Erebebe v State [2013] PGSC 9; SC1228 (2 May 2013)

SC1228

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 70 OF 2003

BETWEEN:

ALOIS EREBEBE and TAROS TOGOT
Appellants/Cross Respondents

AND:

THE STATE
Respondent/Cross Appellant

Waigani: Gavara Nanu J., Davani J.,
: Hartshorn J., Yagi J.,
: Makail J.
2012: 25th June, 31st October,
: 18th December,
2013: 2nd May

CRIMINAL LAW - whether any time limit imposed upon the Public Prosecutor's right to appeal – whether the cross appeal should be dismissed for want of prosecution – whether the imposition of the death penalty 9 years after the cross appeal was filed would be contrary to s.36 Constitution – section 36 Constitution considered – whether trial judge erred in sentencing – whether the acts of wilful murder are within the worst category

Facts:

The prisoners were convicted of nine counts of wilful murder following a trial. They were sentenced to 30 years imprisonment with hard labour for five of the counts and life imprisonment for the remaining four counts.

The Public Prosecutor cross appeals to increase the sentences pursuant to s.24 Supreme Court Act and requests this Court to impose sentences of death upon the prisoners, the maximum penalty for the crime of wilful murder pursuant to s. 299 (1) Criminal Code. This is the Court's decision on the Public Prosecutor's cross appeal. The prisoners oppose the cross appeal.

Held:

(a) the Supreme Court Act does not impose a time limit on the Public Prosecutor's right to appeal provided by s. 24(2) Supreme Court Act. It is only necessary that the Public Prosecutor file his appeal with all convenient speed: Acting Public Prosecutor v. Aumane & Ors [1980] PNGLR 510 and Bob v. The State (2005) SC808 affirmed.

(b) there was no utility in the cross appeal being pursued while the prisoners' appeal against conviction remained current. It has not been demonstrated that there has been any delay by the Public Prosecutor since the appeal against conviction was determined to warrant the dismissal of the cross appeal for want of prosecution.

(c) the prisoners cannot be considered to have suffered the mental anguish and agony of mind as those in Pratt and Morgan v. The Attorney General for Jamaica and Anor [1993] UKPC 37; [1994] 2 A.C. 1 and similar cases.

(d) the imposition of the death penalty would not constitute a breach of s.36(1) Constitution.

(e) the payback killing of innocent children and the ambush killing, akin to a highway robbery, fall within two categories suggested by Bredmeyer J. in Ure Hane v. The State [1984] PNGLR 105 as being within the most serious kinds of wilful murder. The trial judge erred to the extent that he found that the facts of this case do not fall within those categories.

(f) the cross-appeal of the Public Prosecutor is upheld.

(g) the sentences imposed upon the prisoners by Batari J. on 29th August 2003 at the National Court at Goroka are set aside.

(h) in respect of the wilful murders of Junior Jerry Malamamo, Gina Jerry, Bata Jerry and Kenuve Ekebae being counts 5, 6, 7 and 9, the prisoners are sentenced to death.

(i) in respect of the wilful murders of Jerry Malamamo, Sopue Aiyuwe, Lainmane Apailope, Malamamo Soboe and Malamamo Alipai being counts 1, 2, 3, 4 and 8, the prisoners are sentenced to life imprisonment.

Cases cited:
Papua New Guinea Cases

Acting Public Prosecutor v. Aumane & Ors [1980] PNGLR 510
Ure Hane v. The State [1984] PNGLR 105
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Public Prosecutor v. Apava Keru & Anor [1985] PNGLR 78
Gimble v. The State [1988-89] PNGLR 271
Clement Monumin v. The State (1997) SCR 56 of 1997 (unreported)
Tony Imunu Api v. The State (2001) SC684
Masoliyu Pyakali v. The State (2004) SC771
Bob v. The State (2005) SC808
Steven Loke Ume v. The State (2006) SC83
Alois Erebebe & Anor v. The State (2011) SC1135

Overseas Cases

Pratt and Morgan v. The Attorney General for Jamaica and Anor [1993] UKPC 37; [1994] 2 A.C. 1
Henfield v. Attorney Journal of the Commonwealth of The Bahamas (Bahamas) [1996] UKPC 36
Henfield v. The Attorney General of the Commonwealth of The Bahamas; Ricardo Farrington v. The Attorney General of the Commonwealth of The Bahamas (Bahamas) [1997] A.C. 413

Counsel:

Messrs F. Pitpit and L. Siminzi, for the Appellants/Cross Respondents
Mr. P. Kaluwin, for the Respondent/Cross Appellant

2nd May, 2013

1. GAVARA NANU J., HARTSHORN J., YAGI J. and MAKAIL J. The prisoners were convicted of nine counts of wilful murder following a trial. They were sentenced to 30 years imprisonment with hard labour for five of the counts and life imprisonment for the remaining four counts.

2. The Public Prosecutor cross appeals to increase the sentences pursuant to s. 24 Supreme Court Act and requests this Court to impose sentences of death upon the prisoners, the maximum penalty for the crime of wilful murder pursuant to s. 299 (1) Criminal Code. This is the Court's decision on the Public Prosecutor's cross appeal. The prisoners oppose the cross appeal.

Background

3. The prisoners have unsuccessfully appealed against their convictions and abandoned their appeals against their sentences: Alois Erebebe & Anor v. The State (2011) SC1135.

4. The prisoners were convicted for their involvement in the killing of nine people in an ambush of a vehicle in November 1999. Five adults were shot to death and four children were killed by being cut and stabbed with knives.

5. After this Court had heard this cross appeal and reserved its decision, the Court then decided that it required the parties to make submissions and address this Court on whether the cross appeal had been filed out of time and whether the cross appeal should be dismissed for want of prosecution. Those submissions and addresses were made.

Whether cross appeal filed in time

6. It is not disputed that the cross appeal of the Public Prosecutor was filed on 23rd September 2003. That is 56 days after the National Court decision on conviction and 25 days after the National Court decision on sentence.

7. Section 29 (1) and (2) Supreme Court Act are as follows:

"29. Time for appealing under Division 3

(1) Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.

(2) The time within which notice of appeal, or 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 40 days after the date of conviction."

8. The prisoners submit that s. 29 (1) and (2) when read together, should be interpreted to mean that when the Public Prosecutor appeals against sentence pursuant to s. 24 (2) Supreme Court Act, notice of his appeal must be given within 40 days after the date of conviction. The prisoners further submit that the Public Prosecutor was required to apply for leave to appeal pursuant to s.22 (d) Supreme Court Act.

9. This is the first occasion in nine years that the prisoners through their counsel, the Public Solicitor, have raised the issue of whether leave is required by the Public Prosecutor, it not being raised at the substantive hearing of the cross appeal. This issue was not one of the issues that this Court ordered further submissions upon and cannot be raised now. In any event, it is clear from our reading of s. 22 that it only applies to a person convicted by the National Court, and that is not the Public Prosecutor.

