Aparo, Araba, Haio, Tinidipu and Akwia v The State [1983] PGSC 2; SC249 (25 May 1983)

Unreported Supreme Court Decisions

SC249

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 29 OF 1981
BETWEEN: KEKO APARO, HENGENE ARABA, KUBUNA HAIO, MANGA TINIDIPU AND ANDANE AKWIA,
APPELLANTS
AND: THE STATE
RESPONDENT

Waigani

Pratt Bredmeyer Gajewicz JJ
27 September 1982
25 May 1983

JOINT TRIALS - Requires careful separation of evidence - Confessions involving other accused - Subsequent denial during trial - Effect of retractions - No substantial Miscarriage of Justice.

QUAERE WHERE CO-APPELLANT HAS ESCAPED FROM CUSTODY - Court may exercise discretion and hear appeal.

APPELLANT BOUND BY HIS GROUNDS OF APPEAL - No amendment of grounds sought.

Legislation

Supreme Court Act - Ss. 23, 23(1)(b), 23(2), 29

Constitution - S.155(2) (b)

Criminal Appeal Act 1912 (N.S.W.) - S.6(1)

Criminal Code - Ss. 7, 7(1)(d), 8

Cases Cited

Subramaniam v. D.P.P. [1956] UKPC 21; (1956) 1 W.L.R. 965

R. v. Fenwick (1953) 54 S.R. (N.S.W.) 147

Rudd v. Rex (1948) 32 Cr. App. R.138

R. v. McKay (1965) Qd. R. 240

Jones (No. 1) (1971) 55 Cr. App. R. 321

Jones (No. 2) (1972) 56 Cr. App. R. 413

Avia Aihi (No. 2) Unreported Judgment No. SC218 dated 26 February 1982

Flower (1966) 50 Cr. App. R.22

R. v. Sorlie [1925] NSWStRp 52; (1925) 25 S.R. (N.S.W.) 532

R. v. Clark, Buchanan & Twibell [1962] VicRp 92; (1962) V.R. 657

R. v. Makrides (1958) 75 W.N. (N.S.W.) 221

Stirland v. D.P.P. (1944) A.C. 315

Rex v. Cutler (1944) 30 Cr. App. R.107

Schubert v. State (1979) P.N.G.L.R. 66

Archbold’s Criminal Pleading Practice and Evidence (39th ed.) para 1395

PRATT J: In this matter the appellants were convicted by the National Court for the wilful murder of a Bougainville man who was mortally wounded whilst making his way back to his house near Tinputz on the night of the 21st of February 1981. The killing was a straight out pay-back for the death of a Southern Highlander, and a clan relative of the appellant Andane, in the same area during the course of 1980. In the intervening period the Southern Highlanders endeavoured to obtain satisfactory compensation and in the final week before the pay-back, including the very day of the murder, five meetings were held, some of which involved the District Co-ordinator. Andane was due to return home to his clan area a fortnight after the 21st of February, without at that stage, any monetary satisfaction to show for the death of his clan relative. The learned trial judge found in effect that if he could not take with him adequate compensation he would return with the death of his relative avenged in blood.

Each appeals against the severity of the sentence imposed, and in addition Andane appeals against the conviction on two grounds:

“1. His Honour erred in accepting the evidence of the conversation between Tindiwi Kelekele and Keko Aparo as evidence against the appellant as it was hearsay.

2. His Honour erred in holding that the evidence of an accomplice Tindiwi Kelekele was corroborated by the evidence of Keko Aparo.”

I shall deal with the appeals against sentence at a later stage. Although I would uphold the arguments submitted in respect of the two grounds against conviction, because I am of the view that His Honour erred in law on several points, I do not think any miscarriage of justice has occurred as a result. Consequently I would dismiss the appeal and confirm the conviction against Andane.

There are a number of findings by His Honour concerning Andane based on observation, inference and knowledge of the country which were not disputed during this appeal. I think it is desirable to reiterate part of these findings:

“...I consider that his (Andane’s) personality and status among the small community of Highlanders in the Tinputz area must be properly understood in order that a proper assessment of the state of evidence which mainly comes from himself is arrived at. This is of course a question of fact. As I have said, I observed the manner and demeanour of this accused throughout the trial, and also those other co-accused, and their attitudes towards this particular accused. This accused is the only Tari man on the labour line who has some education and is the only one who can speak and understand the Pidgin language. He occupied the position of storekeeper at the Sabag Plantation. I am sure, as far as the labourers are concerned, this is a big position. And he is the only sophisticated man among his group. With such background, he became the link between the management and the labour force at the plantation. From that background it also appeared that he has acquired some status among his tribesmen as a spokesman or even a leader. In most societies throughout the Highlands region, leadership is not hereditary. Anyone can emerge to be a leader if he has some wealth, followings and some education and has the inclination to be one. The accused Andane has certainly attracted the confidence of his fellow tribesmen to regard him as a leader. This is clearly shown by the attitudes of the other co-accused at the trial. They appeared submissive to him and regarded him with a certain amount of respect and awe.”

In addition His Honour found Andane to be an “untruthful witness”. During his evidence in the trial he had recanted on several answers which he had given to the police during his record of interview. His Honour found this recantation to be “an outright lie”, and he felt the accused adopted a new approach during the trial because his earlier answers to the police “were damaging evidence which he is attempting now ... to rescue.” His Honour also rejected the accused’s claim that, contrary to his earlier admissions to the police, he had nothing more to do with the meetings than merely to “put up the notices”. Andane denied on oath that he was a leader in the compensation claim and denied he ever suggested to the others that in the event of the compensation payment failing to materialise, a Bougainville man must be killed in order to “end the matter”.

As I have said none of these findings was challenged on appeal and I can see no reason to interfere with them. One very curious feature about this trial however stems from the manner in which the cross-examination was conducted. The particular counsel was experienced and mature. It is difficult to avoid the conclusion that what Andane said in the witness box was completely at odds with his instructions to counsel. I have noted especially the following matters:

(1) During the evidence for the State, Tindiwi Kelekele, convicted of complicity in the same murder at an earlier sittings of the court, said: “We killed the man from Buka. We, I mean, Keko, Yanari, Andane.” Later on the trial record disclosed the witness as saying: “I don’t know accused Andane”, which seems proposterous to say the least. Elsewhere in his evidence the witness states: “I believe this man Keko told us to go and kill this man. Andane gave Keko K500 for me to kill the man”. Although this evidence was clearly admissible against the witness himself and, subject to clarification of the phrase “I believe”, also against the accused Keko, it was clearly not admissible against Andane. As in the leading case of Subramaniam v. D.P.P.SC249.html#_edn191" title="">[cxci]¹ the apparent conversation with Keko was a relevant piece of evidence to show the state of mind of the witness Tindiwi and a damaging piece of evidence against the co-accused Keko, but was irrelevant to the trial of Andane for it sought to establish by hearsay the very fact that Andane had paid K500 to secure the death. None of this evidence however was either objected to or subject to cross examination by defence counsel. The evidence concerning the K500 of course was inadmissible and does not become admissible merely because counsel failed to object. Nevertheless the matter may still be pursued on appeal, and indeed this has been done.

(2) During his evidence Andane on several occasions retracted statements contained in his record of interview. The record had been admitted unchallenged by defence, no cross-examination was made as to any of the content thereof or its accuracy and it discloses that Andane had actually read the Pidgin version back to himself before he signed it.

(3) The record of interview contains some material most damaging to Andane’s case of absolute innocence. There are of course self-serving parts, but the following were noted especially by the learned trial judge (I am using the numbers allocated in the English version):

“A54 WE proposed (my emphasis, and the Pidgin version makes it clear that the pronoun “we” is in the inclusive plural) in the meeting that, if someone from Tari kill any Bougainvillians in Tinputz area. That would pay back for our brother who was killed in 1980 and that would be the end.”

“Q56 Was that correct, some of your friends in the meeting proposed to kill someone in village later?

A Yes, at the meeting WE proposed that WE had approached four (4) times for the compensation money at the Tinputz Co-ordinating Centre, but negative result. WE again decided to check up again on Saturday 21/2/81, if still did not successful WE decided to approach them on Monday 23/2/81.” (My emphasis).

In answer to an earlier police question No. 34 as to who organized the meetings during the final week the accused replied “I arranged those meetings to discuss to get compensation payment for my uncle.”

In his answer to Question 47 however Andane denied offering any sum of K500 to Keko in order to kill a Bougainville man and in Answer 48 claims not only that he opposed the killing but was merely seeking the payment of compensation.

There are three very revealing answers however towards the end of the record of interview and each one is interrelated. In Question 60, the police asked:

“You arrange 5 days meeting in a week was it good or not fair?

A. I think it was good idea to tell other friends that I was going to go home without getting any compensation money with me.”

By itself that answer may be open to a number of interpretations including one that the accused intended to make it abundantly obvious to his “wan-toks” that he was about to go home in utter disgrace unless something was done about it.

I then turn to Question 62:

“Was that correct, this meetings influenced your friends to attack those Bougainvillians?

A. Yes, that is correct.”

We then come to what I regard as the crux of the whole case against Andane in the answer to Question 66 where he was asked if he had anything further to say about the charge:

“A. Yes, I did not go with other friends to kill that Buka man. I also did not tell other friends that I was going to give them some money if they killed one Bougainvillian as a pay back. I know that I am not guilty of this charge but I did organised the meeting regularly to influence other friends to kill that Bougainvillian - 21/2/81.”

It appears from the record, which also included notes on submissions by both counsel, that defence counsel made no attempt to deal with this crucial piece of evidence. It is obvious his instructions did not allow him to do so and thus he simply left it alone. Although the precise wording of these answers in the record of interview was not specifically referred to by His Honour the answers were obviously in the front of his Honour’s mind at p.17 of his judgment. No challenge was made to the English translation of the Pidgin record of interview and having myself compared the two versions I can understand why the English version was accepted without challenge. Quite apart from his Honour’s assessment of the appellant Andane the above questions and answers particularly the answers to questions 62 and 66 amount to a clear and straight-forward admission of counselling and procuring wilful murder by one who was a leader and a relative of the man allegedly killed by a Bougainvillian. The results of the counselling unfortunately manifested themselves that very night.

For these reasons I consider the learned trial judge ultimately reached a correct conclusion on the question of guilt.

In relation to the first ground of appeal I have already said that Tindiwi’s statement concerning the payment of money by Andane was hearsay and inadmissible as proof of such fact. Learned counsel for the State properly conceded as much. Perhaps it is as well to bear in mind what is basically involved in a joint trial. Such procedure has long been established under the common law, and in this country there are also additional provisions contained in the Criminal Code (e.g. ss.7, 8, and 568). What is sometimes overlooked however is that in a joint trial the charge is both joint and several against the accused (see e.g. R. v. Fenwick & another (1953) 54 SR (N.S.W.) 147 and other authorities referred to by Street, C.J. therein). In other words each defendant has a specific charge against him so that whilst some evidence in the trial will not affect defendant A, some will be common to all defendants and some might relate exclusively to A; but A is entitled to have his case assessed purely in the light of such evidence as relates to him alone even though some of that evidence may also relate to other co-defendants. In the present case it is clear the main allegation against the appellant is that he counselled and procured under s.7(1) (d) of the Criminal Code, the death of the person named in the indictment. The mental exercise therefore of treating each accused as if he were on trial by himself can be useful in examining exactly what evidence is relevant or irrelevant to each case.

At p.19 of his Honour’s judgment there appear a number of matters with which I respectfully cannot agree. It is said that Keko’s story concerning the offer of K500 is the truth as contained in the record of interview but this was denied by Keko in the witness box. In the light of Keko’s denial on oath I cannot see how this can be accepted as evidence against Andane, although the Court may tend to disbelieve Keko because of a false denial and thus bolster the evidence against him (as mentioned at p.143 of Rudd v. RexSC249.html#_edn192" title="">[cxcii]². His Honour continued:

“...I consider that by referring to the offer of the K500.00 reward which is contained in his record of interview, and discussing it in his evidence to the Court, he draws such evidence before the Court to be part of the evidence for all purposes. The record of interview in question has, however already been admitted into evidence and is therefore before the Court. In any case, the reward offer as discussed by the witness can even by itself stand alone as evidence in Court. The fact that it was referred to in the record of interview does not matter. Once it is mentioned and discussed by the witness in Court it is evidence which is there and thus already before the Court for all purposes of the trial. It is up to the trial judge then to decide, together with the rest of the evidence, why the evidence reputing the K500.00 reward was raised. It cannot be claimed therefore that the statement was made outside Court and should be evidence only against the person who made it.”

Perhaps I might paraphrase the factual situation this way: Keko says in his record of interview “Andane offered me K500 to join the murder plot. However I did not agree to this but said it is your own affair”. The record of interview was tendered in evidence as a confession against Keko. A confession of course is hearsay evidence but admitted under one of the exceptions. If the statements or part thereof do not amount to a confession then it is not strictly admissible although obviously there must be many parts of a confessional statement which of themselves are not confessions but are essential material for the understanding of the main confession. Likewise false denials may at times amount to a confession as in R. v. McKaySC249.html#_edn193" title="">[cxciii]³. To that extent it may be said that in the case against Keko this statement has some relevance. But by itself it is certainly not a confession - in fact it is the reverse. As a statement in itself therefore it is inadmissible as proof of any fact contained therein. How then can it become evidence of a fact against another accused who not only denies the fact (i.e. offering payment), but where the maker himself denies that he ever made the statement in the first place. The point is the statement is inadmissible on any ground in the trial of Andane. Quite apart from the denials of both Keko, that the statement was made, and the accused Andane, that such an offer was ever tendered, the evidence is inadmissible on first premises. The Court may well disbelieve Andane’s denial but that must arise out of factors distinctly and clearly independent of the statement contained in Keko’s record of interview and the satisfaction beyond reasonable doubt that such an offer was in fact made by Andane can have no connection whatever with any material connected with this statement.

Perhaps it may help to approach the problem from another direction. I will assume that Keko said he would be very happy with the offer and as a direct result thereof he organised the murder. Undoubtedly this would amount to a confession, and be evidence of the fact that he was involved in the crime. But it is still not evidence against Andane. If Keko were to give similar evidence in the witness box it does so become and must then be weighed against any denial by Andane. If he however denies making the statement the trial judge can disbelieve the denial but the effect then is not that Andane made the offer but that Keko is a liar and thus may be guilty of murder. The next step is that the question is put to Andane by the police, namely that Andane made the offer to Keko, but that is also denied by Andane. The judge disbelieves the denial. The judge also disbelieves Andane’s denial when the same question is put to him whilst he is in the witness box. What has the trial judge left before him - a bare assertion from the bar table that the offer was in fact made. Both Keko and Andane denied it was made. How can an assertion from the bar table or in the police station amount to evidence. The judge must dismiss it, if for no other reason than that he could not possibly find beyond reasonable doubt that such offer was made and therefore Andane was guilty of counselling and procuring.

I finally turn to the matter of sentence. It is said that there was a disparity in sentences between all the appellants and those imposed by Mr. Acting Justice Quinlivan against other co-accused who came before him in an earlier sittings. I cannot follow the reasoning of this argument. Indeed his Honour, the trial judge felt constrained to impose the sentence he did because of the action taken by Mr. Acting Justice Quinlivan. Frankly I find it difficult to imagine how the imposition of a suspended sentence could ever be warranted in a wilful murder case, but certainly not in the present circumstances. Nevertheless I could well understand the situation in which Mr. Justice Kaputin found himself and I would not be prepared to disturb those sentences which follow the pattern laid down by Mr. Acting Justice Quinlivan. So far as the heavier penalties imposed upon Keko and Andane are concerned I can only say that in my view these two appellants were very lucky to obtain the sentence they did. They were both obviously leaders in the whole affair and it is only the application of the principle that an appeal court will not alter a sentence merely when it would amount to a substitution of its own opinion to that of a trial judge, which prevents me from suggesting an increase in the sentence imposed on these two. I see no basis whatsoever for interfering with the sentence handed down by Mr. Justice Kaputin.

Although the appellant Keko escaped from prison prior to the hearing of this appeal I think in the circumstances it would be preferable to deal with his appeal in conjunction with the others. I would agree generally with the comments of Mr. Justice Bredmeyer on hearing joint appeals in such circumstances.

BREDMEYER J: The accused Andane Akwia has appealed against conviction and sentence. One of the important findings of fact against him which led to his conviction was that just before the killing he offered one of the murderers, Keko Aparo, K500 to participate in the murder. With great respect to the learned trial judge the only two pieces of evidence on this point were inadmissible for different reasons.

The first piece of evidence on the point came from a State witness, Tindini Kelebele, whose evidence was to the effect that Keko arrived and told him that Andane had offered him K500 to take part in the killing because he did not have enough men to do the killing and needed Keko’s assistance. That piece of evidence was clearly hearsay; it was a retelling of what Keko had told Tindini and it was offered as proof of the fact that Andane had offered Keko K500 to participate in the killing.

The second piece of evidence on the same point came from Keko Aparo himself who was a co-accused of Andane and who is one of the appellants in the case. Keko had given two confessional statements to the police and these were admitted into evidence in the State case before the trial judge. In each of those confessional statements Keko said Andane had offered him K500 to take part in the killing and that he had taken a knife and had participated in the killing. The learned trial judge rightly understood that these statements were, at that stage, inadmissible against Andane. The trial judge rightly referred to the fundamental rule that out-of-court statements by one accused are not admissible against a co-accused. Then Keko gave sworn evidence in his own defence. Naturally enough he was asked by the State Prosecutor in cross examination if Andane had offered him K500 to participate in the killing. He denied that Andane had made that offer. The result then was that there was no admissible evidence from Keko against Andane on the K500 offer. If Keko had said on oath that Andane had offered him K500 etc., or that he was telling the truth when he said to the police that Andane had offered him K500 etc. then that would have been admissible evidence against Andane.

The trial judge weighed up the evidence against each accused separately and Pratt, J. has rightly pointed out the desirability of conducting that very important mental exercise in a joint trial lest in the complexity of a joint trial a piece of evidence, admissible against one accused, is wrongly treated as admissible against another accused. Performing this exercise on the evidence on the offer of K500 in relation to Keko and Andane leads to this result. In relation to Keko the trial judge preferred the admissions in his two confessional statements that Andane had offered him K500 to participate in the killing and disbelieved his denial of that fact on oath. He thus found as a fact in relation to Keko, and was entitled to do so, that Andane had offered Keko K500 to participate in the killing. Considering the case against Andane, there was no admissible evidence against him that he had offered Keko K500 to participate in the killing and the learned trial judge should have found that allegation not proved against Andane.

Apart from this unjustified finding of fact against Andane, I agree with Pratt, J. that there is sufficient evidence in Andane’s record of interview to convict him. I agree too that the learned trial judge’s assessment of the character and status of Andane among his group was open to him on the evidence, and strengthens the weight given to the damaging admissions made by Andane in his record of interview that he counselled and procured the wilful murder. I would therefore apply the proviso contained in s.23(2) of the Supreme Court Act and say that no miscarriage of justice actually occured. I would dismiss Andane’s appeal against conviction.

Mr. Kirriwom, who appeared for all the other appellants, purported to also appear for the appellant Keko Aparo who escaped from custody after lodging his appeal and has not been recaptured. I consider that his appeal like the others against sentence should be dismissed on its merits and I agree with the remarks of Pratt, J. to that effect.

I have considered whether the court should hear an appeal from an appellant such as Keko who has escaped custody, or, for that matter, from one who has not answered bail. We were referred to no custom on the point and I am not aware of any so I turn to the English common law as found in Jones (No. 1)SC249.html#_edn194" title="">[cxciv]⁴ and Jones (No. 2)SC249.html#_edn195" title="">[cxcv]⁵ which I consider is appropriate and applicable to the circumstances of this country. If an appellant escapes custody or jumps bail prior to the hearing of the appeal the court may in its discretion adjourn the case or dismiss the appeal. If the appeal is dismissed and the applicant should later surrender to custody he may apply in England for an extension to appeal out of time. In Papua New Guinea s.29 of the Supreme Court Act does not allow for such an extension of time unless the application is itself made within the 40-day time limit; he may however apply for a review of the National Court’s decision under s.155(2)(b) of the Constitution as interpreted by the Court in Avia Aihi (No. 2)SC249.html#_edn196" title="">[cxcvi]⁶. The Court may in its discretion hear the appeal although the appellant has escaped or not answered bail; and it may do so for example when all the points raised on behalf of the appellant have been raised and fully argued on behalf of other appellants. The English Court of Criminal Appeal took this approach in FlowerSC249.html#_edn197" title="">[cxcvii]⁷, and it is the approach I have taken also in relation to Keko.

Mr. Kirriwom purported to appear before us on behalf of Keko. I do not think that is correct and I would not give counsel leave to appear on Keko’s behalf. If an appellant wishes to enlist the aid of the court he must submit to its jurisdiction by obeying its orders - in this case the trial judge’s order of imprisonment. The correct legal position, as in Flower, is that the appellant’s escape amounts to a withdrawal of instructions from his counsel. I would note the record that the appellant Keko Aparo was not represented before us.

I desire to add the following to the remarks of Pratt, J. on the sentences imposed. I fail to imagine any situation where suspension of part of a sentence for wilful murder would be justified. Suspension of part of a sentence is rightly employed to promote reformation of an offender or the restitution of stolen money or property. Experience shows that a young man who commits a burglary or a theft may, upon completion of his sentence, go on to commit a whole series of similar crimes. To prevent this and to promote his reformation, suspension of part of a sentence provided the offender remains of good behaviour is a useful sentencing device. But experience shows that a man convicted of wilful murder is unlikely to commit another murder upon his release from prison. The main objective of punishing for wilful murder is not reformation but rather retribution and deterrence. I consider that the sentences imposed were light and that all the appeals against sentences should be dismissed.

GAJEWICZ J: The appellants with another man, Kawasoba Para, were charged on joint indictment of wilful murder of one Denis Vosivan. Upon arraignment the appellants Hengene Araba, Kubuna Haio and Manga Tinidipu pleaded guilty to the charge and the others pleaded not guilty. After a short adjournment, counsel for the accused submitted to the learned trial judge that His Honour could either reject the pleas of guilty, or after reading the depositions accept the pleas. He added however that if the pleas were accepted by His Honour he would seek instructions from his clients whether His Honour should continue with the trial of the men who pleaded not guilty.

Such situations are not uncommon in Papua New Guinea. Judges of the National Court are obliged to read the depositions taken at committal proceedings before accepting the plea of guilty although the accused person is invariably represented by a qualified lawyer. Having read the depositions, where more than one accused is charged on one indictment, the judge may find some material, which is not admissible against the accused who pleaded not guilty, but which contains some prejudicial statements of facts. Normally, the judge indicates that under the circumstance he should not try the person who pleaded not guilty. This results in the trial being postponed, sometimes ad calendas Graecas.

However, in this case another solution of the problem was found. The hearing was adjourned and when it resumed on the following day His Honour was advised by the State counsel and by the counsel for the accused persons that at that stage of the proceedings His Honour should merely note the pleas of guilty, continue with the trial of those who pleaded not guilty and read the depositions and decide whether he would accept the pleas of guilty after the conclusion of the trial. His Honour decided to take that course. His Honour acquitted Kawasoba Para and convicted Keko Aparo and Andane Akwia.

I think I should also mention that sometime prior to the trial of these appellants two other men were charged with wilful murder of the same Denis Vosivan. They pleaded guilty and were sentenced to terms of imprisonment by Quinlivan, A.J. One of those men was Tindiwi Kelebele who gave evidence for the State at the trial of Kawasoba Para, Keko Aparo and Andane Akwia.

Keko Aparo does not appeal against conviction. He escaped from custody after lodging his appeal and has not been recaptured. I agreed with Bredmeyer, J. that his escape amounts to a withdrawal of instructions from his counsel and that Keko Aparo was not represented before us. I agree with respect, with Pratt and Bredmeyer, JJ. for reasons they stated, that the appeals against sentences should be dismissed.

I also agree, with respect, with Pratt and Bredmeyer, JJ, again, for reasons they stated, that the appeal by Andane Akwia against his conviction should also be dismissed. However, I have the misfortune to disagree with Pratt, J. when he says that he would uphold the arguments submitted in respect of the two grounds against conviction as set out in the appeal book. I consider that the learned trial judge erred in law, but in my opinion, the error relates to his holding at pp.121, 122 and 123 of the appeal book that a record of interview of Keko Aparo which was tendered in evidence became a part of the evidence for all purposes and that “It cannot be claimed therefore that the statement was made outside Court and should be evidence only against the person who made it.” His Honour treated the record of interview of Keko Aparo as part of evidence for the State against Andane Akwia although he added, “However, even without this evidence the prosecution case will still stand”.

Keko Aparo was an accomplice of Andane Akwia and a co-accused in the trial before His Honour. In his confessional statement made on 22 February 1981 and in his record of interview conducted on 25 February 1981 Keko Aparo made statements to the effect that Andane Akwia organized several meetings at which a pay back killing was discussed and that he offered to pay Keko Aparo K500.00 if he would help in the killing. The killing of Dennis Vosivan was a pay-back killing. However, Keko Aparo gave sworn evidence at the trial and he denied having said that to the police. He even went so far as to say at p.94 of the appeal book that he never met Andane Akwia before, the first time he met him was at the District Court, obviously referring to the committal proceedings.

It is a well established rule that an out-of-court statement made by co-accused is admissible only as evidence against the maker of the statement and it is not admissible against other co-accused if it is intended to use the statement to prove the truth of the matters contained in the statement. An out-of-court statement may be received in evidence against the other co-accused if the statement is not sought to prove the truth of what it contains. For example, in Mawaz Khan v. R.SC249.html#_edn198" title="">[cxcviii]⁸ it was held by the Privy Council that statements by each accused setting up identical false alibis could properly be admitted against each other as proof of a concerted action and a common guilt and that it was immaterial that the accused were not charged with conspiracy.

In Archbold’s Criminal Pleading Evidence & Practice, 39th ed. the rule is stated in paragraph 1395 as follows:

“It is a fundamental rule of evidence that statements made by one defendant either to the police or to others ... are not evidence against a co-defendant unless the co-defendant either expressly or by implication adopts the statements and thereby makes them his own ... Nor is a plea of Guilty by one defendant in any sense to be regarded as evidence against a co-defendant.”

“If, however, a defendant goes into the witness-box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendant...”

The learned trial judge treated the statement made by Keko Aparo in his record of interview about Andane Akwia’s offer to pay K500 as proof that the offer had been made. As I said, in my view His Honour erred in doing that. I may add that during the trial everybody, and especially the State Prosecutor, forgot about Aparo’s confessional statement.

The two grounds of appeal against conviction read as follows:

“(a) His Honour erred in accepting the evidence of the conversation between TINDIWI KELEKELE and KEKO APARO as evidence against the Appellant as it was hearsay.

(b) His Honour erred in holding that the evidence of an accomplice TINDIWI KELEKELE was corroborated by the evidence of KEKO APARO.”

I note that the last names of these men should read “KELEBELE” and “APARO”, but this is, of course, not important. What is, in my view, very important and indeed crucial in considering the two grounds of appeal against the conviction is this. In his reasons for judgment His Honour, the presiding trial judge, quite properly considered separately evidence relating to each of the three accused who pleaded not guilty. His reasons for judgment commence at p.104 of the appeal book. Pages 104 to 106 of the appeal book contain a brief history of the trial, a brief outline of the background of the case and quotations of ss. 7 and 8 of the Criminal Code. In that part His Honour does not refer to evidence either of Keko Aparo or of Tindiwi Kelebele. His Honour’s findings of facts and comments on evidence relating to Keko Aparo are set out at pp. 107 to 116 of the appeal book. The first two sentences at p.107 read:

“I now deal with the evidence against each of the three accused on trial. I shall consider the case against the accused KEKO APARO first.”

His Honour deals with the evidence relating to Andane Akwia at pages 116 to 125 of the appeal book. The first sentence of the second paragraph at p.116 reads:

“I shall now deal with the case against the next accused ANDANE AKWIA.”

His Honour finished dealing with Andane Akwia at p.125 when he said:

“I find him guilty and convict him accordingly.”

At the same page His Honour deals with the third accused, Kawasoba Para, in one paragraph and he acquits the man.

I could find nothing in His Honour’s reasons for judgment when he was dealing with Andane Akwia which would give any indication that when considering the evidence against that accused he accepted, or even considered evidence of the conversation between Tindiwi Kelebele and Keko Aparo or that he held, that the evidence of Tindiwi Kelebele was corroborated by the evidence of Keko Aparo. The only passage where His Honour mentions the name Tindiwi Kelebele is when he is considering evidence against Andane Akwia appears at the bottom of p.118 of the appeal book. There His Honour is considering the personality and the status of Andane Akwia “among the small community of Highlanders in the Tinputz area”. His Honour said then:

“The accused, Andane has certainly attracted the confidence of his fellow tribesmen to regard him as a leader. This is clearly shown by the attitudes of the other co-accused at the trial. They appeared submissive to him and regarded him with a certain amount of respect and awe. For instance Keko Aparo, who had made clear references to his name in his record of interview, was obviously hesitant and careful not to mention his name when giving evidence in Court. The same goes for the other witness at the trial, Tindiwi Kelekele, towards this accused Andane.”

The passage I just quoted does not support even remotely or inferentially, either of the two grounds of appeal against the conviction of Andane Akwia. His Honour made it quite clear that he considered separately evidence before him in respect of each of the three accused who pleaded not guilty. His Honour’s approach cannot be faulted.

In Papua New Guinea questions of law as well as questions of facts must be determined by the trial judge. It is his duty to assess the credibility of the witnesses. This is what His Honour did at p.118 and 119 in respect of Andane Akwia.

Counsel for the appellants who argued the appeals before us, quoted numerous passages from His Honour’s reasons for judgment and from the evidence as recorded in the appeal book to demonstrate that the learned trial judge misconstrued the evidence. One of such passages was taken from p.102 of the appeal book where His Honour said:

“On the words of Andane, Keko had also gone around to engage other men like Tindiwi Kelebele for rewards.”

I endorse and with respect adopt what was said in R. v. SorlieSC249.html#_edn199" title="">[cxcix]⁹ by Street, C.J. at p.539:

“The practice of subjecting a summing up, after the trial is over (the judge’s reasons for judgment), to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged.”

However, because of the way the appellants’ arguments were presented to us and to illustrate the point I shall next make, let me analyze His Honour’s statement which I have just quoted. Firstly, the remark was made when His Honour was sentencing all five accused. The remark was made after His Honour had already considered evidence relating to Andane Akwia and found him guilty. Secondly, that remark was made in respect of Keko Aparo, who does not appeal against his conviction, and not in respect of Andane Akwia who does so appeal. This is borne out by the sentence immediately preceding the sentence which I quoted. The whole passage reads:

“Keko also at the exact time that the crime was committed, had directed his men not to kill a man in the open but to stay on the road in the dark to carry out the crime. On the words of Andane, Keko had also gone around to engage other men like Tindini Kelebele for rewards.”

His Honour referred at some length to the witness Tindiwi Kelebele, but he then was dealing with the evidence relating to Keko Aparo. We were referred to that part of His Honour’s reasons for judgment.

In my view, where, like in this case, a judge has separately considered evidence against each accused who were jointly charged, it is not permissible to transpose a sentence or a phrase used by the judge relating to evidence against one accused and apply that sentence or phrase as if it were used in respect to another accused, unless there is a clear indication that the judge intended that the sentence or the phrase was meant to apply either generally to all other accused persons, or only to some other accused as well. There is no such indication in His Honour’s reasons for judgment.

I am unable to reconcile the grounds of appeal against the conviction with the reasons for judgments, and, I may add, with the evidence. The grounds of appeal against the conviction are brief, but clear and unambiguous. The grounds were not amended. There are many authorities dealing with grounds of appeals and the way appellate courts consider appeals. The most concise statement I could find is contained in a joint judgment of Dean and Pape JJ, in R. v. Clark, Buchanan and TwibellSC249.html#_edn200" title="">[cc]¹⁰ at pp. 659 and 660 where they said:

“The applicants before us are in this further difficulty. In their notices of appeal, they set out the specific grounds upon which they rely in support of their appeals... This Court (The Full Court of the Supreme Court of Victoria) proceeds upon the view that it is not a court of general review of convictions, but is concerned to hear appeals upon grounds explicitly raised by the notice of appeal ... It appears that any departure from the grounds of appeal stated in the notice of appeal is allowed only in exceptional cases and such allowance is in the discretion of the Court.”

I am mindful of the provisions of s.23(1) (b) of the Supreme Court Act Ch. No. 37. I am also aware that in Reg. v. MakridesSC249.html#_edn201" title="">[cci]¹¹, Owen, J. with whom Roper, C.J. in Eq., and Ferguson, J. agreed, considered the effect of s.6(1) of the Criminal Appeal Act 1912 (N.S.W.), which is similar to s.23 of our Supreme Court Act. He applied Stirland v. D.P.P.SC249.html#_edn202" title="">[ccii]¹² and Rex v. CutlerSC249.html#_edn203" title="">[cciii]¹³ and at p.229 in Makrides (supra) His Honour said:

“In the same way, it seems to me that even if there be no ground of appeal filed directed to the matter which is open to objection and in the course of the appeal the objection emerges and it is debated, the Court is under a duty to take cognizance of it and, if it is of opinion that there has been a miscarriage of justice to which the proviso should not apply, should take steps to rectify it. Here again, if the accused is represented in the appellate proceedings by counsel or solicitor and no appropriate ground of appeal is taken, that fact is also a circumstance to be taken into account in considering whether there has been a miscarriage of justice, substantial or otherwise.”

I do not think that in the final analysis there is a difference of substance in the approaches adopted by the two Courts in the cases I referred to. The Victorian Supreme Court would allow a departure from the grounds of appeal stated in the notice of appeal only in exceptional circumstances. The N.S.W. Supreme Court considers that an appellate court must take cognizance of matters which are not stated in the notice of appeal, but only if the matters were debated before it and if there has been a miscarriage of justice. However, in considering whether there has been a miscarriage of justice, where the appellant is represented by a legal practitioner, the appellate court should take into account the fact that no appropriate ground of appeal has been taken. It seems to me that the difference of the approaches is a difference of emphasis only.

As I said earlier the grounds of appeal before us have not been amended. The question of amending grounds of appeal has been settled in unequivocal terms in a joint judgment of Prentice, C.J. and Andrew, J. in Schubert v. The StateSC249.html#_edn204" title="">[cciv]¹⁴ where at p. 68 they said:

“We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal in which case it will invariably be struck down by section 27 of the Supreme Court Act 1975.”

With respect, I can only echo those words.

For the reasons which I stated I am of the view that the grounds of appeal against the conviction have not been made out and I would dismiss the appeal.

I have said earlier that I concur with Pratt and Bredmeyer, JJ. that under the circumstances no miscarriage of justice has actually occurred and that I agree that the appeals against sentences should be dismissed.

ORDER OF THE COURT

Appeal by Andane against conviction on sentence is dismissed. The appeals against sentence by remaining appellants are also dismissed.

The appellant Keko Aparo was unrepresented.

Lawyer for the Appellants: Public Solicitor

Counsel: N. Kirriwom

Lawyer for the Respondent: Public Prosecutor

Counsel: J. Byrne

SC249.html#_ednref191" title="">[cxci]^{[1956] UKPC 21; (1956) 1 W.L.R. 965}

SC249.html#_ednref192" title="">[cxcii]^{32 Cr. App. R.138}

SC249.html#_ednref193" title="">[cxciii]^{(1965) Qld. R.240}

SC249.html#_ednref194" title="">[cxciv] ^{(1971) 55 Crim. App. R.321}

SC249.html#_ednref195" title="">[cxcv] ^{(1972) 56 Crim. App. R.413}

SC249.html#_ednref196" title="">[cxcvi]^{Unreported Judgement No. SC 218 dated 26 February 1982}

SC249.html#_ednref197" title="">[cxcvii] ^{(1966) 50 Crim. App. R.22}

SC249.html#_ednref198" title="">[cxcviii]^{[1966] UKPC 26; (1967) 1 A.C. 454}

SC249.html#_ednref199" title="">[cxcix] ^{(1925) S.R. (N.S.W.) 523 at 539}

SC249.html#_ednref200" title="">[cc]^{[1962] VicRp 92; (1962) V.R. 657 at 659 and 660}

SC249.html#_ednref201" title="">[cci] ^{(1958) 75 W.N. (N.S.W.), 221 at 229}

SC249.html#_ednref202" title="">[ccii] ^{(1944) A.C. 315}

SC249.html#_ednref203" title="">[cciii] ^{(1944) Cr. App. R. 107}

SC249.html#_ednref204" title="">[cciv]^{(1979) P.N.G.L.R. 66 at 68}