SC2758
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 46 OF 2022

BETWEEN:
CHARLIE LAIA
Appellant

AND:
THE STATE
Respondent

KIMBE: MANUHU J, KAUMI J, DOWA J
28, 31 JULY 2025

CRIMINAL LAW – Appeal - Murder – Conviction – Deceased died from loss of blood from knife wound – Self-defence - Procedural irregularity – Mistrial – s. 572 of the Criminal Code Act.

Cases cited
Manuel v The State [2018] SC1732
Konom v Watai [1981] N297(M)
State v Kuvis [2012] N4768
State v Alik [2021] N9008
State v Rex [2020] N8565

Counsel
L. Mamu, for the appellant
A. Kaipu, for the respondent

1.	BY THE COURT:  The appellant was indicted along with three others for murder.  The trial judge found that the appellant attacked and cut the deceased on the right arm with no lawful excuse.  The appellant was convicted and sentenced to 16 years of imprisonment, whereas the other three defendants were acquitted. This is his appeal against his conviction and sentence.
  
2.	On July 28, 2020, the appellant and three others travelled by boat to a neighbouring village in Central Nakanai, West New Britain Province. They set fire to two houses in retaliation over a prior incident. The deceased and his relatives rushed to the burning houses where they saw the appellant and his group.  A confrontation ensued with insults and missiles thrown at each other.  The appellant cut the deceased on the right arm during the confrontation. The deceased was transported to seek medical assistance; however, he died of blood loss. The appellant did not deny inflicting the fatal injury. He pleaded self-defence claiming that the deceased had attacked him first.

3.	The first ground of appeal is that his evidence on self-defence was never negated.  The second ground is that he only acted in retaliation to the first attack by the deceased and, as such, an alternative verdict of manslaughter would have been justified after the trial judge rejected his defence.  The third ground of appeal is that the sentence of 16 years is manifestly excessive.

4.	We have had the benefit of both oral and written submissions of the counsel. Before we consider the appeal grounds, we must consider two procedural issues that could determine the appeal’s outcome. 

5.	Raphael Konvut was a witness who gave evidence against the appellant. He said he saw the appellant cut the deceased’s right arm with a bush knife. However, when the prosecuting counsel asked the witness to point to the appellant, he pointed to co-accused Charlton Wali. 

6.	From the transcript, the trial judge was of the impression that Charlton Wali was the appellant.  The trial judge became aware of the mistake only when the appellant was asked to give evidence under oath. “So if that is Charlie that we got it wrong with our records,” said the trial judge. The defence counsel agreed. The trial judge then said, “And the identification was not made out.” The defence counsel advised the trial judge that it was not disputed that the appellant was part of the group and identification was not in issue. The trial judge accepted the explanation and continued with the trial. 

7.	While identification was not the issue at the trial, the burden of proving each element of the offence remained with the State.  The State had a duty to produce evidence of identification against the appellant. Accordingly, when Raphael Konvut failed to identify the appellant in court, and when the trial judge hinted that “identification was not made out”, the appellant would have been entitled to make a no case to answer submission. Instead, the defence counsel advised the trial judge to disregard the mistake.

8.	It could be argued that the defence counsel failed his client by not taking advantage of the mistake. However, we note the appellant’s admission in the record of interview, which was already in evidence, that he cut the deceased on the right arm.  A no case to answer submission would have failed. Therefore, the failure to make a no case to answer submission did not result in a miscarriage of justice. 

9.	However, what followed next is worth careful consideration.  Mr. Mamu submitted that the procedure under s. 572 of the Criminal Code Act was not administered prior to the appellant giving evidence in his defence. The section is as follows:

“1.  At the close of the evidence for the prosecution, the proper officer of the courts shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

“2.  Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

“3.  When the accused makes a statement to the court, he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence.”

10.	In Konom v Watai [1981] N297, Pratt J had the following to say:

“...the appellant was advised of his right to give evidence, but there was an omission to advise the accused that he could remain silent if he wished. It has always been a matter of practice so far as I am aware in the National Court, to advise an accused of the right. This is especially so if the accused is unrepresented. It therefore seems to me that although such advice to a defendant does not have a statutory basis, a failure by a court to advise a defendant of that particular right at the time when the court is also advising him of his right to call evidence, may well prove fatal to the case if a conviction is subsequently recorded. Obviously whether it was fatal or not would depend on all the circumstances of the case and each individual matter would have to be considered on its merits. All I say here is that prima facie, a failure to advise a defendant that he did have a right to remain silent if he wished or to give evidence if he chose to do so may amount to a failure sufficient to cause a mistrial.”

11.	In Manuel v The State [2018] SC1732, the following was said:

“The duty imposed on the court to ask the accused whether he or she intends to give evidence or make a statement is mandatory. The accused person must be put in a position to fully understand his right so as to make an informed election on how to respond to the evidence against him or her, in defence. If he or she is unable to make a personal election, Counsel may do so upon instructions. This is the essence of fair trial and the full protection of the law under s. 37 (1), (4) of the Constitution.

“It is good practice for the trial judge to explain the three options open to the accused person at the end of the prosecution case and let the accused person make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: s. 572 Criminal Code Act.”

12.	The Supreme Court stated that the state of the prosecution’s case did not justify an alternative verdict or a new trial.  The wilful murder conviction was quashed and a verdict of not guilty was entered. See also State v Kuvis [2012] N4768, State v Alik [2021] N9008 and State v Rex [2020] N8565.

13.	In practice, the defence counsel should already know the strength or weakness of the evidence at the end of the prosecution’s case. The client is then advised of the assessment.  This then places both counsel and client in a better position to consider the options under s. 572. In this case, the transcript does not show the occurrence of such interaction. The trial judge did not raise this issue. The defence counsel did not say anything.

14.	The uninformed appellant proceeded to give sworn evidence. Unfortunately, the trial judge found that his evidence “was not put specifically put to the State witness” which was “a breach of the rule in Browne v Dunn.” The evidence given by the appellant was described as “a recent invention.” The trial judge’s findings demonstrate that the defence counsel did not give proper advice to the appellant. Importantly, the appellant was not advised of the options under s. 572. 

15.	Therefore, we find that the appellant was unfairly tried and convicted.  Accordingly, we are satisfied that a mistrial has occurred due to a procedural irregularity. We uphold the appeal, quash the conviction and sentence, and order a new trial pursuant to s. 16 of the Supreme Court Act. The proper grounds of appeal do not need to be considered.  

Orders accordingly.

Lawyer for the appellant: Leslie Mamu, Public Solicitor
Lawyer for the State: Helen Roalakona Acting Public Prosecutor