SC2866

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 43 OF 2024

PISEK MOROWAN
Appellant 

v

 THE STATE
 Respondent 

LAE: GEITA J, WAWUN-KUVI J, CHRISTENSEN J
24, 26 MARCH 2026

APPEAL – CRIMINAL LAW – Appeal against conviction – murder – domestic violence – wife killing husband – stabbing – self defence raised – premise in brief facts – allocutus – record of interview – submissions made on sentence – defence acknowledged by sentencing judge – duty of trial judge –  role of counsel – error of law – safeness of conviction – miscarriage of justice - limitation as to time of death – s 297 Criminal Code – appeal upheld – remittal for trial 

APPEAL – CRIMINAL LAW – Appeal against sentence – unnecessary to determine

Facts

The appellant pleaded guilty to an offence of murder involving the stabbing death of her husband.  She was sentenced to 13 years imprisonment.  During the sentence proceeding, from the arraignment onwards, self defence was raised but the sentencing judge was not assisted by counsel as to what course was appropriate to be taken.  The appellant now seeks that the conviction be set aside.  

Held

1.	The Supreme Court in Junior v The State [2017] PGSC 32, SC1629 and John v The State [2025] PGSC 119, SC2819 are authoritative as to the considerations on appeal where a defence is raised during a sentence proceeding. 

2.	Where self defence was readily apparent at the sentence proceeding, and the defence had reasonable prospects of success, an error of law and unsafeness of conviction resulting in a miscarriage of justice has occurred.  

3.	Lawyers appearing in sentence hearings must ensure that they are familiar with Yani v The State [1999] PGSC 20, SC615 and Kairi v The State [2006] PGSC 8, SC831 to ensure a sentencing court is given appropriate assistance.  

4.	Section 297 of the Criminal Code is of relevance where a victim of murder does not pass away immediately or soon after the alleged offence. 

Cases cited

Beng v The State [1977] PNGLR 115
John v The State [2025] PGSC 119, SC2819
Junior v The State [2017] PGSC 32, SC1629
Kairi v The State [2006] PGSC 8, SC831
Laiam v The State [2018] PGSC, SC1656
Yani v The State [1999] PGSC 20, SC615

Counsel

J Bibilo for the appellant 
N Pare for the respondent 

1.	BY THE COURT: By way of leave granted on 7 March 2025 the appellant appeals her conviction and sentence.  

2.	On 10 September 2024, the applicant was sentenced to a term of 13 years imprisonment, with 8 months and 2 weeks deducted, for an offence of murder contrary to s 300(1)(a) of the Criminal Code.  

3.	The offence of murder contrary to s 300(1)(a) carries a maximum penalty of life imprisonment. It is relevant to observe that this can be contrasted with wilful murder contrary to s 299 of the Criminal Code which carries a maximum penalty of life imprisonment without parole. 

Grounds of the appeal 

4.	The appellant sets out, in a notice of appeal filed 4 March 2026, the grounds of appeal as being:

(a)	The trial judge erred in imposing the sentence of 13 years imprisonment as it is excessive in the circumstances of the offence given the following reasons:

(i)	The appellants history of 15 years marriage with the deceased was abusive (15 years of living in domestic violence).
(ii)	Incorrect statement regarding time of death.  The deceased died 9 days after the incident. 

(b)	The trial judge erred by failing to take into account all the relevant mitigating factors available to the appellant. 

(c)	The trial judge erred in convicting the appellant on the offence of murder when she clearly raised a possible defence of ‘self defence’.  

5.	The appellant seeks that the appeal be allowed and the conviction quashed and the appellant acquitted. Alternatively, it is sought that the sentence be set aside and substituted with a lower sentence. 

Appeal against conviction

6.	The law to be applied is settled.  It is well recognised that an appeal against conviction is governed by s 23 of the Supreme Court Act, being that the Supreme Court shall allow an appeal against conviction if it thinks that:

(a)	the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b)	the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)	there was a material irregularity in the course of the trial.  

