Wanosa v Regina [1971] PGSC 47; [1971-72] PNGLR 90 (28 April 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 90 - Wanosa v Regina

[1971-72] PNGLR 90

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WANOSA AND OTHERS

V.

THE QUEEN

Port Moresby

Minogue CJ Clarkson Raine JJ

9 November 1970

12 December 1970

28 April 1971

CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Powers of appellate court - Supreme Court (Full Court) Ordinance 1968, ss. 27, 28, 29[lxxxiv]1.

Upon the hearing of an application for leave to appeal against sentence under the Supreme Court (Full Court) Ordinance 1968, s. 27(d), the court may admit fresh evidence.

Reg. v. Kausigor (unreported, 7th November, 1969, Sup. Ct., T.P. & N.G.), followed.

Where fresh evidence is admitted by the court, the court must consider that fresh evidence together with the materials before the trial judge and determine whether the sentence imposed was wrong.

R. v. Oberthur (1930), 24 Q.J.P.R. 166, applied.

Upon an appeal against sentence by the convicted person, the sentence imposed by the trial judge should not be disturbed unless it is shown to be manifestly inadequate or manifestly excessive because, for instance, the trial judge has acted on a wrong principle, or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence.

Skinner v. The Queen (1913), 16 C.L.R. 336, followed.

The nature of the rights and duties of the appellate court on an appeal against sentence by the Secretary for Law under s. 29(l) of the Supreme Court (Full Court) Ordinance 1968 considered by Clarkson J.

The accused were convicted of the murder of M. Evidence was brought to show that M. was a sorcerer, or “sangguma” man. The trial judge sentenced the accused to ten years’ imprisonment with hard labour. The accused, inter alia, applied for leave to appeal against this sentence. In the course of the hearing of the appeals against sentence further evidence was adduced as to the nature of the conduct of M., his practices as a sorcerer, and that he had been hired to kill a member of the accuseds’ village.

Held:

By the Full Court, that leave to appeal against sentence should be granted and that the sentences be reduced to six years’ hard labour.

Applications for Leave to Appeal against Sentence.

On 25th June, 1970, Seki Wanosa, Naugapo Fake and Aukeke Awisara the appellants) were convicted by the Supreme Court of the Territory of Papua and New Guinea (Kelly J.) at Goroka of the wilful murder of Mipi Kafoyare and sentenced to ten years’ imprisonment with hard labour. On 3rd August, 1970, each of the appellants appealed against his conviction and applied for leave to appeal against sentence.

On 9th November, 1970, the Full Court of the Supreme Court of the Territory of Papua and New Guinea (Minogue CJ Clarkson and Raine JJ.) dismissed the appeals against conviction and directed that the applications for leave to appeal against sentence be adjourned for further argument and consideration. Upon the hearing of the applications the appellants sought to adduce evidence of facts not in evidence before the learned trial judge.

The relevant facts are set out in the judgment of Minogue C.J.

Counsel:

Broadley, for the appellants.

Greville Smith, with him Laucis, for the Crown.

Cur. adv. vult.

28 April 1971

The following written judgments were delivered:

MINOGUE CJ:  This was an appeal by each of the appellants against his conviction and a sentence of imprisonment for ten years for the wilful murder of one Mipi Kafoyare.

We have already dismissed the appeals against conviction but the appeals against sentence have caused us some concern. I agree with my brother Clarkson in his conclusion that it is both according to law and desirable that a sentence imposed by a trial judge who has advantages denied to the Full Court should not be disturbed at the instance of the convicted person unless it is shown to be wrong when tested in the light of the considerations outlined by Barton A.C.J. in Skinner v. The King[lxxxv]² and with his careful statement of his reasons leading to that conclusion. However, consideration of the fresh material before us together with that before the learned trial judge has led me to the view that the sentences imposed were manifestly excessive and therefore wrong.

At the trial the evidence came principally from the appellants themselves both in confessional statements which they had made to Sub-Inspector Ephraim Tiria Tami and in testimony given by them on affirmation. Over a period of some two years prior to the murder, six men of the village of Fimi (to which the appellants belonged) had died in circumstances which fostered the belief that sorcery or a particular manifestation of it known as “tokabu” had caused their deaths. A short time before the day of the deceased’s death the appellants had heard a rumour that at the instigation of some persons from a neighbouring village (Lagaiu) a sangguma or poison man was coming to kill a village leader of Fimi—one Councillor Fake. For four days prior to 13th March, 1970, a number of villagers, including the appellants, kept watch. The appellants took their bows and arrows with them and posted themselves in a kau-kau garden whilst other villagers were in Councillor Fake’s coffee garden nearby. On 13th March an alarm was given and the deceased who appears to have been flushed from his hiding place ran away and while so running came face to face with the appellants. He was unarmed and was carrying something in his hand described as a leaf. The appellants blocked the path of the deceased; he thereupon turned and began to run away. As he did so each of the appellants fired an arrow subsequently followed by a second shot. All the arrows hit the deceased in the back and left side and one or more of them caused his death. Before he died the deceased said to the appellant Seki that two men had bribed him with money to come to Fimi village.

No amplification of the rumour as to the advent of the sangguma was sought or given. There was evidence that a sangguma uses such a leaf as the deceased had in his hand for magical purposes but the method of its use does not seem to have been entirely clear. The learned trial judge I think took it to be believed that it enabled its possessor to render himself invisible. There was also evidence as to the widespread belief in the use and power of sorcery in the general area from which the appellants came and some detailed evidence as to a particular manifestation of sorcery in the Okapa Sub-District known as “tokabu”. Sorcery is hardly an apt description, for “tokabu” or “siutim nel” as it is known in pidgin, is usually performed by a group of men who take hold of the victim, one biting the throat to stop him calling out, another or others taking heavy stones and pounding his muscles until he is rendered unconscious and others inserting black palm needles into him. The victim does not die at once and when he regains consciousness is usually able to return to his village where he might die from the effects of the foreign sharp substances in his body within a few days. It is easy for the villagers to believe that sorcery or magic of some sort has been responsible.

From the description given of the appearance of some of the Fimi men who had previously died it is a reasonable inference that “tokabu” had been used against them. As I read his Honour’s reasons for judgment it was urged upon him that the appellants might well have believed themselves in immediate danger in the presence of the deceased man. However, he properly, in my view, rejected a defence based on either s. 24 or s. 271 of The Criminal Code. In passing sentence his Honour remarked that the killing was an unfortunate example of the consequences which followed from a belief in sorcery even by people who had had the degree of contact with the Administration which the appellants had. Earlier in delivering judgment he had viewed the killing as more by way of retaliation for previous deaths in the village and this I take to be what he had in mind when he referred to the killing being an unfortunate example of the consequences which followed from a belief in sorcery. His Honour was satisfied that the belief of the appellants that Mipi was a sangguma was quite genuine but it seems to me that as the case was presented to him he naturally enough took the view also that there was nothing in the evidence to show that Mipi really was a sangguma and the reality of the case that Mipi was in fact a hired assassin was not in his mind.

Before us there was a great deal of further material. From Sabumei Kofikai, the Member of the House of Assembly for Goroka, we learned that there are professional killers in the Okapa and Lufa Sub-Districts who are hired to murder. It is generally believed in the district that a sangguma can kill his victim by either magical or physical means. He amplified the description of tokabu and it appears that once a victim is disabled, pieces of sharpened bamboo or umbrella spokes or any other long sharpened instruments are inserted into the body. These insertions are made on either side of the neck behind the collarbone, under an armpit or into the anus. Sometimes they are removed and sometimes not. Instructions in this method of killing are secretly given and the training period is successfully completed once the student has killed a victim. The sort of man who would normally become a poison man or sangguma is one who would not otherwise be important in traditional society and a career as a sangguma brings status and wealth. The village people are afraid of these men and of the powers they claim to have. There was other evidence that there has been great reluctance to report killings by sangguma to the authorities because as was said this is a matter for the people themselves to deal with in their own way. In my view this is probably because of fear of magic being used against an informant. This was so stated by the President of the Lufa Local Government Council. But perhaps the most important fact that we learned was that the deceased man was a professed sangguma, that he, with another man from his village, had agreed for reward to kill Fake or one of his brothers. The rumour of which the learned trial judge was told had far more significance than he realized. He was not aware that on a day previous to the killing signs of strangers had been detected outside Fake’s garden nor do I think that the presentation of the case was such as to enable him to appreciate the real and justifiable fear, tension and excitement which pervaded the village of Fimi in the four or five days previous to the killing. We had the advantage of knowing of the detailed planning which had gone on, of the approach of the assassins and of their being guided into position by villagers of Lagaiu and of the identification by them of the person or persons to be killed. To me this makes clear the atmosphere existing at the time—one of armed watchfulness and of growing anger. It makes explicable, too, the insistence of Seki at the trial on his thinking about the deaths of his fellow villagers and of his desire to rid the village of an evil presence. In my view, too, it adds great significance to the remark of Seki that if they had not seen the deceased he would have been able to do something against them and of his expressed desire to “finish off this sangguma man”. Certainly there was a retaliatory element in this killing but also, as I see it, a realization that the appellants were in the presence of a murderer who, if he escaped, would no doubt be back again to earn his fee. Their fear was real and they were keyed up to a high pitch of excitement and anger.

There is a further matter which in my view must have a bearing on sentence. The murder took place on Friday, 13th March; there obviously must have been discussion in the village which led to Fake and the three appellants undertaking the nine-hour walk to Lufa on Tuesday, 17th, to report the matter to the police. As Fake stated his motive in going to see Sub-Inspector Tami was because of his understanding that Tami would go to Lagaiu and prevent a repetition of these happenings. He did not think that the appellants would get into trouble because Mipi was killed in his, Fake’s, village. He also thought that if he had not raised the matter it would never have come to the attention of the authorities, and this is probably so. In the decision to break with custom and to enlist the aid of the authorities in preventing further violence one cannot but see the development of some understanding of the aim of government to preserve law and order. The appellants were not arrested at this time and indeed on the same day attended a meeting with representatives of both Lagaiu and Mipi’s village at which was proposed a further and larger meeting at which compensation would be exchanged and an attempt would be made to ensure peace between all the villages concerned. The appellants were not in fact arrested until 28th March.

I am convinced that they had no sense of guilt for what they had done and rather regarded themselves as having eliminated in defence of their village a person who, whilst alive, was a threat to the lives and safety of its inhabitants—as indeed he was.

I am fully aware of the incidence of homicide particularly in the Highlands, and of the necessity for stern deterrent measures, but I feel that killing brought about by a belief in sorcery will for some time to come need special and individual treatment.

Taking the view that I do that Mipi was killed by angry and excited men in what they reasonably conceived to be proper and necessary defence of their kin against a real and murderous enemy, I am of opinion that a proper sentence would be one of six years’ imprisonment. This is a sentence which has a real element of deterrence and which at the same time will allow the education of the prisoners in the basic requirements of law and order and good citizenry which our corrective institutions are so well able to carry out.

Leave to appeal against sentence should be granted. The appeals should be allowed and the sentences reduced to six years’ imprisonment with hard labour.

CLARKSON J:  On 25th June, 1970, at Goroka the appellants were convicted by Kelly J. of the wilful murder of one Mipi Kafoyare. On the same day each appellant was sentenced to ten years’ imprisonment with hard labour. Notice of appeal against conviction and an application for leave to appeal against sentence were filed on 3rd August, 1970.

On 9th November, 1970, the Court unanimously dismissed the appeals against conviction but the applications for leave to appeal against the sentences imposed were stood over for further argument and consideration. In the circumstances it is unnecessary for me to refer further to the appeals against conviction.

The grounds for the applications as finally amended are that “the sentence imposed by the learned trial judge is excessive in that it was based on findings of facts which were not the material or relevant facts of the event”. This somewhat ambiguous statement was clarified in the course of argument.

An amount of new material has been placed before us and from it emerges a number of matters which if they had been brought to the attention of the trial judge he would no doubt have considered relevant to sentence. The immediate question is whether in these circumstances this Court is enabled or required to vary the sentence imposed. To answer this question it appears to me to be first necessary to ascertain the powers of this Court when hearing an application for leave to appeal against sentence.

It has been accepted by the Court that fresh material may be admitted on such a hearing. See R. v. Kausigor[lxxxvi]³ where the Court heard evidence contradicting part of the contents of the antecedent report given to the trial judge. The Court referred to Holder v. The King[lxxxvii]⁴, R. v. Oberthur[lxxxviii]⁵, and R. v. Bates[lxxxix]⁶. Reference can also usefully be made to R. v. McKay[xc]⁷ and R. v. Lewis[xci]⁸.

Obviously in some cases, the fresh material when examined may be of little significance and in others great. If the powers of the appellate court are so wide as to permit it to substitute its own assessment without restriction for the penalty imposed below no difficulty arises. But if the appellate court’s powers are ordinarily restricted as for example where it may interfere only on limited grounds, such as where the sentence imposed below is manifestly erroneous, the further problem arises whether on receiving fresh material it should allow the appeal only where the fresh material establishes that the sentence is manifestly erroneous, or whether disregarding that consideration it should substitute the sentence which it thinks proper.

It will be seen that for the present case the latter problem I have posed cannot be solved until it is known whether the powers of this Court on an application for leave to appeal against sentence are, in loose terms, restricted or unrestricted. Logically, this question should be examined first and I proceed now to consider it.

The applications now being made are pursuant to the Supreme Court (Full Court) Ordinance 1968. Section 27 occurs in Div. 3 of Pt. III of the Ordinance, the provisions of which Part apply to criminal proceedings. Section 27 provides that a person convicted by a judge exercising the jurisdiction of the Supreme Court may appeal to the Full Court: “(d) with the leave of the Court against the sentence passed on his conviction unless the sentence is one fixed by law.”

Section 28(4) provides:

“On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

It is necessary to note also s. 29 which by sub-s. (1) provides:

“The Secretary for Law may appeal to the Full Court against any decision of a judge, whether on appeal or sitting as a court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.”

Section 27(d) follows substantially the form of s. 668d(c) of The Criminal Code of Queensland and s. 28(4) reproduces s. 668e(3) of the Queensland Code, while s. 29 (1) is substantially in the form of s. 669a of that Code.

At the time when s. 28(4) and s. 29(1) were enacted in the Supreme Court (Full Court) Ordinance their equivalents had for many years in Queensland been construed differently. In applying s. 668e(3) (our s. 28(4)) the Queensland Court of Criminal Appeal in a number of decisions has taken the view that it will only interfere with a sentence which is manifestly inadequate or excessive or where a wrong principle has been applied or salient evidence overlooked, undervalued, overvalued or misunderstood. See for instance R. v. Buckmaster[xcii]⁹, R. v. McIntosh[xciii]¹⁰, R. v. Roberts[xciv]¹¹, R. v. Paterson[xcv]¹². This approach was justified by reference to Skinner v. The King[xcvi]¹³ a decision of the High Court on appeal from New South Wales where similar provisions operated.

In Skinner’s case[xcvii]¹⁴ the views of Barton A.C.J., in which the other four Justices of the Court concurred, are shown by the following passage:

“. . . of course the sentence is arrived at by the Judge at the trial under circumstances, many of which cannot be reproduced before the tribunal of appeal. He hears the witnesses giving their evidence and also observes them while it is being given, and tested by cross examination. He sees every change in their demeanour and conduct, and there are often circumstances of that kind that cannot very well appear in any mere report of the evidence. It follows that a Court of Criminal Appeal is not prone to interfere with the Judge’s exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.”

At the same time, the Queensland Court of Criminal Appeal has taken the view that on an appeal by the Attorney-General under s. 669a the Court has an unfettered discretion to vary sentence. See R. v. Beevers[xcviii]¹⁵, R. v. Watson[xcix]¹⁶, R. v. Peterson[c]¹⁷. This followed a further decision of the High Court in Whittaker v. The King[ci]¹⁸, on a New South Wales provision similar to the Queensland s. 669a (our s. 29(1)).

In New South Wales a different view has been adopted. The position was considered in R. v. Gosper[cii]¹⁹. There according to both reports, s. 6(3) of the Criminal Appeal Act, the provision equivalent to s. 28(4) of our Ordinance, enabled the appellate Court “if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed” to quash the sentence and pass such other sentence in substitution therefor “as it thinks fit”. Note that these latter words are absent from the Queensland and Territory provisions and do not appear in the 1824-1937 edition of the New South Wales Statutes. I am unable to explain the discrepancy.

The New South Wales Court of Criminal Appeal took the view that there was no difference in meaning between the words used in s. 5d of the Criminal Appeal Act (the equivalent of our s. 29(1)) dealing with the Attorney-General’s right to appeal and s. 6(3) referred to above and that following Whittaker’s case[ciii]²⁰ both provisions conferred unlimited judicial discretion on the appellate court. Street C.J. for the Court said, in amplification:

“What is meant by unlimited judicial discretion is that the discretion conferred upon this Court is one in the exercise of which it cannot be interfered with so long as it has acted in good faith.”

In Victoria and Western Australia where a convicted person requires leave to appeal against sentence and where provisions similar to our s.28(4) exist the same view of that provision is taken as in Queensland. See R. v. Taylor[civ]²¹ in Victoria and R. v. Grayson[cv]²² and R. v. Reynolds[cvi]²³ in Western Australia.

This Court with the advantage of being able to consider all the cases to which we were referred is in a position to take its own stand.

In Whittaker v. The King[cvii]²⁴ the Court of Criminal Appeal of New South Wales had taken the view that it might not interfere unless satisfied that the trial judge had proceeded upon a wrong principle. Four Justices of the High Court indicated that on an appeal by the Attorney-General under s. 5d of the Criminal Appeal Act—equivalent to our s. 29(1)—that restriction did not apply. When considering Whittaker’s case[cviii]²⁵ and R. v. Gosper[cix]²⁶ I bear in mind that Whittaker’s case is not a decision on s. 28(4) or its equivalent. The section under discussion was the equivalent of our s. 29(1) which gives a power to the appellate court to vary the sentence “in its discretion”. As appears from the judgment of Higgins J. at pp. 252-3 of the report, the presence of these additional words appears to have been the foundation for an argument that the two sections should be given different meanings. If this be so, then Whittaker’s case impliedly rejects the suggestion in Gosper’s case that the words in s. 5d and in s. 6(3) of the New South Wales Act (our s. 28(4) and s. 29(1)) have the same meaning. But, whatever assistance is obtained from Whittaker, there is nothing in any of the judgments to express the view that in relation to the equivalent of s. 28(4) Skinner v. The King[cx]²⁷ is not good law and it seems to me unlikely that the majority of the Court would have intended, without argument, to cast doubt on a construction which had been for so long adopted in England and Australia. See the authorities referred to in Skinner’s case.

This brings me to the subsequent decision of the High Court in House v. The King[cxi]²⁸. There the appeal although against sentence was as of right and there was no relevant statutory provision similar to s. 28(4). All members of the Court emphasized that the judgment complained of, a sentence, depended on the exercise of a judicial discretion and Dixon J. (as he then was), Evatt and McTiernan JJ. then went on to discuss the established principles by which an appeal against an exercise of discretion should be governed. The learned Justices then state (at p. 505) these principles in terms consistent with Skinner v. The King and refer to a number of English authorities. They conclude by referring to the remarks of Barton A.C.J. at p. 340 and Isaacs J. at p. 342 of the report of Skinner’s case, and Isaacs J. at pp. 244-250 of the report of Whittaker v. The King in which the same principles are discussed. Because there was no statutory provision similar to our s. 28(4) the decision has nothing to say on the present problem.

All the authorities to which I have referred were available to the Full Court of Victoria when in R. v. Taylor[cxii]²⁹ it was faced with a problem similar to that which we are now considering. Section 594(4) of the Crimes Act of Victoria was similar to our s. 28(4). The majority of the Court (Lowe and Gavan Duffy JJ.) decided to follow the existing practice in Victoria which was to interfere with sentence only where error was shown. Smith J. was inclined to a different view but was of opinion it was not necessary to decide the question because there was in fact error on the part of the trial judge in exercising his discretion. Smith J. neatly sums up the views of the majority to be that the practice has been to consider whether there has been error vitiating the exercise of the trial judge’s discretion and if none is shown then not to interfere with the sentence: “The justification for the adoption of such a practice is to be found in the fact that unless error is shown the Court will ordinarily be unable to be satisfied that a different sentence should have been passed.”

It has been suggested that if the principles to be applied on appeals by the Crown against sentence are not the same as on appeal by a prisoner against sentence the situation is apparently illogical[cxiii]³⁰. Isaacs J. in Whittaker v. The King[cxiv]³¹ at p. 250, supporting a restricted construction of the equivalent of s. 29(1) forcibly expresses the same sort of argument as follows: “. . . I cannot think the New South Wales Parliament as a British legislature can, in the absence of distinctly coercive words, be taken to have intended to give the court at the request of the Crown a greater opportunity of increasing the sentence of a convicted person than of reducing it on his own application.” But here the legislature has already made a clear distinction which operates against the convicted person. A convicted person has no right of appeal against sentence. He can only challenge it by leave of this Court whereas the Crown’s appeal against sentence under s. 29(1) is of right.

Further of course—and for good reason—it is not considered illogical that while a convicted person has under s. 27 ample rights to appeal against conviction the Crown has no right of appeal against acquittal. See ss. 30 and 31.

I do not find it illogical nor in any way offensive to public policy nor good sense that whilst a convicted person who may only appeal with leave and who desires to challenge his sentence must show some error or misunderstanding on the part of the trial judge before this Court will interfere, the Crown, which can appeal as of right, is entitled to invite this Court to substitute its view of the correct sentence. No doubt the legislature assumes that such a right given to the Crown would not be lightly exercised nor abused and appreciates that whilst the legislation stands, this Court has an effective measure of control. I leave open for consideration when the proper occasion arises the extent to which this Court, even on an appeal by the Crown under s. 29(1) should have regard to the manner of exercise of the trial judge’s discretion.

Even if the view which I have expressed were wrong, I still find it difficult to accept that without any error or misunderstanding on the part of the trial judge being shown, this Court could or should substitute its own view without regard to the trial judge’s views. Some weight must surely be given to the fact that the trial judge appears to have exercised a judicial discretion correctly in circumstances which cannot be reproduced before the Full Court[cxv]³². Megarry J. has recently remarked: “It is often said that an appellate court should reverse a decision only if satisfied that it is wrong and not merely because it is not satisfied it is right”. Re B .[cxvi]³³.

I note that the relevant legislation in New South Wales at the time of R. v. Gosper[cxvii]³⁴ and in Victoria at the time of R. v. Taylor[cxviii]³⁵ provided for an appeal against sentence by a convicted person only with leave while an appeal against sentence by the Attorney-General lay as of right. The position is the same in Queensland and in the Territory. None of the State appellate courts appear to have considered whether the fact that the former appeal is by leave only is relevant to the present enquiry. I shall refer to this aspect shortly but disregarding it for the present there is a further consideration which confirms me in my view that this Court when dealing with a sentence at the instance of a convicted person should apply principles similar to those laid down in Skinner v. The King[cxix]³⁶.

If the proper construction of s. 28(4) is that this Court has an “unlimited judicial discretion”[cxx]³⁷ to substitute its own view for that of the trial judge whether the trial judge has erred or not, then it seems to follow that a convicted person could obtain standing before the Full Court by saying no more than that he prefers to be sentenced by the Full Court rather than by the trial judge. This would appear at the least to be a highly undesirable situation and contrary to generally accepted principles. It is clearly a situation which this Court should avoid if it can.

I have already pointed out that a convicted person has no right to appeal against sentence. The leave of this Court is required and the Ordinance is silent as to the considerations which determine whether leave should be granted.

Perhaps the answer to the present problem is that the principles indicated by Skinner v. The King or similar considerations are to be applied when deciding whether or not to grant leave. Clearly the Full Court is given a judicial discretion to grant or refuse leave and it is a matter for the Court to select the criteria by which the granting or refusal of leave is to be determined. It would be more than unfortunate if the Full Court were to adopt the attitude that although the trial judge had exercised his discretion properly leave should be granted and the sentence disturbed merely because a majority of the Full Court concluded that in the exercise of their discretion a different or even slightly different sentence would have been imposed.

But returning to the cases I have discussed I appreciate the force of the argument adopted by Smith J. in R. v. Taylor[cxxi]³⁸ at p. 299 that the court’s authority and duty are defined by s. 28(4) and that no practice can limit that authority nor relieve the court of the duty to determine whether it thinks “a different sentence should have been passed”. But against this it can I think be fairly said that the appeal is from the exercise of a judicial discretion and that there is nothing in the section to prevent the appellate court recognizing this and applying the same principles on review as it would in reviewing any other exercise of judicial discretion.

To elaborate, I find it difficult to conceive circumstances in which it could be said that some other sentence, whether more or less severe is warranted in law and should have been passed when no error on the part of the trial judge is shown. The change in tense in “is warranted” and “should have been passed” is significant. The “other sentence” of which the section speaks is not one which should be passed but one which “should have been passed” that is, passed by the trial judge. If there be no error then does not the trial judge’s sentence meet the description that it “is warranted in law and should have been passed”? To me, the provision carries the implication that the appellate court interferes only when the sentence either is not warranted in law or should not have been passed and it is left to the appellate court to define the tests it will apply in determining whether the sentence should have been passed. This it has done in a number of jurisdictions to which I have referred by applying, in respect to the review of sentences, the principles of Skinner v. The King[cxxii]³⁹ which require error or mistake to be shown, and I do not think the appellate court avoids its duty by recognizing that within limits individual opinions may properly vary.

But whatever line of approach is taken the result as it seems to me is that it is both according to law and desirable that a sentence imposed by a trial judge who has advantages denied to the Full Court should not be disturbed at the instance of the convicted person unless it is shown to be wrong when tested against the substance of the principles suggested by Skinner v. The King.

This brings me to the second enquiry earlier referred to, whether this situation is altered by the admission before the Full Court of fresh material.

In a number of the relevant authorities, there is no indication whether the appellate court having received the fresh material then made its own assessment of sentence or whether considering the fresh material with that before the trial judge enquired whether the sentence imposed below was wrong. See for instance R. v. Lewis[cxxiii]⁴⁰.

On the other hand, there is good authority in Queensland and here for concluding that the latter approach is correct. In R. v. Oberthur[cxxiv]⁴¹ the Court of Criminal Appeal after considering the position disclosed by the addition of fresh material said: “Under all the circumstances we are of the opinion that the sentence imposed is substantially excessive and should be reduced . . .” In R. v. Palmer[cxxv]⁴² one of the factors considered by the same Court was an injurious police report which, as it appeared, was to an inordinate extent based on hearsay and alleged suspicion. Again the sentence was disturbed because it was manifestly excessive.

In R. v. Bates[cxxvi]⁴³, it appeared that certain matters placed before the trial judge were of “belief and hearsay inferences” including an unwarranted statement that the prisoner was the associate of a notorious criminal. The sentence was reduced, Blair C.J. first remarking: “. . . It is difficult to interfere with a sentence imposed by a trial judge.”

This view has already been adopted by this Court in The Queen v. Clemence Mandoma Kausigor[cxxvii]⁴⁴ and The Queen v. Piki Piliu[cxxviii]⁴⁵, where further material was admitted by the Full Court which showed that a statement in the antecedent report given to the trial judge was not correct. The Court in reducing the sentences used the same words as in R. v. Oberthur[cxxix]⁴⁶ and said: “In all the circumstances we think the sentences were substantially excessive.”

If this be a correct appreciation of the powers of the Full Court when considering an application for leave to appeal, it remains to consider the present applications in the light of it.

On the information before him the trial judge concluded, in my view correctly, that Mipi’s killing was substantially a payback for previous deaths in the appellants’ village for which they held Mipi responsible and on that basis it would be wrong for this Court to interfere with the sentences imposed. However, I have finally reached the view that the additional material made available to us renders the sentences clearly excessive.

I do not intend to consider this material in detail. It has already been examined by the Chief Justice. I content myself with stating briefly in my own words what I see as the main considerations.

Firstly, it seems to me that the trial judge was left with the impression that Mipi was alone whereas it now appears that he was one of a party of six or seven, including guides, who had travelled to the appellants’ village to kill by violence. Since a killing by tukabu is invariably carried out by a group of men any impression that the deceased was alone would naturally result in a substantial underestimation of the immediate threat posed by the deceased’s presence.

Secondly, it now appears clear that the deceased had accepted money to kill by violence. His reputation as a sangguma man was involved and the danger he represented was not removed merely by his being discovered. If he escaped he could be expected to return. This situation was set in a primitive and isolated society where the protection of the law was neither quickly nor continuously available. The failure to place before the trial judge the information now revealed naturally led him to undervalue not only the dangers arising from Mipi’s presence but those which would continue if Mipi were permitted to escape.

Applying the tests to which I have earlier referred I conclude that the sentences should be reduced. The other members of the Court have decided that the sentence which should have been passed in each case was one of six years. I do not think it should have been any less and, in comity, adopt that term.

I agree that leave to appeal should be granted, the appeals allowed and the sentences reduced to six years’ imprisonment with hard labour.

RAINE J:  In this appeal I have had the opportunity of reading the judgment of Clarkson J. and discussing it with him. I entirely agree with His Honour’s conclusion and the reasons for that conclusion as to the powers of this Court on an application for leave to appeal against sentence.

I respectfully agree with the trial judge that this was largely a payback killing. Needless to say, I also agree with His Honour that the community cannot allow people to take the law into their own hands.

However, this was not the usual sort of payback at all. All members of the Court become used to a payback which is in revenge for a real wrong, an imagined wrong or for an insult. In addition, the Court often has before it cases of payback where the victim is believed to have caused death or worked some mischief because of his powers as a sorcerer. But in most of such cases the payback is not instantaneous, the matter is talked over and thought over, plans are made and the “offender” is then put to death after the plan adopted is put into effect in a deliberate, thoughtful, and often ingenious way. Even where the payback is made very quickly, confessions often make it crystal clear that the decision to payback was made with the utmost deliberation.

In this case the situation is quite different. The accused men were quite correct in believing that they should mount guard over their village, because had they not done so, had they not been alert, the deceased and his cohorts would probably have had a successful raid, and another man in the village would have died.

Thus, when the deceased exposed himself to the accused he was in a very different situation than is the usual payback victim, who is so often killed when he least expects it. This deceased was flushed out as he, and others, were looking for somebody to kill. He is largely the victim of his own wrongdoing, and by this wrongdoing he placed himself in great danger.

In these circumstances the excitement of the accused persons, who had been anxiously waiting and watching for so long, cannot be compared with the cold-blooded feelings of revenge in the mind of the average payback killer. We should not forget the setting of the scene, nor the fact that everything happened at great speed.

The trial judge, as I read his judgment on sentence, did not lack sympathy with the accused in the position in which they were placed. However, with great respect to him, I do not think that he gave sufficient weight to the distinction I have tried to spell out between this and other paybacks.

In my opinion the sentences were too severe, and to such an extent that this Court, in varying them, is not merely substituting one arguable view for another. With great respect to the learned trial judge I think that a much less severe sentence would have met the case. Accordingly, I would allow the appeal on sentence and substitute sentences of six years’ imprisonment with hard labour in each case.

Because of the views I hold I do not find it necessary to discuss Mr. Greville-Smith’s strong argument based on cases such as R. v. Blake[cxxx]⁴⁷ (spy case—national security) and R. v. Wilson[cxxxi]⁴⁸ (“Great Train Robbery”), and the article The Denunciatory Sentence[cxxxii]⁴⁹. See also R. v. Huxley[cxxxiii]⁵⁰. I do not think that a denunciatory and condemnatory sentence is called for here. In coming to a decision and exercising my discretion as I have I did not overlook three other cases cited by Mr. Greville Smith, namely, R. v. Jones[cxxxiv]⁵¹, R. v. Cook[cxxxv]⁵² and R. v. Cuthbert[cxxxvi]⁵³, nor have I overlooked the prevalence of the offence in the territory.

Leave to appeal against sentence granted. Appeals allowed and sentences reduced to six years’ imprisonment with hard labour.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

R>

[lxxxiv]The relevant provisions are:

N1>“27.      A person convicted by a Judge exercising the jurisdiction of the Supreme Court may appeal to the Full Court—

N2>(a)        against his conviction on any ground which involves a question of law alone;

N2>(b)        against his conviction on a question of mixed fact and law;

N2>(c)        with the leave of the Full Court, or upon the certificate of the Judge that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of a fact alone, or any other ground which appears to the Court to be a sufficient ground of appeal; and

N2>(d)        with the leave of the Court, against the sentence passed on his conviction unless the sentence is one fixed by law.

N1>28(1)    Subject to Subsection (2) of this section, on an appeal against a conviction the Full Court shall allow the appeal if it thinks that—

N2>(a)        the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;

N2>(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

N2>(c)        there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

N1>(2)        The Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

N1>(3)        Subject to the provisions of this Ordinance, the Full Court shall, if it allows an appeal against conviction, quash the conviction and direct a verdict of acquittal to be entered.

N1>(4)        On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal.

N1>29(1)    The Secretary for Law may appeal to the Full Court against any decision of a Judge, whether on an appeal or sitting as a court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.

N1>(2)        In Subsection (1) of this section—

‘sentence’ includes any order made on conviction with reference to the person convicted or his property.”

[lxxxv](1913) 16 C.L.R. 336.

[lxxxvi](Unreported, 7th November 1969, F.Ct., P. & N.G.L.R.)

[lxxxvii](1911) 7 Cr. App. R. 59.

[lxxxviii](1930) 24 Q.J.P.R. 166.

[lxxxix](1934) 28 Q.J.P.R. 79.

[xc][1957] V.R. 560.

[xci][1923] Q.S.R. 93.

[xcii][1917] Q.S.R. 30.

[xciii][1923] Q.S.R. 278.

[xciv][1938] Q.W.N. 37.

[xcv][1940] Q.W.N. 48.

[xcvi](1913) 16 C.L.R. 336.

[xcvii](1913) 16 C.L.R. 336 at pp. 339, 340.

[xcviii][1942] Q.S.R. 230.

[xcix][1962] Qd.R. 418.

[c][1953] Q.W.N. 25.

[ci](1928) 41 C.L.R. 230.

[cii](1928) 28 S.R. (N.S.W.) 568, 45 W.N. (N.S.W.) 165.

[ciii](1928) 41 C.L.R. 230.

[civ][1958] V.R. 285.

[cv](1926) 22 W.A.L.R. 37.

[cvi](1924) 27 W.A.L.R. 5.

[cvii](1928) 41 C.L.R. 230.

[cviii](1928) 41 C.L.R. 230.

[cix](1928) 28 S.R. (N.S.W.) 568; 45 W.N. (N.S.W.) 165.

[cx](1913) 16 C.L.R. 336.

[cxi](1936) 55 C.L.R. 499.

[cxii][1958] VicRp 46; [1958] V.R. 285.

[cxiii]R. v. Beever [1942] Q.S.R. 230, per Mansfield J. (as he then was).

[cxiv](1928) 41 C.L.R. 230.

[cxv]See Isaacs J. at pp. 249-250 in Whittaker v. The King; [1928] HCA 28; (1928) 41 C.L.R. 230. Barton A.C.J. at pp. 339-340 in Skinner v. The King (1913) 16 C.L.R. 336.

[cxvi] [1970] 3 All ER. 705, at p. 710.

[cxvii](1928) 45 W.N. (N.S.W.) 165; 28 S.R. (N.S.W.) 568.

[cxviii][1958] V.R. 285

[cxix](1913) 16 C.L.R. 336.

[cxx]Knox C.J. and Power J., Whittaker v. The King [1928] HCA 28; (1928) 41 C.L.R. 230, at p. 235.

[cxxi][1958] V.R. 285.

[cxxii](1913) 16 C.L.R. 336.

[cxxiii][1923] Q.S.R. 95.

[cxxiv](1930) 24 Q.J.P.R. 166.

[cxxv](1932) 26 Q.J.P.R. 81.

[cxxvi](1934) 28 Q.J.P.R. 79.

[cxxvii](Unreported, 7th November 1969, F.Ct., P. & N.G.L.R.)

[cxxviii]Unreported, 7th November 1969. F.Ct., P. & N.G.L.R.

[cxxix](1930) 24 Q.J.P.R. 166.

[cxxx] (1961) 45 Cr. App. R. 292, at pp. 297, 298.

[cxxxi] (1964) 48 Cr. App. R. 329, at pp. 334, 335.

[cxxxii]84 L.Q.R. 14.

[cxxxiii]Unreported (1970) D.C. (N.S.W.) Head, Ch.Q.S. and C.C.A. (N.S.W).

[cxxxiv](1967) 51 Cr. App. R. 204.

[cxxxv]2 N.S.W.R. 667.

[cxxxvi](1967) 86 W.N. (Pt. 1) (N.S.W.) 272.