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Papua New Guinea Law Reports |
[1980] PNGLR 510 - Acting Public Prosecutor v Uname Aumane, Aluma Boku, Luku Wapulae, and Piope Kone
[1980] PNGLR 510
SC190
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
ACTING PUBLIC SOLICITOR
V
UNAME AUMANE, ALUMA BOKU, LUKU WAPULAE AND PIOPE KONE
S.C.A. NO. 14 OF 1980
Waigani
Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ
29 August 1980
1-2 September 1980
19 December 1980
CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Appeal by Public Prosecutor - Time for lodging appeal - Appeal outside 40 days prescribed by r. 32 of Supreme Court Rules competent - Whether s. 12 of Interpretation (Interim Provisions) Act 1975 applicable - Supreme Court Act, ss. 21[dcclii]1, 23, 27[dccliii]2 - Constitution s. 184[dccliv]3.
CRIMINAL LAW - Appeal against sentence - Murder - Wilful murder of reputed sorceress - Relevance of cultural factors including belief in sorcery - Order for payment of pigs as compensation without jurisdiction - Taking into account of custom on sentencing - Meaning of - Native Customs (Recognition) Act 1963, s. 7(e)[dcclv]4.
STATUTES - Validity - Inconsistency between Act and Rules - Act to prevail - Appeal against sentence - Appeal by Public Prosecutor - Statutory right of appeal unfettered - Rules requiring lodging of appeal within 40 days - Rule invalid - Appeal outside time competent - Supreme Court Act 1975, ss. 21[dcclvi]5, 23, 27[dcclvii]6 - Supreme Court Rules 1975, r. 32 - Interpretation (Interim Provisions) Act 1975, s. 12.
Four villagers from parts of the Enga Province pleaded guilty to charges that they wilfully murdered a woman (whom they believed to be a sorceress) thereby contravening s. 304 of the Criminal Code. The trial judge sentenced each offender to three months’ imprisonment with hard labour and (purporting to rely on s. 7(e) of the Native Customs (Recognition) Act 1963) ordered “each of them to pay five native pigs to the deceased’s younger son immediately upon release”.
(Kidu C.J., Kearney Dep. C.J., Greville Smith J., Andrew J., Kapi J.)
The Acting Public Prosecutor appealed against inadequacy of sentence, his notice of appeal being lodged 42 days after the imposition of the sentence; (r. 32 of the Supreme Court Rules 1977 provides that a notice of appeal by the Public Prosecutor shall be filed within 40 days of the pronouncement of sentence and r. 23 of the Supreme Court Act provides:
“A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appealed from or within such further time as shall be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from.”)
Section 12 of the Interpretation (Interim Provisions) Act 1975 provides:
“12 PROVISIONS WHERE NO TIME PRESCRIBED
Where no time is prescribed or allowed within which an act is required or permitted by a provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.”
On objection to the competency of the appeal.
Held
(1) Rule 32 of the Supreme Court Rules 1977, which is inconsistent with s. 23 of the Supreme Court Act 1975, insofar as it imposes a time limit on the institution of an appeal by the Public Prosecutor, is invalid as being outside the rule making power conferred by s. 184 of the Constitution.
(2) (Per Kearney Dep. C.J. and Greville Smith J., with whom Kidu C.J. and Andrew J. agreed). Section 12 of the Interpretation (Interim Provisions) Act 1975, has no application to s. 23 of the Supreme Court Act 1975 because the provision in s. 23, is not a provision in which “no time is ... allowed within which an act is permitted to be done”.
(3) (Per Kapi J. dissenting) Section 12 of the Interpretation (Interim Provisions) Act 1975 applies to s. 23 of the Supreme Court Act 1975 because the institution of an appeal by the Public Prosecutor is a discretionary matter, that is an act “which is permitted” by s. 12, and an act which is required by s. 12 to be done with “all convenient speed”: and what is a convenient speed depends upon the circumstances of the particular case: in the circumstances the notice of appeal had been filed with convenient speed within the meaning of s. 12.
(4) The court had jurisdiction to hear the appeal.
On appeal against inadequacy of sentence.
(5) The sentences of three months imposed were most inadequate and should be increased in each case to five years and five months (taking into account four months awaiting trial and three months already served).
(6) The order directing payment of pigs as compensation was made without jurisdiction and should be set aside.
(7) (Per Kapi J.) Section 7(e) of the Native Customs (Recognition) Act 1963, which provides that “custom shall be taken into account in determining the penalty (if any) to be imposed on a guilty party, means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence, and may impose the appropriate punishment within the range given by law.
Relevance to sentence of cultural factors including belief in sorcery discussed.
Appeals
These were appeals against inadequacy of sentence by the Acting Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975.
Counsel
L. L. Gavara-Nanu and C. J. Bourke, for the State.
K. A. Wilson and N. R. P. Kirriwom, for the respondents.
Cur. adv. vult.
19 December 1980
KIDU CJ: This is an appeal by the Public Prosecutor brought under s. 23(1) of the Supreme Court Act 1975. Section 23(1) reads as follows:
“23. APPEAL BY PUBLIC PROSECUTOR AGAINST SENTENCE
(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper”.
Counsel for the respondents raises an objection—that this Court cannot entertain the appeal because the appeal was lodged out of time contrary to r. 32 of the Supreme Court Rules 1977. This rule provides:
“A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appealed from or within such further time as shalt be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from.”
There is no dispute that the Public Prosecutor lodged his appeal 42 days after the sentence was pronounced and that no extension for time to appeal was made within the 40 days stipulated in r. 32.
The Public Prosecutor submits that s. 23 gives him a discretionary right to appeal. This right, he says, is of an absolute nature as against any right a convicted person has of appealing under s. 21 of the Act. Section 21 is restricted by s. 27 of the Act whilst s. 23 contains no restriction nor is it restricted by any other provision of the Act.
I find no room for the suggestion that the Public Prosecutor’s right of appeal under s. 23 of the Act is subject to s. 32 of the Supreme Court Rules 1977. Section 184 of the Constitution, under which the Rules were made, provides, inter alia, as follows:
“184. RULES OF COURT
(1) The Judges of the Supreme Court or of the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.
...”
(4) If an Act of the Parliament comes into force that is inconsistent with a rule of court, the rule ceases to have effect to the extent of the inconsistency.
...”
The intention of the Constitution (s. 184) is quite clear—a rule of court must not be inconsistent with a Constitutional Law or an Act of the Parliament.
In this case the Supreme Court Act 1975 came into effect on 16th September, 1975, whilst the Supreme Court Rules were operational in 1977. This does not make any difference. Section 184 of the Constitution should have been observed when the Rules were made.
Rule 32 is inconsistent with s. 23 of the Act and therefore is invalid.
As to whether s. 12 of the Interpretation (Interim Provisions) Act 1975 applies to the operation of s. 23 of the Supreme Court Act 1975, I concur with reasons and convictions of my brothers Kearney and Greville Smith and I have nothing to add.
SENTENCE
I consider the sentences of three months’ imprisonment with hard labour grossly inadequate for the crime of wilful murder.
His Honour the learned trial judge properly took into account the background of the respondents. I have no quarrel on that score. For instance he found that the respondents came from a remote part of the country with minimal contact with the outside world; that they encountered “modern life style” after they were taken into custody; that their area was sparsely populated and that what they did was out of fear of sorcery.
His Honour then, it seems to me, went into great lengths about the effect of sorcery or belief in it in the minds of believers. I agree, with respect, that in many communities in Papua New Guinea belief in sorcery and its powers is very strong and we cannot brush it aside. My own people believe it and great fear is caused by such belief.
That the cultural setting of the respondents must be taken into account is not disputed. This has always been done by the National Court and the Supreme Court. Secretary for Law v. Ulao Amantasi and Ors.[dcclviii]7 is a case in point. However, it should not override the clear dictates of the Parliament that those who commit the crime of wilful murder attract to themselves the possible penalty of imprisonment with hard labour for life. If Parliament represents the people of Papua New Guinea and the laws it makes reflect the attitude of the people, then courts must take heed.
His Honour, with the greatest respect, over-emphasized the belief in sorcery. In fact he went so far as to state that the deceased had killed about twenty people by sorcery. There was no such evidence. This was only what was believed by the respondents. While I agree that the respondents believed that “... in the present case some twenty fell at the deceased’s hands ...” there was no proof that this in fact happened.
His Honour used the Sorcery Act 1971 to justify the killing. With respect, that was an incorrect approach. This Act makes provisions for sorcery offences. This deceased was entitled to be charged under that Act. Whether she was guilty or not she was entitled to the protection of the law. The belief in sorcery was rightly taken into account in sentence but it seems to have outweighed other considerations.
There was no evidence of a pre-determined killing. The evidence was that the respondents were taking the deceased to the kiap at Porgera when she tried to escape. She was caught and whilst her hands were held she was shot with arrows by three of the respondents. I cannot see how this made it a surprise killing.
The respondents, with respect to the learned trial judge, did not “act or believe” that they were acting “under the influence of sorcery”. They believed that the deceased had caused the death of about twenty people by sorcery and they killed her.
It was said that the killing of the deceased, a reputed sorceress, was honourable. First there was no evidence that this was so; secondly if this was so, it cannot be condoned by the courts. It is the duty of the courts to bring home to those who take human lives that taking such lives under whatever circumstances cannot be said to be honourable.
His Honour said that whilst the respondents were taking the deceased and she tried to escape, the fear of sorcery “turned into excitement and mass psychology when the deceased tried to run away”. The facts of the case do not bear out this assumption. The evidence shows that an old woman, a reputed sorceress who had allegedly caused the death of about twenty people by her sorcery, whilst being taken to the authorities at Porgera, tried to run away but was caught and killed by the respondents. With the greatest respect to the learned trial judge, that was all. No excitement or mass psychology. If there was it does not justify the killing of a helpless old woman.
Abuse of authority or leadership have no bearing on crimes such as wilful murder. The Constitution specifically directs that no person is to be deprived of his/her life intentionally. Certain exceptions which justify killing are set out but they do not apply in this case. It cannot be said, in my view, that a leader or a person in authority is more blameworthy. If the respondents did not know this then it is the duty of the courts to bring it home to them and not make excuses for them.
Whether a person kills with a stick or a gun makes no difference at all. It is the use to which the article is put and the intention which are important. A person who intentionally clubs to death another person with a stick is no less guilty than a person who intentionally shoots another person with a gun and causes death.
The sentence of three months was grossly inadequate for the offence of wilful murder.
I would substitute six years’ imprisonment with hard labour. The respondents have each already spent seven months in custody. That should be deducted; and sentences of five years and five months’ imprisonment with hard labour imposed.
KEARNEY DCJ: The Public Prosecutor appeals against the sentences imposed upon the respondents following their convictions by the National Court.
The appeal is brought pursuant to s. 23 of the Supreme Court Act 1975, the relevant part of which is as follows:
“(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, ... as to sentence ...”
The sentences were imposed on 4th June 1980. The notice of appeal was not filed in the Court registry until 16th July 1980, that is, not until 42 days after sentence. The respondents take the preliminary point that the appeal is incompetent, because it was not brought within 40 days after sentence, as required by r. 32 of the Supreme Court Rules 1977. I deal first with this point.
Mr. Gavara argues as follows. Both s. 21 and s. 23 are in Div. 3 of the Act; both grant certain rights of appeal. Section 21 sets out the grounds on which a person convicted, may appeal; s. 23 sets out the grounds on which the Public Prosecutor may appeal. Neither s. 21 nor s. 23 deal with the time within which the respective appeals must be lodged. Timing for Div. 3 appeals is dealt with exclusively in s. 27 (subject to the effect, if any, of s. 12 of the Interpretation (Interim Provisions) Act 1975).
The relevant parts of s. 27 read as follows:
“(1) Subject to Subsection (2), where a person convicted desires to appeal ... he, shall give notice of appeal ... in the manner prescribed by the Rules of Court within 40 days after the date of conviction.
(2) The time within which notice of appeal, ... may be given may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.”
Mr. Gavara submits that since s. 27 is the only “timing” provision in the Act for Div. 3 appeals, and imposes time limits only on s. 21 appeals, it follows that the intention of Parliament manifest in the Act is that the Public Prosecutor’s right of appeal under s. 23 is untrammelled, as to the time within which it must be instituted, (subject to the impact of the Interpretation (Interim Provisions) Act 1975).
The relevant part of r. 32 is as follows:
“32. A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the Registry within 40 days immediately after the pronouncement of the sentence ... or within such further time as shall be allowed by the Court or a Judge upon application made within 40 days ...”
As to the effect of r. 32, Mr. Gavara made several submissions, but ultimately relied only on one: that, insofar as it purports to impose a time limit on s. 23 appeals, the rule is inconsistent with s. 23 as properly construed, as indicated above, and therefore of no effect, because of Constitution, s. 184(1).
Mr. Gavara conceded that s. 12 of the Interpretation (Interim Provisions) Act 1975, applied to s. 23 appeals. What was not argued, was how it applied. Section 12 is as follows:
“12. Where no time is prescribed or allowed within which an act is required or permitted by a provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.”
Mr. Wilson argues as follows. Rule 32 does not cut down the right of appeal granted by s. 23. It is a valid rule of court and must be observed. The structure of the Supreme Court Act 1975 and the Supreme Court Rules, so far as concerns the present appeal, is similar to the structure of corresponding legislation pre-Independence, where a more restrictive time limit was imposed by the Rules on the institution of appeals by the State.
I now deal with these submissions. It is clear that this Court has jurisdiction to determine conclusively a question upon which its jurisdiction depends.
Leaving aside s. 12 of the Interpretation (Interim Provisions) Act 1975, it is clear that s. 27 of the Supreme Court Act 1975 is the only statutory provision which deals with the setting of time limits on Div. 3 appeals. It sets a time limit on the institution of s. 23 appeals. It appears to me to follow quite clearly that the true intent of Parliament, the apparent purpose of the Act, is that s. 23 appeals may be instituted, without time limit. The lack of a time limit occasions no difficulty or injustice; see, for example, the approach to State appeals in R. v. Porter [dcclix]8. It is of course the primary duty of the court to give effect to the intention of Parliament as manifested in the Act. Rule 32 is in direct conflict with the Act. The Act must prevail unless the court has express power to make a rule affecting the substantive right given by s. 23 of the statute. The rule-making power of the court is in Constitution s. 184(1), which limits that power to Rules “not inconsistent with ... an Act of the Parliament”. As r. 32 imposes a condition precedent upon the untrammelled right of appeal given by s. 23, the rule is invalid.
The question remains whether this analysis is affected by s. 12 of the Interpretation (Interim Provisions) Act 1975.
Interpretation provisions such as s. 12 are normally exclusively directed to statutory provisions which require acts to be done. However s. 12 is clearly directed both to acts required to be done and to acts which may be done. This blending causes difficulty.
Section 23 may fairly be categorized as one of the latter type of provisions. By the use of the words “as the case may be”, s. 12 maintains within itself a clear distinction in its application to these two categories of acts; the effect is that those required to be done shall be done, while those permitted to be done may be done, in each case with all convenient speed and as often as the occasion arises. The words “as the case may be” render it impossible, in my opinion, as a matter of construction, to read the words “the act shall ... be done” as referring back to permitted acts.
The application of s. 12 to the first category of acts is very clear. Its application to the second category of acts is, I think very obscure. It is solely with the second category of acts that we are here concerned.
The literal and grammatical effect of s. 12 is that permitted acts “may be done ... with all convenient speed and as often as the occasion arises”, and the emphasized “may” is not to be read as “shall”. So construed, s. 12 lacks meaningful effect. I do not think, therefore, that a literal and grammatical construction should be adopted. I adhere to the view on statutory interpretation I expressed in The State v. The Independent Tribunal; Ex parte Moses Sasakila [dcclx]9; and agree with respect with the views of Wilson J. on that subject, in the PLAR No. 1 of 1980[dcclxi]10.
The question is, what was the Parliament trying to achieve in s. 12, in relation to permitted acts? The fair and liberal meaning, and that which would best dispense justice is, I think, that once the actor embarks upon the act he is permitted to do, he shall carry it out with all convenient speed. This of course involves reading “may be done”, in the imperative sense.
Taking that view of s. 12, and applying it to s. 23, the “Act” in question is the whole process of the appeal. The Public Prosecutor’s right to institute an appeal at any time against sentence remains unaffected; but once having initiated such an appeal he is bound to pursue it with all convenient speed.
Applying s. 12 in this way, it follows that it has no bearing on the threshold objection of the respondents.
For the reasons given earlier, I consider that r. 32 is invalid and the Public Prosecutor’s appeal is not required to be lodged within 40 days, or within any specific time; the threshold objection fails, and the appeal is competent.
I turn to the merits of the appeal.
I respectfully agree with the views expressed by Kapi J. as to the effect of s. 7(e) of the Native Customs (Recognition) Act 1963; the proper approach to sentencing facts; the duty of a State Prosecutor, on matters relevant to sentence; and the effect of s. 19 of the Criminal Code.
I have had the benefit of reading the opinions of the Chief Justice, and Andrew and Kapi JJ. on sentence. I respectfully agree with their views and add only this. The glue which holds together diverse peoples in one society has, as an essential element, respect for the sanctity of human life. The law must strengthen that element, inculcate that respect, as best it can. In practical terms, this is reflected in a sentencing policy for crimes of wilful murder which will best enhance that respect.
I concur in the view of the Chief Justice that the appeal be upheld; the sentences quashed; and in substitution therefore, that sentences of five years and five months’ imprisonment with hard labour be imposed on each of the respondents. The order for the payment of pigs must be set aside, as made without jurisdiction.
GREVILLE SMITH J: Section 21 of the Supreme Court Act, 1975, provides, inter alia, as follows:
“21. CRIMINAL APPEALS
A person convicted by a Judge of the National Court may appeal to the Supreme Court:
...
(d) with the leave of the Court, against the sentence passed on his conviction unless the sentence is one fixed by law.”
Section 23(1) of the Supreme Court Act provides as follows:
23. APPEAL BY PUBLIC PROSECUTOR AGAINST SENTENCE
(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.”
Section 27 of the same Act provides:
“27. TIME FOR APPEALING UNDER DIVISION 3
(1) Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.
(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Supreme Court or a Judge of the Supreme Court on application made within 40 days after the date of conviction.
(3) In the case of a conviction involving a sentence of death or of corporal punishment:
(a) the sentence shall not in any case be carried out until after the expiration of 40 days or such further time as is allowed under this section; and
(b) if notice is so given, the sentence shall not be carried out until after the determination of the appeal, or where an application for leave to appeal is finally refused, of the application.”
Sections 21, 23 and 27 aforesaid are all within the “Division 3” of the Act referred to in the heading to s. 27.
The Supreme Court Act contains no provision enabling the making of subordinate legislation, but s. 184(1) of the Constitution provides as follows:
“184. RULES OF COURT
(1) The Judges of the Supreme Court or of the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.”
Under the provision of s. 184(1) of the Constitution, the Judges of the Supreme Court made rules of court entitled the Supreme Court Rules 1977.
Rule 32 of the Supreme Court Rules 1977 provides as follows:
“32. NOTICE OF APPEAL
A notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appealed from or within such further time as shall be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from.”
No time limit is placed on the Public Prosecutor’s right to appeal given by s. 23 of the Supreme Court Act either by the terms of the section itself or by any other provision of the Supreme Court Act. In terms of the Act the Public Prosecutor’s right to appeal is unlimited in duration, and that such right was intended by the Legislature not in fact to be subject to any time limit is surely super-abundantly clear from the express imposition in the Act of a time limit upon the right of a convicted person to give notice of application for leave to appeal.
Additionally, one may refer to s. 5d of the Criminal Appeal Act, 1912 of New South Wales which provides as follows:
“5d Appeal by Crown against sentence
The Attorney General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or the District Court and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.”
A right of appeal by leave of the court against sentence is in the same Act given to an accused person by s. 5, with a time limit for giving notice of appeal, imposed by s. 10, co-incidentally of ten days, together with a power in the court except in the case of conviction involving sentence of death, to extend at any time the time within which application for leave to appeal may be given.
In Reg. v. Porter[dcclxii]11 the New South Wales Court of Criminal Appeal (Street C.J., Owen and Herron JJ.) in a judgment of the Court delivered by Street C.J. stated as follows:
“At the outset a preliminary objection was taken that the appeal was lodged too late and was therefore not competent. Section 5d permits the Attorney-General to appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions (now District Court) and no time limit is set within which appeals may be instituted under this section. It was argued that the section must be read as requiring the Attorney-General to appeal within a reasonable time, but, in view of the omission to set any statutory limit upon the Crown’s right, it is difficult to see how this application could be made as a preliminary objection to the Court proceedings with the hearing of the appeal. But it is possible, that in some circumstances the Court might take a long delay into account, and it is necessary, therefore, to review shortly the happenings subsequent to 3rd September, when his Honour passed sentence upon the three accused.”
The Court thus held that the Crown might lodge an appeal at any time but a long delay might be taken into account by the court in determining whether or not it should increase the sentence appealed against.
In Queensland the Attorney-General may appeal against sentence under the provisions of s. 669a of the Criminal Code. In this provision, likewise, no time limit is stipulated or implied in the section, or is otherwise imposed. Under s. 668d, a convicted person may appeal against sentence, but a time limit of fourteen days for the giving of appeal for leave to appeal is imposed by s. 671, which may be extended at any time by the court.
In New South Wales and Queensland the right of the Attorney-General and in Papua New Guinea the power of the Public Prosecutor to appeal against sentence is as of right in each jurisdiction, but the right of the accused person is subject to leave of the court.
The right of the Attorney-General in New South Wales to appeal against sentence was in its present terms introduced in 1924 (Act No. 10 of 1924 (N.S.W.)) and the right of the Attorney-General in Queensland to appeal against sentence was in its present terms introduced in 1939 by the Criminal Code Amendment Act, 1939 (Qld.). It has never been held nor judicially suggested in either jurisdiction that the terms of the relevant provision could in some way be read down by the courts so as to impose a time limit. The relevant provisions of the Papua New Guinea Supreme Court Act are modelled on the provisions of New South Wales and Queensland with the obvious intention of achieving the same result. This is the traditionalist approach to conferring powers upon high officers of the State.
In my view r. 32 is ultra vires s. 184(1) of the Constitution because it is inconsistent with s. 23(1) of the Supreme Court Act, in that it purports to place a time limit on the exercise of a right possessed by the Public Prosecutor, clearly intended by the Legislature, as denoted by the terms of s. 23(1), to be unbounded in time.
In some other jurisdictions for instance, New Zealand and Canada, the right of appeal against sentence given, in the first case to the Solicitor General, and in the second case the Attorney-General or counsel instructed by him, is given, for all practicable purposes, in terms identical with terms whereby a right of appeal against sentence is conferred on convicted persons. In the case of New Zealand an identical time limit is imposed in the statute and in the case of Canada the matter of a time limit on appeals against sentence is expressly left to be dealt with in the Rules. (See Crimes Act of New Zealand, s. 383(1)(a), 383(2) and 388—Garrow and Willis Criminal Law (5th ed.), pp. 361 and 381; Criminal Code of Canada, ss. 306(1)(b), 305 and 306—Crankshaw’s Criminal Code, (7th ed.), pp. 250, 251 and 257).
Different jurisdictions thus have different provisions, as illustrated above. These are matters for the Legislature and, in each of the above-mentioned instances, in my view, the Legislature has made its intention clear by the words used. If the provisions are to be changed, as may be desirable in a particular case, then that is a matter for the Legislature. It is not for this Court to wring out from a reluctant statute a meaning foreign to its plain intendment, or to find a novel meaning by recourse to other legislation with no real application to the matter in hand. To do so would be to diminish the integrity of this Court. The approach of the Queen in Alice in Wonderland—“Words mean what I want them to mean”—is not one open to this Court.
I refer now to s. 12 of the Interpretation (Interim Provisions) Act 1975, which was relied upon by the respondent and which provides as follows:
“12. PROVISIONS WHERE NO TIME PRESCRIBED
Where no time is prescribed or allowed within which an act is required or permitted by a provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.”
It should be mentioned that there is no provision in these terms in New South Wales, and I have been unable to find one elsewhere.
In my view the provisions of this section have no application to s. 23 of the Supreme Court Act because the provision in that section is not a provision within the meaning of s. 12 in that it is not a provision in which “no time is ... allowed within which an Act is permitted ... to be done ...”.
Historically, and also as a matter of straight statutory interpretation in context, s. 23 in my opinion, as I have already stated, allows an unlimited time, time without end, subject of course to practical considerations, and the consideration referred to by the Court in Reg. v. Porter [dcclxiii]12.
Even if there were deemed to be any conflict, which in my opinion there is not, then s. 23 of the Supreme Court Act is in context a particular and unambiguous provision and s. 12 is a general provision. The maxim “generalia specialibus non derogant” that is, general provisions will not abrogate special provisions (Bishop of Gloucester v. Cunnington [dcclxiv]13) is of general application.
A statute should be construed in a manner to carry out the intention of the Legislature (Francis Jackson Developments Ltd. v. Hall and Anor.[dcclxv]14 per Lord Denning L.J.), and an intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available which will not have that result (Artemiou v. Procopiou [dcclxvi]15, per Danckwerts L.J.). It would be strange indeed if the Legislature having decided to depart from the traditional approach and apply a time limit to the power of the Public Prosecutor, did not pursue such a course by provision in the same statute, the Supreme Court Act, and provide that the same time limitation, as New Zealand and Canada, on the right of the State to appeal against sentence and the right of a convicted person to so appeal, but instead imposed a time limit on the Public Prosecutor’s right in the terms of s. 13 of the Interpretation (Interim Provisions) Act requiring “all convenient speed”, which might be less in a particular case than the time available to a convicted person appellant and which might well in many cases place upon the State Prosecutor a complex initial onus of proof. Or in a particular case, depending on the circumstances, the “all convenient speed” formula may give a longer period than that available to a convicted person. All to what purpose? Such an irrational result could never have been the intention of the Legislature.
There is another approach to this matter which to my mind is also conclusive. Section 23 of the Supreme Court Act clearly confers upon the Public Prosecutor a discretion, just as s. 21(d) confers upon a convicted person (subject to leave of the court) a discretion. However, the word “may” may occasionally bear an imperative connotation, and in such cases must be read as equivalent to “shall”. Accordingly a provision in terms permissive may be in meaning imperative (vide Re Fettell [dcclxvii]16; Finance Facilities Pty. Ltd. v. Commissioner of Taxation of the Commonwealth [dcclxviii]17, per Windeyer J.).
In my view s. 12 of the Interpretation (Interim Provisions) Act is confined to acts in relation to which the statutory provision is imperative, whether couched in imperative form or permissive form.
The reasons for this view are as follows. The composite form of s. 12 may be separated out into two component provisions, as follows:
(1) Where no time is prescribed within which an act is required by a provision to be done the act shall be done with all convenient speed.
(2) Where no time is allowed within which an act is permitted by a provision to be done the act may be done with all convenient speed.
In (1) the words “prescribed”, “required” and “shall” must all have the same connotation which is clearly an imperative one, and that part of s. 12 reads sensibly as so separated out.
In (2) the words “allowed”, “permitted” and “may” must all have the same connotation which, as has been seen is “prima facie” permissive, but which may be permissive in form only but imperative in meaning.
In its permissive form “may” confers a discretion, a power to do or refrain from doing some act (South Australian Cold Stores Ltd. v. Electricity Trust of South Australia[dcclxix]18 per Owen J.). It would seem meaningless to provide, as in (2), that a permitted act may be done with all convenient speed if what is meant is that the person concerned may in his discretion do or refrain from doing the act “with all convenient speed”. But the obvious senselessness, or non-sense, disappears if “may” is understood in an imperative sense, and if such an imperative sense is carried back also to the words “permitted” and “allowed”, and (2) is seen to apply only to an imperative provision couched in a permissive form. Such a provision, the provision contained in s. 23(1) of the Supreme Court Act is not, and it follows that s. 12 does not apply to s. 23(1).
The view that the “allowed”, “permitted”, “may” provision of s. 12 relates only to essentially imperative provisions receives fortification by reference to the heading of that section, for “... the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words ...” (Pax v. Surrey (North Eastern Area) Assessment Committee[dcclxx]19 per Lord Goddard). Whilst s. 12 provides “where no time is prescribed or allowed ...” the heading is “PROVISIONS WHERE NO TIME IS PRESCRIBED”. The term “prescribed” is, as the section aptly illustrates, appropriate to imperative provisions, and its use alone in the heading suggests that the section deals only with provisions imperative in substance, whatever their form.
