Morea v State [2020] PGSC 47; SC1957 (12 May 2020)

SC1957

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SCREV 79 OF 2017

BETWEEN:
KOHU MOREA
Appellant

AND:
THE STATE
Respondent

Waigani: Gavara-Nanu, Makail & Neill JJ
2019: 27^th June
2020: 12^th May

APPLICATION FOR REVIEW – Review of conviction – Leave to review sought at hearing – Reasonable explanation for delay – Proposed grounds demonstrate arguable case – No prejudice caused – Leave granted – Constitution – Section 155(2)(b)

APPLICATION FOR REVIEW – Review of conviction – Procedural fairness – Full protection of the law – Original charge of murder changed to a charge of manslaughter – Convicted on an alternative charge of unlawful grievous bodily harm – Claim of denial of fair trial – Whether justice miscarried – Constitution – Section 37 – Criminal Code – Section 319

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s.155(2) (b) – Accused - Charge – Unlawful killing – Criminal Code; s. 302 – Plea of not guilty – Trial – Not guilty of unlawful killing - Guilty of unlawfully doing grievous bodily harm – Sentence – 7 years imprisonment.

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s. 155(2) (b) – Accused - Charge - Indictable offence – Right to bail - Bail Act; ss. 15, 17, 18 and 21 – Conditions of bail – Grounds to revoke bail.

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s. 155 (2) (b) – Accused - Charge - Indictable offence – Trial – Basic and fundamental rights - Right to a fair trial – Procedural fairness - Constitution, ss. 37 and 142 (2), - Right to choose a lawyer – Right to call witnesses – Right to cross-examine – Natural justice – Exercise of power by the primary judge.

APPLICATION FOR REVIEW – Practice & Procedure – Constitution; s. 155 (2) (b) – Offence charged – Manslaughter – Not guilty of offence charged – Guilty of a lesser offence of unlawfully doing grievous bodily harm.

APPLICATION FOR REVIEW – Practice & Procedure – Sentence – Maximum penalty – Sentencing tariffs for manslaughter applied to determine sentence.

Cases Cited:
Papua New Guinea Cases

Application by Anderson Agiru [2002] PGSC 23; SC686
Application by Ludwig Patrick Schulz (1998) SC572
Avei v. Maino [2000] PNGLR 157
Avia Aihi v. The State (No.I) [1981] PNGLR 81
Avia Aihi (No.2) [1982] PNGLR 44
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342
Hen Kuru v. Was Kombra (1981 (N292 (L)
Independent State of Papua New Guinea v. Kofowei [1987] PNGLR 5
John Tolna & Ors v. Paul Ari [1980] PNGLR 23
Joseph Maruk [1980] PNGLR 507
Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218
Kayo v. Pawa (2015) SC1469
Kereyal v. Police Commissioner (1966) N1437
Kitogara Holdings v. NCDC [1988] PNGLR 346
Laurie Kemuel & Kopol Kepao (2016) SC1640
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd [2011] PGSC 22; SC1120
Les Curlewis v. David Yuapa (2013) SC1274
Manu Kovi v. The State (2005) SC789
Michael Newell Wilson v. Clement Kuburam (2016) SC1489
Ombudsman Commission v. Yama (2004) SC747
Paia Lifi v. Phillip Dege (1981) N291 (M)
Premdas v. The State [1979] PNGLR 329
Public Prosecutor v. Konis Haha [1979] PNGLR 205
Public Prosecutor v. Tardew [1986] PNGLR 91
Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952
Re Michael Thomas Somare [1981] PNGLR 265
Re: Section 365 of the Income Tax Act; Reference by the Principal Legal Adviser SCR482
Steven Loke Ume v. The State (2006) SC836
The State v. Mogo Wonom [1975] PNGLR 311
The State v. Transferees (2015) SC1451
The State v. Kofowei [1987] PNGLR 5
The State v. Mana Turi [1986] PNGLR 221
University of Papua New Guinea v. Ume More & Ors [1985] PNGLR 48
Ure Hane v. The State [1984] PNGLR 105
William Norris v. The State [1979] PNGLR 605

Overseas Cases:

Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16
General Electrics Co. Ltd v. Price Commission [1975] ICR 1
House v. The King (1936) 56 CLR 499
Jones v. National Coal Board [1957] 2 QBD 55

Counsel:

Z. Gelu, for the Appellant
D. Mark, for the Respondent

12^th May 2020

1. GAVARA- NANU J: Before the Court is an application by the appellant (applicant) made pursuant to s. 155 (2) (b) of the Constitution seeking review of his conviction by the National Court in its sittings at Kwikila on 2 March, 2017. The applicant was convicted of unlawfully doing grievous bodily harm to one Rei Kohu on 8 November, 2015 at Boera village in the Hiri West, contrary to s. 319 of the Criminal Code.

2. The applicant was charged with unlawfully killing (manslaughter) Rei Kohu contrary to s. 302 of the Criminal Code. He was tried on the charge after he pleaded not guilty. He was found not guilty of manslaughter but guilty of unlawfully doing grievous bodily harm to Rei Kohu under s. 319 of the Criminal Code, which carries the maximum penalty of 7 years imprisonment. The applicant was sentenced to 7 years imprisonment.

3. Section 302 of the Criminal Code creates the offence of manslaughter. The prescribed maximum penalty for this offence subject to s. 19 is life imprisonment.

4. Section 319 of the Criminal Code creates the offence of unlawfully doing grievous bodily harm. The prescribed maximum penalty for this offence subject to s.19 is seven years imprisonment.

5. The applicant needs to obtain leave before he can have his conviction reviewed. Thus, it is convenient to address the issue of leave at this juncture. Whilst the applicant has the right to invoke s. 155 (2) (b) of the Constitution for his review, leave is a discretionary matter and it is entirely up to the Court whether to grant him leave or not. However, the discretion to be exercised by the Court being judicial in nature, it must be exercised judicially and on proper principles. See, Avei v. Maino [2000] PNGLR 157 and Application of Ludwig Patrick Schulz (1998) SC572. That said, the need for the Court to exercise its discretion is not a caveat to the exercise Court’s inherent supervisory power to review, if there is a clear manifestation of injustice and where there is an arguable case on the merits. See, Avia Aihi v. The State [1981] PNGLR 81. The Court’s discretion in this regard is unfettered. The onus is on the applicant to show convincing reasons to invoke the Court’s review jurisdiction. See, Avia Aihi v. The State (No. 2) [1982] PNGLR 44 at 45. The applicant must show among others that he had lost his right to appeal or leave to appeal. This is a condition precedent to a review under s. 155 (2) (b) of the Constitution. See, Application by Anderson Agiru [2002] PGSC 23; SC 686 and Avia Aihi (No.2) (supra).

6. If there is delay in making an application, the applicant must have a reasonable explanation. The Court’s power being plenary with its unfettered discretion, the Court may still grant leave even where delay is inordinate, if it is in the interest of justice to do so and if there are exceptional circumstances of special gravity and where there is a clear manifestation of injustice. See, Lae Bottling Industries Ltd v. Lae Rental Homes Ltd [2011] PGSC 22; SC1120. In that case, although delay was about two years, leave was granted because the Court found that the decision of the National Court affected the applicant’s interests directly. He was not served with the court documents, and he became aware of the decision much later after the decision was delivered. In Avia Aihi (No. 2) (supra), in which I had the misfortune of representing the State, the Supreme Court by a majority of 3 to 2 held that, in spite of the initial fourteen months delay in applying for leave to appeal her conviction in Avia Aihi (No.1) (supra), which the Supreme Court dismissed, then more periods of delay to apply for review under s. 155 (2) (b), it had inherent power under s. 155 (4) of the Constitution to grant leave, given that there was a clear manifestation of injustice in the decision of the primary court in that wrong principles of law were applied in sentencing the applicant to life imprisonment. The court said there was an arguable case on the merits.

7. The fundamental difference between this application and the application in Avia Aihi (No.2) is that this application is by the applicant in person. This type of application is known as prisoner appeal or review because the prisoners themselves file the reviews or appeals, as the case may be. In Avia Aihi (No.2) (supra), her lawyers were involved from the beginning starting with Avia Aihi (No. 1) (supra). In both cases her lawyers were fully involved and were responsible for the procedural irregularities relating to the filing of documents and wrong laws being applied and invoked. These mistakes were made by the lawyers not by the applicant, but eventually when those irregularities were corrected, the Court said, notwithstanding the long period delay, it was in the interest of justice to grant leave.

