State v Kai Joip Dipa (2007) SC868

• Jurisdiction: Papua New Guinea
• Date: 31 August 2007
• Citation: (2007) SC868
• Docket Number: SCR 03 OF 2007
• Court: Supreme Court
• Year: 2007

Full Title: SCR 03 OF 2007; State v Kai Joip Dipa (2007) SC868

Supreme Court: Sakora, Kirriwom and Lay JJ

Judgment Delivered: 31 August 2007

CRIMINAL LAW—Criminal Code - s.315 grievous bodily harm with intent - whether conviction safe - whether defence raised on allocutus.

APPLICATION FOR REVIEW - whether case of exceptional gravity - whether manifest injustice.

PNG Cases Cited

Avia Aihi v The State (No.1) [1981] PNGLR 81; John Beng v The State [1976] PNGLR 115; R v Kaiwor Ba [1975] PNGLR; Gabriel Laku v The State [1981 ] PNGLR 350; Gedai Kairi v The State (2006) SC831; Charles Bougapa Ombusu v The State [1997] PNGLR 699; Oscar Tugein v Michael Gotaha [1984] PNGLR 137;

Overseas Cases Cited

R v Muratovic [1967] Qd R 15;

References

Criminal Code

Facts

The applicant applies for leave to review his conviction and sentence. On a plea of guilty the applicant was convicted of doing grievous bodily harm with intent to do grievous bodily harm contrary to s315 of the Criminal Code. On his allocutus the applicant said that he was about to be chopped off by an axe, he took the axe and chopped his attacker. His record of interview with the police shows that he made the same claim to the police, that he was not the first to attack. Counsel did not raise and the court did not raise with counsel the possibility that this could disclose a defence of provocation or self-defence or both.

Held

1. the hearing took a wrong course when the trial Judge did not raise with counsel that the statement on allocutus and the record of interview disclosed the possibility of defences;

2. there has been a miscarriage of justice, leave to review should be granted;

3. the conviction and sentence should be set aside and a new trial ordered.

___________________________

DECISION ON APPLICATION FOR LEAVE FOR REVIEW

1. BY THE COURT: On a plea of guilty the applicant was convicted on 16 November, 2006 at Mount Hagen for unlawfully doing grievous bodily harm with intent contrary to s315 (1) (a) and (d) and sentenced to nine years in hard labour.

2. The applicant filed this application for review on 26...