Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979)

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CRIMINAL LAW - Parties to offences - Aiding and abetting - What constitutes aiding - Presence plus wilful encouragement - Whether use of words “kill him, kill him, kill him” amounts to wilful encouragement - Criminal Code, s. 7(c).

CRIMINAL LAW - Wilful murder - Alternative verdicts - Urging unlawful killing not available as alternative verdict - Criminal Code, ss. 315[dccvii]¹, 551[dccviii]², 552[dccix]³.

The appellant (accused) was convicted under s. 7(2) of the Criminal Code of aiding in committing the offence of wilful murder, the actual killing being committed by one Avia Aihi. The appellant was one of several people who were charged with wilful murder following the killing on the Bereina/Waima Road of a man named Morris Modeda who was being tried in the National Court for the offence of dangerous driving causing death and who was on that road at the time the murder took place with a court party for the purposes of a view. Morris Modeda was stabbed by Avia Aihi, the widow of the man who had died in the alleged dangerous driving accident and the appellant who was present when the stabbing took place and knew of Avia Aihi’s intention to kill, shouted in Motu words, meaning “kill him, kill him, kill him.”

N1>(1) On a charge of wilful murder, urging wilful murder under s. 315 of the Criminal Code is not available as an alternative verdict.

N1>(2) Although mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(c) of the Criminal Code, presence and wilful encouragement are sufficient.

N1>(3) The accused’s presence at the scene of the offence, with knowledge of the principal’s intentions and the use of the words “kill him, kill him, kill him” amounted to wilful encouragement.

This was an appeal against conviction on a charge of wilful murder where the accused was convicted under s. 7(c) of the Criminal Code as having aided in the commission of the offence.

PRITCHARD WILSON ANDREW JJ: This is an appeal against conviction. The appellant was one of several people who were convicted of wilful murder following the killing on the Bereina Waima Road of a man named Morris Modeda, who was being tried in the National Court presided over by the Chief Justice for the offence of dangerous driving causing death. On Monday 11th September, 1978, a view of the scene of the accident was being conducted in the presence of Morris Modeda. The members of the court party, together with the police that were with them, were taken completely by surprise as about sixty to eighty people, some of whom were armed with knives and branches of trees, moved towards Morris Modeda. Morris Modeda was chased and then stabbed in the back with a knife held by Avia Aihi, the widow of the man who had died in the alleged dangerous driving accident. Morris Modeda later died. Avia Aihi was sentenced to life imprisonment, three others were sentenced to imprisonment with hard labour for ten and one half years, and the appellant was sentenced to imprisonment with light labour for seven years.

Mr. Sakora, counsel for the appellant, sought to present argument during the hearing of this appeal with a view to persuading us that the sentence which the appellant received was in the circumstances manifestly excessive. Because that raised a preliminary procedural question, we heard argument on that aspect first. Mr. Karczewski, for the respondent, submitted that, leave neither having been sought nor granted, it was not open to the appellant to appeal against the severity of sentence.

A person convicted by a judge of the National Court may not appeal to the Supreme Court against the sentence passed on his conviction unless he has the leave of the Supreme Court (see s. 21(d) of the Supreme Court Act 1975).

Under s. 27(1) of the Supreme Court Act 1975, where a person convicted desires to obtain leave to appeal to the Supreme Court, he shall give notice of his application for leave to appeal in the manner prescribed by the Rules of Court within forty days after the date of conviction.

Under s. 27(2) of the Supreme Court Act 1975, the time within which notice of an application for leave to appeal may be given may be extended at any time by the Supreme Court on application made within forty days after the date of conviction. It is beyond question that notice of application for leave to appeal was not given within forty days after the date of conviction. In fact, time for filing both a notice of appeal and a notice of application for leave to appeal was extended by the Supreme Court on 1st May, 1979, but despite this no notice of application for leave to appeal was ever given. The notice of appeal dated 22nd May, 1979, is not (nor does it purport to be) a notice of application for leave to appeal. The notice of appeal does not include (nor does it purport to include) within its terms a notice of application for leave to appeal. The notice of appeal itself recites that the appellant “hereby gives notice of appeal against a decision of the National Court of Justice” on certain stated grounds. It does not recite that the appellant “gives notice of application for leave to appeal.” Grounds of appeal are stated; no grounds upon which the appellant relies in seeking the Court’s leave are stated.

For these reasons, we ruled that it was not open to the appellant in these circumstances to appeal against the severity of sentence and, accordingly, we heard no argument directed to the question of penalty.

In ground 4. of the notice of appeal the appellant contended that, if she were to have been convicted at all, she should have been convicted under s. 315 of the Criminal Code.

(a) incites, encourages, urges, counsels, or commands the unlawful killing of another; or

(b) does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another, is guilty of a crime.

(a) no specific person was incited, encouraged, urged, counselled, commanded, enabled or assisted to unlawfully kill; or

(b) the killing of no specific person was incited, encouraged, urged, counselled, commanded, facilitated, enabled or assisted; or

“Upon an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter, if either of those crimes is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.” (The emphasis is ours.)

“Provided also that upon an indictment charging a person with wilful murder, murder or manslaughter the accused person may be convicted of any of the offences following that is to say:

(b) unlawfully assaulting such other person and thereby doing him bodily harm; or

(d) unlawfully assaulting such other person, if any such offence is established by the evidence.”

As “urging unlawful killing” is not one of the offences of which an accused person charged with “wilful murder” may be convicted (i.e. it has not been expressly provided in s. 552 or otherwise), it is not an alternative verdict that was open to the trial judge. It was for this reason that we ruled during the hearing of this appeal that the appellant must fail in relation to ground 4 of her notice of appeal.

Because we can see merit in adding “urging unlawful killing” to the list of alternative verdicts contained in s. 552, the attention of the legislature is drawn to this law reform measure.

The appellant was convicted under s. 7(c) of the Criminal Code of aiding the widow in committing the offence of wilful murder. The appellant did not dispute the facts as found by the learned trial judge. Those facts were:

N2>(a) that the appellant knew that Avia Aihi intended to go to a place on the Bereina/Waima Road and there kill Morris Modeda;

N2>(b) that the appellant agreed to accompany Avia Aihi to the scene but did not do so;

N2>(c) that when the appellant heard people at the scene shout “kill that man”, the appellant had pointed out Morris Modeda;

N2>(d) that the appellant knew there would be people hiding in the bushes at the scene;

N2>(e) that the appellant said in Motu “alaia, alaia, alaia” (which in English means “kill him, kill him, kill him”);

It was argued on the appellant’s behalf that on those facts, as found, the appellant ought not to have been convicted under s. 7(c) of aiding.

It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and wilful encouragement are enough.

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.” (The emphasis is ours.)

That dictum was applied by the Courts-Martial Appeal Court in R. v. Clarkson[dccxi]⁵, where the court said:

“It is not enough, then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”

“However, encouragement in one form or another is a minimal requirement before an accused person may properly be convicted as a principal in the second degree of any crime — see R. v. Allan[dccxiii]⁷ per Edmund Davies L. J.”

In that case, as in Agiru Aieni v. Paul T. Tahain[dccxiv]⁸, the words of Cussen A.C.J. in R. v. Russell[dccxv]⁹ were cited with approval.

We think the crucial finding of fact in this case was that the appellant said in Motu “alaia, alaia, alaia” (which in English means “kill him, kill him, kill him”). The conclusion is irresistible that, by being present when Morris Modeda was murdered and by knowing of Avia Aihi’s intention to kill him and by saying those words, the appellant was encouraging intentionally by words intended to signify approval and was, therefore, wilfully encouraging.

For these reasons we consider that the appellant was properly convicted. The appeal is dismissed and the conviction is confirmed.

It has come to our attention that the power of mercy vested in the head of State acting with, and in accordance with, the advice of the national executive council has been exercised on a number of occasions of late. We mention, therefore, that this is a case in which the advisory committee on the power of mercy might consider it appropriate at some later stage to make a recommendation as an act of mercy to this appellant. As the trial judge recognised, the appellant was obviously less culpable than the other persons who were sentenced at the same time as the appellant. We express no opinion as to whether a sentence of seven years’ imprisonment with light labour for this crime as committed by the appellant could be said to be manifestly excessive; indeed, we ruled that it was not open to the appellant to appeal against the severity of sentence; and we heard no argument directed to that question. We do, however, make this observation, viz. that if, as might well have been the case, the State Prosecutor had, in the exercise of his independent discretion, seen fit to charge this appellant with the offence contained in s. 315 of the Criminal Code, she would have been liable to a maximum penalty of seven years’ imprisonment instead of a maximum penalty of imprisonment for life. If she had been so charged, it is inconceivable that the trial judge or any judge would have seen fit to sentence this appellant to the maximum penalty for that crime (s. 315). Indeed, it would be hard to imagine that a sentence of more than four years’ imprisonment would have been called for.

We express no criticism of the State Prosecutor for the manner in which he exercised his discretion. All we seek to do is to point to an anomaly in the Criminal Code where the maximum sentences for two different crimes, with either of which a person might be charged, are so different. It is anomalous if chance dictates which of these two crimes is charged and which of the two different maximum penalties apply. In the instant case we think that it was to the appellant’s misfortune that she was charged under s. 7 in circumstances in which she might just as appropriately have been charged under s. 315. It might therefore be seen as an act of mercy for the appellant to be granted a remission in respect of that portion of her sentence as exceeds a sentence of four years.

[dccvii] Infra p. 595.

[dccviii] Infra p. 596.

[dccix] Infra p. 596.

[dccx] [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534, at p. 557.

[dccxi] [1971] 1 W.L.R. 1402, at p. 1406; [1971] 3 All E.R. 344, at p. 347.

[dccxii] [1973] P.N.G.L.R. 140, at p. 195.

[dccxiii] [1965] 1 Q.B. 130, at p. 138; [1963] 3 W.L.R. 677, at p. 683.

[dccxiv] [1978] P.N.G.L.R. 37, at p. 42.

[dccxv] [1933] V.R. 59, at p. 66.

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Supreme Court of Papua New Guinea

Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979)

Papua New Guinea Law Reports - 1979