility, it would again be wholly unreasonable that the partial guilt of the agent (B) should operate as a defence to the instigator (A) such that A could only be convicted of manslaughter.

It is true that on a charge of being a counsellor and procurer, it is not enough to show that the defendant knew that some illegal venture was intended; but it is not necessary that knowledge of intention to commit the particular crime (i.e. on a particular date and on particular premises) which was in fact committed, should be shown. The prosecution must show that the defendant knew that an offence of the kind that was committed was intended, and with that knowledge he did something to help the offender commit it: R. v. Bainbridge [1960] 1 Q.B. 129. In Remillard v. R. (1921) 59 D.L.R. 340, for example, although the son was convicted of manslaughter only, the father was properly convicted of murder in a separate trial of counselling his son to fire the fatal shot.

We return to the interpretation of s. 7 of the Code. Much of the language of the common law is adopted into s. 7 although nowhere is the word “abet” used. Section 7(d) talks of the “counsellor” and “procurer” but it is important to note that those persons are principal offenders by virtue of the section itself and not accessories before the fact as they were under the common law prior to the Criminal Law Act 1967.

The section commences with the words:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence,...”

The essential requirement then is the committing of an offence. It is not an offence for which the co-accused is subsequently convicted that becomes “the offence” in every case. This is consistent with the judgment in R. v. Anthony (supra) where it was the felony which had to be proved and not the conviction of the principal felon.

In the present case the offence or the crime committed was the unlawful killing of a human being which is an offence by virtue of s. 294 of the Code. By s. 303, any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, infanticide, or manslaughter, according to the circumstances of the case. The appellant in fact counselled and procured the crime of unlawful killing (“the offence”) which, in the circumstances of this case, was a crime called wilful murder because he intended that the child should die. The killing of the child by the appellant’s step-daughter was the crime, offence, or in another sense it was the actus reus. We are in agreement with all of those authorities cited which show that that is what must be proved before the appellant could lawfully be convicted.

In dealing with the proposition that a person who counsels an insane person to commit murder should be acquitted if the actual perpetration of the act is found not guilty on the grounds of insanity, Gibbs A.C.J. (as he then was) says at p. 660 of Matusevich v. The Queen (supra):

“However, the reasoning in R. v. Bourne ((1952) 36 Cr. App. R. 125) suggests that there are cases in which a person may be liable for aiding and abetting another to commit a crime, although the actual perpetrator is not criminally responsible. The law on this question remains unsettled... but it is unnecessary to pursue the matter. If the applicant knew that T intended to strike W blows of considerable severity with an axe, and, himself intending that W should be killed or seriously injured, assisted T, the applicant would be guilty of murder. It would be an affront to justice and to common sense that T’s insanity should exculpate the applicant in those circumstances. If authority is needed to show that the applicant would be guilty in such a case, R. v. Tyler and Price ((1838) [1839] EngR 270; 8 C. & P. 616) provides it. Opinions may differ as to the basis of that decision. It may be that the lunatic there was regarded as an innocent agent of the accused. Or it may be that the case establishes that an accused person may act in concert with a lunatic even if the latter is, for his part, not capable of making an agreement.”

The appellant has counselled and procured an unlawful killing. That killing was executed resulting in the death of a new born child by “breaking its head with a stone”, according to the learned trial judge in his remarks on sentence. There can be no doubt that in the absence of special circumstances, what occurred was wilful murder. The appellant is therefore to be treated as a principal. He submits however that because of the final paragraph of s. 9 of the Code, he cannot be held responsible for anything more than counselling an act of infanticide, for this was the “offence” which was proved against the perpetrator and as this offence was different from the one he counselled, his degree of guilt is consequently diminished.

Because of the way in which unlawful killing is defined, great care must be exercised in deciding whether or not s. 9 has application at all in circumstances such as the present. As Jacobs J. points out in Stuart v. The Queen (supra) at p. 451:

“The point arises because of the particular relation between the offence of murder and that of manslaughter. Both are unlawful killings. The unlawful killing is murder if certain elements are present. If they are not, the offence is manslaughter.”