10. In support of their submission that the Public Prosecutor is required to give notice of his appeal against sentence within 40 days, the prisoners submit that as an appellant is required to file his appeal within 40 days of conviction, it is only fair that the Public Prosecutor be required to comply with this time limit given the resources at his disposal.

11. The Public Prosecutor submits that s. 29 (1) and (2) Supreme Court Act do not apply to an appeal of the Public Prosecutor and that this was confirmed by the Supreme Court in Acting Public Prosecutor v. Aumane & Ors [1980] PNGLR 510.

12. A perusal of that decision indicates that the five member Court gave detailed consideration as to whether any time limit was required upon a Public Prosecutor appeal and considered amongst others, s. 23 (1) and 27 Supreme Court Act 1975, the repealed legislation. These sections are almost identical to s. 24 (2) and s. 29 Supreme Court Act Ch. 37, the current legislation. The Court's view as to any time limit imposed on a Public Prosecutor appeal is reflected in the following passage in the judgment of Greville Smith J.:

"No time limit is placed on the Public Prosecutor's right to appeal given by s. 23 of the Supreme Court Act either by the terms of the section itself or by any other provision of the Supreme Court Act. In terms of the Act the Public Prosecutor's right to appeal is unlimited in duration, and that such right was intended by the Legislature not in fact to be subject to any time limit is surely super-abundantly clear from the express imposition in the Act of a time limit upon the right of a convicted person to give notice of application for leave to appeal."

13. The Court also held that Rule 32 Supreme Court Rules 1977 insofar as it imposed a time limit (of 40 days) on the institution of an appeal by the Public Prosecutor was inconsistent with s. 23 Supreme Court Act 1975 and was invalid as it was outside the rule making power conferred by s. 184 Constitution. The Supreme Court Rules 1977 were repealed by the current Supreme Court Rules 1984. These Rules do not include a Rule similar to Rule 32 Supreme Court Rules 1977.

14. We also make reference to the Supreme Court decision of Bob v. The State (2005) SC808 in which it was stated that:

"If the Public Prosecutor wants to appeal against a decision on sentence, the appeal is filed under Section 24 of the Supreme Court Act, in which case the 40 day time limit does not apply. It is only necessary that the Public Prosecutor files the appeal with all convenient speed (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510)."

15. From a perusal of s. 29 (1) Supreme Court Act, it is clear that it applies to a person convicted. The section is silent as to the Public Prosecutor or an appeal by him. Section 29 (1) is subject to s. 29 (2) and again, s. 29 (2) is silent as to the Public Prosecutor or an appeal by him. The references to a notice of appeal or a notice of an application for leave to appeal in s. 29 (2), following as they do the references to those notices in s. 29 (1), in our view refer to the notices in s. 29 (1); and the notices in s. 29 (1) are the notices of a person convicted. We are satisfied that s. 29 (1) and (2) are not able to be interpreted to mean that the Public Prosecutor must give notice of an appeal by him within 40 days.

16. As to the prisoners submission that the lack of a time limit on an appeal by the Public Prosecutor is not fair; that this is a matter for the Legislature is expounded in the following passage in the judgment of Greville Smith J. in Aumane's case (supra):

"Different jurisdictions thus have different provisions, as illustrated above. These are matters for the Legislature and, in each of the above-mentioned instances, in my view, the Legislature has made its intentions clear by the words used. If the provisions are to be changed, as may be desirable in a particular case, then that is a matter for the Legislature. It is not for this Court to wring out from a reluctant statute a meaning foreign to its plain intendment, or to find a novel meaning by recourse to other legislation with no real application to the matter in hand. To do so would be to diminish the integrity of this Court. The approach of the Queen in Alice in Wonderland – "Words mean what I want them to mean" -- is not one open to this Court."

17. For the above reasons, we are satisfied that the decision in Aumane's case (supra) remains good law and that the Supreme Court Act does not impose a time limit on the Public Prosecutor's right to appeal given by s. 24 (2) Supreme Court Act. It is only necessary that the Public Prosecutor file his appeal with all convenient speed: Aumane (supra), Bob v. The State (supra). In the circumstances, we are of the view that the filing of the cross appeal within 25 days after the National Court decision on sentence was delivered, is able to be considered as being filed within that description.

Want of prosecution

18. As to whether the cross appeal should be dismissed for want of prosecution, the Public Prosecutor submitted that notwithstanding that the cross appeal was filed on 23rd September 2003, the time that should be considered by this Court in determining whether the cross appeal had been prosecuted with due dispatch should commence from 2nd December 2011. This is the date that the Supreme Court dismissed the appeal against the convictions of the prisoners. The cross appeal against sentence could not be heard while the appeal against the prisoners convictions was still current.

19. The Public Prosecutor submits that there has not been any delay since 2nd December 2011. The cross appeal was ordered to be added to the call over list on 2nd December 2011, and on 4th May 2012, it was fixed to be heard on 25th June 2012. That is when the cross appeal was heard. This was the first date that the cross appeal had been listed for argument and so it cannot be legitimately argued that the Public Prosecutor has not prosecuted his cross appeal with due diligence.

20. The prisoners' submit that although the cross appeal refers to the sentence imposed, the Public Prosecutor has cross appealed against the decision of the National Court dated 29th July 2003 which was on conviction and not the decision dated 29th August 2003 which was on sentence. This mistake should have been corrected but has not been. Consequently, there is no appeal or cross appeal against the decision that imposed the sentences upon the prisoners. Further, notwithstanding that this is an argument as to the competency of the cross appeal, the Public Prosecutor has been dilatory in correcting the mistake and in that context the cross appeal should be dismissed for want of prosecution by the Public Prosecutor in correcting the mistake.

21. As to this argument of the prisoners, notwithstanding that it is clear that the date of the decision appealed in the notice of cross appeal is incorrect, it is also clear that the Public Prosecutor appeals the sentence imposed. Further, this is the first occasion in over nine years that this argument has been raised by the prisoners. It was not raised at the substantive hearing of the cross appeal. The competency of the cross appeal was not one of the issues that this Court ordered further submissions upon after the conclusion of the substantive cross appeal hearing, and cannot be raised now. In any event we are satisfied that the prisoners have not suffered prejudice as a result of the mistake in the notice of cross appeal.

22. We agree with the Public Prosecutor that there would have been no utility in pursuing the cross appeal while the appeal against conviction remained current. Further, it has not been demonstrated that there has been any delay by the Public Prosecutor since the appeal against conviction was determined, to warrant the dismissal of the cross appeal for want of prosecution.

Section 36 Constitution

23. Notwithstanding that we have formed the view that the cross appeal should not be dismissed for want of prosecution, We remain concerned that it is over nine years since it was filed. The prisoners are aware that the Public Prosecutor seeks that they be sentenced to death - this is specifically stated in the notice of cross appeal. They have been aware for over nine years while in prison that there is a likelihood that the cross appeal will be successful and that they will be sentenced to death.

24. Without in any way detracting from the horrendous and heinous crimes for which the prisoners have been convicted and putting aside the reasons for the delay in prosecuting the cross appeal, to our minds, it is undoubtedly true that the prisoners will have been suffering considerable anguish over the last nine years knowing that the Public Prosecutor seeks that they be sentenced to death.

25. Given these circumstances, an issue that arises in our view, is whether the imposition of the death penalty, after the prisoners have been aware for more than nine years that this is a likelihood, could be considered to be contrary to s. 36 Constitution. That is treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

26. If the imposition of the death penalty could be so considered, then it would not be necessary to consider the substantive cross appeal as a successful cross appeal would result in the prisoners being sentenced to life imprisonment and not the death penalty. The prisoners are already serving sentences of life imprisonment for four of the counts of wilful murder.

27. This issue, for whatever reason, was not raised by the Public Solicitor, the counsel for the prisoners. However, notwithstanding that the Public Prosecutor has not had the benefit of arguing on this issue, the fact of delay, by virtue of the cross appeal remaining outstanding for nine years for whatever reason, is uncontestable. Further, as there is no appeal from a decision of the Supreme Court and given the finality of the imposition of the death penalty, we are of the view that the circumstances warrant that this Court give consideration to this issue.

28. Section 36 Constitution is as follows:

"36. Freedom from inhuman treatment

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it."

29. We will proceed on the basis that the word "applies" has been inadvertently omitted before the word "does" in s. 35 (2) so that s. 35 (2) makes sense. This omission is referred to in the Revised Laws of Papua New Guinea.

30. Section 36 Constitution was considered by the Supreme Court in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314. Kapi DCJ (as he then was) considered this section in detail and said that:

"This provision must be given a wide interpretation. It embraces all kinds of punishment (which may be devised in the future) within its intendment. Such punishments may not cause any suffering or injury but may be seen to degrade the human person or treat the human person at the level of other animals. The issue is always the same - is a particular punishment inconsistent with respect to the dignity of the human person?"

31. The matter before the Supreme Court concerned the question of certain legislation that compelled the imposition of minimum penalties and so their Honours' consideration of s. 36 Constitution necessarily was primarily focused on its affect on penalties and punishment. That their Honours' do not appear to have considered to the same extent, the treatment of a person as distinct from a person's punishment under s. 36, can be seen in this context.

32. In the case of Pratt and Morgan v. The Attorney General for Jamaica and Anor [1993] UKPC 37; [1994] 2 A.C. 1, the Privy Council in a constitutional appeal from the Court of Appeal of Jamaica, held that in respect of two prisoners under sentence of death, to carry out their executions after a delay of 14 years would constitute inhuman punishment contrary to s. 17 (1) Constitution of Jamaica. Section 17 (1) and (2) Constitution of Jamaica provide:

"(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day."

33. In the Privy Council case of Henfield v. Attorney Journal of the Commonwealth of The Bahamas (Bahamas) [1996] UKPC 36, an appeal from the Court of Appeal of the Commonwealth of the Bahamas, the Privy Council stated and followed the applicable principles that were stated in Pratt and Morgan (supra):

"The judgment in that case was founded upon section 17 (1) of the Constitution of Jamaica, which provides that "No person shall be subjected to torture or to inhuman or degrading punishment or treatment". The essential question in the case was whether the execution of a man following a long delay after his sentence to death could amount to inhuman punishment contrary to section 17 (1). The Privy Council, departing from the previous decision of the Board in Riley v. Attorney-General for Jamaica [1983] A.C. 719, held that such delay was capable of having that effect. This was because (see page 29G):-

"There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time."

Furthermore the Board held that parts of this time occupied in legitimate resort by the convicted man to appellate procedures should not be left out of account in computing the relevant period of delay. In reaching this conclusion the Board, invoking in particular the decision of the European Court of Human Rights in Soering v. United Kingdom [1989] ECHR 14; (1989) 11 E.H.R.R. 439, explicitly repudiated the death row phenomenon which has developed in certain states of the United States of America, where men may be executed after a prolonged period of time which has elapsed while their lawyers pursue a multiplicity of appellate procedures. The Board expressed its conclusion on the point in the following passage (see page 33B-D):-

"In their Lordships' view a state which wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be exhibited to the appellate system that permits such delay and not to the person who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence."

34. In Pratt and Morgan (supra), the Court concluded that in any case in which execution was to take place more than five years after sentence there would be strong grounds for believing that the delay was such that execution thereafter would constitute inhuman punishment contrary to s. 17 (1). (In Henfield v. The Attorney General of the Commonwealth of The Bahamas; Ricardo Farrington v. The Attorney General of the Commonwealth of The Bahamas (Bahamas) [1997] A.C. 413, the sentence of death was commuted to life imprisonment in circumstances where the period that had elapsed after the sentence was imposed was 3 1/2 years).

35. In arriving at its decision, the Court considered the positions taken on this issue in other jurisdictions including India, where the imposition of the death penalty is not mandatory, as is the position under our Criminal Code. In Pratt and Morgan (supra), the Court said:

"In India, where the death penalty is not mandatory, the appellate court takes into account delay when deciding whether the death sentence should be imposed. In Vatheeswaran v. State of Tamil Nadu [1983] S.C.R. 348 Chinnappa Reddy J. said at page 353:-

"While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial whether the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay."

The court held that delay exceeding two years in the execution of the sentence of death should be sufficient to entitle a person under sentence of death to demand the quashing of his sentence on the ground that it offended against Article 21 of the Indian Constitution which provides "No person shall be deprived of his life or personal liberty except according to procedure established by law".

In Sher Singh and Others v. The State of Punjab [1983] INSC 27; [1983] 2 S.C.R. 582 the court held:-

"Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule that 'delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death' can be laid down as has been in Vatheeswaran."

The court pointed out that to impose a strict time limit of two years would enable a prisoner to defeat the ends of justice by pursuing a series of frivolous and untenable proceedings.

In Smt. Treveniben v. State of Gujarat (1989) 1 S.C.J. 383 the Supreme Court of India approved the judgment in Sher Singh v. The State of Punjab and held that a sentence of death imposed by the "Apex Court", which will itself have taken into account delay when imposing the death sentence, can only be set aside thereafter upon petition to the Supreme Court upon the grounds of delay occurring after that date. Oza J. said, at page 410:-

"If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed."

36. Section 17 (1) Constitution of Jamaica is similar to s. 36 (1) of our Constitution. It is likely that both sections have similar origins, given that both Jamaica and Papua New Guinea are common law jurisdictions and have similar legal history. Consequently, the sections should have similar interpretations.

37. From a perusal of s. 17 and s. 36, they both do not interfere with the carrying out of an execution pursuant to a sentence of death. In Pratt and Morgan (supra); the factor that has had the effect of converting an execution into an inhuman punishment, is the delay in carrying out the execution. The delay has not been imposed, it is a circumstance that has arisen, for whatever reason. The delay has resulted in the prisoners in Pratt and Morgan (supra) being treated in a manner that converts the execution into an inhuman punishment.

