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Secretary for Law v Domstock [1974] PGSC 31; [1974] PNGLR 246 (28 March 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 246 - The Secretary for Law v Tisunkac Nawok Domstock

[1974] PNGLR 246

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SECRETARY FOR LAW

V

TISUNKAC NAWOK DOMSTOCK

Port Moresby

Frost ACJ Clarkson Williams JJ

27-28 March 1974

CRIMINAL LAW AND PROCEDURE - Appeal against conviction - Procedure - Extension of time to appeal - Principles to be applied - Supreme Court (Full Court) Act, 1968, s. 34 (2)[cccvii]1.

Under s. 34 (2) of the Supreme Court (Full Court) Act 1968, an extension of time within which notice of appeal, or notice of an application for leave to appeal may be given, will not be granted as a matter of course; in every case it is a matter for discretion for the Court whether the application be granted and the Court will require substantial reasons to be advanced before granting the extension.

R. v. Sunderland [1927] NSWStRp 78; (1927), 28 S.R. (N.S.W.) 26, at p. 27 applied. The Queen v. Brown, [1963] S.A.S.R. 190, and R. v. Ramsden, [1972] Cr. L.R. 547, referred to.

In circumstances where D had pleaded guilty to wilful murder and had been convicted, he sought an extension of the time within which notice of appeal against conviction might be given, the ground relied upon being that there was material in a psychologist�s report which had been before the trial judge which, so it was argued on D�s behalf, showed a suspicion that there was no intention to kill, and, more particularly, that there was a defence on the ground of provocation.

Held

The application should be refused.

Application

The respondent applied for an extension of the time within which notice of appeal against his conviction might be given pursuant to s. 34 (2) of the Supreme Court (Full Court) Act 1968.

Counsel

M. F. Adams, for the applicant.

L. W. Roberts-Smith, for the Secretary for Law.

Cur. adv. vult.

28 March 1974

FROST ACJ CLARKSON WILLIAMS JJ: This is an application brought by the respondent for an extension of the time within which notice of appeal against conviction may be given pursuant to the Supreme Court (Full Court) Act 1968, s. 34 (2). The respondent was convicted of wilful murder at the Supreme Court sittings at Rabaul in 1973. Throughout the hearing he was represented by counsel. Upon arraignment he pleaded guilty. His counsel made no application that a plea of not guilty be entered under s. 601 (a) of the Criminal Code. The depositions were tendered and read by the learned trial judge who then accepted the plea of guilty and convicted the respondent. The trial judge then required evidence as to extenuating circumstances, and it was arranged by the respondent�s counsel that the respondent should be examined by the Regional Psychologist, L. P. Lumsden. His report was part of the material upon which the trial judge then proceeded to find that there were extenuating circumstances and thus to impose a term of imprisonment of six years.

By notice of appeal dated 20th December, 1973 the Crown appealed against the sentence on the ground that it was inadequate and insufficient. At the hearing of the appeal, on 27th March, 1974, the respondent, pursuant to a notice of motion dated 25th March, by leave of this Court, put forward the present application prior to the consideration of the notice of appeal.

The grounds of the present application are that the trial judge should have entered a plea of not guilty on the ground that there was material in the depositions and in the psychologist�s report which suggested that the respondent had a defence to the charge. Mr. Adams, on the respondent�s behalf, submitted that this material showed that there was a suspicion, as he put it, that there was no intention to kill, and, more particularly, that there was a defence on the ground of provocation. It was thus contended that the trial was a nullity.

The case against the respondent was that he had lured the deceased, who owed him some money, into the bush where he killed the deceased with an axe. The Crown case depended largely on admissions made to the police and contained in a statement to the lower court. 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 [cccviii]². There are also two useful passages in the judgment of the Full Court in The Queen v. Brown [cccix]³. 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[cccx]⁴. These principles, in our opinion, are applicable to the Papua New Guinea section.

We turn now to the circumstances of the present application in the light of the tests so propounded. For reasons which were referred to in argument, we do not consider that there is any basis, to use the words of the respondent�s counsel, for any suspicion that the intention to kill did not exist. The main argument was based on the passage in the psychologist�s report as follows, �A violent argument preceded the attack with the axe�, supported by the respondent�s remarks upon the allocutus. We have given this argument anxious consideration but we do not consider, in all the circumstances, that this short, self-serving statement, referring merely to a violent argument, when considered in the light of the respondent�s more detailed account to the police and the lower court, was such as to raise in the mind of the trial judge such uneasiness of mind as to require him to change the plea of guilty he had entered. Accordingly, we take the view that the respondent has not brought himself within the principles to which we have referred.

Application refused.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

Solicitor for the respondent: G. R. Keenan, Acting Public Solicitor.