Mary Bomai Michael v The State (2004) SC737

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 01 April 2004
• Citation: (2004) SC737
• Docket Number: SCR 2 of 2003
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC737

Full Title: SCR 2 of 2003; Mary Bomai Michael v The State (2004) SC737

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 1 April 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Court accepting tender of defence medical evidence after close of case by defence—State's objection's over–ruled—Court placing reliance on matters raised in the report—Whether it was appropriate to accept medical report—Whether relying on it amounted to error of law.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Appeal against sentence—Murder—Sentence of 12 years—Sentence too lenient—Public Prosecutor not exercising right of appeal—S24 Supreme Court Act—O7 r26 Supreme Court Rules—Public Prosecutor not cross appealing—Warning that Court will increase sentence on appeals against sentence without merit and where sentence is too low—S23(4) Supreme Court Act—Notion of quantum leap or leaps and bounds considered.

3 CRIMINAL LAW—Murder—Plea of Not Guilty—Conviction after trial—Sentence of 12 years—Whether sentence too excessive.

4 Wanosa v R [1971–72] PNGLR 90, Norris v The State [1979] PNGLR 605, Ian Napoleon Setep v The State (2001) SC666, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, The State v Eddie Peter (No 2) (2001) N2297, The State v James Donald Keimou (2001) N2295, The State v Fabian Kenny (2002) N2237, The State v Vincent Malara (2002) N2188, The State v Max Charles (2001) N2187, The State v Damien Mangawi (2003) N2419, Pauline Painuk v The State (SCRA 54 of 2000) (Unreported and Unnumbered judgment dated 22 or 26 November 2000 or 2001), Max Java v The State (2002) SC701 referred to

___________________________

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCR 02 of 2003

BETWEEN

MARY BOMAI MICHAEL

Appellant

AND

THE STATE

Respondent

Mount Hagen: Sevua, Kandakasi, & Lenalia, JJ

2004 : 29th March & 1st April.

CRIMINAL LAW – PRACTICE & PROCEDURE – Court accepting tender of defence medical evidence after close of case by defence – State’s objection’s over-ruled – Court placing reliance on matters raised in the report – Whether it was appropriate to accept medical report – Whether relying on it amounted to error of law.

CRIMINAL LAW – PRACTICE & PROCEDURE – Appeal against sentence – Murder – Sentence of 12 years – Sentence too lenient – Public Prosecutor not exercising right of appeal – Section 24 Supreme Court Act – Order 7 Rule 26 Supreme Court Rules – Public Prosecutor not cross appealing – Warning that Court will increase sentence on appeals against sentence without merit and where sentence is too low – Section 23 (4) Supreme Court Act – Notion of quantum leap or leaps and bounds considered.

CRIMINAL LAW – Murder – Plea of Not Guilty – Conviction after trial – Sentence of 12 years – Whether sentence too excessive.

Cases cited.

Wanosa & Ors v. The Queen [1971-72] PNGLR 90

William Norris v. The State [1979] PNGLR 605

Ian Setep Napoleon v. The State, SC 666, unreported, 18th May 2000

The State v. Laura No 2; [1988-89] PNGLR 98

The State v. Eddie Peter (No 2); N2297, 12th October 2001

The State v. James Donald Keimou; N2295, 12th October 2001

The State v. Fabian Kenny; N2237, 16th May 2002

The State v. Vincent Malara; N2188, 20th February 2002

The State v. Max Charles, Tony Steven and Daudi Charles; N2187, 17th October 2001

The State v. Damien Mangawi; N2419, 13th June 2003

Pauline Painuk v. The State; (SCRA 54 of 2000) unnumbered and unreported, 26th November 2000

Max Java v. The State; SC 701, unreported, 20th December 2002

Lawrence Simbe v. The State; [1994] PNGLR 38

Counsels:

Appellant in person

J. Kesan for Respondent.

1st April 2004

BY THE COURT: This is an appeal by the appellant, Mary Bomai Michael, in person, against a decision of the National Court in Kundiawa on 20th November 2002.

The appellant, was indicted with one count of murder in respect of the killing of her husband, Michael Kama Murange, and pleaded not guilty, but was found guilty after a trial and convicted of the charge. She was then sentenced to 12 years imprisonment. Her appeal is against that sentence. The grounds of her appeal are:-

“1. The Court did not consider my submission.

2. My medical report was disregarded by the Court.

3. Sentence is too excessive.”

In her written submissions, the appellant said the Court failed to consider the fact that the deceased (Michael) had held a knife against her neck which demonstrated that the deceased wanted to kill her. Secondly, the Court failed to consider that her medical report showed three wounds inflicted by the deceased. Finally, she submitted that in imposing the sentence of 12 years, the Court did not take into account the injuries she had suffered at the hands of the deceased and that she has one child to rear. Furthermore that the Court only considered the State’s case.

Perhaps, at this juncture, we should reiterate the brief facts which are not really in dispute. What had transpired on the night of the killing was this. There was a quarrel between the deceased and the appellant inside their matrimonial home at Kumbu Kama Village near Kundiawa in Simbu Province. The appellant went and lied down on a bed. The deceased then got cold water and poured it over her. The appellant got up and cried over this incident then changed her clothes and went to the fire place and lit a fire. The deceased went over to her and held a knife against her neck, but did not cut her or injure her and returned to the bedroom. The appellant followed him, picked up a knife, stabbed the deceased with it and then escaped.

The Post Mortem Report of Dr. Kenneth Maima revealed that the deceased died of shock from severe pain caused by a penetrating wound to the abdomen which pierced the stomach. There is no doubt that the force used must have been so great to cause the kind of injury, which consequently led to death.

It is trite law that, the Supreme Court cannot readily disturb a sentence imposed by a trial Judge unless an appellant demonstrates that the sentence imposed is manifestly excessive. A sentence can be manifestly excessive where, for example, the trial Judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence: See Wanosa & Ors v. The Queen [1971-72] PNGLR 90. That means, this Court must be satisfied that the learned trial Judge fell into some demonstrable error, which has the effect of vitiating the trial Judge’s discretion on sentence before it can change a sentence of the National Court: See William Norris v. The State [1979] PNGLR 605 and Ian Setep Napoleon v. The State, SC 666, unreported, 18th May 2000.

The appellant had raised self-defence in the trial: however, the Court correctly ruled that it did not apply in this case. Therefore self-defence is not in issue in this appeal. It seems that the appellant is complaining about allegations of assaults and violence committed against her by the deceased; however, we consider that this is not the place nor the time to raise this issue. The appellant should have reported these incidents to the police, but did not therefore she cannot raise them in this Court. All she was able to say was that the Court did not take into account the scars or wounds on her body, which were caused by the deceased.

The trial in the National Court was one of those trials which the State tendered the statements of witnesses, record of interview and medical report then closed its case. The appellant did not testify on oath. Instead she gave an unsworn statement from the dock. After closing its case, the defence tendered the appellant’s medical report, which was actually admission records of treatments she received at the hospital, not medical report in its strict sense. The Court accepted the documents despite objections by the respondent. The trial Judge gave no legal basis for admitting this evidence particularly, after the close of the defence case. In addition, no reason was provided as to how this evidence could be admitted through the appellant, who was clearly not the author and there was no evidence in relation to their custody and production in Court. In the absence of any evidence to the contrary, this evidence was hearsay. In our view, the trial Judge fell into error when he did that. Not only that, he fell into further error when he made findings favorable to the appellant in his judgment on sentence based on the erroneously admitted evidence.

Furthermore, after erroneously allowing into evidence inadmissible evidence, he allowed his mind to be clouded, resulting in the kind of sentence he imposed. He took into account the alleged assaults and injuries by the deceased, without strict proof that the deceased had caused those injuries on the person of the appellant. In admitting this hearsay evidence, the trial Judge relied on it and consequently, he took into account matters that should not have been...