William Norris v The State [1979] PNGLR 605

• Jurisdiction: Papua New Guinea
• Judge: Wilson J:
• Judgment Date: 30 November 1979
• Citation: [1979] PNGLR 605
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC171

Full Title: William Norris v The State [1979] PNGLR 605

Supreme Court: Raine DCJ, Kearney J, Wilson J

Judgment Delivered: 30 November 1979 or 7 December 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WILLIAM NORRIS

V

THE STATE

Waigani

Raine DCJ Kearney Wilson JJ

1-2 November 1979

7 December 1979

CRIMINAL LAW — Evidence — Plea of guilty — Evidence of circumstances relevant to punishment — Hearsay evidence — Objection by accused — Formal proof required — Criminal Code, s. 608.

EVIDENCE — Admissibility — Hearsay — Criminal law — Plea of guilty — Evidence of circumstances relevant to punishment — Objection by accused — Formal proof required — Criminal Code, s. 608.

The appellant (accused) was convicted on a plea of guilty of the manslaughter of his de facto wife. In the proceedings on sentence, and against objection, the prosecution called evidence from a half-sister of the deceased and tendered three diaries in the handwriting of the deceased the contents of which indicated a "torrid" and frequently brutal relationship with the appellant. The trial judge held himself satisfied that the appellant was a "man of dangerous passion and temper" and sentenced him to five years' imprisonment with hard labour.

On appeal against severity of sentence,

Held

(1) Section 608 of the Criminal Code which provides that "the court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed", does not entitle the court to admit hearsay evidence during the proceedings on sentence, where that hearsay evidence is objected to and/or not conceded.

R. v. Gabai Vagi, [1973] P.N.G.L.R. 30;

Morse v. The Queen, [1977] W.A.R. 151;

R. v. Turner (1924), 18 Cr. App. R. 161;

R. v. Van Pelz, [1943] 1 K.B. 157;

R. v. Robinson (1969), 53 Cr. App. R. 314;

Weaver v. Samuels, [1971] S.A.S.R. 116;

Gifford v. The King (1947) 49 W.A.L.R. 97;

R. v. Marquis (1951), 35 Cr. App. R. 33;

Nash v. Haas, [1972] Tas. S.R. 1;

R. v. Lucky (1974), 12 S.A.S.R. 136; and

R. v. Beresford (1972), 2 S.A.S.R. 446, referred to.

(2) Where during proceedings on sentence, hearsay evidence is objected to and/or not conceded then it must be formally proved, or rejected completely.

(3) In the circumstances the trial judge had erred in law in admitting and relying upon the evidence in the diaries of the deceased, when sentencing the appellant.

(4) Without the evidence in the diaries of the deceased the sentence of five years' imprisonment with hard labour was manifestly excessive.

(5) The appeal against sentence should be allowed and a sentence of four years' imprisonment substituted.

Practice on appeal against sentence discussed by Kearney J.

Appeal Against Sentence

This was an appeal against severity of a sentence of five years' imprisonment with hard labour imposed on a plea of guilty on a charge of manslaughter.

Counsel

S. Cory, for the appellant.

K. Egan, for the respondent.

Cur. adv. vult.

7 December 1979

RAINE DCJ: This is an appeal by a man who pleaded guilty to a charge of unlawfully killing his de facto wife. It is an appeal against sentence only. The appellant was sentenced to be imprisoned with hard labour for a period of five years.

The appellant is twenty-six years of age and obviously an intelligent man, he was educated to form IV and at the time of the offence was earning a considerable amount of money. He is a married man, living apart from his wife and has several children. He had prior convictions but they were all in mid 1967 when he was only a boy and none of them involve offences of violence.

The death of the deceased, who was a young woman, was caused by blows to her head or face and death was caused by extensive brain haemorrhages. The deceased did not die immediately and following the assault on her did not appear for a time to be seriously affected.

For reasons that will become apparent it is important to set out the whole of the learned trial judge's remarks on sentence. His Honour said:

"The accused has pleaded guilty to the manslaughter of his mistress Kathleen Paul, a young educated woman with whom he had formed a liaison having left his wife and family of five children apparently shortly after the last child was born.

The liaison as so frequently happens proved a difficult one to maintain for it was the subject of pressure on the one hand from the embittered wife and from the other character weaknesses of the parties.

The girl died as a result of a vicious assault by punches to her head and body.

Evidence was called on the allocutus to assist my approach to sentencing. Defence counsel submitted that the manslaughter resulted from an unfortunate isolated incident that was uncharacteristic in a happy union; that sentence of imprisonment should be light, because the prisoner has suffered sufficiently in the loss of the person he loved. The prisoner is a man with a good work reputation as a store manager in a plumbing business. He was earning K15,000 per annum.

In reply to the case for leniency, the prosecution has called evidence from a half-sister to the deceased; and has tendered three diaries in the handwriting of the deceased which paint an eloquent picture of the torrid life she and the prisoner led.

I am satisfied that far from the fatal attack being an isolated incident it was one of many. Most strongly attached to one another sexually as they were, their relationship was frequently embittered by his, (I gather from the diaries) causeless jealousy and brutality of behaviour which drove him to 'belt up' as it was expressed, and bash the deceased on many occasions from which she suffered black eyes and bruising. On one occasion he poured hot water on her causing blistering to her breast.

I am satisfied that the prisoner is a man of dangerous passion and temper which induced him to use his undoubted powerful physique in bouts of cruelty.

He is a man who as a child in 1967 was convicted on two counts of B.E.S. [breaking, entering and stealing] and two of illegally using a m/v [motor vehicle]; but has not been under police notice since, it seems.

I consider his crime calls for a marked personal deterrent and also for an element of public deterrence. Resort to violence seems to be increasing rather than decreasing in this community.

He is sentenced to five years I.H.L. [in hard labour]." (The emphasis is mine.)

The portions in his Honour's remarks on sentence that I have emphasized make it abundantly clear that his Honour was very much influenced by the diaries to which he refers. These diaries were admitted by the learned trial judge against the objection of Mr. Cory of counsel for the accused, who now appears for him before us. I have read some of the diary entries. The deceased was obviously a well educated young woman and she writes a very good hand. The diaries are neat and tidy and apart from references to the appellant's behaviour, contain a description of the deceased's general social life.

When the appellant pleaded guilty before his Honour he had nothing to say when called up for sentence and Mr. Cory then addressed. From his Honour's notes it appears that after addressing for a short time counsel called a Mr. Wilson who was the manager of the business where the appellant was employed as a store manager. After his short evidence Mr. Cory resumed his address and, inter alia, said that the appellant and the deceased were in love, that there were minor arguments but that the overall picture was that the appellant was happy with the deceased and that he felt remorse and regret that he had killed the woman he loved. When Mr. Cory's address finished Mr. Egan, the Public Prosecutor, indicated to the trial judge that he wished to take issue on the fact that apart from minor arguments the overall relationship was a happy one, and he indicated that he had diaries in the handwriting of the deceased. These are the diaries that I have referred to. His Honour's note reads:

"Egan matters of mitigation. Spoke to Cory last Tues. — told alleging certain things over last 9 month. Told he disputed that.

On Sentence s. 608 (s. 650 Qld C.C.)

'may receive such evidence as it seeks fit.' Carter 557 (4 Ed) Relevant to know whether tempestuous rel-ship."

Later Mr. Egan tendered the diaries and Mr. Cory objected to them. It will be noted that Mr. Egan referred his Honour to Carter, Criminal Law of Queensland (4th ed., 1974), at p. 557. At that page part of the footnote of s. 650 of the Queensland Code appears. It is similar to s. 608 of the Criminal Code Act 1974 in this country. The portion of the footnote to which Mr. Egan referred reads:

"The provisions of the last paragraph of this section enable any information which can be put before the court to be put before it in any manner which the court will accept and accordingly the court may accept hearsay evidence. See R. v. Marquis (1951) 35 Cr. App. R. 33.1. In Gifford v. The King (1947) 49 W.A.L.R. 97, at p. 99.2, Dwyer C.J., pointed out that it is...