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Kitur v State [2020] PGSC 162; SC2254 (1 August 2020)

SC2254

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV. NO. 105 OF 2017

BETWEEN
ALOIS KITUR
Applicant

AND
THE STATE
Respondent

Kokopo: Gavara-Nanu J, Mogish & Yagi, JJ.
2020: 27^th July & 1^st August

REVIEW – Application for review – Constitution; s. 155 (2) (b) - Leave - Charge – Wilful murder – Guilty – Finding of guilt contrary to findings of fact - Sentence – Life imprisonment – Intention to kill – Essential elements – No findings regarding intention to kill – No clear and proper reasons given for finding of guilt – Identifiable errors - Injustice manifest in the decisions on verdict and sentence - Leave and review granted – Conviction and sentence for wilful murder set aside – Conviction for manslaughter and sentence of 18 years substituted.

Cases Cited:
Papua New Guinean Cases

David v. The State [2006] PGSC 22
Paul Dopsie v.Jerry Tetaga (2009) N3722
Paul Saboko v. Commissioner of Police (2006) N2925
Manu Kovi v. The State (2005) SC789

Overseas Cases

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1KB 233.

Counsel:

L. Mamu, for the Applicant
C. Sambua, for the Respondent

1^st August, 2020

1. BY THE COURT: The applicant makes this application pursuant to s. 155 (2) (b) of the Constitution seeking leave to apply for review of his conviction and sentence. The applicant was convicted of wilful murder by the National Court and sentenced to life imprisonment on 26 February, 2014.

2. The applicant was charged on an indictment that he on 19 February, 2008, at Nenmutkar/Kadaulung village, East New Britain Province wilfully murdered one William Raphael, contrary to s. 299 (1) of the Criminal Code, Act, Chapter No. 262. He is alleged to have committed the offence during an armed robbery and was in company of others.

3. The brief undisputed background facts are that in the afternoon of 18 February, 2008 between 4pm and 5pm, the deceased and some other people were robbed by the applicant and his accomplices as they were walking home after getting off a PMV. The applicant and his accomplices were armed with bush knives, sticks and home-made guns. During the robbery the applicant shot the deceased at point-blank range, killing him instantly.

4. Deputy Public Prosecutor, Mr Sambua, counsel for the State submitted that by shooting the deceased at point-blank range, the applicant intended to kill the deceased. It was submitted that there cannot be any doubt that there was intention to kill and urged the Court to refuse leave.

5. The Public Solicitor, Mr Mamu, counsel for the applicant on the other hand submitted that the learned trial judge did not make a clear and specific finding that the applicant intended to kill the deceased, thus there was no basis for the Court to find the applicant guilty of wilful murder. He argued that the finding of the court was against the evidence and the weight of the evidence. He argued that this amounted to an error of law, and the interest of justice demands that applicant be granted leave to review his conviction and sentence. It was submitted that applicant will be denied justice if he is refused leave.

6. Notably, Mr Sambua conceded that the observations made by the learned trial judge in his decisions on verdict and sentence clearly beg the question of how the learned trial judge could be satisfied beyond reasonable doubt that the applicant intended to kill the deceased and decide the sentence imposed. In the observations the learned trial judge clearly appears to have accepted the applicant’s story that he shot the deceased because he feared that his own life was in imminent danger when the deceased suddenly approached him from the back to attack him with a bush knife. He did not mean to kill the deceased. His Honour said:

“All this was happening in split seconds (sic.) because of the armed holdup by the defendants (sic.) and their accomplices and when the defendant (sic.) turned around due to his normal (sic.) instinct – instant reaction coming from his back deadly bush knife was aimed at him to fall on him. The defendant (sic.) reacted instantaneously and fired the deadly shot against the deceased to his head at point blank.

...In the absence of independent evidence to the contrary, the explanation offered by the prisoner, Alois Kitur stands alone to be the only reasonable explanation to the event that resulted in the death of the deceased.

...He admitted on how he pulled the deadly trigger on the deceased when he was faced with the extreme life or death situation as he claimed to be. There is no other independent evidence to counter or negate the prisoner Alois Kitur’s account on how he executed the deadly trigger on the deceased”. (Our underlining)

7. His Honour then said:

“However, in this present case, I consider it appropriate to impose life sentence on the prisoner, Alois Kitur. This is because it was not his intention of (sic) killing the deceased but the outcome he did not want to – he did not intend nor did he want it to happen but he executed it out of sheer desperation to save himself, in the circumstances, he had created, in the way that lands him in the serious consequence of where he is today, being charged of (sic.) wilful murder...” (Our underlining)

8. Despite these remarks, his Honour went on to find the applicant guilty of wilful murder. This was contrary to his Honour’s clear findings of fact. It follows that his Honour’s decision on verdict was against the evidence and weight of the evidence. The decision on verdict also led to the erroneous exercise of sentencing discretion by his Honour when he sentenced the applicant to life imprisonment.

