SC803

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 64 0F 2004

BETWEEN

TOM LONGMAN YAUL
Appellant

AND

THE STATE
Respondent

KIMBE: SALIKA J, MOGISH J, CANNINGS J
31 OCTOBER, 4 NOVEMBER 2005

APPEAL

Criminal law – sentences – suspension of sentence – conditions of suspension – Criminal Code, Section 19 – offender sentenced to four-year sentence, with one year to serve and three years suspended, subject to payment of restitution and compensation – payment not made – prisoner committed for remainder of term – whether Judge was satisfied that conditions of suspension were not met – whether offender was given the opportunity to be heard.

Natural justice – right of offender to address the court on issues pertaining to proposed order for commitment to custody – whether having a legal representative present was sufficient – whether legal counsel fully represented interests of offender – duty of National Court to ensure that prisoners are given full opportunity to explain matters pertaining to commitment to custody. 

The appellant was given a four-year sentence after being convicted of arson. He was ordered to serve the first year of the sentence in prison, with the balance of three years open to suspension if he paid restitution of K3,200.00 plus compensation of K1,000.00 to the victim of his crime. The appellant served the first year of his sentence and was released. However he did not pay the amounts of restitution or compensation. Someone complained. The police, acting in the certificate of conviction issued by the National Court, arrested the appellant and detained him for three days before bringing him before the National Court, this time before a different judge. The State’s lawyer made an oral application for the appellant to be recommitted to custody and told the judge from the bar table that the appellant had failed to comply with the conditions subject to which his sentence had been suspended. No oral or affidavit evidence was adduced. The appellant’s lawyer failed to object to the application. The judge did not ask the appellant whether or why he had not complied with the conditions or why he should not be re-committed to custody. The judge ordered that the appellant be re-committed to custody to serve the rest of his sentence. This was an appeal against that order.

Held:

(1)	An application to dissolve a suspended sentence and for an order that an offender be re-committed to custody should be made either by originating summons or by dispensing with that requirement in accordance with Order 1, Rules 11 and 12 of the Criminal Practice Rules.

(2)	In either case there should be affidavit or oral evidence of the alleged breach of the conditions of the suspended sentence.

(3)	An offender whose suspended sentence is proposed to be dissolved on the ground that he has breached the conditions of his suspended sentence has a right to be heard on whether he has, in fact, breached the conditions and why he ought not to be re-committed to custody.

(4)	If an offender’s lawyer fails to properly represent the interests of his client, the judge should intervene to ensure that the offender’s constitutional rights are enforced and that the offender is given the full protection of the law.

(5)	In the circumstances, the orders re-committing the offender to custody were infected by procedural errors and were accordingly quashed and the matter remitted to the National Court for further hearing.

Cases cited:
The following cases are cited in the judgment:

Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205
Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37
Lindsay Kivia and Others v The State [1988] PNGLR 107
Michael Gende v The State (1999) SC626
Moses Aikaba v Tami [1971-72] PNGLR 155
Norris v The State [1979] PNGLR 605
Sela Gipe v The State (2001) SC661
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

APPEAL

This was an appeal from an order of the National Court re-committing an offender to custody on the basis that he breached conditions subject to which his sentence had been suspended.

Counsel:
T L Yaul, the appellant, in person
J Kesan for the respondent

BY THE COURT: 

This is an appeal against an order of Sakora J in the National Court, in which his Honour ordered that the appellant be re-committed to custody on the basis that he had not complied with conditions subject to which his prison sentence had been suspended. 

BACKGROUND

The appeal is against an order of Sakora J of 20 July 2004. However, to appreciate what that order was about, we must set out the background of the matter and show how the appellant was first convicted and sentenced by another judge, Batari J, in March 2003. The proceedings before both judges were held in the National Court at Kimbe.

Proceedings before Batari J – conviction and sentence: March 2003

On 14 March 2003 the appellant, Tom Longman Yaul, pleaded guilty to burning down Samuel Gasap’s tradestore at Section 27, Kimbe, on 18 August 2002, Batari J convicted him of an offence under Section 436(a) of the Criminal Code. Senior State Prosecutor, Mr Popeu, appeared for the State. Mr Siminji, of the Office of the Public Solicitor, represented the appellant.

Batari J requested and obtained a means assessment report under the Criminal Compensation Act 1991. Then on 28 March 2003 his Honour issued a certificate of conviction showing that the appellant was sentenced as follows:

1	Prisoner is sentenced to 4 years imprisonment, with hard labour.

2	Prisoner is to serve 12 months imprisonment and have the balance of 3 years suspended; prisoner placed on good behaviour bond for 3 years upon prisoner making restitution in the sum of K3,200.00 and also pay K1,000.00 compensation to the victim within the 12 months of imprisonment.

3	Order that the prisoner’s bail money of K200.00 be refunded and paid towards the restitution and compensation orders. 

Events between date of sentence and second appearance before National Court

The appellant served the first year of the sentence at Lakiemata correctional institution, near Kimbe. Then he was released from custody.

On 16 July 2004 he was arrested pursuant to the certificate of conviction and detained in the Kimbe police lock-up. This action was taken apparently on the complaint of someone who said that the appellant had not paid the money he was required to pay under Batari J’s order.

Proceedings before Sakora J: July 2004

On 19 July 2004 the appellant was brought before Sakora J. Senior State Prosecutor, Mr Popeu, again appeared for the State and made an oral application for the court to issue a fresh warrant of commitment, in order to reinstitute the three years suspended sentence. Mr Popeu informed the court that the appellant had failed to comply with Batari J’s order. Mr Oiveka, of the Office of the Public Solicitor, represented the appellant. The only document filed in support of the application appears to have been the appellant’s certificate of conviction issued by Batari J on 28 March 2003. His Honour indicated that he was satisfied that there had been no compliance with the order of Batari J but said that he needed details of the pre-sentence period in custody that the appellant had spent. He adjourned the matter to the next day to enable those details to be obtained. He asked Mr Oiveka if he was going to make submissions objecting to the State’s application. Mr Oiveka said that he would get instructions from his client. The appellant was then remanded in custody.

On 20 July 2004 the matter returned before Sakora J. Mr Popeu informed the court that the appellant had spent one month and 17 days in custody prior to the date of sentence, 28 March 2003. Mr Popeu again informed the court that the appellant had served 12 months in custody but did not comply with the court’s orders regarding restitution and compensation. During the course of the hearing his Honour expressed the view that the appellant had been made subject to orders that he could not comply with:

With respect, it does not make sense and in the end maybe considered to have caused injustice. Monetary orders must be capable of being complied with. All right, gentlemen, for your purpose, for my purpose and for this person’s purpose the balance of that sentence must be resurrected because those orders cannot be and could not be complied with.

All right, upon the information before me in relation to the sentencing of Tom Longman Yaul and the monetary orders that were made as conditions for the suspension of the balance of three years, I am satisfied that those orders have not been complied with. And for the record I express my concern with respect that those orders were made contrary to the recommendations of the means assessment report suggesting that the prisoner could not afford to pay those monetary orders and therefore the term of imprisonment would have to be resurrected.

His Honour addressed the appellant directly and explained that Batari J had sentenced him to four years imprisonment, ordered him to serve at least 12 months in prison and suspended three years if he paid the victim K4,200.00. His Honour told the appellant that as he had not been able to pay that money, he would have to “go back and serve the balance”. His Honour asked the appellant if he understood. He replied “yes”.

His Honour continued to speak to the appellant directly and said that he could not change Batari J’s orders: 

Another judge made those orders. I am trying to make sense of those orders but I cannot change those orders. Those have been made. They are there. The only way they can be changed is by appeal to the Supreme Court. So I repeat, I cannot change those orders but I have to enforce them.

His Honour then explained the calculation of the period of the sentence as follows:

•	head sentence : 4 years;

•	minus pre-sentence period in custody : 1 month, 2 weeks, 3 days;

•	= 3 years, 10 months, 1 week, 4 days;

•	minus 1 year post-sentence period in custody;

•	= 2 years, 10 months, 1 week, 4 days.

His Honour concluded:

I should explain that there is only one bit of that order that I can change, and that is that the time you spent in custody was not deducted, and I do so. …

As we have noted already, because you have not paid those monies, you have to go back and serve the 2 years, 10 months, 1 week and 4 days. So that is the situation. I have to enforce that order with that little change that I can do, and that is the time in custody that I have mentioned already.

I should advise that under this order and the order that was made for suspension originally by another judge, if you pay the K4,200.00 you can go free. Otherwise, you will have to be in custody to serve the balance of that sentence.

His Honour made a formal order and issued a warrant of commitment in those terms.

Observations

We note that when the matter went before Sakora J on 19 and 20 July 2004 the State did not file a written application to the court. Nor was there any affidavit or oral evidence presented to the court in support of the State’s application. The appellant’s lawyer did not at any stage object to the application. Mr Oiveka indicated on the first day that he would need to get instructions. But when the matter returned the next day he said nothing of any substance. His Honour did not invite Mr Oiveka to make any submissions on that second day. Nor did he ask the appellant whether he had anything to say about why he should not be re-committed to custody. His Honour just asked him if he understood that he would have to go back and serve the balance of his term of imprisonment. He replied with just one word: yes.

Events since July 2004

On 16 August 2004 the appellant filed his appeal. The appeal is against Sakora J’s order of 20 July 2004. He has not appealed against the sentence imposed by Batari J.

The appellant has remained in custody since July 2004 to the date of hearing of the appeal, 31 October 2005, a period of about 15 months.

We were informed during the hearing of this appeal that earlier this month the appellant was convicted by the District Court of a separate offence under the Dangerous Drugs Act. He was sentenced to 12 months imprisonment, cumulative upon his existing sentence for arson.

THE APPEAL

Two grounds of appeal relied on are:

1	The Judge did not give me the rights to speak. Would have explained why the compensation was not done, as I was raising the money to pay and I was not told of the due date.

2	The original complainant did not complain to the Court to have my probation revoked.

THE MAJOR ISSUES

The major issues for determination therefore are:

•	was the appellant denied the right to speak in a way that gave rise to a procedural error?

•	what is the relevance of the original complainant allegedly not complaining about revocation of the appellant’s probation?

APPELLANT’S SUBMISSIONS

Firstly, the appellant submitted that Sakora J did not give him the opportunity to defend himself. He says that he wanted to explain what had happened and why he had not paid the money. He says he was not given the chance to speak. He maintains that he did not breach the conditions of his suspended sentence as the due date for compensation had not lapsed and he was in the process of raising money to pay the compensation. The victim had verbally given him an extension of one year to pay the compensation. He had a poultry project in place. He had 104 chickens. They were seven weeks old and he was about to sell them and then someone laid a complaint and he was detained in custody. He does not know what has happened to his chickens. He says that he is still willing to pay the compensation but finds that difficult when he is in custody

As to the second ground of appeal, the appellant insisted that “the first complainant” (which we take to mean the victim of the arson, Samuel Gasap) was not the complainant who was responsible for bringing the matter back to court in July 2004 before Sakora J. The ‘second complainant’, he says, is a completely different person. In his written submission the appellant stated:

A completely different person came and lock my probation. I have no idea why he demanded me for K1,000.00. I have done nothing wrong with him.

The original complainant is from Enga Province and the Court ordered me to compensate him K3,200.00. The second complainant is from East Sepik and his demand for K1,000.00 and locking up my probation is not justice.

RESPONDENT’S SUBMISSIONS

Mr Kesan, for the State, submitted that the onus was on the appellant to demonstrate to the Supreme Court, in accordance with the principles in Norris v The State [1979] PNGLR 605 (Raine DCJ, Kearney J, Wilson J), that an identifiable error had occurred when he was sentenced. As he is only appealing against the decision of Sakora J that he had to serve the suspended part of his sentence, he had to identify some error made by Sakora J. However, no error was made, as the appellant was legally represented when he appeared before Sakora J. He had time to give his lawyer instructions and the orders of Batari J were self-executing.

As to the second ground of appeal, there was no need for the appellant to be advised further of the due date for payment. It was clear from the beginning what the due date was: he had to get the money paid within the first twelve months of his sentence. He was represented by a lawyer before Batari J and it was the lawyer’s responsibility to explain the court order and its effect.

The appeal should therefore be dismissed.

LAW REGARDING SUSPENDED SENTENCES

Before looking at the two grounds of appeal we will set out the law that was relied on to sentence and imprison and then reimprison the appellant. Then we will consider that law in the context of the laws that confer on all persons in PNG the right to the full protection of the law, in particular the right to a fair trial and procedural fairness.

Criminal Code, Section 19

This is the law that gives the judge a range of options when sentencing a person convicted of an offence. For example, the combined effect of Sections 19(1)(a), 19(1)(d) and 19(6) is to allow the judge to fix a head sentence lower than the maximum sentence; to suspend all or part of the sentence; and to set conditions, subject to which the sentence will be suspended.

Sections 19(1)(a) and 19(1)(d) state:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided …

(a)	a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and …

(d)	a person convicted on indictment of an offence not punishable with death may—

(i)	instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii)	comply with such other conditions as the court may, in its discretion, impose. 

Section 19(6) states:

When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that—

(a)	the offender be imprisoned for such portion of that term as it thinks proper; and

(b)	the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgement in respect of his service of the portion of the sentence.

The present case

The sentence imposed on the appellant by Batari J on 28 March 2003 was, in principle, a valid exercise of the powers of the sentencing judge under Sections 19(1)(a), 19(1)(d) and 19(6). We have some reservations about the practical utility of the sentence, and we will explain why later. However, as a matter of law, it was a proper sentence; the sort of sentence which was sanctioned by the Supreme Court in cases such as Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205, Greville-Smith J, Andrew J, Miles J.

When the matter came before Sakora J on 19 July 2004, a different provision of Section 19 was invoked. This time it was Section 19(7), which states:

A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

Neither his Honour nor the lawyers present acknowledged that the State’s application was being made under Section 19(7). But clearly that provision provided the legal basis for the proceedings in July 2004. The State was arguing that the appellant had committed a breach of the conditions of his recognisance (ie his undertaking to pay a total of K4,200.00) – by not paying any of that money – and therefore the judge should commit him to prison to undergo the suspended portion of his sentence.

RIGHT TO THE FULL PROTECTION OF THE LAW

Every person in Papua New Guinea has the right to the full protection of the law under Section 37 of the Constitution, (protection of the law) which states:

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

There are other specific rights – to life, liberty, freedom, privacy and so on – that are conferred by the Constitution. But the protection of the law is the right that provides how all the other rights can and must be enforced. The right to the protection of the law is intended to be fully available to persons who are charged with criminal offences or in custody.

Right to be presumed innocent at a fair trial 

A person charged with an offence is entitled to be presumed innocent and must be given a fair trial. Sections 32(2) to 32(10) of the Constitution are the main provisions that give effect to those rights. They state:

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

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

(4)	A person charged with an offence—

(a)	shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b)	shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c)	shall be given adequate time and facilities for the preparation of his defence; and
(d)	shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e)	shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f)	shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

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

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

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

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

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

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

Rights after conviction

A person convicted and sentenced of a criminal offence has another set of rights to protect them. They are mainly conferred by Sections 32(15) to (21) of the Constitution, which state:

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

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

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

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

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

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

(21)	Nothing in this section—

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

Right to liberty

A person’s right not to be deprived of his or her personal liberty is also protected by Section 42 (liberty of the person) of the Constitution, which states, amongst other things:

(1)	No person shall be deprived of his personal liberty except … 

(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty …; or

(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; … or

(e)	for the purpose of bringing him before a court in execution of the order of a court…

Right to natural justice

The principles of natural justice, also known as procedural fairness, are enshrined by Section 59 of the Constitution (principles of natural justice), which states:

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

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

WAS THERE PROCEDURAL ERROR IN THE NATIONAL COURT?

Guarding constitutional rights

We have gone to some lengths to recite the above constitutional provisions to emphasise the point that a person charged with an offence must be given the full protection of the law from the moment they are arrested, right through the process of trial and then up to and including the end of the period of their sentence. A prisoner’s rights do not cease once he or she is sentenced. 

As Kidu CJ stated in Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329, at 332:

It is the duty of courts to zealously guard the rights entrenched in the Constitution, especially the National Court and the Supreme Court. Before any of these rights are denied to a person the courts must ensure that the circumstances of the particular person come within the exceptions (if any) specifically outlined in the Constitution.

This bundle of constitutional rights provides the framework in which to consider the two grounds of appeal in this case. The first is the main one. The appellant submits that Sakora J did not hear him on the question of whether he should go back to prison.

Right to be heard

The first thing we say is that the appellant clearly had a right to be heard when he was brought back to the National Court on 19 July 2004. Whenever a court is dealing with a criminal case – whether it is a trial or some other form of proceedings involving the life or liberty of an individual – the judge or magistrate must control the proceedings in accordance with the principles of natural justice (Sela Gipe v The State (2001) SC661, Hinchliffe J, Jalina J, Sakora J).

The appellant had been charged with an offence, convicted and sentenced, and his sentence had not been completed. He had the right to the continuing full protection of the law. He had served the first year of his sentence at Lakiemata. He was then released for some time. But then he was arrested and detained in the police lock-up and brought before the court and made the subject of an application to re-commit him to custody. If that application was to be granted, he would go back to Lakiemata. The determination of the application was therefore a decision that would directly affect his liberty. 

The judge dealing with the application was not a rubber-stamp. The judge had a discretion to exercise. His Honour had to be “satisfied”, in the words of Section 19(7) of the Criminal Code, that the appellant had committed a breach of the conditions of his suspended sentence. 

The judge could not properly reach the required state of satisfaction unless he first administered to the appellant his right to be heard. The judge had to hear both sides of the story. It is part of the duty of a judge, even when he is not the primary sentencing judge but a judge giving effect to a previously pronounced sentence, to ensure that the proceedings are conducted in accordance with the principles of natural justice, ie to conduct the proceedings fairly and to be seen to conduct them fairly. The appellant had a right to give his side of the story and explain whether he had breached the conditions of his suspended sentence and if he had breached the conditions, whether there was any reason he should not be re-committed to custody.

Was he denied his right?

The next question is whether the appellant was, in fact, denied his right to be heard. At first glance it is easy to say, no, because he was represented by a lawyer at all times. However as we observed earlier the appellant’s lawyer did not object to the State’s application at any time, even though at the end of the first day of the proceedings before Sakora J (19 July 2004) he was invited to. When the matter returned the next day, the appellant’s lawyer said nothing much at all and the judge did not offer the opportunity again for the lawyer to make submissions. In fact during the second day of the proceedings (20 July 2004) the judge and both lawyers, with respect, dealt with the matter of the appellant’s re-commitment to custody as a formality. The only issue that was discussed was the length of the appellant’s pre-sentence period in custody.

The appellant was not asked to speak or give any explanation. The only question he was asked was whether he understood why he would have to go back to prison. He answered yes.

Given those circumstances, we conclude that the appellant was denied his right to be heard. 

Duties of lawyers and judges

The appellant’s lawyer should have been more diligent in speaking for the appellant. If he had obtained instructions that the appellant was not opposing the application the lawyer should have made a submission to that effect. Given that the lawyer was not clearly stating his client’s position, the judge should have either asked the lawyer what his client’s position was or asked the appellant whether he had anything to say. 

This situation was akin to a judge passing sentence without administering the allocutus, ie the part of a criminal trial when the magistrate or judge asks the convicted person whether he has anything to say to help the court decide on sentence. The allocutus is a part of the court’s duty to act fairly and, in principle, to be seen to act fairly. Failure to administer an allocutus can nullify the sentence (Moses Aikaba v Tami [1971-72] PNGLR 155, pre-Independence Supreme Court, Raine J; Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37; Michael Gende v The State (1999) SC626 Hinchliffe J, Jalina J, Sevua J). 

Other irregularities

Our conclusion that the procedure was unfair is strengthened by considering the manner in which the appellant was arrested, detained and brought before the court. He was arrested without a warrant in July 2004. The police simply acted on the basis of the certificate of conviction issued by Batari J in March 2003. He was then detained for three days without authorisation. We reject the State’s contention that the orders of Batari J were self-executing. The orders did not say that the appellant should be arrested and detained after serving the first year of his sentence. After his unlawful arrest and detention he was brought before the court and made the subject of an application to be re-committed to custody. 

However, there was no written application filed in the court. As the application was one allowed by the Criminal Code, the court should have either insisted that the application be made by originating summons, pursuant to the Criminal Practice Rules, Order 1, Rule 11, or formally dispensed with the requirements of Rule 11, pursuant to Rule 12. These provisions are contained in Division 1.4 (applications to the court) of the Criminal Practice Rules, comprising Rules 11 to 14, which state: 

11.	All applications allowed under the [Criminal] Code, Probation Act (Chapter 381) or by these Rules shall be made by Originating Summons.

12.	The Court may dispense with compliance with Rule 11 where it is in the interests of justice so to do.

13.	Where an application is heard under Rule 12 the Court may require such application be later reduced to writing.

14.	No fees shall be payable for Applications made under these Rules.

Furthermore, no evidence was adduced to the court to support the contention that the appellant had breached the conditions attached to his suspended sentence. The State’s lawyer just informed the judge that the appellant had not paid. No one gave oral evidence and no affidavit was filed. This, by itself, was a bad procedural error (Lindsay Kivia and Others v The State [1988] PNGLR 107, National Court, Amet J, at 113).

What he might have said

It is no answer to these procedural irregularities to say that there was nothing the appellant could say to oppose the State’s application. It appears that he wanted to say quite a bit. For example: 

•	the time for him to pay the K4,200.00 had not lapsed (he seems to have been confused about how long he had to pay, but whether he was confused or not, he should have been given the right, in a meaningful way, to say what he wanted to say); 

•	that he had negotiated a repayment plan with the victim of his crime; 

•	that the matter had only come back to court because of the actions of ‘the second complainant’; 

•	that if he was given a bit more time, he would be able to pay; 

•	he was worried about his family’s welfare if he were to go back to gaol immediately.

It is also no answer to procedural irregularity to say that the judge was not in a position to alter the previous sentence. Sakora J could have granted an extension of time to pay the money without disrupting the tenet of Batari J’s orders.

Conclusion re ground No 1

The appellant was not dealt with fairly. He was denied natural justice. The proceedings before Sakora J were tainted by a number of procedural errors. Ground of appeal No 1 is upheld.

WHAT IS THE RELEVANCE OF THE ORIGINAL COMPLAINANT ALLEGEDLY NOT COMPLAINING ABOUT REVOCATION OF THE APPELLANT’S PROBATION?

It is difficult to answer this question given the limited material that is before the Supreme Court. This is the sort of issue that is better dealt with in the National Court.

CONCLUSION RE GROUNDS OF APPEAL

We uphold ground No 1. We find it unnecessary to deal any further with ground No 2.

WHAT ORDERS SHOULD NOW BE MADE?

As ground No 1 is upheld, it follows that the orders made by Sakora J on 20 July 2004 cannot stand and will be quashed. We will remit the question of what should happen in relation to the remainder of the appellant’s sentence to the National Court. This is done under Section 16(d) of the Supreme Court Act, which allows the court to remit the case in whole or in part for further hearing. 

In normal circumstances we would order that the appellant be released from custody and placed on bail pending the matter being listed for further hearing in the National Court. However, the matter has been complicated by the appellant’s recent conviction and sentence for a separate offence under the Dangerous Drugs Act. As that sentence has evidently been made cumulative upon the sentence that is the subject of this appeal, we will order that the appellant remain in custody. However, the sentence the subject of this appeal will cease to be served forthwith. The appellant will be deemed from today to have commenced serving his sentence under the Dangerous Drugs Act. 

When the matter is returned to the National Court we ask the court, and the lawyers involved, to note that it appears that the appellant has almost served the sentence that is the subject of this appeal. We say that for the following reasons:

•	upon being recommitted to custody by Sakora J on 20 July 2004, the appellant had a further 2 years, 10 months, 1 week and 4 days to complete his 4-year sentence;

•	the end of the 4-year sentence would therefore be on 31 May 2007;

•	in normal circumstances the appellant would be granted a remission of one-third of his sentence under Section 120(1) of the Correctional Service Act; 

•	remission would bring his due date of release from custody forward to 1 February 2006.

REMARKS

There are several aspects of this unusual case that require comment.

First, the order made by Batari J, which required a prisoner to pay K4,2000.00 restitution and compensation to the victim of his crime, within the period of imprisonment (failing which he would have to also serve the rest of his sentence in prison) was, in practical terms, an order incapable of being given effect. Each case must be considered on its merits and we are not finding that his Honour made an error of law in imposing that sort of sentence. His Honour may have had good reasons for making such an order but we have been unable to detect any, especially as the prisoner was, it appears, an unemployed grass roots man living in a settlement in Kimbe. We suggest that judges be cautious when framing such orders under Section 19 of the Criminal Code. We agree with the sentiments expressed by Sakora J about the usefulness, indeed fairness, of such orders.

Secondly, the case demonstrates the importance of following clear and identifiable procedures whenever the State wants to apply to have a suspended sentence dissolved, in order to commit or re-commit a convicted person to custody. It is unacceptable for a prosecutor to make an oral application and to simply say from the bar table that the offender has breached the conditions of suspension. A written application should be filed. It should be done by originating summons. And there should be an affidavit filed in support of it. Once that is done, it will become clear that the offender has to be given a right to be heard.

Thirdly the case shows how, in our adversarial court system, the effective dispensation of justice depends on the creation and nurturing of synergy in the courtroom in the triangle of forces between the judge and the lawyers representing the parties. If one or two of the points in the triangle lose focus it becomes the task of the others to point this out. If that task is not fulfilled or all points in the triangle fail to focus errors happen and injustice, not justice, is dispensed. That appears to be what happened in this case.

JUDGMENT

The Supreme Court upholds the appeal and directs entry of judgment in the following terms:

1	the order of the National Court of 20 July 2004 in CR No 246 of 2003 is quashed; 

2	the appellant is discharged from custody in relation to the sentence imposed by the National Court under the certificate of conviction in CR No 246 of 2003 issued on 28 March 2003;

3	the appellant shall remain in custody and shall be deemed from today to have commenced serving his sentence for the offence under the Dangerous Drugs Act of which he has been convicted in October 2005 by the District Court at Kimbe;  

4	the question of what should happen in relation to the remainder of the appellant’s sentence in CR No 246 of 2003 is remitted to the National Court under Section 16(d) of the Supreme Court Act; 

5	the appellant and the respondent are at liberty to make applications to the National Court which either party considers appropriate; 

6	the appellant shall not be further detained or committed to custody in respect of the sentence imposed by the National Court under the certificate of conviction in CR No 246 of 2003 issued on 28 March 2003, except by and in accordance with a further order of the National Court. 

Judgment accordingly.
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Lawyer for the appellant		: 	Self-represented
Lawyer for the respondent		: 	Public Prosecutor