Gedai Kairi v The State (2006) SC831

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ. Kandakasi and Gabi JJ.
• Judgment Date: 28 April 2006
• Citation: (2006) SC831
• Docket Number: SCRA No. 55 of 2004
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC831

Full Title: SCRA No. 55 of 2004; Gedai Kairi v The State (2006) SC831

Supreme Court: Kapi,CJ., Kandakasi, and Gabi, JJ.

Judgment Delivered: 28 April 2006

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 55 of 2004

BETWEEN:

GEDAI KAIRI

-Appellant-

AND:

THE STATE

- Respondent-

WAIGANI: Kapi,CJ., Kandakasi, and Gabi, JJ.

2005: 31st August

2006: 28th April

APPEALS – PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Failure of trial judge to raise possible defence with appellant – Appropriate to remit the matter back to the trial court for retrial before different judge.

CRIMINAL LAW – Guilty plea by accused – Accused raising defence known to law during his allocutus – Trial judge failing to properly raise the issue with the accused – Effect of – Guilty plea and conviction a nullity – Retrial appropriate remedy - Retrial ordered.

Papua New Guinea Cases Cited:

The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1.

Dinge Damane v. The State [1991] PNGLR 244.

Martin Ferry v. The State SCA (Unreported and unnumbered) SCRA 64 of 2000 (November 2000).

The State v Joe Butema Arua (28/03/01) N2076.

The State v. John Gurave Guba (19/12/00) N2020.

Counsels:

Appellant in Person.

Mr. R. Auka for the Respondent.

28th April 2006

BY THE COURT: This appeal arises out of a decision of Mogish J in the National Court delivered on 18th June 2004. Following a guilty plea to manslaughter, His Honour convicted the appellant of the charge and sentenced her to 8 years in hard labour less the time she spent in custody of 9 months and two weeks waiting for her trial.

Grounds of Appeal

The appellant advances the following grounds of appeal:

“(a) The plea of guilty was wrongly entered by my lawyers at the trial;

(b) That injustice was caused when the learned trial judge failed to determine the exact cause of death of the deceased (my late husband), and influenced by the plea of guilty presumed the outcome of the case thereby resulting in my conviction.

(c) For the reason stated in paragraph (b), I claim that my conviction was against the weight of the evidence my lawyers submitted, especially the medical evidence of Dr. Philip Golpak.

(d) The learned trial judge erred in law and fact in not examining all of the evidence exhaustively.

(e) The learned trial judge erred in law in not considering all of the defenses available to me at law to dispense culpability.

(f) On sentence, I claim that the sentence is excessive and is otherwise harsh and oppressive in that the learned trial judge failed to consider relevant matters and circumstances in my case.”

Grounds (a) to (e) concern the safeness of the appellant’s conviction, whilst the remaining ground concerns sentence. The respondent argues that the learned trial judge did not make any of the errors alleged. This therefore raises the following issues for us to determine:

1. Did the evidence placed before the learned trial judge disclosed a legal defence available to the appellant?

2. If the answer to the above question is in the affirmative, then did the learned trial judge err in recording the conviction against the appellant? and

3. Was the sentence of 8 years less time already spent in custody excessive?

The first two issues concern the correctness of the learned trial judge accepting the guilty plea and recording a conviction against the appellant. These can be dealt together as one. Then depending on the outcome of those issues, the third issue may be addressed. Before addressing these issues however, it is necessary to turn to the relevant facts and the background to this appeal for a proper understanding and determination of the issues presented. Accordingly, we turn to these aspects first starting with the relevant facts.

Relevant Facts

The charge, conviction and sentence against the appellant was over the death of her then Husband. On the afternoon of 2nd September 2003, the deceased picked up two of his and the appellant’s children from school and drove to their house at Morata here in the National Capital District. As the deceased had been drinking alcohol during the day, he felt sleepy and went straight to bed when he and the children got to the family home. Meanwhile, the appellant and the children had dinner and went to sleep.

Around 8:00pm, the deceased woke up and called for the elder child and daughter of the family. When she got to her father, he asked about the appellant and his daughter informed the deceased that she was asleep in her bedroom. The deceased asked his daughter to go back to sleep and he then call for the appellant to go to him. The appellant got out of her sleep and went to the deceased. The deceased started to assault the appellant without any warning or notice. The daughter on noticing what was happening tried to intervene and stop the fight but the deceased managed to fight her off. He then grabbed an incandescent light bulb and hit the appellant with it on her neck area and smashed an incandescent light bulb into pieces. By this time, the deceased had the lights turned off and he tried to burn the whole house down with the aid of some kerosene. However, the shouts and screams over that by the children stopped the deceased from burning the house down. However, that did not stop the deceased from continuing to bash up the appellant. The appellant tried to take refuge in the children’s bedroom. Unfortunately, the deceased over powered her and dragged her out into the dinning room and continued to beat her up.

The elder daughter tried to go and call for help from the neighbours but the deceased overpowered her, belted her up and send her back into the house. The deceased then turned on the appellant again and tried to further assault her. The appellant got hold of a kitchen knife and stabbed the deceased on his left foot with the aim of stopping him from further attacking her, which she achieved.

After stabbing the deceased, the appellant got scared and went to relatives who lived at Morata No.2. When she got there, she informed her relatives of what had happened and told them to call the police, which they did. Police went to the appellant’s and the deceased’s house, which enabled the appellant to return to the house. With the help of the police, the appellant tried her very best repeatedly to persuade the deceased to go to the hospital for medical treatment, which the deceased continuously refused. Eventually, the appellant and the police gave up their attempts to get the deceased to the hospital. It seems the police felt and so did the appellant, who went with her children to her relatives’ house for the night as she wanted to ensure that the children got to school in good form the next day.

Meanwhile, the deceased appears to have continued to bleed from the knife wound he received during the night of the incident and he eventually died. His relatives found him dead in his house the next morning. Medical evidence was not able to determine the actual cause of the death. However, it did observe that, the deceased sustained a superficial wound to his left foot. It stated that no major blood vessels were cut but the superficial cut that he received was capable of bleeding slowly resulting in an eventual excessive loss of blood if not treated.

Proceedings Before the National Court

In the National Court, the prosecution presented an indictment charging the appellant with one count of manslaughter. The essence of the above facts in summary was read out in the brief facts supporting the presentation of the indictment. After putting the facts and charge to the appellant, the learned trial judge asked the appellant for her plea. She pleaded guilty to the charge by saying, “I plead guilty”. The counsel for the appellant announced her appearance and told the Court that the plea was consistent with her instructions. Thereupon, the learned trial judge entered a provisional plea of guilty and proceeded to read the depositions.

After reading the deposition, the learned trial judge raised with counsel for the appellant that there appear to be the defence of provocation. Counsel for the appellant said that will be taken up in her submissions on sentence in a non legal sense as opposed to a legal defence. After that exchange, the learned trial judge accepted the guilty plea and convicted the appellant on the charge presented. He then administered the appellant her allocutus.

In her allocutus, the appellant said, for many years the deceased used to beat her up and her body bears some scars of that. She reported those incidents to the police at Waigani but the police there did nothing about it saying, it is a family matter and the deceased continued to beat her up. She then repeated what happened on the day of the incident as noted above and highlighted the fact that, the deceased had switched the lights off and in the darkness; he tried to beat her up again. That is when she got a kitchen knife and stabbed him to stop him from further attacking her. She also emphasized the deceased’s repeated refusals of the...