Acting Public Prosecutor v Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] PNGLR 510. The PNGLR mistakenly refers to the "Acting Public Prosecutor" as the "Acting Public Solicitor".

• Jurisdiction: Papua New Guinea
• Judge: Kapi J:
• Judgment Date: 19 December 1980
• Court: Supreme Court
• Citation: [1980] PNGLR 510
• Year: 1980
• Judgement Number: SC190

Full Title: Acting Public Prosecutor v Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] PNGLR 510. The PNGLR mistakenly refers to the "Acting Public Prosecutor" as the "Acting Public Solicitor".

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J

Judgment Delivered: 19 December 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ACTING PUBLIC SOLICITOR

V

UNAME AUMANE, ALUMA BOKU, LUKU WAPULAE AND PIOPE KONE

S.C.A. NO. 14 OF 1980

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

29 August 1980

1-2 September 1980

19 December 1980

CRIMINAL LAW — Appeal against sentence — Appeal against inadequacy — Appeal by Public Prosecutor — Time for lodging appeal — Appeal outside 40 days prescribed by r. 32 of Supreme Court Rules competent — Whether s. 12 of Interpretation (Interim Provisions) Act 1975 applicable — Supreme Court Act, ss. 21 Infra p. 518.1, 23, 27 Infra pp. 515, 518.2 — Constitution s. 184 Infra p. 512.3.

CRIMINAL LAW — Appeal against sentence — Murder — Wilful murder of reputed sorceress — Relevance of cultural factors including belief in sorcery — Order for payment of pigs as compensation without jurisdiction — Taking into account of custom on sentencing — Meaning of — Native Customs (Recognition) Act 1963, s. 7 (e) Infra p. 541.4.

STATUTES — Validity — Inconsistency between Act and Rules — Act to prevail — Appeal against sentence — Appeal by Public Prosecutor — Statutory right of appeal unfettered — Rules requiring lodging of appeal within 40 days — Rule invalid — Appeal outside time competent — Supreme Court Act 1975, ss. 21 Infra p. 518.5, 23, 27 Infra pp. 515, 518.6 — Supreme Court Rules 1975, r. 32 — Interpretation (Interim Provisions) Act 1975, s. 12.

Four villagers from parts of the Enga Province pleaded guilty to charges that they wilfully murdered a woman (whom they believed to be a sorceress) thereby contravening s. 304 of the Criminal Code. The trial judge sentenced each offender to three months' imprisonment with hard labour and (purporting to rely on s. 7 (e) of the Native Customs (Recognition) Act 1963) ordered "each of them to pay five native pigs to the deceased's younger son immediately upon release".

(Kidu C.J., Kearney Dep. C.J., Greville Smith J., Andrew J., Kapi J.)

The Acting Public Prosecutor appealed against inadequacy of sentence, his notice of appeal being lodged 42 days after the imposition of the sentence; (r. 32 of the Supreme Court Rules 1977 provides that a notice of appeal by the Public Prosecutor shall be filed within 40 days of the pronouncement of sentence and r. 23 of the Supreme Court Act provides:

"A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appealed from or within such further time as shall be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from.")

Section 12 of the Interpretation (Interim Provisions) Act 1975 provides:

"12 PROVISIONS WHERE NO TIME PRESCRIBED

Where no time is prescribed or allowed within which an act is required or permitted by a provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises."

On objection to the competency of the appeal.

Held

(1) Rule 32 of the Supreme Court Rules 1977, which is inconsistent with s. 23 of the Supreme Court Act 1975, insofar as it imposes a time limit on the institution of an appeal by the Public Prosecutor, is invalid as being outside the rule making power conferred by s. 184 of the Constitution.

(2) (Per Kearney Dep. C.J. and Greville Smith J., with whom Kidu C.J. and Andrew J. agreed). Section 12 of the Interpretation (Interim Provisions) Act 1975, has no application to s. 23 of the Supreme Court Act 1975 because the provision in s. 23, is not a provision in which "no time is ... allowed within which an act is permitted to be done".

(3) (Per Kapi J. dissenting) Section 12 of the Interpretation (Interim Provisions) Act 1975 applies to s. 23 of the Supreme Court Act 1975 because the institution of an appeal by the Public Prosecutor is a discretionary matter, that is an act "which is permitted" by s. 12, and an act which is required by s. 12 to be done with "all convenient speed": and what is a convenient speed depends upon the circumstances of the particular case: in the circumstances the notice of appeal had been filed with convenient speed within the meaning of s. 12.

(4) The court had jurisdiction to hear the appeal.

On appeal against inadequacy of sentence.

(5) The sentences of three months imposed were most inadequate and should be increased in each case to five years and five months (taking into account four months awaiting trial and three months already served).

(6) The order directing payment of pigs as compensation was made without jurisdiction and should be set aside.

(7) (Per Kapi J.) Section 7 (e) of the Native Customs (Recognition) Act 1963, which provides that "custom shall be taken into account in determining the penalty (if any) to be imposed on a guilty party, means that a judge may increase or decrease the sentence depending on whether custom mitigates or aggravates the offence, and may impose the appropriate punishment within the range given by law.

Relevance to sentence of cultural factors including belief in sorcery discussed.

Appeals

These were appeals against inadequacy of sentence by the Acting Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975.

Counsel

L. L. Gavara-Nanu and C. J. Bourke, for the State.

K. A. Wilson and N. R. P. Kirriwom, for the respondents.

Cur. adv. vult.

19 December 1980

KIDU CJ: This is an appeal by the Public Prosecutor brought under s. 23 (1) of the Supreme Court Act 1975. Section 23 (1) reads as follows:

"23. APPEAL BY PUBLIC PROSECUTOR AGAINST SENTENCE

(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper".

Counsel for the respondents raises an objection — that this Court cannot entertain the appeal because the appeal was lodged out of time contrary to r. 32 of the Supreme Court Rules 1977. This rule provides:

"A Notice of Appeal by the Public Prosecutor under Section 23 of the Act shall be filed in the registry within 40 days immediately after the pronouncement of the sentence or the quashing appealed from or within such further time as shalt be allowed by the court or a Judge upon application made within 40 days immediately after the decision or judgment appealed from."

There is no dispute that the Public Prosecutor lodged his appeal 42 days after the sentence was pronounced and that no extension for time to appeal was made within the 40 days stipulated in r. 32.

The Public Prosecutor submits that s. 23 gives him a discretionary right to appeal. This right, he says, is of an absolute nature as against any right a convicted person has of appealing under s. 21 of the Act. Section 21 is restricted by s. 27 of the Act whilst s. 23 contains no restriction nor is it restricted by any other provision of the Act.

I find no room for the suggestion that the Public Prosecutor's right of appeal under s. 23 of the Act is subject to s. 32 of the Supreme Court Rules 1977. Section 184 of the Constitution, under which the Rules were made, provides, inter alia, as follows:

"184. RULES OF COURT

(1) The Judges of the Supreme Court or of the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.

..."

(4) If an Act of the Parliament comes into force that is inconsistent with a rule of court, the rule ceases to have effect to the extent of the inconsistency.

..."

The intention of the Constitution (s. 184) is quite clear — a rule of court must not be inconsistent with a Constitutional Law or an Act of the Parliament.

In this case the Supreme Court Act 1975 came into effect on 16th September, 1975, whilst the Supreme Court Rules were operational in 1977. This does not make any difference. Section 184 of the Constitution should have been observed when the Rules were made.

Rule 32 is inconsistent with s. 23 of the Act and therefore is invalid.

As to whether s. 12 of the Interpretation (Interim Provisions) Act 1975 applies to the operation of s. 23 of the Supreme Court Act 1975, I concur with reasons and convictions of my brothers Kearney and Greville Smith and I have nothing to add.

SENTENCE

I consider the sentences of three months' imprisonment with hard labour grossly inadequate for the crime of wilful murder.

His Honour the learned trial...