Daniel Ronald Walus v The State (2007) SC882

• Jurisdiction: Papua New Guinea
• Date: 23 February 2007
• Citation: (2007) SC882
• Docket Number: SCR 32 OF 2005
• Court: Supreme Court
• Year: 2007

Full Title: SCR 32 OF 2005; Daniel Ronald Walus v The State (2007) SC882

Supreme Court: Sevua, Kandakasi & Manuhu, JJ

Judgment Delivered: 23 February 2007

PRACTICE & PROCEDURE – Appeals – Leave to withdraw – Objected to conditional on Supreme Court correcting apparent error on the face of the record – No provision in the Rules governing withdrawal of appeals – Court has power under s155 (4) of the Constitution to devise appropriate remedy – Merits of objection considered – Objection meritorious – Apparent error on the face of the record - Court has power to correct apparent error before allowing withdrawal of appeal – Apparent errors corrected and Appellant granted leave to withdraw - s155(4) of the Constitution – s4 to s12 and s20 – s32 Supreme Court Act (

Ch. 37) – s19 (1) (6), (9), s26, s527 of Criminal Code – s4 Criminal Justice (Sentencing) Act 1986 – s17 to s21 of Parole Act 1991 - O8 r6 of the Supreme Court Rules.

PRACTICE & PROCEDURE – Suspension of sentence – A trial judge has power to suspend part of an offender’s sentence - The Court required and consider a pre-sentence report – If pre-sentence reports supports suspension on then should the Court suspend part of the sentence - Where suspension is warranted the Court must exercise the power to do so at the time of the pronouncement of sentence and not at a later time – The Court must clearly state the sentence imposed, any suspension and deduction and the term to be served at the time of pronouncing the sentence - Once the Court has pronounced sentence it becomes functus officio - s19 of Criminal Code - s4 of the Criminal Justice (Sentences) Act 1986.

Cases cited:

R v Abia Tambule [1974] PNGLR 250; Acting Public Prosecutor v John Airi (1981) SC214; Public Prosecutor v Thomas Vola [1981] PNGLR 412; Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government 2006 SC844; James Pangnan and Patrick Ponat v The State SCRA 39 & 54 OF 2004, judgment delivered on 30th August 2006

1. BY THE COURT: You lodged an appeal against a judgment of the National Court (per Cannings J.) delivered in Kimbe on 25 February 2005, imposing a sentence of 18 years in hard labour on your guilty plea to a charge of unlawfully killing your wife’ s cousin sister. This Court convened and started to hear your appeal on 30 August 2006. In the course of the hearing, you applied for leave of the Court to withdraw your appeal. The State opposed that application pointing out that there was an apparent error on the face of the judgment which must be corrected before you can be allowed to withdraw your appeal. In taking that position, the State pointed to the following part of the judgment:

“1 Daniel Ronald Walus, having been convicted of the crime of unlawful killing, is sentence to 18 years imprisonment in hard labour, 10 years of which must be served and the balance of 8 years may be suspended by order of the National Court if and when an application for suspension is granted.

“2 For the avoidance of doubt:

(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; …”

2. The State pointed out that, the learned trial judge acted ultra vires his sentencing powers, and in particular Section 19 of the Criminal Code.

i Chapter. N0. 262.

i1 Mr. Kaluwin of the Public Solicitor’s Office in Kokopo, who appeared as a friend of the Court on the Court’s invitation, agreed with counsel for the State that, there was an apparent error on the face of the judgment. He then drew the Court’s attention to Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986

Relevant Issues

3. This presents three (3) issues for this Court to determine. The first is, whether this Court has the power to allow you to withdraw your appeal. The second issue is, if the answer to the first issue is in the affirmative, can this court allow you to withdraw your appeal in the face of a suggestion that, there is an apparent error on the face of judgment, the subject of your appeal. The third issue is, whether there is in fact an apparent error on the face of the judgment and whether, this Court should correct it before granting you leave to withdraw your appeal.

Power to Allow Withdrawal of Appeals

4. Turning first to the first issue, we note that, there is no dispute that, this Court has an “inherent power” under s155 (2) (b) of the Constitution, “to review all judicial acts of the National Court”. That power is usually exercised by this Court on appeal or review by a person aggrieved by a decision of the National Court. Appeals to this Court are governed by the Supreme Court Act, [Chapter 37] particularly s 4 to s12 and s20 to s32. s6 of the Act makes it clear that “an appeal … is by way of rehearing on the evidence given in” the National Court “subject to” this Court’s power to “allow fresh evidence … and to draw inferences of facts.” On hearing of an appeal this Court “has all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court.” In most appeal cases, this Court has either affirmed the decision and or orders of the National Court appealed against or, has quashed and set them aside and substituted them with its own. A recent example of that happening is the decision delivered by this Court in the case of James Pangan and Patrick Ponat v. The State.[SCRA 39 & 54 OF 2004, judgment delivered on 30th August 2006, per Sevua, Kandakasi and Manuhu JJ.] This has happened particularly in cases where the National Court has fallen into identifiable error resulting in a miscarriage of justice and therefore, warranting correction by this Court.

5. In your case, you applied to this Court to withdraw your appeal as this court started to hear your appeal. There is no provision...