Janet Dolo v The State

• Jurisdiction: Papua New Guinea
• Judge: Batari J,Bona J,Numapo J
• Judgment Date: 22 February 2023
• Neutral Citation: SC2513
• Citation: SC2513, 2023-02-22
• Counsel: Ms Fionna Kulala, for the Applicant,Mr David Kuvi, for the Respondent
• Docket Number: SC REV NO.28 OF 2022
• Hearing Date: 13 December 2022,22 February 2023
• Court: Supreme Court

SC2513

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO.28 OF 2022

Review Pursuant to Constitution, Section 155(2)(b)

Between:

Janet Dolo

Applicant

v.

The State

Respondent

Waigani: Batari J, Bona J, & Numapo J

2022: 13^th December

2023: 22^nd February

CRIMINAL LAW — manslaughter sentence — application for review of — 10 year sentence — plea — Constitution s 155(2)(b) — judicial review principles — whether criteria for judicial review satisfied — Criminal Code, s 302 — head sentence of 10 years — conditions for judicial review not satisfied — application for review refused — sentence of 10 years affirmed.

Cases Cited:

Avia Aihi v The State (2) [1981] PNGLR 81

Ben Wafia v The State (2006) SC581

Camillus Parang v The State (2010) SC1068

Danny Sunu v. The State [1984] PNGLR 305

Manu Kovi v The State (2005) SC789

Mark Bob v The State (2005) SC808

Michael Mikoro v The State (2015) SC1424)

Morea v The State (2020) SC1957

Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

William Norris v The State [1979] PNGLR 605

Counsel:

Ms Fionna Kulala, for the Applicant

Mr David Kuvi, for the Respondent

Public Solicitor: Lawyers for the Applicant

Public Prosecutor: Lawyers for the Respondent

22^nd February 2023

1. BY THE COURT: On 20 August 2021, the National Court at Waigani convicted and sentenced the applicant, Janet Dolo to 10 years of manslaughter pursuant to s 302 of the Criminal Code. This is an application for judicial review of the sentence, the applicant having lost her right to appeal under Sections 22 (d) and 29 (1) of the Supreme Court Act.

2. On 2 May 2022, Janet Dolo lodged her application for leave to review under Constitution s. 155 (2) (b). Leave was granted on 16 August 2022: Avia Aihi v The State (2) [1981] PNGLR 81. Section s. 155 (2) (b) reads:

“(2) The Supreme Court –

(b) has an inherent power to review all judicial acts of the National Court;”

3. In brief, the applicant and the deceased Serah Kende were married to the same man, Nayson Kambe. On the morning of 2 March 2022, at 8 Mile roundabout on Hubert Murray Highway, National Capital District, the two women had an argument. The altercation developed into a physical fight between the two, during which Serah hit Janet on the head with a stone, drawing blood. Janet crossed the road to get away, but Serah pursued after her. When Serah caught up with Janet, Janet drew a small knife and stabbed Serah near her neck, just above the right collar bone, penetrating downwards so that the knife punctured her lung. Serah was rushed to Port General Hospital but was pronounced dead upon arrival.

4. The applicant appeared before the National Court on 5 June 2021 where she was convicted of the charge of manslaughter upon pleading guilty. On 20 August 2021, the primary court imposed a 10-year imprisonment term in hard labour, less time in custody of 5 months 18 days and suspended two years, leaving the balance of 6 years, 6 months, 12 days to be served in custody.

5. The Application for Leave to Review contained broad grounds for review of sentence. It generally ascribed to the applicant's desire for this Court to revisit her sentence for various reasons contained in the statement annexed to the Application form. The grounds included inter alia, assertions that the primary judge failed to consider on sentence, the lack of intention to kill.

6. The applicant's application is purportedly superseded by a subsequent Application for Review filed by the Public Solicitor on 22 August 2022. We say, ‘purportedly’ for reasons that follow. The new grounds are that:

a. The trial judge erred in law in his (her) sentencing discretion by not taking into consideration the strong mitigating and extenuating circumstances of the applicant's case.

b. The trial judge erred by imposing an unfair sentence considering the fact that there is presence of de facto provocation by the deceased and that the killing occurred following an argument between the deceased and the applicant who are both married to the same man.

7. We pause here to interpose, with respect, the involvement of the Office of Public Solicitor in this review application as was raised with counsel Ms Kulala during the hearing. The Public Solicitor filed the fresh application for review following grant of leave. This is most unusual and inappropriate. The intervention by the Public Solicitor after the grant of leave raises the question of procedural correctness and tenability in rescoping the grounds for review.

8. The action epitomises what we consider to be the growing tendency of filing added or fresh grounds for judicial review post the grant of leave. This is an abuse of the court process, it is in direct conflict with settled principles governing grant of leave, one of the determining considerations being whether there are “cogent and convincing” reasons amounting to clear legal grounds which would merit a review of the decision of the primary court. The applicant must also show a reasonable explanation for allowing the statutory right to appeal to lapse without exercising the right to appeal: Avia Aihi v The State; Danny Sunu v. The State [1984] PNGLR 305. We will return to the aspect of applications for leave to review, in the latter part of this judgment.

9. Suffice to caution at this juncture, this serious procedural flaw is sufficient basis to dismiss the application for judicial review at the outset. The proper process is for the applicant or his lawyer to file a supplementary application for review, expounding on the grounds in the initial application for leave and the grounds in support of application for judicial review and must specifically state so in the application. Failing that, the applicant ought to apply for leave to amend or add fresh grounds for review, following the grant of leave.

10. Be that as it may, there is no affidavit before this court explaining why the grant of legal aid was belated and why the applicant should be heard on the belated grounds for review. With respect, such casual approach is tantamount to flouting observances of settled principles of law and practice, it is detriment to the applicant.

11. With respect, it also calls into question, the Public Solicitor's independent discharge of his constitutional functions in respect of representation of accused persons at the trial court. The question of legal aid by advice, or assistance, or representation, is a matter that is settled or ought to have been resolved immediately following a conviction and sentence. Counsel would have then, considered the strength and weakness of the decision and determine whether to appeal the decision and advise the prisoner as appropriate.

12. When legal aid is belatedly granted as in this case, it unfortunately demonstrates the growing tendency for the Office of the Public Solicitor to ‘jump on the bandwagon’ of judicial review cases by prisoners without taking the stand to decide the merits or demerits of the case before deciding to extend legal aid. This propensity can lead to undesirable dilution and erosion of the constitutional...