Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani JJ
• Judgment Date: 19 May 2006
• Court: Supreme Court
• Citation: (2006) SC836
• Docket Number: SCRA 10 of 1997
• Year: 2006
• Judgement Number: SC836

Full Title: SCRA 10 of 1997; Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State

Supreme Court: Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani JJ

Judgment Delivered: 19 May 2006

SC 836

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 10 OF 1997

BETWEEN:

STEVEN LOKE UME, CHARLES PATRICK KAONA & GREG WAWA KAVOA

Appellants

AND:

THE STATE

Respondent

Waigani : Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani JJ

2006 : 19 May

CRIMINAL LAW – Sentence – Death penalty – Willful murder –Not mandatory – Discretionary - Principles – Types of cases which warrant the death penalty – Criminal Code Act (Ch. No. 262), s.19(1)(aa), s.299(2).

CRIMINAL LAW- Sentence – Appeal - Against death penalty for willful murder – Pay-back killing of innocent woman by group of men – Error in exercise of sentencing discretion occurred – Appeal allowed – Sentence quashed and substituted with imprisonment for life.

PNG Cases Cited:

Hure Hane v The State [1984] PNGLR 605.

Jim Kas v The State (1999) SC 772.

John Elipa Kalabus v The State [1988] PNGLR 193

Manu Kovi v The State (2005) SC 789.

Mark Nainas v The State [1998] PNGLR 2008.

Pake Kik v The State (1996) SC 511.

Public Prosecutor v Apava Keru & Aia Moroi [1985] PNGLR 78.

Regina v Peter Ivoro [1971 - 72] PNGLR 374.

Reginal v Bulda Melin & Ors [1973] PNGLR 278.

The State v Blasius Bana (2004) N2863

The State v Yapes Paege & Relya Tanda [1994] PNGLR 65.

Tony Imuno Api v The State (2001) Unreported Supreme Court Judgment in SCRA 15 of 2001.

William Norris v The State [1979] PNGLR 605.

Overseas Cases Cited:

Bachan Singh v The State of Punjab (1979) 3 SCC 727

Cornelius v The King (1935) 155 CLR 235.

Furman v Georgia 408 US 238.

Green v The King (1938) 61 CLR 171.

Lavis v Attorney General of Jamaica [2001] 2 AC 50.

O’Leary v The King (1946) CLR 566.

Profitt v Florida 428 US 249.

R v Lee (1950) 82 CLR 133.

R v Ryan and Walker [1966] VR 553.

Reyes v The Queen [2002] 2 AC 235

Ross v The King (1934) 30 CLR 246.

Sandra Lockett v Ohio 438 US 587.

Stuart v The Queen (1959) CLR 1.

Tukiar v The King (1934) CLR 335.

Constitutional provisions cited in the judgment:

Constitution; s.35(1)(a), s.36(2).

PNG Legislations Cited:

Criminal Code Act (Ch. No. 262), s.1, s.19 (1)(aa),s.21A, s.37, s.81, s.82 & s.299(2).

Overseas Legislations Cited:

Murder (Abolition of Death Penalty) Act 1965 (UK).

Ohio Revised Code Ann (1975), s.2929.04, (USA).

Texts & Articles Cited:

Kirby J, “The High Court and the death penalty: Looking back, looking forward, looking around”, (2003) 77 Australian Law Journal 811.

Counsel

N Kubak, for the Appellants

S Soi, for the Respondent

19 May 2006

1. BY THE COURT: This is an appeal against the death penalty for willful murder imposed on each appellant by the National Court at Kimbe on 7 February 1997. In their original Notice of Appeal filed on 11 February 1997, the Appellants appealed against both conviction and sentence. In their Supplementary Notice of Appeal filed on 23 July 1997, the Appellants

appealed against conviction only. On 4 May 2000, the Supreme Court bench comprising of Amet CJ, Kapi Dep. CJ (as he then was) and Sevua J, dismissed their appeals against conviction. The appeal against sentence under the original notice of appeal could not proceed before that bench because it was not clear from the supplementary notice of appeal whether the Appellants abandoned their ground of appeal against sentence. That issue has been now clarified. The Respondent concedes the appeal against sentence is still on foot.

Leave to Appeal

2. We heard this appeal and reserved our decision. Whilst preparing our judgment, it came to our attention that the issue of leave to appeal against sentence was still outstanding. As this point was not argued before us, we re-called the matter for this issue to be argued. On 30 August 2005, upon hearing submissions from both counsels, it was clear that the Appellants in fact sought leave to appeal against sentence in their original Notice of Appeal. In Jim Kas v The State (1999) SC 772, the Supreme Court by majority decision decided that leave was not required to appeal against sentence and went on to invalidate s.22 (d) of the Supreme Court Act which required leave. That decision does not apply to the present appeal because it was filed before that decision. There is no dispute that the application for leave in this appeal is still on foot. There is also no dispute that leave ought to be granted because the appeal raises important and arguable issues as to the trial judge’s exercise of sentencing discretion which has been argued before us. For this reason, we grant leave to appeal against sentence.

Facts

3. The brief facts are that on 2 December 1995, there was a confrontation amongst the village people at Pagalau Village. In that confrontation, one Patrick Reu was killed. The people suspected one Francis Reu killed him and decided to avenge Patrick’s death. A search was conducted by the village people to find Francis and kill him. The Appellants were amongst a group of nine (9) men who set out to search for Francis. They went to his house but did not find him there. Instead they found his mother there, the late Agnes Banovo. They asked her where Francis was. When she could not tell them, they abducted her and “brutally assaulted her by raping her and then … chopped her so viciously that she died.” State witnesses identified the Appellants were amongst the group of nine (9) men who attacked and killed her.

4. The trial judge found the killing to be of the worst type of willful murder and sentenced each appellant to death.

5. The Appellants’ counsel Mr. Kubak raised ten (10) points which he submits constitute identifiable errors on the part of the trial judge, such that the sentence should be quashed and a term of years imposed. The Respondent’s Counsel Mr. Soi contests each point and submits the trial judge did not err and that the appeal should be dismissed.

The Death penalty and the Constitution

6. Before we deal with the submissions, we should say at the outset that the constitutional validity of the death penalty for wilful murder prescribed by s.299 (2) of the Criminal Code Act (Ch. No. 262) (“the Criminal Code”) is not in issue. The death penalty for an offence in Papua New Guinea is authorized by s.35 (1)(a) (Right to life) of the Constitution which states:

“No person shall be deprived of his life intentionally except –

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law”.

Section 36(2) (Freedom from inhuman treatment) of the Constitution which is also relevant states:

“(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

“(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.”

7. We are aware that there is on-going public debate in this country as in many other democratic countries on the constitutional validity of the death penalty. Other countries including Australia and the United Kingdom have repealed death penalty provisions in their penal statutes. PNG may wish to go down that path. That is a matter for the legislature to consider. As for the Courts, we are required by law to consider the death penalty following conviction for willful murder or any other offence which carries the death penalty. In the circumstances, the Court cannot read its own moral value judgment in considering the exercise of its discretion in imposing the death (see dicta of Lord Bingham of Cornhill in Reyes v The Queen [2002] 2 AC 235 at 246.

Is the death penalty for willful murder mandatory?

8. The death penalty is prescribed for three (3) other offences in the Criminal Code. They are piracy (s.81), attempted piracy (s.82) and treason (s.37).

9. The wording of the death penalty provision in the three (3) offences vary. Section 299(2) says the offender “shall be liable to be sentenced to death”; s.37 says “Penalty: Death”, s.81 says “the offender is liable to punishment of death”, and s.82 says “Penalty: Death”. These provisions do not say if upon conviction, the death penalty is mandatory or automatic. The question is whether the use of the words “shall” in s.299(2) (or the word “is” in s.81 or the absence of such words in s.37 and s.82) means the death penalty is mandatory or automatic upon conviction for willful murder.

In relation to willful murder, s.299 (2) of the Criminal Code provides:

“(2) A person who commits willful murder shall be liable to be sentenced to death.” (our emphasis).

The word “liable” means “liable on conviction on indictment”: s.1.

Section s. 19(1)(aa), of the Criminal Code is relevant and it provides:

“(1) In the construction of this Code, it is to be taken that, except when it is expressly otherwise provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term.” (our emphasis).

10. The use of the phrase “shall be liable” in s.299(2) and “except when it is expressly otherwise provided” in s.19(1) is the basis for Mr. Soi’s submission that upon conviction, the death penalty is automatic or mandatory. This is shown by the use of the word “shall” in s.299(2) and the absence of...