SC1656
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 59 OF 2016

TAUBA LAIAM
 Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Makail J, Polume-Kiele J
2018: 26th February, 1st March 

CRIMINAL LAW – wilful murder – guilty plea – appeal against conviction – trial judge’s duty to be alert to possible defences apparent from depositions or allocutus – discretion to set aside conviction after guilty plea – Supreme Court Act, Section 24(1) – whether reasonable doubt about safeness or satisfactoriness of verdict. 

CRIMINAL LAW – wilful murder – appeal against sentence of life imprisonment – whether any identifiable error by sentencing judge – whether sentence manifestly excessive. 

The appellant was convicted after pleading guilty of one count of wilful murder and sentenced to life imprisonment. He appealed against conviction on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of automatism under Section 24 (intention: motive) of the Criminal Code, which if accepted would have resulted in acquittal. He appealed against the sentence on the ground that it was manifestly excessive and that the judge had failed to give due weight to mitigating factors including the fact that prior to killing the deceased the appellant had been given a substance by the deceased’s father that made him temporarily mentally unstable and unable to control his actions. 

Held: 

(1)	The potential defence of automatism was not readily apparent from the depositions (including a statement made by the appellant in his statement to the District Court under Section 96 of the District Courts Act) or the allocutus and remained a possible defence only, without reasonable prospects of success. The trial judge did not err by not raising it with the defence counsel and by not vacating the guilty plea and by not setting aside the conviction.

(2)	The verdict was not unsafe or unsatisfactory. The appeal against conviction was dismissed. 

(3)	To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive.

(4)	The sentence of life imprisonment was not manifestly excessive. However the judge made identifiable errors in that insufficient regard was had to all mitigating factors: the guilty plea, the absence of pre-planning, the appellant had no prior convictions, the appellant’s consistent contention that his mind had been affected by a substance; the appellant surrendered to the police; the appellant made admissions in his Section 96 statement.

(5)	The sentence of life imprisonment was quashed and substituted by a sentence of 30 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Anton Yani v The State (1999) SC615
Gabriel Laku v The State [1981] PNGLR 350
Gedai Kairi v The State (2006) SC831
Gordon Gala Junior v The State (2017) SC1629
In re Joseph Mavuk [1980] PNGLR 507
John Beng v The State [1977] PNGLR 115
Manu Kovi v The State (2005) SC789
Norris v The State [1979] PNGLR 605
Saperus Yalibakut v The State (2006) SC890
Tamara Player Tomscoll v The State (2012) SC1208
The State v Enakuan Salaiau [1994] PNGLR 388
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
Thress Kumbamong v The State (2008) SC1017

APPEAL

This was an appeal against conviction for wilful murder and the sentence of life imprisonment.

Counsel

T Laiam, the appellant, in person
D Mark, for the respondent

1st March, 2018

1.	BY THE COURT: Tauba Laiam was convicted by the National Court constituted by Justice Mogish of one count of wilful murder under Section 299(1) of the Criminal Code, after pleading guilty, and sentenced to life imprisonment. He appeals against his conviction and also the sentence.

APPEAL AGAINST CONVICTION

2.	The appellant’s primary contention is that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of automatism under Section 24 (intention: motive) of the Criminal Code, which if accepted, would have resulted in acquittal. To understand this argument it is necessary to set out the process by which the appellant was convicted. 

3.	The judge informed the appellant that he was charged with wilful murder. His Honour then put the allegations to the appellant as follows: 

•	On 6 May 2015 you went to Girinumu village, Central Province, intending to kill your wife, Maria Manai. You approached Maria Manai who was holding your two-month-old baby. You chopped Maria Manai on the throat. You then stabbed her repeatedly on the breast using the same knife. Maria Manai dropped the baby on to the ground. She died instantly. Mavere Manai, the deceased’s mother, who was close to the deceased, ran to the baby and picked up the child and alerted the brother, Aua Manai. You backed out of their dwelling and ran out. You jumped down a cliff and disappeared. The State says that when you stabbed the deceased on her throat and on her breast, you contravened Section 299(1) of the Criminal Code. You intended to kill Maria Manai. 

4.	Asked how he pleaded, the appellant replied without equivocation that he pleaded guilty. He was represented by a lawyer from the Office of the Public Solicitor, Mr Tine, who advised the Court that the plea was consistent with instructions and he had no application to make. 

5.	The prosecutor, Ms Tamate, tendered the committal depositions and drew the judge’s attention to the record of interview, which contained no admissions, and the Section 96 statement made by the appellant to the District Court at his committal proceeding, which did contain admissions. 

6.	Section 96 (accused to be asked whether he desires to give evidence) of the District Courts Act states:

(1)	Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—
	
"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.".

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

(a)	taken down in writing in the English language and read to him; and
(b)	signed by the Magistrates constituting the Court and by the defendant if he so desires; and
(c)	kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

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

7.	The primary judge stated that he had read the depositions and accepted the guilty plea and that the appellant was convicted of wilful murder, as charged. The judge then administered the allocutus. He asked the appellant if he wished to tell the court what type of punishment should be imposed on him. The appellant said:

Your Honour, I used to look after both the old ladies – old people. The father of the lady did something; my head went confused so I did what I did. If this court can have mercy on my two children and give me time.

Appellant’s argument

8.	The appellant’s argument is that his Honour should have detected a possible defence of automatism in the Section 96 statement and in the allocutus. 

Principles 

9.	In assessing that argument, we refer to the recent decision of the Supreme Court in Gordon Gala Junior v The State (2017) SC1629, in which the primary duties of a judge dealing with a criminal case were summarised in the following terms: 

•	A judge must ensure that an accused person, including an accused who pleads guilty, is afforded the full protection of the law under Section 37 of the Constitution. 

•	The Judge must be alert to potential defences in the depositions or arising during arraignment or at any stage of the trial process up to formal passing of sentence. 

•	If the judge detects a clear defence then, even if it has not been raised by the defence counsel, the judge should raise the issue and invite counsel and the accused to reconsider the plea. 

•	Unless there are good reasons for the accused wishing to maintain a guilty plea, the Judge should vacate the plea and set aside the conviction.  

•	The judge has an inherent discretion to vacate a guilty plea and set aside a conviction whenever it is in the interests of justice to do so. 

•	A judge who accepts a guilty plea and convicts an accused and proceeds to sentence while failing to detect a clear defence to the charge – even if the issue is not raised by the defence counsel – in the depositions, during arraignment or allocutus or in anything said by the accused, will commit an error of law, giving rise to reasonable doubt about the safety and satisfactoriness of the verdict (and necessarily the sentence).  

10.	These principles are based on the seminal decision of Kapi J as he then was in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1, endorsed in a number of Supreme Court decisions including Gabriel Laku v The State [1981] PNGLR 350, Anton Yani v The State (1999) SC615, Gedai Kairi v The State (2006) SC831, Saperus Yalibakut v The State (2006) SC890 and Tamara Player Tomscoll v The State (2012) SC1208. 

Automatism as a defence 

11.	We agree that automatism is a complete defence to wilful murder under Section 24 (intention: motive) of the Criminal Code, which states:

(1)	Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a)	an act or omission that occurs independently of the exercise of his will; or
(b)	an event that occurs by accident.

(2)	Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3)	Unless otherwise expressly declared, the motive by which a person is induced—

(a)	to do or omit to do an act; or
(b)	to form an intention,

is immaterial so far as regards criminal responsibility.

12.	It is Section 24(1)(a) that contains the defence of automatism. It is a defence that only needs to be considered if there is a proper foundation for it. As Doherty J observed in The State v Enakuan Salaiau [1994] PNGLR 388:

It is clear from the case law in Papua New Guinea and in other countries that to raise automatism there must be a proper basis. It involves two things: first, that the person suffers from the mental incapacity from time to time and, second, that he suffered it at that time the offence was committed.

Further, the Court must distinguish the genuine cases of automatism and the fraudulent. The layman cannot safely, without the help of medical or scientific evidence, distinguish the genuine from the fraudulent.

13.	If the accused puts proper evidence of automatism then, as in the case of self-defence and other excusatory defences, the onus rests on the prosecution to disprove the elements of that defence (Thress Kumbamong v The State (2008) SC1017). 

This case

14.	Having considered the elements that must exist for the defence of automatism to apply and considered the matters in the appellant’s Section 96 statement and the allocutus, we are firmly of the view that there was little indication in that material, that the defence of automatism was available. We consider that the material considered by the Judge must give rise to a clear defence that has a reasonable prospect of success at a trial – not just a possible defence. We find that the trial Judge did not err by not raising the possibility of a defence of automatism.

15.	To succeed on an appeal against conviction, an appellant must by virtue of Section 23 of the Supreme Court Act, establish that, the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).

16.	None of those conditions exist in this case. The appeal against conviction must therefore be dismissed.

APPEAL AGAINST SENTENCE

17.	In submissions on sentence in the National Court, the appellant’s counsel drew his Honour’s attention to the admissions made in the appellant’s Section 96 statement in the District Court, where he stated that the deceased’s father had given him a ginger substance which he had consumed, which made him lose his mind. It was submitted that a sentence of 30 years to life imprisonment would be appropriate. 

18.	The prosecutor also drew the judge’s attention to the appellant’s guilty plea and to the admissions in the Section 96 statement in which the appellant stated, that he had surrendered to the police and to the State’s concession that there was little or no pre-planning involved. Ms Tamate submitted that a sentence of 60 years imprisonment would be appropriate. 

19.	In the decision on sentence his Honour took into account the guilty plea and the Section 96 statement that indicated that the appellant was suffering delusions at the time of the attack due to some substance given to him by the deceased’s father. His Honour stated, however, that he could not place much weight on that extenuating circumstance as there was no scientific evidence in support of it. His Honour drew comparisons between this case and the case of Manu Kovi v The State (2005) SC789. His Honour pointed out that he was the trial judge in that case, the facts of which were similar to the present case as the offender had in a public place attacked his wife with a knife, intending to kill her, and killed her instantly. An appeal against the sentence of life imprisonment was dismissed. His Honour proceeded to impose the same sentence on the appellant. 

Appellant’s argument

20.	The appellant argues that the sentence was manifestly excessive and that the judge had failed to give due weight to mitigating factors including the fact that prior to killing the deceased, he (the appellant) had been given a substance by the deceased’s father that made the appellant temporarily mentally unstable and unable to control his actions. 

Principles on appeals against sentence

21.	To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive (Norris v The State [1979] PNGLR 605). 

Manifestly excessive?

22.	As to the argument that the sentence was manifestly excessive, it is useful to have regard to the sentencing guidelines given by the Supreme Court in Manu Kovi v The State (2005) SC789. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

SENTENCING GUIDELINES FOR WILFUL MURDER 

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

23.	We consider that the present case was capable of falling within category 3, especially, if it had been a trial. So on the face of it, the sentence of life imprisonment was not manifestly excessive.

Identifiable error? 

24.	However, when it is considered that the appellant pleaded guilty, we consider, with respect, that the learned primary Judge fell into identifiable error in that insufficient weight was given to the following mitigating factors:

1.	the guilty plea;
2.	the absence of pre-planning;
3.	the appellant had no prior convictions;
4.	the appellant’s consistent contention that his mind had been affected by a substance (which he referred to as “ginger”);
5.	the appellant surrendered to the police; and 
6.	the appellant made admissions in his Section 96 statement to the District Court. 

25.	Some of these issues would have required corroboration, if the appellant had been convicted after a trial. However, he pleaded guilty. He was entitled to the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that were not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). None of the above mitigating factors were contested by the prosecution. We find, with respect, that his Honour did not give the benefit of the doubt to the appellant. More weight should have been given to the mitigating factors. We will invoke Section 23(4) of the Supreme Court Act, which states:

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

26.	In our opinion a less severe sentence is warranted in law and should have been passed. We will quash the sentence of life imprisonment imposed by the National Court and pass in substitution for it, the sentence of 30 years imprisonment.

ORDER

(1)	The appeal against conviction is dismissed.

(2)	The appeal against sentence is allowed.

(3)	The sentence of life imprisonment is quashed and substituted by the sentence of 30 years imprisonment.

(4)	The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment reflecting the new sentence.
_________________________________________________________________
Public Prosecutor: Lawyer for the Respondent