Kombuk v State [2016] PGSC 62; SC1544 (27 October 2016)

SC1544

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 42 OF 2014

GELU KOMBUK
Appellant

V

THE STATE
Respondent

MT Hagen: Makail J, Geita &Nablu JJ
2016: 24, 27 October

CRIMINAL LAW – conviction – application for review of conviction for wilful murder – whether alternative verdict available to the Court – whether errors of law were made in the finding of conviction

CRIMINAL LAW – sentencing – application for review of sentence of 30years imprisonment for wilful murder– whether any identifiable error made by sentencing Judge – whether sentence grossly excessive.

CRIMINAL LAW – remission for prisoners – such powers conferred on the Correctional Service Commissioner – no equivalent provision in homicide cases.

Cases cited:

The following cases are cited in the judgment:

Devlin David v The State (2006) SC 881
John Beng v The State [1977] PNGLR 115
Manu Kovi v The State [2005] SC 789
William Norris v The State [1979] PNGLR 605

Counsel:

L Siminji, for the Appellant
J Kesan, for the Respondent

27 October, 2016

1. BY THE COURT: Gelu Kombuk seeks review by the Supreme Court of his conviction and sentence of 30 years imprisonment without remission imposed by the National Court following his conviction on one count of wilful murder contrary to Section 299 of the Criminal Code.
   
2. He was convicted on 4^th November 2014 after a trial at Minj, Jiwaka Province for his involvement in an incident of punching and kicking at Tolu market, near Banz on the afternoon of 20 July 2013. When the deceased John Siwi was confronted by Topo Kombuk and punched to the ground the appellant and his two other brothers joined in and assaulted the deceased and left him unconscious. John Siwi died five weeks later as a result of injuries sustained from the attack.
   
3. The trial Judge, Justice Godwin Poole, convicted the applicant and a co-accused, Bari Kombuk of wilful murder. His Honour sentenced them as follows:Gelu Kombuk 30 years without remission; Bari Kombuk 30 years with remission.
   
4. This judgment is for Gelu Kombuk alone as the co-accused/appellant Bari Kombuk has since escaped and his appeal summarily dismissed upon application by this Court.
   

Grounds for appeal

5. A total of seven grounds of appeal were relied upon thus:
   
   1. The offence committed was kick and punch related and no weapons or hard objects were used;
   2. No intention to kill;
   100. The person who committed the actual offence (kick and punch) is Mr Topo Kombuk;
   4. Sentence is too excessive;
   5. Thirty years without remission is too harsh ( first of its kind for a National Court’s decision);
   6. Not enough evidence for conviction;
   7. The court did not consider the deceased’s blood brother’s evidence.
      
6. Appeal grounds 1,2,3,6 and 7 touch on reasons why the conviction should be overturned whilst grounds 4 and 5 concerns the sentence. Mr Siminji, for the appellant, submitted that the trial Judge made a number of identifiable errors in the exercise of his discretion as to conviction. The Public Prosecutor, Mr Kesan responded by submitting that the State concedes to the errors identified by the appellant. The errors identified and conceded too by State are in the following: The tenor of the indictment and the resulting findings of court point conclusively to the spirit and requirements of murder under Section 300 (1) (a) Criminal Code and not wilful murder under Section 299 of the Criminal Code. The gist of the Courts’ primary findings was that the said assault was likely to endanger human life and was also intended to cause grievous bodily harm on the deceased. Such findings were a departure from Section 299 of the Criminal Code requirements necessitating the invocation of an alternative verdict of manslaughter under Section 302, which His Honour erred to consider in convicting the appellant the way he did.
   
7. Mr. Siminji further submitted that His Honour erred in law when he failed to state and identify with clarity the elements of the offence of wilful murder as charged. This proposition is supported by case authority in Devlin David v The State (2006) SC 881:
   

“It is an integral part of the judge’s decision making process in a criminal trial to state clearly the elements of the offence. If the elements are not stated and applied, an error of law will be made.”

8. Our perusal of court transcripts and the written judgment on verdict indeed reveal that no reference as to the elements of wilful murder were made by the trial Judge. It follows that defence contention is founded in that an identifiable error of law was made. Besides other conventional reasons for this requirement, the lack of it has clearly manifested itself in this appeal in that the court meandered off into making findings other than the one in the terms of the indictment. The repetitive use of the findings which were murder by definition in several places in the court transcript and prepared judgment in our view ruled out any suggestions of a slip in the trial judge’s reasoning process.
   
9. Mr. Siminji submitted that in the circumstances Section 315 of the Criminal Code was available to the trial Judge. However since it’s not available as an alternative verdict, has the court fell into an identifiable error when it returned a verdict of guilty of wilful murder?
   
10. Mr. Kesan did not take issue with the grounds of appeal on conviction by the appellant however submitted that the tenor of the trial Judge’s findings on conviction were manslaughter by nature (Section 302 Criminal Code) hence an alternative verdict of guilty was available to the trial Judge.
    
11. In light of the State conceding to all appeal grounds on conviction and all such grounds successfully made out by the appellant, appeal grounds 1,2,3,6 and 7 are upheld.
    
12. Grounds 4 and 5 touch on the Courts’ exercise of discretion on sentence. The law governing appeals against sentence is founded on Section 23 (4) of the Supreme Court Act. (William Norris v The State [1979] PNGLR 605).
    
13. Mr Siminji contends that notwithstanding, the Courts’ unfettered exercise of discretion on sentence they are best exercised in accordance with judicial principles to guide it into arriving at a just and fair sentence, reflecting the given circumstances in a case before it. He submitted that two identifiable errors manifested themselves in this case when the trial Judge sentenced the appellant to 30 years, a sentence which was not supported by his findings. Thirty years (30) he said falls within Category 2 of the sentencing tariffs in Manu Kovi v The State [2005] SC 789 for wilful murder cases in circumstances of pre-planning, vicious attack, weapons use and a strong desire to kill. None of those circumstances were present in the appellant’s case. Secondly, the trial Judge erred by curtailing the appellants’ right to remission, powers which he did not have, according to Mr Siminji. Such powers to accord prisoners remission only lie with the Correctional Service Commissioner pursuant to Section 120 (1) of the Correctional Service Act 1995. On their part, the State conceded to all the appeal grounds on conviction and sentence.
    

Court determination

14. Having considered the competing submissions of counsel, we have concluded, with respect that the learned trial Judge made some, but not all, of the identifiable errors contended for by the appellant.
    
15. We consider that in hearing an application for review of convictions, the Supreme Court should apply the same principles it applies when hearing an appeal against convictions. We therefore, invoke powers given to the Supreme Court under Section 155 (2) (b) of the Constitution:
    

“(2) The Supreme Court—

(b) has an inherent power to review all judicial acts of the National Court;”

16. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from Sections 23(1)of the Supreme Court Act, which state that:
    

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.

(4) 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.

17. That is, to succeed in an application, an applicant must establish that:
    
    • the verdict is unsafe or unsatisfactory, or

• the conviction entailed a wrong decision on a question of law, or
  • there was a material irregularity in the trial.
    

18. As to the question of alternative verdicts the trial Judge has ruled that it was not necessary to consider same. That finding is perfect so far as the indictment relates to wilful murder properly supported by evidence. With respect we are of the view that from the evidence presented to him and the resulting findings of an alternative verdict was available to the Court. In this case we consider murder under Section 300 of the Criminal Code most appropriate as opposed to Section 315 of the Criminal Code as submitted by Mr Siminji for the appellant and Section 302 of the Criminal Code by Mr Kesan. It is ironic for the appellant to argue that the element of intention to kill was not successfully made out in this case when on the other hand, he is conceding that it was, by inviting this Court to settle on Section 315 of the Criminal Code and have his clients’ conviction overturned. Surely the appellant cannot have it both ways and so this contention must fail in our considered view.
    
19. We are also of the considered view that the errors identified although serious do not warrant the whole of this case futile, resulting in full acquittal of the appellant. Instead we will proceed to correct the anomaly with an alternative verdict.
    
20. Having reached that conclusion, it is appropriate to invoke the principles allowing the Supreme Court to set aside the verdict on conviction on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; which are set out in Section 23(1) (a) (b) (c) of the Supreme Court Act.
    
21. We invoke Section 23(1) of the Supreme Court Act and Section 155 (2) (b) of the Constitution and set aside the verdict on conviction of wilful murder and substitute with a verdict of murder.
    

22. As to the appeal on sentence we have concluded that:

• The primary Judge made an identifiable error in imposing a sentence of 30 years as His Honour arrived at that sentence by treating the case as wilful murder which were not supported by his findings. This vitiates the sentence and in all the circumstances we consider that an alternative sentence is more appropriate.
  
• We note that the trial Judge did not refer to the provision of the relevant law, be it the Constitution, the Criminal Code or any other Statute conferring power on the Court to curtail the prisoner’s right to remission. We make mention of the source of power for the exercise of power on remission as we note that is the recent amendment to the Criminal Code, in misappropriation cases, Section 383A (1A) (a) of the Criminal Code confers power on the Court to impose a sentence of “imprisonment for a term of 50 years without remission and without parole, if the property misappropriated is of a value of K1 Million or upwards, but does not exceed K10 Million;...”There is no equivalent provision in homicide cases(Emphasis ours).
  
• The power to grant prisoners remission is expressly conferred on the Correctional Service Commissioner under Section 120 (1) of the Correctional Service Act 1995. Such powers are given to the Correctional Service Commissioner for the smooth running and administration of prisoners with minimal disruption. Notwithstanding, the unfettered powers given to the Court by Section 155 (4) of the Constitution we are of the view that this Court should be slow to intervene unless it is absolutely necessary to do so. In this appeal the trial judge has curtailed the prisoners’ right to remission. For the moment such punishment was made outside the spirit and intent of Sections 18 and 19 of the Criminal Code. Furthermore Section 37 (2) of the Constitution was violated in that such penalty was not one proscribed by a written law: an identifiable error is manifested.
  

22. We invoke Section 23(4) of the Supreme Court Act and substitute a sentence of 15 years.
    

Conclusion

23. We grant the application and substitute, the conviction and sentence imposed by the National Court.
    

ORDER

(1) The conviction passed by the National Court is quashed and substituted with an alternative verdict of murder.

(2) The sentence passed by the National Court is quashed and substituted by the sentence of 15 years imprisonment.

(3) The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment setting out the details of the conviction and sentence.

Judgment accordingly,

______________________________________________________________
Public Solicitor : Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent