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Gende v The State [1999] PGSC 25; SC626 (26 August 1999)

Unreported Supreme Court Decisions

SC626

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 10 OF 1998
BETWEEN: MICHAEL GENDE
APPELLANT
AND: THE STATE
RESPONDENT

Mount Hagen

Hinchliffe Jalina Sevua JJ
25-26 August 1999

CRIMINAL LAW - Appeal - Appeal Against Sentence - Failure to administer Allocutus - Sentence Pronounced a nullity.

Cases Cited

Moses Akiaba and Ors -v- Tami [1971-71] PNGLR 155

Counsel

Appellant in Person

R. Auka for Respondent

26 August 1999

HINCHLIFFE JALINA SEVUA JJ: The Appellant was convicted and sentenced by the National Court in Goroka on 10 December 1997 to 25 years imprisonment in hard labour for the brutal murder of his wife by stabbing her 14 times all over her body. She died instantly at the scene of the crime.

The Appellant has appealed against both his conviction and sentence. In summary his grounds of appeal are as follows:

1. That the interpretation and conviction was wrong.

2. That the State witnesses were false.

3. That his disability and medical reports were never presented to the National Court.

4. That he was not accorded the opportunity thereby to present any defences including his family history.

5. That the sentence was excessive.

From our analysis of his grounds it appears that grounds 1 and 2 to relate to conviction and grounds 3, 4 and 5 relate to sentence and we propose to deal with them accordingly.

APPEAL AGAINST CONVICTION

In relation to the first ground the Appellant submits that the Public Solicitor never put Variations in the witnesses Statements to the police and their evidence in court to the witnesses during cross-examination. With respect, we are not inclined to accept this submission. It is well settled that if the Court’s attention is not drawn to any matter such as variation in witnesses evidence during trial and their earlier statements, then the Court cannot be blamed for failing to take these variations into account when considering the evidence. We accordingly dismiss this ground of appeal.

With regard to witnesses relied upon by the Respondent being false witnesses, the Appellant submits firstly that the State witnesses discussed and fabricated their evidence and secondly that no one saw him stab the deceased.

We have considered his submissions and we reject it as it has not been demonstrated to the trial Judge nor to us that the evidence was fabricated. It is clear to us that there is very strong circumstantial evidence that the appellant killed the deceased. It is clear to us from the evidence of Ruth Robert that she saw the Appellant standing next to the deceased’s body lying in the grass that night when she came out of the house with a lamp. He was wearing the same black jacket and black trousers which she saw him wearing earlier in the day. This was after she heard the deceased call out from outside “Michael leave it, lusim” (See AB p. 49) and again called out - “knife ia knife ia” (see AB p. 50). There is also the unshaken evidence of Kono Siwi of being among appellant’s own people in his village at Kerowagi and the Appellant himself telling his people that he did stab the deceased with a knife but he was not sure if she was dead (See AB pp. 66-68). The evidence from Ruth Robert that she saw the Appellant running away after she saw him next to the deceased’s body is consistent with his uncertainty as to whether the deceased had died after he stabbed her.

In his own evidence (see AB p 92-93) he sought to shift the blame to the “other husband” of the deceased. He said that when the other man threatened to attack him and the deceased, he became scared and ran away. If that was the case, then why did he not run to Ruth Robert and others in the house and raise the alarm? We consider that this ground of appeal against conviction has no merit and we also dismiss it.

APPEAL AGAINST SENTENCE

In his appeal against sentence the appellant submits firstly that his disabilities were never presented to the Court. Secondly he submits that he was not given an opportunity to present his family history to the court.

It seems to us that his second submission relates to the failure by the trial judge to administer the allocutus. It is settled law that failure to administer the allocutus nullifies the sentence. (See Moses Akiaba & Ors -v- Tami [1971-72] PNGLR 155.)

We have perused the transcript of proceedings and we note on p.111 of Appeal Book that the trial judge adjourned the case for judgment but there is nothing after that in terms of administration of the allocutus. Defence Counsels’ submission in mitigating sentence is also not available among the transcript. We accordingly find that the trial judge has erred by his failure to administer the allocutus. We accordingly allow the appeal against sentence quash the sentence imposed by the trial judge and remit the case to the trial judge to complete the trial.

We however confirm the conviction.

We remand the appellant in custody pending completion of his trial on sentence.

Lawyer for the Appellant: Nil

Lawyer for the Respondent: Public Prosecutor