SC2819
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV 48 OF 2023

JEROM KAPUL JOHN
Applicant

V

THE STATE
Respondent

WEWAK: GEITA J, POLUME-KIELE J, DOWA J
24, 26 NOVEMBER 2025

CRINIMAL LAW – Appeal against conviction for murder – guilty plea – where it is apparent from depositions and or allocutus possible defences, the trial judge is dutybound and must be alerted to intervene – discretion to set aside conviction after guilty plea 

CRIMINAL LAW- If the judge detects a defence then, even if it has not been raised by the defence counsel, the judge should raise the issue and invite counsel and the accused to reconsider the plea.

The applicant was convicted after trial of one count of murder and sentenced to 18 years imprisonment. 

Held:

(1)	To succeed on a review of a conviction, an applicant must, just as in the case of an appeal against conviction, by virtue of Section 23 of the Supreme Court Act, establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115 applied).

(2)	Section 37 of the Constitution to afford the accused person the full protection of the law, including the right to a fair trial. It is the duty of the trial judge to be alert to potential defences throughout the whole trial process, the duty of the defence counsel is equally important: from arraignment up to formal passing of sentence.

(3)	The trial Judge erred in failing to take note and enquire with Defence counsel to reconsider the plea after the applicant raised a potential defence of self-defence.

(4)	Application for Review was granted, and conviction was set aside and matter referred to the National Court for retrial before another Judge.

Cases cited
The following cases are cited in the judgment:
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
Gabriel Laku v The State [1981] PNGLR 350
Anton Yani v The State (1999) SC615
Gedai Kairi v The State (2006) SC831 
Saperus Yalibakut v The State (2006) SC890 
Tamara Player Tomscoll v The State (2012) SC1208
Junior v State [2017] PGSC 32; SC1629
John Beng v The State [1977] PNGLR 115 

Counsel
Mr. Nigel Loloma for the applicant 
Ms Lilly Jack for the respondent

JUDGMENT

1.	BY THE COURT: Jerome Kapul John seeks review by the Supreme Court of his conviction for the crime of murder. He was convicted after guilty plea at Wewak National Court of murder, on 10 June 2022 and sentenced to 18 years imprisonment.  

Leave to Review

2.	The application for leave to review on conviction was granted by His Honour Cannings J on 7 November 2024 in the exercise of powers under Section 155(2)(b) of the Constitution for review of conviction for murder.

Objection to Review

3. 	The State raised an objection to Competency of the Review. Counsel of State in consultation with Counsel of Defence abandoned the competency of the review raised under Order 7 rule 6 and Order 5 rule 1 of the Supreme Court Rules. 

The Hearing 

4.	The trial Judge found based on the applicant’s guilty plea and confirmation from Defence counsel that the guilty plea was consistent with his clients’ instructions and the perusal of the Court depositions, proceeded to confirm the guilty plea and convict the applicant of murder and proceeded to administer the allocatus. 

5.	Notwithstanding the applicant’s continued reference of him being chased up into his house by the deceased during allocutus (Review Book pages 18, paragraph 30 and the trial Judge’s observations that  he was indeed chased by the deceased with a bush knife (Review Book page 37 para 4.), the trial judge proceeded to sentence the applicant to 18 years.

Review against conviction

6.	The Applicant relies on the following grounds for review:

a.	The learned trial Judge erred in law when he failed to take note of the applicant raising a defence of self-defence during the applicants address on allocutus.

b.	The learned trial Judge erred in law when he failed to enquire with defence counsel whether the applicant would be foregoing or pursuing the statutory defence raised in allocutus (Review Book page 8 – Review Grounds).

We will deal with the grounds of review together as they are interrelated.

7. 	The Applicant was indicted with a charge of Murder under section 300 (1) (a) Criminal Code. The allegations were then put to the applicant as follows:

Allegations

8.	On the 18th of July 2019, the Accused Kapul Jerome Junior and the deceased and other young men were consuming homebrew liquor at Holik Village. 

In the course of drinking they started arguing and the deceased got up and started to run away followed by the accused and another person. The accused was armed with a spear for shooting pig, and he used this to shoot the deceased in the stomach area. The deceased was carried to his house but died shortly after at his house. 

A medical Autopsy Report on the deceased Nigel Napo showed he dies from massive loss of blood due to the spear wound he received.

9.	When asked how he pleaded, the applicant replied without equivocation that he pleaded guilty. His lawyer Mr Kana from Public Solicitors Office advised the Court that the plea was consistent with instructions.

10.	On the strength of defence counsel affirmation on his client’s position and the committal depositions and the record of interview with his admissions pointed out to Court. The Judge confirmed that he had read the file and confirmed the applicant’s guilty plea with a conviction. The applicant was then asked by the Judge if he had anything to say before his sentence was passed. The applicant in response said and we quote:

“ Your Honour, the person – deceased person is not another person, - we are brothers.  We were drinking together, and he was trying to stab us, and he chased me up into my house.  So, when I went down, I saw this spear in front of the house.   I hold the spear in front of me and I was telling him, “Brother, I have no grudges against you, you go back.”  He ran down and he was trying to slash me with the bush knife, and he bumped into spear and he died, your Honour.” Review Book page 18 para 30)’ 

11.	The Judge then proceeded to sentence after receiving the PRS and MA Report to 18 years imprisonment less the time spent in custody of 2 years, 9 months, 1 week, 2 days.

	Issues

12.	The main issue for consideration is whether the trial Judge erred in law when he failed to pause and enquire with defence counsel whether the applicant would be foregoing or pursuing the statutory defence raised in the allocutus. 

Principles of Law

13. 	The grounds of review raise important points of procedural law during trial, especially the role of the trial judge when detecting a potential defence being raised during administration of   allocutus.

14.	The sound principles and process to be followed in a criminal trial is settled.  We adopt the principles discussed in the SC case of Junior v State [2017] PGSC 32; SC1629 (3 November 2017 in which the Court summarised some of the duties of a judge dealing with a criminal case in the following terms
as follows:

•	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 potential  defence then, even if it has not been raised by the defence counsel, the judge should raise the issue and invite counsel and the accused to reconsider the plea. (underlining ours)

•	Unless there are good reasons for the accused wishing to maintain a guilty plea, the Judge should vacate the plea and set aside the conviction.

•	The judge has an inherent discretion to vacate a guilty plea and set aside a conviction whenever it is in the interests of justice to do so.

•	A judge who accepts a guilty plea and convicts an accused and proceeds to sentence while failing to detect a clear defence to the charge – even if the issue is not raised by the defence counsel – in the depositions, during arraignment or allocutus or in anything said by the accused, will commit an error of law, giving rise to reasonable doubt about the safety and satisfactoriness of the verdict (and necessarily the sentence). (underlining ours)

15.	These principles are based on the seminal decision of Kapi J as he then was in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1, endorsed in a number of Supreme Court decisions including Gabriel Laku v The State [1981] PNGLR 350, Anton Yani v The State (1999) SC615, Gedai Kairi v The State (2006) SC831, Saperus Yalibakut v The State (2006) SC890 and Tamara Player Tomscoll v The State (2012) SC1208.

16.	Applying these principles to the case before us, we note that the above outline of the facts and what the applicant said in his allocutus, a potential defence of self-defence was manifested. 

17.	Similarly in all criminal proceedings a trial Judge must demonstrate sensitivity to accused persons utterances from the time he is arraigned to the time he is sentenced. There is good reason for this as the constitutional dictate of a person’s full protection and right to a fair trial under Section 37 Constitution remains visible and paramount at all stages of the criminal justice process.   

Conclusion

18.	Section 23 of the Supreme Court Act vests the Supreme Court with powers to exercise in criminal appeal cases. This includes the power to set aside and quash a conviction and or sentence, especially where the Court is satisfied that there has been a substantial miscarriage of justice.

19.	In this case, we are of the view that the errors committed by the learned trial judge were serious and did amount to substantial miscarriage of justice and further that the conviction is unsafe and wrong in law.

ORDER

(1)	The application for review is upheld.

(2)	His appeal is upheld.  

(3)	The decisions of the National Court dated 10 June 2022 convicting the applicant of murder and the sentence of 18 years is quashed.

(4)	The matter is remitted back to the National Court for retrial before another Judge.

__________________________________________________________________
Lawyer for the applicant: 	Public Solicitor 
Lawyer for the respondent: 	Public Prosecutor