38. It can be argued that this is analogous to the present fact situation. If the Public Prosecutor's cross-appeal is successful, the sentence of death will be imposed. This in itself is not affected by s. 36 Constitution. When however, the period of nine years during which the prisoners have suffered the mental anguish and agony of mind as a result of them knowing that there is a likelihood that they will be sentenced to death, is considered, together with the fact that there is no appeal from a decision of the Supreme Court, it can be argued that it has the effect of converting the possible imposition of the death penalty into at least, mental treatment of the prisoners that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person, and contrary to s. 36 (1) Constitution.

39. Further, that the Public Prosecutor's cross appeal was not able to be prosecuted as the prisoners' appeal against conviction was current, is time occupied in legitimate resort by the prisoners to appellate procedures and should be taken into account in computing the period of nine years: Pratt and Morgan (supra). We note in this regard, that it was open to the Public Prosecutor to apply to dismiss the appeal of the prisoners against conviction for want of prosecution, but he did not.

40. In this instance however, the prisoners are not under sentence of death. Such a sentence has only been a likelihood for nine years. Further, since the death penalty for wilful murder was reinstated in 1991, and sentences of death have been imposed, no executions have been carried out in this jurisdiction. Of this, the prisoners would be aware. Given the circumstances, we are not of the view that the prisoners can be considered to have suffered the mental anguish and agony of mind as those in Pratt and Morgan (supra) and similar cases where the prisoners were under sentence of death in jurisdictions where executions were and in some instances are taking place. Further, we are not satisfied that if the death penalty is imposed, in the event of this cross appeal being successful, that such imposition would constitute a breach of s. 36 (1) Constitution, for the above reasons. Given this, we now consider the cross appeal.

Cross-appeal

41. The Public Prosecutor submits that:

a) the trial judge erred in considering that the facts of this case did not come within the worst categories of wilful murder cases as suggested by Bredmeyer J. in Ure Hane v. The State [1984] PNGLR 105.

b) the facts of this case are far worse than those of previous cases where the death penalty has been imposed, and do fall within the worst categories suggested in Ure Hane v. The State (supra).

42. The prisoners submit that although they concede that the facts of this case do fall within two of the worst categories of wilful murder as described in the Supreme Court case of Ume v. The State (2006) SC836: the killing of children and more than two persons in a single act or series of acts, the cross appeal should be refused as:

a) there were no direct findings against each prisoner as to the specific injuries caused to the deceased,

b) there existed a highly charged atmosphere within the villages of the prisoners at the time with rumours that one of the deceased had acquired high-powered weapons to use in a tribal fight against the clan members of the prisoners,

c) the personal circumstances of the prisoners were mitigating factors that the trial judge correctly considered in determining their sentences and in not imposing sentences of death,

d) the extenuating circumstances of de facto provocation by one of the deceased by acquiring high-powered weaponry to use in a tribal fight with clan members of the prisoners,

e) the trial judge did not make any error in his consideration and determination of the sentences imposed.

43. The Public Prosecutor cross appeals pursuant to s. 24 (2) Supreme Court Act which is:

"(2) The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper."

44. Apart from the case of Public Prosecutor v. Apava Keru & Anor [1985] PNGLR 78, we are not aware of any other reported decisions of this Court in which the Public Prosecutor has appealed against the sentence imposed for wilful murder pursuant to s. 24 Supreme Court Act. In Apava Keru (supra), the two convicted persons had pleaded guilty. That is not the position in the matter before us.

45. As to an appeal against sentence by a convicted person pursuant to s. 22 (d) and s. 23 (4) Supreme Court Act, the principles are well settled. In Steven Loke Ume v. The State (2006) SC836, the five members of the Supreme Court said:

"An appellant must show an error in the exercise of the sentencing discretion. The error may be identifiable or although no error is identifiable, the "sentence is out of reasonable proportion to the circumstances of the crime .....(that) this Court will infer that some error must have occurred in the exercise of sentencing discretion": William Norris v. The State [1979] PNGLR 605."

46. We respectfully agree with this statement and have been guided by it in the determination of this cross appeal by the Public Prosecutor.

Whether the murders are in the worst category

47. As to whether the murders in this case are in the worst category, at p298 appeal book line 28, the trial judge states that the facts of this case do not fall specifically into any of the categories of the worst type of wilful murders suggested by Bredmeyer J. in Ure Hane v. The State (1984) PNGLR 105. Then at p298 appeal book line 34, the trial judge states that the facts of this case in his view do fall into the worst category of wilful murder for which the death penalty is appropriate. Further, at p301 appeal book line 7, the trial judge states that the killings of the children raise the case to being the worst type.

48. The facts of the murders require to be restated so that their severity can be appreciated. There was a meeting at which an ambush was planned. This meeting was held in the context of there being a conflict between certain clans that had resulted in previous deaths. As the vehicle in which the nine deceased were travelling entered the ambush, five adults including two elderly men were killed by sustained machine gun fire. When the vehicle stopped, four children aged four and five years were dragged from the vehicle and cut on their heads with bush knives. The wounds to the children's heads consisted of brain penetrating cuts that had been carved to resemble various letters of the alphabet. The trial judge found that the children "died slowly and in the most horrific painful way."

49. We are satisfied that the payback killing of innocent children and the ambush killing, akin to a highway robbery, fall within two of the categories suggested by Bredmeyer J. as being within the most serious kinds of wilful murder. To the extent that the trial judge found that the facts of this case do not fall within those categories, we are of the respectful view that he erred.

50. We note at this juncture, that counsel for the prisoners in his submissions, correctly conceded that the facts of this case do fall within two of the categories listed by the Supreme Court in Ume v. The State (supra), as constituting the worst categories. These are that children were murdered and that more than two persons were murdered in a single act.

51. We are in no doubt that the premeditated ambush and slaughter of nine persons including the ritualistic torture and killing of four children under the age of six in the most barbaric and painful manner, places these wilful murders into the worst category.

Prisoners' submissions

52. The prisoners submit that the trial judge was correct in not imposing the death sentence for various reasons which we now consider.

Absence of finding that prisoners were directly involved

53. The trial judge appears to have considered that as he was unable to determine whether the prisoners actually "pulled the trigger or cut the children", that this was a reason for the death penalty not to be imposed. As to whether it is necessary that there be a finding of direct involvement before the death penalty can be imposed, we note this statement by the court in Ume v. The State (supra):

"The involvement of a group of people numbering some nine (9) attackers in total, was not carefully considered. The deceased sustained a variety of injuries. There was also evidence that the killing was committed by a group of men numbering nine (9) and that she was repeatedly raped before she was killed. The attack involved emotional people on both sides of the conflict. Although in principle, the three (3) appellants were liable to the same penalty as participants in a common enterprise, it was also necessary to ascertain each appellant's involvement and impose a sentence which reflected the extent of their involvement."

54. We also note the following statement by the Supreme Court in Gimble v. The State [1988-89] PNGLR 271:

"Mr Gene next argued that the trial judge did not distinguish the accused's lesser role; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

55. Here, notwithstanding the absence of a finding of the prisoners' direct involvement, the trial judge was satisfied as to the extent of the prisoners' involvement when he stated that "... there can be no doubt by (sic) their active participation even if their exact role is lacking in proof. They were purported leaders and their presence was crucial and without which the offence may have not succeeded."

56. We are satisfied that the absence of a finding as to the prisoners' direct involvement did not preclude the trial judge from imposing the death penalty. His Honour had formed the view that the prisoners' presence was crucial and as stated in Gimble (supra), "they were equally guilty".

The prevailing circumstances

57. The prisoners submit that there existed a highly emotionally charged atmosphere with rumours circulating that one of the deceased was about to bring high-powered firearms to rekindle the tribal fight between the clans and that this should be considered as a de facto provocation. We are of the view that there is no de facto provocation disclosed such that it would warrant a reduction in sentence. Even if these matters could be described in some way as payback killings, which we doubt, then the murder of the four children should be classed as being within the "second kind of payback killing" where the victim is innocent of the first killing as described in Public Prosecutor v. Apava Keru and Anor [1985] PNGLR 78. In such a circumstance, there should be no reduction of sentence as the victims did not give any provocation of any kind to the prisoners. There is no doubt in our minds, that the existence of a highly emotionally charged atmosphere and rumours of firearms being acquired could not in any way explain the horrific brutality and torture inflicted upon the four innocent children and any mitigating factor that may exist would be consequently nullified.

The prisoners' personal circumstances

58. The prisoners' submit that the trial judge was correct in taking into account their personal circumstances including that they were both first offenders and had families with young children at the time of sentencing. The trial judge was correct in considering such factors, but in so doing the trial judge had to consider these factors together with the aggravating factors that existed.

Whether the death penalty should have been imposed

59. In Ume v. The State (supra), the Supreme Court said that the death penalty may be considered appropriate in a wilful murder case:

"...... which is (a) premeditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, "consciousless", "senseless", "pitiless" and "unnecessarily tortuous": see Profitt v Florida 428 US 249 at 255. The crime is committed "by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning". Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender's culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances."

60. We note that in some appeals by prisoners against their sentences, the Supreme Court has commented that the death sentence should have been imposed by the National Court and that the Public Prosecutor was remiss in not appealing the sentences that were imposed. These cases include: Masoliyu Pyakali v. The State (2004) SC771 - the appellant and others had set up a roadblock, waited in ambush and attacked a businessman, his wife and their infant child. They used guns, bush knives and axes to cut up the three family members. The appellant was sentenced to life imprisonment. The Supreme Court dismissed his appeal and stated:

"In these circumstances, the highest penalty for wilful murder -the death penalty was called for. However, the learned trial judge imposed the lower penalty of life imprisonment. If the State cross-appealed against sentence, we could increased the sentenced to the maximum death penalty. We note the Court does have the power under s. 23 (4) of the Supreme Court Act to increase sentences. We are inclined to doing that here. Instead we issue a warning as we have done with some of the cases we have heard and determined in the same circuit that in future, we will not hesitate to do that".

Tony Imunu Api v. The State (2001) SC684 - the appellant murdered an innocent student by smashing his skull with a blunt object and concealed his body. The appellant was sentenced to life imprisonment. The Supreme Court dismissed his appeal and stated:

"We are of the opinion that that this was a worst type of wilful murder. A 14-year-old school student has his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case of warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view. We therefore hold the view that the prisoner should have been sentenced to death.

However, we note that the State did not appeal against the life sentence.....

..... we consider that the National Court should in appropriate circumstances, consider that Parliament had amended s. 299 of the Criminal Code for a purpose. In the light of the prevalent commission of wilful murder in the country, some of which can be categorised as very serious cases of unlawful killings, the National Court must not ignore the concerns of the community at large. We think the time has come for the National Court to seriously consider paying some attention to serious wilful murder cases, and where appropriate, impose the death penalty."

Clement Monumin v. The State (1997) SCR 56 of 1997 (unreported) - the appellant chopped a two-year-old child on the head with an axe and killed him because of an argument with the child's father over a block of palm oil. The Supreme Court refused the appeal against the sentence of life imprisonment and stated:

"When we consider the terrible facts of the present case, that is the premeditated intentional killing of a totally innocent two-year-old child, we are somewhat surprised that the trial judge did not impose the maximum penalty".

61. When comparing the facts of this case to the factors contained in the statement in Ume v. The State (supra) that should be present for the imposition of the death penalty to be appropriate, we are of the view that the facts have met those factors. The murders, especially of the four children, were premeditated, vicious, brutal, in cold blood and of innocent and defenceless or harmless persons, with a complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the lives of those persons. The murders are unthinkable, consciousless, senseless, pitiless and certainly unnecessarily tortuous. Further, as mentioned, counsel for the prisoners has conceded that the murders come within the worst categories listed in Ume v. The State (supra).

62. From our research of the reported decisions, it is apparent that the horrid, tortuous murders of the four children, together with the shooting of the five adults, constitutes the worst wilful murders that have come before this Court. We are satisfied that the severity of the crimes are such that whatever the extenuating and mitigating circumstances, the degree of moral and criminal culpability and the degree of cruelty exhibited is so grave and reprehensible that the prisoners should have been sentenced to the maximum punishment in respect of the murders of the four children, and life imprisonment in respect of the five adults. We are of the view that the sentences imposed by the trial judge were out of reasonable proportion to the circumstances of the crimes and infer that some error must have occurred in the exercise of the trial judge's sentencing discretion. Consequently, the cross appeal is upheld.

Orders

63. The orders of the Court are:

a) the cross-appeal of the Public Prosecutor is upheld.

b) the sentences imposed upon the prisoners by Batari J. on 29th August 2003 at the National Court at Goroka are set aside.

c) in respect of the wilful murders of Junior Jerry Malamamo, Gina Jerry, Bata Jerry and Kenuve Ekebae being counts 5, 6, 7 and 9, the prisoners are sentenced to death.

d) in respect of the wilful murders of Jerry Malamamo, Sopue Aiyuwe, Lainmane Apailope, Malamamo Soboe and Malamamo Alipai being counts 1, 2, 3, 4 and 8, the prisoners are sentenced to life imprisonment.

64. DAVANI J. I have read my brothers' opinion. With respect, I do not agree with the final orders by the majority, that life sentence be imposed for the willful murder of the deceased adults and that the death penalty be imposed for the willful murder of the deceased children.

The Cross-Appeal

65. What is before this Court is the cross-appeal by the Public Prosecutor.

66. The cross appeal by the Public Prosecutor seeks to set aside the trial Judge's sentence on the grounds that the sentence imposed by the trial Judge is manifestly inadequate and insufficient because he did not give enough or sufficient weight to the findings he made.

67. The orders sought in the cross-appeal are that the cross-appeal be upheld, the sentence of life imprisonment be set aside and the death sentence be imposed for both appellants.

68. I respectfully say that the learned trial Judge erred because after making a finding that the both appellants had aided and abetted each other in the killings, that they should have been given the same sentence for all the killings. I refer to the trial Judges findings on conviction, where he said that "both prisoners were found guilty and convicted of aiding and abetting these willful murders." (page 299 of appeal book). A copy of the trial Judge's published reasons on verdict is not in my copy of the Appeal Book. However, the transcripts showing the trial Judge's sentencing summary discusses extensively the evidence and the law on which these findings are made.

69. The basis of the Public Prosecutor's submissions in the cross-appeal, are that despite the trial Judge's very extensive findings of fact and law, that the trial Judge then delivered a sentence that was not consistent with his findings. The trial Judge's findings that the Public Prosecutor is referring to are in his reasons contained at pgs 294, 295 and 296 of the appeal book. Below is an extract which reads:

"In brief, a tribal fight had existed for some time between the deceased Jerry Malamamo's clan on the one side and the prisoners' clans on the other resulting in loss of lives and properties from both sides. Jerry Malamamo's line then attacked the prisoners' and inflicting four deaths with many others injured. Alois Erebebe's father was amongst those killed. The incident in the case before me occurred on Sunday, 21st November, 1999 and was precipitated by a meeting of the prisoners' line over alleged purchase of firearms by Jerry Malamamo. There may be some truth about the firearms deal because the widow Anis Jerry Malamamo said her husband possessed guns she described as an M16 and a SLR.

The meeting resolved to ambush Jerry Malamamo who was at that time in the village for the weekend with his family. He was then the branch manager of National Housing Commission in Goroka. He left for Goroka about 3 to 4 pm with his family accompanied by 11 other relatives. Some distance from the village they came under heavy gun fire. Jerry Malamamo was shot and killed along with four others; two of whom were elderly men aged about 65 and 60 years. The 70 year old was Jerry's father. The others were also hurt with bush knives and four children died from injuries to their heads.

The facts are most disturbing. First, it was premeditated killing. A meeting attended by Taros Togote planned the ambush to kill Jerry Malamamo. Alois Erebebe may have not been present but there can be no doubt from my findings or facts that he knew of the plan and was involved in organizing it. The ambush seemed well organized with professional combat precision. A convenient location was selected taking into account the terrain, the road condition and possible escape routes inferentially to achieve maximum result. Men armed with weapons were then assigned to locations and "laid in wait for their prey".

Second, difference modes of killings were adopted. Those who died from gunshot wounds were killed by a sudden burst of machine gun fire sprayed at the vehicle from hiding. When the vehicle stopped four children were cut on their heads with a sharp bush knife in a ritualistic fashion. Jerry Junior, a boy aged 5 years sustained a wound across the face and 'T' shape would at the back of his head. Jerry Gina, a girl aged 4 years sustained a deep 'J' shape laceration extended from the right eyebrow to the left ear and a deep 'C' shape laceration to the back of her head. Jerry Jerry or Jerry Bata, a boy aged 5 years sustained two parallel massive lacerations on the left side of the head. Kenuve Ekebae, a boy aged 4 years sustained a 'Y' shape laceration to the side of the head and a 'G' shape wound to the back of the head. In each case the knife penetrated the skull and into the brain.

Third, this was a payback killing in the course of a tribal fight. Alois Erebebe had lost his father and Taros Togote had lost three clansmen in an earlier raid by Jerry Malamamo's line. The prisoners had a motive to avenge the deaths on their side exacerbated by the talk of Jerry Malamamo being in possession of firearms capable of exterminating his enemy clan.

The prisoners killed five people with guns in an ambush. They were not satisfied because they then dragged the four children and literally carved up their heads, inflicting deep incise alphabetical letter wounds. I think the children in particular died slowly and in the most horrific painful way.

To kill four innocent children of tender years who had nothing to do with the tribal conflicts of the elders in such a senseless violent manner is what the majority of us Papua New Guinea and no doubt elsewhere can never comprehend. Their deaths were unwarranted and so were the deaths of their five elder relatives. The high level of disrespect and disregard for the God given life is only too well known in this part of the country.

There have been far too many cases of deliberate killings and there seems to be no let up. With both the government and Christian influences permeating the Highlands region for the last seven decades or so, it must be common knowledge that it is a serious transgression of the law to kill another person.

Rampant killings now appear to be a national disgrace. In recent times the media has been inundated with stories of violent killings not only in the Highlands but also in the National Capital and other parts of the country inciting public outrage and disapprobation. The people of this country are literally fed up with all these social events and anti-Christian behavior.

The presence of firearms has also become a major cause of concern. Guns have become too readily available or easily accessible and there is too much of carrying guns around. It is now common knowledge that tribal warfare in the Highlands has shifted from the use of conventional bows and arrows and is now being fought with guns in escalating numbers. The shift has also manifested in tactical gang ambush of anyone considered as an enemy.

Ambush killings is in my view synonymous with terrorist acts and should be appropriately labeled and treated as such. Those who engage in such killings with the use of guns, knives, axes and other designated weapons in premeditated ambush make themselves serious candidates for the death penalty under the Criminal Code."

(my emphasis)

70. The trial Judge's findings were made against the background that appellant Alois Erebebe was a well educated man, with a long distinguished career and service in the PNG Defence Force, a man of good character, conduct and discipline and a renowned sports man.

71. Against that background, the trial Judge also found that Alois Erebebe may have masterminded the killings because the killings arose out of a planned ambush, done with military precision which only a man with military experience could have executed. He was also clearly identified at the scene of the killings armed with an M16 gun. The trial Judge also found that two high powered guns were used in the ambush. However, although, the trial Judge was not sure if both were fired at the same time or only one was used in the killings, and although there was no evidence that Alois Erebebe pulled the trigger or killed any of the children with a knife, he was seen immediately after the shooting and also that he was present when the four children were killed in the second wave of attack that immediately followed the shootings.

72. In relation to appellant Taros Togote, the trial Judge noted that he was a prosperous and affluent villager and that he attained his wealth as a subsistence farmer. The trial Judge found that he carried a homemade gun and although there was no evidence that he fired that gun and also killed one or all of the deceased children with a knife, the Court still found him guilty and convicted him of willful murder after having found that he had aided and abetted in these multiple murders of by standing guard some distance from the ambush site.

73. The trial Judge noted that there were many others involved in this multiple killing of human beings. That the person who held the high powered gun described as a AR-15 had yet to be identified and as such, had yet to be arrested. The trial Judge noted that the prisoners were the only ones who were brought before the Court, seemingly to answer for the group action of their fellow clansmen.

74. The trial Judge treated the penalty for the ambush killings of deceased Jerry Malamamo and his four elder relatives, different to that from the killings of the younger children. He noted that Jerry and the others were killed with a high powered gun whereas the second wave of attack, although part of the same set of facts, was more gruesome and bore the characteristics of a selective killing. The evidence is that the 4 children were taken from the vehicle and ritualistically and savagely, cut in the head with what may have been a sharp bush knife. All the children had alphabetical like wounds carved onto their heads demonstrating the degree of force, pressure applied, hate and brute strength used. The attackers mental and physical vigor and determination was such that the carved out wounds of the 4 deceased children's head penetrated through the cranium, resulting in the release of brain matter.

75. The trial Judge then refers to and discusses willful murder cases decided in the National Court where prisoners have been sentenced to terms ranging from 20 years to life imprisonment, to assist him in determining a penalty fit for this heinous crime.

76. After consideration of all the above, the trial Judge said in his reasons:

"What I have to decide now is whether they each go to the gallows and be hanged by their necks until they are dead or whether they get life imprisonment or whether they get a determinate sentence.

First, I propose to treat the penalty for the ambush killings of Jerry Malamamo and his four elder relatives different from the killings of the younger children.

Jerry and the others were killed with a high powered gun. The second way of attack was part of the same set of facts. However, the killings of the children appear selective and different in character and degree of violence. They were taken from the vehicle and systematically executed with a sharp bush knife. And I have described those injuries earlier.

That was a vicious, cold blooded killing of innocent children whose only wrong were that they were the children of the enemy line." (pages 299, 300 of the appeal book) (my emphasis)

77. The trial Judge said further;

"At the highest they were caught under section 7 of the Code. But there can be no doubt by their active participation even if their exact role is lacking in proof. They were purported leaders and their presence was crucial and without which the offence may have not succeeded." (page 301 of the appeal book) (my emphasis)

78. It is necessary to embark on a general discussion of the history of the principle of aiding and abetting to understand why I say all accused must serve the same terms or receive the same punishment, noting also that it was the trial Judge's findings on aiding and abetting that paved the way for him to find all appellants guilty and to convict them. I discuss these cases again to re-emphasize the position taken by the Courts that after a trial Judge finds several accused guilty and that they aided and abetted each other, then he is deemed to be the, or, a, principal offender and that all accused should serve the same sentence.

79. In R v. ToVarula [1973] PNGLR 140, Minogue CJ in his ruling on a no case to answer submission considered whether accused persons at the scene of the crime assisted the principal offender in killing the then Administrator of the East New Britain Province after which he was charged with willful murder. The trial Judge considered sec. 7(b) (c) and (d) of the Criminal Code (Queensland adopted) at that time which is in similar terms to our present section 7 of the Criminal Code. Minogue CJ said:

"that if the physical presence of the accused at the scene bespeaks encouragement of, and support to, those engaged in the actual crime, the accused may be regarded as a principal. If presence at the Commission of the crime is relied on, as distinct from any act or words or assistance, the presence must be willed, not accidental, and with the intention of encouraging or assisting the commission of the crime charged."

80. As to the proximity of the accused to each other, it was found in State v. Laiam Kiala and Meiri Gomosi [1977] PNGLR 470 that where two accused assaulted a victim, their proximity to each other, their previous actions and continuing presence must have encouraged, facilitated and shielded the assault from interruption and rendered each an aide within the meaning of s. 7(c) of the Criminal Code.

81. As to the nature of the assault, when several persons being present together attack at the same time, the same man, using similar weapons or directing similar blows with the common intention to injure and that man dies as a result of injuries so inflicted, each of the attacker is guilty of willful murder, murder or manslaughter, according to the intent proved, because each of those several person is acting in concert with the others at the time, each did the acting constituting the offence under the subsection (a), and each aided the others under (c) of s. 7 (R. v. Sauplo Masuve (1973) N. 732).

82. The Courts have held that if the accused was acting with a common purpose (s. 8 of the Criminal Code), i.e to kill the deceased as a payback, to come within s. 7(c), intentional encouragement of the crime is sufficient, whether by words, action or even by mere presence. Where presence is prima facie not accidental, it is evidence, but no more than evidence for the jury, but if some of the accused had joined in the common purpose to kill and did no physical act other than that of being involved in being present and walking about the scene, findings of fact depending on the circumstances, may be open that they aided by their presence and readiness to assist (R v. Wendo [1963] PNGLR 217; R v. Abia Tambule [1974] PNGLR 250).

83. These statements of law have been tested in many cases and have withstood the test of time. These principles were argued and found fitting, pertinent and relevant in the appellants' appeal to the Supreme Court against conviction. The Supreme Court bench comprising Cannings, Kariko and Kassman .JJ, published in Alois Erebebe & Taros Togote v. The State (2011) SC 1135 dated 2nd December, 2011 held, amongst others, that the trial Judge correctly applied s. 7 of the Criminal Code in finding that, though it was not proven that either of the appellants killed any of the deceased, each was guilty under Criminal Code, Section 7.

84. The Supreme Courts findings in SC 1135 are relevant towards the role played by the appellants in these horrendous killings. And I will emphasize also that the Supreme Court in its discussion, did not differentiate between who killed the adults and who killed the children but was focused on the law on aiding and abetting and how each appellant was caught by the law and by the role each played in the multiple killings.

85. The Supreme Court dismissed all grounds of appeal in relation to alibi, identification, uncorroborated testimonies and inconsistent evidence, and found that the trial Judge had not erred on any one of those grounds pleaded.

86. In both the National Court trial and the appeal on conviction to the Supreme Court, both Courts unanimously found that both appellants aided and abetted in the killing of the nine deceased persons. Again, the Supreme Court was faced with the reality that although there was no direct evidence on the actual role played by all accused in the killings, that each was equally responsible. (my emphasis)

87. There have been calls by the Supreme Court in previous cases to increase sentences where the nature of the offence was very serious, and to even impose the death penalty. I refer to Tony Imuni Api v. the State (2001) SC 684 and Masoliyu Puakali v the State (2004) SC 771 where the Supreme Court when considering appeals against conviction, expressed their concern at the trial Judge not imposing the death penalty and said that if the State had cross-appealed against sentence, the Supreme Court would have increased the sentence to the maximum, being the death penalty.

88. In my view, where crimes are committed as a single chain of events, the penalty should be the same, notwithstanding the degree of brutality exhibited by an accused over certain victims. The fact that the trial Judge had made findings confirming participation by all accused in the commissioning of the offence, and later confirmed by the Supreme Court, is the threshold on which to mete the same penalty for all accused.

89. Again, in Wesley Nobudi v. the State (2009) SC 999, the Supreme court comprising Davani, David and Makail JJ, an appeal against sentence where appellants were convicted of willful murder after having aided and abetted each other, and were sentenced to life imprisonment because they carried out the killing during an armed robbery, the Supreme Court held that because the circumstances of the offence were so serious, that the appellants could have been sentenced to death. The Supreme Court also stated that it could even quash the life sentences imposed and substitute with the death penalty because of the presence of serious aggravating factors. The Supreme Court noted that an innocent, unsuspecting human life was taken by a gun shot fired at close range by persons who had no concern at all for the victim, but to just shoot them in cold blood. The Supreme Court found and held that the appellants in that case ought to be grateful in that the learned trial Judge did not impose the maximum penalty because the case before the trial Judge was of the serious kind which warranted the death penalty.

90. In Wesley Nobudi v. the State (supra), the Court relied on Gimble v. the State [1988 – 89] PNGLR 271, where it noted that the general rule which is that all participants in the crime will be sentenced in the same manner, notwithstanding that a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the getaway vehicle. All are equally guilty, because without each playing his full part, the crime could not have been perpetrated.

91. The Supreme Court in Gimble v. the State (supra) said in relation to participation by accused persons found guilty under s. 7 of the Criminal Code:

"The general rule is that all active participants in the crime should be sentenced on the same basis. ..." (my emphasis)

Did the trial Judge err?

92. The sentencing power of the Court is an exercise of judicial discretion. In an appeal against sentence imposed by a trial Judge, the Supreme Court's sentencing discretion may be exercised only where it is shown that the trial Judge has fallen into an error which is identifiable. (William Norris v. the State [1971] PNGLR 605).

93. Section 23 (4) of the Supreme Court Act gives the Supreme Court the power to determine an appeal against sentence. It reads:

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

94. It does so, guided by the relevant principles of law on the exercise of discretion, as enunciated in William Norris v. the State (supra).

95. On perusing the trial Judge's reasons for decision and the manner in which he exercised his discretion when delivering sentence, the trial Judge accepts and finds that both appellants were leaders and that their presence was crucial without which the offence may not have succeeded (page 301 of the appeal book). The trial Judge also calls for strong deterrent sentences that will not only punish the prisoners but which will send a warning to others who are like-minded. (page 301 of appeal book). His Honour then said:

"Balancing all those factors, I conclude that the ultimate death penalty is not the only penalty that can be given."

96. His Honour makes this comment after he found that the killing of the adults with a high powered gun and the killing of the children "... was part of the same set of facts." However, he finds further that the killings of the children appears to be selective because of the degree of violence exhibited because they were taken from the vehicle and systematically executed with a sharp bush knife. (page 300 of appeal book).

97. Having made those findings and after consideration of several decided cases, his Honour found that the case before him involved "... multiple deaths and the subsequent killing of the children raise it to (sic) the worst type of case" (page 301 of appeal book).

98. Clearly, his Honour found the killings to be of the worst type. However, I find his Honour then erred by making a distinction in the manner in which the adults and the children were killed especially when there was no direct evidence on what each appellant actually did in this gruesome affair. (my emphasis). The fact that they have both been found guilty under s. 7 of the Criminal Code and the fact that as the trial Judge said "at the highest they were caught under s. 7 of the code. But there can be no doubt by their active participation even their active role is lacking in proof. They were purported leaders and their presence was crucial and without which the offence may have not succeeded," that the trial Judge should immediately, hand down the same sentence, for the killings of both the adults and the children.

99. In that regard, I find the trial Judge has erred.

100. The circumstances of the crime are such that all appellants should receive the same sentence as they both aided and abetted each other and are equally responsible for the death of the nine people, which are inclusive of the 4 children. In fact, with respect, it does not make sense if, after the Court had found each appellant to have actively participated, with no proof of their exact role in the killings, to then differentiate the sentencing.

101. The Courts have almost always delivered the same sentence for all accused where, whilst aiding and abetting each other in perpetrating a crime, a life or lives are lost. And I believe that has been the trend, unless of course, there is clear evidence of the role played by each accused, where each accused is sentenced based on the role he played.

102. For example, in The State v. Martin Herman, Paulus Mautu, Luke Philip Boion, Bolton Darius Tapune and Vincent Brudal (1997) N1656, all accused entered a home at night to assault a victim. They held up those sitting on the verandah, then broke the house door down after the victims fled indoors. They then assaulted 2 men and inflicted upon them multiple lacerations and knife wounds to various parts of their body. The trial Judge found that it did not matter which accused did the beating and the wounding because they were all acting together, aiding and abetting.

103. All accused received the same sentence which was a term of years, suspended on condition, one of which was payment of compensation by all accused to the victims.

104. That case can be distinguished with The State v. Edward Tonde, Walter Yogana, Tana Barinda and John Taylor Anani (No. 2) (2001) N2299, where, after a trial, the court found all accused guilty of the robbery of a boat. The Court held that they had aided and abetted each other. There was clear evidence of the different role played by each accused. It was on this basis that the Court decided that each accused receive a different sentence, i.e Edward Tounde received a sentence of 20 years in hard labour because he had the key to the cabin on the boat where the monies were held and so was able to open the cabin door to give access to the other accused who then stole the money held in the cabin. Whereas, John Taylor Anani, notwithstanding his pleas of being old i.e. 50 years, was sentenced to 17 years because he gave his gun to the robbers to use in the robbery.

105. In this case, the role each accused played is not known, however, they were both part of the group that shot the adults and then, grossly disfigured and killed the children, using a sharp knife.

106. The 5 men Supreme Court in Denden Tom v. the State (2008) SC 967, when referring to and relying on Steven Loke Ume & Ors v. the State [2006] PGSC 9; SC 836 dated 19 May 2006, said this;

"53. Eventually, the Court turned to the case before it, which was a case of willful murder by a group of men and said it was necessary for the Court to consider what part each of the offenders played before arriving at a sentence for them. In arriving at the view, the Supreme Court stated what was always the law that, where two or more people are charged with committing the same offence, it is necessary to consider the part each of them played in the commission of the offence, even though ss. 7 and 8 of the Code make them equally responsible and can be sentenced as principals. This is on the basis of the well accepted principle that the punishment for an offence must fit the crime and the part each offender has played toward its commission, where more than one person in involved in the commission of the offence."(my emphasis)

107. I reiterate again that at a trial involving several accused and when deliberating on an appeal against sentence involving several accused, where the issue of the degree of participation by each accused and appropriate sentences is considered, that the trial Court or the Supreme Court must continuously remind itself of the actual, physical involvement in the crime by the accused, which would then assist the Court in determining sentence for each accused. In a situation such as this where the role each accused played in the killing is not known but there is a finding of guilt because the accused have aided and abetted each other, that the proper finding to make under those circumstances is that they all serve the same sentence regardless of the nature of the injuries. I find in all probability that the trial Judge has indeed erred in the manner in which he decided on sentence.

108. Therefore based on the above, the sentence imposed by the trial Judge must be quashed and substituted with other orders, being the same sentence to be imposed upon all accused, for the killings of all the victims.

Formal Orders

109. The formal orders are;

1. The cross appeal by the Public Prosecutor is upheld;

2. The sentences imposed upon the prisoners on 29th August, 2003 at the National Court Goroka are set aside;

3. All prisoners are sentenced to death, in respect of the willful murders of Junior Jerry Malamamo, Gina Jerry, Bata Jerry, Kenuve Ekebae being counts 5, 6, 7 and 9 on the indictment and in respect of the willful murders of Jerry Malamamo, Sopue Aiyuwe, Laimane Apailope, Malamamo Soboe and Malamamo Alipai being counts 1, 2, 3, 4 and 8 on the indictment.

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Office of the Public Solicitor: Lawyers for the Appellants/Cross Respondents
Office of the Public Prosecutor: Lawyers for the Respondent/Cross Appellant