State v Imbuni [1997] PNGLR 400 (14 March 1997)

[1997] PNGLR 400

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

YAKOTO IMBUNI,
BOKOM TAMBAI;
YOKOLE KANJA;
MASOLYAU PIKALI; and
YAUPATI PINDAU

GOROKA AND MOUNT HAGEN: AKURAM J
4 – 29 November, 20 December 1996; and
7 February, 14 March 1997

Facts

All four accuseds, in company with others, armed with dangerous weapons, blocked the road, shot at and chopped the deceased in retaliation for the death of their clansman, a student at University of Technology in Lae. The accuseds offered alibi defences.

Held

1. The three deceaseds died at the hands of the four accuseds and others, contrary to s 299 of the Criminal Code Act Ch 262.
   
2. All four accuseds in company with others acted in concert in the prosecution of a common purpose within the meaning of ss 7 and 8 of the Criminal Code.
   
3. Once people have identified and handed a suspect over to the Police, the court should not treat that as a mere conjecture. Coupled with other evidence, the accused’s involvement in the crime can be readily inferred as a matter of course. State v Anis Noki [1993] PNGLR 426; State v Kakas [1994] PNGLR 20 considered and applied.
   
4. By s 593 of the Criminal Code, the absence of a prisoner after conviction but before being administered allocutus and sentenced, does not invalidate sentence or judgment.
   
5. Parliament in enacting Correctional Services Act 1995, had intended that life sentence is "sentence during the natural life of a person and not to be commuted to a determinate number of years, nor remission to be considered".
   
6. An appropriate sentence in this case, taking into account the meaning of death and life sentences and the factual circumstances and considering s 19 of the Criminal Code, life sentence is imposed.
   

Papua New Guinea cases cited

Aikaba & Others v Tami [1971-72] PNGLR 155.

Beng v The State [1977] PNGLR 115.

Geta v The State [1988-89] PNGLR 153.

Golu v The State [1979] PNGLR 653.

Hane v The State [1984] PNGLR 105.

Kalupai v The State [1995] SC492 (Unreported).

Public Prosecutor v Keru & Moroi [1985] PNGLR 78.

R. v Iu Ketapi [1971-72] PNGLR 44.

R. v Lokalyo Neak [1977] N632 dated 21st July 1971.

Regina v Peter Ivoro [1971-72] PNGLR 374.

State v Anis Noki [1993] PNGLR 426.

State v Buka Pepekon & Ors [1995] (Unreported) Dated 19th May (1995).

State v Ian Napoleon Seteb [1996] N1473, dated 31st October 1996.

State v Kakas [1994] PNGLR 20.

State v Quati [1990] PNGLR 57.
State v Steven Luke Uma & Ors (Unreported) (Unnumbered) (1996) Cr 686 Of 1996 Dated 6th February 1997.

Tabe v The State [1983] PNGLR 10.

The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510.

Other case cited

R. v Raymond Turnbull & Ors [1976] 63 Cr. App. R. 132.

Counsels

Mr Kumo, for the State.
Mr Aipe, for the accuseds.

23 December 1996

AKURAM J. The accuseds are each and severally charged that on the 20th of January, 1995 at Weimala Village, Wabag, Enga Province, in common purpose, wilfully murdered Leo Kende, Geofrey Kende and Lau Kende contrary to s 299 of the Criminal Code Act Chapter 262.

State alleges that on Friday 20/1/95 at about 10 am the late Leo Kende and Lau Kende and their son Geofrey Kende and other relatives were on the way to Lae from Wabag in a Ford Utility vehicle driven by Leo Kende. They drove passed a double lane bridge and after passing it saw logs across the road blocking the road. They drove past the logs and drove to some distance away from a cemetery where a Unitech student was killed and buried. There they came across a human roadblock and people holding axes, knives and guns.

Late Leo Kende tried to make a U-turn to return to Wabag. A shot was fired at him. He was injured and couldn’t drive any further. The accuseds’ and others approached him. The deceased was shot through the head with a gun. His wife suffered a similar fate. Their son was dragged some distance and axed to death. During the time of killing there was use of knives, axes and guns on the body of Lau Kende, Leo Kende and Geofrey Kende. All accuseds surrendered to police, except for accused Bokom Tambai who had escaped and a warrant of arrest was issued for his arrest. All accuseds pleaded not guilty.

The accuseds are charged that they in the execution of a common purpose wilfully murdered one Leo Kende, Lau Kende and Geofrey Kende. They were also charged with attempted murder of another person. That charge is still pending.

I have focused my attention, inter alia, when summarising the evidence on the incidents between 10 am to 11 am that day. I also looked at the evidence in relation to Yapoko Imobuni and Masolyau Pikali from the double bridge to their houses and the distance from double bridge to Birip and Akom.

I have also concluded at the end of each of the four accuseds’ evidence of whether I believe or do not believe them and also of their alibi evidence. I did the same for the State witnesses. My conclusions were that I do not believe the accuseds evidence but I do believe the evidence of the State witnesses.

However, the evidence has raised four issues, which I will discuss below. These are the issues of identification at the scene and at the Police Station ID parade; the issue of surrendering or being given to police by elders and members of the Community where the accuseds come from; and the issue of alibi evidence, coupled with the hand written note.

Alibi Evidence

I will dispose of the alibi evidence first. All I can say is that I did not believe the evidence of alibi witnesses for the reasons I gave at end of each of summaries of their evidence. The main reason being that the note written to Paul Kain clearly showed that this story of alibi was fabricated.

Apart from Yakole Kanja, the other three accuseds produced alibi witnesses. First I did not believe the accuseds own stories and secondly I did not believe their witnesses’ stories due to a lot of inconsistencies which I pointed out in my summary of each witnesses’ evidence, which I do not wish to repeat. I will therefore not go through their evidence again.

The handwritten note by Yaupati Pindau to Paul Kain.

This note is very impressive in that it advises the witness (Paul Kain) that the two witnesses who already gave evidence were very good. It also informs the witness that he is not to reveal the real names of the writer (Yaupati Pindau) and that of Masolyau Pikali whose real names were Kopilyo (writer) and Naopaege Lapele. He than advised the witness to say that police took some names and came and asked for those named or anybody to take their place to give themselves up to the police. And that police will release them after about 3 or 4 days of being in custody.

This piece of advice to this witness has cast grave doubt about the truthfulness or honesty of their evidence in relation to their story. The least I can say is that it is all fabricated evidence by the defence. I therefore do not believe that the police had provided names by themselves but the names were provided with the assistance from the witness Paul Kain and other leaders in the Community. However, it is a normally held fear by villagers in the Highlands that when such an incident as in this case takes place, they expect police to raid villages but not in all cases. I also do not believe the defence evidence that police made promises that whoever gives himself to police will be returned in three or four day’s time. This view goes counter to the usual police investigation practices. In addition, and in view of the seriousness of these killings, I do not believe for the moment that the accuseds would think that they will be send back home after 3 or 4 days as they did know at the time of surrender why they were surrendering themselves - that is, for the triple murder of the Kende family.

In the final analysis, this note has already demonstrated that the accuseds that had voluntarily surrendered with the pressure from their leaders and peers are now trying their best to come up with a story that they were not involved but were at other places.

Identification

The three State witnesses’ evidence showed that they made the first identification at the scene of the killings of the three deceased. Each saw which person did what at the scene. They positively identified Yaupati Pindau as the person who chopped female Lau Kende after she was shot by a gun. Each witness had clearly identified and told the court what each of the other three accuseds did or did not do at the scene. The accuseds and others did not wear any thing on their faces nor cover their faces in any way. It was broad daylight in the morning between 10 o’clock to 11 o’clock and no clouds or obstacles could have possibly impeded their vision. The distance from the witnesses to the accuseds and others in their party was about 2 to 4 meters. It was a very horrific attack first by a human roadblock, then shooting of a gun at the car, and then throwing of a stone followed by shots to Leo Kende and Lau Kende and chopping of their bodies. The whole incident took about 10-15 minutes. However, they did not see who killed Geofrey Kende but witness Helen Pamakali saw one accused kicked Pauline Akusa. Pauline at that time was with Geofrey Kende beside the road. When Pauline fell, Geofrey was taken to the cemetery and axed or chopped to death.

I must remind and did remind myself that there are dangers inherent in eyewitnesses’ identification evidence. I apply the Supreme Court decision in John Beng v The State [1977] PNGLR 115 at 122-123 when it followed the House of Lords’ decision in R. v Raymond Turnbull & Ors. [1976] 63 CR. App. R. 132, that:

"Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words needs to be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made...

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

The trial judge should identify to the jury the evidence, which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so..."

At pp. 139, 140 the Court made the following observations:

"Having regard to public disquiet about the possibility of miscarriages of justice in this class of case, some explanation of the jurisdiction of this Court may be opportune. That jurisdiction is statutory: we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness but this is rare." (Emphasis added).

So in this case, after warning myself, I also am of the view that, what the witnesses saw was not in a matter of a fleeting glance. There was a roadblock, people being shot at and axed to death from a distance of 2-4 meters. The attackers (accuseds included) did not cover their faces. The whole incident took about 10 to 15 minutes, which is long enough for some one to look carefully at a person and not forget his face, especially in a killing situation. So in the above circumstances, I am of the view that the quality of the State witnesses is very good. If the quality is good, I can safely say that the witnesses’ identification is good and I can believe them.

The identification of the four (fifth escaped) accuseds at the Mt. Hagen police station was just a matter of recognition of whom they saw at the scene. Even that was good with the exception of Mary Lakau missing one of the accuseds and pointed to a wrong Hagen man but this she correct by pointing out one of the accuseds and told the police men to ignore the Hagen man.

The defence raised the issue of names not being mentioned by the witnesses in their statements to police prior to the identification parade in Mt. Hagen Police Station as being inconsistent. This is understandable as the witnesses all come from another area to that of the accuseds. The distance between them is like from Daulo Pass to Goroka Court House. The Supreme Court in George Kalupai v The State (1995) (Unreported) SC492 said this:

"And the identification was not just by name, the use of the name Iki is not a major discrepancy, people often have other names and any way the identification was not by name but by identifying the accused in person regardless of what name was used". (Emphasis added)

I agree that where a person is a stranger to you when you first see him/her, it is not important that you must know him/her by name in order to identify him/her but as long as you can identify him/her by face or in person, that is sufficient regardless of what name was used. This also brings me to the hand written note, referred above.

Handing in suspects by Community Leaders

This is a grey area in the development of the law in Papua New Guinea. However two judges have discussed this in three earlier cases. Their view is that once people have identified and hand in a person to the police, courts should not treat it as a mere conjecture but once there is sufficient evidence before the village people implicating the suspect, his involvement in the crime be readily inferred as a matter of course. This is the view held in The State v Buka Pepekon & Ors. (1995) judgment by Injia J, (Unreported and Unnumbered Judgement dated 19 May, 1995) where he said:

"Speaking of people in the area of the three accused, it is true that there was a lot of investigation carried out by the village people to identify those responsible. It was not an easy task. They could not come up with any names immediately. But through a painstaking process, which took some time, they have singled out these three accused. This careful scrutiny of culprits started from day one up to the time of the commencement of the trial. I think this painstaking process is understandable because the victim comes from a distance place and he does not belong to the respective tribal group from which the three accused come from. He is a stranger who was attacked on foreign soil by people he believed he knew. It is not easy for fellow members of a clan to come forth with the identity of attackers even when they witness the incident and they know who the culprits are. They have a tendency to protect their own clansmen or simply have no sympathy towards a man from a different area. But somehow, if they do come up with the names and disclose it to the police, they would rather remain anonymous out of fear of retaliation. The police in many cases accede to their request for anonymity. But once the accused are singled out through this rigorous process in the village and reported to the police or apprehended and delivered to the police, the village people would be pretty sure of the accused’s involvement in the crime. Therefore, the Court should not treat these accused lightly as some suspects brought to Court on mere conjecture. Once there is sufficient evidence before the village people implicating the suspects, their involvement in the crime is readily inferred as a matter of course. The onus then shift to the accused to show reasonable cause why that should not be so. If the accused’s defence is one of alibi, he should give evidence of a good alibi and where necessary, supported by alibi witnesses. That is the practice in the village and I see no reason why this Court should not give due weight to this method of screening the evidence against the accused. (Emphasis added).

In State v Anis Noki [1993] PNGLR 426, at 427, His Honour, Woods J, in speaking of suspects named and brought to police by Local Councillor and villagers, said this:

"In his evidence the investigating officer said that the suspects were named to him and brought to him by the local councillor and villagers. I find this a very important piece of evidence. So, how do I take and assess that piece of evidence?

The Constitution has clearly recognised the overriding importance of the traditional village and community as the main viable asset in the country. The government and other authorities have continually reiterated the consensus nature of PNG society, the communal attitude to ownership or use of assets and land and the communal responsibility for problems. But rarely have the courts been able to give full recognition of this, as the court must always be careful of the rights of the individual, as set out in the Constitution.

When the community works to participate in the legal process, the courts must accept this participation and not disregard it. When anything happens in a traditional community, that community appears, as a rule, to face the event together. They are all entitled to participate in the benefits, and they all have to share in the losses. So, in a dispute, they all feel involved.

This is where the coming forward of the leaders and people of the community to hand over the suspects must be duly recognised. Of course, it should be seen in and with the evidence. There must be other evidence. It becomes a matter of evidence, which must be admissible; it is very relevant in the eyes of the people and must, therefore, be considered.

Again, the communal nature of PNG society makes one realise that there can be very few secrets. When something happens everyone soon knows. There are no strangers in the night.

So, if village leaders have come forward with their own knowledge and "made" people surrender there must be some weight in that. Surely, in such a communal society, elders are not going to blame their own line for something the neighbouring lines have done - if the neighbouring lines did it, people would know.

The fear of a police raid and subsequent damage and loss of face cannot be so strong that leaders would turn in their own people for nothing if it was known to all the guilty party was from the other line or village.

The government wants to put more responsibility into the hands of the people over law and order and social control. If so, then the courts must assist by recognising the relevance and knowledge of the leaders of the village and community. Of course, just because the leaders turn in some suspects should not be the end of the case. The evidence must support criminal charges. The turning in supports and corroborates the other evidence. One must be sure that the leaders are not just marking some troublemakers to get them out of the way. Also, one must be sure that the victims did not merely identify the accused after they learnt the leaders and community had handed over the suspects, thus identifying by suggestion." (Emphasis added).

I totally endorse the above views expressed by their Honour’s and adopt them. I only add, as his Honour Woods J, has said, that subject to an individual’s Constitutional rights of a fair hearing (Sec 37 (3 &4) Const.), the guidelines set out under the Criminal Practice Rules and Evidence Act, Ch. 48, and as His Honour Injia J, said (above) that:

"Once there is sufficient evidence before the village people implicating the suspects, their involvement in the crime is readily inferred as a matter of course. The onus then shift to the accused to show reasonable cause why that should not be so. If the accused’s defence is one of alibi, he should give evidence of a good alibi and where necessary supported by alibi witnesses. That is the practice in the village and I see no reason why this Court should not give due weight to this method of screening the evidence against the accused. (Emphasis added).

His Honour, Injia J, in State v Kakas [1994] PNGLR 20 said this of person holding Leadership position, that:

"I have found that the defence concedes that the deceased died at the hands of the Pyain clansmen of Mamale in retaliation for Kijia’s death. By virtue of their leadership positions, they would be the first ones to know, or at least provide, some valuable information to this Court as to who those responsible persons may be. Then the Court would have some basis to form the view that there exists some reasonable doubt as to the involvement of the four accused. I am not saying that the four accused should have adduced further evidence to prove their respective defences. Indeed, there is no legal burden on them to do so. All I am saying is that, given their position in the community, they would know who the deceased’s attackers are. Given the strong affiliations, which exist throughout PNG between members of the same tribal group, members of a clan try to keep in strict confidence information regarding involvement of their clan in murders arising from tribal conflicts. Such information may be peculiarly within the knowledge of the clan members.

The law does not require an accused person to disclose information, which incriminates him. But it is the duty of every citizen, especially leaders in tribal groups, to disclose the identity or involvement of other clan members. All that was required of the four accused in this case is to provide some valuable lead or information as to which of their clan members were involved, which in turn would then provide some reasonable basis to doubt the evidence of State witness Mrs Aron".

The Courts are also empowered under Schedule 2.1, 2.2(1), 2.3 and 2.4 of the Constitution to recognise custom and develop the underlying law for Papua New Guinea. I am therefore of the view that once a leader and villagers hand in a suspect, that in itself be regarded as a matter of course or seen as:

(a) an identification of the accused by his own clansmen;

(b) supported by credible and admissible evidence.

And that the following factors must be considered in the light of (a & b) above that:

(i) leaders should give evidence and reason why those suspects arrested may not be the ones responsible on balance of probabilities;

(ii) The recognition of the relevance and knowledge of leaders and community as paramount in their discharge of criminal justice; and

(iii) That the accused than be called upon to prove his innocence on the balance of probability except on matters which are peculiarly within his own knowledge which he needs to prove beyond reasonable doubt.

In the present case, leaders whose names were also given to the police named the accuseds. Police then came and asked for them to surrender. Those who were present surrendered. One later escaped. I therefore place much weight in this fact (surrender), which is also supported by the four State witnesses. The leaders and their Community already identified them as the persons responsible for the triple deaths. The police were only effecting lawful arrests and to carry out the remaining procedures on collecting evidence to support the findings of the leaders and the villagers. This they did by calling and interviewing State witnesses three of whom came and gave evidence.

On the above basis, I find the four accuseds, each and severally guilty of the three counts of wilful murder of the three deceaseds and in common purpose pursuant to Section 7 and 8 of the Criminal Code Act.

Sentence

One of the prisoners, Yakole Kanza, between the 23rd December 1996 and 14th February 1997 had attempted escape and was shot by the prison authorities. Whilst admitted at the Mt. Hagen General hospital for treatment, he escaped and is still at large. He was not present during allocutus and submissions on sentence. I will deal with this issue first.

Absence of prisoner during sentence

I have informed the counsels that I do not wish to prolong the sentence just because one prisoner has absented himself by escaping and that I will proceed and sentence him, with the three present, in his absence. I realise that s 37(4)(e) & (f) of the Constitution only deal with the situation during the proceedings leading to conviction but does not specifically deal with a convicted prisoner during sentencing. Section 571 of the Criminal Code deals with a situation where a person is present but for various reasons Court orders that he be absent during the trial. However, s 596 of the Criminal Code (sentence) is of some assistance in the present circumstances where a convicted person is absent for judgment or sentence to be imposed on him and his co-accuseds. Section 596(1) is particularly relevant and it reads:

596. Sentence.

(1) If a motion to arrest the judgement is not made or is dismissed, the court may—

(a) pass sentence on the offender immediately; or

(b) discharge him on his recognizance, as provided for in this Code, conditioned that he shall appear and receive judgement—

(i) at some future sittings of the court; or

(ii) when called on by notice in the prescribed form.

In the present case, counsels did not ask the court by way of motion to arrest the judgment so I have therefore decided to pass sentence on the escaped prisoner with the others in his absence. He will therefore serve his sentence after he is arrested.

