Wari Mugining v R

• Jurisdiction: Papua New Guinea
• Judge: Raine, Williams J, Saldanha J
• Judgment Date: 21 November 1975
• Citation: (1975) PNGLR 352
• Court: Supreme Court
• Year: 1975
• Judgement Number: SC88

Supreme Court: Raine, Williams J, Saldanha J

Judgment Delivered: 21 November 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WARI MUGINING

V

THE QUEEN

Port Moresby

Raine Williams Saldanha JJ

31 July 1975

1 August 1975

21 November 1975

CRIMINAL LAW — Practice and procedure — Indictments — Joinder of counts — Single accused — Same or closely related facts — Prosecution of single purpose — Misjoinder not rendering trial a nullity — Whether miscarriage of justice — Criminal Code (Queensland adopted), ss. 567, 568 (1).

CRIMINAL LAW — Appeal against sentence — Cumulative sentence — Whether error in principle — General principles — Unlawfully inflicting grievous bodily harm — Assault with intent to rape — Cumulative sentences appropriate.

The appellant who was charged under four counts with:

(1) with intent to do grievous bodily harm, unlawfully inflicting grievous bodily harm (s. 317 (1) of the Criminal Code).

(2) with intent to do grievous bodily harm, unlawfully wounding (s. 317 (1) ),

(3) attempting to commit rape (s. 349), and

(4) assault with intent to rape (s. 340),

was convicted under s. 320 of the Criminal Code of unlawfully inflicting grievous bodily harm, (no intention to do grievous bodily harm having been proved), acquitted on the third count and convicted on the fourth count: he was sentenced to three years' imprisonment on the first count and to fourteen months' imprisonment on the fourth count (the trial judge taking into account four months in custody pending trial), the sentences to be served cumulatively.

The appellant who was a native house servant threatened his female European employer with a knife and a piece of rope whilst inside her house saying "If you do not come into the house and sleep with me I will kill you with the knife". When the woman then ran from the house and shouted to her neighbours the appellant followed and stabbed her before escaping.

On appeal against conviction and sentence:

Held

(1) Section 568 (1) of the Criminal Code has no application to the joinder of counts against a single accused: it is aimed at two or more offenders.

Reg. v. Phillips and Lawrence [1967] Qd.R. 237 at pp. 276 and 277 not followed.

(2) that the four counts could be joined against one single accused under s. 567 of the Criminal Code provided that they arose out of the same or closely related facts and were done in the prosecution of a single purpose.

(3) (Raine J not deciding) a wrongful joinder of charges in an indictment does not make a trial a nullity unless there is a miscarriage of justice.

Reg. v. Crozier, [1929] Q.W.N. 31; Dearnley v. The King [1947] St.R.Qd. 51 and R. v. Bedington, [1970] Qd.R. 353 followed.

(4) That the convictions should be upheld: (per Raine J) the counts were properly joined; (per Williams J) whether the joinder was justified or not, no actual miscarriage of justice had occurred; and (per Saldanha J) the joinder was not justified, but there had not been a miscarriage of justice nor had the appellant been prejudiced thereby.

(5) The sentence should be confirmed; there having been no error in principle in imposing cumulative sentences in the circumstances.

Tremellan v. The Queen [1973] P.N.G.L.R. 116 considered.

Appeal

This was an appeal against conviction and sentence, in respect of charges under s. 320 and s. 340 of the Criminal Code when the appellant had been indicted on four counts under s. 317 (1), s. 317 (1), s. 349 and s. 340 of the Criminal Code. Full facts and circumstances appear in the reasons for judgment of Raine J hereunder.

Counsel

C. F. Wall, for the appellant.

S. G. Cory, for the respondent.

Cur. adv. vult.

21 November 1975

RAINE J: This is an appeal by a native born man employed at Murray Barracks by a European officer and his wife as a house servant since May, 1974, against his convictions, and also against the sentences imposed following those convictions.

On 19th November, 1974 the officer's wife, Mrs. Henrys, was alone in her house with her children. Her husband was away in Manus. The appellant would have known this. At 9.30 p.m. Mrs. Henrys prepared to go to bed and, noticing the light off in the second bedroom, she turned it on, searched the room, and found the appellant under the bed. She spoke to him, he did not reply. Alarmed, she went to the kitchen and got a bread-knife. The appellant came out. She tried to persuade him to leave. He produced a knife and some nylon rope and said, "If you don't come back and sleep with me (meaning sex) I'll cut you with the knife". She tried to calm him, reminding him he was a churchgoer, but he threatened to kill her. She ran down the back steps, screamed at him "Don't go near my kids", (who are aged six and three) and called for help. The appellant ran down after her, there are a number of steps, the house being on stilts. Fortunately the neighbour of Mrs. Henrys heard her call, and asked what was wrong. It seems that y then Mrs. Henrys was down the steps and running across the yard. The appellant stabbed her in the back of the left arm with his small knife, the doctor who gave evidence was shown the knife and said it must have virtually gone into the upper arm up to the hilt, and that considerable force would have been necessary, it went into muscles an inch or two down from the shoulder. There is no permanent injury, just a small scar.

The appellant then struck the woman on the back of the head with the knife, it went into the skin, and she fell, and says she felt the knife again on the head, and also a duller blow.

The appellant, apparently alarmed when he became aware of the neighbour, fled the scene.

The medical evidence shows that there was a serious blood loss. It is possible that Mrs. Henrys could have bled to death if untreated. Of course, as things were, there was no danger of this, and she was taken to hospital, which is nearby. However, had her neighbour not been home and had she been rendered unconscious, who knows? Mrs. Henrys needed one litre of blood the following day, as she had an estimated 20% to 30% blood loss. She suffered shock, a fall in haemoglobin, she also had intravenous fluid administered, and she was in hospital for six days. Nerves in her head were cut, so Mrs. Henrys had a numb sensation in the top of the head. Fortunately it seems the nerves are regrowing, for she is now getting a tingling sensation, which is indicative of regrowth, and a degree of recovery. The blow needed to inflict the head wound required moderate force. This woman underwent a terrifying experience. Fortunately she came out of it very well, both physically and emotionally. But it was fortuitous that this was o. She was lucky.

The appellant told a good many rather imaginative stories, but his Honour the trial judge was obviously unimpressed by all or any of them, and, in any event, as will be seen, no attack is made on the findings, and the convictions, in a factual sense.

The appellant was charged under four counts with:

(1) That with intent to do grievous bodily harm to Mrs. Henrys he unlawfully inflicted grievous bodily harm (s. 317 (1) ).

(2) That with intent to do grievous bodily harm to Mrs. Henrys he unlawfully wounded her (s. 317 (1) ).

(3) That he attempted to commit rape upon Mrs. Henrys (s. 349).

(4) That he assaulted Mrs. Henrys with intent to rape her (s. 340).

The learned trial judge was not satisfied that the intention to do grievous bodily harm was made out under the first count, and only convicted the appellant, under s. 320, of unlawfully inflicting grievous bodily harm, the maximum penalty for which is seven years in hard labour. Thus, the second count need not be considered. His Honour acquitted the appellant of attempted rape (third count) but convicted him of the charge contained in the fourth count. The maximum penalty under s. 340 is three years imprisonment with hard labour.

His Honour sentenced the appellant to three years under s. 320 (first count) and to fourteen months under s. 340 (fourth count), and made the sentences cumulative.

The appellant had been in custody awaiting trial for a day or so over four months, so that it could be said that the effective sentence was about four and a half years, and I approach the appeal on this basis. The very real distinctions, in Australia, between remand detainees and convicted prisoners, does not obtain here to any great extent. Thus, as we cannot date a sentence back, we generally treat time served in custody awaiting trial as imprisonment, and deduct it from the overall penalty deemed proper.

I now come to consider the arguments advanced by Mr. Wall of counsel for the appellant.

1. It is submitted that neither by s. 567 nor by s. 568 (6) was it permissible to join, in the one indictment, the charges grouped in counts 1 and 2, with 3 and 4, nor was it permissible to group either of the charges in counts 1 and 2 with either of those in 3 and 4.

Because, in my respectful view, notwithstanding much authority to the contrary, s. 568 (6) has...