7.	In the event one of these grounds is established, the Court is then to consider whether a miscarriage of justice has actually occurred.  If not, the appeal may be dismissed: Beng v The State [1977] PNGLR 115.  

8.	On this appeal, the appellant submitted that there was an error of law in the conviction entered.  Nonetheless, the submissions of behalf of the appellant were directed towards the authorities that inform a sentencing judge’s role in sentencing where an equivocal plea of guilty is entered.  These submissions were not of assistance in terms of the role of this Court in such a circumstance.  Similarly, the submissions of the State were initially directed towards the circumstances of the sentence proceeding and decision, rather than the essential contention as to there being an identifiable defence raised in allocutus and in the depositions and whether this establishes a ground pursuant to s 23 of the Supreme Court Act.  To the extent that the State responded to the issue raised on the appeal, it was submitted that the appellant was afforded sufficient opportunity for any contended defence to be considered.  

9.	We have found it necessary to consider and apply the law as it applies to an appellant court’s role in the circumstances as they arose here and accordingly will not be addressing the submissions of the parties in any detail. 

The sentence proceeding

10.	The indictment alleged that the appellant murdered Wesley Max at Imando Village on 22 December 2023.  The brief facts were set out as follows:

The accused was married to the deceased at the time of the offence.  The State alleges that on the afternoon of 21 December 2023, both the deceased and the accused drank alcohol at a family function at their village, namely Imando. 

At around 1.30am on 22 December 2023, they argued and fought.  A relative separated them, however, the accused took a kitchen knife and stabbed the deceased on his shoulder and also on his stomach, causing a big opening on the stomach.  The relative heard the deceased’s scream and came and removed the knife from the accused and she ran away.  The deceased was taken to Etep hospital where he was admitted for a week and two days before he died from his injury. 

11.	The sentencing judge explained the charge and facts and asked the appellant if she understood the charge.  She said yes, and entered a guilty plea.  The sentencing judge asked counsel then representing the appellant if there was any application, and was informed “no applications...the prisoner has pleaded and it is consistent with instructions”. 

12.	The depositions were tendered and the State drew the Court’s attention to contended admissions in the record of interview.  After his Honour indicated having read the depositions, the plea of guilty was confirmed.   The antecedent report was then tendered, alleging no prior convictions.  

13.	The allocutus was administered.  It is relevant to set it out in full [sic]:

I say sorry to God and the court.  I say sorry to your Honour and the lawyers and all the staff together.  I say sorry I have already committed an offence.  I broke the Constitution of this country.  And also I broke the sixth Commandment of God.  I also broke the Constitution of this country.  I say sorry to my husband, late Wesley Max.  He’s my husband and I did not mean it.  Whilst we were arguing, I tried to defend myself but I – I say sorry to my complainant and I say sorry to all my husband’s relatives.  I say sorry to four of my kids with all my family or relatives with my community I live with.  The LLG, the district and the country as a whole, I say sorry.  With this, I ask for mercy because I am a mother of four kids and a first-time offender. Thank you, your Honour, wantaim respect.  
[emphasis added]

14.	The matter then proceeded to submissions on sentence by both parties.  In the course of the exchanges on sentence, the submissions of counsel for the appellant included: 

.... this case is a case of domestic violence where both the husband and the wife were fighting and in the course of the fight, the prisoner was intending to save herself from being kicked by the husband that the knife that she took in defence...

15.	During the sentence submissions, the sentencing judge observed that having looked at the record of interview it appeared that the appellant was saying “I was trying to defend myself”.  His Honour observed that there was no other evidence to contradict that, and that was the most favourable factor available to the appellant on sentence.  Furthermore, his Honour observed that he would give weight to what the prisoner said in the record of interview as she was the only remaining person who was in the house at the time, stating that “I am giving some weight to it and it would affect the sentence as well”.  

16.	It is necessary to set out the relevant aspects of the record of interview in full:

Q/A18	You drank and when did you finish?
While we were drinking, my husband got up and has a fight with me.  My brother-in-law was out in search of alcohol.  

Q/A19 	At what time your husband had a fight with you?
		Around 11.00pm he started belting me. 

[ ... ]

Q/A22	What is the problem you caused?
He belted from 11 o’clock to 12 o’clock; two of my tooth was shaky.  He continued belting me and got a 3 x 2 timber and tried to hit my head where I saw a kitchen knife, got it and stabbed him on his shoulder to disturb him.  I was with him for 15 years in this situation.  Whether he drinks or not, fighting is normal, when I’m pregnant or breast feeds, he never leaves me.  I usually leave in this fighting situation, however he is my husband so I normally forgives him. 

Q/A23	Did you stabbed him on the other parts of his body?
I stabbed him on his shoulder; he dropped the timber in our room.  When he dropped the timber, I tried to escape but he grabbed me from behind.  Alright, I swung my hands to the back to remove him, the small knife went through his abdomen.  I don’t mean it.  He is my husband, I tried to save myself.  
 	
		[ ... ] 

Q/A26	How many time you stabbed your husband with the knife?
I stabbed him on his shoulder and turned to come out he grabbed me and I swung my hands to the back and the knife caught him. 
 
	[ ... ] 

Q/A29	You heard the content of the interview and do you have any changes to make?
		Question 26, I was drunk so I would not sure how many times I stabbed him. 

[emphasis added]

17.	We observe that the depositions tendered on sentence included:

(a)	A statement from a witness who heard the appellant and deceased fighting.  He went and stopped them from fighting, pulling the victim to his room, before the witness returned to sleep.  He next heard the victim calling out for help and saw the appellant sitting on top of the victim, “stabbing him with the knife”.  The witness removed the knife, and the appellant ran from the house.  The victim got up and spoke to him, and they obtained medical assistance from the following morning.  

(b)	The medical records provide that the victim was admitted with complaints of “stab wounds to the posterior left shoulder and left lower abdominal quadrant region”.  He presented with minimal bleeding.  The certificate of death records that there was a penetrative intra-abdominal injury and the cause of death was septicaemia leading to multiple organ dysfunction and organ dysfunction.  

18.	With reference to this evidence, the medical report is not inconsistent with the appellant’s account as to the circumstances, and number and location, of stab wounds inflicted as outlined in the record of interview.  

19.	Following the sentence submissions, the sentencing judge proceeded to deliver 
ex tempore remarks on sentence.  It was observed that the offending occurred in a context of intoxication, that there was a plea of guilty, cooperation with police, and remorse.  His Honour stated that “I take into account your explanation in the record of interview where you said – where you explained how you stabbed the deceased”.  The sentence order was then imposed.  

Applicable law

20.	The relevant law that applies to the issue raised in this appeal was considered in Junior v The State [2017] PGSC 32, SC1629 per Cannings J, Kariko J and Shepherd J.  The Supreme Court considered the duties of a sentencing judge.  It was held, to recite the principle succinctly, that:

As part of the trial judge’s duty to ensure that an accused person 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 to formal passing of sentence. 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. The discretion would generally only need to be exercised when the potential defence appears to have a reasonable prospect of success.

21.	The Supreme Court, based on long-standing authority omitted for current purposes, summarised (at [15]) some of the primary duties of a judge dealing with a criminal proceeding and stated that:

•	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).
[emphasis added]

Consideration

22.	The fundamental issue raised on this appeal is whether the conviction was unsafe and/ or whether the sentencing judge erred in law in not giving effect to the defence raised in the allocutus and the depositions in circumstances where it was not raised by the parties.  

23.	In this case, we are of the view that a defence was apparent throughout the sentence proceeding.  It was:

-	premised by the brief facts that the appellant and deceased were fighting immediately before the alleged offence;
-	raised by what was said by appellant in allocutus and in the record of interview;
-	submitted as an issue by the defence counsel;
-	acknowledged by the sentencing judge that a defence was alluded to; and 
-	not a speculative issue that was inconsistent with the other evidence contained in the depositions.  

24.	In contrast to the circumstances in Junior v The State – and, additionally, Laiam v The State [2018] PGSC, SC1656 – the defence raised had reasonable prospects of success and was readily apparent.  

25.	We are satisfied that an error of law occurred in that a defence was plainly raised at arraignment, being on the allocutus and in the depositions, and that accordingly the conviction entered was unsafe.    

26.	As observed similarly in John v The State [2025] PGSC 119, SC2819 per Geita J, Polume-Kiele J and Dowa J: 

... [i]n all criminal proceedings, a judge must demonstrate sensitivity to accused persons utterances from the time of arraignment until the time of sentence.  There is good reason for this as the constitutional dictate of a person’s full protection and right to a fair trial pursuant to s 37 of the Constitution remains visible and paramount at all stages of the criminal justice process.  We are satisfied that a miscarriage of justice has occurred.  

27.	Nonetheless, we observe that it was open to the appellant to have accepted guilt despite the contended extenuating circumstances.  If though this was the position, then it was necessary for this to have been ventilated at the sentence hearing.  Our finding should not be regarded as a criticism of the sentencing judge. It is readily apparent that the sentencing judge was not appropriately assisted by counsel, as to the issue arising and as to the applicable law.  Lawyers appearing in sentence hearings would benefit from recalling, and ensuring practice with, Yani v The State [1999] PGSC 20, SC615.  The Supreme Court observed there:

... if an accused person makes a statement subsequent to his plea of guilty which may throw some doubt as to the correctness of his plea, a trial judge should clarify the matter with counsel for the accused person and satisfy himself of the matter before proceeding to confirm a plea of guilty.

28.	Similiar beneficial explanations as to the role of counsel, and the judge, in a sentencing proceeding raises issues of this type are explained in Kairi v The State [2006] PGSC 8, SC831.  

29.	The sentence proceeding this matter would have benefitted from assistance by counsel to the Court in order to avoid the error in law, unsafeness in conviction, and miscarriage of justice.  

Ground (a)(ii) – time of death 

30.	While unnecessary to decide given the conclusion we have reached, it is appropriate to make an observation as to ground (a)(ii) of the appellant.  That is, that there was an incorrect statement regarding time of death. 

31.	To the extent this ground was directed towards the conviction, we observe that s 297 of the Criminal Code provides as follows: 

297. LIMITATION AS TO TIME OF DEATH

(1)   A person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death.
 (2)  Subject to Subsections (3) and (4), the period referred to in Subsection (1) shall be calculated inclusive of the day on which the last unlawful act contributing to the cause of death was done.
 (3)  If the cause of death is an omission to perform a duty, the period referred to in Subsection (1) shall be calculated inclusive of the date on which the omission ceased.
 (4)  If the cause of death is -
(a)   in part an unlawful act; and
(b)   in part an omission to perform a duty,
the period referred to in Subsection (1) shall be calculated inclusive of the day on which –
(c)   the last unlawful act was done; or
(d)   the omission ceased,
	whichever last occurred.

32.	That the deceased passed away on 30 December 2023, that is eight days after the alleged conduct, does not detract from criminal liability in the event that causation (noting the opinion in the medical report) and the other elements of the alleged offence are established.  Had this been the sole ground relating to conviction, it would not have succeeded. 

Conclusion

33.	The conviction having been found to have been entered in circumstances of an error of law and unsafeness, amounting to a miscarriage of justice, it is to be quashed.   It is therefore unnecessary to consider the appeal against sentence.  The sentence will be set aside.  

34.	As to the orders to be made, as observed above, the appellant sought that the conviction be quashed and the appellant acquitted.  It is not appropriate that an acquittal be entered as the purported defence raised by the appellant needs to be determined on established facts.  Accordingly, the matter will be remitted for trial.  

Orders

35.	For those reasons, the following orders are made:

(1)	The appeal against conviction is upheld. 

(2)	The decision of the National Court dated 10 September 2024 convicting the appellant of murder and sentencing the appellant to 13 years imprisonment is quashed and set aside.  

(3)	The proceeding is remitted to the National Court for hearing before a different judge. 
________________________________________________________________
Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor