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Aihi v The State (No 2) [1982] PNGLR 44 (26 February 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 44 - Avia Aihi v The State (No 2) 

[1982] PNGLR 44

SC218

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AVIA AIHI

V

THE STATE

(NO. 2)

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

5 April 1981

2 October 1981

26 February 1982

APPEAL - Inherent jurisdiction to review - Leave to appeal against sentence out of time - Principles applicable - Constitution s. 155(2)(b).

CRIMINAL LAW - Sentencing - Wilful murder - Principles applicable.

COURTS AND JUDGES - Supreme Court - Precedent - Dissenting judgment on preliminary issue - Whether dissenting judge bound by majority view in further proceedings.

On an application for leave to appeal against sentence pursuant to s. 155(2)(b) of the Constitution, where the sentence was life imprisonment for wilful murder, where the 40 day time in which to appeal limited by the Supreme Court Act 1975 had expired and where the time since the sentence was imposed exceeded 14 months:

Held

(1)      (Per Kidu C.J. and Andrew J., Greville Smith J. dissenting, Kearney Dep. C.J. not deciding.) An applicant who seeks to invoke the inherent jurisdiction of the Supreme Court to review all judicial acts of the National Court under s. 155(2)(b) of the Constitution must show convincing reasons before the Court will exercise that jurisdiction.

(2)      Where the application is for leave to appeal against sentence not only should there be a satisfactory explanation for the delay but the applicant must show that legal grounds exist which would merit an appeal which grounds will generally involve questions of excessiveness.

R. v. Tyrrell [1974] A.C.L. 74.164.

(3)      (Per Kidu C.J. and Andrew J.) In sentencing for wilful murder the principles enunciated in Goli Golu v. The State [1979] P.N.G.L.R. 653 should be applied.

(4)      (Per Kapi J.) A member of the Full Court who dissents on a preliminary question of legal principle may, in further proceedings where that legal principle is relevant, follow either his own dissenting view or the majority view.

R. v. Shannon (1979) 21 S.A.S.R. 442 at p. 461 adopted and applied.

Cases Cited

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

Naden v. King [1926] A.C. 482.

R. v. Bertrand [1826] EngR 836; (1867) 16 E.R. 391.

R. v. Liosatos [1964] S.A.S.R. 40.

R. v. O’Keefe [1979] VicRp 1; [1979] V.R. 1.

R. v. Ramsden [1972] Crim. L.R. 547.

R. v. Shannon (1979) 21 S.A.S.R. 442.

R. v. Tyrrell [1974] A.C.L. 74.164.

Rooney (No. 2) Re; The Public Prosecutor v. Nahau Rooney [1979] P.N.G.L.R. 448.

Secretary for Law, The v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246.

Varney v. The Queen [1964] VicRp 21; [1964] V.R. 143.

Application

This was an application following the decision in Avia Aihi v. The State [1981] P.N.G.L.R. 81 for leave to appeal against a sentence of life imprisonment for wilful murder pursuant to the inherent review jurisdiction under s. 155(2)(b) of the Constitution.

Counsel

K. Wilson and S. Cox, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

26 February 1982

KIDU CJ ANDREW J: The applicant applied for leave to appeal out of time. She did this under s. 155(2)(b) of the Constitution—ie. she prayed this Court to review the sentence of life imprisonment imposed on her in March, 1979 by the National Court. This Court, on 27th March, 1981, granted her leave to adduce evidence by affidavit in support of an application for leave to appeal, and to appeal. The application was made in April and in October last the court granted leave, for reasons to be later published. This we now do.

She had no right of appeal. This Court had already ruled so in Avia Aihi v. The State [1981] P.N.G.L.R. 81. In that case, however, the majority of the court ruled that the court had a discretionary power under s. 155(2)(b) to review judicial acts of the National Court, irrespective of s. 27 of the Supreme Court Act.

This was the first time the court had been asked, in effect, to allow an appeal to be instituted out of time under s. 155 (2)(b) of the Constitution.

It must be emphasized from the outset that the power vested in this Court by s. 155(2)(b) will not be exercised as a matter of course. The reason is quite obvious. Where statutory appeal provisions are not complied with there must be shown convincing reasons why this Court should exercise its constitutional power. For instance, in this case the applicant was convicted by the National Court in March 1979. Section 21(d) and s. 27 of the Supreme Court Act 1975 (“the Act”) provide:

21(d)  A person convicted by a judge of the National Court may appeal to the Supreme Court:

(d)      with the leave of the court, against the sentence passed on his conviction unless the sentence is one fixed by law.

27(1)  Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.

(2)      The time within which notice of appeal, or notice of an application for leave to appeal, may be given, may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.

The applicant failed to comply with the above provisions. She filed an application for leave to appeal fourteen months after her conviction. She, therefore, had no right to appeal. For her to be allowed to have her sentence (of life imprisonment) reviewed by this Court pursuant to s. 155(2)(b) she must explain satisfactorily why she did not comply with s. 27 of the Act and also show that her case merits a hearing by this Court. What the pre-Independence Full Court said in The Secretary for Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246, at p. 248 (Frost A.C.J, Clarkson J. and Williams J.) in an application to extend time of appeal under the then s. 34(2) of the then Supreme Court (Full Court) Act 1968 is, in our opinion, applicable:

“... After the conclusion of the argument we asked counsel to submit further submissions concerning the principles which should guide the Court in applications of this kind. From authorities cited before us we take the proper construction of s. 34(2) to be that an extension of time will not be granted as a matter of course, but that the Court will in every case require substantial reasons to be advanced before granting such a concession. R. v. Sunderland ((1927) [1927] NSWStRp 78; 28 S.R. (N.S.W.) 26, at p. 27). There are also two useful passages in the judgment of the Full Court in The Queen v. Brown ([1963] S.A.S.R. 190). In that case the Court had to consider the effect of a section similar to s. 34(2). The passages are as follows:

‘When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.’ (At p. 191.)

‘It seems to us that, if we have jurisdiction to sanction the institution of an appeal at this stage, then, in the exercise of our discretion, we ought not to do so unless we are satisfied that there is, at the least, grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case.’ (At p. 193.)

However, in every case it is a matter of discretion for the Court. R. v. Ramsden ([1972] Cr. L.R. 547). These principles, in our opinion, are applicable to the Papua New Guinea section.”

Section 32(2) of the then Supreme Court (Full Court) Ordinance 1968 provided as follows:

“The time within which notice of appeal, or notice of an application for leave to appeal, may be given, may be extended at any time by the Full Court or a Judge.”

What the pre-Independence Full Court said above is similar to what other courts outside Papua New Guinea have said in considering similar appeal provisions and we cite two of these opinions by way of analogy.

In Varney v. The Queen [1964] VicRp 21; [1964] V.R. 143 at p. 144, the Supreme Court of Victoria said as follows:

“It is apparent that an application of this nature will not be granted as of course. It must obviously lie with an applicant appealing to discretion to persuade the court that the circumstances are such that the discretion should be exercised in his favour. A number of cases were cited to me indicating the approach of the court. In R. v. Jeffries [1949] NZGazLawRp 79; [1949] N.Z.L.R. 595, the Court of Appeal said that ‘special and substantial reasons’ must be advanced. The report of R. v. Rhodes in (1910) 5 Cr. App. Rep. 35, speaks of ‘satisfactory reasons’, and the report of the same case in (1910), 74 J.P. 380, speaks of ‘substantial reasons’. In R. v. Sunderland [1927] NSWStRp 78; (1927), 28 S.R. (N.S.W.) 26, the Full Court of New South Wales said that ‘in view of the delay’, which was in that case of six months’ duration, ‘very exceptional circumstances would have to be established before the Court would be justified in granting an extension’. (Vide, also, R. v. Williams (1911), 6 Cr. App. Rep. 158)”.

In R. v. Tyrrell [1974] A.C.L. 74.164—noted Australian Current Law, February 1980, the New South Wales Court of Criminal Appeal said this, per Isaacs J. at pp. 8, 9:

“Whilst the court has an unfettered discretion to grant leave to extend time at any time in respect of sentence, cogent and convincing reasons and exceptional circumstances must be established where there has been long delay and in any event there must be some matter of legal merit relating to the sentence itself to invoke the court’s discretion. The principles have long been laid down, recognised and adopted not only in this State but in other States of the Commonwealth, in New Zealand and in England.

In R. v. Sunderland, [1927] NSWStRp 78; (1927) 28 S.R. (N.S.W.) 26 an application for extension of time within which to appeal against convictions and against the trial judge’s order after conviction releasing them on recognizance to come up for sentence when called upon so to do in lieu of passing sentence, instituted six months after conviction on the ground of want of means was refused by the court constituted by Street C.J., Gordon and Ferguson JJ. The Chief Justice in his judgment, with which the other two members concurred, said, inter alia:

‘A corresponding provision in the English Act has been under consideration of the Court of Criminal Appeal in England ... and it was laid down by Lord Alverstone C.J in Rhodes’ case (74 J.P. 380) also 5 C.A.R. 35 that an extension of time will not be granted as a matter of course but that the court will in every case require specific reasons to be advanced before granting such a concession. In Williams’ case[1992] CthArbRp 536; , 6 C.A.R. 158 the Lord Chief Justice, delivering the judgment of the court said, ... “such a long delay could be excused if at all only in very exceptional circumstances”.’

Continuing, Street C.J. said:

‘Nor has any satisfactory reason been put to us as to why they allowed so long a time to lapse before they made this application ... I have no doubt whatever that the case is one in which we should not allow an extension. The delay has been very long, so long that I think very exceptional circumstances would require to be established before this Court would be justified in exercising the discretionary power which it possesses.’

The application had been based on two grounds, namely (1) lack of means to prosecute an appeal and (2) the two appellants had been convicted with one Colless of conspiracy, Colless had successfully appealed and his conviction was quashed. In the course of his judgment given in May 1927 in that appeal James J. had expressed a doubt as to whether there was any evidence of conspiracy at all and went on to say that if that view be correct something ought to be done by the other prisoners. This view was not held by the other members of the Court. The appellants did nothing until August 1927 but relying on this expression of view by his Honour that there was no evidence of conspiracy in the evidence they then applied to the Court of Criminal Appeal for an extension of time for leave to appeal against the order. Street C.J., in dealing with the merits said (ibid 28/29):

‘Putting aside that ground, that is one of means, what is there left upon which to raise this application for a special concession? I can see nothing. No reason whatever has been put forward satisfactorily explaining why it was that these two applicants did not see fit to join in Colless’ appeal ... I cannot help but think that the application is really based not on any of the grounds suggested in the notice of the application but really upon something that was said in the course of the judgment in Colless’ case and in the forlorn hope that that might be able to be made use of as a ground for the extension of time that is asked for.’

I should add that it is well established that ‘merits’ does not mean that the defence is meritorious but means that legal grounds exist to which the subject appeal relates and generally speaking in relation to an appeal against sentence involves questions of excessiveness or inadequacy and the exercise of the discretion of this Court which is an unfettered judicial discretion to review a sentence. It has been decided that it is unnecessary for this Court to consider whether the trial Judge proceeded upon any wrong principle or ...” (Our emphasis).

There is great merit in what was said in these cases. The principles set out, in our opinion, should apply when an appellant applies under s. 155(2)(b) of the Constitution to this Court to review his or her sentence. The applicant, after her imprisonment and in company with two others, spoke twice to an Assistant Correctional Officer to get Mr. Bernard Sakora, of the Department of Justice who had represented Taita Itaro and Porewa Wani during the trial, to see them but with no success. Mr. Sakora in his affidavit says he was contacted by A.C.O. George Roiho on two occasions re appeals by five prisoners convicted for the wilful murder of Morris Modeda, but he has no knowledge of appeals re any particular prisoner out of the five. He advised Roiho that appeals depended on written judgment of the trial judge.

In August 1979 he was instructed by the then State Solicitor to appear as counsel in the appeal by the prisoner Porewa Wani. This appeal was dismissed in November 1979. Francis Iramu, a Senior Magistrate, visited Bomana (as a Visiting Justice) on 17th May, 1979. Whilst there he spoke to Avia Aihi and two others. The applicant told him that she was worried about her property at home and that she wanted to go home under police escort to collect her property (mainly cutlery, kitchen utensils and bedding material). She did not say anything to him re appeal against her sentence.

The State argued that the evidence before the court shows her consistent lack of interest to appeal. Counsel for the State submitted that the delay of fourteen months had not been explained.

Apart from seeing the A.C.O. Roiho about appealing the applicant also in company with Taita Itaro and Porewa Wani saw Father Murphy, then chaplain at Bomana. She says they were informed by him that there was little hope that they would be allowed to appeal because the crime had been committed in the presence of the then Chief Justice.

During September 1979 the applicant says she spoke to Mrs. Nahau Rooney who promised that she would ask a lawyer to see her but this did not eventuate. In March 1980 the applicant talked to Margaret Mulai about her appeal. It seems as a result of this Mr. Wilson visited the jail on 5th March, 1980. On 10th March, 1980, Ms Cox visited her and took instructions for an appeal.

We do not think that it can fairly be said that the applicant made no attempts to appeal.

If she sought help in the company of a group, that is not to say she did not. To her mind she had tried. If these persons or authorities to whom her request for help had been made had not received the request, that cannot be held against her. Although she did not seek help every day, every week or every month, she did make attempts. Mr. Sakora, when contacted on behalf of five prisoners (including the applicant), said he was awaiting the trial judge’s written judgment. Whenever this was received, he was instructed to appeal for one of the five—Porewa Wani. As far as we can gather, the applicant had asked for help and no reply was given to her or that she was told of the futility of an appeal (by Fr. Murphy). Here we have a village woman who had been sent to jail and who tried to get help in order to appeal against her sentence. She had tried and as far as we are concerned she did all she could and until March 1980, was unable to secure help. We would hold that the circumstances of the case explain to our satisfaction the reason why the appeal was filed fourteen months after she was imprisoned by the National Court. There is a requirement under s. 30 of the Supreme Court Act 1975 that:

“(1)    The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal, or notices of application for leave to appeal, under this Act in criminal proceedings to any person who asks for them and to officers of Courts, officers in charge of corrective institutions, rural lock-ups and police lock-ups and such other officers or persons as he thinks fit.

(2)      The officer in charge of a corrective institution or police lock-up shall cause the forms and instructions referred to in Subsection (1) to be placed at the disposal of prisoners desiring to appeal or to make any application under this Act, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar.”

Section 43 of the Rules of the Supreme Court 1977 provides:

“The Registrar, after consultation with the Chief Justice, shall prepare and issue forms and instructions in relation to criminal proceedings under the Act for use in accordance with Section 30 of the Act.”

These forms and instructions have now been provided as directed by s. 20 of the Act. It is, to our minds, quite clear that had this been done earlier the applicant would have filed her appeal in time. It is not her fault that the forms were not available to her when she required them.

Even though the applicant has satisfactorily explained the delay of fourteen months in filing an application, has she shown that there are legal merits in favour of her appeal against sentence?

The appeal is against sentence (life imprisonment for wilful murder). She contends that the sentence is manifestly excessive because the National Court applied incorrect principles of sentencing. She relies on what the Supreme Court said in Goli Golu v. The State [1979] P.N.G.L.R. 653 at p. 658. In that case Raine Dep. C.J. said:

“D. A. Thomas deals with sentences of life imprisonment in his well known and often cited Principles of Sentencing, (2nd ed., 1979), at pp. 300 to 307. At pp. 301 to 303 the learned author says:

‘The proper use of the sentence of life imprisonment has been considered in a large number of cases. Their general effect is that the sentence is reserved for persons who have committed offences of substantial gravity and who appear to be suffering from some disorder of personality or instability of character which makes them likely to commit grave offences in the future if left at large or released from a fixed term of imprisonment. The sentence is not normally used as a tariff sentence to deal with offenders of normal mentality who have committed offences of great gravity.

The Dangerousness of the Offender.

The Court has said that the sentence of life imprisonment should be used only where the mental condition of the offender is such that he will probably commit grave offences in the future. In Picker it was stated that “where the nature of the offence and the make-up of the offender are of such a nature that the public require protection for a considerable time unless there is a change in his condition ... it is right for the judge to impose a life sentence. That will enable some other authority to ascertain from time to time whether the condition has changed and it is safe for the offender to be released ... But where no such condition exists, it is quite clear ... that a judge should not pass the difficult matter of sentencing and the length of detention to others.” This principle has been applied many times.

The nature of the mental condition required to justify a sentence of life imprisonment eludes precise definition. In some cases the offender suffers from a mental disorder within the meaning of the Mental Health Act 1959 but cannot be dealt with by means of a hospital order for one or more of the reasons given earlier; in other cases the offender is subject to a condition which is clinically recognizable but is not within the statutory definition. Life sentences have been upheld on the basis of evidence that the offender is emotionally immature, subject to abnormal sexual drives or fantasies or impulsive and unstable. What is important is not whether the offender’s condition can be accurately described by a recognised psychiatric term, but whether it can be predicted with a sufficient degree of confidence that the offender will, unless restrained, commit further grave offences in the future, and that his propensity to do so will not decline within a foreseeable period. In Stanford a man with a long record of violence was sentenced to life imprisonment for causing grievous bodily harm to a sixteen-month-old girl. The evidence was that the appellant had a “defective personality” and had previously been classified as psychopathic, although no psychiatric treatment was possible. The present offence was thought to be related to a hostility towards small girls which resulted from an accident suffered by the appellant’s father shortly before his death; further acts of violence to children were “a clear possibility”. The sentence was upheld.’

(I have not reproduced the footnotes with their numerous references.)

I agree with what the learned author says and what he concludes from the cases he cites.

Mr. Kila submits that a fixed term sentence is appropriate, and I think I have dealt already with most of the matters he urged upon us. It will be apparent that I by no means agree with all that he has put. However, I have concluded that the learned trial judge has manifestly erred in imposing a sentence of life imprisonment. It is possible that the error stemmed from the fact that he directed his mind, so it seems to me, almost exclusively at the fact that the killing was in the precincts of the court house. If this is not correct, then, in any event, I am of opinion that there must have been error. See House v. The King ((1936) 55 C.L.R. 499, at p. 505.)”

In the same case Kearney J. (as he then was) said, inter alia, the following at p. 659 et seq:

“Wilful murder has always been regarded as one of the most intrinsically serious of all offences. That is why, in most jurisdictions, it carries a fixed penalty; sometimes death, frequently life imprisonment. Under our Code it does not carry a fixed penalty; there is a maximum penalty of life imprisonment. A sentence for a long fixed term of years, which is usually imposed for this crime, is taken to be a lesser penalty than the indeterminate sentence of life imprisonment, although, as my brother Raine has spelled out, a ‘life’ detainee may be discharged by commutation of his sentence by a reviewing committee, after he has served fifteen years. Or again, as pointed out in Peter Naibiri v. The State (Unreported judgment S.C. 137, 25th October, 1978) a ‘life’ detainee, as any other detainee, may be discharged through exercise of the power of mercy under s. 151 of the Constitution of the Independent State of Papua New Guinea, or released on licence under s. 627 of the Criminal Code.

It is a general principle of sentencing that the maximum penalty, the most severe sentence, should be reserved for the most serious instances of an offence, the worst possible cases normally encountered in practice; this is an application of an even more basic principle, that there must be proportion between offence and sentence.

In England, it appears from R. v. Hodgson ((1967) 52 Cr. App. R. 113) and the citation from Thomas in my brother Raine’s judgment, that this general principle of sentencing—the ‘worst case’ principle—no longer applies as a general guide to the imposition of a life sentence. That penalty is usually there applied as an indefinite preventive sentence imposed upon mentally disordered and dangerous persons found guilty of serious crime, not necessarily of a ‘worst case’ type. The protection of the public is seen as the primary consideration. Its use for that purpose is explicable against a background of a social system ensuring proper hospital treatment for such offenders under secure conditions, and regular executive monitoring of their progress; and against a legislative background (though now changed) where there was no power to impose indefinite custodial control on a mentally unstable offender, or to release on licence an offender serving a lengthy fixed term as opposed to life imprisonment. See R. v. Kocan ((1966) 84 W.N. (Pt. 1) (N.S.W.) 588, at p. 591), per Sugerman J.A.

There is no such social ‘back-up’ in this community; and accordingly, in my opinion, no warrant to depart, as in England, when considering whether a life sentence should be imposed, from the basic principle of proportion that a man be given the sentence appropriate to his offence, and no more.

That conclusion appears to accord with the view of the majority of the High Court in Veen v. The Queen ((1979) [1979] HCA 7; 53 A.L.J.R. 305), when considering whether the English approach to life sentences should apply in Australia; it was emphasised that the sentence should be strictly proportionate to the gravity of the offence. In that case a life sentence had been imposed, exclusively because of the trial judge’s assessment of the probable future violent behaviour of the applicant; a fixed term of years was substituted by the High Court, on the basis (amongst others) that the particular circumstances of the crime, grave as it was, did not put it in the most grave category.

This is of course is not to deny the importance of the protection of the community, in sentencing. It is one factor. It is not suggested that the appellant here is a mentally disordered and dangerous offender; so there was no scope in this case for the application of the English approach, and the learned trial judge did not purport to apply it.

In assessing the degree of seriousness of the particular case, the analysis cannot be precise. It is wrong to attempt fine distinctions; it is fruitless to attempt a definitive catalogue of aggravating and mitigating factors though the recent case of Peter Naibiri v. The State (Unreported judgment SC137, 25th October, 1978) marks something of a borderline. In R. v. Wheeldon (No. 2) ((1978) 33 F.L.R. 409, at p. 412) a murder case in the Australian Capital Territory where a similar maximum penalty obtains, Blackburn J. said, and I respectfully agree:

‘... there are two factors, both absent here, either of which might put a murder into the most serious class. One would be a past record of murders or other serious crimes of violence, and the other a purely monetary or material motive. There might be other such factors ...’

The learned trial judge, in his reasons for sentence cited by my brother Raine, sets out three instances of another such ‘factor’—attacks upon accused persons in circumstances which clearly brought those crimes into the most serious class. See also R. v. Iu Ketapi ([1971-72] P. & N.G.L.R. 44), as another example of this factor. However, the incidents to which his Honour referred differed significantly from the present case in that the person attacked was at the time in the custody of the police or the court.

Mr. Kila’s first submission, in essence, is that the learned trial judge erred in that the case lacked those circumstances of aggravation which alone warrant the imposition of the maximum sentence. In other words, the sentence was out of reasonable proportion to the circumstances of the crime, bearing in mind the proper weight to be placed upon the circumstances of aggravation mentioned by the trial judge, and the other circumstances of the case. I would uphold that submission. I refer to the facts, as set out by my brother Raine. The trial judge clearly had to the fore of his mind the need to deter violent behaviour when parties are gathered together under the law so that the courts may administer justice by peaceful means. As my brother Raine says, it weighed very heavily on his Honour’s mind. It was a very proper consideration, and an aggravating factor when considering the punishment for this offence; but not a factor, in my opinion, to move into the most serious category of wilful murders a case which, in all its other aspects (as to which I adopt the analysis by my brother Raine) merited a long fixed term sentence.

I should add that I do not think a contention that a sentence is ‘in excess of the range of sentences normally imposed’ is, in itself, an arguable ground of appeal. Each case depends upon its own facts, and the tariff in practice, for crimes of wilful murder, certainly extends to life imprisonment.

I agree with my brother Raine that there is no force in the contention that the lower sentence later imposed upon a co-offender Raga Raga was such as to involve in this case a breach of the principle that sentences imposed on offenders for the same offence, should bear a proper relationship. The lower sentence on Raga Raga properly reflected a difference in his degree of culpability.

The appellant has established error in sentencing. The question then is, whether a different sentence should have been passed. The error involved too great a weight being placed upon what was clearly a circumstance of aggravation. The other circumstances of the case did not warrant the maximum penalty, which is reserved for the worst type of case, bearing in mind the nature of the crime and the circumstances of the criminal. The sentence should therefore have been less than one of life imprisonment. It was a bad case; I refer again to the facts set out by my brother Raine. It was clearly a case in which a long fixed term sentence should have been imposed. I consider the sentence which should have been imposed was an effective sentence of thirteen years’ imprisonment with hard labour. Accordingly, I concur in the order proposed by the Deputy Chief Justice.”

The third member of the court (Wilson J.) said at p. 663 et seq:

“I hesitate to disagree with the exercise by the learned trial judge of his discretion in the difficult task of sentencing. However, I am led to conclude that this sentence of life imprisonment, imposed predominantly on account of the need to recognise the notions of retribution and general deterrence, is therefore one which requires reconsideration. It does not conform to the principle in sentencing that the maximum penalty is reserved for the worst type of case; it overlooks the fact that the notions of retribution and general deterrence could just as effectively be recognised in a substantial fixed term sentence; and, there being few, if any, facilities in this country for the constant review and treatment of wilful murderers with a view to their release if and when they respond and there being no need to emphasise the need for public protection in a case such as this, this sentence sacrifices the important factor of proportionality, i.e. it offends against the fundamental principle that a man must be given the sentence appropriate to his crime and no more.

That this case (albeit a wilful murder case) is not the type of case in which the sentence of life imprisonment is appropriate may be seen from a reading of the respective judgments of Stephen, Mason and Jacobs JJ. in the recent but most important manslaughter case in Australia of Veen v. The Queen Mason J. said ((1979) [1979] HCA 7; 53 A.L.J.R. 305, at p. 309):

‘In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime.’

It is to be noted that in this case, unlike the situation in several of the cases to which Mr. Karczewski drew our attention, the appellant had had no prior convictions for crimes of violence, he was not a multiple killer, and, apart from the offence for which he was to be sentenced, he had exhibited no signs of a propensity to commit violent crime.

Mason J. alluded to the principle governing the imposition of the discretionary maximum penalty of life imprisonment when he said ((1979) [1979] HCA 7; 53 A.L.J.R. 305, at p. 309):

‘The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted ...’

I consider that imprisonment for life is a penalty appropriate to serious wilful murder when it is attended by the additional factors to which Mason J. referred, but not otherwise. Notwithstanding the absence in Papua New Guinea of statutory provisions corresponding to the Criminal Justice Act 1967 and the Mental Health Act 1959 in England and of the system for psychiatric treatment and assessment which obtains in that country, I share the opinion of Mason J. ((1979) [1979] HCA 7; 53 A.L.J.R. 305, at p. 310) that ‘... life imprisonment should be imposed when it is necessary to protect the community from an offender who has a disposition to commit violent crimes and that the conditions for the imposition of that sentence are as stated in R. v. Hodgson ((1967) 52 Cr. App. R. 113).’ In other instances a fixed term sentence is appropriate.

The relevant principle in R. v. Hodgson ((1967) 52 Cr. App. R. 113, at p. 114) is found in the judgment of the Court of Criminal Appeal (Lord Denning M.R., Widgery and MacKenna JJ.) where their Lordships stated:

‘When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes.’

Dr. D. A. Thomas in his book Principles of Sentencing, (2nd ed., 1979), at p. 301, said:

‘The proper use of the sentence of life imprisonment has been considered in a large number of cases. Their general effect is that the sentence is reserved for persons who have committed offences of substantial gravity and who appear to be suffering from some disorder of personality or instability of character which makes them likely to commit grave offences in the future if left at large or released from a fixed term of imprisonment. The sentence is not normally used as a tariff sentence to deal with offenders of normal mentality who have committed offences of great gravity.’

This crime, very grave as it was, was not in the category of the worst type of wilful murder case. A life sentence was in the circumstances manifestly excessive. The learned trial judge, in my judgment, fell into error in acting upon the wrong principles to which I have referred. A heavy fixed term sentence could just as effectively recognise the notions of retribution and general deterrence. Any punishment to be awarded should be strictly proportionate to the gravity of the offence. I agree therefore, that this appeal should be allowed and the sentence reduced from one of imprisonment for life to one of twelve years and six months, which represents an effective sentence of just over thirteen years.”

We have reproduced almost totally what the three judges said in Goli Golu because we are of the view that the principles that should guide the National Court when sentencing those convicted of wilful murder are contained in that case.

In the case of the applicant the learned trial judge said when sentencing her:

“You, Avia Aihi, pleaded guilty, the other four pleaded not guilty. The other four have had a fair trial, a trial which lasted nearly a month. A trial in accordance with the law and the Constitution. You had the assistance of counsel at Government expense. These counsel have pressed, quite rightly, all your constitutional rights. They have pulled out all the stops as the saying goes.

This man, Morris Modeda, was also entitled to a fair trial. At the time he was killed he was being tried by no less a person than the Chief Justice. In the court of a trial sketches maps and photographs are used to give the court an idea of the scene of the crime, as we have done in this case. But sometimes sketches, plans, photographs are not enough and then the court visits the scene. That is what the Chief Justice did. The Chief Justice had adjourned the proceedings to the scene of the accident on the Bereina-Waima Road.

Right in the middle of the view, in the presence of the Chief Justice, in spite of an escort of thirteen policemen guarding the prisoner and the court party, you snatched the prisoner from the hands of justice and executed him without a trial.

You have committed one of the most serious crimes known to the law, wilful murder, but this crime as I have pointed out was accompanied by the most aggravating circumstances.

The maximum penalty for the offence Morris Modeda committed was four years imprisonment, but you sentenced him to death. Now you are pleading for mercy and advancing all kinds of things in mitigation. You showed Morris Modeda no mercy or pity but armed with stones and sticks and knives and axes you hunted him like a wild animal. One unarmed man against about 100 people—one unarmed man who had no choice to come along because the court brought him there.

I have taken pains to mention all this so that you may appreciate the enormity of the offence you have committed.

You Avia Aihi, you said in the record of interview that you killed Morris Modeda, in ‘payback’ for your husband’s death. In both these records of interview you said that you sharpened this knife.

Now I am told by your counsel that you did not sharpen it. Whether you sharpened it or not you used it. It is a knife sharp as a razor, sharpened to a point like a dagger, you plunged this deep into his back and drew it down causing an enormous wound that pierced his lung and caused him to bleed to death. On your admission you stabbed him three times.

You stayed close to the court party, hidden from view, lying on the ground under a kapok tree, with the knife hidden on your person and you pressed your attack with such determination that you succeeded in what you wanted to do. You killed this man. You are sentenced to imprisonment for life.”

There was no mention of Goli Golu’s case. Matters which the court said should be borne in mind were not considered.

In our opinion the applicant has shown that she has an arguable case on the merits and her application should be allowed.

KEARNEY DCJ: The question before us is whether the applicant should be granted leave to appeal. This has been argued as an issue largely distinct from the merits of an appeal. The case has not simply been split into two parts, but three, as this hearing follows an earlier hearing and ruling directed solely to the preliminary question of whether this Court had jurisdiction to entertain the application; see the judgment of 27th March, 1981 in Avia Aihi v. The State [1981] P.N.G.L.R. 81. So we have had separate hearings on jurisdiction and the grant of leave; and there will be a further hearing on the merits of the appeal. In retrospect, I think it was unfortunate that the court permitted the presentation of argument in this trifoliate manner; no good purpose has been served; the ultimate resolution of the vital question has been unduly prolonged; and the court is now in the invidious position of tacitly ruling upon the probability of success of an appeal the merits of which, as presently constituted, it is yet to hear.

I am inclined to the view that no case for the grant of leave to appeal has been made out, particularly as, by reason of the splitting of the argument, we have not as yet heard full argument on the merits of the appeal. However, as the majority of the court consider that leave should be granted, and there will now be argument on the merits, I do not propose at this stage to give any further reasons for my opinion; they can be stated, if necessary, when the appeal has been fully argued.

I should add one comment. Although this hearing has been accepted as being directed solely to the question of whether leave to appeal should be granted, strictly a prior question requires to be answered. It is whether the court should exercise its jurisdiction under the Constitution, s. 155(2)(b), and hear the applicant on the question of leave. Only if that is answered in the affirmative, does the question of whether leave should be granted, arise. This comes about because this Court ruled in Avia Aihi v. The State (supra) that the Constitution, s. 155(2)(b), vests in this Court a review jurisdiction of an unfettered discretionary nature; the applicant having now no right to require the court to exercise any jurisdiction, no right to be heard on whether leave should be granted, must first persuade the court that the circumstances are such that her application for leave is one the court should, in its discretion, decide to hear. Some parallel may be drawn with the process in the United States by which the Supreme Court decides which cases it will take. I am satisfied by the materials adduced by the applicant and referred to by the Chief Justice and Andrew J. that the court should, as a matter of discretion, exercise its inherent power under the Constitution, s. 155(2)(b), and hear the application for leave. That is a prior and distinct question from the question whether leave should be granted.

GREVILLE SMITH J: In the earlier hearing directed solely to the preliminary question of whether this Court had jurisdiction to entertain the application for leave to appeal (see Avia Aihi v. The State (supra)) I expressed the view that it did not, and stated that I would dismiss the application. I remain, with respect, unpersuaded by the reasons of the majority, and I propose to abide by the views I earlier expressed (see Re Rooney (No. 2) [1979] P.N.G.L.R. 448, per Kearney J. at pp. 483-4 and R. v. Shannon (1979) 21 S.A.S.R. 442. I would dismiss the application for leave to appeal.

KAPI J: Before embarking on the considerations raised in this application, it may be helpful to state briefly the effect of the majority decision in relation to the first preliminary issue, namely whether the applicant has a right to apply for extension of time, or leave to appeal out of time? (See Avia Aihi v. The State [1981] P.N.G.L.R. 81.)

Section 37(15) of the Constitution gives every convicted person the right to appeal to a higher court. This provision can not be overridden by any law other than by an amendment of the Constitution. However, this right of appeal can be regulated according to law. The Constitution recognizes the power of the legislature to legislate on the right of appeal. As far as the right of appeal is concerned, the provisions of the Supreme Court Act 1975 are entirely consistent with this provision of the Constitution. There is indication from other provisions of the Constitution that it acknowledges the limitation of time in which to exercise the right of appeal. See s. 107(4)-(7) of the Constitution.

In accordance with s. 37(15) of the Constitution and s. 27 of the Supreme Court Act 1975, the applicant had no right of appeal and no right to extension of time. She had no standing either by statute, Constitution or common law to make any application to the court.

Thus the Constitution itself by its own provision declared the right of appeal (s. 37(15)) and allowed only law to regulate the right.

However, the Supreme Court has now by a majority held that under s. 155(2)(b) of the Constitution this Court has power to grant to the applicant the right to make application to extend time or to apply for leave to appeal out of time contrary to the provisions of s. 37(15) of the Constitution and s. 27 of the Supreme Court Act. In the exercise of this power the court has given the right to this applicant to make this present application.

This opens the way for all convicted persons to claim the same right and make application for leave outside the forty days period.

This is an important decision because the grant of power under s. 155(2)(b) now appears to be superior to the law-making power of the Parliament as far as appeals are concerned and the Supreme Court may override other provisions of the Supreme Court Act; e.g. only the Public Prosecutor (s. 23) and convicted persons (s. 21) have a right of appeal under the Act. Can the Supreme Court give a right of appeal to other persons under a wider concept of aggrieved persons? Can the Supreme Court give a right of appeal on questions of fact alone where the Act requires leave first (ss. 14(1)(c), 21(c)). See also appeal against sentence (s. 21(d)). Can the Supreme Court give a right of appeal where leave is required to appeal against an order for extension of time (s. 14(3)(a)) and interlocutory judgment (s. 14(3)(b)). I dissented on the preliminary issue.

In the course of considering the merits of this application, a question arose on whether I should adopt the majority view on the preliminary question or be bound by my own dissenting view in determining the merits of the application. The point was not raised and no submissions were made.

On this point, I am indebted to the Deputy Chief Justice for drawing two authorities to my attention. The first is a view expressed by Kearney J. (as he then was) in Re Rooney (No. 2) [1979] P.N.G.L.R. 448 at pp. 483-484. He expressed himself in the following terms:

“It is clearly necessary for the Public Prosecutor to establish beyond reasonable doubt that the proceedings were pending at the time of publication. This question was fully argued at the time of a ‘no-case’ submission, when the court ruled by majority, that for the purposes of dealing with that submission, the proceedings were pending. I had the misfortune to dissent upon the point. The question goes of course to guilt or innocence, and therefore necessarily arises again at the close of the case. On the ultimate issue, there can be no question of my being bound by a ruling of law upon a preliminary issue.”

In R. v. Shannon (1979) 21 S.A.S.R. 442 at pp. 461-462 per Cox J.:

“Four of the five Judges who considered the general question of principle arising in this case held that a defendant’s sentence may properly be reduced for (as it seemed to me) no other reason than that he pleaded guilty. I had the misfortune to dissent from that view, and that poses for me the question whether I should adopt the majority doctrine now for the purpose of disposing of the instant appeal. There does not appear to be any established rule as to the position of a member of a Full Court who finds himself in a minority on what is, as it were, a preliminary question of legal principle, and whose answer to that question would, if correct, make it unnecessary for him to consider the matters in issue further. Usually, I think, the minority Judge will apply his own view of the law to the facts, whether that turns out to be a minority view or not. However, in the circumstances of the present case, and having in mind that the decision on the general question has the authority of a Bench of five Judges, I think that I should approach the matter now on the footing that the learned sentencing Judge erred in principle when he sentenced the appellant on the assumption that the cases of Harris and Rowland were in this respect good law.”

With respect, I would adopt the general principle stated by Cox J. that a dissenting judge will apply his own view of the law to the facts and/or other questions of law. However, each judge should have the discretion on whether to follow his own dissenting view or the majority view. I do not think it is proper to determine a formula upon which the discretion may be exercised. The use of this discretion will depend on the facts of each particular case.

In the instant case, I will proceed to deal with the merits of the application on the basis of the majority view in the exercise of my discretion. At the outset of this case it was made clear that the matter would proceed in three stages. The first stage of the proceedings involved the preliminary point of law. This point has now been resolved in favour of the applicant by a majority. I feel bound by the majority view in considering the second stage of this case because of the way this matter has proceeded. Had the matter proceeded in a different manner (say all the matters were argued all at once) my approach may have been different.

I now consider the merits of the application.

The question now before this Court is whether in the exercise of its discretion this Court should extend time or grant leave to appeal out of time. Throughout my judgment I shall refer to this application as an application to extend time in which to file notice of application for leave to appeal against sentence. The application may also be referred to as an application for leave to appeal out of time. Whatever description is used to describe the application the substance is the same. However, for consistency, I shall refer to it as application for extension of time. In my view the issues now before this Court are no different from the issues that then arose under an application for extension of time under s. 34(2) of the former Supreme Court (Full Court) Act 1969. The effect of the majority decision of this Court on the first preliminary issue simply means that a convicted person has a right to make an application at any time outside the forty day period. I approach this application as an ordinary extension of time.

In my view it is misleading to approach this application on the same basis as an application for special leave to the Privy Council. The grounds upon which the Privy Council grants leave are different. The Privy Council will not grant special leave in criminal cases unless it appears that the trial has been conducted with such “disregard of forms of legal process or the principles of natural justice as to invoke substantial and grave injustice to the accused”: Naden v. King [1926] A.C. 482 at p. 495; R. v. Bertrand [1826] EngR 836; (1867) 16 E.R. 391 at p. 397. These grounds bear no relationship to the considerations upon which an application for extension of time is based.

Furthermore special leave to appeal to the Privy Council is requested when leave to appeal to the Privy Council is refused by a colonial court. We have not reached that stage yet.

If extension is granted in this case then the applicant will have to file application for leave to appeal against sentence. If leave to appeal against sentence is refused by this Court then the question will arise whether the applicant has any right to request special leave, analogous to the special leave to appeal to the Privy Council. I doubt that such special leave is possible under our system because there is no other higher court. The Supreme Court is the final court. Once it decides the matter it cannot be dealt with twice.

I now turn to the consideration upon which this Court has been asked to exercise its discretion. Both counsel agree that the principles upon which a court may exercise discretion to extend time are well settled. These principles can be found in the following cases:

1.       The Secretary for Law v. Tisunkac Nowak Domstock [1974] P.N.G.L.R. 246.

2.       R. v. Ramsden [1972] Crim. L.R. 547.

3.       R. v. Tyrrell [1974] A.C.L. 74.164, noted Australian Current Law, February, 1980.

4.       R. v. O’Keefe [1979] VicRp 1; [1979] V.R. 1.

5.       R. v. Liosatos [1964] S.A.S.R. 40.

6.       Varney v. The Queen [1964] VicRp 21; (1964) V.R. 143.

The following principles emerge from these cases:

1.       leave will not be granted as a matter of course.

2.       there must be substantial reasons given for the delay.

3.       there must be some legal merit on the grounds of appeal.

4.       whether leave is granted or not is in the discretion of the court.

In relation to these principles I need only comment further on the relevance of the consideration of the merits of the appeal. I agree that this is a relevant factor which must be given due consideration. I am convinced that this does not involve the full consideration of the merits of the appeal. To do this is to determine the appeal. The proper approach is to consider whether the grounds of appeal raise substantive arguments worthy of consideration on the appeal. In other words it must establish an arguable case. Whether or not the grounds will be successful is another matter. This will be determined at the hearing of the appeal. The Full Court of Victoria stated the same principle in a different way in R. v. O’Keefe (supra):

“This Court ought not, in our view, to be required before granting leave, to determine the issues in question or to decide whether the learned sentencing judge’s discretion miscarried. Of course if the Court is of the view that the decision is plainly right there is no point in granting leave to appeal.”

Counsel for the applicant puts the application on three grounds:

1. APPLICANT WAS NOT ADVISED OF HER CONSTITUTIONAL RIGHT TO APPEAL

I cannot regard this reason as a good ground for extension of time as the applicant was advised of her right and the time in which to appeal. The applicant was advised by a social worker during the first week of sentence. She was not ignorant of her rights.

2. ATTEMPTS TO GET ASSISTANCE FOR APPEAL FRUSTRATED

The social worker who advised the applicant of her rights told her to request permission to see a lawyer. In my view it is significant to know what she did when she found out that she had only 40 days in which to appeal. This is indicative of whether she wanted to appeal against sentence.

It is difficult to establish from the evidence what she did within the 40 days. Paragraphs 6 and 7 of her affidavit do not assist very much. The State, however, conceded that the applicant spoke to two correctional officers about seeing a lawyer. I cannot be satisfied from the evidence that this was done within the 40 day limit. Her application would be stronger if she had made the request within the 40 days. The longer the period of delay after the 40 day period, the less chance she has of a successful application. She must give substantial reasons for the delay.

She next spoke to Father Murphy, the prison chaplain. She was advised that she did not have a good chance of success. This would have been very close to the end of the 40 day period. I am not impressed that she waited for someone to come and see her when she knew that the 40 day period had almost run out and that she had been advised that the chances of an appeal were not good. She took no further action to follow up the request. She allowed the 40 days to expire. I would have expected her to do everything to follow up the request. She made no more complaint about the sentence or further request to see a lawyer until September 1979 when she spoke to Mrs. Nahau Rooney who promised her help. It seems to me that this came by chance more than anything else. She made no more attempts until March 1980 when she spoke to a correctional officer, Margaret Mulai who asked her for reasons for sentence. It was only in the course of explaining the reasons for sentence that she brought up the request for a lawyer.

It is also apparent from an affidavit of Francis Iramu, a senior magistrate, who during a J.P. visit interviewed the applicant and said that she made no complaint about the sentence, or any request to see a lawyer. This is significant because Mr. Iramu comes from the same area and the interview was conducted in the language spoken by the applicant. The visit was made in May 1979. If any attempts, prior to Mr. Iramu’s visit, were frustrated, she had the opportunity to make complaints about it and make the request again. There is no indication of any complaint to Mr. Iramu or to anyone else about the failure of the authorities to fulfil her request to see a lawyer.

The total period of delay is about fourteen months to the time of the original application in May 1980.

Between the period 16th March 1979, to May 1979, I am satisfied she made some attempt to get a lawyer. However I am not satisfied that all these attempts could be said to have been made within 40 days, with the exception of the interview with Father Murphy. I emphasise that 40 day period because the applicant was advised of the right to appeal within 40 days in no uncertain terms by the social worker. However she could have still made the request for a lawyer in May 1979 when Mr. Iramu interviewed her. She made no mention of a lawyer or complaint about previous requests. After May 1979 the behaviour of the applicant is not satisfactory. I do not think it is reasonable to accept that she waited for someone to visit her after the visit to Fr. Murphy. She was advised that she did not have a good chance and that the 40 days was quickly running out then. I am not satisfied that she did everything she could during the fourteen months to see a lawyer. Had she been more determined she would have had access to a lawyer. In holding this against the applicant I am aware that one of the co-accused, Porewa Wani, did have access to a lawyer and her appeal was lodged in time and determined by this Court.

Having regard to the evidence, I would not exercise my discretion in her favour as far as the long delay is concerned.

However I must exercise my discretion in her favour for another reason. Under s. 30(1) of the Supreme Court Act the Registrar is required to furnish necessary forms in relation to a notice of appeal and application for leave with instructions to corrective institution officers for any convicted person who wants to appeal. Up to the time of hearing of this application, the Registrar has failed to provide these forms and the instructions. The failure by the Registrar is fatal. These forms are most significant in the context of this country. Not all convicted persons can have access to a lawyer. Many centres do not have legal aid services or private practitioners. These forms become important when the prisoners cannot have access to a lawyer. They can fill in the form and send it to the Registrar. This is important as far as the time limit is concerned. Had these forms been available at Bomana Corrective Institution, the applicant would simply have filled in the form and sent it to the Registrar within the time. I would exercise my discretion in her favour.

All that remains to be considered is the merits of the appeal. The main thrust of the grounds can be summarized as follows:

The trial judge gave too much weight to notions of deterrence and gave very little weight to mitigation factors. Thus the life sentence is out of proportion to the circumstances of the case. These arguments are based on the recent Supreme Court case of Goli Golu v. The State [1979] P.N.G.L.R. 653.

It is submitted that the principles enunciated in that case are applicable. The appeal raised important questions of when a life sentence is the appropriate penalty. The facts in Goli Golu are not similar and they differ in important respects. However, the submissions on the principles of sentence are yet to be clearly spelt out by the Supreme Court. I am not convinced that the grounds of appeal do not raise an arguable case. Whether or not the grounds of appeal will succeed is another matter.

I would grant leave to appeal out of time.

(1)      That the inherent jurisdiction under Constitution s. 155(2)(b) be exercised, and the application thereunder for leave to appeal, be heard;

(2)      Leave to appeal against the sentence of life imprisonment imposed on 16th March, 1979, granted.

Solicitor for appellant: A. Amet, Public Solicitor.

Solicitor for respondent: L. Gavara-Nanu, Public Prosecutor.