Gedai Kairi v The State (2006) SC831

• Jurisdiction: Papua New Guinea
• Date: 28 April 2006
• Citation: (2006) SC831
• Docket Number: SCRA No. 55 of 2004
• Court: Supreme Court
• Year: 2006

Full Title: SCRA No. 55 of 2004; Gedai Kairi v The State (2006) SC831

Supreme Court: Kapi,CJ., Kandakasi, and Gabi, JJ.

Judgment Delivered: 28 April 2006

1 APPEALS—PRACTICE & PROCEDURE—Power of the Supreme Court on appeal—Failure of trial judge to raise possible defence with appellant—Appropriate to remit the matter back to the trial court for retrial before different judge.

2 CRIMINAL LAW—Guilty plea by accused—Accused raising defence known to law during his allocutus—Trial judge failing to properly raise the issue with the accused—Effect of—Guilty plea and conviction a nullity—Retrial appropriate remedy - Retrial ordered.

3 Papua New Guinea Cases Cited: The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR, Dinge Damane v. The State [1991] PNGLR 244, Martin Ferry v. The State SCA (Unreported and unnumbered) SCRA 64 of 2000 (November 2000), The State v Joe Butema Arua (28/03/01) N2076, The State v James Gurave Guba (2000) N2020

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By the Court:

This appeal arises out of a decision of Mogish J in the National Court delivered on 18th June 2004. Following a guilty plea to manslaughter, His Honour convicted the appellant of the charge and sentenced her to 8 years in hard labour less the time she spent in custody of 9 months and two weeks waiting for her trial.

Grounds of Appeal

The appellant advances the following grounds of appeal:

“(a) The plea of guilty was wrongly entered by my lawyers at the trial;

(b) That injustice was caused when the learned trial judge failed to determine the exact cause of death of the deceased (my late husband), and influenced by the plea of guilty presumed the outcome of the case thereby resulting in my conviction.

(c) For the reason stated in paragraph (b), I claim that my conviction was against the weight of the evidence my lawyers submitted, especially the medical evidence of Dr. Philip Golpak.

(d) The learned trial judge erred in law and fact in not examining all of the evidence exhaustively.

(e) The learned trial judge erred in law in not considering all of the defenses available to me at law to dispense culpability.

(f) On sentence, I claim that the sentence is excessive and is otherwise harsh and oppressive in that the learned trial judge failed to consider relevant matters and circumstances in my case.”

Grounds (a) to (e) concern the safeness of the appellant’s conviction, whilst the remaining ground concerns sentence. The respondent argues that the learned trial judge did not make any of the errors alleged. This therefore raises the following issues for us to determine:

1. Did the evidence placed before the learned trial judge disclosed a legal defence available to the appellant?

2. If the answer to the above question is in the affirmative, then did the learned trial judge err in recording the conviction against the appellant? and

3. Was the sentence of 8 years less time already spent in custody excessive?

The first two issues concern the correctness of the learned trial judge accepting the guilty plea and recording a conviction against the appellant. These can be dealt together as one. Then depending on the outcome of those issues, the third issue may be addressed. Before addressing these issues however, it is necessary to turn to the relevant facts and the background to this appeal for a proper understanding and determination of the issues presented. Accordingly, we turn to these aspects first starting with the relevant facts.

Relevant Facts

The charge...