Tamara Player Tomscoll v The Independent State of Papua New Guinea (2012) SC1208

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Kandakasi & Kawi JJ.
• Judgment Date: 15 November 2012
• Court: Supreme Court
• Citation: (2012) SC1208
• Docket Number: SCA 56 OF 2010
• Year: 2012
• Judgement Number: SC1208

Full Title: SCA 56 OF 2010; Tamara Player Tomscoll v The Independent State of Papua New Guinea (2012) SC1208

Supreme Court: Kirriwom, Kandakasi & Kawi JJ.

Judgment Delivered: 15 November 2012

SC1208

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 56 OF 2010

BETWEEN:

TAMARA PLAYER TOMSCOLL

Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Kirriwom, Kandakasi & Kawi JJ.

2012: 30th October

15th November

CRIMINAL LAW – Appeal against conviction – Conviction upon guilty plea – No legal defence raised during arraignment or allocutus – Well educated accused fully understanding the charges – No error or omission of trial judge identified – Conviction safe – Appeal against conviction dismissed.

CRIMINAL LAW – Appeal against sentence – Trial judge not specifically considering all of the factors for and against the prisoner – But evidence of weighing them – Unfettered discretion in trial judge to arrive at appropriate sentence – Sentencing not matter of mathematics - Decision on head sentence warranted – Error only in failure to take into account pre-trial and pre- sentence custody period – Appeal upheld to that extent only.

CRIMINAL LAW – Particular offence – Accessory after the fact – Essential elements of – Statute creating offence provide for - Knowledge of known felon not part of essential elements – But knowledge pleaded in indictment – Failure to prove such fact may not be fatal.

CRIMINAL LAW - Particular offences – Accessory after the fact and receiving stolen property – Serious crime of Bank robbery – Accessory after that fact and receiving parts of proceeds of - No cooperation with police – Recovery of stolen property through police work – Part played by prisoner serious – Deterrent sentence called for – Maximum prescribed sentence of 2 years warranted for accessory after the fact and 9 years for receiving stolen property totaling K127,000.00 .

Cases Cited:

Papua New Guinea Cases

William Chilen v. The State (2011) SC1099

Gedai Kairi v. The State (2006) SC831

Jack Peni v The State (2007) SC913

Masolyau Piakali v The State (2004) SC771

Kepa Wanege v. The State (2004) SC742

SCR No 3 of 980: Re Joseph Mavuk [1980] PNGLR 507

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370

Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Papua Club Inc v. Nusaum Holdings Ltd and Others (2005) SC812

Cosmos Kutau Kitawal & Christopher Kutau v. The State (2007) SC927

Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853

Andrew Trawen v. Steven Pirika Kama; (2) Michael Laimo v Steven Pirika Kama (2010) SC1063

Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752

James Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856

Ben Wafia v. The State (2006) SC851

The State v Oa Seseka (1990) N921

Allan Peter Utieng v. The State (Unreported and unnumbered judgment delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.

Thress Kumbamong v. The State (2008) SC1017

The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547

The State v. Gabriel Or (CR No 380 of 2009) and The State v. Matilda Makeu Ori (CR No 381 of 2009) both decisions delivered on 20th August 2010.

Simon Kama v The State (2004) SC740

Overseas Cases

Dianne McGrath Fingleton v The Queen [2005] HCA 34

R v. Rowley [1948] 1 ALLER 570

Counsel

Mr. H Leahy, for the Appellant

Mr. R Auka, for the Respondent

15 November, 2012

1. BY THE COURT: Tamara Player Tomscoll is appealing against both her conviction and sentence by the National Court. That was on her guilty plea on one charge each of accessory after the fact and receiving stolen property. To advance her appeal, she is applying for leave to adduce fresh evidence concerning her arrest and incarceration, allegations of police mistreating her and giving birth to a child whilst in prison. The State is opposing both the appeal and application for fresh evidence.

2. The Court has thus been presented with the following main questions of whether or not Tamara made a case for:

(1) Leave for her to adduce fresh evidence concerning her arrest and detention and alleged mistreatments?

(2) Appealing against her conviction upon her guilty plea? and

(3) Appealing against her sentence of 9 years for receiving stolen property to be served concurrently with 2 years for being accessory after the fact?

3. There are more specific questions but they are subsidiary to the above main ones. We will make reference to and consider some of them as we deal with each of the main questions. The first question we turn to is Tamara’s application for fresh evidence.

Application for fresh or other evidence

4. Tamara’s application for fresh evidence is pursuant to s.6 of the Supreme Court Act and r.60 of the Supreme Court Rules. The evidence she seeks to adduce as noted concerns, beatings, being raped by a policeman and other ill treatment Tamara claims she received from the police, a child being born whilst she was in custody and the period of her pretrial custody. Learned counsel for Tamara argued that these evidences were relevant on both her conviction and sentence because Tamara’s confessional statement that was admitted into evidence, was obtained under duress and the period she spent in custody awaiting her trial was not properly taken into account or considered before the decision on sentence. The latter was of particular concern because the offence of accessory after the fact carried a maximum penalty of two years and at the time of her trial, she had been in custody for over two years already and co-offenders tried for the same offence before her upon their pleas of guilty were sentenced to the rising of the court.

5. The law in relation to application for fresh evidence is well settled in our jurisdiction. A recent statement of the relevant principles or test for fresh evidence is stated in the decision of William Chilen v. The State,

(2011) SC1099.

1 in these terms:

“By fresh evidence, as referred to in s. 6 (1) (a) Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782.”

6. In the case before us, we note that, the evidence which Tamara wishes to adduce were evidence that were essentially placed before the learned trial judge although, not in a detailed sworn affidavit form as the one she deposes to in support of her application. We note also that this was evidence that was available to Tamara at the time of her trial and she could have presented in its entirety if she wanted to. Given that, we find that the application is misconceived. But the legitimate question is what use was made and could be made of this evidence. That is an argument Tamara is entitled to present before this court, without leave for fresh evidence. We will take up those arguments later on in this judgment. For now, we are not satisfied that a proper case for leave to adduce fresh evidence has been made out. Accordingly, we decline the application and order its dismissal.

Appeal against conviction upon plea of guilty

7. The next major question we turn to then is the question of whether Tamara can appeal against her conviction which came about on her guilty plea. We accept the learned counsel for Tamara’s submission that a more recent Supreme Court decision stating the relevant law in relation to appeals arising out of convictions on guilty pleas is the decision in Gedai Kairi v. The State.

(2006) SC831.

2 There the Supreme Court said:

“The law on guilty pleas to charges, disclosure of a defence known to law in the evidence or in an accused person’s plea or allocutus is very clear and settled.

A member of this Court, Kandakasi J., in our view, correctly considered all of the authorities on point starting with National Court judgment in The State v. Joe Ivoro & Gemora Yavura…to the Supreme Court decisions in Dinge Damane v. The State …and Martin Ferry v. The State… and summarized the position in this way:

‘These lines of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person’s allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the...