Pok v The State [1983] PGSC 4; SC254 (22 June 1983)

Unreported Supreme Court Decisions

SC254

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.A. 28 OF 1981)
BETWEEN: JOHN ANIS POK
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ Kaputin Gajewicz JJ
28-30 June 1982
22 June 1983

CRIMINAL - appeal against conviction.

Principles to be applied by an appellant tribunal when reviewing the findings of a lower court.

Cases Referred To

Brian John Lewis v. The independent State of Papua New Guinea (Unreported) judgment No. SC178 dated 29 August, 1980.

Broadhurst v. Queen (1964) A.C. 441

Karo Gamoga v. The State (Unreported) judgment No. SC212 dated 27 October, 1982

James Neap v. The Independent State of Papua New Guinea (Unreported) judgment No. SC234 dated 1st October 1982

Laird v. Mitchell (1930) St. R. Qd. 38

Al Bovelt v. Peter John Lenehan (1973) P.N.G.L.R. 454

Lewis v. P.N.G. (1980) P.N.G.L.R. 219

Kampangio v. The Queen (1969-70) P.N.G.L.R. 218

Order of the Court

Conviction and sentence quashed and the Appellant discharged.

KAPI DCJ: This is an appeal from the National Court of Justice.

On the night of the 22nd December 1980, there was a social dance at Bagalaga village in the Western Highlands Province. It was discovered that an escaped prisoner Mr. John Peng was present at the dance. The police made plans to have him arrested.

At this time, the deceased policeman Robert Mutu Koi was seen to have driven up in a government vehicle in the vicinity of the place where the party was being held and was last seen standing on the road.

When the police attempted to arrest Mr. Peng, he called for assistance from his friends and a number of men came up and helped him to get free from the police. They were successful and Mr. Peng ran away from the dance place. It is alleged that the appellant was seen to have helped Mr. Peng during the struggle with the police and that he was seeing running away from the dance place in the same direction as John Peng.

Not long after they escaped, the body of the deceased was discovered on the side of Bagalaga plantation access road. He received injuries to his head from which he died.

It was alleged that John Peng, the appellant and the others were responsible for the killing of the deceased person. Amongst those who are alleged to have been responsible for the death of the deceased, only John Peng and the appellant were charged. They were both charged with wilful murder and tried separately.

At the trial of the appellant, State alleged that John Peng was the principal offender and the appellant was aiding and abetting. The trial judge found the appellant guilty of wilful murder under s. 7 of the Criminal Code as aiding and abetting. He was sentenced to life imprisonment.

The appellant has appealed against both the conviction and sentence.

There was no direct evidence of the appellant’s participation but the trial judge inferred from other facts that he was present at the scene of the murder and that he aided and abetted. The trial judge came to this conclusion from the following findings of facts:

(a) that the appellant ran in the same direction shortly after Mr. Peng.

(b) that the deceased vehicle had been rammed by the appellant’s vehicle.

(c) the appellant was with John Peng when he attacked the deceased.

(d) that the appellant was the man in orange shirt seen by the witness Bepil Kil running away from the body of the deceased.

(e) that the trial judge could not accept the appellant’s statement from the dock and this fact added the inference of guilt.

The appeal against conviction is based on two grounds:

1. The evidence of the appellant being present at the scene at the time of the commission of the offence is unsafe and unsatisfactory in that the trial judge erred in finding the facts as listed above.

2. There is no evidence and no finding by the trial judge as to how or in what way the appellant aided in the wilful murder of the deceased.

The proper principles on findings of facts on appeal are set out in the Judgment of Mr. Justice Miles (as he then was) in Brian John Lewis v. The Independent State of Papua New GuineaSC254.html#_edn217" title="">[ccxvii]¹. I adopt the following passage:

“Turning from these general observations to consider the position in Papua New Guinea, the aspect which strikes one immediately is that there is not and never has been trial by jury in this country. The traditional reluctance to interfere with the decisions of juries therefore has no place in this country. Secondly, there are constitutional factors in operation here which must always be considered. In referring to the appellate jurisdiction of the High Court of Australia, Issacs J. said in Webb v. Bloch [1928] HCA 50; (1928) 41 C.L.R. 331 at p.360, that the Court had a constitutional duty to form its independent opinion as to the proper inferences from evidentiary facts. So too in Livingstone v. Halvorsen (referred to in Warren v. Coombes and Another [1979] HCA 9; (1979) 53 A.L.J.R. 293 at p.300)) where Murphy J. said that on an appeal to the High Court the parties have a constitutional right to the decision of the Court on the merits of the case. In this regard the Supreme Court of Papua New Guinea stands in a similar position, in an appeal from a finding of a Judge of the National Court: see Supreme Court Act 1975, s.15.

In deciding the merits of the case on appeal however one new matter arises and that is the decision of the trial judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court Judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court Judge.”.

Having these principles in mind, I now turn to the findings by the trial judge.

1(A) THAT THE APPELLANT RAN IN THE DIRECTION OF HIS VEHICLE SHORTLY AFTER PENG

The trial judge came to the following conclusion:

“he, Peng, ran off in the direction of where the accused’s car was parked. Very shortly thereafter, the accused (within at least 2 minutes) also ran away from the place and headed in the same direction as Peng.”.

Three State witnesses gave evidence on this aspect.

Constable Chinau stated in his examination in chief that the appellant took off from the dancing place and ran out of the gate. He followed him out but he could not see any sign of him. Later in his examination in chief, he was asked:

“Q. Could you identify anyone in that mob?

A. The accused as I know him from playing football with him.

Q. Which direction did they run when they escaped from the police.

(Shown map - indicated towards Bagalaga junction - junction Bagalaga road and Muglamp road)”.

It is not clear from these questions whether they related to the direction in which the appellant ran. This is further clarified in cross-examination by the defence counsel:

“Q. Agree you said he ran away from gate?

A. Yes. Could not see him any longer.

Q. If I suggest to you that you are not sure that the accused ran off?

A. He came out of the gate - then I could not see him.

Q. You do not know what direction he took?

A. This is correct.”.

This witness’s evidence does not support His Honour’s finding.

Constable Jerry Rombena also gave evidence as an eye witness. He gave evidence to the effect that when the police attempted to arrest John Peng, about 20 people came along to help him and freed him to escape. After John Peng escaped from the dancing place, this witness went into the dancing place again and was looking for people who were involved during the struggle. At this time, he noticed the appellant and tried to arrest him but he ran towards the entrance and ran into the coffee gardens. He was not able to find him. It is not clear from this witness’s evidence the direction taken by Peng when he escaped and the relationship of that direction to the coffee gardens the appellant went into. It is far from clear that the appellant followed the same direction as Peng. This witness’s evidence does not support his Honour’s finding.

The next eye witness called was Timbu Aip, a village Peace Officer. The effect of this witness’s evidence is different from the evidence of two earlier witnesses. He stated that Peng, appellant and Karl Goimba escaped together following the same track. This comes through in the cross examination of this witness.

“Q. I put it to you - when Peng escaped - he did not go with Peng.

A. He went with him.

Q. I also put it to you - the accused had escaped earlier.

A. They followed the same track.

Q. I also put it to you that when accused escaped - Karl Goimba was not with the accused.

A. They went together.”.

This witness’s evidence cannot be reconciled with the other two witnesses who stated that John Peng and the appellant escaped at different points in time. It would appear from the trial Judge’s reasons for decision that he did not accept the evidence of this witness but appears to have adopted the evidence of the first two State witnesses in that the appellant ran towards the same direction as Peng shortly afterwards.

With respect, the evidence of these 3 witness’s do not prove beyond reasonable doubt that the appellant ran in the same direction as Mr. Peng when he escaped. The evidence by these State witnesses leaves open the possibility of version of events described by the appellant from the dock. He stated that when he ran away from the dancing place, he went into the coffee gardens and was hiding there until the police left the dancing place and then he entered the dance place again.

I find that the trial judge erred in finding that the appellant ran in the same direction as Peng.

1(B) THAT THE DECEASED’S VEHICLE HAD BEEN RAMMED BY THE APPELLANT’S VEHICLE

The trial judge concluded that after the appellant ran from the dancing place, he ran towards where his vehicle was parked (the same direction as Mr. Peng was running) and he actually drove his vehicle and rammed it into the back of the deceased’s vehicle. There is no direct evidence of this. The only evidence from which the trial judge could infer this finding is a dent found in the back of the deceased’s vehicle and that the paint on this dent is consistent with the colour of the accused’s vehicle. The colour of the accused’s vehicle is green and that he had a bull bar with black paint.

The evidence of paint was given by Chief Superintendent Geno. This witness examined the deceased’s vehicle the day after the killing. He described his findings in the following terms:

“as a result of this inspection I noticed dirts on the left rear tail gate - they were evenly spread on the left hand side of the vehicle ... . I could see black and green paint contacted into the vehicle.”.

Constable Felix Mou also gave evidence of paint on the back of deceased’s vehicle. He was asked:

“Q. In January 1981 - did you authorize an inspection of these two vehicles to see if they - had foreign paint on them?

A. I saw white and black paint on the rear tray of PTA truck driven by the deceased.”.

No further description is given by these two witnesses as to the dents found on the back of the deceased’s vehicle. There is no evidence from these two witnesses as to whether these dents looked fresh or old.

It is apparent from the photographs that were presented at the trial and the evidence given by the photographer, that certain directions were given to policemen to take parts of the back of the tray of the deceased’s vehicle for examination. It is apparent that these parts were removed with the paint on it presumably for purposes of scientific examination. There is absolutely no evidence given by the police as to what happened to these parts as to whether the parts that were removed became subject of scientific examination and if so what were the results. The state of the police evidence that the paint that was discovered at the back tray of the deceased’s vehicle came from the appellant’s vehicle is unsatisfactory. This evidence leaves much to be desired. There is also no evidence to describe the amount of impact on the back of the appellant’s vehicle. The onus is on the State to prove this beyond reasonable doubt.

There is also some suggesting in the State evidence that the deceased’s vehicle had been removed from the original place where it was first parked. His Honour found this to be consistent with the appellant’s vehicle being rammed into the back of deceased’s vehicle. There is no evidence of the tyre marks on the road to indicate whether there were any signs of whether the vehicle had been driven along or skidded along. The state of the evidence is unsatisfactory and it is unsafe to come to the conclusion that the deceased’s vehicle had been rammed. Even if the paint found on the back of deceased’s vehicle was consistent with the colour of the appellant’s vehicle, that would not implicate the appellant. The hypothesis is open that the deceased may have backed his vehicle into appellant’s vehicle. This has not been negatived by the State.

This finding by the trial judge was one of the facts from which he inferred that the appellant ran towards his vehicle and drove his vehicle, which places him in the vicinity of the killing of the deceased.

1(C) THAT THE APPELLANT WAS WITH PENG WHEN HE ATTACKED THE DECEASED

There was no direct evidence of this finding. The trial judge inferred this from facts which he found:

· the appellant was seeing to have followed Peng shortly after Mr. Peng escaped and was seeing running in the same direction.

· that the appellant drove his vehicle and rammed the back of the deceased’s vehicle which places him in the vicinity of the killing and that the appellant was identified by two witnesses who saw him running from the scene.

I have already dealt with some of these findings and I will deal with the evidence of identification now.

1(D) THAT THE APPELLANT WAS THE MAN IN THE ORANGE SHIRT SEEN BY THE WITNESS BEPIL KIL RUNNING AWAY FROM THE DECEASED’S BODY

The witness Porep Kewi was one of the eye witnesses who first saw the deceased’s body. She stated that she saw four people running away. However, her evidence is of no assistance in the State Case as she in no way identified any of the people running. She later witnessed the arrest of the appellant at the dancing place. She was not able to give any positive evidence on what the appellant was wearing. The following question was put in examination in chief.

“Q. When you saw him come in - know what he was wearing?

A. I did not see clearly what he wore but I saw that shirt. (indicates Exhibit “C”)”.

Her evidence in any case is of little value as she was a little bit blind.

The next eye witness identified the appellant is the witness Bepil Kil. This witness was with Porep Kewi when they came across the body of the deceased on the road. She stated that four men ran away into the coffee gardens and then saw another man running after. The trial judge rightly concluded from the evidence of this witness that she did not positively identify the face of the appellant.

However, His Honour found that she was able to recognise that the fifth man was wearing an orange jacket or shirt. When the appellant was later arrested at the dance place he was wearing an orange jacket which is Exhibit “C”. The trial judge concluded from this witness’s evidence that the fifth man seen running away with orange jacket was the appellant. Apparently, the trial judge was satisfied that the witness Bepil Kil saw the same orange jacket worn by the appellant was the same one worn by the man running away from scene. With respect, I find that this witness’s identification of this orange shirt is unsatisfactory. The circumstances in which she identified the orange jacket leaves a lot of room for a possible genuine mistake. This orange jacket was identified in the dark and that it was a quick glance. There is absolutely no evidence by this witness as to the type of orange jacket she saw and she does not give any other description. It would appear from the evidence that she also gave no description of the size of the man wearing this jacket. I have seen the appellant during hearing of this appeal and he is well-built and a big man. On the facts of this case, it could not be proven beyond reasonable doubt that the orange shirt seen by the witness Bepil Kil was the same orange shirt (jacket) worn by the appellant.

Further, it was not proven beyond reasonable doubt that the appellant was the only person wearing an orange shirt or jacket at the dancing place. This matter was raised in cross-examination by the defence counsel.

“Q. Were there many people at the social dance?

A. A lot.

Q. Were many people wearing different colours at the social?

A. All different.

Q. You think it is possible that more than 3 people wore orange top?

A. No.”

This matter was not taken further by the state prosecutor in re-examination and therefore the possibility of one or two others with a orange shirt at the dance was left in the air. The onus is on the state prosecutor to prove beyond reasonable doubt that the appellant was the only one with the orange shirt.

Further, the evidence of both these two witnesses is not consistent. According to witness Porep Kewi, she stated that she went to the dancing place first and then the appellant came in after. However, witness Bepil Kil stated that the appellant was already in the dancing place when she and Porep Kewi came into the dancing area. These two stories cannot be reconciled and the trial judge in his reasons for decision did not deal with the inconsistency. I conclude from the whole of the evidence of these two witnesses that the identification of the orange shirt worn by the man running away from the scene of killing is unsatisfactory and it would be unsafe to conclude that the orange shirt seen was the same orange shirt worn by the appellant that night.

1(E) THAT HE COULD NOT ACCEPT ANY OF THE APPELLANT’S STATEMENT FROM THE DOCK AND THIS FACT ADDED TO THE INFERENCE OF THE APPELLANT’S GUILT

I do not find it necessary to consider this ground in any great detail as I have come to the conclusion that His Honour erred in respect of other findings and a finding that the appellant was not telling the truth, on its own could not support the conviction. The law in this regard is set out by the Privy Council in Broadhurst v. Queen SC254.html#_edn218" title="">[ccxviii]²:

“It is very important that a jury should be carefully directed upon the effect of a conclusion if they reach it that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying it must be because he is guilty and accordingly to convict him without more a do. It is the duty of the judge to make it clear to them this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which a jury can properly taken into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than the guilt that might account for untruthfulness.”.

The facts upon which I have concluded in this case are such that it would not be safe to infer the guilt of the appellant from the finding that he was lying.

2. THAT THERE IS NO EVIDENCE OR FINDING BY THE TRIAL JUDGE HOW OR IN WHAT WAY THE APPELLANT AIDED IN THE WILFUL MURDER OF THE DECEASED

Assuming that the findings by the trial judge were upheld and that the appellant was seen to have ran towards the same direction as Mr. Peng about 2 1/2 minutes later, there is still insufficient evidence to support a conviction. There is no evidence that the appellant met up with Mr. Peng after running from the dance place. There are many questions still to be answered. At what point in time did Mr. Peng strike the deceased? Was it before the appellant met up with him? Or was it after appellant caught up with him? If he was present what part did the appellant play in aiding and abetting? In what way did he encourage Peng?

The evidence falls short of proving these matters. At the most it can only be inferred that the appellant was seen running within the vicinity of the body. The most he could have known about the body was when he saw the deceased lying down. According to one of the two women he simply said he saw a man lying and he was not sure if he was drunk or not. Whether or not this was a reasonable version to accept is left in the air by the State. No evidence was led by the State on the position of the body on the ground. The possibility is that the appellant came upon the body after he was attacked. There is no evidence that he knew anything about the attack. The State evidence at its best is that the appellant was seeing running after four men. What did the oour men do is not clear. It is not clear who these four men were. If John Peng was the principal offender, he was not identified as one of the four men seen running.

On the whole of the evidence, State failed to show that the appellant was with Peng when he struck the deceased and that he aided Peng in the killing.

For all these reasons, I would allow the appeal, quash the conviction and sentence and discharge the appellant.

Having allowed the appeal against conviction, it is not necessary for me to consider the ground of appeal against sentence.

KAPUTIN J: Due to human fallibility the appellate court must always take heed of the possibility of being swayed to a point of almost, so to say, “running a second trial”, especially if the Court is asked to make its own findings of fact, or to draw its own inferences from the findings of fact by the trial judge or from other facts. There is nothing wrong with all this of course, since the Court of Appeal can be asked to do these things. The law allows that. In Papua New Guinea the Supreme Court has a constitutional duty to form its independent opinion as to the proper inferences from evidentiary facts. And the parties have a constitutional right to the decision of the Supreme Court on the merits of the case.

I am not suggesting that trial judges are immortal men who can make no errors. They are not and that is simply why appeals are raised. They are human and therefore are liable to make errors.

But the question as to whether the Court of Appeal is in as good a position or better than the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial judge; and the question that on deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the trial judge; all this has been well settled long ago by common law authorities. Two of the latest cases where this Supreme Court referred to the principles are Karo Gamoga v. The State SC254.html#_edn219" title="">[ccxix]³ and James Neap v. The Independent State of Papua New GuineaSC254.html#_edn220" title="">[ccxx]⁴. What I am coming to is this, the principles as to what the Court of Appeal can do must never be taken lightly.

In Laird v. Mitchell SC254.html#_edn221" title="">[ccxxi]⁵ Macrossan S.P.J. said and I quote:

“... The question of whether there was a reasonable doubt was in the first instance for the Magistrate,” (trial Judge) “and before we can set aside the conviction, we must come to the conclusion that a judicial tribunal, seized of its duty, cognizant of the essential requirements of proof, and properly directed as to the law, was bound to entertain at least a reasonable doubt as to the guilt of the applicant.”

This statement was approved by Frost S.P.J. (as he then was) in Al Bovelt v. Peter John LenehanSC254.html#_edn222" title="">[ccxxii]⁶. The test is a sound one and should always be remembered.

It should be emphasized that what is done on appeal is sometimes going through the evidence again but this time it is only seen in print. Written evidence can paint a very different picture altogether. For instance, the evidence as appears in writing on paper, after the trial judge has made his findings of fact and has made his inferences, may look attractive and cogent in support of the appeal. However, in a real live situation the trial judge was in a position to evaluate at first hand the credibility of the witnesses and the veracity of the evidence. This means that what facts he finds are based upon what evidence he believes. So that any material that may be left after his findings, although appearing on paper to be convincing, would be completely valueless. At the trial the Court also has the best opportunity to form a general feel of the case as to the finding of guilt, which in most cases can never be reproduced in a Court of Appeal.

In a Supreme Court judgment of Lewis v. P.N.G.SC254.html#_edn223" title="">[ccxxiii]⁷ at pp.234-235, his Honour Mr Justice Miles expressed more or less the same thing in these terms:

“In deciding the merits of the case on appeal however one new matter arises and that is the decision of the trial judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court judge. In some areas the Supreme Court may properly be more reluctant to differ from the National Court judge. On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in apportioning blame for contributory negligence, or assessing damages for pain and suffering, the trial judge’s finding, based on his own opinions, should carry substantial weight. So too where the finding is one of a ‘primary fact’ or ‘evidentiary fact’ rather than an inference from such facts (if the distinction may be drawn), the trial judge’s decision should rarely be disturbed.”

Although this was said in relation to a civil case, the principle is the same in a criminal matter.

On appeal therefore, the Court has to be very cautious about the submissions put to it, especially on the way counsel places emphasis on the nature of the evidence.

The case from which this appeal arose however, was a very difficult one indeed. The conviction was based mainly on circumstantial evidence and being so, the essential facts must be clearly found by the trial judge and each link established not only to enable a rational inference of guilt to be drawn, but to ensure that it is the only rational inference that the circumstances will enable to be drawn. But in the present appeal this is far from it. Applying the test in Laird v. Mitchell (supra) I have come to the conclusion that there is a reasonable doubt existing as to the guilt of the appellant and that the verdict should be set aside on the ground that it is unsafe as well as unsatisfactory. In Kampangio v. The QueenSC254.html#_edn224" title="">[ccxxiv]⁸ the Supreme Court in the majority decision of Minogue A.C.J. and Frost J. says in the headnotes:

“The Full Court should allow an appeal where it thinks the verdict should be set aside on the ground that it is unsafe or unsatisfactory from which it follows that the verdict ought to be set aside where the Full Court has a lurking doubt about the matter which makes it wonder whether an injustice has been done.”

I have come to this conclusion for the same reasons which my brother judge, his Honour Kapi, D.C.J., has canvassed in his reasons for judgment. As these reasons are so obvious, it is unnecessary for me to go through them again myself.

GAJEWICZ J: I have had the advantage of reading the draft judgment of his Honour, Kapi, D.C.J. and for reasons stated by him I agree that the appeal should be allowed, the conviction quashed and the appellant discharged.

Lawyer for the Appellant: Mr Arnold Amet, Public Solicitor

Counsel: Mr Arnold Amet

Lawyer for the Respondent: Mr Les Gavara-Nanu, Public Prosecutor

Counsel: Mr John Byrne

SC254.html#_ednref217" title="">[ccxvii]^{Unreported judgment of the Supreme Court, SC178 dated, 29th August, 1980.}

SC254.html#_ednref218" title="">[ccxviii] ^{(1964) A.C. 441 at 457}

SC254.html#_ednref219" title="">[ccxix]^{Unreported Supreme Court Judgment SC 212 dated 27th October 1982}

SC254.html#_ednref220" title="">[ccxx]^{Unreported Supreme Court Judgment SC 234 dated 1st October 1982}

SC254.html#_ednref221" title="">[ccxxi] ^{(1930) St. R. Qd. 38 at 43}

SC254.html#_ednref222" title="">[ccxxii]^{(1973) P.N.G.L.R. 454}

SC254.html#_ednref223" title="">[ccxxiii]^{(1980) P.N.G.L.R. 219}

SC254.html#_ednref224" title="">[ccxxiv]^{(1969-70) P.N.G.L.R. 218}