State v Dipa [2007] PGSC 10; SC868 (31 August 2007)

SC868

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 03 OF 2007

STATE

v

KAI JOIP DIPA

Mt. Hagen: Sakora, Kirriwom and Lay JJ
2007: 27 and 31 August

CRIMINAL LAW – Criminal Code - s.315 grievous bodily harm with intent - whether conviction safe - whether defence raised on allocutus.

APPLICATION FOR REVIEW - whether case of exceptional gravity - whether manifest injustice.

PNG Cases Cited

Avia Aihi v The State (No.1) [1981] PNGLR 81
John Beng v The State [1976] PNGLR 115
R v Kaiwor Ba [1975] PNGLR
Gabriel Laku v The State [1981 ] PNGLR 350
Gedai Kairi v The State (2006) SC 831
Charles Bougapa Ombusu v The State [1997] PNGLR 699
Oscar Tugein v Michael Gotaha [1984] PNGLR 137

Overseas Cases Cited
R v Muratovic [1967] Qd R 15

References
Criminal Code

Facts

The applicant applies for leave to review his conviction and sentence. On a plea of guilty the applicant was convicted of doing grievous bodily harm with intent to do grievous bodily harm contrary to Section 315 of the Criminal Code. On his allocutus the applicant said that he was about to be chopped off by an axe, he took the axe and chopped his attacker. His record of interview with the police shows that he made the same claim to the police, that he was not the first to attack. Counsel did not raise and the court did not raise with counsel the possibility that this could disclose a defence of provocation or self-defence or both.

Held

1. the hearing took a wrong course when the trial Judge did not raise with counsel that the statement on allocutus and the record of interview disclosed the possibility of defences;

2. there has been a miscarriage of justice, leave to review should be granted;

3. the conviction and sentence should be set aside and a new trial ordered.

Counsel

Applicant in person
K. Umpake, for the State

DECISION ON APPLICATION FOR LEAVE FOR REVIEW

31 August, 2007

1. BY THE COURT: On a plea of guilty the applicant was convicted on 16 November, 2006 at Mount Hagen for unlawfully doing grievous bodily harm with intent contrary to section 315 (1) (a) and (d) and sentenced to nine years in hard labour.

2. The applicant filed this application for review on 26 January 2007, being out of time to appeal.

3. The application filed indicates that the applicant wishes to appeal against conviction and sentence. We note that the applicant is not represented by counsel and filed his application without legal assistance.

4. Where a convicted person has not appealed within the 40 days prescribed by the Supreme Court Act Section 29(1), the right of appeal is extinguished. The only course then open is to apply pursuant to Constitution Section 155(2)(b) for leave to apply for review and the court must exercise its discretion in favour of the applicant. The court's discretion will only be exercised in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity: Avia Aihi v The State (No.1) [1981] PNGLR 81 at 93.

5. Although the applicant mentions in his submissions that he was wrongly convicted, he addresses no separate submission to the issue of conviction and treats conviction and sentence as one and the same.

6. It is well settled that the Supreme Court will not interfere with the conviction recorded by the National Court unless it is satisfied that there is a reasonable doubt as to the safest or satisfactoriness of the verdict: John Beng v The State [1976] PNGLR 115.

7. The applicant submits that there was provocation and that he acted in self defence. He is a village man and was spending the night at the house of an uncle in the Mount Hagen hospital compound. However the uncle was absent. About 15 years beforehand the father of his Aunt had been killed in the village. Early in the evening the applicant became concerned about the manner in which his Aunt was speaking. About midnight his Aunt went out and then he heard other people outside. He locked the door. He suspected that the people on the other side of the door were trying to kill him in payback for the death of his Aunt's father. The applicant's version of what then happened appears from the excerpts of transcript below.

8. According to the transcript, on the day of the hearing, at 9:55 a.m. the prosecutor was just finishing informing the court of the brief facts alleged by the State. The charge as contained in the brief facts was then put to the applicant by the judge, he was asked to plead and said "it is true", the depositions were tendered and between 10:05 a.m. and 10:15 a.m. His Honour considered the depositions, accepted the plea and commenced to hear the accused on why sentence should not be passed on him. The procedure of accepting the plea provisionally, subject to reading the depositions was not followed and no adjournment was taken to consider the depositions.

9. In the depositions was the English version of the police record of interview with the applicant in which he said:

" Ans 13:...I turned around and at the same time I saw the youth that was sleeping swung an axe at me and I caught the axe and then tackled him to the ground. I then took the axe from him and chopped him..."

"Ans 19 The same axe he tried to chop me with, I got it and chopped him with it."

10. On allocutus the applicant said "I was going to be chopped off by the victim with his axe. I got that axe and chopped him."

11. Counsel for the applicant summarise the events as follows, in submissions on sentence:

"When the victim in this case tried to open the door, fearing that the man outside might come in and attack him, he attacked the victim in this case with the axe. That was briefly the statement that the prisoner was trying to explain in his allocutus."

12. His Honour, in delivering reasons on sentence said in part (at page 36 line 25 of the appeal book):

"the victim, Wan Pii Mendai, and you were sleeping in the same room and the accused was woken up by the noise. He got up to open the door to his surprise the accused suddenly attacked him with an axe, chopping him on his neck...".

13. And further on in his judgment His Honour said (at page 38 line
20 of the appeal book):

"The accused in this case said that he thought he was going to be attacked and possibly killed and that is the reason why he attacked the victim. But the attack, in my view, could not be justified because there was no evidence that he was going to be attacked. It is clear that the accused acted only on mere suspicion.

14. So at no stage does either the applicant’s counsel or the judge address the issue of the applicant's claim that he was not the initial aggressor, that in fact the axe was swung on him before he obtained it. The attention of both counsel and the court appears to have been taken up with what was properly regarded as a side issue, namely whether the applicant's Aunt Margaret falsely accused the applicant of asking her for sex or he had indeed asked, which had caused her to go out of the house.

15. The depositions of the other witnesses are not before us. It may be the case that the evidence contained in the other witnesses’ depositions was so inconsistent with what the applicant said that, on a trial, it would be difficult to imagine any weight being placed on the applicant's claim. However, this was not a trial. What was in the depositions had not been tested by cross-examination. In the interests of fairness to the applicant the possibility of the defences of provocation and self-defence should have been raised by his Honour with counsel, and if the allegation was not withdrawn by the applicant's counsel on instructions, a plea of guilty should not have been accepted. That is particularly so when self defence is a complete defence and where in certain circumstances the proportionality of the defenders reaction is not to be strictly judged.

16. In the case of R v Kaiwor Ba [1975] PNGLR 90 the court adopted what was said in R v Muratovic [1967]Qd R 15:

"The person using force in self-defense is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm."

17. It is the reasonableness of the belief and the reasonableness of the grounds for that belief which found the defence and not any proportionality between the assault and the defence.
18. In Gabriel Laku v The State [1981 ] PNGLR 350 the Supreme Court held (from the headnote):

" When any statement of the accused conflicts with answers to questions put on arraignment, any admission of guilt arising from the answers to those questions must be regarded as tainted, and the inconsistency is sufficient ground for the exercise of the discretion to set aside the pleas of guilty".

19. Where the trial Judge fails to raise the issue of the availability of a defence with counsel for the accused it may amount to a denial of a fair trial: Gedai Kairi v The State (2006) SC 831.

20. There may have been an unspoken understanding in the courtroom that the claim that the victim first attacked the applicant was abandoned in exchange for a plea bargain reduction of attempted murder to the charge preferred. However, we must all proceed on the record and it is important that all understandings are raised and placed on the record and the methodology by which issues are disposed of also placed on the record.

21. The court may accept the accused's position to forego a defence, which appears to be available to him on the depositions, in exchange for pleading to a lesser charge. However, it must be clear that the accused understands that is what he is doing. Indeed in Gedai Kairi v The State (2006) SC 831, the court appeared to endorse the view of Kandakasi J. that the court would be bound to accept the accused's position in abandoning an apparent defence in such circumstances.

22. In summary, on his statement on allocutus the applicant raised matters of defence which were inconsistent with a plea of guilty. And that should have put the trial judge on alert. It would have been advisable to accept the plea provisionally only, and to take a short adjournment to give more careful consideration to the depositions with particular regard to whether the applicant had previously raised such matters in his record of interview. Having ascertained that was the case it would have then been incumbent on the trial judge to raise the matter with counsel for the applicant.

23. It appears to us that this trial took a wrong course when the trial Judge failed to note that the applicant's record of interview and statement on allocutus raised a matter of defence. We are therefore satisfied that there has been a substantial miscarriage of justice warranting the grant of leave for review, which we grant.

24. It is not necessary to address the ground that the sentence was excessive nor the parties submissions on that issue.

25. Having granted leave, and having already considered the merits of the matter, we are all of the view that the conviction and sentence should be set aside.

26. In Charles Bougapa Ombusu v The State [1997] PNGLR 699 at 702 the Supreme Court referred to considerations set out by Bredmeyer J in Oscar Tugein v Michael Gotaha [1984] PNGLR 137 when considering whether or not a new trial should be held:

"...in determining whether or not a retrial should be ordered, the following matters (inter alia) may be relevant:

1. the public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;
   
2. the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;
   

100. the seriousness and prevalence of the particular offence;
     

4. the consideration that the criminal trial is an ordeal which the defendant ought not to be condemned to go through for a second time through no fault of his own unless the interest of justice require that he should do so;
   
5. the length of time elapsing between the offence and the new trial if ordered; and
   
6. the strength and availability of the evidence.
   

With respect, we endorsed and adopt his Honour’s observations. The list is not exhaustive.

It is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of a trial, the appellate court has ordered a new trial be conducted"

27. The trial judge erred procedurally, there has been no trial in which witnesses have had to be produced and in which the accused has had to give evidence, so that the ordeal of trial and the cost are not relevant considerations. Not a long time has elapsed since the offence, it would appear that there is strong available evidence and unfortunately the offence is serious and prevalent. We have therefore come to the conclusion that the proper course in this case is to remit the case to the National Court for retrial before another judge.

28. ORDERS:

a). leave for review granted;
b). conviction and sentence set aside;
c). the case is remitted to the National Court for retrial before another judge;
d). the applicant is remanded in custody, subject to any application for bail which may be heard by the National Court.

__________________________

Public Prosecutor: Lawyer for the State
Applicant in person