The word "judgment" is not defined in the Criminal Code or in the Criminal Practice Rules. However, it is synonymous with the word "Sentence" in criminal trial but is much wider in that it also refers to "Orders" by the Court in civil trials. In Osborn’s Concise Law Dictionary, 3rd edition, 1964 "judgment" is "the decision or sentence of a Court in a legal proceeding" whereas "Sentence" is defined as "the judgment of a Court, particularly in an ecclesiastical or criminal cause". In Stroud’s Judicial Dictionary the word "judgment" has about 27 different connotations but the one more relevant in the instant case is where it says, "In a proper use of the terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Courts’ reasons for decision and thus form a precedent" whereas "Sentence" by the same author says "It includes any order of the court made on conviction; it does not include a sentence of imprisonment for failure to surrender to bail".

Allocutus not administered

On the issue of allocutus not being able to be administered to the prisoner who escaped and unable to be present, I am of the view that, although Section 593 of Criminal Code says that:

"Where an accused person—

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgment"; (emphasis added).

Failure does not invalidate a sentence that is passed on him.

This section allows a convicted person to say, "why sentence should not be passed on him". This provision was discussed in two cases I have sighted, namely State v Quati [1990] PNGLR 57 where Doherty AJ (as she then was) quoted Raine J in Moses Aikaba v Tami [1971-72] PNGLR 155 which said:

"The provision allows a convicted person to say, "why sentence should not be passed on him..." (My emphasis) This expression adopts the old common law words of address to the prisoner. It makes no reference to how sentence should be assessed or what matters the court should take into account in assessing sentence. The prisoner is under no obligation to answer but frequently does and raises matters such as his lack of prior conviction, provocation or other circumstances of the offence all of which are proper matters a court can consider in sentence and which the Supreme Court and National Court have ruled in various cases should be properly considered.

Strictly then, such statements are not, as Raine J, aptly described them in Moses Aikaba v Tami an allocutus in the strict sense but are a plea in mitigation."

In the Aikaba v Tami case, Raine J, also said a statement made in allocutus can be made by either that prisoner and or his counsel. His Honour explained:

In England it has been held that the only purpose of the allocutus, the calling up of a man convicted or pleading guilty to a felony, is to give him an opportunity of moving in arrest of judgment on a point of law. See R. v Ferenc Gombos (1) and R. v. Rear (2). In both these appeals, and in an unreported appeal referred to in Rear’s case (3) counsel had made pleas in mitigation, and despite what the three courts had to say about the true role of the allocutus, I am left with the feeling that in the exercise of their discretion, Their Lordships might well have taken some other course had the appellants been unrepresented on sentence or had counsel not addressed in mitigation. Needless to say, as a matter of commonsense, there should be an opportunity given to a prisoner, and/or his counsel, to be heard on sentence. As far as I know it is the invariable practice of this Court to put the allocutus and then to call upon counsel to address. Speaking for myself I think the practice is highly desirable.

However, the allocutus, "strictu senso", is only put in a trial, in other words, not in courts of summary jurisdiction.

But in the district court, and for that matter, in the local court, it is imperative that counsel or, where there is no representation, the defendant, should always be invited to address on the question of sentence.

The Court of Appeal in New South Wales has held in two cases that the failure to give counsel for the defendant an opportunity to be heard on the question of sentence is a denial of natural justice and renders the sentence pronounced a nullity. Ex parte Kelly; Re Teece (40 and Ex parte Kent; re Callaghan (5). With respect, I entirely agree with this statement of the law by the Court of Appeal, and with the reasons advanced in support thereof. In Ex parte Kelly; Re Teece (5) the Court said:

"We are also of the view that the learned magistrate fell into error in failing to give counsel for the defendant an opportunity to be heard upon sentence. We consider that thereby there was at that stage a denial of natural justice to the defendant. It is true that there is no section of the Justices Act, which specifically gives to a defendant the opportunity to be heard upon sentence, but we are led to the firm conclusion that such an opportunity should be given and that if it is not so given then there is a denial of natural justice. It is fundamental to the system of criminal trial that it proceed in two stages, the first up to the stage of determination of guilt and the second after that determination and up to sentence. It is not practicable to have an account of matters going to sentence, and it is therefore impracticable to address on sentence, until the first stage has been concluded". (Emphasis added)

What His Honour, Raine J, is clearly saying is that in situations such as in Local or District Courts where a prisoner is unrepresented, Court should ask him/her to address on why he/she should not be sentenced. In situations where a person has a counsel, the Court should allow him to address on why the prisoner should not be sentenced or on mitigation of sentence. Failure to do so is clearly a miscarriage of justice, if and only if the Court did not allow either the prisoner or the counsel to speak.

In the present case, there are two factors, first the prisoner escaped thus rendering his presence impossible and secondly, he is still represented by counsel who has addressed the Court later on sentence. I am therefore of the view, that there is no miscarriage of justice. Furthermore, Section 593 of the Criminal Code concludes by saying: "... but an omission to do so does not invalidate this judgment" which means sentence is not invalidated.

Appropriate Sentence

I will now deal with the issue of what is an appropriate sentence to be imposed on the four prisoners.