9. Consequently, there are grounds for leave to be granted and we grant leave. We also grant the application to review conviction and sentence. The decision to find the applicant guilty of wilful murder was in the circumstances not one which any reasonable tribunal could make. See, Associated Provincial Picture Homes Ltd v. Wednesbury Corporation (1948) 1KB 233. See also Saboko v. Commissioner of Police (2006) N29775 and Dopsie v. Tetaga (2009) N3722. The pertinent question is-is the decision to find the applicant guilty of wilful murder so unreasonable, or absurd having regard to the findings of fact by the learned trial judge, that no reasonable decision maker could have made the decision? The answer is plainly in the affirmative, the decision therefore amounts to an error of law. The principles expressed in Wednesbury are applicable in this case as review is sought of a judicial act.

10. Consequently, the conviction and sentence ordered by the learned trial judge on 26 February, 2014 and 17 July, 2014, respectively for wilful murder and life imprisonment are hereby quashed and set aside.

11. The Court in the exercise of its inherent power under s. 155 (4) of the Constitution, enters the verdict of guilty against the applicant for unlawfully killing the deceased William Raphael on 19 February, 2008, at Nenmulka/Kadaulung, village, East New Britain Province.

12. As to sentence, the Court finds guidance from the sentencing guidelines given in Manu Kovi v. The State (2005) SC789. According to those guidelines, this case falls into category 3 for which the recommended range of sentences is from 17 to 25 years. This range of sentences for unlawful killings (manslaughter) is for both after trial and pleas of guilty. The circumstances of aggravation to be considered include the use of dangerous or offensive weapons namely, guns and or knives. Also pertinent to the issue of sentence is the presence of pre-meditation and intention to harm for the purposes of armed robbery with little or no regard for human life.

13. We are mindful of the fact that these sentencing guidelines were formulated many years ago, and new guidelines have been formulated by the courts in subsequent cases, however, they are still relevant and carry weight. We therefore adopt them to guide us in deciding the substituted sentence for the applicant.

14. In this case, the applicant was reacting to a real threat to his life and evidence shows there was no intention to kill as indeed found by the trial judge. There was an element of self-defence, and we are mindful of the fact that this offence was committed during an armed robbery. We also note that there was premeditation to commit robbery, and the applicant also maintained that shooting of the deceased was unintentional. These are crucial factors the Court must consider in deciding the appropriate punishment for the applicant.

15. We note further that the applicant was in company of others, who were all principal offenders under ss. 7 and 8 of the Criminal Code. The accomplices have not been dealt with under the law for their part in this crime. This is another relevant factor the Court must consider.

16. Consequently, having regard to the overall facts and circumstances of the case, we consider that the fair punishment for the applicant is 18 years imprisonment.

17. We order the 18 years imprisonment to run retrospectively from the date the applicant was sentenced with appropriate reductions for the period already served with appropriate remissions.

18. In the exercise of the supervisory jurisdiction of the Court, we consider it appropriate to make some brief but pertinent observations regarding the learned trial judge’s decisions on verdict and sentence. The decisions are quite clearly contradictory in their terms because given that the appellant was convicted and sentenced for wilful murder which should have ordinarily followed from finding by the trial judge that there was intention to kill; not only were the decisions against the evidence and weight of the evidence, but the trial judge also made specific finding that there was no intention to kill. In this regard, we respectfully find the decisions incomprehensible and unintelligible, thus devoid of quality.

19. We remind the courts of their duty to deliver quality decisions which are fair and comprehensible. This is an ongoing requirement for the courts as it goes to their duty to properly administer justice. In this process, the parties, especially those who are affected directly by the decisions must be able to understand the decisions. Judicial decisions should not be ambiguous, confusing, and incompressible in their terms. See, David v. The State [2006] PGSC 22.

20. Quality judicial decisions need to be expressed in clear, intelligible, and comprehensible language. Making proper analysis of issues and making clear findings of fact and law with logical and clear reasoning by the courts are fundamental to fair trial and proper administration of justice.

21. On the other hand, judicial decisions which are expressed in unclear, unintelligible, and incomprehensible language are tantamount to lacking proper reasoning and amount to an error of law, as in this case.

22. These principles are basic judicial axioms upon which our judicial system is built, thus they should be common knowledge and do not really require citation of case law to support them.
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent