Pogu v The State [1986] PGSC 7; [1986] PNGLR 203 (3 October 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 203 - Orosa Pogu v The State 

[1986] PNGLR 203

SC319

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR REVIEW UNDER SECTION 155(2)(B) OF THE CONSTITUTION

AND IN THE MATTER OF OROSA POGU

V

THE STATE

Waigani

Woods Barnett Wilson JJ

29 August 1986

3 October 1986

PRACTICE AND PROCEDURE - Application for judicial review - Applicant need not be present in court - Whether presence required determined by circumstances of particular case - Constitution, s 155(2)(b).

APPEAL - Application for judicial review - Procedure on - Applicant need not be present in court - Whether presence required determined by circumstances of particular case - Constitution, s 155(2)(b).

CONSTITUTIONAL LAW - Application for judicial review - Procedure on - Applicant need not be present in court - Whether presence required determined by circumstances of particular case - Constitution, s 155(2)(b).

CRIMINAL LAW - Sentencing - Relevant considerations - Deducting pre-trial custody period - Statutory discretionary matter - Reasons for withholding required.

LAWYERS - Duty to court - Where delays in bringing proceedings into court - Where adjournments sought.

On an application for judicial review of a sentence of 20 years for imprisonment for wilful murder—

Held

N1>(1)      Whilst it is desirable that an applicant for judicial review of a sentence be present in court when the application is heard and there being no statutory prohibition against proceeding in the absence of the applicant each application should be determinative of whether or not the applicant is required to be in attendance.

N1>(2)      In the circumstances the Court was ready to proceed, there was no issue requiring the participation of the applicant eg, to give evidence, and the long delay in bringing the proceedings to Court was such that the applicant’s interest in having the matter resolved outweighed his interest in being present.

Held Further

N1>(3)      In criminal proceedings where a trial Judge exercises his statutory discretion not to deduct from any sentence of imprisonment the time spent in custody prior to trial, reasons therefore should be given.

Discussion of the duty of lawyers where lengthy delays are involved in bringing proceedings into Court and in seeking adjournments.

Application for Judicial Review

These were proceedings which became effectively an application for judicial review under the Constitution, s 155(2)(b), when a notice of appeal against severity of sentence was lodged out of time.

Counsel

E Batari, for the applicant.

V Noka, for the respondent.

Cur adv vult

3 October 1986

WOODS BARNETT WILSON JJ: This is an application to review the sentence of the applicant who was sentenced to a term of twenty years imprisonment for the offence of wilful murder. The sentence was imposed on 10 July 1984.

BACKGROUND OF APPLICATION

N1>1        The applicant was represented by the Public Solicitor on his trial. The only issue contested at trial was the applicants mental state. The applicant was convicted and sentenced on 10 July 1984.

N1>2        The question of whether an appeal should be lodged was considered by the Public Solicitor’s Office but the final decision was not concluded until 28 September 1984. The time for lodging an appeal under the Supreme Court Act (Ch No 37) that is forty (40) days had well and truly expired. At all times, those handling the file were aware of the time limits. In the first week of October 1984 the Public Solicitor lodged documents.

N1>3        Meanwhile, the applicant had taken his own action and in a form of appeal, received by the National Court through the mail on 28 September 1984, registered his wish to have the sentence reviewed. While this was a notice of appeal and was out of time it constructively becomes an application for review, and this is how it was dealt with by all parties.

N1>4        The case was mentioned in the Supreme Court call-over in January 1986 and it was indicated that if an appeal book was not lodged by 28 February 1986 the matter would be struck out.

In April the applicant’s counsel indicated that the full transcript had not been made available and the court made an order for the index to be settled on 24 April 1986. On 24 April 1986 the applicant’s counsel failed to attend to settle the index before the Registrar.

In June 1986 the applicant’s counsel advised the court that the matter was still not ready for hearing.

At the call-over for the August hearings of the Supreme Court, held in the last week of July, the matter was said to be ready and accordingly was set down for hearing.

The court list showed the matter set for Friday, 29 August. At the beginning of the week no appeal book had been filed. The Judge’s associates and Registry staff were requested to find out what was happening. Late on Thursday, 28 August the books were filed.

N1>5        On the morning of the hearing date the applicant’s counsel telephoned the presiding judge, Woods J, and said that he would like the matter to be adjourned. Woods J indicated that the matter was listed for 9.30 am and any application for adjournment would need to be made in Court. Before 9.30 the applicant’s counsel approached the presiding judge again and indicated, further to his wish to adjourn, that the applicant was being held in Goroka and could not possibly be brought to Court to hear the application. Mr Batari, the applicant’s counsel, was then informed that he could make his application in Court.

Before dealing with the applications we desire to make some observations. The delay in having this matter brought to a state of readiness is most disturbing. If it be the case that counsel are held up because of failure to provide a transcript, then this may be an appropriate matter on which to seek a direction, see s 5, Supreme Court Act (Ch No 37). Counsel are failing in their duty to allow a matter to get into such a state without seeking some remedy.

In terms of delay, we find it totally unsatisfactory that the relevant officers in the Public Solicitors Office did not complete consideration of an appeal until well after the expiry of the forty day period.

The explanation of lack of resources is not sufficient as we consider it to be a simple matter to properly institute an appeal, by reading the appropriate form. If, after lodging the form, instructions are changed on advice, the appeal can be discontinued. This process would appear to be the commonsense method where strict legal time limits are involved.

If it be the case that the Public Solicitors Office is so starved of resources, that such tasks could not be properly managed, as was alleged to be the case at the relevant time in this matter, then again recourse can be made to the law in the form of s 225 of the Constitution and a remedy sought, if necessary, by application to the Court.

We would add that had it not been for the fact that the applicant had made the application personally, and in advance of his lawyer, serious consideration would have been given to refusing to exercise our discretion to hear the matter, against the background outlined above.

APPLICATION FOR ADJOURNMENT

When the Court sat, after being kept waiting for some time by counsel, Mr Sakumai made an application, said to be by consent, to adjourn because the applicant was not present.

In dealing with this application the Court noted that an appellant in an appeal under the Supreme Court Act is the only person who has the right to consent to an appeal proceeding without the appellant being present (s 9).

However, the present case is not an appeal under the Supreme Court Act and while the Court is of the view that it is the usual and most desirable course for the applicant to be in attendance, there is no statutory prohibition against proceeding in the applicants absence. The facts of each particular application should be determinative of whether or not the applicant is required to be in attendance.

In this case the Court was ready to proceed, having prepared itself on the basis of the books filed the evening before the hearing date, the issue was one which did not require participation by the applicant, eg, to give evidence, and the delay to date was such that the applicant’s interest in having the matter resolved outweighed his interest in being present.

We make two further observations. First, it appears that it was only on the day of the hearing that any steps were taken to have the applicant located and brought to court. This was despite the fact that at least four weeks had transpired since a hearing date was given. Secondly, since judgment was to be reserved, we requested that arrangements be made for the applicant to be present when this decision is handed down.

When Mr Sakumai was given this ruling, he then informed the court that he was unable to proceed because he had only been handed the file the evening before. Mr Batari, who had been requested by the presiding judge to be present in court and who had conducted the matter before the trial Judge and had recommended the appeal and had allocated the case to Mr Sakumai to appear, was then instructed to take over the matter. The court adjourned for one and a half hours to enable Mr Batari to proceed.

Finally, we note for the information of all practitioners that where a Supreme Court matter has been set down and Judges’ time and resources in preparing for the matter are involved, it will be of little moment in deciding an application for an adjournment, particularly when the application is made on the day of the hearing, that the other side, in this case the Acting Public Prosecutor, consents to the adjournment. Counsel have a duty, as do the Judges, to use effectively the resources of the court, particularly the Supreme Court, and this is an important factor in assessing applications for adjournments of this type.

THE APPLICATION FOR REVIEW

The applicant was convicted on trial for the offence of wilful murder of his wife. He was sentenced to a term of twenty years imprisonment on 10 July 1984. The offence was committed on 17 October 1982.

The applicant killed his wife by striking her with an axe while she slept. The motive for the killing was apparently an argument which had taken place shortly beforehand over the deceased’s sexual involvement with another man.

At the trial the dominant issue was the physical and mental health of the accused. Considerable evidence was before the learned trial Judge who ultimately rejected the defence of insanity and convicted the applicant.

In his reasons for sentence the learned trial Judge commented on the issue of the applicant’s state of health as follows:

“I do not consider there is clear evidence of your mind being affect (sic). At the most, I can only conclude that you were very sick. (layman term).”

It was submitted that the learned trial Judge failed to give sufficient weight to this aspect in sentencing the applicant and that insufficient weight was also given to the events preceding the offence, that is the argument about the deceased’s alleged infidelity. We find some merit in these submissions.

The Court also reviewed other sentences handed down in 1984 and formed the view that, while accepting the serious nature of the offence and the need for the deterrence of such crimes, the sentence was clearly outside the normal range of sentences imposed at that time. This point was conceded by Mr Noka on behalf of the State.

Having given consideration to these three issues the Court has come to the view that the sentence should be reviewed. In our opinion, the correct sentence should be fifteen (15) years imprisonment.

One further matter requires attention in relation to the sentence. At the time he was sentenced the applicant had been in custody for one (1) year eight (8) months awaiting trial. This time was not deducted from the term of twenty (20) years imposed. We can see no reason why such a deduction should not have been made. In a case where a judge exercises his discretion, now a statutory discretion, not to deduct the time in custody, reasons should be given, particularly where such a great length of time is involved. We are of the view that the time in custody should have been deducted.

Accordingly we order that the sentence imposed by the learned trial Judge be reduced from twenty (20) years imprisonment to fifteen (15) years imprisonment. Taking the time spent in custody of one year eight months into account, the sentence which we now substitute for that of the trial Judge is thirteen years four months and a warrant of commitment to that effect will issue forthwith.

CONCLUSION

This was an application for review of an unexceptional nature made exceptional by the way in which it has been handled. We have gone to some lengths to detail the history of the application to highlight the many unsatisfactory features contained in it.

We should not have to go to such lengths but we find it necessary to do so to remind all lawyers in this jurisdiction of the very high duty they carry, their responsibility to their clients and their responsibility to this Court to carry out their duty efficiently and effectively so that ultimately the interests of justice can be properly served.

All lawyers have this duty to the Court, they are officers of the Court, in this case also Constitutional Office holders, and any thing less than their total commitment to the professional discharge of their duty is a failure to observe and properly exercise their role as lawyers and will also be seen as indicative of disrespect for the Court and its functions.

Sentence reviewed

Lawyer for applicant: Public Solicitors Office.

Lawyer for respondent: Public Prosecutors Office.