Parliament has passed an amendment, No. 25 of 1991 and by Section 2, replaced the life sentence for wilful murder to that of death. Since then, two judges have imposed death penalty one successfully appealed, the other has not been appealed against as yet. I have read his Honour Woods J’s, judgment in the case of The State v Steven Luke Uma & Ors. Cr 686 of 1996, dated 6th February 1997. His Honour referred to the case of Public Prosecutor v Keru & Moroi [1985] PNGLR 78, a case of payback killing according to custom of the Goilala people. There the Supreme Court, reviewing the sentence of 6 years each on appeal held that:

(1) An offender’s lack of sophistication is no longer a mitigating factor on sentence unless he comes from an area so remote that he does not know that there is a government with courts and police available to redress wrongs.

(2) The custom of payback is contrary to the "general principles of humanity" under the Constitution, Sch 2.1 and is contrary to the right of life guaranteed by the Constitution, s 35. A person who commits a payback murder in accordance with his custom is entitled to no reduction of sentence because of that custom.

(3) A person who commits a payback murder in accordance with his custom may be entitled to some reduction in sentence for de facto provocation.

(4) Old age is not generally a mitigating factor on sentence for murder.

(5) The first respondent should be sentenced to fifteen years imprisonment and the second respondent to life imprisonment. (Quoted from headnotes).

The Supreme Court reviewed the decisions in previous cases of Acting Public Prosecutor v Uname Aumane & Ors. [1980] PNGLR 510; R. v Iu Ketapi [1971-72] PNGLR 44, R.v Lokalyo Neak [1971] N632 dated 21-7-1971; Hure Hane v The State [1984] PNGLR 105; in the above case. In an appeal against death sentence in Regina v Peter Ivoro [1971-72] PNGLR 374, the court held that:

1. In establishing whether there are "extenuating circumstances such that it would not be just to inflict the punishment of death" within the meaning of s 305(2) (now s 299(2)) of The Criminal Code (Queensland, adopted);
   
2. Per Frost A.C.J. and Kelly J. The concept is quite clear - the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, but broadly, regard being had not only to moral considerations, but to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted. There is no inflexible standard for determining what are extenuating circumstances and each case must be determined on its own facts.
   
3. Per Prentice J. Any attempt to define or restrict what has been granted, as an unlimited judicial discretion should be resisted. Each case must be decided upon its own special facts: One must attempt to construe and apply the section in the setting of the circumstances of this country, the dispositions and natures of its peoples, the type and prevalence of crime there, the specific pacification and the law and order situation into which it was designed to fit, and possibly that it was passed by a largely indigenous House of Assembly. (Emphasis added)
   

His Honour, Prentice J, (as he then was) in summarising the extenuating circumstances and mitigating factors in discussing Section 305(2) (now Section 299 Criminal Code Act Ch. 262) in previous cases, said at 387, that:

"All are repeatedly engaged in the application of the provisions of s 305(2). Some of the considerations, which have weighted with them, have been expressed in reported judgments:

primitiveness, absence from village, ignorance of Government, upbringing, tribal custom demanding killing: Lakalyo’s case (9); lack of formal education, primitiveness, family situation, tribal setting: Dogwaingikata’s case (10); immediate circumstances, state of sophistication, development of community, knowledge of Government, accessibility to and protection by Government, force of custom, ignorance, upbringing, obedience to tribe: R.v. Ketapi (11); lack of sophistication, remoteness, lack of contact, commerce, ignorance of Government law, little Government influence: Harape’s case (12); some doubt of degree of knowledge of illegality under administration law, youthfulness of most accused who were not from normal decision-making age group, tribal excitement, first contact out-side Highlands, some doubt as to degree of ritual association: Re Hame (13) my own decision".

All these factors were held not to apply in the case of Public Prosecutor v Keru & Moro (supra) and also by virtue of Section 35 and Schedule 2.1 of the Constitution and as Prentice J (as he then was) puts it:

"One must attempt to construe and apply the section in the setting of the circumstances of his country, the dispositions and nature of its peoples, the type and prevalence of crime there, the specific pacification and the law and order situation into which it was designed to fit, and that it was passed by a largely indigenous House of Assembly".

This is exactly what the Parliament intended after 16 years of Independence since 1975 when in 1991, it passed the amendment from life to death penalty. In the present case, it is the payback killing or murder of an innocent family victim, which is the worst category of homicide. The law and order situation now is such that there is a lot of this happening. Furthermore, the prisoners were, according to evidence, of a larger group of about 20 people who blocked the road and shot the deceaseds and axed them to death. It is the worst kind of killing as is done by people who are hypocrites because each cannot face and solve the problem of the death of one of their clansman who was a student at Lae University of Technology. They also do not have faith and trust in the legal system by taking the law unto them by being the accusers, investigators, judges and executioners.

However, I have to sentence them not based on moral principles only but on a lot of other factors, which I quoted above from Prentice J, (as he then was). That is, the circumstances of this country, the nature of the people where they come from, prevalence of this crime of wilful murder, the pacification of the people in their area, and the law and order situation into which this offence is designed to fit. All these factors have to be taken into account. From my analysis of them against each of the accuseds, I do not think that any of them is in their favour. The only thing in their favour is that they all are first time youthful offenders.

In Ure Hane v The State [1984] PNGLR 105, His Honour, Bredmeyer J, set out what he considered to be the worst category of wilful murder cases where a judge should consider imposing life sentence, being the highest sentence at the time. At page 110 he said:

"The categories of most serious murders which I have listed are not closed and are flexible. Different judges may disagree with some of them and wish to add other categories. I have considered and rejected a category of murder by explosives or firearms because such murders, although very serious, are not common in Papua New Guinea".

I agree with the statement that the list of serious or worse category of wilful murders can be added but disagree that use of explosive or firearms is not a worst category.

His Honour was talking of 1984 and back but we are in 1997, thirteen years later. I am therefore of the view that it be classified as one of the worst kind of killing and must be looked at in the facts and circumstances of each case.

His Honour also at page 108 in category No.5 said that:

"a payback killing of a completely innocent men" is regarded as worst category of wilful murder".

This category fits into the facts of this case. However, that was a case where the maximum for wilful murder was only life sentence.

The offence of wilful murder although says maximum is death, the court still has a discretion of either imposing life or a determinate number of years.

In deciding what is an appropriate sentence in this case, I have had a look at the cases cited above to see, whether there are any extenuating circumstances, mitigating factors, and as I said before, there are no extenuating circumstances. The only mitigating factor is that of the youthfulness of prisoners and that of being first offenders. I agree and adopt the views expressed by the Court in Public Prosecutor v Keru & Moro’s case (supra). I also agree and adopt what His Honour, Sevua J, said in The State v Ian Napoleon Seteb [1997] PNGLR (infra). I have considered death sentence but think it not proper in the circumstances of this case. This leaves me with life or determinate term of years. In trying to decide between the two, I looked at what is the meaning of life sentence and whether it is more effective than a number of years. In Goli Golu v The State [1979] PNGLR 653, His Honour, Raine DCJ, discussed what is meant by life sentence at 657 to 658 by looking at the Corrective Institution Regulations 1959. His Honour said:

It is important to find out just what life imprisonment means. Does it mean for the term of a person’s natural life? The matter is governed by the Corrective Institutions Regulations 1959. Section 141 provides for a reviewing committee consisting of three members with a Chairman who shall preside at all meetings of the committee. Section 142 provides that when a detainee imprisoned for life has served a period of twelve years of that imprisonment, the visiting justice shall interview him and enquire into his conduct and health during the preceding twelve years and the extent to which he appears to have been rehabilitated and such other matters as may seem relevant, and the visiting justice shall report on these matters in writing to the reviewing committee. Section 143 provides that when a detainee has served a period of fifteen years of that imprisonment the committee shall review the sentence and for that purpose may interview the detainee and make such enquires as seem relevant to the review of sentence. On completion of review of sentence the committee may in view of the health or age of the detainee and his conduct and the extent to which he appears to have been rehabilitated, recommend that the sentence be commuted to a determinate period specified by it so that the detainee could be released either immediately or at a further date specified by the committee. Where no recommendation is made then the committee shall hold a further review of sentence on a date to be fixed by it, such date not being later than five years after the immediately preceding review. Thus, the least that the appellant will serve will be fifteen years. If after the fifteen years has elapsed the committee made no recommendation that he be released, then it could be as long as twenty years before the appellant’s case could be reviewed for the second time. Of course, of those two periods of fifteen and twenty years that I have mentioned, one might have to add several months because the committee might be particularly busy and not able to review the case soon after the fifteen years or twenty years had elapsed, or the committee might be dilatory. Thus the appellant will be in his forties before he can be released".

His Honour than discussed the dangerousness of the offender in the light of his health and mental condition and whether sentencing him to life would keep him away for life from committing any further murders.

According to the provisions of the repealed Corrective Institutions Regulation, Ch. 63 sections 143,144 and 145, the most a person can expect to serve on a life sentence is 15 to 20 or 25 years. The new Correctional Services Act, No. 6 of 1995, with the Regulations does not provide similar provisions. This new Act was gazetted on 22nd February 1996 in Gazette No. G14 of 1996. The former had provisions for remission (s 142A), Reviewing Committee (s143) Preliminary Review (s 144) and Review of Sentence (145). I only set out 143, 144 & 145 below. They read:

143. Reviewing Committee.
     

(1) There shall be a Reviewing Committee consisting of three members appointed by the Head of State, acting on advice, by notice in the National Gazette.

(2) The Head of State, acting on advice, may appoint a member of the Reviewing Committee to be the Chairman.

(3) The Reviewing Committee shall meet at such times and places as the Head of State, acting on advice, directs or the Chairman determines.

(4) All members of the Reviewing Committee shall be present at a meeting of the Committee.

(5) The Chairman shall preside at all meetings of the Reviewing Committee.

144. Preliminary review.
     

(1) When a detainee has served a period of 12 years of a term of imprisonment for life, the visiting justice shall interview the detainee and inquire into the conduct and health of the detainee during the preceding 12 years.

(2) On the completion of an interview and inquiry under Subsection (1), the visiting justice shall report, in writing, to the Reviewing Committee on—

(a) the conduct and health of the detainee; and

(b) the extent (if any) to which the detainee appears to have been rehabilitated; and

(c) such other matters as to the visiting justice seem relevant to a review of the detainee’s sentence.

145. Review of sentence.
     

(1) When a detainee imprisoned for life has served a term of 15 years of that imprisonment, the Reviewing Committee shall review the detainee’s sentence and for that purpose may—

(a) interview the detainee; and

(b) make such inquiries as to it seem relevant to the review of sentence.

(2) An officer in charge shall comply with any reasonable request made by a member of the Reviewing Committee in the course of a review of sentence under this section.

(3) Notwithstanding the provisions of this section and section 144, the sentence of a detainee imprisoned for life shall be reviewed by the Reviewing Committee when the detainee attains or appears to the Committee to have attained, the age of 55 years, and afterwards shall be reviewed annually.

(4) On the completion of a review of sentence under this section, the Reviewing Committee may, in view of—

(a) the health or age of the detainee; and

(b) the conduct of the detainee; and

(c) the extent (if any) to which the detainee appears to have been rehabilitated, recommend to the National Executive Council that—

(d) the sentence be commuted to a determinate period specified by the Committee; and

(e) accordingly the detainee be released immediately or on a date specified by the Committee.

(5) Where no recommendation is made under Subsection (4), the Reviewing Committee shall hold a further review of the sentence on a date to be fixed by the Committee, not being later than five years after the last review.

These provisions are same as those quoted in Goli Golu’s case (supra) but are they applicable to these prisoners? The new Act & Regulations came into effect in February 1996, without inclusion of provisions in section 143,144 & 145. That means Parliament did not intend to have any term of life sentence to be reviewed and commuted to a determinate term of sentence after 12 years, 15 years or 20 years, or after a prisoner reaches age of 55 years. However the prisoners committed this offence when the old Act, Ch. 63, was in force but found guilty after the new Act came into force. I am of the view, that the provisions of the Correctional Services Act, (No. 6 of 1995) are operative and applicable where a person is convicted and sentenced to prison as stipulated by section 116. Section 116 reads:

"116 Custody.

(1) A person is deemed to be in the custody of the Commissioner where -

(a) the person is committed to a correctional institution by warrant or order of a court, judicial officer or Parole Board addressed to the Commissioner; or

(b) the person is transferred to a correctional institution from a lock-up under Section 96,

and is delivered with the warrant, order or transfer authority to the Commissioner or to a correctional officer.

(2) The Commissioner’s custody of a detainee ceases -

(a) where the detainee is transferred into the custody of the Commissioner of police; or

(b) where the sentence expires; or

(c) with the death of the detainee; or

(d) when a detainee escapes; or

(e) when the detainee is released on parole pursuant to Section 23 of the Parole Act 1991" (emphasis added).

Therefore sections 143,144 and 145 of repealed Correctional Institution Act Ch. 63, do not apply. This would mean that a term of life sentence would now mean for the term of a person’s natural life. Even Remissions under s 120 of the new Act do not apply to life imprisonment because that provision only deals with a term of years and not life sentence. In view of what I have said above on life sentence, in reality Parliament intended that life sentence means for the term of a person’s natural life which can be interpreted to mean until he/she dies in prison and never to be released. This would effectively mean that any person sentenced to life after February 1996 when Correctional Services Act of 1995 came into force will be in prison until he or she dies.

On the question of a determinate term of years, I am of the view that due to the seriousness and gravity of this case, a figure in the vicinity equivalent to life is warranted. If I were to impose a determinate term of sentence, in the light of the facts and circumstances of this case, I would impose the maximum of 60 years and a minimum of 50 years based on the current average life expectancy of a Papua New Guinean person. This means that each of you will be released with remission when each of you will be aged between 54 to 58 years, but I think this is too lenient.

In conclusion and in view of what I have said above, the authorities discussed and the facts of this case, subject to s 19 of the Criminal Code such a determinate term of years is not warranted. I am of the view that the use of firearms and weapons such as axes and knives and in company with others in pay back killing warrant a much severe penalty. I am aware that three of the accused, Yakole Kanja, Masolyau Pikali and Yapoko Imobuni played a lesser role but because they were in a group and took part, they must be punished equally as well. Whereas Yaupati Pindau is said to have, according to evidence, chopped Mrs. Lau Kende with a knife after she was brutally shot with a gun. I therefore will sentence each of you to life imprisonment, for all three counts of wilful murder to be served concurrently.

In sentencing them, I am aware of the fact that their ages range from: Yaupati Pindau - 20 years; Masolyau Pikali - 24 years; Yapoko Imobuni - 24 years; and Yakole Kanja - 20 years; at the time of committal to National Court by the District Court in 1995. They are now about 2 years older.

Yakole Kanja’s term is to commence after he is arrested and taken to prison.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.