Kohu Morea v The State (2020) SC1957

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, Makail & Neill JJ
• Judgment Date: 12 May 2020
• Citation: (2020) SC1957
• Docket Number: SCREV 79 of 2017
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1957

Full Title: SCREV 79 of 2017; Kohu Morea v The State (2020) SC1957

Supreme Court: Gavara-Nanu, Makail & Neill JJ

Judgment Delivered: 12 May 2020

SC1957

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

SCREV 79 OF 2017

BETWEEN:

KOHU MOREA

Appellant

AND:

THE STATE

Respondent

Waigani: Gavara-Nanu, Makail & Neill JJ

2019: 27th June

2020: 12th May

APPLICATION FOR REVIEW – Review of conviction – Leave to review sought at hearing – Reasonable explanation for delay – Proposed grounds demonstrate arguable case – No prejudice caused – Leave granted – Constitution – Section 155(2)(b)

APPLICATION FOR REVIEW – Review of conviction – Procedural fairness – Full protection of the law – Original charge of murder changed to a charge of manslaughter – Convicted on an alternative charge of unlawful grievous bodily harm – Claim of denial of fair trial – Whether justice miscarried – Constitution – Section 37 – Criminal Code – Section 319

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s.155(2) (b) – Accused - Charge – Unlawful killing – Criminal Code; s. 302 – Plea of not guilty – Trial – Not guilty of unlawful killing - Guilty of unlawfully doing grievous bodily harm – Sentence – 7 years imprisonment.

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s. 155(2) (b) – Accused - Charge - Indictable offence – Right to bail - Bail Act; ss. 15, 17, 18 and 21 – Conditions of bail – Grounds to revoke bail.

APPLICATION FOR REVIEW – Practice & Procedure - Constitution; s. 155 (2) (b) – Accused - Charge - Indictable offence – Trial – Basic and fundamental rights - Right to a fair trial – Procedural fairness - Constitution, ss. 37 and 142 (2), - Right to choose a lawyer – Right to call witnesses – Right to cross-examine – Natural justice – Exercise of power by the primary judge.

APPLICATION FOR REVIEW – Practice & Procedure – Constitution; s. 155 (2) (b) – Offence charged – Manslaughter – Not guilty of offence charged – Guilty of a lesser offence of unlawfully doing grievous bodily harm.

APPLICATION FOR REVIEW – Practice & Procedure – Sentence – Maximum penalty – Sentencing tariffs for manslaughter applied to determine sentence.

Cases Cited:

Papua New Guinea Cases

Application by Anderson Agiru [2002] PGSC 23; SC686

Application by Ludwig Patrick Schulz (1998) SC572

Avei v. Maino [2000] PNGLR 157

Avia Aihi v. The State (No.I) [1981] PNGLR 81

Avia Aihi (No.2) [1982] PNGLR 44

Avia Aihi v. The State (No.3) [1982] PNGLR 92

Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342

Hen Kuru v. Was Kombra (1981 (N292 (L)

Independent State of Papua New Guinea v. Kofowei [1987] PNGLR 5

John Tolna & Ors v. Paul Ari [1980] PNGLR 23

Joseph Maruk [1980] PNGLR 507

Kawaso Ltd v. Oil Search PNG Ltd (2012) SC1218

Kayo v. Pawa (2015) SC1469

Kereyal v. Police Commissioner (1966) N1437

Kitogara Holdings v. NCDC [1988] PNGLR 346

Laurie Kemuel & Kopol Kepao (2016) SC1640

Lae Bottling Industries Ltd v. Lae Rental Homes Ltd [2011] PGSC 22; SC1120

Les Curlewis v. David Yuapa (2013) SC1274

Manu Kovi v. The State (2005) SC789

Michael Newell Wilson v. Clement Kuburam (2016) SC1489

Ombudsman Commission v. Yama (2004) SC747

Paia Lifi v. Phillip Dege (1981) N291 (M)

Premdas v. The State [1979] PNGLR 329

Public Prosecutor v. Konis Haha [1979] PNGLR 205

Public Prosecutor v. Tardew [1986] PNGLR 91

Raumai No. 18 Limited v. Country Motors Limited & Ors (2018) N7952

Re Michael Thomas Somare [1981] PNGLR 265

Re: Section 365 of the Income Tax Act; Reference by the Principal Legal Adviser SCR482

Steven Loke Ume v. The State (2006) SC836

The State v. Mogo Wonom [1975] PNGLR 311

The State v. Transferees (2015) SC1451

The State v. Kofowei [1987] PNGLR 5

The State v. Mana Turi [1986] PNGLR 221

University of Papua New Guinea v. Ume More & Ors [1985] PNGLR 48

Ure Hane v. The State [1984] PNGLR 105

William Norris v. The State [1979] PNGLR 605

Overseas Cases:

Air Marshall McCormack and Anor v. Vance [2008] ACTCA 16

General Electrics Co. Ltd v. Price Commission [1975] ICR 1

House v. The King (1936) 56 CLR 499

Jones v. National Coal Board [1957] 2 QBD 55

Counsel:

Z. Gelu, for the Appellant

D. Mark, for the Respondent

12th May 2020

1. GAVARA- NANU J: Before the Court is an application by the appellant (applicant) made pursuant to s. 155 (2) (b) of the Constitution seeking review of his conviction by the National Court in its sittings at Kwikila on 2 March, 2017. The applicant was convicted of unlawfully doing grievous bodily harm to one Rei Kohu on 8 November, 2015 at Boera village in the Hiri West, contrary to s. 319 of the Criminal Code.

2. The applicant was charged with unlawfully killing (manslaughter) Rei Kohu contrary to s. 302 of the Criminal Code. He was tried on the charge after he pleaded not guilty. He was found not guilty of manslaughter but guilty of unlawfully doing grievous bodily harm to Rei Kohu under s. 319 of the Criminal Code, which carries the maximum penalty of 7 years imprisonment. The applicant was sentenced to 7 years imprisonment.

3. Section 302 of the Criminal Code creates the offence of manslaughter. The prescribed maximum penalty for this offence subject to s. 19 is life imprisonment.

4. Section 319 of the Criminal Code creates the offence of unlawfully doing grievous bodily harm. The prescribed maximum penalty for this offence subject to s.19 is seven years imprisonment.

5. The applicant needs to obtain leave before he can have his conviction reviewed. Thus, it is convenient to address the issue of leave at this juncture. Whilst the applicant has the right to invoke s. 155 (2) (b) of the Constitution for his review, leave is a discretionary matter and it is entirely up to the Court whether to grant him leave or not. However, the discretion to be exercised by the Court being judicial in nature, it must be exercised judicially and on proper principles. See, Avei v. Maino [2000] PNGLR 157 and Application of Ludwig Patrick Schulz (1998) SC572. That said, the need for the Court to exercise its discretion is not a caveat to the exercise Court’s inherent supervisory power to review, if there is a clear manifestation of injustice and where there is an arguable case on the merits. See, Avia Aihi v. The State [1981] PNGLR 81. The Court’s discretion in this regard is unfettered. The onus is on the applicant to show convincing reasons to invoke the Court’s review jurisdiction. See, Avia Aihi v. The State (No. 2) [1982] PNGLR 44 at 45. The applicant must show among others that he had lost his right to appeal or leave to appeal. This is a condition precedent to a review under s. 155 (2) (b) of the Constitution. See, Application by Anderson Agiru [2002] PGSC 23; SC 686 and Avia Aihi (No.2) (supra).

6. If there is delay in making an application, the applicant must have a reasonable explanation. The Court’s power being plenary with its unfettered discretion, the Court may still grant leave even where delay is inordinate, if it is in the interest of justice to do so and if there are exceptional circumstances of special gravity and where there is a clear manifestation of injustice. See, Lae Bottling Industries Ltd v. Lae Rental Homes Ltd [2011] PGSC 22; SC1120. In that case, although delay was about two years, leave was granted because the Court found that the decision of the National Court affected the applicant’s interests directly. He was not served with the court documents, and he became aware of the decision much later after the decision was delivered. In Avia Aihi (No. 2) (supra), in which I had the misfortune of representing the State, the Supreme Court by a majority of 3 to 2 held that, in spite of the initial fourteen months delay in applying for leave to appeal her conviction in Avia Aihi (No.1) (supra), which the Supreme Court dismissed, then more periods of delay to apply for review under s. 155 (2) (b), it had inherent power under s. 155 (4) of the Constitution to grant leave, given that there was a clear manifestation of injustice in the decision of the primary court in that wrong principles of law were applied in sentencing the applicant to life imprisonment. The court said there was an arguable case on the merits.

7. The fundamental difference between this application and the application in Avia Aihi (No.2) is that this application is by the applicant in person. This type of application is known as prisoner appeal or review because the prisoners themselves file the reviews or appeals, as the case may be. In Avia Aihi (No.2) (supra), her lawyers were involved from the beginning starting with Avia Aihi (No. 1) (supra). In both cases her lawyers were fully involved and were responsible for the procedural irregularities relating to the filing of documents and wrong laws being applied and invoked. These mistakes were made by the lawyers not by the applicant, but eventually when those irregularities were corrected, the Court said, notwithstanding the long period delay, it was in the interest of justice to grant leave.

8. In prisoner appeals and reviews as in this case,...