SC2295

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO.  15 0F 2016

BETWEEN:
WILLIE SISI
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mt Hagen: Manuhu, Lindsay and Kaumi JJ
2021: 29th September
2022: 8th September

CRIMINAL LAW – Appeal against conviction and sentence – One Count of Wilful Murder – 25 years imposed for one count of Wilful Murder – Application for Review granted - Identifiable error in Conviction – Appeal Upheld and Alternative Conviction entered for Murder-Section 539- Sentence of 25 years Imprisonment quashed, and 15 years substituted - Section 155 (2) (b) of the Constitution

Cases Cited:

John Beng v The State [1977] PNGLR 115
Bernard Touramasong & Others v The State [1978] PNGLR 337
Avia Aihi v The State (No.1) [1981] PNGLR 81
Manu Kovi v The State [2005] SC789
Ignatius Nalu Pomalou v The State [2006] SC834
Benjamin Sengi v The State [2015] SC1425

Counsel:

J.F. Unua, for the Appellant 
D. Kuvi, for the Respondent

08 September, 2022

1.	BY THE COURT: This is an application by Willie Sisi for leave to review his conviction of one count of wilful murder on 13th November 2013 after trial and his subsequent sentence on 10 December 2015 of 25 years imprisonment and 3 years of that sentence was deducted and pre-trial custody of 6 years 1 month and 3 days was also deducted leaving the balance of 15 years, 10 months, and 27 days to be served in custody by the National Court at Mendi.

2.	The State alleged that the appellant Willie Sisi of Wass village, Mendi, Southern Highlands Province, on 7 October 2009 at Wass village, wilfully murdered Wanpis Mon. 

3.	On the morning of 7 October 2009, there was a gathering at Wass village in Mendi. The gathering was for a peace mediation following a conflict between the appellant’s brother and the deceased over the stealing of the appellant’s brother’s radio by the deceased. The peace mediation officers, and the deceased’s relatives approached the area for the mediation, the Chief namely Moses Erowol from the appellant’s side, gave orders to the boys to attack the deceased and his people. The appellant, who was in this group and armed with a bush knife ran towards the deceased and cut him on the head. The appellant’s brother also followed and cut the deceased as well. The deceased died because of the bush knife wounds.

4.	The appellant persists both his appeal against conviction and sentence. 

GROUNDS FOR REVIEW 
5.	The applicant’s ground for review is contained in Form 1 which was lodged on the 15 December 2015 and sealed by the Supreme Court Registry on 21 March 2016. (Page 14- Review Book) 

6.	The appellant’s sole ground against conviction relies solely on the ground that he is innocent, and the suspect is still at large.

7.	The applicant seeks review of the conviction on the count of wilful murder which he says was unsafe and the sentence which he says is harsh and manifestly excessive.

ISSUES
(A) Whether leave to review should be granted to the applicant? 
(B) Whether the conviction for the count of wilful murder was unsafe?  If this question is answered in the affirmative the next question should be answered. If it is answered in the negative, then question (D) should be answered. 
(C) Should an alternative conviction be entered for Murder pursuant to Section 539? 
(D) Whether the sentence imposed on the Applicant is manifestly excessive, considering the peculiar facts and circumstances of the case?  

(A) Whether leave to review should be granted to the applicant?
8.	The law on applications for leave to review and applications for review pursuant to section 155 (2) (b) of the Constitution is well settled in this jurisdiction. Avia Aihi v The State (No.1) [1981] PNGLR 81. The principles are discussed and summarized by the Supreme Court in the case of Benjamin Sengi v The State (2015) SC1425, that when a right of appeal has not been exercised within the 40-day time period provided by Section 29 of the Supreme Court Act 1975, three (3) criteria must be satisfied before leave can be granted. They are:

[1]	it is in the interests of justice to grant leave:
[2] 	there are cogent and convincing reasons and exceptional circumstances, such as substantial injustice is manifest, or the case is of special gravity; and
[3]	there are clear legal grounds meriting a review of the decision.

9.	The Appeal by the appellant is by way of Supreme Court Review having been lodged out of time. As per the Notice of Appeal and Application for Leave to Appeal, this is an appeal against conviction and sentence (page 643 line 20).