8. In prisoner appeals and reviews as in this case, there is a standard Form the appellants or applicants as the case may be, fill for their appeals or review applications. In this instance, the applicant filled Form 2, pursuant to Order 5 r 2 of the Supreme Court Rules, 2012. In the Form, it is shown that the application is by the “(Prisoner in Person)”. This is the Form the applicant filled for his review (pp. 4 and 5 R/B). In the Form, the applicant was asked certain standard questions to answer, two of the questions were - Why a Notice of Appeal was not lodged within 40 days of his sentence? and Why he was filing his application at such late stage. The answers given by the applicant together with the other information he provided in the Form constituted his application for review under s. 155 (2) (b) of the Constitution. In that Form, the applicant explained why he did not appeal within 40 days after his sentence, (as required under s. 29 (1) of the Supreme Court Act, Chapter 37). He said he was not advised of the statutory appeal period by the lawyer that represented him at his trial. This also explained the delay in filing his application. Looking at the explanations and other information in his application, I am satisfied that the application has met all the requirements under Order 5 r 4 and Form 2 in Schedule 2 of the Supreme Court Rules. The applicant did all that was legally required of him. Thus, I am satisfied that the application is competent.

9. It is a fundamental right of the applicant under s. 37 (15) of the Constitution to have his conviction (and sentence) reviewed. Thus, as long as the applicant has met the requirements under Order 5 r 4 and Form 5 under the Schedule of the Supreme Court Rules, the applicant is entitled to leave. The Court has inherent power under s. 155 (4) of the Constitution to grant leave to do justice in the case. It is important to bear in mind that this a review not an appeal and the Court has wide powers to consider all the relevant matters, including whether or not the requirements of s. 37 of the Constitution have been breached and whether there is a clear manifestation of injustice. See, Michael Newell Wilson v. Clement Kuburam (2016) SC1489 and Avia Aihi v. The State (No.2) (supra).

10. The Court in the exercise of its unfettered discretion can grant leave, even in cases where an applicant was not a party to proceedings, but was directly affected by the decision. See, Kitogara Holdings v. NCDIC [1988] PNGLR 346 and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (supra).

11. Mr Zacchary Gelu of counsel for the applicant argued that applicant’s trial was flawed because the fundamental rights accorded to him under s. 37 of the Constitution were breached, thus it was argued that leave should be granted so that applicant’s conviction can be reviewed. It was also submitted that applicant was denied natural justice. Section 37 (1), (3), (4) (c), (e) and (f) of the Constitution are pertinent. These provisions protect a person charged with an offence with prescribed fundamental rights, viz; right to a fair trial within a reasonable time by an independent and impartial court; right to be given adequate time and facilities to prepare his defence; right to be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is entitled to legal aid, the Public Solicitor or another legal representative assigned to him in accordance with law and the right to be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution and to call witnesses to testify on his behalf. It is the duty of the Court protect and uphold the Constitution by enforcing these rights. See, Premdas v. The State [1979] PNGLR 329 and The State v. Transferees (2015) SC1451.

12. Having considered the materials before the Court, including submissions by counsel, I find that the way in which the applicant’s trial was conducted appears to have breached the fundamental rights accorded to the applicant under ss. 37 and 59 of the Constitution. This raises a serious question of whether the applicant’s conviction was lawful. There also appears to be a clear manifestation of injustice in the conviction, thus it is in the interest of justice that leave should be granted. I therefore grant leave to the applicant to review his conviction pursuant to s. 155 (2) (b) of the Constitution.

13. For the substantive review, I start with the background facts which in brief are these. In the evening of 8th November, 2015, a fight broke out among members of a clan at Boera village. The applicant was one of those involved in the fight. An elderly member of the clan named Rei Kohu who later died following the fight, and whose death is the subject of this application went to the scene of the fight. It is alleged that the applicant and a few other men assaulted him and the deceased subsequently died from the injuries inflicted on him during the assault. The applicant is alleged to have punched the deceased on his chest with a stone in his hand.

14. The police charged the applicant with the murder of Rei Kohu contrary to s. 302 of the Criminal Code. The applicant was later released on bail.

15. On the day of the trial viz; 2 March, 2017, the applicant travelled to Kwikila from his Boera village to attend the National Court sittings being conducted there and to answer his bail. His lawyer Mr Gelu, despite not having a Practicing Certificate travelled with him to Kwikila. When the matter was first called in court in the morning, because Mr Gelu had no Practicing Certificate, a lawyer from the Public Solicitor's Office told the learned primary judge that the applicant was represented by a private lawyer but the lawyer did not have a Practicing Certificate. So that the clear message conveyed to the learned primary judge by the lawyer from the Public Solicitor’s Office was that the applicant was not represented by the Public Solicitor. The learned primary judge also noted Mr Gelu’s presence in court and further noted that Mr Gelu had travelled to Kwikila with the applicant but was not able to appear on behalf of his client. The learned primary Judge nonetheless soon thereafter ordered that the applicant’s trial be held and gave the applicant until 1.30pm to prepare for the trial, including securing a lawyer to defend him.

16. However, it is significant to note that soon after ordering the trial to start at 1.30pm, the learned primary judge ordered the court to adjourn briefly first to see if the applicant would seek an adjournment, and if he (applicant) did then he (applicant) would be remanded in Bomana for which he (applicant) could only blame his lawyer (Mr Gelu). This point is elaborated later in my judgment.

17. It is also significant to note that the trial started less than an hour after the short adjournment, which was well before 1.30pm. This point is also elaborated later in my judgment. At the trial, the State Prosecutor reduced the applicant’s initial charge of murder for which he was committed to stand trial, to unlawful killing (manslaughter), the charge for which the applicant was tried. It is also of significance to note that the indictment for manslaughter bears the date of trial viz; 2 March, 2017. The hand written notes by the State Prosecutor Ms Tamate on the top left-hand corner of the indictment read – “2/3/17. 11.00am. Ms Tamate” (p.11 R/B). At the bottom of the indictment in the standard “Take Notice” part, the applicant was notified that he would be tried on the charge of unlawful killing at Kwikila. As will be seen later, the place of trial ordered by the Waigani Committal Court for the applicant to stand trial was Waigani National Court.

18. At the trial, the evidence for the prosecution comprised of documents which were tendered by consent and the oral evidence of its witnesses. After the prosecution closed its case, the defence made a brief ‘no case’ submission. After a brief reply by the State Prosecutor, the court adjourned at 2.03pm to the next day at 9.30am (p. 42 R/B). On the next day, on 3 March, 2017, the court resumed at 10.04am. The learned primary judge in a very brief ruling refused the applicant’s ‘no case’ submission (p. 44 R/B). As a result, the applicant elected to give sworn evidence in which he denied all the allegations made against him regarding the alleged assault on the deceased by him. His evidence was completed at 10.25am (p.50 R/B). The defence counsel then told the primary judge that the applicant was intending to call one witness but he was not sure whether the witness had “arrived yet” (p. 51, line 33 R/B). The learned primary judge told the defence counsel to check if the witness was available. The defence counsel could not find the witness, as a result the defence counsel told the primary judge that given that the witness was not available the defence would close its case. The learned primary judge then called on counsel to make submissions on verdict. He told counsel that he was "rushing because of power" (p. 52, line 21 R/B). The case was then adjourned at 10.34am (p.53 R/B) to Monday 6 March, 2017 at 9.30am for the court to resume at the Bomana (CIS - National Court) for counsel to make their submissions on verdict. As a matter of law, the parties could not call more evidence (witnesses) on 6 March, 2017, because they already closed their respective cases (on 3 March, 2017).

19. The applicant’s committal hearing was conducted at the Waigani Committal Court. In the “Notice of Committal” the applicant was informed that he was committed to stand trial “at the Waigani National Court” on a charge of murder under s, 300 of the Criminal Code. (p.13 R/B).

20. On 7 March, 2017, the primary court gave its decision on verdict in which it found the applicant not guilty of unlawful killing but guilty of unlawfully doing grievous bodily harm to Rei Kohu contrary to s. 319 of the Criminal Code. The applicant was sentenced to 7 years imprisonment, which is the prescribed maximum penalty for the offence.

21. I consider the following exchanges between the bench and the bar on 2 March, 2017, before the trial pertinent to the issues raised in the grounds for review. The relevant parts which appear at pp.16–18 of the Review Book are reproduced below for ease of refence:

HIS HONOUR: All right, next matter? Kohu Morea, come forward. Appearances?

MS TAMATE: Court pleases, Ms Tamate initial M and Mr Pokiton initial K, we appear for the State in the matter.

HIS HONOUR: Thank you. Mr Tine?

MS TAMATE: Pardon me, your Honour, this is a private counsel matter.

MR TINE: Your Honour, the accused has obtained instructions – I mean, has given instructions to private firm so - however, I have been informed by my friend and the accused that private counsel does not have a practising certificate as it is today. But he _ _ _

HIS HONOUR: Private Counsel, no practising certificate.

MR TINE: But he has indicated to the State the reasons why that is so. I am not able to assist.

HIS HONOUR: All right, thank you. Yes?

MS TAMATE: Your Honour, if I may assist. State did receive a notice of appearance just yesterday and a pre-trial review statement filed by the private counsel namely, Mr Zachery Gelu of Gelu Lawyers.

HIS HONOUR: But that document is illegal if he does not have a practising certificate. So I cannot accept it.

MS TAMATE: Perhaps in terms of the dates, your Honour, the documents were filed on 21 December but we only received them yesterday.

HIS HONOUR: Oh December, all right.

MS TAMATE: They were served yesterday.

HIS HONOUR: All right.

MS TAMATE: I understand Mr Gelu did make his way up here but he is not in his formal_ _ _

HIS HONOUR: All right, so he is not in a position to appear.

MS TAMATE: He is not in a position to appear.

HIS HONOUR: All right, the problem now is that I am not going to hang around and wait for this man to find a lawyer. So, there is some things I can do and I am going to consider revoking his bail, have him remanded and he can get a lawyer so that the lawyer can come and attend to him quickly.

MS TAMATE: Your Honour pleases.

HIS HONOUR: All right, this is what I am going to do. I am going to remand you. You have come to this court and you told this court that you are going to get a private lawyer and the lawyer is not ready. It is affecting my system, all right. Accused people do not control my court. I am the person who controls. So, you need to find a – you need to now tell me who is going to be your lawyer. If you are going to wait for that lawyer to help you and if he is going to get his certificate in the next three months, it is not going to work in my court, all right. And I am not going to come back in the next couple of months just to deal with your case. I have given you opportunity and you now want to muck up that opportunity by looking for another lawyer, it will not happen. I am going to remand you. You come back at 1.30 or in the next two hours and you tell me; you are going to find a lawyer or going to get the public solicitor and we will deal with your case. Now, you understand that?

THE ACCUSED: Yes, your Honour.

HIS HONOUR: All right, thank you, he is remanded. We have got to allow time to come back at quarter to 11 and he is going to indicate. If it has to be adjourned, I am going to adjourn but he is going to be remanded up at Bomana and he can go and blame his counsel. All right, thank you, we adjourn.

MS TAMATE: Court pleases.

SHORT ADJOURNMENT

HIS HONOUR: Appearance?

MS TAMATE: Court pleases, Ms Tamate initial M and Mr Pokiton initial K; we appear for the State in this matter.

HIS HONOUR: Thank you.

MR TINE: Tine initial G for the accused, your Honour.

HIS HONOUR: Thank you. You have carriage of this matter, Mr Tine?

MR TINE: Yes.

HIS HONOUR: All right, thank you. You may be seated. Yes, State?

MS TAMATE: Court pleases; this will be a trial matter. State presents an indictment against the accused, Kohu Morea, of Boera village, Hiri-West District in Central Province, charging him with one count of manslaughter. Your Honour, the charge is laid pursuant to section 302 of the criminal code”.

22. It is important to note that on 2 March, 2017, at Kwikila, after the short adjournment, the court resumed at 10.51am (p.17, line 39 R/B). There is no evidence that the applicant or his lawyer were asked by the primary Court if the applicant was seeking or wanting an adjournment, which was the purpose of the short adjournment. It is noted that the matter was called for the first time that morning (2 March, 2017) at 10am. (p.16, line 4 R/B).

23. Soon after the court resumed after the short adjournment the State Prosecutor told the Court that it was a trial matter and proceeded to present the indictment. The applicant was arraigned at about 10.58am. So instead of starting the trial at 1.30pm, as ordered earlier by the court, the trial started within less than an hour, thus allowing little, or no time at all for the Public Solicitor’s lawyer to obtain instructions from the applicant (p. 20, line 7 R/B). It is noted that from the time the case was first called at 10.am to the time the trial commenced when the indictment was presented after the short adjournment was about 45 minutes because at 10.58am, the applicant was arraigned on the indictment. The lawyer from the Public Solicitor’s Office that defended the applicant was given the applicant’s file, no doubt by Mr Gelu around that time (p. 22 R/B).

24. Given that the indictment was prepared at the time of the trial, the service of a copy of the indictment on the applicant at that time was in clear breach of the mandatory requirement under s. 554 (1) of the Criminal Code, which provides that, a copy of the indictment be served on the accused person or his lawyer at a reasonable time “before” the commencement of the trial. Section 554 (1) reads:

554. Delivery of copy of the indictment.

(1) When a charge is laid against a person under Section 525 or 526, a copy of the indictment shall be served on the accused person or his lawyer at a reasonable time before the commencement of his trial.

25. The clear legislative intent behind s. 554 (1) is to give the person charged with an indictable offence adequate time to prepare his defence, which is his fundamental right under s. 37 of the Constitution. In this instance, the applicant was denied that right. Because the prosecution could not comply with the requirements of s. 554 (1), the case should have been adjourned. The applicant was also denied the right to properly and effectively cross-examine prosecution witnesses due to inadequate time given to him especially his lawyer to prepare his case.

26. Under s. 555 (1) of the Criminal Code, the learned primary judge had power to adjourn the trial to Bomana or better still Waigani, on his own accord after the short adjournment on 2 March, 2017, before the trial started or even before the applicant closed his case on 3 March, 2017, to allow the applicant to call the witness that did not turn up. Section 555 reads:

555. Adjournment of trial.

(1) A court before which a trial has commenced may at any time, in its discretion, adjourn the trial.

(2) A court before which a trial has commenced may at any time, on application by the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act for sittings of the National Court.

(3) If a court directs that the trial in which no evidence has been taken be continued at a different place, the trial may be continued before a Judge other than the Judge before whom it commenced.

27. Again, the clear legislative intent behind s. 555 (1) is to give the person charged with an offence a fair trial.

28. A significant point to note in this regard is that the applicant had to travel all the way from Boera village in the Hiri West to Kwikila which by road is about an hour. The nearest National Court is at Waigani, which was also the place of trial the applicant was committed to stand his trial. The Criminal Code is very specific about this requirement under s. 522 (1) (a) (i). Section 555 reads:

522. Place of trial.

(1) Subject to this section, the place of trial shall be—

(a) when the person awaiting trial has been committed for trial or sentence—

(i) the place to which he has been committed for trial or sentence; or

(ii) if no place has been specified—the place appointed under the National Court Act for sittings of the National Court nearest to the place at which the person charged was committed for trial or sentence; or

(b) when the person awaiting trial has not been committed for trial or sentence—the place at which the indictment against him was presented.

(2) In relation to any pending matter in which the trial has not yet commenced, the National Court or a Judge may—

(a) on the application of a State Prosecutor or a person awaiting trial or his counsel; and

(b) on good cause being shown,

order that the place of trial be changed to some other place appointed under the National Court Act for sittings of the National Court.

(3) This section does not affect the power of the court before which a trial has commenced to adjourn the trial to a different place.

29. Again, the clear legislative intent behind s. 522 (1) (a) (i) is to give the person charged with an offence a fair trial. For example, if the trial is conducted at the nearest place of trial to where he resides, he would be better able to prepare his case. The applicant was denied that right. It is not surprising to note that this is mandatory requirement.

30. In my opinion, above Criminal Code provisions give efficacy to the requirements of s. 37 of the Constitution to protect the fundamental rights of a person charged with an offence to have a fair trial.

31. There are five (5) grounds for review, they are as follows:

Grounds

1.1. That the learned trial Judge refused to allow the Applicant sufficient time to prepare for trial on the Charge of Manslaughter Pursuant to Section 302 of the Criminal Code after he was originally charged and committed to stand trial on the charge of Murder pursuant to Section 300 of the Criminal Code amounted to a gross denial of natural justice and the applicant’s right to a fair hearing guaranteed under Section 37 of the National Constitution.

1.2. That the learned trial Judge erred in fact and law in finding that the Applicant guilty on the charge of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code after trial on the charge of Manslaughter pursuant to Section 302 of the Criminal Code where the evidence and medical evidence clearly indicated that the Applicant did not caused the death of the deceased amounted to a gross denial of justice and the Applicant’s right to a fair hearing guaranteed under Section 37 of the Constitution.

1.3 That the learned trial Judge erred in fact and law in finding the Applicant guilty on the charge of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code after trial on the Charge of Manslaughter pursuant to Section 302 of the Criminal Code where the Applicant had been denied of his right to call independent witnesses to testify on his behalf amounted to denial of natural justice and the Applicant’s right to a fair hearing guaranteed by Section 37 of the Constitution.

1.4 That the learned trial Judge erred in fact and law in finding the Applicant guilty on the Charge of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code after trial on the charge of Manslaughter pursuant to Section 302 of the Criminal Code where the Applicant had not been accorded the right to cross-examine Dr. Philip Golpak to establish the cause of death of the deceased.

1.5 That the learned trial Judge erred in fact and law in finding the Applicant guilty on the charge of Grievous Bodily Harm pursuant to Section 319 of the Criminal Code after trial on the charge of Manslaughter pursuant to Section 302 of the Criminal Code contained in the indictment presented by the Public Prosecutor in Court on the 2^nd March, 2017 where the Applicant was denied time to seek legal representation of his charge amounted to denial of natural justice and the Applicant’s right to a fair hearing guaranteed under Section 37 of the Constitution.

ORDERS SOUGHT

The applicant seeks in lieu of the Judgement reviewed seek the following orders;

2.1. Review be upheld.
2.2. Conviction and Sentence be quashed.
2.3. Applicant be discharged.

32. The grounds of review raise two threshold issues. First, the applicant’s trial was conducted in a way that denied him the fundamental rights accorded to him by s. 37 and right to be (properly) heard under s. 59 of the Constitution. He was further denied his right to cross-examine witnesses and to call his witness. Second, the applicant’s conviction was against the evidence and the weight of the evidence.

33. The first issue relates to exercise of power by the learned primary judge, which included revoking the applicant’s bail before his trial. This issue is elaborated later in the judgment. Ordering the applicant to stand trial when he was not ready to stand trial because his lawyer had no Practicing Certificate. A direct consequence of which was, a lawyer from the Office of the Public Solicitor who was not the applicant’s lawyer and who had no formal and proper instructions from the applicant had to defend the applicant. Evidently, the lawyer told the learned primary judge that applicant’s case was a “private matter”, which by reasonable inference meant the Public Solicitor was not the lawyer for the applicant and therefore he was not ready to defend the applicant as he no doubt had no proper instructions from the applicant.

34. The second issue relates to evidence, which includes the medical report which raised serious doubts about applicant’s guilt regarding the offence for which he was convicted. The applicant claims the prosecution evidence fell far short of proving his guilt beyond reasonable doubt. For example, the failure by the prosecution to call the doctor to give evidence, thus denying the applicant the right to cross-examine the doctor. In any case, the applicant claims that even without the doctor giving evidence and clarifying his report regarding the cause of death, the Court was still left with serious doubts as to the actual cause of death. The applicant claims the doctor’s evidence was critical because the medical report stated that the cause of death was “undetermined”. The report concluded that – “the most plausible cause would be rupture of an bullae in the lung giving a pneumothorax”.

35. Sections 37 and 59 of the Constitution are pertinent to the issues raised in the grounds of review, they read as follows:

37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No person shall be tried for an offence for which he has been pardoned.

(10) No person shall be compelled in the trial of an offence to be a witness against himself.

(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(13) Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority—

(a) is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or

(b) is by law empowered or required to do in the interests of defence, public safety or public order.

(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(19) Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.

(20) An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.

(21) Nothing in this section—

(a) derogates Division III.4 (principles of natural justice); or
(b) affects the powers and procedures of village courts.

(22) Notwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.

Division 4.—Principles of Natural Justice.

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

36. Section 37 is a special constitutional provision which confers on every person charged with an offence, the right to have protection of the law. I have already alluded to the fundamental rights under s. 37 that give protection to the person. A breach of any of those rights will constitute a ground for this Court to interfere with the decision of a primary judge.

37. The Supreme Court in Ombudsman Commission v. Yama (2004) SC747, adopted the following passage from the judgment of Lord Denning in General Electrics Co. Ltd v. Price Commission [1975] ICR 1 at 12, to stress the duty of an appellate court to exercise its supervisory jurisdiction by ensuring that a trial judge acted fairly in his decision-making process:

“But nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly. The courts will ensure that the body acts in accordance with the law ... If the decision-making body is influenced by consideration which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere... And, of course, if the body acts in bad faith or for an ulterior object, which is not authorized by law, its decision will be set aside. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions...’

38. Section 59 of the Constitution ensures that fairness is fully accorded to every person who is likely to be affected by the decision of a decision maker, particularly those charged with an offence. Such a person must be given an opportunity to be fully and properly heard before a decision is made. In Kayo v. Pawa (2015) SC1469, the Supreme Court in stressing this point said:

“The principles of natural justice or procedural fairness are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognised by Section 59 of the Constitution, is: “the duty to act fairly, and, in principle, to be seen to act fairly”. These principles dictate that a person whose interests are likely to be affected by a judicial decision must be afforded an opportunity to be heard by the judicial officer, before the decision is made...”.

39. Section 59 (2) imposes a duty on a decision maker, including a court of law to ensure that as a minimum requirement the decision was fair. The right of a person charged with an offence to be properly heard in his defence as part of that decision-making process re-enforces the principle of a fair trial. See, Kereyal v. Police Commissioner (1996) N1437. See also Jones v. National Coal Board [1957] 2QB 55 at 67, Lord Parker in emphasizing a person's right to a fair trial said:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge...No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it”.

40. In Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952, when discussing the principles of natural justice under s. 59 of the Constitution, I said:

“The right to be heard or the audi alteram partem rule which is also a key principle of natural justice is accorded to every individual or entity that is affected by a decision of a public body or authority. The right to be heard is embodied in our Constitution. Thus, pursuant to Schedule 2.2 of the Constitution, the audi alteram partem rule or the right to be heard (as a principle of natural justice) is a fundamental part of the underlying law. The terms of Schedule 2.2 are notably very general.

Section 59 of the Constitution on the other hand is very specific in its terms. It expressly provides that “principles of natural justice” are the rules of underlying law, developed for control of judicial and administrative proceedings. The section is in these terms:

Division 4.—Principles of Natural Justice.

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

So, s. 59 (2) imposes a “duty” on a public body or authority "to act fairly, and in principle be seen to act fairly". This is a minimum requirement of natural justice, it is a key principle which every public body or authority is obligated to show and reflect in the decision-making process...

...The requirements of s. 59 of the Constitution are an integral part of the administrative law in this jurisdiction, they give efficacy to the common law principles of natural justice and safeguard those who are affected by the decisions of public bodies or authorities. They prevent abuse of power by the public bodies or authorities. See, NCDIC v. Crusoe Pty Ltd [1991] PNGLR 138.

...The intention of s. 59 is to give efficacy to the principles of natural justice and underscores compliance with the principles by public bodies or authorities as integral to valid and proper decision-making processes. Thus, when the principles of natural justice are breached, the decision-making processes are flawed, thus vitiating the final decisions or determinations. See, Joe Parakas v. The State [1989] PNGLR 224...”.

41. Having regard to these principles, it is clear that the applicant was denied his fundamental rights under s. 37 of the Constitution when the learned primary judge allowed very little time if any, for the applicant to prepare his case and to defend himself, through effective cross-examination of prosecution witnesses and to call his witness. Furthermore, a lawyer who had no formal and proper instructions from the applicant and who was not the applicant’s lawyer was permitted by the primary court to defend the applicant. These were clear breaches of the applicant’s fundamental rights under s. 37 of the Constitution thus, they amounted to errors of law.

42. The exchanges between the bench and the bar, and the things said generally, on 2 March, 2017, are in my opinion of particular significance because they had direct effect on the trial. The issues raised in the grounds for review relate directly to those exchanges. It is therefore incumbent on me to offer some general comments on the things said in the exchanges. The power that the courts exercise belongs to the people. That power is vested in the judicial system which the people created through the Constitution. See, the Preamble of the Constitution and s. 158 of the Constitution. See also, Independent State of Papua New Guinea v. Kofowei [1987] PNGLR 5 and The State v. Mogo Wonom [1975] PNGLR 311.

43. Thus, the people being the depository of the powers exercised by the judges, the people and the community expect judges to exercise their powers properly with caution and restraint. See, Re Michael Thomas Somare [1981] PNGLR 265. At the very minimum the judges are expected to not only act fairly but be seen to act fairly. This minimum requirement is embodied in s. 59 (2) of the Constitution it is to ensure that the people who are charged with offences are properly heard and are given fair hearing. See Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 345. The Judges have a duty to the people to avoid use of language which may ostensibly display partiality, judicial arrogance and indifference to the basic rights of those who appear before them. It is incumbent on the judges to avoid saying things which might portray to the ordinary people, especially those who appear before them that they have absolute power. The judges should remember that in the end, they are accountable to the people (including those appearing before them).

44. Turning now to the revocation of the applicant’s bail before the trial on 2 March, 2017, it goes to the applicant’s right to a fair trial, because it had direct effect on the applicant's right to prepare his case. In my respectful opinion the bail was revoked without proper legal basis. The applicant having appeared from bail on that day would have had his bail certificate with his bail conditions, as required under ss. 15, 17, 18 and 21 of the Bail Act, Chapter No. 340. Under these provisions, bail can only be revoked if there was a breach of a bail condition for which there had to be strict proof. There are of course times when the courts can in the exercise of their discretion remand persons who are on bail. For example, in cases where the court is of a view that the person might not answer his bail for sentence after being convicted. There was no evidence of such situation in this instance. The fact that the applicant had travelled all the way from Boera village in the Hiri West to Kwikila to answer his bail was in my view sufficient proof to dispel any fears that he might abscond.

45. Every person charged with an offence is presumed innocent until proven guilty. This is a cardinal principle of our criminal justice system which not surprisingly is embodied in s. 37 (4) of the Constitution, as a fundamental right of every person charged with an offence. It is the underlying reason such persons are always entitled to bail. The embodiment of this cardinal principle in s. 37 (4) of the Constitution is significant because it encapsulates the principle of fair trial and puts prosecution to the highest burden of proof.

46. A person is always entitled to his liberty and the law protects that liberty. This is consistent with the cardinal principle that a person is innocent until proven guilty. Thus, if a person’s liberty is to be taken away from him by being refused bail, such refusal must have proper legal basis, including those stated in s. 9 of the Bail Act. Likewise, when a person is granted bail, the decision should have proper legal basis. A grant or a refusal of a bail affects the person's liberty. Thus, the liberty given to such persons upon a grant of bail by a bail authority, if taken away by another bail authority must have proper legal basis. In this instance, the fact that the applicant was required to stand trial was in my respectful opinion not a good and valid reason for his bail to be revoked and deny him his liberty. The revocation of the applicant’s bail was therefore an error of law (p. 17, lines 10 and 27 R/B).

47. There were no plausible reasons given by the learned primary judge for ordering the trial which resulted in the applicant being denied sufficient time to prepare his case. For example, there is no evidence that the applicant's case was specifically fixed for trial on 2 March, 2017. In any event, the learned primary judge had already indicated that he could adjourn the trial and he had power to adjourn the case either on his own accord or upon application. Furthermore, I see no reason why the applicant's case could not be tried at Waigani National Court, which was the nearest place of trial the case was ordered to be tried by the Committal Court. The fact that the applicant's lawyer had no Practicing Certificate was in my view another valid and genuine reason to adjourn the case. It had nothing to do with the applicant. There is no evidence that the primary court had asked Mr Gelu of when he was likely to get his Practicing Certificate. The paramount consideration always was giving the applicant a fair trial.

48. The fundamental rights of a person (charged with an offence) given by s. 37 of the Constitution are paramount to all other considerations, including those considerations pertaining to circuits either by administrative arrangements or even as statutory requirements, because of the supremacy of s. 37 as a constitutional law. See, ss. 9 and 10 of the Constitution. The orders given by the primary court regarding bail and the trial in my respectful opinion amounted to breaches of the applicant’s fundamental rights under s. 37 of the Constitution. The Court as the protector of the Constitution is obligated to protect and enforce those rights. See, SCR 1 of 1993: Special Reference Pursuant to Constitution s. 19 Re: Section 365 of the Income Tax; Reference by the Principal Legal Adviser SC482; University of Papua New Guinea v. Ume More and Ors [1985] PNGLR 48 and The State v. Mana Turi [1986] PNGLR 221.

49. Consequently, I find that the conviction entered against the applicant was unlawful and a nullity. I therefore quash the applicant’s conviction.

50. Given the conclusion I have reached, the sentence imposed on the applicant will as a consequence be automatically quashed. However, I feel that as a matter of principle and given that sentence is part and parcel of the judicial act which is under review, I should also make some observations, regarding the exercise of the sentencing discretion by the learned primary judge. It is significant to note that the learned primary judge found that the applicant “together with other relatives” assaulted the deceased. In other words, injuries sustained by the deceased could not possibly be caused only by the applicant (p. 112, line 18 R/B). Furthermore, although his Honour agreed with the State Prosecutor that the fact that the applicant was a first-time offender was a “significant mitigating factor”, the learned primary judge did not consider the issue and it was not taken into account on sentence.

51. The failure by the learned primary judge to take into account the fact that the applicant was a first-time offender as a mitigating factor is an error of law. See, Steven Loke Ume v. The State (2006) SC 836. The end result is that the primary judge exercised his sentencing discretion on wrong principles. See, Public Prosecutor v. Tardew [1986] PNGLR 91; SC314; William Norris v. The State [1979] PNGLR 605 and Public Prosecutor v. Konis Haha [1981] PNGLR 205. It has been said many times by the courts that the fact that an offender was a first-time offender should as a general rule mitigate his punishment, unless the offence was particularly bad with serious aggravating factors. See, Paia Lifi v. Phillip Dege (1981) N291 (M); John Tolna & Ors v. Paul Ari [1980] PNGLR 23 and Hen Kuru v. Was Kombra (1981) N292 (L).

52. His Honour said the assault on the deceased was “vicious and sustained”, but there is no evidence of that. With respect, it amounts to exaggeration and an overstatement of actual facts and an overemphasis. His Honour with respect fell into an error in this finding. See, Les Curlewis v. David Yuapa (2013) SC1274 and House v. The King (1936) 56 CLR 499.

53. It is an established principle that a sentence of maximum penalty should be reserved for worst type cases. See, Goli Golu v, The State [1979] PNGLR 653 and Ure Hane v. The State [1984] 105. The issue of whether sentence was excessive or not is irrelevant because the offence for which the applicant was convicted was unlawfully doing grievous bodily harm and the applicant was given the prescribed maximum sentence for that offence.

54. The question therefore is – Was this the worst case of unlawfully doing bodily harm? The answer is obviously in the negative because the assault on the deceased was committed by a group of people. The fact that the applicant was a first-time offender and that the deceased had a serious medical condition of 75% blockage of his artery were not taken into account, although the learned primary judge did acknowledge these mitigating factors. He said: “... I have no doubt in my mind that what the accused did to the deceased, whilst was not established as a substantial cause of death, at least to some extent contributed to his death” (p. 113, lines 25 to 27 R/B). Then his Honour said: “The subsequent death of the deceased came about after an argument regarding a vehicle, there was little or no preparation, victim had pre-existing diseases which may have caused the death...” (para. 114, para. 23 R/B).

55. Notwithstanding these clear findings of strong mitigation factors the applicant was given the maximum sentence. The reason given by the learned primary judge was that the victim died. The learned primary judge then adopted the sentencing tariffs for manslaughter to decide the punishment because the victim died. This was a clear error of law because the applicant was acquitted of manslaughter, the learned primary judge should have adopted the sentencing tariffs for unlawful doing grievous bodily harm, the offence the applicant was convicted of. The learned primary judge also failed to take into account the extenuating circumstances such as the existing serious heart condition which could have easily caused his death even with slight elevation of his blood pressure from fighting with several people. The evidence disclosed that the deceased had bruises not just on his chest but around the neck and chin which were consistent with assaults being occasioned by more than one person. The learned primary judge clearly acted on wrong principles which influenced him to arrive at the sentence. These were clear and glaring errors of law.

56. The offences of manslaughter and unlawfully doing grievous bodily harm are two completely different offences each created by different sections of the Criminal Code with different prescribed maximum penalties. The elements of the offences are also different. The offence of manslaughter is created by s. 302 of the Criminal Code and its prescribed maximum penalty subject to s. 19 of the Criminal Code is life imprisonment. The offence of unlawfully doing grievous bodily harm is created by s. 319 of the Criminal Code and its prescribed maximum penalty subject to s. 19 is seven years imprisonment.

57. The learned primary judge used the sentencing tariffs the Supreme Court formulated for manslaughter in Manu Kovi v. The Sate (2005) SC289. In that case, the appellant was convicted of wilful murder. The Court in the course of dismissing the appeal, formulated sentencing tariffs for wilful murder, murder and manslaughter. Thus, using the sentencing tariffs for manslaughter, in Manu Kovi v. The State (supra) the applicant was sentenced to seven years imprisonment, the prescribed maximum penalty for unlawfully doing grievous bodily harm, only because the victim had died. With respect, this is another clear and glaring error of law.

58. With these glaring errors, this Court would be failing in its duty if it dismissed the review and allowed the sentence to stand. These are clear grounds for this Court to interfere with the sentencing discretion of the learned primary judge. See, William Norris v. The State (supra); Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218; Les Curlewis v. David Yuapa (supra); House v. The King (supra); and Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16.

59. For the foregoing reasons, I also quash the sentence imposed on the applicant.

60. I order that the applicant be discharged forthwith from gaol. I also order the Correctional Services to remove the applicant’s conviction and sentence from its records.

61. Orders accordingly.

62. MAKAIL J: We heard this review on conviction and reserved our decision to a later date. Each of us has reached a decision and I give my reasons as follows; the applicant was convicted on an alternative charge of unlawful grievous bodily harm and sentenced to an imprisonment term of 7 years in hard labour by the National Court on 9^th March 2017. He ran out of time to file an appeal within the 40 days by 17^th April 2017. After about four months, on 3^rd August 2017 he filed this application for leave for review under Section 155(2)(b) of the Constitution.

Leave for Review

63. He sought leave at the hearing, and having heard him and counsel for the State and having regard to the principles on leave, I accept his explanation for not filing the appeal within the prescribed time limitation of 40 days, it being that he was not aware of the time-limitation of 40 days to file an appeal and significantly, the proposed grounds of review raised a serious question as to whether he was given a fair trial under Section 37 of the Constitution when at the commencement of trial, he was informed of the change of charge from murder to manslaughter by the State and was eventually convicted on the alternative charge of unlawful grievous bodily harm. Secondly, due to the belated change, his request for an adjournment to re-consider his defence including calling of his witnesses and availability of legal representative was refused.

64. Although there has been a delay of about four months since the 40 days had lapsed, it is minimal and I am further satisfied that it is in the interests of justice that both parties be heard on the proposed grounds of review. I am further satisfied that although the State opposed leave, it did not show how it will be prejudiced in its defence if leave was granted.

65. Leave is granted and I now consider the substantive review.

Substantive Review

66. The applicant was originally charged with one count of murder of one Rei Kohu (deceased) during a fight with a group of boys. He was committed to stand trial at the National Court on that charge. At the commencement of trial at Kwikila, the State belatedly changed the charge and indicted him on a charge of manslaughter. He requested for an adjournment to re-consider his defence including calling his witnesses and also to allow his legal representative to attend. However, his request was refused.

67. At the end of the trial, he was found guilty of being one of the boys who assaulted the deceased during a fight at Boera village in Central Province on the morning of 8^th November 2015. He was found to have struck the deceased with a stone on his chest. However, it was not proven that the cause of death was a direct result of the blow from the stone and he was convicted on the alternative charge of unlawful grievous bodily harm under Section 319 of the Criminal Code.

68. In support of the ground on denial of a fair trial, he does not contest the down-grading of the charge of murder to manslaughter and moreover, the guilty verdict of a much lesser charge of unlawful grievous bodily harm (GBH). What he contests and pressed upon us to accept is that the process by which the State had adopted to prosecute the charge had deprived him of adequate preparation to defend the charge of manslaughter.

69. The State referred us to the Supreme Court decision in Laurie Kemuel & Kopol Kepao (2016) SC1640 to support its submission to oppose this ground. That was a case where the appellants were indicted on one count of wilful murder and following a no case submission, the trial judge found that there was evidence of all elements of the charge except intention. The appellants were called to answer a charge of murder. They were, subsequently, convicted for murder and sentenced to an imprisonment term. The Supreme Court by a majority upheld the appeal after it was satisfied that there was a material irregularity in the course of the trial when the trial judge found a case to answer on the alternative charge of murder. It quashed the conviction and acquitted the appellants. In this case, there is no contest that the applicant was convicted on the alternative charge of GBH after the close of all evidence. For this reason, that case does not assist us to determine the issue before us.

70. The issue before us is one of procedural error, that is, whether a belated change in the charge constituted a material irregularity in the course of the trial which denied or deprived the applicant of a fair trial and justice has miscarried. The criminal pre-trial procedure would have placed an obligation on the State to inform the applicant of the charge to be preferred in the indictment prior to the commencement of trial. The rational being that, the applicant will be informed well in advance of the charge to face at the trial. In this case, there is no contest that the applicant was not informed of the preferred charge until at the commencement of the trial. Technically, he was caught out, as it were, by the State’s change of plan. Materially, the facts on which he was arraigned for the manslaughter charge remained the same.

71. Added to that, the State witnesses were the same and were called to testify against the applicant at trial. They were Daure Kohu, Gomara Kaema and Seri Besega. A medical report by Dr Phillip Golpak was tendered by consent as well as the applicant’s record of interview in the Pidgin and English versions and photographs of the crime scene and post-mortem. The medical report was relevant to the medical explanation for the cause of death. The applicant does not deny that the witnesses’ statements together with the medical report including the record of interview and photographs of the crime scene and post-mortem were served on him well before the commencement of trial. He was and should have been put on notice of the nature of the evidence the State was proposing to bring against him at trial. With this information, he had the opportunity to prepare his defence including identifying, and contacting his witnesses and advising them of the date of trial in order for them to attend. It was also open to the applicant to consult his lawyers and decide if the medical report and record of interview will not be admitted into evidence by consent. It would be considered a belated attempt to object to the tender of the medical report and challenge its veracity when it was not taken up with his lawyer prior to the trial. In essence, there was nothing new or extraneous that was presented to the applicant when the charge was belatedly changed and would form a basis for me to conclude that there was a material irregularity in the course of the trial which deprived or denied the applicant of his right to a fair trial under Section 37 of the Constitution and justice has miscarried.

72. As to the second ground, there is no question that like any accused persons, the applicant had a right to a lawyer of his own choice as guaranteed by Section 37 of the Constitution. He chose Gelu Lawyers. However, he was not forthright about his legal representative and seemed to blame the trial judge for his misfortune. The transcript of the proceeding shows that he informed the trial judge at the commencement of trial on the morning of 2^nd March 2017 that Gelu Lawyers were his defence lawyers and were going to represent him at the trial. Unfortunately Gelu Lawyers did not have a practising certificate at that critical time. The trial judge was not particularly impressed and moreover persuaded by the explanation offered by the applicant through the State Prosecutor about the absence of his lawyer’s practicing certificate. He reminded the applicant about the huge costs to mount a court circuit out of Port Moresby, especially to Kwikila and the need to be ready for trial.

73. The rebuke of the applicant by the trial judge may be interpreted to be too harsh and unnecessary and may have clouded his judgment and influenced him to refuse the applicant’s request for an adjournment and choice of lawyer. But what he said must be understood in its context. The trial judge should not be blamed for depriving the applicant of his legal representation if on the other hand his lawyers made no attempt to have a practicing certificate before the trial. Putting it into context, what has not been demonstrated to my satisfaction for me to find that the applicant has made a compelling case for the review to be upheld is that, he was given a choice of lawyer and he chose Gelu Lawyers. The trial was fixed to commence on 2^nd March 2017. He and his lawyers were expected to be ready for trial, come the trial date. There is no evidence to show that Gelu Lawyers were not aware of the trial date. In fact, Mr Gelu of the firm turned up on the trial date but did not have a right of audience because he did not have a practicing certificate.

74. There is also no evidence from the applicant that he was not aware that Mr Gelu did not have a practicing certificate. On record and this is in the transcript, a Notice of Appearance and Pre-Trial Review Statement were filed by Gelu Lawyers on 21^st December 2016. This was more than two months before the trial. What this means is that, the applicant and his lawyers should have been ready for trial. This includes the lawyers having a practicing certificate. The obligation to hold a practicing certificate is not optional under the Lawyers Act and it is not unreasonable to expect that any prudent lawyer would not leave the renewal of his or her practicing certificate outstanding until the date of trial. The applicant and his lawyers failed to meet this requirement. A party whose lawyer is not an holder of a practicing certificate, had ample time to obtain one and a court circuit had been mounted more than two months earlier at substantial costs and time to the State is unlikely to get an adjournment if one is sought. It cannot form the sole basis to question the safeness of the conviction.

75. The applicant was given some reprieve by the trial judge although the trial judge could have commenced trial that morning without the defence lawyers. He, however, adjourned the matter to the afternoon (1:30 pm) or for two hours to allow the applicant to secure the services of a lawyer be it another private counsel or the Public Solicitor. On record as the Court transcript reads, about 45 minutes later that morning, the Court reconvened and a Mr Tine of the Public Solicitors Office appeared for the applicant. There is no evidence to explain why the Court hearing resumed at about 45 minutes later but Mr Tine acted for the applicant until the conclusion of the trial and final addresses on verdict and sentence including making a no-case submission at the conclusion of the prosecution’s case. By all accounts if anyone is to be blamed for the unsatisfactory state of affairs, it was the applicant and his former lawyers. The safeness of a conviction should not be overturned by the Supreme Court merely because of an accused and his former lawyer’s unpreparedness under the guise of being denied a fair trial under Section 37 of the Constitution.

76. It is also about the Court upholding its duty and ensuring that the applicant who has enjoyed bail for a substantial portion of time while awaiting trial to be brought to trial within a reasonable time under Section 37(3) of the Constitution having regard to the fact that his matter had been pending for more than seven months since he was committed to stand trial at the National Court on 26^th August 2016. His right to full protection of the law under Section 37 of the Constitution was intact and observed by the trial judge. Equally, the alternative verdict reached by the trial judge was always open under Section 539 of the Criminal Code and there is nothing unusual or extraordinary about the exercise of power under the given circumstances. It is, therefore, my view that the applicant has failed to make out a compelling case for me to conclude that there has been a procedural breach resulting in a denial of a fair trial for him under Section 37 of the Constitution and justice has miscarried.

77. In the end, I am not satisfied that the grounds of review have been made out and justice has miscarried.

78. I dismiss the review.
79. NEILL J: On 3 August 2017 the Applicant filed an Application for Leave for Judicial Review (Application) of the conviction entered on 7 March 2017 by the National Court that, on 8 November 2015 he did grievous bodily harm to Rei Kohu. The sentence of seven years imprisonment was imposed on 9 March 2017 albeit some confusion in the dates as noted in the Appeal Book.

REASON FOR NOT FILING APPEAL WITHIN 40 DAYS

80. The Application states the reason (reason) the Applicant did not lodge a Notice of Appeal within 40 days of 7 March 2017 (sic. 9) was, “Public Solicitor did not advise me of the process of Appeal especially the 40 day period...” but there is no evidence to support the Applicant’s reason.

81. Avia Aihi v The State [1981] PNGLR 81 (Kidu CJ, Kearney DCJ, Greville Smith, Andrew & Kapi JJ for the first time, considered an application for leave to appeal out of time under s. 155(2)(b) of the Constitution as here in the present Application. Avia Aihi had pleaded guilty to, and was convicted of, of wilful murder and sentenced to life imprisonment on 17 March 1979.

82. Kidu CJ noted the reason the applicant had failed to lodge an Appeal within the 40 day period as, “through no fault of her own; she was unable to obtain the services of a lawyer to help her comply with the requirement of [Supreme Court Act]”.
Kapi J set out further background to the applicant’s delay, “She was represented by counsel at the National Court. Apparently the lawyer who represented her left the country not long after her sentence. It has been suggested that the applicant spoke to various correctional officer about speaking to a lawyer regarding the possibility of appealing against sentence but the opportunity was not given to her. The first opportunity she has was when she spoke to officers of the Public Solicitor early in 1980”

83. The Supreme Court considered Avia Aihi v The State [1981] PNGLR 81 as to the power of the Court under the Constitution to grant Leave where no appeal had been lodged or application to extend the period had been lodged. Following the above Order, Avia Aihi v The State (no. 2) PNGLR [1982] 44 (same bench) dealt with the application for leave. Avia Aihi (no. 2) sets out more facts to support the application for leave. Kidu CJ records that Avia Aihi spoke twice to an Assistant Correctional Officer to find the lawyer who had represented other accused. That lawyer deposed in an affidavit of being contacted on two occasions. She spoke to Fr Murphy the Bomana chaplain about an appeal. She spoke to Nahau Rooney (former M.P.) who promised to put her in contact with a lawyer but that did not eventuate. Some 12 months after conviction, she saw another person and then she was visited by an officer of the Public Solicitor, who took instructions and commenced the Application. His Honour noted, “She had tried and as far as we are concerned she did all she could and until March 1980, was unable to secure help.” The Court ordered the inherent jurisdiction under Constitution s. 155(2)(b) be exercised. Leave to appeal was granted. The appeal is reported Avia Aihi v The State (no. 3) [1982] PNGLR 92.

84. It was easy for the Applicant to make the statement “Public Solicitor did not advise me of the process of Appeal especially the 40 day period” and give it as the reason for not lodging an appeal within the 40 days, but there is no evidence to support this statement. The Respondent is not in a position to dispute this statement as the Applicant’s communication with his lawyer is subject to legal privilege. However, for example: the Applicant could have waived that privilege to allow for an affidavit to be filed by the lawyer who acted in the trial or the Applicant could have made some of the efforts that were made by Avia Aihi as noted above in Avia Aihi (no. 1) and Avia Aihi (no. 2).

85. The Court power has the power to grant Leave to review, for lodging an Appeal, but the onus is on the Applicant to convince the Court to exercise that power. As stated by Kidu CJ, “It must be emphasised from the outset that the power vested in this Court by s. 155(2)(b) will not be exercised as a matter of course. Where statutory appeal provisions are not complied with there must be shown convincing reasons why this Court should exercise its constitutional power.” There was no affidavit evidence of any effort by the Applicant to support the reason he stated for delay.

86. In Avia Aihi (no. 2) there was careful review of cases in other jurisdictions where delay was a main matter for consideration. Avia Aihi (no. 2) also considered the appeal’s ground of manifestly excessive sentence and confirmed that the principle that the maximum sentence prescribed by legislation is reserved for the worst offence of that type of offence. Kidu CJ concluded, “the applicant has shown that she has an arguable case on the merits and her application should be allowed.”

87. As well as in Avia Aihi (no. 2) in Avia Aihi (no. 3) the same bench considered the appeal ground of manifestly excessive sentence and confirmed the principle that the maximum sentence prescribed by legislation is reserved for the worst offence of that type of offence. The appeal was dismissed.

GROUNDS OF THE APPLICATION

88. In summary, the grounds are:

Ground 1.

The trial judge refused to allow the Applicant sufficient time to prepare for the trial on the charge of manslaughter after he was committed for murder.

Ground 2.

2). The trial judge erred in finding the Applicant guilty of grievous bodily harm after he was tried for manslaughter and where the evidence was the Applicant did not cause the death of Rei Kohu.

Ground 3.

3). The trial judge erred in finding the Applicant guilty of grievous bodily harm as the Applicant was denied his right to call his witnesses.

Ground 4.

4). The trial judge had not been given the right to cross-examine Dr Golpak [who conducted the Autopsy and provided under the provisions of the Coroners Act a 5-page Report] to establish the cause of death.

Ground 5.

5). The trial judge denied the Applicant time to seek legal representation.

Analysis of merit of ground 1.

89. As to the first ground, the Prosecution is not bound by the committal court order committing the Applicant to stand trial for murder. It is incumbent on an accused and his lawyer to consider the possibility of the Prosecution filing indictment on a charge that is an alternative to manslaughter. The Criminal Code Act in section 539(4) provides that on an indictment charging a person with wilful murder, murder or manslaughter, the accused may be convicted of grievous bodily harm. The Prosecution had an obligation to assess the evidence which will be given to support an indictment and that would have been also in the mind of a person on this charge. In preparing for the charge of murder for which the Applicant had been committed, he should have been prepared to defend an alternative charge on the indictment presented.

90. The trial judge did grant an adjournment in the morning on the first day of the trial (2 March 2017) for the Applicant to obtain the services of another lawyer. Mr Tine, a lawyer in the Public Solicitor’s Office was at the Court and the Applicant engaged him. Mr Tine did not suggest that he was not able to proceed. His exchanges with the bench and comments on the evidence given show Mr Tine knew and understood the pertinent facts, noted the exhibits, raised objections to tender of documents and synthesised these matters in his comment and submissions to the bench (see Appeal Book pg. 21 to 41).
Albeit at short notice Mr Tine took instructions from the Applicant but that does not suggest the Applicant was disadvantaged as shown from the transcript.

91. Indeed, Mr Tine competently represented the Applicant and Mr Tine showed he is not a counsel who would be too meek to ask for an adjournment if he was of the view that the trial should not proceed. There were further opportunities for Mr Tine to consult with the Applicant and obtain witnesses as the Court adjourned at 2 pm on Thursday 2 March and though the Court resumed at 9.30 am on Friday 3 March it adjourned at 10 am to the following Monday 6 March 2017. The Applicant was allowed bail. There was no error proceeding to trial on manslaughter. This ground has no merit.

Analysis of merit of ground 2.

92. As to the second ground, as note above, the Criminal Code Act s.539(4) provides that on an indictment charging a person with wilful murder, murder or manslaughter, the accused may be convicted of grievous bodily harm. As conviction of grievous bodily hard is an alternative to the charge in the indictment, it was incumbent on an accused and his lawyer to consider the possibility of the alternative charge and to prepare to defend the alternative charge. There was no error by the trial judge finding the Applicant guilty of the alternative charge of grievous bodily harm rather than the more serious charge of manslaughter. There is no merit in this ground.

Analysis of merit of ground 3.

93. As to the third ground, there was opportunity for the Applicant to call his witnesses. As noted under analysis of ground 1: firstly, the Applicant was on bail and from 2 pm on Thursday 2March to 9.30 am on Friday 3 March; secondly from 10 am on Friday 3 March to the following Monday 6 March 2017. As the Applicant was allowed bail he had the opportunity to arrange for his witness to attend. At the close of the defence case, Mr Tine did inform the Court there was a witness (Appeal Book pg 51) but the fact is no witness turned up and a further adjournment was not sought. Over the weekend of 4 and 5 March when there was a good opportunity to locate any witness, albeit at that stage the Applicant would have to apply to reopen the defence case. There was no name of a witness recorded in the transcript to give evidence on any of these occasions. There is no merit in this ground.

Analysis of merit of ground 4.

94. As to the fourth ground, the evidence of the eye witnesses for the prosecution was the Applicant hit the victim in the chest with a stone the Applicant had picked up from the ground.

95. The medical evidence is of two injuries to the chest, namely one 30 mm laceration on the midline neck below the chin another laceration 90 mm x 1 mm on the left chest. There is another injury to the back of the head that is not relevant as there is no evidence it caused by the Applicant. The evidence of the chest injuries establishes grievous bodily harm. The judgement notes:

“From the medical report, there appeared to be another inference as to the cause of death...In the absence of further medical explanation, and given that the cause of death was inconclusive and may have been attributed to a diseased lung or coronary artery, I was not prepared to find that the assaults rendered by the offender to the chest of the deceased was the substantial cause of his death...”

96. The medical finding of possible causes of death is separate to the facts to establish the charge. The trial judge finds that the Applicant caused grievous bodily harm. The lacerations to the deceased’s chest were observable facts. There could be no point in calling the doctor where the cause of death is not established and the trial judge did not convict on a charge where death or intending to cause death is an element. That is the situation here of the conviction for grievous bodily harm. This ground has no merit.

Analysis of ground 5.

97. As to the fifth ground, the Applicant chose Zachery Gelu, who had taken instructions several months prior to the trial and had signed a “pre-trial review statement” dated 21 December 2016 albeit that document was not given to the Public Prosecutor until the day prior to the trial. A lawyer is required by the Lawyers Act to obtain a Practising Certificate from the PNG Law Society Inc. to practise in the calendar year when the Certificate is issued. It was plain to Zachery Gelu he would be not allowed to appear as he did not come with his robes, nor did he appear but informed the Court through counsel of the fact. The Applicant was well aware that Zachery Gelu would not appear on the trial but assumed that the Court would adjourn the trial.

98. In re Joseph Mavuk [1980] PNGLR 507 (Kidu CJ, Greville Smith and Pratt JJ) considered a person’s right under Constitution s. 37(4)(e) which provides that where a person is charged with an offence: “shall be entitled to defend himself before the court in person or, at his own expense by a legal representative of his own choice...”. The head note states:

Held: (1). The right of an accused person under s.37 (4) (e) is not absolute; his “choice” is subject to all proper exceptions.

(2). Proper exceptions include cases where counsel may be rendered ineligible to appear on a legal ethics basis, for example where the counsel chosen was earlier involved in the case as Deputy State Solicitor and State Prosecutor.

(3). Per curiam: A trial judge has power in the exercise of an inherent jurisdiction to refuse, if necessary, to permit counsel to appear for accused persons.

(by the Court) “What an accused person is entitled to is to counsel of his choice but not necessarily his first choice. His choice is subject to all proper exceptions. One thing that the right conferred by the provision in question would do would be to prevent an accused person being against his will assigned by the State a defence counsel whom he did not want. Having said that, we think we should not explore the effect, generally, of the provision further in this reference.

The State Prosecutor, in the case with which we are here concerned, objected to the counsel in question appearing for the accused persons. Justice must not only be done but must be seen to be done, and that includes justice to the community as well as to the accused. In our opinion the trial judge would have power in the exercise of an inherent discretion to refuse, if necessary, to permit counsel in question to appear for the accused persons.”
99. By their conduct Mr Gelu and the Applicant created the situation that brought about the appointment of Mr Tine as counsel to replace Mr Gelu as his counsel. It was obvious to both of them that Mr Gelu could not appear. It was incumbent on the Applicant to seek another lawyer to appear on the date set for trial. It seems that in putting forward the ground that he was denied his right to select his counsel the Applicant is trying to disguise their conduct. Secondly there was no injustice though that scenario is suggested in this ground. As noted above, counsel appointed by the Court was competent and he did not seek time to take more instructions to prepare for the trial. Ground 5 has no merit.

PROCEEDINGS OVERALL
100. The overall perception that the grounds give is the trial judge denied the Applicant justice and behaved in a way unbefitting a judge. In that regard the transcript records that the trial judge (Review Book pg. 17) showed irritation, indeed understandable irritation, over the conduct of the Applicant attending court with someone who did not have a current Practising Certificate and wanted to put the trial to some other time and given the circuit calendar probably 3 months hence. But as the trial progressed bail was granted.

101. In regard to bail for this potential period of 3 months, Bail Act s. 9(1)(c)(i) provides: ..a bail authority...shall not refuse bail unless satisfied on reasonable grounds...the alleged act(s)...consist of a serious assault...
The alleged act(s) do consist of a serious assault and therefor the trial judge considered not granting bail. Given the basis of the Applicant and Mr Gelu to seek an adjournment, the trial judge may have been concerned if the Applicant would return possibility some 3 months later. But as noted above the Applicant has been granted bail during the trial at the end of the first day, over the weekend and overnight after delivering the verdict and before sentence.

102. The expression “convenience of the court” is from another era. Really, when the trial judge referred to the problem associated with putting the trial to the next circuit, it is not the inconvenience to the court but the hardship and injustice to those on remand who could have had their trial heard on that circuit. The transcript makes it plain that the judge’s irritation was over and in the past when the trial got underway. It is then the mind of the trial judge was being applied to ascertaining the facts and informing on the relevant law. There was no distortion of the evidence or misapplication of the law to suggest prejudice.

SENTENCE
103. The Application is confusing whether the Application is in regard to sentence as well as conviction. The Application states “conviction also see attachments”. Under Orders Sought, the Application seeks “Conviction and Sentence be quashed.” It is appropriate to consider the Application also in regard to the sentence of seven years imposed as it was the maximum sentence that could be imposed for grievous bodily harm and raised the issue whether it was manifestly excessive.

104. The trial judge noted the maximum sentence is reserved for the worst of that type of offence. There is no doubt about the law in this regard. The Court in Avia Aihi (no. 2) and in Avia Aihi (no. 3) in declaring the law relied on the many cases and authorities and these decisions have been cited in subsequent cases. The emphasis is on “manifestly” in the expression manifestly excessive. There is a range in sentencing, such that one judge may be at the lower end of the range and another at the higher end. The maximum is at the top of the range. The difficulty of assessing whether a sentence is manifestly excessive is shown in the decisions. In Avia Aihi (no. 3) the applicant’s knifed her victim in the course of a view when he was being prosecuted for dangerous driving causing death. The attack took place in the presence of the then Chief Justice. The applicant was motivated by the fact the victim had killed her loved-one.

105. The trial judge is very experienced in hearing criminal trials. At paragraph 18 of his judgement (Review Book pg. 113) he listed 12 points he considered aggravating factors in the case:

“The aggravating factors present in this case are numerous and these are (1) the accused used a dangerous object, namely a stone to hit the deceased on his chest; (2) the deceased was assaulted at the most vulnerable part of his body, namely the chest;(3) substantial force was applied and this can be observed from photograph 15 which shows redness around the chest area; (4) the offender not only punched the deceased once on his chest with a stone but he threw a stone at the deceased the second time only to miss him; (5) the assault on the decrease was vicious and sustained; (6) the offender did not listen to his relatives to stop fighting thus demonstrating an act of defiance; (7) the sustained assault of the deceased demonstrates an intent to seriously harm the deceased; (8) the offender uttered words to the effect that he was looking for the deceased and his brother to kill thus demonstrating a high degree of determination and deliberateness to harm the deceased;(9) this was a group fight which involved a number of accomplices; (10) the victim was an old man; (11) the whole incident had disrupted family relations in the village; (12) the offence was the result of abuse of alcohol and finally such offence is prevalent in villages around the country.”

106. His Honour considered in addition the prevalence of the offence (at Review Book pg. 95/96) which is listed last but not numbered as “13”:

“Yes, these kinds of deaths are really unnecessary. Just in the Central Province alone I have heard a number of cases where property becomes important over the sanctity of life. We have cases where somebody was killed because of a pig. We have cases where somebody was killed because of chickens. We have persons killed because they were arguing over the ownership of a sago palm. So, it is really a frightening trend when one looks at it. We are now-lives are now being dictated based on properties. You do something to hurt me regarding my property, I am going to take action against you, but it is a comment I wish to make and like in this case, the argument was all about a bus, key to a bus.

The bus is still there, somebody is dead...But I just make this comment in passing that it is just becoming a trend here in the Central Province where people are killing each other because of properties like pigs, chickens, sago palm. It is just becoming a trend.”
107. The trial judge specified in paragraphs 7 to 11 of his judgement (Review Book pg. 112) the fact the victim died, did not influence himin dismissing the charge of manslaughter. These matters do not show the sentence was manifestly excessive. The Application has no merit as to sentence.

108. This separate judgement has relied on Avia Aihi (no. 2), Avia Aihi (no. 3) and In re Joseph Mavuk. It is apparent from the extracts set out below that other cases cited are not relevant to the issues of concern with this application:

• Supreme Court Reference no.4 of 1980 M. T. Somare [1981] PNGLR 265 dealt with locus standi to dispute validity of an Act of Parliament;
• The State v Mogo Wonom [1975] PNGLR 311 declared indictments to be presented in the name of “The State”;
• Raumai no. 18 Ltd v Country Motors Ltd & Ors (2018) N7952 was an Order 16 application to review fraudulent registration of a title by the Registrar;
• Ombudsman Commission v Yama 2002) SC 747 considered delay of 6 years to take action on a recommendation of the Commission;
• Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] SC1120 looked at delay in an application to set aside registration of a title;
• Kitogara Holdings Pty Ltd v NCDC [1988] PNGLR 346 involved whether a consent order could be reviewed or appealed;
• Kayo v Pawa (2015) SC 1469 was an appeal against ex parte dismissal of civil proceeding involving appointment to a statutory body;
• The State v Kofowei [1987] PNGLR 5 landmark decision declaring police as agents of the State to make the State vicariously liable for their acts;
• Biri v Ninkama & Ors. 1982] PNGLR 342 interpreted provisions on amending a petition under Organic Law on National and Local Level Government Elections;
• Avei & Anor. v Maino (2000) PNGLR 157 declared the review jurisdiction of the Court in petitions under Organic Law on National and Local Level Government Elections;
• Application by Schultz [1998] SC572 concerned procedure in an Election Petition;
• Application by Anderson Agiru [2002] SC686applicant guilty of misconduct in office sought review, Court considered abuse of process and s.155(2) Constitution,
• Kemuel & Kepao v The State [2016] SC1640 applicant was acquitted of wilful murder on no-case submission and given the special provisions on that charge, the trial concluded.
  

109. The finding in this judgment is that the Application for Review is dismissed. The order proposed by Justice Makail is the same as here, albeit we have written our separate judgments. As it may not be possible for me to travel to Waigani at this time, I ask Justice Makail to deliver my judgement.

Order

110. By majority of the Court, the Application for Review is dismissed.

_________________________________________________________________
Zacchary Gelu Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the State