Hahuahori v State [2016] PGSC 27; SC1509 (28 June 2016)

SC1509

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO.11 OF 2002

BETWEEN:

TONNY P. HAHUAHORI

Appellant

AND:
THE STATE
Respondent

Waigani: Sakora & Sawong; JJ.

2016: 28^th June

CRIMINAL LAW – Appeal Against Conviction And Sentence – Powers of Appellate Court – Grounds of Appeal not particularized – S.22 Supreme Court – Order 7 Rules 8 & 9 Supreme Court Rules 1984 – Grounds of Appeal so vague & so wide – Appeals dismissed.

Cases Cited:

Bernard Touramasong & Ors vs The State [1978] PNGLR 443
John Beng vs The State [1977] PNGLR 115
Karo Gamoga vs The State [1981] PNGLR 443
Paulus Pawa vs The State [1981] PNGLR 498
State vs Tom Morris [1981] PNGLR 493
William Noris vs The State [1979] PNGLR 605

Counsel:

P. N’Dranoh, for the Appellant
C. Sambua, for the Respondents

Introduction

28^th June, 2016

1. SAKORA J and SAWONG J: This is an appeal by the appellant against both conviction and sentence.

2. The appellant was indicted with one count of murder contrary to section 300(1) (a) of the Criminal Code Act, chapter 262 (herein refer to as “the Code”).

Background

3. The brief facts of the case was that on the afternoon of the 8^th day of March 1999 at Japaraka No.1 village, Kubalia, East Sepik Province, the Appellant and several other man gathered together at that particular village and planned to commit an arm robbery the next day. At that time they were in possession of a fire arm. After planning the arm robbery the Appellant and his accomplices dispersed.

4. Early the next day, that is on the 9^th of March, 1999, the Appellant and two others who were armed with two shot guns went to nearby road and waited for passing PMVs travelling along that road. A PMV truck owned by Hama Brothers from Aupik village, Maprik, loaded with passengers travelling from Maprik inbound towards Wewak. The deceased Freddie Bill was one of the passengers travelling on that PMV. As the truck was passing Japaraka No.1 village, the Appellant and his accomplices attempted to hold it up by standing in the middle of the road and pointing their guns at the driver. However, the driver upon seeing them kept on driving. The Appellant and his friends then fired shots from the guns they were armed with into the truck where the passengers were seated. The deceased was one of the passengers who received pellet wounds. He was seriously injured and was taken to Boram hospital but died a day later at the hospital. A post mortem report revealed that the deceased died as a result of bullet wounds he received on his head.

5. On 12^th February 2002, the appellant appeared at the National Court sitting in Wewak before his Honour Kandakasi J. On arraignment he pleaded not guilty to the charge and a trial was conducted. He was however, found guilty, convicted and sentenced to life imprisonment.

6. He has appealed against his conviction and sentence.

Grounds of Appeal

7. The Appellant’s grounds of appeal are set out in the Notice of Appeal reads:

(a) He is innocent to be convicted for the crime of murder and

(b) The life imprisonment is not fair according to the charge of murder.

Appeal Against Conviction

8. Appeals against convictions are governed by Section 22 of the Supreme Court Act, chapter 37 (”the Act”). It reads:

“CRIMINAL APPEALS.

1. A person convicted by the National Court may appeal to the Supreme Court–

(a) against his conviction, on any ground that involves a question of law alone; and

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

(c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal–

(i) that involves a question of fact alone; or

(ii) that appears to the Supreme Court to be a sufficient ground of appeal; and

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

9. Section 22 of the Act requires grounds to be separated between those alleging errors of law and those alleging errors of fact. This is usually because an appeal lies as of right in the case of the former and by way of leave in the case of the latter. Such distinctions are not always easy to make or maintain and in many cases a point will often entail both questions of mixed fact and law. This provision provides the right of appeal to an Appellant.

10. Section 22 must be read together with O.7 rule 8 of the Supreme Court Rules 1984. This rule, inter alia, prescribes what a Notice of Appeal should contain or state. O.7 Rules 8 and 9 of the Supreme Court Rules 1984 (now order 7 Rules 9 & 10), read:

“8. The notice of appeal shall –

(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and
(b) state whether the whole or part only and what part of judgment is appealed from; and
(c) state briefly but specifically the grounds relied upon in support of the appeal; and
(d) state what judgment the appellant seeks in lieu of that appealed from; and
(e) be in accordance with form 8; and
(f) be signed by the appellant or his lawyer; and
(g) be filed in the registry.

9. Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in Law.

11. Order 7 Rule 8(c) requires the Appellant in his or her Notice of Appeal “to state briefly but specifically the grounds relied upon in support of the appeal. In our view, this requires the Appellant to particularise succinctly/clearly the grounds of appeal in the Notice of Appeal.
12. In the present case, the ground against conviction is so general and so vague it is hard to discern whether the appeal against conviction relates to question of law alone or is on question of mixed fact and law or involves a question of fact alone.

13. In our view, this raises the issue of whether the Notice of Appeal is competent in so far as it relates to the grounds of appeal against conviction and sentence. Whilst we note that the parties have not raised this point in their submissions, nevertheless in our view, in order for a notice of appeal to be competent it must set out the grounds of the appeal succinctly. In our view a Notice of Appeal is incompetent if it is required to raise an error of law, or error of mixed law and fact, or fact alone and it fails to do so.

14. The Supreme Court has inherent powers to ensure that its processes are not abused. It has inherent power to strike out notices or grounds which fail to disclose, where necessary, an error or are otherwise unsustainable or which constitutes an abuse of the Court process or otherwise being frivolous or vexatious.

15. A useful guide maybe found in Victoria vs Baken [1998] 4VR 269 at 285-286 where Philips JA gave this valued advise to the pleader:

“Ground 1 was as follows;

1. The Judge erred in holding that the Appellant had contravene S37 of the Equal Opportunity Act 1995(The Act).” Of the other 16 grounds, 12 commenced with the phase “The Judge erred in finding that” or the phase “the judge should have found that”. Under cover of the former, nearly every stated conclusion of the judge was challenged. For instance,
   
2. Ground 2 read;
   

“The Judge erred in finding that the Appellant directly discriminated against the Respondents in contravention of S37 (2) of the Act.” None of this serves to inform. The difficulty and uncertainty inherent in this form of stating grounds of appeal was explored by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 510, a judgement which, if I may say so, would repay study by all those undertaking to draft a Notice of Appeal (as also the judgement of Brooking J in Motor Accidents Board v Coutts [1984] VicRp 69; [1984] VR 790 at 794-8 in which the statement of grounds (which were grounds of review) was criticised after a most comprehensive review of the Victorian cases; See also His Honour’s criticism of the grounds as stated in Victorian Work Cover Authority v CE Heath Under Writing and Insurance Pty Ltd (1994) 7 VAR 1 at 7-8).

More specifically, as Ryan J pointed out in Lambroglou, to allege error in the drawing of some particular conclusion (or as in that case to pose the question whether error lay in the drawing of that conclusion) will often simply cloak what it is sought to put in issue. That the judge erred in making some particular finding, if of fact, may mean, inter alia, that there was no evidence at all to support that finding, or that the primary facts were not proved from which an inference was drawn, or that though there was evidence of those primary facts that evidence ought to have been rejected, or that the inference, though open, ought not to have been drawn. Where the finding under attack is in truth of mixed fact and law, the allegation of error in arriving at the stated conclusion may conceal a contention that the judge mis-understood the law or, though properly understanding the principles, misapplied them; and whereas here a statute is involved, the possibilities are often multiplied. This notice of appeal did nothing at all to resolve those difficulties.

Indeed, what Ryan J dubbed in Lambroglou (at 529) “the irritating tendentious formulary which recurs in the prefatory words” of these so-called grounds of appeal is such as to suggest that the notice of appeal was framed in ignorance of the provisions of s130 of the Act under which the right of appeal arises.

16. Similar comments were made in HJ Heinz Company Australia Ltd v Turner [1998] 4VR 872.

17. In Motor Accidents Board (Victoria) v Coutts [1984] VicRp 69; [1984] VR 790, the Notice of Appeal was simply stated:

“That the motor accidents tribunal was wrong in law in holding that the respondent was entitled to be paid by the Applicant the sum of Twenty Thousand Eight Hundred Dollars ($20,800.00).”

18. There Brooking J held that the ground so formulated was so wide that it was not truly a ground of appeal at all, as it gave no indication of the nature of the error.
    
19. Whilst these authorities are not binding, nevertheless, we are of the opinion that the principles set out in these authorities are relevant and appropriate to adopt and apply.
    

20. In this case, as formulated the ground against conviction is so wide that, in our view, it is not truly a ground of appeal at all, as this gives no indications of the nature of the errors alleged to have been made by the trial judge. It is clear to our mind that, the ground of appeal is such as to suggest that the Notice of Appeal was framed in ignorance of the provisions of S.22 of the Act, and O.7 Rules 8 & 9 of the Rules from which the right of appeal arises.

21. In our view, to assert that “I am innocent to be convicted for this offence” is to give no indication of the nature of the error alleged to have been made by the learned trial judge in convicting the Appellant. It is not clear nor precise whether this ground is premised upon an error of law or mixed law and fact or fact alone. It is hopelessly so wide that it does not amount to a ground of appeal at all.

22. In so far as the appeal against sentences is concerned, for the same reasons we have given above, this ground cannot be sustained. It is stated “life term imprisonment is not fair according to the charge of murder”. Again this ground is so general, so vague and so wide that it is impossible to discern what is the error alleged to have been committed either directly or indirectly by the learned trial judge in imposing the sentence that he did.

23. For these reasons we dismiss the appeal and confirm the conviction and sentence imposed.

____________________________________________________

Appellant In-person/Public Solicitor: Lawyer for the Appellant

Public Prosecutor: Lawyer for the Respondent