Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code (2020) SC1999

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Kirriwom J, Batari J, Mogish J, Cannings J
• Judgment Date: 15 September 2020
• Citation: (2020) SC1999
• Docket Number: SC REF NO 5 OF 2018
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1999

Full Title: SC REF NO 5 OF 2018; Reference by the Principal Legal Adviser Pursuant to Section 26 of the Supreme Court Act, Re Section 539 of the Criminal Code (2020) SC1999

Supreme Court: Salika CJ, Kirriwom J, Batari J, Mogish J, Cannings J

Judgment Delivered: 15 September 2020

SC1999

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 5 OF 2018

REFERENCE BY THE PRINCIPAL LEGAL ADVISER

PURSUANT TO SECTION 26 OF THE SUPREME COURT ACT

RE SECTION 539 OF THE CRIMINAL CODE

Waigani: Salika CJ, Kirriwom J,

Batari J, Mogish J, Cannings J

2020: 25th June, 15th September

CRIMINAL LAW – indictments – alternative verdicts – whether an accused charged on an indictment with wilful murder can be convicted of murder or manslaughter if there is no alternative charge on indictment – Criminal Code, s 539.

The Principal Legal Adviser referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which an accused, charged with wilful murder, was entirely acquitted despite the Court finding that he had killed the deceased unlawfully with an intention to cause grievous bodily harm, thus being satisfied of proof of the elements of the offence of murder. The trial judge held that the indictment had to contain an alternative charge of murder or manslaughter before an alternative verdict could be entered, and because the indictment did not contain any alternative charge the accused was entitled to be entirely acquitted. The point of law referred to the Supreme Court was whether it is necessary, in order for the Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder.

Held:

(1) If the only charge on an indictment is wilful murder and, after trial, all elements of that offence are not proven, s 539 of the Criminal Code allows the Court, if satisfied of the elements, to enter a conviction for an alternative offence of murder, manslaughter, unlawful grievous bodily harm, unlawful assault doing bodily harm, unlawful wounding or unlawful assault.

(2) It is not necessary, for the Court to convict an accused of a lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder, murder or manslaughter.

(3) If the only charge on an indictment is wilful murder and at the close of the State’s case, a no-case submission is made and there is no evidence of an intention to kill, the Court is not obliged to entirely acquit the accused, but may, consistently with s 539 of the Criminal Code, order the trial to proceed and, if satisfied of the elements, enter a conviction for an alternative offence of murder, manslaughter, unlawful grievous bodily harm, unlawful assault doing bodily harm, unlawful wounding or unlawful assault.

(4) The point of law referred to the Supreme Court was resolved in the negative by interpretation and application of s 539 of the Criminal Code and it was unnecessary to consider other provisions of the Code including s 542.

Cases Cited

The following cases are cited in the judgment:

Christopher Kutau v The State (2007) SC927

Java Johnson Beraro v The State [1988–89] PNGLR 562

Laurie Kemuel & Kopol Kepao v The State (2016) SC1640

Obed Jelis v The State (2012) SC1184

The State v Albert Monja (1987) N632

The State v Anslem Pasika (2005) N3166

The State v Bond Nanal (2009) N3597

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Henry Judah Les (2005) N2950

The State v Kikia Solowet (2007) N3154

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Peter Bobo (No 2) (2007) N3263

The State v Roka Pep (No 2) [1983] PNGLR 287

The State v Ronald Madio (2012) N5190

The State v Samuel Kawar (2011) N4234

The State v Theo Yasause (2012) N4871

The State v Wilson Mari (2011) N4359

REFERENCE

This was a reference by the Principal Legal Adviser under s 26 of the Supreme Court Act of a point of law arising from a case in which a person tried on indictment was acquitted.

Counsel

T Tanuvasa, for the Principal Legal Adviser

P Kaluwin & H Roalakona, for the Public Prosecutor

L B Mamu, for the Public Solicitor

15th September, 2020

1. BY THE COURT: The Principal Legal Adviser and Attorney-General, the Honourable Davis Steven MP, has referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which an accused, charged with wilful murder, was entirely acquitted despite the Court finding that he had killed the deceased unlawfully with an intention to cause grievous bodily harm, thus being satisfied of proof of the elements of the offence of murder.

2. The trial judge held that the indictment had to contain an alternative charge of murder or manslaughter before an alternative verdict could be entered and, because the indictment did not contain any alternative charge, the accused was entitled to an acquittal.

3. The point of law referred to this Court is whether it is necessary, in order for the National Court to enter a conviction for murder or some lesser offence, for an alternative charge to be included on an indictment that charges an accused with wilful murder.

4. In raising that point of law the Principal Legal Adviser has posed two questions:

(a) Is the State Prosecutor required to plead an alternative charge of murder or manslaughter on a charge of wilful murder on an indictment?

(b) What is the effect of s 539 and s 542 of the Criminal Code on an indictment that does not plead an alternative homicide charge?

LAW

5. We first set out s 26 of the Supreme Court Act, which confers jurisdiction on this Court to give its opinion on the point of law that has been referred. Then, to resolve the issues raised by the reference we set out the provisions of the Criminal Code that create the offence of wilful murder (s 299) and the less serious offences of murder (s 300) and manslaughter (s 301). Then we set out the two provisions of the Code specifically referred to in the reference, ss 539 and 542.

6. Section 26 (reference of point of law following acquittal on indictment) of the Supreme Court Act states:

(1) Where a person tried on indictment has been acquitted whether in respect of the whole or part of the indictment and the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law that has arisen in the case—

(a) the Principal Legal Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court; and

(b) the Court shall, in accordance with this section, consider the point and give its opinion on it.

(2) For the purpose of its consideration of a point referred to it under this section, the Supreme Court shall hear argument—

(a) by, or by counsel on behalf of, the Principal Legal Adviser; and

(b) if the acquitted person desires to present any argument to the Court, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself; and

(c) by, or by counsel on behalf of—

(i) the Public Prosecutor; and

(ii) the State Solicitor[semble Public Solicitor was intended],

or either of them, if they desire to present any argument to the Court.

(3) No report of proceedings under this section shall be published that discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.

(4) Any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.

(5) A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.

7. Section 299 (wilful murder) of the Criminal Code states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

8. Section 300 (murder) of the Criminal Code states:

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph...