N3638

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 347 OF 2009

THE STATE

V

ERIC PAPEN

(No 1)

Wabag: Makail, J

2009: 18th, 19th & 20th May

CRIMINAL LAW - Practice & Procedure - Application to arrest judgment before passing of sentence - Prisoner convicted on guilty plea - Multiple counts - Unlawful use of motor vehicle - Dangerous driving causing death - Dangerous driving causing grievous bodily harm - Exercise of jurisdiction - Whether State can bring application - Whether exceptional circumstances established - Constitution - Section 155(4) - Criminal Code - Sections 383(1)(a), 328(5), 594 & 596(1)(a).

Cases cited:

The State -v- Elizabeth Teka (No 2) (2009) N3604

Counsel:

Mr. J. Waine, for the State
Mr. P.Kumo, for the Prisoner

RULING

20 May, 2009

1. MAKAIL J: The prisoner pleaded guilty to three different offences before the Court on 11th May 2009. They are:

1.	One count of unlawful use of a motor vehicle, a Toyota land cruiser Registration No HAH-108, the property of one Tom Naika contrary to section 383(1)(a) of the Criminal Code;

2.	One count of dangerous driving causing death of one James Pera contrary to section 328(5) of the Criminal Code; and

3.	One count of dangerous driving causing grievous bodily harm to one David Lopali contrary to section 328(5) of the Criminal Code.

BRIEF ALLEGATIONS OF FACT

2. The State alleges that in the early hours of 23rd January 2008 between 4:30 am and 5:00 am, at Porgera Station of the Enga Province, without the consent of one Tom Naika, got into Mr Naika’s motor vehicle, a Toyota land cruiser Registration No: HAH-108 and drove it. 

3. When the prisoner drove it, he drove it in a dangerous manner and as a result it ran off the road and into a steel gate of a fuel service station. As a result, James Pera (herein the "deceased") who was a passenger in the cabin with him sustained multiple rib fractures and a ruptured left lung and died on impact. The other passenger, one David Lopali (herein the "victim") also sustained very serious multiple body injuries and was hospitalized. 

4. I heard submissions on sentence on the same day and reserved my decision until 18th May 2009 at 9:30 am. I was not ready with my decision and had further adjourned the decision to 22nd May 2009. After I adjourned the matter, the State prosecutor, Mr. Waine made an application to "re open" the case for further submissions to be made on sentence. He said that the line of the deceased had just instructed him that they had not received any customary compensation from the prisoner. They deny the prisoner’s claim that the prisoner and his line paid hefty customary compensation of 117 pigs and K23, 000.00 to the line of the deceased and 60 pigs and K400.00 to the victim and his line. They wish to bring these matters to the attention of the Court so that the Court may take them into account before passing sentence on the prisoner.

5. I asked Mr. Waine if the Court has power to "re open" a case where it is pending passing of sentence and Mr. Waine was unable to refer me to the relevant law on the Court’s jurisdiction to "reopen" a case before sentence is passed except to say that he relies on section 155(4) of the Constitution and asks the Court to invoke its inherent powers under that provision "to do justice" in the present case. I was not satisfied that the Court should exercise its inherent powers at this present point in time and referred Mr. Waine to consider an application to the Court under section 596 of the Criminal Code. I stood down the matter to 1:30 pm for him to adequately consider the application before moving it.

6. On resumption Mr. Waine informed the Court that the application to "reopen" the case is made under section 596 of the Criminal Code. It states as follows:

"596.	Sentence.

(1)	If a motion to arrest the judgment is not made or is dismissed, the court may -

(a)	pass sentence on the offender immediately; or

(b)	discharge him on his recognizance, as provided for in this Code, conditioned that he shall appear and receive judgment -

(i)	at some future sittings of the court; or

(ii)	when called on by notice in the prescribed form.

(2)	If sentence is not passed immediately, a Judge may at any subsequent sitting of the court at which the offender is present pass sentence on him.

(3)	If an offender (including an offender called on by notice in the prescribed form to appear and receive judgment in respect of a portion of his sentence suspended under any provision of this Code) does not appear at the required time and place, a Judge-

(a)	may forfeit the offender's recognizance and the recognizance of his sureties (if any); and

(b)	may issue a warrant to arrest the offender and to bring him before a Judge,

and such offender may be arrested and brought before the court accordingly.

(4)	Before passing sentence, the court may receive such evidence as it thinks proper in order to inform itself as to the proper sentence to be passed". (Underlining is mine).

7. But, he did not proceed any further because he had not filed any supporting Affidavits to support the application and requested another adjournment which I reluctantly granted to 20th May 2009 at 9:30 am. When the Court resumed on the morning of 20th May 2009, again the State was not ready and requested for another adjournment to 1:30 pm citing that the Affidavits had been prepared but the deponents had not come in to sign them due to the civil uprising in Wabag town relating to protest over Asian businesses in the country the previous day and early this morning where it is said one of their relative was one of the casualties. Again, I reluctantly granted the application for adjournment to 1:30 pm but warned that this was to be the last adjournment.

8. When the Court resumed at 1:30 pm, the State proceeded with its application. It grounds it application on laws. The first is under section 596(1) (a) of the Criminal Code which I have cited above and the second under section 155(4) of the Constitution.

9. Mr. Waine argues that the prisoner and his line had not paid compensation to the deceased and his line. The Court had been misled by the prisoner when it heard submissions on sentence on 11th May 2009 that the prisoner had paid customary compensation to the line of the deceased. He relies on his own Affidavit sworn on 20th May 2009, Affidavit of Pera Irawi sworn on 20th May 2009 who is the father of the deceased and the Affidavit of Thomson Kulara sworn on 20th May 2009, who is an uncle of the deceased to show that the prisoner and his line had not paid any customary compensation to them. 

10. The reason for not bringing the non payment of customary compensation to the Court’s attention was that the police investigating officer had been un-corporative with the relatives of the deceased. As a result, they had not been told by the police investigating officer that the court case had been fixed for trial during this Court circuit and had not attended to give instructions in relation to the non payment of compensation. They only found out after the matter was heard as a plea matter on 11th May 2009 but say that the issue of non compensation was not brought to the attention of the Court at that time.

11. In fact, they say that there is an Order from Paiam Village Court of 7th March 2008 ordering the prisoner and his line to pay customary compensation to them but the prisoner and his line have yet to pay up. The issue is still pending to date. Since the issue of non payment had not been brought to the attention of the State prosecutor then, Mr. Kesno by the police investigating officer, coupled with the fact that the prisoner had not brought it to the attention of the Court, Mr. Waine argues that the Court had been misled and he had a duty to inform the Court of the true status of the matter.

12. This Court has jurisdiction to arrest the judgment before sentence is passed under section 596(1) (a) of the Criminal Code or section 155(4) of the Constitution to do "justice to the case"

13. Mr. Kumo for the prisoner attacks the jurisdictional basis of the Court to exercise its power under section 596(1) (a) of the Criminal Code, by arguing that section 591(1) (a) should be read in conjunction with section 594 of the Criminal Code. If read together, these two provisions talk about arrest of judgment. And what is peculiar about section 594 is that, it refers to "A person convicted of an indictable offence". He says that that means, only a person convicted of an indictable offence may invoke this provision to arrest a judgment before sentence is passed and that can only be done by motion before the Court. On this basis, he submits that the State is not entitled to bring the application to arrest a judgment before sentence is passed under sections 594 and 596(1) (a) of the Criminal Code.

14. As to the exercise of the Court’s power under section 155(4) of the Constitution, he concedes that the Court has inherent power to make orders to do justice in a given case and says that there may be a ground for the exercise of power under section 155(4) in view of the allegations of non payment of customary compensation not brought to the attention of the Court before the plea hearing.

15. Having had the benefit of hearing both parties’ submissions on the application more so on the jurisdictional basis of the exercise of power and the reasons advanced for the exercise of power, I agree entirely with the submissions of Mr. Kumo that the State cannot invoke section 596(1) (a) of the Criminal Code to apply to arrest a judgment before sentence is passed. The Court’s exercise of power to arrest a judgment before sentence is passed on a convicted person can only be exercised on application by "a convicted person of an indictable offence" when section 596(1)(a) is read in conjunction with section 594. 

16. This case is different to the one I had dealt with in Mendi early this year and I recall commenting on section 596(1)(a) in The State -v- Elizabeth Teka (No 2) (2009) N3604 at pp 7 & 8 as follows:

"From my reading of section 596, it is plain to me that there are two instances where a Court may delay passing of sentence on an offender. The first instance is where a motion is made to arrest a judgment before a sentence is passed. If the Court upholds the motion, the sentence is "stayed" so to speak. If it is dismissed, the Court may proceed to hand down the sentence. Secondly, before the passing of sentence, the offender is discharged on his or her own recognizance on condition that, he or she shall appear on a future date or whenever called upon by the Court to receive the sentence. When that happens, the Court may pass sentence at the next sittings of the Court if the offender is present. In both cases, before passing sentence, the Court must receive such evidence to inform itself as to the proper sentence to be passed on an offender.

Those two instances are in my view examples where the Court may delay the passing of sentence on an offender. Otherwise, once a Court passes sentence, it is not open for review or debate unless it is appealed to a higher Court like the Supreme Court. In the present case, it is entirely a different scenario. It is a case where a sentence has been passed on the offender on 22nd October 2008. The sentence was a 5 years imprisonment term, wholly suspended on conditions. One of the conditions is for the offender to repay in full K37, 000.00 to the victim within 4 months as of the date of sentence. There was neither a motion filed before the Court to arrest the judgment before sentence was passed nor was there an order of the Court discharging the offender on her own recognizance before the sentence was passed to a later date.

17. It should be noted that in that ruling, I did not consider the circumstances by which a judgment maybe arrested before the passing of sentence and whilst I am satisfied that the Court has jurisdiction under section 596(1) (a) of the Criminal Code to arrest a judgment before a sentence is passed, that jurisdiction is exercised upon an application by motion to the Court by "a convicted person of an indictable offence". Therefore, I find the State’s application under section 596(1) (a) of the Criminal Code misconceived and dismiss it.

18. But I am satisfied that the Court may exercise its inherent jurisdiction to make an order to arrest the judgment before sentence is passed under section 155(4) of the Constitution given that serious allegations of lack of corporation have been raised by the relatives of the deceased against the police investigating officer. The police investigating officer is an officer of the State and must be seen to be serving the interest of the State. In my view, that includes investigating and preparing cases for trial coming for the Courts including taking instructions on any relevant matters for plea hearing cases and trial cases like the issue of payment of customary compensation.

19. In my view, the no corporation or lack of it between the line of the deceased and the police investigating officer has led to the information about the non payment of customary compensation not being brought to the attention of the Court at the plea hearing on 11th May 2009. I consider that, it is the duty of the investigating officer to verify this issue or any other matter for that matter with the line of the deceased before giving instructions to the State prosecutor to run a trial or a plea case, like in this case. In my view, the failure to do so has prejudiced the interest of the State in adequately and properly bringing the prisoner to justice.

20. Allegations have been made that no customary compensation had been made by the prisoner and his line to the line of the deceased and I must take that into account in the deliberations on an appropriate sentence. That does not mean that I have now made a finding that customary compensation has been paid. That is a matter for further submissions.

21. I am therefore satisfied that, the State has shown exceptional circumstances in this case.

ORDERS

22. Accordingly, pursuant to the Court’s inherent powers under section 155(4) of the Constitution, I grant the State’s application to arrest the judgment before sentence is passed and order that:

1.	the sentence is stayed pending further submissions on sentence.

2.	the matter is adjourned to 21st May 2009 at 9:30 am for further submissions on sentence.

3.	the prisoner shall be remanded until then.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner