Porewa Wani v The State

• Jurisdiction: Papua New Guinea
• Judge: Pritchard J, Wilson J, Andrew J
• Judgment Date: 30 November 1979
• Citation: [1979] PNGLR 593
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC170

Supreme Court: Pritchard J, Wilson J, Andrew J

Judgment Delivered: 30 November 1979 or 7 December 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

POREWA WANI

V

THE STATE

Waigani

Pritchard Wilson Andrew JJ

1 October 1979

30 November 1979

CRIMINAL LAW — Parties to offences — Aiding and abetting — What constitutes aiding — Presence plus wilful encouragement — Whether use of words "kill him, kill him, kill him" amounts to wilful encouragement — Criminal Code, s. 7 (c).

CRIMINAL LAW — Wilful murder — Alternative verdicts — Urging unlawful killing not available as alternative verdict — Criminal Code, ss. 315 Infra p. 595.1, 551 Infra p. 596.2, 552 Infra p. 596.3.

The appellant (accused) was convicted under s. 7 (2) of the Criminal Code of aiding in committing the offence of wilful murder, the actual killing being committed by one Avia Aihi. The appellant was one of several people who were charged with wilful murder following the killing on the Bereina/Waima Road of a man named Morris Modeda who was being tried in the National Court for the offence of dangerous driving causing death and who was on that road at the time the murder took place with a court party for the purposes of a view. Morris Modeda was stabbed by Avia Aihi, the widow of the man who had died in the alleged dangerous driving accident and the appellant who was present when the stabbing took place and knew of Avia Aihi's intention to kill, shouted in Motu words, meaning "kill him, kill him, kill him."

On appeal against conviction,

Held

(1) On a charge of wilful murder, urging wilful murder under s. 315 of the Criminal Code is not available as an alternative verdict.

(2) Although mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7 (c) of the Criminal Code, presence and wilful encouragement are sufficient.

R. v. Coney (1882), 8 Q.B.D. 534;

R. v. Clarkson [1971] W.L.R. 1402;

R. v. William Taupa Tovarula [1973] P.N.G.L.R. 140;

Agiru Aieni v. Paul T. Tahain [1978] P.N.G.L.R. 37; and

R. v. Russell [1933] V.L.R. 59, at p. 66, referred to.

(3) The accused's presence at the scene of the offence, with knowledge of the principal's intentions and the use of the words "kill him, kill him, kill him" amounted to wilful encouragement.

(4) The conviction should be confirmed.

Appeal

This was an appeal against conviction on a charge of wilful murder where the accused was convicted under s. 7 (c) of the Criminal Code as having aided in the commission of the offence.

Counsel

B. B. Sakora, for the appellant.

W. J. Karczewski, for the respondent.

Cur. adv. vult.

30 November 1979

PRITCHARD WILSON ANDREW JJ: This is an appeal against conviction. The appellant was one of several people who were convicted of wilful murder following the killing on the Bereina Waima Road of a man named Morris Modeda, who was being tried in the National Court presided over by the Chief Justice for the offence of dangerous driving causing death. On Monday 11th September, 1978, a view of the scene of the accident was being conducted in the presence of Morris Modeda. The members of the court party, together with the police that were with them, were taken completely by surprise as about sixty to eighty people, some of whom were armed with knives and branches of trees, moved towards Morris Modeda. Morris Modeda was chased and then stabbed in the back with a knife held by Avia Aihi, the widow of the man who had died in the alleged dangerous driving accident. Morris Modeda later died. Avia Aihi was sentenced to life imprisonment, three others were sentenced to imprisonment with hard labour for ten and one half yeas, and the appellant was sentenced to imprisonment with light labour for seven years.

LEAVE TO APPEAL AGAINST SENTENCE NOT SOUGHT

Mr. Sakora, counsel for the appellant, sought to present argument during the hearing of this appeal with a view to persuading us that the sentence which the appellant received was in the circumstances manifestly excessive. Because that raised a preliminary procedural question, we heard argument on that aspect first. Mr. Karczewski, for the respondent, submitted that, leave neither having been sought nor granted, it was not open to the appellant to appeal against the severity of sentence.

A person convicted by a judge of the National Court may not appeal to the Supreme Court against the sentence passed on his conviction unless he has the leave of the Supreme Court (see s. 21 (d) of the Supreme Court Act 1975).

Under s. 27 (1) of the Supreme Court Act 1975, where a person convicted desires to obtain leave to appeal to the Supreme Court, he shall give notice of his application for leave to appeal in the manner prescribed by the Rules of Court within forty days after the date of conviction.

Under s. 27 (2) of the Supreme Court Act 1975, the time within which notice of an application for leave to appeal may be given may be extended at any time by the Supreme Court on application made within forty days after the date of conviction. It is beyond question that notice of application for leave to appeal was not given within forty days after the date of conviction. In fact, time for filing both a notice of appeal and a notice of application for leave to appeal was extended by the Supreme Court on 1st May, 1979, but despite this no notice of application for leave to appeal was ever given. The notice of appeal dated 22nd May, 1979, is not (nor does it...