10.	We note that page 4 of the Review Book is the Form 1.

11.	We note the following matters from this Form 1:

•	It is a Notice of Appeal and an Application for Leave to Appeal Against a Decision of the National Court as opposed to an Application for Leave to Review.
•	The name of the appellant is the person who lodged this form.
•	Place of National Court sitting is Mendi.
•	The date of lodgment is 15 December 2015 which is 5 days after he was sentenced.
•	This form was sealed by the Supreme Court registry at Waigani on 21 March 2016.
•	This form is devoid of any information as which the prison the appellant was being incarcerated in at the time, he lodged it.
•	This form is devoid of information or question as to the identity of the prison officer the appellant says he lodged his appeal with.
•	The appellant raises two grounds for appealing, firstly, that he was an innocent man, and the suspect was still at large, and secondly, that the sentence was too much and as the court did not consider some of the facts that were put to it for consideration.

12.	 The appellant in his affidavit (Document No. 4) sworn on 24 September 2021 explaining the delay, deposes at paragraph 4 that he lodged his application on 15 December 2015 and further that he was aware that his application was sealed on 21 March 2016. At paragraph 5, he deposes that he lodged his appeal within 40 days’ time period that lapsed however, it was sealed on 21 March 2016. We note that the appellant does not depose in his affidavit as to whom he lodged his application with nor from where he lodged it.

13.	 The appellant through the Public Solicitors Office submits that he would be speculating as to the reasons why the form never reached the Supreme Court registry within the 40 days’ period, however that in terms of his affidavit he was giving firsthand evidence as to his knowledge of how the document reached the Supreme Court registry. Counsel for the appellant submitted that he lodged it through the CS clerk and it is usually a process where the CS clerk usually lodged the appeal. 

14.	The application for leave before us has a slight twist to it in that, the date on Form 1 is different from the date of sealing of it by the Supreme Court registry at Waigani. The date which is on the duly completed form is 15 December 2015 whilst the date of sealing is 21 March 2016.

15.	At face value, this application for leave would appear to be outside the 40 days grace period as per its date of sealing by the Supreme Court registry at Waigani, despite the appellant arguing to the contrary. The dilemma the court faces is one of a lack of information on the date the Form 1 was lodged, a matter which impinges on the issue of whether to grant leave for review. On one hand the Respondent has not seriously challenged the appellant’s contention that he lodged his appeal five days after he was sentenced. In the same vein we are not assisted very much by the dearth of information in the appellant’s affidavit regarding whom he lodged his Form 1 with and where he lodged it. We are not assisted much in this aspect when you consider that the Form 1 form is devoid of any questions to be answered by appellants regarding what prison he or she is being incarcerated in at the time he or she lodges it and with whom he or she lodges it with, matters which in our view would assist the court on this issue. The relevance of this becomes patently clear when an applicant files an affidavit explaining a delay (in filing within the 40-day grace period) as in the instant matter and has not deposed to such information and the court is virtually left to its own devices.

16.	These forms should be refined to include such vital information to avoid confusion and doubt and more so to assist the court in similar circumstances. Applicants must be able provide evidence of where, when and with whom they lodged their appeals with the minimum of fuss and one way of doing this is through these forms. Circumstances are always changing hence such forms need to continue to be refined to accommodate the changes in circumstances as they emerge.

17.	 In addressing this matter, we note that firstly, the applicant appeared before us in Mt Hagen while serving sentence at the Baisu CI when he lodged his application. He was not at Bomana CI so he could easily access the Waigani Supreme Court Registry through the assistance of CS officers and lodge his application. Secondly, the dilemma he faced was not unique, but one faced by other such applicants who are incarcerated in prisons outside of Port Moresby and as such some allowance should be given for this reason. 

18.	In this instance, we are of the view that the applicant cannot be held liable for some administrative short coming in the makeup of a form that was initially designed to make it easier for them to lodge appeals.

19.	Having considered these matters we note as well that the applicant is serving a 25-year sentence and there are cogent and convincing reasons meriting a review of the decision so we are of the view that it would be in the interest of justice for leave to be granted to review his conviction and sentence. Accordingly, we grant leave. Ignatius Nalu Pomalou v The State (2006) SC834.2

(B) Whether the conviction for the count of wilful murder was unsafe?  If this question is answered in the affirmative the next question should be answered. If it is answered in the negative, then question (D) should be answered.
20.	The appellant in appealing against conviction raises a sole ground of appeal which is outlined in the Review Book (RB) at page 5 and is as follows:

a.	That he is innocent, and the suspect is still at large.

21.	The appellant argues that the conviction for the count of wilful murder was unsafe.

22.	The test to be applied when the ground of appeal is founded on the ground that the convictions are “unsafe or unsatisfactory” is to be found in John Beng v The State [1977] PNGLR 115. There the Supreme Court, after discussing and analyzing decisions in the United Kingdom, relating to the expression “unsafe or unsatisfactory” in that country’s statute held that on an appeal against conviction pursuant to S.22 (1) (a) of the Supreme Court Act, 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed. This test has been applied in many other subsequent cases. See Bernard Touramasong & Others v The State [1978] PNGLR 337.

23.	This now entails a consideration of the evidence in totality.

24.	Firstly, there are certain facts that are not in dispute. It is undisputed that: [1] The deceased was attacked with bush knives at Wass village on the morning of 7 October 2009. [2] The deceased was from Tukute village, Mendi, Southern Highlands Province. [3] The appellant is from Wass village, Mendi, Southern Highlands Province. [4] Both Tukute and Wass villages are within three hundred meters of each other within the Karinz LLG area of the Southern Highlands Province.[5] The Medical Certificate of Death (by Dr. G. Kul dated 9 October 2009) confirms the cause of death of the deceased as cerebral hemorrhage and Hypoxia due to bush knife wound. [6] The deceased died two days later. [7] The State witnesses, Raymond Mon and Mathew Mon are brothers of the deceased.[8] The appellant and Joe Sop are brothers.

25.	We will now consider the sole ground of appeal raised that the appellant is innocent, and the suspect is still at large. 

26.	At the outset of our consideration of this ground, we are of the view that the trial judge made an erroneous finding of facts upon which he convicted the appellant of wilful murder. 

27.	We say the trial judge erred when he found that the appellant cut the deceased on the head because we find that the overwhelming evidence adduced in the trial is that he didn’t. We find that the error is in relation to the evidence within the State’ witnesses. All the State witnesses say that the appellant attacked the deceased by cutting him on the right shoulder. We further find that all the State witnesses despite placing the appellant at the scene of the crime, say that it was the second assailant being one, Joe Sop, who inflicted the deadly blow when he cut the head of the deceased Wanpis Mon. The trial judge clearly made an erroneous finding of facts when he found that the appellant armed himself with a bush knife and struck the deceased on his head. Page 664, line 2 Volume 2 RB. Firstly, the first State witness, Raymond Mon testified that the appellant attacked the deceased and cut him on the right shoulder page 47 lines 34 to 40, page 48 lines 2 to 6 and 20, page 49 lines 2, 4 and 6 and page line 20, 22 and 30 and page 50 lines 20 and 36 Volume 1 of the Review Book. Secondly, the second State witness, Mas Solko, essentially sets out the evidence in relation to the attack on the deceased and his evidence is similar to Raymond Mon with respect to what the appellant did as opposed to what Joe Sop did Page 119 line 27 to 41 RB. And so as the third State witness Michael Iso, he also gives evidence in similar fashion. Page 150 RB. It is abundantly clear from the evidence of the only three State witnesses called that they all maintained that the appellant cut the deceased on his right-hand shoulder. The evidence of the fatal injury sustained and where it was located on the body of the deceased is consistent with the medical evidence. The medical evidence is that a cut to the head caused his death. Now there’s no evidence as to whether the cut on the right-hand shoulder caused the death because the Medical Certificate of Death is clear that the direct condition leading to the death of the deceased was Cerebral Hemorrhage and Hypoxia and further that the morbid condition giving rise to the cause of death was a head injury (severe compound) due to bush knife wound Exhibit MFI P3 Page 000694 RB. We are of the view that there should be a link between the actions of the appellant and the death showing that firstly, his act caused the death and secondly that there was the intention to cause death. We find that there was a break in the link if for two reasons, firstly because the State’s evidence was that firstly, the appellant cut the deceased on the right shoulder then secondly, and later Joe Sop delivered the fatal cut which the medical evidence confirms that the cut to the head caused his death. We find that there’s no evidence as to whether the cut on the right-hand shoulder caused the death and the medical evidence is clear that a cut to the head caused the death. And there is nothing in the Medical Certificate of Death that says there was a cut to the shoulder. 

28.	We note that section 7 was not invoked which further strengthens our view that the trial judge made an erroneous finding of facts and convicted the appellant of wilful murder.

29.	We note that the appellant did not challenge the findings of the trial judge on the alibi defence he raised which was prudent of him and unnecessary as the overwhelming weight of the State witnesses was that although he was at the scene the fatal bush knife wound to the deceased’s head was caused by another person they identified as Steven Sop.

30.	We are of the view that, there was no evidence of an intention by the appellant to cause the death of the deceased however there was overwhelming evidence of intention on part of the appellant to cause grievous bodily harm to the deceased. 

31.	We are therefore of the view that the trial Judge made an erroneous finding of fact and convicted the appellant of wilful murder, and we set aside this conviction.

(C) Should an alternative conviction be entered for Murder pursuant to Section 539? 
32.	By the operation of section 539 of the Criminal Code, for an alternative conviction for Murder to be entered the court needs to make a finding of fact. We alternatively find from the overwhelming weight of the State evidence the following:

•	The appellant was at the material scene.
•	That the appellant cut the deceased on his right shoulder with the use of a bush knife.
•	That this bush knife wound to the right shoulder of the deceased did not cause his death.
•	That after the appellant’s attack, another person Steven Sop who was also at the material scene, cut the deceased on his head and caused his death.
33.	The use of the weapon and the chop to the right shoulder and extent of the injury throws light on what the intention of the appellant was. We note that the medical certificate of death states the only cause of death as the wound to the head and it does not state a secondary trauma as also causing or contributing to the death. All three State witnesses that were called say the appellant cut the deceased on his right shoulder and that he used a bush knife, and the blow was to the upper part of the body, so we safely infer that there was some intention on part of the appellant to cause serious injury.

34.	We note that the appellant’s counsel submits that if the court is to set aside the conviction of wilful murder and the sentence of 25 years, then the appellant should be acquitted, alternatively if the court finds that the conviction of wilful murder be set aside and an alternative verdict of murder be entered against the appellant and a new sentence of 15 years be imposed.

35.	We note that the respondent State submits that it was open to the court to make an alternative finding pursuant to section 539 and that alternative finding should be a verdict under murder, section 300 (1) (a) of the Criminal Code. 

36.	Accordingly, pursuant to section 539 of the Criminal Code, we find the appellant intended to cause grievous bodily harm to the deceased and therefore guilty of the alternative charge of murder of the deceased contrary to section 300 (1) (a) of the Criminal Code. 

(D) Whether the sentence imposed on the Applicant is manifestly excessive, considering the peculiar facts and circumstances of the case? 
37.	As a result of our finding the appellant guilty of the alternative charge of murder, we are therefore of the view that the appellant should receive a lower sentence.

38.	We accordingly set aside the sentence of 25 years imposed on the appellant.

39.	 The appellant through his counsel submits that if the court finds that the conviction of wilful murder be set aside and an alternative verdict of murder be entered against the appellant and a new sentence of 15 years be imposed.

40.	The respondent submits that this matter is within the range of the second category of Manu Kovi and submits that according to the circumstances of this offence it would fall somewhere between 14 – 17 years.

41.	 Having duly considered submissions by counsels on sentence we note that the characteristics of this offence cause it to fall within category 2 of Manu Kovi and that a sentence of 15 years is justified in the circumstances, and we impose it.

42.	We are further of the view that the pre-trial and post custody be deducted from the new sentence of 15 years.

ORDER
43. We order that:
1.       Leave to review conviction and sentence is granted.
2	The appeal against conviction for wilful murder is allowed.
3	The conviction of wilful murder is quashed.
4	A verdict of guilty of murder under s 300 (1)(a) of the Criminal Code is entered.
5	The sentence of 25 years imprisonment, 3 years of that sentence was deducted and pre-trial custody of 6 years 1 month and 3 days was also deducted, is quashed, and substituted by a sentence of 15 years imprisonment, with a pre-sentence period in custody of 6 years, 1 months, 3 days deducted, and post custody of 6 years 4 months and 16 days be deducted.
6	The warrant of commitment to custody issued by the National Court is revoked and a fresh warrant of commitment reflecting the new sentence shall be issued in substitution for it.
__________________________________________________________________
The Public Solicitor: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the State