The significant words in s. 303 are “according to the circumstances of the case”. That can only mean according to the circumstances involving the individual person concerned in the unlawful killing—their intention and their overt act. In the case of the applicant he intended that the child should die to prevent great shame settling on him and his daughter. The overt act by the appellant was counselling the death. It may be that had the daughter not been affected by childbirth, she may not have killed the child at all, but we do not think this assists the appellant. The cultural circumstances and the particular kin relationship involved meant that the father’s word was obeyed. The circumstances of her case were such that she smashed the baby’s head whilst “the balance of her mind was disturbed” and therefore the particular form of unlawful homicide of which she was convicted was infanticide. When the act of killing was performed it fulfilled the desire and counsel of the appellant which cannot be described in any circumstances other than that of wilful murder. The circumstances of the case from this point of view was an unlawful homicide, a crime which was no different from that which he counselled —the deliberate and premeditated taking of the life of another. At p. 440 of Stuart v. The Queen (supra) Gibbs J. (as he then was) discussed the term “offence” used in s. 8. The same word is used in s. 9:

“It is clear from the words of s. 8 that when that section speaks of ‘an offence’ it cannot mean simply an act or omission viewed in isolation. In most cases an act or omission alone does not render a person liable to punishment; whether it does so may depend on the quality of the act, the intention which accompanied it, its consequences or other circumstances.”

Can there be any doubt that the intention of the mother was to take the child’s life, as the father had directed?

Section 9 opens the final paragraph with the words “In either case”. This must mean that the section has application where either the offence is different from that counselled or is carried out in a different way to that counselled. The offence is the crime of unlawful killing which will be punished as wilful murder, murder, infanticide or manslaughter, according to individual circumstance. The offence counselled was the offence executed though the circumstances personal to the perpetrator make her punishable for infanticide only. The counsellor is a principal under s. 7 and because what was counselled was indeed performed, s. 9 is just not relevant to the facts of this case.

Accordingly we would dismiss the appeal against conviction.

We turn to the appeal against sentence.

It is said that the sentences imposed of ten months upon the step-daughter and ten years upon the appellant are so disparate that this Court should accordingly interfere and reduce the appellant’s sentence. However we think that the argument fails at the threshold for the simple reason that the appellant has been convicted of wilful murder and the step-daughter, by reason of the balance of her mind being disturbed from not having fully recovered from the effect of giving birth, has been convicted of infanticide, which is punishable (under s. 306 of the Code) as if she had been guilty of manslaughter. The sentences are therefore simply not comparable.

The application of the principle that the sentencing judge should take into account the sentence of one co-offender in fixing the sentence of the other is confined to those cases where there is a true comparison of like with like and where the same offence is proved against both. See Wurramarbra v. The Queen (1979) 28 A.L.R. 176.

It was also submitted that the sentence was in all the circumstances manifestly excessive.

Upon the hearing on sentence the learned trial judge had recourse to the statement of Gabin Hagigi given to the police at the time of her arrest. It is clear from that statement and from the evidence which she gave at the appellant’s committal hearing that she was alleging that the appellant had frequently exhorted her to kill the child at birth. However the appellant in his statement given at the committal hearing said that he had told his step-daughter to kill the baby at birth at the time she was a few months pregnant. He then said that “it was long time since birth, in fact I did not know when she gave birth”. Nothing in the record of interview which he gave to the police would support the view that he frequently exhorted her to kill the child.

There were thus two opposing views before the trial judge. It would obviously be one thing to counsel the step-daughter once, a long time before birth, to kill the child, and another frequently to counsel or procure her into that course of action. That would not be a circumstance of aggravation as defined by s. 1 of the Code but it would nevertheless be a factor of aggravation very relevant to sentence. We think it is fair to say that the sentence itself reflects the fact that the trial judge proceeded on the basis of this being an aggravated case.

But no aggravating matter ought to be taken into consideration in assessing a sentence unless it is admitted or has been properly proved, either in the course of the trial or in the post-conviction sentence hearing: R. v. Kennedy [1919] ArgusLawRp 93; (1979) 25 A.L.R. 367.

This matter has been amply dealt with in Koniel Alar and Hosea Biu v. The State [1979] P.N.G.L.R. 300 at p. 307, where in deciding what version of the facts should the trial judge accept for the purpose of imposing sentence upon a plea of guilty, the Supreme Court cited with approval the following passage per Bray C.J. in Law v. Deed [1970] S.A.S.R. 374 at pp. 377-378:

“It is clear that that plea admits no more than the essential ingredients of the offence and as I have said mens rea is not an essential ingredient of this offence. The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. The attention of the Supreme Court has been mainly directed to consideration of the first of these two propositions (R. v. Vecsey [1962] S.A.S.R. 127; R. v. Maitland [1963] S.A.S.R. 332). Broadly speaking, these cases lay it down that, if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then ‘it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’: Maitland’s case (supra)... but it is of great importance, despite whatever inconvenience may be caused, that the rights of the defendant should be preserved to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the court by sworn evidence subject to cross-examination.

The right of the defendant must be no less with regard to circumstances of mitigation such as those claimed in the present case. Here, however, there is no possibility normally of comparing sworn statements with sworn statements or unsworn statements with unsworn statements. The facts normally are within the knowledge of the defendant alone. Nevertheless, the court must ‘within the bounds of reasonable possibility’ accept the defendant’s version.

Normally that version is put forward by the defendant’s counsel if he is represented or, if he is not, by himself without his being sworn. The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving the defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.”

See also the following in R. v. Tait [1979] FCA 32; (1979) 24 A.L.R. 473 at p. 483:

“When a plea of guilty avoids the necessity for a trial, it is no doubt convenient for the facts relevant to sentence to be stated from the bar table to the extent to which those facts are agreed or, not being reasonably open to challenge, are unchallenged. But if one of the parties invites the court to act upon an alleged fact or circumstance, whether favourable or unfavourable to the defendant, which is not common ground between the Crown and the defendant, that fact or circumstance should be proved by the calling of evidence by the party on whom the evidentiary onus rests. The strict rules of evidence can be waived if the proof tendered is sufficiently cogent, but a finding on the relevant matter cannot be sought in reliance merely upon an unsupported assertion from the bar table if the truth of that assertion is not accepted by the other party (cf. Lovelock v. R. [1978] FCA 8; (1978) 19 A.L.R. 327 at 332-3; R. v. Kane [1974] VicRp 90; [1974] V.R. 759 at 762). In this case, however, no evidence was called to resolve the challenged or doubtful issues. In the circumstances, we think we should deal with these appeals on the basis, favourable to each defendant, which his Honour adopted.”

We consider this exposition succinctly states the practice long observed in Papua New Guinea and still appropriate.

In the present case the allegation of the circumstance of aggravation was contained in the sworn evidence of Gabin Hagigi given at committal and in an unsworn statement given to the police. In our view the conflict remained unresolved before the trial judge and should, with respect, have been resolved by the calling of evidence and in the absence of that course the trial judge should have proceeded on the version most favourable to the appellant. Not to do either, amounts, in our view, to an error of principle.

We would therefore allow the appeal against sentence.

On the basis of the version most favourable to the appellant and in all the circumstances of the case, we would impose a sentence of five years’ imprisonment with hard labour.

Accordingly we would dismiss the appeal against conviction but allow the appeal against sentence and substitute a sentence of five years’ imprisonment with hard labour.

Appeal against conviction dismissed.

Appeal against sentence allowed and the sentence of the National Court quashed. In substitution therefor a sentence of five years imprisonment with hard labour imposed upon the appellant.

Solicitor for appellant: A. Amet, Public Solicitor.

Solicitor for respondent: L. Gavara-Nanu, Public Prosecutor.

[xlvii]Infra p. 271.

[xlviii]Infra p. 272.

[xlix]Infra p. 271.

[l]Infra p. 272.