Tauba Laiam v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Makail J, Polume-Kiele J
• Judgment Date: 01 March 2018
• Citation: (2018) SC1656
• Court: National Court
• Year: 2018
• Judgement Number: SC1656

Full : SCRA No 59 of 2016; Tauba Laiam v The State (2018) SC1656

National Court: Cannings J, Makail J, Polume-Kiele J

Judgment Delivered: 1 March 2018

SC1656

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 59 OF 2016

TAUBA LAIAM

Appellant

V

THE STATE

Respondent

Waigani: Cannings J, Makail J, Polume-Kiele J

2018: 26th February, 1st March

CRIMINAL LAW – wilful murder – guilty plea – appeal against conviction – trial judge’s duty to be alert to possible defences apparent from depositions or allocutus – discretion to set aside conviction after guilty plea – Supreme Court Act, Section 24(1) – whether reasonable doubt about safeness or satisfactoriness of verdict.

CRIMINAL LAW – wilful murder – appeal against sentence of life imprisonment – whether any identifiable error by sentencing judge – whether sentence manifestly excessive.

The appellant was convicted after pleading guilty of one count of wilful murder and sentenced to life imprisonment. He appealed against conviction on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of automatism under Section 24 (intention: motive) of the Criminal Code, which if accepted would have resulted in acquittal. He appealed against the sentence on the ground that it was manifestly excessive and that the judge had failed to give due weight to mitigating factors including the fact that prior to killing the deceased the appellant had been given a substance by the deceased’s father that made him temporarily mentally unstable and unable to control his actions.

Held:

(1) The potential defence of automatism was not readily apparent from the depositions (including a statement made by the appellant in his statement to the District Court under Section 96 of the District Courts Act) or the allocutus and remained a possible defence only, without reasonable prospects of success. The trial judge did not err by not raising it with the defence counsel and by not vacating the guilty plea and by not setting aside the conviction.

(2) The verdict was not unsafe or unsatisfactory. The appeal against conviction was dismissed.

(3) To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive.

(4) The sentence of life imprisonment was not manifestly excessive. However the judge made identifiable errors in that insufficient regard was had to all mitigating factors: the guilty plea, the absence of pre-planning, the appellant had no prior convictions, the appellant’s consistent contention that his mind had been affected by a substance; the appellant surrendered to the police; the appellant made admissions in his Section 96 statement.

(5) The sentence of life imprisonment was quashed and substituted by a sentence of 30 years imprisonment.

Cases cited

The following cases are cited in the judgment:

Anton Yani v The State (1999) SC615

Gabriel Laku v The State [1981] PNGLR 350

Gedai Kairi v The State (2006) SC831

Gordon Gala Junior v The State (2017) SC1629

In re Joseph Mavuk [1980] PNGLR 507

John Beng v The State [1977] PNGLR 115

Manu Kovi v The State (2005) SC789

Norris v The State [1979] PNGLR 605

Saperus Yalibakut v The State (2006) SC890

Tamara Player Tomscoll v The State (2012) SC1208

The State v Enakuan Salaiau [1994] PNGLR 388

The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1

Thress Kumbamong v The State (2008) SC1017

APPEAL

This was an appeal against conviction for wilful murder and the sentence of life imprisonment.

Counsel

T Laiam, the appellant, in person

D Mark, for the respondent

1st March, 2018

1. BY THE COURT: Tauba Laiam was convicted by the National Court constituted by Justice Mogish of one count of wilful murder under Section 299(1) of the Criminal Code, after pleading guilty, and sentenced to life imprisonment. He appeals against his conviction and also the sentence.

APPEAL AGAINST CONVICTION

2. The appellant’s primary contention is that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of automatism under Section 24 (intention: motive) of the Criminal Code, which if accepted, would have resulted in acquittal. To understand this argument it is necessary to set out the process by which the appellant was convicted.

3. The judge informed the appellant that he was charged with wilful murder. His Honour then put the allegations to the appellant as follows:

· On 6 May 2015 you went to Girinumu village, Central Province, intending to kill your wife, Maria Manai. You approached Maria Manai who was holding your two-month-old baby. You chopped Maria Manai on the throat. You then stabbed her repeatedly on the breast using the same knife. Maria Manai dropped the baby on to the ground. She died instantly. Mavere Manai, the deceased’s mother, who was close to the deceased, ran to the baby and picked up the child and alerted the brother, Aua Manai. You backed out of their dwelling and ran out. You jumped down a cliff and disappeared. The State says that when you stabbed the deceased on her throat and on her breast, you contravened Section 299(1) of the Criminal Code. You intended to kill Maria Manai.

4. Asked how he pleaded, the appellant replied without equivocation that he pleaded guilty. He was represented by a lawyer from the Office of the Public Solicitor, Mr Tine, who advised the Court that the plea was consistent with instructions and he had no application to make.

5. The prosecutor, Ms Tamate, tendered the committal depositions and drew the judge’s attention to the record of interview, which contained no admissions, and the Section 96 statement made by the appellant to the District Court at his committal proceeding, which did contain admissions.

6. Section 96 (accused to be asked whether he desires to give evidence) of the District Courts Act states:

(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court or the Chairman of the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—

"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.".

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be—

(a) taken down in writing in the English language and read to him; and

(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and

(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.

7. The primary judge stated that he had read the depositions and accepted the guilty plea and that the appellant was convicted of wilful murder, as charged. The judge then administered the allocutus. He asked the appellant if he wished to tell the court what type of punishment should be imposed on him. The appellant said:

Your Honour, I used to look after both the old ladies – old people. The father of the lady did something; my head went confused so I did what I did. If this court can have mercy on my two children and give me time.

Appellant’s argument

8. The appellant’s argument is that his Honour should have detected a possible defence of automatism in the Section 96 statement and in the allocutus.

Principles

9. In assessing that argument, we refer to the recent decision of the Supreme Court in Gordon Gala Junior v The State (2017) SC1629, in which the primary duties of a judge dealing with a criminal case were summarised in the following terms:

· A judge must ensure that an accused person, including an accused who pleads guilty, is afforded the full protection of the law under Section 37 of the Constitution.

· The Judge must be alert to potential defences in the depositions or arising during arraignment or at any stage of the trial process up to formal passing of sentence.

· If the judge detects a clear defence then, even if it has not been raised by the defence counsel, the...