Of course it might be suggested that “may be done ... with all convenient speed” means “may be done if it is to be done at all, with all convenient speed” or “may only be done with all convenient speed” but such a meaning would require the reading into the section of words which are not there, whereas the interpretation suggested hereinbefore as correct is to be preferred because it does not.
In Craies Statute Law (7th ed.), p. 162, the following passage occurs:
“General Statutory definitions
The first attempt to introduce general statutory definitions, applicable to all Acts of Parliament, was made in 1850 by ‘An Act for shortening the Language used in Acts of Parliament’ (Brougham’s Act). Section 4 of that Act provided that in all Acts of Parliament words importing the masculine gender should be deemed to include females, and the singular to include the plural, and that month should prima facie mean calendar month. The same section also contained statutory definitions of the expressions ‘County’, ‘Land’, ‘Oath’, ‘Swear’, and ‘Affidavit’. That Act was repealed by the Interpretation Act 1889, which re-enacted in substance the above section and provides a large number of additional statutory definitions applicable to all Acts passed after August 30, 1889.”
In the use of such statutes their fundamental nature, as general Acts shortening and Act Interpretation Acts should not be lost sight of and they should be given an interpretation according to their nature. “... an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain.” (The Queen v. Pearce[dcclxxi]20). The preliminary note to the Queensland Acts Interpretation Act, Queensland Statutes, vol. 1, p. 61 states the matter as follows:
“The question always remains one of construction of the statute prescribing the rule of law. As a general rule it is only where such a statute fails to indicate any intention on the point that the provisions of the Acts Interpretation Acts are to be applied.”
That is a succinct distillation of innumerable judicial decisions.
One further point. If s. 12 of the Interpretation (Interim Provisions) Act 1975, could, by some stretch of the imagination be held to require the use of purely discretionary powers “with all convenient” speed this would raise an immense and unprecedented complication into the operation of the law generally. There must be literally hundreds of discretionary powers conferred by the Legislature upon various authorities by use of the word “may” or the words “it shall be lawful”. Whenever such a power is exercised, is the validity of such exercise to depend upon whether it was exercised “with all convenient speed”, a question which in many cases would require a detailed factual examination to determine. To contend that such a purpose was the aim of the Legislature in enacting s. 12 is to my mind to state an absurdity.
There is authority suggesting that even in the case of a conflict between an interpretative, which of course is a “non-enacting”, provision of an Act and a provision of an Acts Interpretation Act the former should prevail. In Australian Railways Union v. The Victorian Railways Commissioners and Ors.[dcclxxii]21, Rich, Starke and Dixon JJ. said:
“It may be that a general provision applying to all legislation cannot be given the same operation as a special provision introduced into legislation the precise character of which was before the Legislature.”
And surely this must be so.
It follows from the foregoing that in my view the State is not out of time in lodging the notice of appeal in question, and the appeal is competent.
As to the duration of the sentence imposed, I have had the advantage of reading the judgments of my brother the Chief Justice and Andrew J. and I agree generally with what each has to say on the matter. In my opinion the sentence imposed is demonstrably wrong in principle and manifestly inadequate in duration. I would allow the appeal and substitute a sentence of five years and five months with hard labour in each case. The appropriate warrants should issue.
ANDREW J: This is an appeal by the Acting Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975 against the inadequacy of sentences of three months’ imprisonment imposed by the National Court during the June sittings, 1980, at Wabag.
Counsel for the respondents takes the preliminary point that the appeal was not lodged within the period of 40 days as required by r. 32 of the Supreme Court Rules 1977. It is not in dispute that the appeal was in fact lodged forty-two days after the pronouncement of the sentence and that no application for extension of time in which to appeal was made within the forty day period.
Section 23(1) of the Supreme Court Act provides as follows:
“23. APPEAL BY PUBLIC PROSECUTOR AGAINST SENTENCE
(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.”
It is at once clear enough that the Supreme Court Act provides no time limit in which the Public Prosecutor may appeal against sentence. The Supreme Court Rules are to regulate and prescribe the practice and procedure of the Supreme Court in relation, inter alia, to appeals. They are made by the judges of the Supreme Court under s. 184 of the Constitution.
These rules came into force in 1977 (Statutory Instrument No. 22 of 1977). Rule 32 is as follows:
“32. NOTICE OF APPEAL
A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appeal from or within such further time as shall be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from.”
In reply to the preliminary point taken, the Acting Public Prosecutor submits in substance that s. 23 of the Supreme Court Act should be compared with s. 21 of the Act which sets out the grounds on which a convicted person may appeal. Neither section contains any time limits but by s. 27 a convicted person shall give notice of appeal within 40 days after the date of conviction. He submits that as there is no such restriction in the Act as to the time in which he may appeal, then r. 32 of the Supreme Court Rules is inconsistent with s. 23 of the Act and therefore of no effect due to s. 184(1) of the Constitution.
A similar situation arose in R. v. Ward [dcclxxiii]22. In that case s. 31 of the English Criminal Appeal Act 1968 contained no time limits within which an appellant might apply to the Court of Appeal for various relief including leave to appeal but r. 12 of the Criminal Appeal Rules 1968 provided a time limit of fourteen days. The Court of Appeal acknowledged that if the language of the rules is to limit the court’s exercise of its power under the Act then there might well be all manner of arguments about whether the matters was or was not ultra vires. However for reasons not relevant here the court did not decide the question.
The validity of rules made under statutory authority may be inquired into by the courts: See Dyson v. Attorney-General [dcclxxiv]23. Rules made by the judiciary under statutory authority are subject to judicial examination in the same way and to the same extent as those made by the administrative or executive departments of State: King v. Henderson [dcclxxv]24.
Judge-made rules, like rules made under other Acts, if they have a meaning and effect inconsistent with the Act authorizing them, they are, pro tanto, ultra vires. In Irving v. Askew[dcclxxvi]25 a decision on the County Court Rules, Hannen J. said:
“If the rule were really repugnant to the provisions of the Act of Parliament, I should think that the rule, though made under the powers of the Act, would not override its enactments.”
Where an Act of Parliament is plain the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled the rule must give way to the plain terms of the Act.
In my view r. 32 cannot be reconciled with s. 23 of the Supreme Court Act. Both s. 23 and s. 27 of that Act are contained in Div. 3. The legislature withheld the restriction of a time limit in Div. 3 within which the Public Prosecutor must appeal but deliberately applied a limit of 40 days to a convicted person’s right to appeal under s. 21. In my opinion r. 32 creates a new time limitation which was purposefully withheld by the legislature and to that extent it is inconsistent and ultra vires. The Constitution s. 184 restricted the power of the judges of the Supreme Court and National Court to make rules of court not inconsistent with an Act of Parliament. It follows from what I have said, that in my view r. 32 is invalid.
The respondents also relied upon s. 12 of the Interpretation (Interim Provisions) Act 1975. I have had the advantage of reading in draft form the judgments of Kearney D.C.J. and Greville Smith J. I agree with their reasoning and conclusions in relation to this section and I have nothing to add.
I consider that the appeal was not lodged out of time and is therefore competent.
I turn to the merits of the appeal.
SENTENCE
The four respondents each pleaded guilty to the offence of wilful murder. They were all convicted and sentenced to terms of imprisonment of three months with hard labour and further ordered to pay five pigs each upon their release from gaol. They had spent four months in custody awaiting trial.
Following the passing of sentence the learned trial judge published a lengthy judgment on sentence. It is not in dispute that this was what is commonly described as a “sorcery” case. That is, the respondents believed that the deceased was a sorceress and that she was responsible for the deaths of their fellow clansmen. The facts were not in dispute. The respondents were taking the victim on foot to the Government station at Porgera apparently to report her for practising sorcery and to be dealt with according to law. She attempted to run away but was caught and held by one of the respondents. She was then shot with an arrow which caused her to fall to the ground where she was again shot by the others.
The judgment on sentence sets out many factors relevant to this type of killing. It is, in my view, an attempt to justify the sentences which on any view of the law must be regarded as inordinately low, being as they are for the most serious offence known to the criminal law. I find that I am in agreement with the learned trial judge when he says that it is the genuine belief by the accused that the victim was a sorceress and responsible for numerous deaths, which makes the task of sentencing in these circumstances so difficult. But I find there is much in the judgment with which I cannot agree and which I find to be wrong in law. In my opinion the judgment exhibits two basic errors which mean that the sentences cannot stand.
Counsel for the respondents submitted at the trial that they believed that the victim was a sorceress responsible for many deaths. The submission was that she was a reputed sorceress. But the learned trial judge has found that the victim did in fact kill twenty people. He said:
“In terms of numbers of dead the sorcerers are responsible for, in the present case some twenty fell at the deceased’s hands, while in Ulao Amantasi’s case,” (i.e. Secretary for Law v. Ulao Amantasi and Others[dcclxxvii]26 “eleven fell”.
There is simply no evidence of this in either case. In my view it was a wrong finding and was never open on the evidence.
The second error in my opinion, was that his Honour appears to have adopted the recommendations of the Law Reform Commission as being the relevant applicable law. He said: “In my view, this is a classic sorcerer killing envisaged by the Law Reform Commission in its recommendations for a new class of homicides to be called ‘diminished responsibility killings’.”
The judgment then proceeds to apply the facts of this case to those recommendations and I think that it is, at the least, implied that the trial judge treated this as a diminished responsibility killing. Such course is not open and amounts to an error of law. It may be a view of the law as one would wish it to be or an idealistic approach but it is not the law.
I think that these errors have led to an unbalanced sentence and evidence of this may be seen in the judgment when the trial judge says:
“I look at these prisoners and weep. What a pity! These men need to be loved by some people who can offer them their horizons, their vision and challenge them to the greatest challenge, to work for the improvement of their human lot.”
Whatever this may mean, there are no doubt people who weep for this woman who was deprived of her life in so brutal a fashion.
In the setting of these facts, it seems to me, with respect, that his Honour has misdirected himself in a number of ways as I have indicated. I consider the sentence to be manifestly inadequate.
There is no doubt that the respondents genuinely believed that the deceased was a sorceress. They all come from the isolated area of Hewa behind Porgera in the Enga Province. These are and have always been strong mitigating factors: see Secretary for Law v. Ulao Amantasi and Others [dcclxxviii]27. But the respondents were aware of the Government law as they were taking the deceased to Porgera to face trial at the time they killed her. It is true that she ran away and it may have been this which caused them to act on the sudden. But she had been caught and was being held when she was killed.
The sentence must reflect all of these matters together with the need for public deterrence. See the Public Prosecutor v. Tom Ake[dcclxxix]28 where the Supreme Court said:
“Matters which ought to be taken into account on sentence on a charge of murder (and which were not given sufficient weight in the present case) include the nature of the attack, the element of pre-intention, the degree of sophistication of the accused and the retributive and public deterrent elements of the punishment required.”
In my view also there is a need in circumstances such as this for the sentence to reflect the educative process. I consider the appropriate sentence to be one of six years with hard labour. The respondents were however ever awaiting trial for four months and they have served the sentence of three months. I would therefore impose a sentence of five years and five months with hard labour.
KAPI J: This is an appeal by the Acting Public Prosecutor against sentence imposed by the National Court. The respondents were convicted of wilful murder, upon pleading guilty, by the National Court at Wabag on 4th June, 1980. They were each sentenced on the same day to three months in hard labour and each respondent was ordered to pay five mature pigs to the deceased’s younger son upon release from prison.
The Acting Public Prosecutor appealed against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975. The notice of appeal dated 10th July 1980, was filed in the Registry of the Supreme Court on 16th July, 1980.
At the hearing of the appeal, counsel for the respondents objected to the appeal on the basis that the Acting Public Prosecutor filed the notice of appeal out of time contrary to s. 32 of the Supreme Court Rules 1977. Under this rule, the Acting Public Prosecutor is required to file his notice of appeal within 40 days of the pronouncement of sentence. In the instant case, the 40 day period expired on 14th July, 1980. The notice of appeal was filed two days out of time.
Counsel for the respondents submits that s. 32 of the Supreme Court Rules 1977 regulates the time in which the Public Prosecutor has to file his notice of appeal. He submits that the Public Prosecutor has not complied with this rule and therefore this Court has no jurisdiction to entertain the appeal.
The Acting Public Prosecutor makes his submissions in two stages. First, he submits that s. 32 of the Supreme Court Rules 1977 is inconsistent with s. 23 of the Supreme Court Act and therefore is invalid. Secondly, he submits that even if s. 32 of the Supreme Court Rules 1977 is valid this Court has power to dispense with this rule in the interests of justice and proceed to hear the appeal. He submits that s. 32 of the Supreme Court Rules 1977 is only directory and not mandatory. He makes these submissions on the basis of the powers of the Supreme Court under s. 155 (2) and (4) of the Constitution.
If the Court accepts the submissions made by the respondents’ counsel then the Acting Public Prosecutor would have no standing and this Court would not entertain the appeal. It seems to me the strength of the Acting Public Prosecutor’s submission rests on the first stage of his submissions and if the court accepts this then it is not a question of lack of standing or the lack of jurisdiction of the court to entertain the appeal, but it becomes a question of discretion of the court as to whether it would entertain the appeal which was filed some 42 days after the pronouncement of the sentence. The Acting Public Prosecutor submits that in exercising this discretion the court should be guided by s. 12 of the Interpretation (Interim Provisions) Act 1975.
On the issue of whether the Acting Public Prosecutor has filed the notice of appeal with convenient speed both counsel have agreed on the relevant facts and I will refer to them at the relevant time.
I now turn to the first stage of the Acting Public Prosecutor’s submissions.
The office of the Public Prosecutor is established by s. 176 of the Constitution. The primary function of the Public Prosecutor is to control the exercise and performance of the prosecution including appeals and refusal to initiate or discontinue prosecutions before the National and Supreme Courts. Under s. 177(1) of the Constitution the Public Prosecutor’s functions are:
“(a) In accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court ...”
Pursuant to this constitutional provision, the Public Prosecutor (Office and Functions) Act 1977 was enacted and sets out the functions of the Public Prosecutor in more detail. It is significant to note that under s. 177 of the Constitution, the performance of the prosecution function is not only in accordance with an Act of the Parliament but also in accordance with the Rules of the Supreme Court and the National Court. The Supreme Court Rules are made under s. 184 of the Constitution and where these rules are inconsistent with an Act of the Parliament the rules shall not have any effect to the extent of the inconsistency. (Section 184(1) of the Constitution.)
As far as appeals by the Public Prosecutor are concerned, the right of appeal is set out under the provisions of the Supreme Court Act 1975. Under s. 23 of the Supreme Court Act 1975, the Public Prosecutor may appeal against a sentence imposed by a judge of the National Court. Under s. 24 of the Act, the Public Prosecutor may also appeal against a judgment of the National Court quashing a conviction. These provisions make no mention of the time in which the Public Prosecutor may appeal.
In contrast to the right of appeal by the Public Prosecutor, a person convicted of an offence in the National Court may appeal to the Supreme Court under s. 21 of the Supreme Court Act. Under s. 27 of the Supreme Court Act, a person convicted of an offence who wishes to appeal to the Supreme Court may do so within 40 days of the date of his conviction. The notice of appeal or application for leave to appeal by a convicted person may be filed within 40 days or may be extended at any time which extension must be obtained within the same period of 40 days.
As far as the time in which to appeal is concerned, there is a clear contrast between an appeal by the Public Prosecutor and a convicted person.
The Acting Public Prosecutor submits that by contrasting the provisions relating to the right of appeal by the Public Prosecutor and a convicted person under the Act, there is a clear intention by the Parliament that there should be no time limit within which the Public Prosecutor may file his notice of appeal. He submits that this being the intention or the construction of the Act, s. 32 of the Supreme Court Rules 1977 is both ultra vires and inconsistent with the act and therefore of no effect. The question of s. 32 of the Supreme Court Rules being ultra vires and inconsistent are slightly different issues and I shall deal with them separately.
Is s. 32 of the Supreme Court Rules 1977 ultra vires the Act? The power to make Supreme Court rules does not arise out of the Supreme Court Act 1975. The power to make rules is given by s. 184 of the Constitution. Therefore there is no question of the Supreme Court Rules exceeding any power of rule-making under the Supreme Court Act. The only provisions in the Act which relate to the rules are ss. 45 and 47 of the Act which, in effect, acknowledge the rules that may be made by judges pursuant to s. 184 of the Constitution. Therefore it cannot be argued that the rules exceed any powers of the Act.
The next question that arises is whether the limitation of time under s. 32 of the Supreme Court Rules 1977 is made within the powers given to judges under s. 184 of the Constitution. Is a time limit in which to do an act a question of “practice and procedure”? If the answer to this inquiry is “no” then s. 32 of the Supreme Court Rules is ultra vires the powers given under s. 184 of the Constitution.
Matters of practice and procedure may be defined to include the form and manner of conducting all litigation before the courts. This includes everything that leads up to the commencement of litigation in courts to final judgment and to its enforcement and appeal. If any form of litigation is to commence at all and to come to some final judgment and enforcement, the meaning of “practice and procedure” would necessarily include time limits in which acts may be done in the process. This is obvious from the inclusion of time limits in the provisions of the National Court Rules and the Supreme Court Rules 1977. I therefore find that powers given to the judges of the Supreme Court to make provision for “practice and procedure” in the Supreme Court include power to make rules regarding time limits in which an act may be done as far as litigation is concerned. It therefore follows that the judges, in making r. 32 of the Supreme Court Rules, did not exceed the power given under s. 184 of the Constitution.
The only question that remains to be considered is whether r. 32 of the rules is inconsistent with the provisions of the Supreme Court Act 1975. There is no provision in the Supreme Court Act of 1975 which specifically deals with the time limit in which the Public Prosecutor may appeal. Where the Act is silent on the matter, as a matter of statutory construction, the whole of the Act is to be construed in an attempt to discover the true intention of the Parliament of the legislation in this matter. This, in my view, is consistent with what Lush J. said in South Eastern Railway Co. v. The Railway Commissioners [dcclxxx]29: “... while we are to collect what the legislature intended from what it has said, we must look, not at one phrase or one section only, but at the whole of the Act ...”
I now consider the statutory provisions relating to time limits regarding other appeals to the Supreme Court. Under s. 16 of the Supreme Court Act, a person who wishes to appeal against a decision of the National Court in a civil matter shall give notice of application for leave to appeal within 40 days or within such further period as is allowed by a judge upon application made within the same 40 day period. A person convicted who wishes to appeal against conviction or sentence may also appeal within the same 40 day period as in the case of a civil appeal pursuant to s. 27 of the Act. It is clear from reading the whole of the Act that the Act in fact deals specifically with the time in which an appeal may be lodged. Having regard to the time limits imposed by the Act on all other types of appeals, the omission by the Act to set down any time limit in which the Public Prosecutor may appeal is a clear indication that the time in which he may appeal should not be restricted by the same time limit. That being the intention of the legislation, any judges’ rules that may be made under s. 184 of the Constitution, which are inconsistent with this intention, are invalid to that extent. That being the case, r. 32 is a clear limitation of the time in which the Public Prosecutor may appeal which is contrary to the intention of the whole of the Act. Therefore r. 32 of the Act does not have any effect for inconsistency.
Does this mean that the Public Prosecutor can appeal against sentence after twelve months, five years, or fifteen years after pronouncement of sentence? In this regard, the Interpretation (Interim Provisions) Act 1975 is applicable. Section 1 provides:
“(1) Except where the contrary intention appears in this Act, this Act applies to every:
(a) Act, including this Act.”
As far as I can see there is nothing in the Supreme Court Act 1975 which expressly or impliedly prohibits the application of the Interpretation (Interim Provisions) Act. The relevant section is s. 12 which provides:
“Where no time is prescribed or allowed within which an act is required or permitted by a provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.”
This section is applicable when there is no time limit imposed for the doing of all act. This section covers acts which are required to be done or which are permitted to be done. That is to say, acts which must be done or acts which may be done, the latter being a discretionary matter. I consider that the institution of an appeal by the Public Prosecutor is a discretionary matter or, to use the words of s. 12 of the Act, “act which is permitted”. Where the Public Prosecutor uses his discretion to file or to institute a notice of appeal that act is to be done with all convenient speed. The words “the act shall or may be done” in the section refer back to the nature of the act. That is to say, if all act is required to be done it shall be done, but if it is permitted to be done it may be done. Whether the act is required to be done or permitted to be done the words “with all convenient speed” apply to both. So that whether a person is required to do an act or is exercising his discretion in the doing of an act, that act is to be done with all convenient speed. It therefore follows that the institution of an appeal or the filing of a notice of appeal which is a discretionary act, is to be done with all convenient speed. As to what is a convenient speed depends on the circumstances of the particular case. It follows from all this reasoning, that the preliminary objection must fail but it remains to be seen whether the Public Prosecutor has lodged his notice of appeal with all convenient speed.
Sections 16 and 27 of the Supreme Court Act 1975 set down time limits for appeals in civil cases and in criminal cases where a convicted person is appealing. In each case there is provision for further extension of time. These provisions have no bearing on appeals by the Public Prosecutor but, in my view, they suggest what may be the proper meaning of what is a convenient speed. If a person under s. 16 and s. 27 can lodge an appeal on the fortieth day then in my view any delay in filing the notice of appeal by the Public Prosecutor within 40 days could not be described as not filed with convenient speed. It is apparent from reading the terms of s. 12 of the Act that what the legislature intended was that the notice of appeal should be filed within a time that is convenient for the filing of a notice of appeal. What is a convenient speed or time depends on the circumstances of the particular case. The circumstances which the court may have regard to may be described as the mechanics, or the procedures, which the Public Prosecutor has to go through before properly filing a notice of appeal. This would include things like availability of reasons for decisions and transcript of evidence to be supplied when requested. This is important because I do not think that the Public Prosecutor is in a position to properly consider grounds of appeal until he has these papers. There may be considerable delay in these papers becoming available. Regard must also be given to things like the mechanics of producing the notice of appeal, such as typing.
Rule 33 of the Supreme Court Rules 1977 requires that the trial judge may make a report giving his opinion generally on the case, or may be required by the Supreme Court to make a report on any point which may appear to the Supreme Court to be necessary for the proper determination of the appeal. If there is considerable delay in filing a notice of appeal it will be difficult for the trial judge to recollect the circumstances of the particular case. From experience, it is difficult to keep track of the facts of a particular case after hearing so many of them. Even reading of the judge’s notes from his note book may not bring back the facts of the case precisely as at the time of the trial. This must be kept in mind when considering what is convenient speed.
Furthermore, it is only reasonable for the prisoner to assume that after some time in prison his proper sentence is the one given by the trial judge. An appeal against sentence after a long delay must be seen to be unfair to the prisoner.
In interpreting this provision I have had regard to the terms of s. 158 (2) of the Constitution which is in the following terms: “(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.” Having regard to the provisions of this section and the dispensation of justice, in resolving what is to be regarded as a convenient time within which the Public Prosecutor must file his notice of appeal, regard must not only be given to what may be a convenient time for the Public Prosecutor in which to prepare the notice of appeal, but regard must also be given to the interests of the prisoner and the proper and speedy determination of the appeal by the Supreme Court. When considering any delay in the filing of a notice of appeal all these circumstances must be considered together.
I now consider the circumstances surrounding the filing of the notice of appeal 42 days after the pronouncement of the sentence in this case. The reasons for sentence in this matter were made available to the State Prosecutor in Wabag within two days of sentence. There is no question in this case that the State Prosecutor had ample time in which to consider the grounds of appeal from the reasons which had been provided. However it appears from evidence that during the months of May and June 1980 there had been a change of jobs in the Public Prosecutor’s Office. The Acting Public Prosecutor was appointed on 20th June, 1980, and did not take up his duties until 3rd July, 1980. The Acting Public Prosecutor did not actually give consideration to the matter until just before 10th July, 1980. It seems to me to be not unreasonable that the Acting Public Prosecutor did not give consideration to this matter until about 10th July, 1980. There is usually a time of settling in, and therefore the lack of action by the Acting Public Prosecutor in the circumstances can be excused. In any event, the Acting Public Prosecutor actually prepared the notice of appeal on 10th July, 1980, and it was not filed until 16th July. This was only some two days after the time which is required for the filing of a notice of appeal under ss. 16 and 27 of the Supreme Court Act 1975. I do not consider that this is a long delay and in the whole of the circumstances I consider that the Acting Public Prosecutor filed the notice of appeal with convenient speed.
During the argument, my brother, Greville Smith J., drew the court’s attention to the case of Reg. v. Porter[dcclxxxi]30. This was all appeal by the Attorney-General against inadequacy of sentence under the Criminal Appeal Act 1912 (N.S.W.). Chief Justice Street, who gave the leading judgment, dealt with a preliminary argument similar to the one that was presented before this Court. There was no time limit to the right of appeal in the Criminal Appeal Act of 1912. It is difficult to see from the judgment the nature of the arguments that were presented before the court. Chief Justice Street makes no reference to a similar rule of practice and procedure such as r. 32 of the Supreme Court Rules 1977. There is also no reference in the judgment of an equivalent provision to our s. 12 of the Interpretation (Interim Provisions) Act. I find that this case cannot directly assist this Court in resolving the question of inconsistency of s. 23 of the Supreme Court Act 1975 and r. 32 of the Supreme Court Rules 1977. It also cannot assist this Court with the question of resolving what is a convenient speed under s. 12 of the Interpretation (Interim Provisions) Act. However it seems from this case that even without the application of s. 12 of the Interpretation (Interim Provisions) Act, some limitation is to be given to the time within which the Public Prosecutor has to file a notice of appeal. It is possible that an appeal may not be entertained if there has been a considerable delay in filing the notice of appeal. This is apparent from the judgment of Chief Justice Street[dcclxxxii]31:
“It was argued that the section must be read as requiring the Attorney-General to appeal within a reasonable time, but, in view of the omission to set any statutory limit upon the Crown’s right, it is difficult to see how this application could be made as a preliminary objection to the Court proceeding with the hearing of the appeal. But it is possible, that in some circumstances the Court might take a long delay into account, and it is necessary, therefore, to review shortly the happenings subsequent to 3rd September, when his Honour passed sentence upon the three accused.” (Emphasis mine.)
The Chief Justice then went on to discuss the events leading from the time of sentence to the time the notice of appeal was filed. After discussing the events that took place his Honour then stated[dcclxxxiii]32:
“There was some initial delay in investigating the case, but again it must be remembered that it was a country matter, and without the transcript, or without a report from somebody who had been present at the trial, it was difficult to take any initial step. The delay in obtaining his Honour’s approval was due to the adoption of the current practice, and under those circumstances it would appear that all proper expedition, in the light of the prevailing usage, was employed in this case.”
He found that the delay was satisfactorily explained.
Whether or not s. 12 of the Interpretation (Interim Provisions) Act 1975 applies, this Court may not entertain an appeal if there is a long delay. The circumstances to which the court may have regard in deciding whether there is a long delay would be similar to the matters I have discussed in relation to the application of s. 12 of the Interpretation (Interim Provisions) Act 1975.
I now consider the grounds of appeal on inadequacy of sentence.
The task of a sentencing judge is a very difficult one. This is because a judge is dealing with a life of a human being who has broken the law. A law usually sets down the maximum penalty for an offence and gives the sentencing judge very wide powers to impose the appropriate punishment for the particular offender. In the case of wilful murder, the maximum penalty is life imprisonment under the Criminal Code (s. 309 of the Code.)
Under s. 19 of the Code, a sentencing judge may impose any of the alternative punishments within the maximum penalty. Not much guidance is given under the Code as to how a judge may exercise this discretion.
Over the years, judges in this jurisdiction, and other jurisdictions, have developed theories on sentencing. It is these theories which guide a judge in evaluating the punishment that he ought to impose. The trial judge, in his elaborate reasons for sentence, referred to some of these theories. These theories may be conveniently referred to as deterrence, separation, rehabilitation and retribution.
Deterrence is one of the most frequently used purposes in sentencing Under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.
The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.
The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.
The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as “vengeance”. This conveys the notion that the person who commits a crime must “pay” for it, or “deserves” it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as “payback”. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.
The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasize or achieve one theory of sentencing more than others in certain classes of offences.
It is obvious from all this that there is no easy solution to the task of sentencing.
Above all these considerations, what must be borne in mind is the function and the purpose of criminal law. The purpose of criminal law, like the purpose of customary law in the village, is for the protection of society. The society is made up of individual members. In achieving the purpose of criminal law, regard must be given to the protection of the individual. The individual has constitutional rights which must be protected. However we should not be so preoccupied with the right of the accused or prisoner that we forget the rights of the innocent members of our villages, tribes, cities and the country who are entitled to protection against criminal behaviour; all these considerations must be carefully balanced.
Whether or not a judge should expressly refer to these considerations in his reasons for sentence, in my view he ought to have regard to them in his mind before imposing sentence. However, it is wise to bear in mind the advice of the Master of the Rolls, Lord Denning:
“I say to all judges: give the reasons for your decisions, for if you give no reasons it will be construed as a judgment given without reason and an unreasonable one. We must give our reasons not only so that if we are wrong a higher court can upset us but so that the public can learn of the basis on which we reach our decisions, and that upholds the standard of justice.”[dcclxxxiv]33
It is now a well established principle of law that an appellate court does not interfere with the sentence imposed by the court below because it is of the view that sentence is either inadequate or excessive. It interferes only if it is apparent that the sentencing judge has fallen into error in acting on a wrong principle or has misunderstood or wrongly assessed the facts of the case. The error may appear in the reasons for sentence or the sentence is so inadequate or excessive as to manifest error. This principle is well settled in a long line of cases in Australia: Skinner v. The King[dcclxxxv]34; Whittaker v. The King[dcclxxxvi]35; Griffiths v. R.[dcclxxxvii]36. These cases have been followed by courts in this jurisdiction on numerous occasions and the principle can now be regarded as part of the underlying law of Papua New Guinea.
In the light of these general remarks, I now turn to the facts of this particular case.
The respondents come from different villages in the Porgera sub-province of the Enga Province. They all believed that the deceased, an old woman, Utomo Polio, was a sorceress and that she had been responsible for the death of a number of people.
The day before she was killed, the respondents tried to take her to the Government station at Porgera so that they could report her for sorcery and for her to be dealt with according to law. When they attempted to take her to the Government station, one of the sons of the deceased, Asuim Buliam, protested and took her back to the house. The following morning, that is, the day on which she was killed, the respondents took her away to go to the Government station. Walking distance from the village to the station is five days.
On the way, she tried to escape and they killed her. Yaulipa Bulaim held her while Luku Wapulae, Piope Kune and Uname Aumane shot her with arrows. There is no dispute that she died of arrow wounds.
There is very strong belief in sorcery by the respondents. They come from a very remote part of the country with very little outside influence.
Each of the respondents was sentenced to three months in hard labour. They were in custody for four months, so the effective sentence was seven months in hard labour. In addition, the trial judge ordered each of them to pay five mature pigs to the deceased’s younger son immediately upon release.
The Acting Public Prosecutor complains that the sentence is inadequate. He submitted that the trial judge fell into error. His submissions can be conveniently divided into two parts. First, that the trial judge fell into error by imposing penalty by way of five pigs each. He submits that his Honour had no power under the Criminal Code to impose such punishment. Secondly, he submits that his Honour made wrong findings of fact or did not give sufficient weight to the circumstances of the case in imposing sentence.
POWER TO IMPOSE CUSTOMARY PUNISHMENT
Under the legal system we have adopted, a person may not be punished until he is found guilty of an offence according to law. There can be no punishment unless there is conviction. Under s. 37(2) of the Constitution “... nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”
For a person to be found guilty of an offence a written law must:
(a) define it,
(b) and prescribe the penalty.
A written law under this provision, in my view, refers to an Act of Parliament (including any law made under the Act), Organic Laws and the Constitution. This term has been used to distinguish it from what may be called the unwritten laws, custom as adopted under Sch. 2.1 of the Constitution, common law as adopted under Sch. 2.2 of the Constitution and the underlying law as developed under Sch. 2.3 and Sch. 2.4 of the Constitution
Consequently a person can only be found guilty of an offence and punished in accordance with an Act of Parliament, Organic Law and the Constitution.
In the instant case the respondents were found guilty of the offence of wilful murder pursuant to s. 304 of the Criminal Code. The punishment for wilful murder is a maximum sentence of life imprisonment under s. 309 of the Code. Under s. 19 of the Code a judge may impose any of the lesser punishments prescribed. In my view the crime of wilful murder is a statutory offence and the only punishment that can be imposed is set out under the Code. A judge has no power to impose any other punishment.
His Honour, the trial judge, in his reasons for sentence, on pp. 16 and 17, agreed with the conclusion I have reached when he said:
“When I look at the Criminal Code, ss. 18 and 19, present very little scope for imposing any other form of punishment than imprisonment. It is clear from s. 18 of the Criminal Code’s Schedule that the punishments to be imposed do not include an order that the prisoners pay 20 pigs to the survivor of the deceased.”
Did the trial judge fall into error when he actually imposed a sentence of five pigs on each of the respondents?
He relied on Native Customs (Recognition) Act 1963 and the provisions of the Constitution.
Native custom is defined by s. 4 of the Act. This definition is identical to the definition given by the Constitution. In the Constitution “custom” is defined to mean the custom and usage of the indigenous inhabitants of the country existing in relation to the matter in question at the time when, and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial. Custom is recognized and enforced subject to the matters set out under s. 6 of the Act. See also Sch. 2.1 of the Constitution.
Under s. 7(e) of the Native Customs (Recognition) Act custom shall be taken into account in determining the penalty (if any) to be imposed on a guilty party.
The trial judge found that in imposing a payment of five pigs each on the respondents he was applying their customary law. There is no indication in the evidence or in the trial judge’s reasons as to whether or not the payment of five pigs is the maximum punishment in the village for killing a sorcerer.
In my view the trial judge misconstrued the application of s. 7(e) of the Act. This section requires that custom shall be taken into account when determining the penalty. This means that a particular custom of the offender may be taken into account to explain his behaviour, for example he may have committed the offence under customary pressure. Custom used in this sense becomes a mitigating factor. In the case of R. v. Asis and Bitimur[dcclxxxviii]37, Clarkson J. in dealing with a sorcery killing said:
“These problems were real and pressing in a community dominated and largely ordered by a universal belief in sorcery. The killing of the deceased has been welcomed with relief throughout the area in which he lived.”
He went on to say:
“This is a case in which the Court, while enforcing the law, must recognize that the enforcement is against primitive people who have acted in accordance with their own customs ...” (Emphasis mine.)
Again Clarkson J. in R. v. Iu Ketapi,[dcclxxxix]38, in dealing with the custom of “payback killing” in a wilful murder case said:
“In the present case I am satisfied that the ignorance of the accused, their upbringing and the strong tribal traditions which bind them in the society in which they live and in obedience to which the killing was committed, constitute extenuating circumstances ...” (Emphasis mine.)
See also R. v. Lakalyo Neak, Kaia Yongaipa and Kupuni Yakaira [dccxc]39.
These cases show one way of taking custom into account. They explain the cultural justification of the offenders’ behaviour which reduces their culpability or blameworthiness. In some instances the custom may increase the seriousness of the offenders’ behaviour. For instance, in incest cases, custom may regard it as immoral and may call for severe punishment.
A court may also take into account customary punishment in the same way. In R. v. Jim Kaupa[dccxci]40 Wilson A.J. said:
“It is no less important in an emerging country such as Papua New Guinea, where there are strong traditional pressures upon a person responsible for the death of another man to pay compensation to the deceased’s kinsmen whatever the Court’s decision might be, to take into account other punishment which an offender has received such as the liability to pay compensation.” (Emphasis mine.)
Customary punishment assists the court in deciding whether the offender ought to receive less or more punishment.
All these matters discussed in these cases are proper matters to be taken into account in sentencing. Under s. 7(e) of the Native Customs (Recognition) Act a court may have regard to these matters in arriving at the appropriate sentence. This means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose punishment within the range given by ss. 19 and 309 of the Code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed that sentence as a matter of law.
Section 7(e) of the Act does not enlarge the power of the court under ss. 19 and 309 of the Code. Section 7(e) may only operate within the range provided under ss. 19 and 309 of the Code.
It appears from this reasoning that a person may only be convicted of an offence which is defined, and the penalty for which is prescribed by a written law. (s. 37(2) of the Constitution.) In the instant case the Criminal Code defines wilful murder and prescribes the penalty. As a matter of law a court can only impose the penalty provided under the Code. This Court has no power to impose any customary punishment. I have not overlooked Sch. 2.1(1) of the Constitution which adopts custom, which shall be applied and enforced. However, adoption of custom is subject, amongst other things, to Sch. 2.1(3)(b), an Act of the Parliament which may provide for the purpose for which custom may be recognized, applied and enforced. Such an Act is the Native Customs (Recognition) Act. Under s. 7(e) of this Act custom may be taken into account in punishment. As I have pointed out earlier, custom here may only mitigate or aggravate the sentence to be imposed. However, ultimately, the penalty to be imposed is as provided for under the Code and there is no power in the court to impose customary punishment.
I also find that there is no room for developing the underlying law in this case. The development of the underlying law under Sch. 2.3 arises only when there appears to be no rule of law that is applicable. In this case the Criminal Code is applicable.
The view I have taken is the present state of the law. However, I do appreciate the weight of the learned trial judge’s view on the place of customary punishment to be imposed as punishment. This is dealing with what the law should be. These are matters, not for this Court, but for legislative amendment. Such proposals for amendment of the Code have been put forward by the Law Reform Commission but so far the Parliament has not enacted them.
I now turn to the second part of the Acting Public Prosecutor’s submissions. The nature of these submissions raise questions of fact which form the basis of sentence. I therefore find it necessary to deal with the proper principles.
On a plea of guilty, the law as to how a judge should make findings of fact for the purposes of penalty are well stated by Wilson J. in the case of Koniel Alar and Hosea Biu v. The State[dccxcii]41 and I need not state them again. However, in the instant case a point has arisen which did not arise in the above case, namely the principle that should guide a judge in making findings of fact which are put up by the defence counsel from the bar table and not contested by the prosecution. In this regard the Federal Court of Australia stated in R. v. Tait[dccxciii]42.
“When a plea of guilty avoids the necessity for a trial, it is no doubt convenient for the facts relevant to sentence to be stated from the bar table to the extent to which those facts are agreed or, not being reasonably open to challenge, are unchallenged. But if one of the parties invites the court to act upon an alleged fact or circumstance, whether favourable or unfavourable to the defendant, which is not common ground between the Crown and the defendant, that fact or circumstance should be proved by the calling of evidence by the party on whom the evidentiary onus rests. The strict rules of evidence can be waived if the proof tendered is sufficiently cogent, but a finding on the relevant matter cannot be sought in reliance merely upon an unsupported assertion from the bar table if the truth of that assertion is not accepted by the other party.” (Emphasis mine.)
Where counsel makes statements of fact from the bar table which are not disputed or challenged by the opposing party or not disputed facts as contained in the depositions, a judge may make findings on those statements. Of course, a judge is not bound to accept this. He may reject it or he may invite the opposing party to assist in the matter and ask the parties to call evidence.
In the instant case, where the trial judge has made findings of fact on the basis of statements by the defence counsel from the bar table which are not challenged by counsel for the State or not disputed by the facts in the depositions, those findings will stand.
This raises the question of the proper function of counsel for the State in sentencing. In this jurisdiction, the practice has developed where counsel for the State rarely makes submissions on sentence. The matter of sentence is left up to the defence counsel and the judge. In view of the difficult task of sentencing, and the need to give every assistance to the judge in every aspect of sentencing, this practice by the Public Prosecutor needs to be reviewed in view of the right of appeal given to him by the Supreme Court Act 1975. The functions of the prosecutor are again well stated in the observation of the Federal Court of Australia in R. v. Tait[dccxciv]43:
“The Crown has been said not to be concerned with sentence (see, e.g. Lawrence J. in Paprika Ltd. v. Board of Trade[dccxcv]44) but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis—a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court.”
I agree with these observations and I would adopt them. For myself, I would encourage counsel for the State to give every assistance he can on matters of law and facts on sentence. This function should be performed within the principles set down in R. v. Tait (supra).
Defence counsel, in mitigation, stated from the bar table that the population of the area from where the respondents came was sparse and they believed that as many as twenty people from the area had died as a result of the deceased’s sorcery, and they feared extinction. There was no evidence of this. There is no suggestion that these facts were agreed to by counsel for the State; however, he certainly did not challenge them. The trial judge made findings on the basis of the statement of defence counsel that the group was in fear of extinction. This was a proper consideration because as far as the respondents were concerned this explains their behaviour towards the deceased.
In view of the fact that counsel appearing for the State did not challenge these facts, I am not prepared to dispute the trial judge’s findings on this matter. To do so would be unfair to the respondents because failure by the State prosecutor to challenge these facts did not give the respondents the opportunity to call evidence at the trial.
There is no dispute that the deceased was a reputed sorcerer. The respondents believed that she was responsible for the deaths of a number of people. They feared the deaths of more people. It was this fear which caused them to bring her to the Porgera Government station.
It is significant that at the outset, the respondents did not kill the sorcerer as is required by custom, but chose to take her to a Government station some five days’ walk away. This, to my mind, is an indication of their knowledge of the law and Government influence on their lives. In my view their knowledge that a sorcerer should not be killed but reported to the police or the court is no different from any Papuan village which has over one hundred years’ contact with the outside world and where fear of sorcery is still dominant. I do not suggest that the extent of Western influence is the same. All I am saying is that they know what to do with a sorcerer.
The evidence suggests that the respondents killed the deceased because she tried to escape. They feared that if she ran away she might make sorcery on them. But that is only if she escaped. They caught her. The deceased was described as an old woman. The respondents are all young. If they caught her, why did they kill her? I also find it curious that the tultul was not asked to accompany them. Their behaviour was not consistent with what they intended to do with her. I do not consider that the pressure on them to kill the sorceress was as great as the trial judge made it out to be. That is, as far as custom is concerned, the sorceress has to be killed. It is apparent from the evidence that the respondents exercised restraint from this pressure when they decided to take her to the Government station at Porgera. They only decided to kill her when she tried to escape. This is not a case where the respondents were only aware of the customary solution and ignorant of State law. With respect to the trial judge, he did not give sufficient weight to these matters.
I am satisfied that error has been demonstrated and I would allow the appeal. The deceased was a sorceress and they believed she was responsible for the death of many other people. I take this into account. This must not be over-emphasized. I also take into account that these men are primitive. However, it is important to state that their behaviour in attempting to report the deceased to the Government authorities cannot be described as primitive.
The killing of a sorcerer is nothing less than taking the law into one’s own hands. It is a form of “payback killing” although I appreciate that “payback killing” as understood in this country is pure vengeance. Whereas killing of a sorcerer is coupled with the fear that the sorcerer may kill others including the killer. I have taken this distinction into account.
In substituting the sentence, I do not think that I should give much importance to separation and rehabilitation of the respondents. I do not think that the respondents will be a danger to their community because killing of a sorceress is an isolated incident. I do not think I need to place much importance on rehabilitation because I do not think they are in need of correction. If they needed any correction it is their belief in sorcery. No punishment of a kind referred to in the Code would cure that.
However, in imposing the sentence I have regard to the theories of retribution and deterrence.
Whilst deterrence has its limitations on the ordinary villager because there might be difficulties of communicating the sentence, I have no doubt any deterrent sentence will have the impact upon their own community. They may not appreciate the reasons for sentence but they certainly will note their absence from the community.
I also have regard to retribution. Taking of life is against any system of law or custom. When life is taken it cannot be given back again. It is the duty of the court in imposing sentence to prove to others that it is wrong to take someone else’s life under any circumstances. The law exists not only to protect the innocent but also those who are accused of doing wrong in the community. This is what our Constitution is all about. It is the duty of this Court to impose an appropriate sentence to show that the law does not approve of killing of sorcerers.
Having regard to all the circumstances of this case, including the seven months already spent in custody (four months awaiting trial and three months’ imprisonment term) I would impose a sentence of five years and five months (effective six years).
Appeal upheld. Sentences imposed by the National Court quashed. In substitution therefor, sentences of five years and five months’ imprisonment with hard labour to be imposed on each respondent.
Order by the National Court directing the respondents to pay pigs or compensation, set aside.
[dcclii] Infra p. 518.
[dccliii] Infra pp. 515, 518.
[dccliv] Infra p. 512.
[dcclv] Infra p. 541.
[dcclvi] Infra p. 518.
[dcclvii] Infra pp. 515, 518.
[dcclviii] [1975] P.N.G.L.R. 134.
[dcclix] (1953) 53 S.R. (N.S.W.) 97.
[dcclx] [1976] P.N.G.L.R. 491 at p. 507.
[dcclxi] [1980] P.N.G.L.R. 326 at p. 334.
[dcclxii] (1953) 53 S.R. (N.S.W.) 97 at p. 99.
[dcclxiii] (1953) 53 S.R. (N.S.W.) 97.
[dcclxiv] [1943] K.B. 101.
[dcclxv] [1951] 2 K.B. 488 at pp. 494, 495.
[dcclxvi] [1966] 1 Q.B. 878 at p. 888.
[dcclxvii] (1952) 52 S.R. (N.S.W.) 221.
[dcclxviii] (1971) 127 C.L.R. 106; (1971) 45 A.L.J.R. 615.
[dcclxix] [1965] HCA 67; (1965) 39 A.L.J.R. 332 at p. 338.
[dcclxx] [1948] 1 K.B. 29 at p. 32.
[dcclxxi] [1880] UKLawRpKQB 32; (1880) 5 Q.B.D. 386 at p. 389.
[dcclxxii] [1930] HCA 52; (1930) 44 C.L.R. 319 at p. 386.
[dcclxxiii] [1971] 3 All E.R. 619.
[dcclxxiv] [1911] 1 K.B. 410.
[dcclxxv] [1898] A.C. 720.
[dcclxxvi] (1870) L.R. 5 Q.B. 208.
[dcclxxvii] [1975] P.N.G.L.R. 134.
[dcclxxviii] [1975] P.N.G.L.R. 134.
[dcclxxix] [1978] P.N.G.L.R. 469.
[dcclxxx] [1880] UKLawRpKQB 4; (1880) 5 Q.B.D. 217 at p. 240.
[dcclxxxi] (1953) 53 S.R. (N.S.W.) 97.
[dcclxxxii] (1953) 53 S.R. (N.S.W.) at p. 98.
[dcclxxxiii] (1953) 53 S.R. (N.S.W.) at p. 99.
[dcclxxxiv] Quoted by Jean P. Spreutels in an article “Giving Reasons for Sentence in the Crown Court” (1980) Crim. L.R. p. 494.
[dcclxxxv] (1913) 16 C.L.R. 336.
[dcclxxxvi] (1928) 41 C.L.R. 230.
[dcclxxxvii] [1908] ArgusLawRp 130; (1977) 137 C.L.R. 293; (1977) 15 A.L.R. 1.
[dcclxxxviii] Unreported judgment No. 559, 16th March, 1970.
[dcclxxxix] [1971-72] P. & N.G.L.R. 44.
[dccxc] Unreported judgment No. 632, 21st July, 1971.
[dccxci] Unreported judgment No. 765: 25th September, 1973.
[dccxcii] [1979] P.N.G.L.R. 300.
[dccxciii] [1979] FCA 32; (1979) 24 A.L.R. 473 at p. 483.
[dccxciv] [1979] FCA 32; (1979) 24 A.L.R. 473 at p. 477.
[dccxcv] [1944] 1 K.B. 327 at 332; [1944] 1 All E.R. 372 at 374.
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