Daniel Ronald Walus v The State (2007) SC882

• Jurisdiction: Papua New Guinea
• Judge: Sevua Kandakasi & Manuhu JJ
• Judgment Date: 23 February 2007
• Citation: (2007) SC882
• Docket Number: SCR 32 OF 2005
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC882

Full Title: SCR 32 OF 2005; Daniel Ronald Walus v The State (2007) SC882

Supreme Court: Sevua, Kandakasi & Manuhu, JJ

Judgment Delivered: 23 February 2007

SC882

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 32 OF 2005

BETWEEN

DANIEL RONALD WALUS

Applicant

AND

THE STATE

Respondent

Kokopo & Kimbe: Sevua, Kandakasi & Manuhu, JJ

2006: 30 August

2007: 23 February

PRACTICE & PROCEDURE – Appeals – Leave to withdraw – Objected to conditional on Supreme Court correcting apparent error on the face of the record – No provision in the Rules governing withdrawal of appeals – Court has power under s. 155 (4) of the Constitution to devise appropriate remedy – Merits of objection considered – Objection meritorious – Apparent error on the face of the record - Court has power to correct apparent error before allowing withdrawal of appeal – Apparent errors corrected and Appellant granted leave to withdraw - Section 155(4) of the Constitution – Sections 4 to 12 and 20 – 32 Supreme Court Act (ch. 37) – Sections 19 (1) (6), (9), 26, 527 of Criminal Code – Section 4 Criminal Justice (Sentencing) Act 1986 – Sections 17 to 21 of Parole Act 1991 - Order 8 r 6 of the Supreme Court Rules.

PRACTICE & PROCEDURE – Suspension of sentence – A trial judge has power to suspend part of an offender’s sentence - The Court required and consider a pre-sentence report – If pre-sentence reports supports suspension on then should the Court suspend part of the sentence - Where suspension is warranted the Court must exercise the power to do so at the time of the pronouncement of sentence and not at a later time – The Court must clearly state the sentence imposed, any suspension and deduction and the term to be served at the time of pronouncing the sentence - Once the Court has pronounced sentence it becomes functus officio - Section 19 of Criminal Code - Section 4 of the Criminal Justice (Sentences) Act 1986.

Cases cited:

Regina v. Abia Tambule and 11 Others [1974] PNGLR 250.

Acting Public Prosecutor v. John Airi (24/11/81) SC214.

Public Prosecutor v. Thomas Vola [1981] PNGLR 412.

See Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

Edmund Gima & Siune Arnold v. The State (03/10/03) SC730.

William Powi & Ors v. Southern Highlands Provincial Government & Ors (26/07/06) SC844.

James Pangnan and Patrick Ponat v. The State SCRA 39 & 54 OF 2004, judgment delivered on 30th August 2006

Counsel:

Appellant in Person.

Mr. J. Pambel, for the Respondent

23 February, 2007

1. BY THE COURT: You lodged an appeal against a judgment of the National Court (per Cannings J.) delivered in Kimbe on 25 February 2005, imposing a sentence of 18 years in hard labour on your guilty plea to a charge of unlawfully killing your wife’ s cousin sister. This Court convened and started to hear your appeal on 30 August 2006. In the course of the hearing, you applied for leave of the Court to withdraw your appeal. The State opposed that application pointing out that there was an apparent error on the face of the judgment which must be corrected before you can be allowed to withdraw your appeal. In taking that position, the State pointed to the following part of the judgment:

“1 Daniel Ronald Walus, having been convicted of the crime of unlawful killing, is sentence to 18 years imprisonment in hard labour, 10 years of which must be served and the balance of 8 years may be suspended by order of the National Court if and when an application for suspension is granted.

“2 For the avoidance of doubt:

(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; …”

2. The State pointed out that, the learned trial judge acted ultra vires his sentencing powers, and in particular Section 19 of the Criminal Code.

1 Chapter. N0. 262.

1 Mr. Kaluwin of the Public Solicitor’s Office in Kokopo, who appeared as a friend of the Court on the Court’s invitation, agreed with counsel for the State that, there was an apparent error on the face of the judgment. He then drew the Court’s attention to Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986.

Relevant Issues

3. This presents three (3) issues for this Court to determine. The first is, whether this Court has the power to allow you to withdraw your appeal. The second issue is, if the answer to the first issue is in the affirmative, can this court allow you to withdraw your appeal in the face of a suggestion that, there is an apparent error on the face of judgment, the subject of your appeal. The third issue is, whether there is in fact an apparent error on the face of the judgment and whether, this Court should correct it before granting you leave to withdraw your appeal.

Power to Allow Withdrawal of Appeals

4. Turning first to the first issue, we note that, there is no dispute that, this Court has an “inherent power” under Section 155 (2) (b) of the Constitution, “to review all judicial acts of the National Court”. That power is usually exercised by this Court on appeal or review by a person aggrieved by a decision of the National Court. Appeals to this Court are governed by the Supreme Court Act,

2 Chapter 37.

2 particularly s 4 to s 12 and s 20 to s 32. Section 6 of the Act makes it clear that “an appeal … is by way of rehearing on the evidence given in” the National Court “subject to” this Court’s power to “allow fresh evidence … and to draw inferences of facts.” On hearing of an appeal this Court “has all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court.” In most appeal cases, this Court has either affirmed the decision and or orders of the National Court appealed against or, has quashed and set them aside and substituted them with its own. A recent example of that happening is the decision delivered by this Court in the case of James Pangan and Patrick Ponat v. The State.

3 SCRA 39 & 54 OF 2004, judgment delivered on 30th August 2006, per Sevua, Kandakasi and Manuhu JJ.

3 This has happened particularly in cases where the National Court has fallen into identifiable error resulting in a miscarriage of justice and therefore, warranting correction by this Court.

5. In your case, you applied to this Court to withdraw your appeal as this court started to hear your appeal. There is no provision either in the Act or the rules enacted thereunder for a withdrawal of appeals once filed. The Rules of this Court provide under O 8 r 6 for a withdrawal of a reference under s 26 of the Act. This provision empowers the Principle Legal Adviser to withdraw such references without leave of the Court before the hearing of a reference and with leave of the Court, after the commencement of the hearing of the reference but before the Court delivers its opinion. Similar provisions exist in the National Court Rules

4 O. 8 rr. 60 and 61.

4 in civil cases. For criminal cases at the trial level, s 527 of Criminal Code empowers the Public Prosecutor to withdraw an indictment or charge against an accused person. This section is silent on when this can be done. However, it is now well accepted that, the Public Prosecutor can withdraw an indictment that is still pending prior to commencement of trial without leave and with leave of the court, after the commencement of trial but before decision.

5 See Regina v. Abia Tambule and 11 Others [1974] PNGLR 250, per Minogue CJ, Frost SPJ with Clarkson J dissenting.

5

6. The reason for requiring leave of the Court is simple. It is to avoid prejudice to the rights and or interests of the other parties to the proceedings. In Regina v. Abia Tambule and 11 Others

6 Ibid.

6 Frost SPJ made that clear in these terms:

“Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings.”

7 Per Frost SPJ

7

7. There is a well recognized right in a party to withdraw either the whole or a part of any proceedings brought by him or her. That is why provisions are invariably made either in the statutory law establishing a court or in the rules of the court promulgated under its enabling legislation for that right. Unfortunately, neither the Supreme Court Act nor the Rules of the Court provide for the right in an appellant like you to withdraw their appeals. Despite that, we are aware that, this Court has granted leave to appellants in some cases in the past to withdraw their appeals. This is not confirmed by any written judgment because there is usually no issue taken, warranting a written judgment. The lack of any written record of this Court having allowed a withdrawal of appeals in the past does not mean that the Court has not allowed withdrawal of proceedings and or that, the power to do so does not exist.

8. This Court has an inherent power under s 155(4) of the Constitution to devise such remedies as are necessary to do justice either to protect or give effect to a right already vested in a person by law but there is nothing in the statutory or case law for an appropriate remedy when breached or an occasion to exercise that right arises.

8 See the recent decision of this Court in William Powi & Ors v. Southern Highlands Provincial Government & Ors (26/07/06) SC844, per Jalina, Gavara-Nanu...