Bomai v State [2024] PGSC 30; SC2561 (26 April 2024)

SC2561

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 10 & 11 OF 2023

JAMES BOMAI
Appellant

AND:
THE STATE
Respondent

Mt Hagen: Polume-Kiele J, Dingake J, Eliakim J
2024: 24^th & 26^th April

SUPREME APPEAL – Appeal against conviction for wilful murder – Supreme Court Act, Section 23(2) – whether reasonable doubt about safeness or satisfactoriness of verdict – alleged non-compliance with s 96, District Act - whether has any bearing the committal- No error, Conviction safe.

SUPREME APPEAL – Appeal against Sentence for wilful murder – 25 years – appellant conceded 25 years not manifestly excessive – Sentence of 25 years affirmed.

Cases Cited:

John Beng v The State [1977] PNGLR 115
Ambrose Lati v The State (2015) SC1413
William Norris v The State [1979] PNGLR 605
State v Guma Wau and Neng Peter Tai (2012) N4645
William Sent v Principal District Magistrate Cosmas Bidar [2017] PGSC 22

Counsel:

Ms R Mangi, for the Appellant
Mr. A. Bray, for the State

26^th April 2024

1. BY THE COURT: On 24 April 2024, we heard an appeal filed by the appellant, James Bomai against his conviction and sentence.
   

Brief Background

2. On 16 February 2022, an indictment was presented against the appellant charging him with one count of wilful murder contrary to s 299 (1) of the Criminal Code.
   
3. The background facts of the matter are that the appellant and the deceased were in a boyfriend and girlfriend relationship. On 17 December 2016, the appellant met up with the deceased where he then assaulted her and eventually stabbed her twice on her stomach with a knife and she died. He appeared before the trial judge, his Honour, Liosi J, at Kundiawa National Court for trial.
   
4. Prior to arraignment, the appellant made an application under s 558 of the Criminal Code seeking to quash the indictment for failure by the Magistrate at the Committal Court to administer s 96 of the District Court Act.
   
5. His Honour, the trial judge refused the application and proceeded with the trial of the matter. On 14 September, the trial judge found the appellant guilty of wilful murder and convicted him.
   
6. He was sentenced to 25 years imprisonment on 23 February 2023.
   
7. Leave to appeal was granted on 3 October 2023.
   
8. The appeal is against both conviction and sentence. It was filed on 3 November 2023.
   

The applicable Laws

9. Section 22 of the Supreme Court Act provides as follows:
   

“22. Criminal Appeals

A person convicted by the National Court may appeal to the Supreme Court

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

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

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

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

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

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

10. Section 23 of the Supreme Court Act states:
    

“23. Determination of appeals in ordinary cases

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

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

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

(c) there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.

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

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

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

11. Section 96 states:

“96. Accused to be asked whether he desires to give evidence.

(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect-

“Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are your required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat”.

(2) Anything that the defendant says in answer to the statement made in accordance with Subsection (1) shall be-

(a) taken down in writing in the English Language and read to him; and

(b) signed by the Magistrate constituting the Court and by the defendant if he so desires; and

(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor

(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.

12. Application under Section 558 of the Criminal Code states:

“558. Motion to quash indictment.

(1) The accused person may before pleading apply to the Court to quash the indictment on the ground that –

(a) It is calculated to prejudice or embarrass him in his defence to the change; or

(b) It is formally defective.

(2) On a motion under sub section (1) the Court may.

(a) Quash the indictment, or

(b) Order it to be amended in such manner and the Court thinks just, or

(c) Refuse the application

13. In an appeal against conviction, the appellant must demonstrate that the verdict is unsafe and unsatisfactory; or conviction entails a wrong decision in law or there were material irregularities in the trial whereby the Supreme Court is satisfied that a miscarriage of justice has been occasioned to the appellant: John Beng v The State [1977] PNGLR 115, Ambrose Lati v The State (2015) SC1413

14. In an appeal against sentence, Section 22 (d) of the Supreme Court Act provides that the question on an appeal against sentence is:

“has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentence? In William Norris v The State [1979] PNGLR 605,

“Even if no error is identified, the Court may infer identifiable error where the sentence is out of reasonable proportion to the circumstances of the crime”: William Norris v The State [1979] PNGLR 605.

Grounds of Appeal

15. The appellant raised 2 grounds of appeal. One against conviction and the another against sentence. These are set out below:

13.1 Regarding the ground of appeal against conviction, the appellant said that the trial judge erred in law in accepting the indictment premised upon a defective committal. The appellant relies on five (5) grounds to move his motion. These

(a) the trial judge acknowledged that Section 96 of the District Court Act (DCA) was not complied with prior to accepting the appellant’s committal to the National Court for trial

(b) Section 96 of the District Court Act is a mandatory provision and therefore condition precedent to formal committal to trial under Section 100 of the District Court Act.

(c) Failure to administer Section 96 renders any exercise of power by virtue of Section 100 of the District Court Act a nullity and an abuse of process

(d) The subsequent Notice of Committal issued by virtue of Section 100 of the District Court Act is therefore invalid

(e) The Indictment presented by the Public Prosecutor by virtue of his powers under 525 of the Criminal Code.

13.2 In regard to the ground of appeal relating to sentence, the appellant states that the learned trial judge erred in his sentencing discretion when he failed to give adequate reasons as to whether he accepted or rejected the payment of compensation (Bel Kol Money) which was supported by evidence in affidavits of Joe Dama and Bando Willie. Furthermore, the sentence was manifestly excessive.

16. We note and accept that the ground of appeal relating to sentence is not being pursued by the appellant. He concedes that the sentence of 25 years imposed upon him by the trial judge on 23 February 2023 is not manifestly excessive. This ground of appeal is now abandoned.

17. Consequently, only the ground of appeal against conviction is being pursued.

Addressing the grounds of appeal against conviction.

18. The issue for determination is whether the trial judge erred in refusing to the application to quash the indictment presented against the appellant?

19. In his submission against conviction, the appellant submitted that the trial judge erred in law in accepting an Indictment premised on a defective committal. He argues that the committal was defective because Section 96 of the District Court Act was not complied with.

20. Essentially, an appeal against conviction is governed by s 22 of the Supreme Court Act. In this case, the Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed: John Beng v The State (supra).

21. Ms Mangi in her submission for the appellant against conviction, submitted that whilst the trial judge agreed that Section 96 of the District Court Act is mandatory, the trial judge erred in law in refusing the application to quash the indictment presented against the appellant. She submitted that the proper course of action would have been an acceptance that the failure of a Magistrate to administer Section 96 statement be accepted as a flaw in the committal process and the matter be referred back and heard by a different Magistrate. Instead, his Honour, the trial judge held that failure to administer Section 96 of the District Court Act only nullifies the committal process and not the criminal proceeding in its entirety.

22. In refusing the application under Section 558 of the Criminal Code, his Honour the trial judge relied on the case of the State v Guma Wau and Neng Peter Tai (2012) N4645, where the Court stated at [ paragraphs 22-24] that:

“22. The practice under the current Committal Court proceedings (Handout Briefs), the committal hearing is only an inquiry. The committal magistrate gather evidence and assess them to see whether evidence is sufficient to commit accused for trial or sentence in the National Court. This is basically to see if all the elements or an ingredient of the offence is present before he commits the accused accordingly. See ss.94B, 94C, 95 & 100 of the District Court Act, Chapter 40. Whether the findings of a Committal Magistrate are against the weight of evidence is not an important aspect. This is a matter for trial proper at the National Court. See Yarume v Enga [1996] N1476. Committal Court Magistrate should therefore be cautious that they don't dwell or venture in to exercising the function of National Court.

23. Having said the above I am mindful of what the Supreme Court stated in Application by Herman Joseph Leahy (2006) SC855 that, magistrate must only have before him evidence which is admissible. He must reflect on the elements of the offence. He must weigh the evidence for the prosecution and for the defence and come to a decision whether there is sufficient evidence to put defendant upon his trial for that charge or for some other charge.

24. Even after committal, the Public Prosecutor under s.525 of the Criminal Code Act still has the opportunity to consider evidence, then at his discretion decide whether to indict on a charge of any offence that the evidence appears to him to be of any offence that the evidence appears to him to warrant: See State v John Koma (2002) N2176.”

23. In this case, trial judge found that the flaw relates to a procedural irregularity. It does not affect the decision to commit. The decision to commit is based on the depositions. It is does not contains issues centring on "substantive" defects as expounded in Gau Wau v The State (supra) in paragraph 18 which listed such defects as:

“18. Under s.558 of the Criminal Code Act, the following are some examples of defects in substance. In situation where an accused has been tried twice for the same offence. See R v Yofia Abone [1967 -1968] P&NGLR 277 at p.282; where State tried two parties to a joint crime and under separate indictments and call each as witness against each other. See R v Simbene Dandemb (Supra); In a situation where an accused was indicated for a different offence that he was initially committed for. See R v Angoro Evu [1969 -1970] P&NGLR 274; In R v Nakian Mandiam [1973] P&NGLR 135, a statutory declaration setting out injuries was tendered as evidence before Committal Court however, the accused was not given opportunity to cross-examine. These are not exclusive examples of defects in substance”.
24. Having considered the submission of counsels, we are of the view that the trial judge had considered all the relevant facts and circumstances, including the law relating to appeal against conviction, the requirements of Section 96 of the District Court Act, the merits of the Section 558 of the Criminal Code Application and had arrived at a finding which was reasonable in all the circumstances. There is no error of law. His Honour correctly held that the defect in this case is procedural in nature and does relate to the actual form of the indictment.

25. To succeed in an application to quash an indictment, an applicant must raise defect in substance, which would relate to the committal process and jurisdiction of the court. An application to quash the indictment must relate to the actual form of the indictment. a formal defect of the indictment is raised, it will be limited to the form in which the indictment appears.

26. Having heard counsels on the appeal, we have arrived at a finding that the trial judge has considered the application to quash the indictment that failure of the committal court to comply with s 96 of the District Court Act is a procedural irregularity which does not affect the decision of the Committal Court to commit the appellant on a charge of wilful murder. The decision to commit is based on the depositions.

27. We find no error in the finding of the trial judge that the procedure required in a Committal Proceedings required a Magistrate to consider the evidence and ensure that it is lawfully obtained and to determine if there is a prima facie case. If a Magistrate finds that the evidence is sufficient, it may commit to the National Court. The committal court is not defective because of a defect in compliance with one procedure in admitting a piece of evidence. Consequently, we find that failure of the committal court to comply with s 96 of the District Court Act is a procedural irregularity. It does not affect the decision to commit.

28. The procedural irregularity does not prejudice the appellant in any way, as he had opportunity to raise any defence during the pre-trial stages of the trial including the filing of the notice of alibi which both counsels agreed was filed out of time and therefore his Honour, the trial judge was within his discretion to refuse to allow the alibi evidence to be called.

29. In any event, even if the alibi evidence was refused, the trial judge did consider the issue raised regarding the identification of the accused, the trial judge found that the appellant was adequately identified by State witnesses and found that it was the accused to be the person charged with the offence.

30. Having considered the arguments for and against the decision of the trial judge in his finding relating to the failure of the learned Magistrate to administer Section 96 of the District Court Act. Ms Mangi for the appellant referred us to the case of William Sent v Principal District Magistrate Cosmas Bidar [2017] PGSC 22, which is an appeal against dismissal of Judicial Review proceedings against the committal of the appellant to stand trial in the National Court. In that case, the Supreme Court stated at [20-21] “there is a significant procedural difference between a judicial review process and a criminal process. In the criminal process, in addition to the much higher standard of proof, mere breach of procedure does not automatically render a judicial act a nullity. It has to be demonstrated that that such an error has resulted in a miscarriage of justice”.

31. That case is also relevant to this appeal, and we do note that the applicant has failed to refer us to a point where mere breach of administering Section 96 renders a judicial act a nullity and or has demonstrated that such an error has resulted in a miscarriage of justice.

32. Having accessed the evidence, we accept that the learned trial judge did find that the failure to administer Section 96 is a procedural irregularity and the defect is not substance. It does not affect the decision to commit. The decision to commit is based on the depositions.

33. It is trite that the Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed: John Beng v The State (supra), Section 23 of the Supreme Court Act.

34. Having carefully assessed the totality of the evidence, we are satisfied that the learned judge did not err in finding that the failure to administer Section 96 statement is a defect in procedural irregularity. It is not a defect in substance. Failure to administer Section 96 does not affect the decision to commit the appellant to stand trial, The decision to commit is based on the depositions. Hence, we conclude that the conviction is safe.

35. The ground on sentence was abandoned by the Applicant so we leave it there.

36. In conclusion, the orders of the Court are that:

(1) The appeal is dismissed.

(2) The conviction imposed by the Court below is confirmed.
_______________________________________________________________
Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyers for the State