Koroka v The State [1989] PGLawRp 5; [1988-89] PNGLR 131 (27 April 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 131 - Alan Oa Koroka v The State 

[1988-89] PNGLR 131

SC368

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ALLAN OA KOROKA

V

THE STATE AND MARIANO WANI SIMON

V

THE STATE

Waigani

Kapi DCJ Amet Woods JJ

22 August 1988

28 November 1988

27 April 1989

CRIMINAL LAW - Evidence - Burden of proof - Circumstantial evidence - Whether guilt only rational inference open - Primary findings of fact not connecting accused with murder - False statements by accused - Inferences of guilt not safe.

Two accused were charged with and convicted of murder. The primary facts as found by the trial judge were that the deceased died from injuries received when her head was struck by a rock while she was driving a motor vehicle along the highway. The vehicle ran off the road and two men came to the vehicle and stole a bag of money. There was no identification of the accused at the scene. The case against the accused was entirely circumstantial, based on opportunity and presence in the vicinity and false statements as to their whereabouts at the relevant time and their knowledge of and friendship with each other.

On appeals against conviction,

Held

(Woods J dissenting) The appeals should be allowed:

N1>(a)      on the primary circumstantial facts as found, guilt of the accused was not the only rational inference that could be drawn beyond reasonable doubt.

State, The v Morris [1981] PNGLR 493, applied.

N1>(b)      it was unsafe to infer that the false statements corroborated inferences of guilt which could not be drawn beyond reasonable doubt on the primary facts as found.

R v Collings [1976] 2 NZLR 104 at 116, considered.

Cases Cited

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82; 50 ALJR 108.

Broadhurst v The Queen [1964] AC 441.

Caswell v Powell Duffryn Associated Collieries Ltd (1940) AC 152; [1939] 3 All ER 722.

Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207.

Lonergan v The Queen [1963] TASStRp 13; [1963] Tas SR 158.

R v Dehar [1969] NZLR 763.

R v Collings [1976] 2 NZLR 104.

R v Kerim (1987) 28 A Crim R 439.

R v Long (1973) 57 Cr App R 871.

State, The v Morris [1981] PNGLR 493.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

Appeals

These were appeals against convictions for murder.

Counsel

E Kariko, for the appellants at the request of the Court.

K Bona, for the respondent/State.

Cur adv vult

27 April 1989

KAPI DCJ: By consent these two appeals were heard together as they arose out of the same trial and the issues raised in the appeals are similar.

Both appellants were convicted by the National Court of murder.

On 21 November 1986, Sister Perpetuela Auchin, a Catholic nun, was travelling towards Waima from Bereina Station on the Hiritano Highway. While travelling, a rock about six inches in diameter was thrown at the vehicle she was driving. The rock broke the windscreen and struck her on the head. The vehicle ran off the road. She received injuries to her head. She was taken to the hospital at Bereina where she died shortly after as a result of the injuries.

The evidence established that two men who wore white overalls and who were masked came to the vehicle after the vehicle had rested and took money away. These two men were never identified. Much of the evidence against the appellants was circumstantial. The trial judge made the following findings of facts:

N2>1.       Mariano and Allan Oa were at the place where Sister was selling clothes at about 12 noon. They were there for some time, they tried on T-shirts and they had ample time to observe the cash transactions taking place.

N2>2.       Between about 1 pm and 1.30 pm, they were walking along the track between the old Bishop’s house and the new Bishop’s house heading in the direction of the junction. Mariano was carrying something which he was concealing under his shirt.

N2>3.       At about 1.30 pm, they were at the junction and walking in the direction of Waima, that is, towards the scene of the incident, along the Hiritano Highway.

N2>4.       Sister was assaulted and robbed some time between 3.45 pm and 4 pm.

N2>5.       Sister died shortly thereafter, either on the way to the hospital or on arrival. She died from the impact on her skull of the rock which was thrown.

N2>6.       At about 4 pm, two men were seen fleeing through the bush in the direction of Bereina Station.

N2>7.       Shortly after 4 pm, Mariano was seen coming from the direction of the bush near Pone Pone village, along the fence of the hospital and heading towards his house. He looked to be sweating and had some dust on him, although I don’t find he was covered with dust.

N2>8.       Allan Oa was at the store alongside the PNGBC at about 5 pm. He was sweating.

N2>9.       Allan Oa was seen at about the same time walking at a place close by the store, along the fence near the community school, heading in the general direction of the card place.

N2>10.     Allan Oa arrived at the card place between 5 pm and 5.30 pm.

N2>11.     Mariano went home and changed and went to the snooker place and arrived there at about 5 pm.

N2>12.     When first questioned by the police as to his whereabouts, Mariano, said he was with Paul Kuga which was untrue.

N2>13.     Mariano had not been at the snooker place during the afternoon.

N2>14.     Mariano and Allan Oa had the opportunity and the motive to commit the offence.

N2>15.     Both Mariano and Allan Oa gave false denials as to their whereabouts and to their knowledge and friendship with each other.

Counsel for the appellants did not challenge these primary findings but contended that the primary facts fell short of showing beyond reasonable doubt that the appellants were the offenders. One of the matters which the trial judge took into account in coming to conclusions of guilt were the lies told by the appellants. In dealing with this issue, his Honour said:

“That is not the end of the matter. The issue of the accuseds’ false denials and false statements needs to be addressed. Great care must be taken in a case such as this concerning the use to be made of false statements. As a general proposition, it must be accepted that a false denial does not prove guilt. For good reason, it has been said that people confronted with allegations of wrongdoing may have other reasons not to tell the truth, apart from hiding their guilt.”

That is a correct statement of the law — see Broadhurst v The Queen [1964] AC 441 at 457; R v Dehar [1969] NZLR 763 at 765; R v Collings [1976] 2 NZLR 104 at 116; and R v Kerim (1987) 28 A Crim R 439 at 449. This principle is succinctly stated by McCarthy P in delivering the judgment of the Court of Appeal in R v Collings (at 116):

“... statements by a defendant, when and only when proved to be lies by other evidence independent of the complainant or their own inherent improbability, may be corroborative if they are attributable to a sense of guilt: they may be regarded as operating as implied admissions proceeding from the speaker’s consciousness of guilt. But there are often other possible explanations for lies, such as fear of facing an unjust accusation of guilt if suspicious circumstances are admitted. We agree with Burbury CJ in Lonergan v The Queen [1963] TASStRp 13; [1963] Tas SR 158 at 160, that most false statements or denials may also be explicable upon some hypothesis other then the accused’s implication in the crime.”

The trial judge found both Mariano and Allan Oa gave false denials as to their whereabouts and to their knowledge and friendship with each other. The trial judge then concluded from this:

“The fact that they made some false statements of the nature described, in my view, given that they had no reasonable, sensible or persuasive reason to do so, can only lead, in common sense, to an adverse inference. I consider that their falsehoods were designed solely to escape the natural and logical conclusion which they knew could be so readily drawn from the independent evidence which they were aware of at the time they gave their records of interview and which pointed directly to their guilt.”

Both appellants were cross-examined on these false statements. Mariano Simon was cross-examined by counsel:

N2>“Q.     You were asked about Q and A 55, record of interview, and your answer about lying — Why did you lie to police?

N2>A.       I didn’t tell the police, they might bring us to court.”

There was no further cross-examination by counsel as to this answer. The relevant cross-examination of Allan Oa Koroka is as follows:

N2>“Q.     On 18/12/86, record of interview at Boroko — Q 19 read out and answer.

N2>Q.       Why say No?

N2>A.       I didn’t say his name because they would bring us to court together.

N2>Q.       Any other reason?

N2>A.       They might bring us to court.

N2>Q.       On Q and A 20 (read out), Why did you say No?

N2>A.       I thought they might court me.”

A little later on, the following question:

N2>“Q      and A 21 (read out): Fair to say you lied?

N2>A.       Yes or else they might put us in gaol for no reason.”

These explanations in cross-examination were not challenged by counsel for the State nor was it clarified as to their meaning. It is possible to interpret from this that they feared that if they said they knew each other they may be falsely accused and taken to court for no reason. Or, alternatively, it could be said that they knew that they were guilty and that they did not want the police to know that they were together and knew each other for fear that they may be found out on the truth. These matters were left open and in my view it would be dangerous to come to the conclusion beyond reasonable doubt that their guilt could be inferred from the false stories they told about their knowledge of each other. I find that the trial judge fell into error when he said:

“I consider that their falsehoods were designed solely to escape the natural and logical conclusion which they knew could be so readily drawn from the independent evidence which they were aware of at the time they gave their records of interview and which pointed directly to their guilt.”

Can it be concluded from the primary facts found by the trial judge that the appellants were guilty of the offence?

The law is now well established in this jurisdiction that a person may be found guilty of an offence on the basis of circumstantial evidence if the guilt of the accused person is the only hypothesis open on the facts. Having regard to the primary findings of the trial judge, the critical evidence which allegedly connects the appellants to the murder is the fact that they were seen coming from the general direction of the murder. However, the weakness in this regard is the fact that when they were identified by witnesses at this point, they were about two kilometres away from the scene of the incident and some two to two-and-a-half hours before the killing. These facts do not sufficiently place the appellants in the proximity of the incident which led to the death of the deceased. This conclusion is further put in doubt when considered with the fact that there was evidence to the effect that at the time when the vehicle was stoned, two persons were seen with white overalls running towards Bereina Station. These two persons were not identified at all and the clothing on the appellants when they were seen were clothes which bear no relationship to the white overalls seen.

Having come to the conclusion that the false stories given by the appellants cannot be used to infer guilt and having regard to the primary findings of the facts, I have come to the conclusion that it would be unsafe to leave the conviction in place. I would therefore quash the conviction and sentence and release the appellants forthwith.

AMET J: These two appeals were instituted by the appellants in person, challenging in effect their convictions on charges of murder. At the first hearing the Court considered that some assistance should be afforded the appellants by the Public Solicitor as amicus curiae on the legal issue of the use of lies by accused persons as corroboration. The hearings were then adjourned to request the Public Solicitor to consider helping the Court. Mr Kariko, the Public Solicitor, thus appeared in that capacity, for which the Court is grateful.

Mr Kariko sought leave to argue several other issues of fact from which secondary inferences were drawn as to the guilt of the appellants. Mr Bona, the Public Prosecutor, did not oppose this and so Mr Kariko was permitted to raise specific issues of fact.

The grounds of appeal were, as can be imagined, having been drafted by the appellants in person, vague as to particulars, but in general effect challenged the findings as to their identification as the offenders, there being no direct eye-witness evidence against them.

The arguments as to facts were put in this form: that the primary evidence as to the times the appellants were seen, the places they were seen at and the clothing each wore, before, at the time of and after the killing of the Sister, were too remote to draw the conclusive inferences beyond reasonable doubt that the appellants attacked and consequently murdered the deceased.

Mr Kariko also submitted that, accepting that the appellants lied about certain circumstantial facts, they could only corroborate the prosecution case that the appellants were seen some distance from the scene some two to two-and-a-half hours before the estimated time of attack. Those lies, therefore, did not necessarily corroborate the guilt of the appellants.

It was submitted, therefore, that the verdicts were unsafe and unsatisfactory as to the inferences of guilt from the primary facts.

The evidence in the case was totally circumstantial. In support of the ground that the inferences of guilt, based on the primary facts, were unsafe and unsatisfactory, it was necessary to make a detailed examination of the evidence adduced before the trial judge. Before embarking upon the exercise of examining those facts, I should like to adopt and restate some pertinent observations of Kirby P in the case of Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211. He said:

“It is useful before embarking upon the facts, to recall three rules relevant to the approach which this Court should take to the re-examination of the conclusions of the trial judge upon the facts proved before him. In the nature of most cases (...) direct evidence is not available to settle every judicial wish for certainty. As in most cases, there are conflicts to be resolved, and in the absence of direct evidence, inferences to be drawn. Three principles should guide this Court in its approach to the re-evaluation of the evidence taken before the District Court.

First, since Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, it is clear law that this Court is to be taken as being in as good a position as the trial judge to decide upon the proper inferences to be drawn from facts which are undisputed or which, although disputed at the trial, are established by the judge’s findings. Respect and weight is to be given to the conclusions which the trial judge draws from the evidence. However, once having reached our own conclusion on the facts, we are not to shrink from giving effect to it: see also Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 426... Detailed argument must be addressed to disputed evidence and competing, permissible inferences from that evidence, although this process of evaluation has already taken place before the trial judge. An appeal court is, to some extent, always at a disadvantage in conducting such a reassessment. It lacks the impression of witnesses, the opportunity to evaluate non-verbal communication and the immediacy and command of detail which is the proper province of the trial judge. It sees the evidence through a curtain, penetrated in selected parts by the reading of evidence, presented, often out of order and in an inevitably disjointed and selective way by the parties. This approach carries an inevitable risk of encouraging appellate wisdom after events. Without care, it may result in undue weight being given to words considered without the benefit of the full context.

None of these observations touch the legal duty of the court, which is that defined in Warren v Coombes. It is a duty that must be loyally fulfilled...

Secondly, appellate courts will normally show deference to the assessment of credibility made by the trial judge ...

Thirdly, the court, like the trial judge, in evaluating circumstantial evidence, is obliged to tread the narrow path which has been drawn between reliance upon reasonable and definitive inferences (which is permissible) and upon conjecture, speculation and guesswork (which is not)”.

The learned President continued (at 211):

“It is doubtful that the suggested distinction between conjecture and inference is as plain as some of these authorities suggest. With greater knowledge of human psychology and greater understanding of probability theory, it is nowadays increasingly recognised that the one process of reasoning merges into the other. In order to draw inferences, it is often necessary to speculate. Whether the product of the speculation is a mere conjecture, guess or surmise or a ‘definite inference’ depends on processes of evaluation and judgment that are not always susceptible to strict logical analysis. This has been recognised in decisions of high authority. The fact that competing inferences which are available cannot be positively eliminated does not render an inference derived from proved or accepted facts a mere conjecture, surmise or guess: cf Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.”

I quote and adopt also the remarks of the majority of the High Court in Warren v Coombes (at 552):

“Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question.”

I now turn to a detailed examination of the evidence adduced, in relation to three important circumstantial facts, at three important stages of the whole day in question.

They relate to the relative times the appellants were allegedly observed by witnesses, at certain locations and importantly, the kind of clothing each of them was said to have been wearing, prior to the attack, at the scene at the time of and shortly after the attack, and after the attack at Bereina Station later that afternoon. I deal with the evidence in that order.

1. PRIOR TO THE ATTACK — AT BEREINA STATION

There was only one witness’s account of seeing the appellants at this time. He was Paul Arupu, a self-employed builder building a new house for the Bishop. He was sitting on a platform between 1 pm and 2 pm, when about 1.30 pm he saw Mariano and Allan Oa walk across the school ground about 40 yards from him, in the direction of To’orena village. Mariano wore a white and blue striped T-shirt with collar and buttons and shorts like white. Allan Oa wore a shirt with long sleeves and long blue trousers. At about 4.30 pm he saw Allan Oa returning walking fast about 80 to 90 yards away, from the direction of To’orena village. Philip Aume, a schoolteacher, saw Mariano and a friend at the junction between 1.30 pm and 2 pm. They were coming from Bereina Station to the junction. He said the distance from the junction to the bank at the Station was 500 metres.

2. AT THE SCENE

Immediately at the scene at the time of the attack was Emelda Olivia Kama, domestic assistant to the deceased, who travelled with her that afternoon. She said there were two boys in white overalls, both had white material over their heads with eyes and mouth cut out. She estimated that the incident occurred at about 4 pm.

The second witness near the scene was Allan Warupi. He was from Pone Pone village, near To’orena village. He and his wife went to the garden that day. At about 4 pm they were returning to the village along small bush tracks. When they were almost in Pone Pone village, they saw two people running about 200 to 300 yards away in the direction of the Bishop’s house. He couldn’t recognise them. One was a bit taller than the other. It was about 200 to 300 yards from where the two men were to the Bishop’s house. To’orena village was closer to the junction than his village. It was about 300 metres from To’orena to Bereina Station.

One of the men wore dirty white overalls; the other wore long black trousers like jeans, with white shirt wrapped around his left hand, and a knife in the right hand. He was bare on top and their heads were not covered.

3. AFTER THE INCIDENT

James Bini, who was a storekeeper at Bereina Station, said about 11 am or 11.30 am he saw the two appellants where the deceased Sister was selling clothes. In the afternoon he saw Allan Oa go to the store about 5 pm. He bought two drinks and left. He looked hot and sweaty. He wore a T-shirt. He suggested it would take about half an hour to walk from the shop to To’orena.

Helen Tapora, the wife of a policeman at Bereina Station, was walking to the hospital between 4.30 pm and 5 pm when she met Mariano at the hospital gates. She saw a lot of dust on his body as he went to his house and she went to the hospital. He wore khaki trousers and an army-type T-shirt. He had dust all over his legs, body, arms and face and he was sweating. He came from the direction of the main road and the Bishop’s house.

DISTANCES

Philip Aume, the community school teacher, who saw Mariano and a friend at the junction between 1.30 to 2 pm, said the distance from the junction to the bank at Bereina Station was about 500 metres. Allan Warupi said it was about 300 metres from To’orena village to Bereina Station. The junction and To’orena village are close to Bereina Station. Emmanuel Aume, who was driving back from Waima village toward To’orena village and who first came upon the attacked Sister, said the Sister’s vehicle was about half to one kilometre from To’orena village. That places the scene of the attack at over two kilometres from Bereina Station and about two kilometres past To’orena village.

FINDINGS OF PRIMARY FACTS

I stress that in these appeals the appellants have not challenged the learned trial judge’s findings of primary facts, which I have dealt with under the several headings above. Though they were contested at the trial, findings were open on the evidence. It is, however, the secondary inferences, that the appellants were guilty of the murder of the Sister, which have been challenged.

Simply put, the appellants have contended that, accepting the trial judge’s findings of primary facts, the offence was so removed in time and distance that it was not “the only rational inference that the circumstances would enable the trial judge to draw” that the appellants were guilty of the murder of the Sister.

The findings of the relevant primary facts were these:

N2>1.       The appellants had been with the deceased Sister early in the day at Bereina Station when she had been selling clothes (between 10 am and 12 noon).

N2>2.       The appellants were seen walking towards the junction of the road to Bereina Station and the road to To’orena and Waima (between 1 pm and 2 pm).

N2>3.       The appellants were seen at the junction, which is over 2 kilometres away from where the deceased was attacked (between 1.30 pm and 2 pm).

N2>4.       The deceased was attacked between 3.45 pm and 4 pm.

N2>5.       Two men went to the deceased’s vehicle, both dressed in white overalls and wore white materials over their heads with the eyes and mouths cut out.

N2>6.       Two men were observed at a distance of 200 to 300 metres near To’orena village running towards the direction of the Bishop’s house which was also about 200 to 300 metres away. One wore dirty white overalls, the other wore long black trousers. The time was between 4 pm and 4.30 pm.

N2>7.       The appellant Mariano was seen walking towards his house at about 4.30 pm. He was sweaty and dusty.

N2>8.       The appellant Allan Oa was seen coming from the direction of To’orena walking fast at about 4.30 pm.

N2>9.       Allan went and bought a soft drink from a store at about 5 pm. He was sweating.

N2>10.     The appellants told lies about being together and seeing the deceased selling clothes in the morning. They also lied about their movements thereafter.

The learned trial judge adopted and applied the correct principles applying to circumstantial evidence in Papua New Guinea, which is as Miles J applied in The State v Morris [1981] PNGLR 493, relying on the Australian High Court decision in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117, which is that:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: ... To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that circumstances would enable them to draw’... However, ‘an inference to be reasonable must rest upon something more than mere conjecture’.”

Now, applying the tests in Warren v Coombes and The State v Morris to the accepted findings of the primary facts by the trial judge, can it be said that these primary circumstantial facts are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellants”, or that their guilt is “the only rational inference that the circumstances would enable a court to draw”?

With respect, I do not consider that the primary circumstantial facts are such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellants. Nor, indeed, can I be satisfied beyond reasonable doubt that their guilt is the only rational inference that the primary circumstantial facts would enable me to draw. Several important circumstantial facts are worthy of note:

N2>1.       The distance from where they were positively observed (prior to and after the time of the attack upon the deceased) to the scene, was over two kilometres.

N2>2.       The lapse of time from when the appellants were observed prior to the attack (which was approximately 1.30 pm) to the approximate time of attack, was over two hours.

N2>3.       The two persons seen at the scene and the two persons seen running towards Bereina Station are not necessarily the same two persons. The description of their clothing is not consistent.

N2>4.       The descriptions of clothing worn by the appellants prior to and after the attack are markedly different from those worn by the two men seen at the scene and also from the two men observed running in the direction of the Station. It cannot be inferred with certainty beyond reasonable doubt that the two men seen at the scene and running away were the appellants.

I agree with the appellants’ submission that, in the above circumstances, the commission of the attack upon the deceased was too removed in time and place for the inference beyond reasonable doubt that it was the appellants who committed it. The inference is unsafe and unsatisfactory.

The learned trial judge also relied on the false statements by the appellants to affirm his finding of guilty against them. He said:

“In this case, the false statements, by their nature and content, operate against the accused in two ways:

First, the statements having been shown to be untrue corroborate an incriminating feature of the evidence. That feature is the actions of the two accused as having the opportunity to commit the offence and importantly their behaviour subsequently seeking to remove themselves from any implications in the events.

Secondly, the fact that they have made some false statements of the nature described is in my view, given that they had no reasonable, sensible or persuasive reason to do so, can only lead, in common sense, to an adverse inference. I consider that their falsehoods were designed solely to escape the natural and logical conclusion which they knew could be so readily drawn from the independent evidence which they were aware of at the time they gave their records of interview and which pointed directly to their guilt. While this approach is not, nor should it ever be, conclusive of guilt alone, it is a factor which can be relied on to strengthen the case against the accused.”(My emphasis.)

With respect, I consider that the trial judge erred in the way in which he used the findings against the appellants that they were untruthful or that they lied. The second way in which he considered the false statements operated against the appellants is in my view manifestly wrong. As I have considered, the primary circumstantial facts dealt with above do not naturally and logically point directly to the conclusion that they are guilty. The primary circumstantial facts as found by the trial judge do not point directly to their guilt.

A finding that an accused lied about a certain issue of fact does not prove the existence of such a fact without any other evidence. Whatever the finding of fact that is necessary, it has to be established by other evidence, direct or circumstantial. In the appellants’ case, their false statements related to their movements prior to and after the attack on the deceased. There was ample evidence from which the findings of primary facts were made. The false statements proved nothing more. The secondary inference of facts and guilt had to be found on the primary facts.

In the end result, applying the principles in Warren v Coombes, adopted in Papua New Guinea by Miles J in The State v Morris, I am of the view that the trial judge over-emphasised and wrongly used the false statements by the appellants to corroborate inferences of guilt against them.

I am of the firm view that the verdicts are unsafe and unsatisfactory and so must be set aside.

The appeals are therefore allowed, the convictions quashed, sentences set aside and the appellants discharged.

WOODS J: The appellants Mariano Wani Simon and Allan Oa Koroka were each found guilty of the murder of Sister Perpetuela Auchin on 21 November 1986.

They have each lodged against their conviction. Whilst the appeals were personal appeals by the appellants merely denying that they committed the offence, the Court has heard submissions on how the Court should assess a reasonable hypothesis on guilt with patently false alibis in cases where the evidence against the accused is purely circumstantial.

This Court has to consider how far can you infer guilt from false alibis and false statements made out of court by the accused and whether the trial judge applied correct principles in his assessment of this evidence.

The facts are that the deceased died from injuries received when a rock was thrown at her and struck her head while she was driving along the highway. The vehicle ran off the road and two men, who it was alleged had thrown the rock, came to the vehicle and stole a bag of money from the vehicle.

There was no identification of the accused at the scene. The case against the accused is circumstantial; they had the opportunity, having been in the area, or so adjacent to the scene, that they could have done it. They had a motive, and they made false statements regarding their whereabouts. And their false statements which, in effect, were attempts to show that they could not have been anywhere near the scene were so patently false when aspects of their appearance were noted that afternoon by various witnesses. It is suggested that the trial judge placed too great an emphasis on the false statements and this clouded his application of the principle that the evidence must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

The trial judge was faced with conflicting evidence. He found there was no substantive or concerted attack on the capacity of the State witnesses, so there was no suggestion that their identification of, or of not seeing the accused in various places that day, were lies. And the trial judge found it difficult to fit the accuseds’ evidence and inconsistencies with the State evidence and in the end he found the two accused had little credibility.

Having found himself with the unchallenged evidence of the State witnesses, the trial judge was left with having to regard the defendants as unreliable, as their evidence was clearly inconsistent within itself and with the unchallenged evidence of the State witnesses.

This is not a matter of being side-tracked by the demeanour of a witness; it is coming to the only conclusion when confronted with a set of undisputed facts on the one side and some misleading contradictory set of facts on the other.

The trial judge had the benefit of seeing all the witnesses, of visiting the scene of the offence and getting an overall picture of the places mentioned in the evidence and how they fitted into the broad picture of the scene. He was able to put together all the circumstantial evidence and he did not find any glaring gaps in that evidence. It is clear from the transcript and the judgment that his Honour was meticulous in gaining for himself such a detailed picture of the scene and the area involved. I refer to the principles expressed by the Court of Appeal in the case R v Long (1973) 57 CLR Cr App R 871, in recognising the advantages which the trial judge and a jury have over an appellate court.

At 876, the Court said:

“The submission on this point illustrates the need for this Court to remember that a transcript cannot reproduce the atmosphere of a trial. This is particularly important with trials which go on over a number of days... The accumulative effect of the demeanours and reactions of the witnesses, particularly of defence witnesses called to establish an alibi, often makes the verdict easily predictable by the judge, counsel and the Press.”

And, at 879:

“We cannot emphasise too strongly that this Court cannot re-try cases on paper.”

His Honour clearly considered the guiding principles on circumstantial evidence. He clearly stated that great care must be used when dealing with false statements — false denials do not prove guilt, and his decision does not simply find guilt as a consequence of those false denials.

I find no errors committed by the trial judge and on the evidence as it appeared before the trial judge, I could not come to any other conclusion but what he came to.

I dismiss the appeals.

(By majority) Appeals allowed

Lawyer for the appellants: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.