Kil v The State [1990] PGSC 4; SC395 (12 September 1990)

Unreported Supreme Court Decisions

SC395

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S C APPEAL NO 80 OF 1989
JOHN KIL
V
THE STATE

Waigani

Kidu CJ Amet Los JJ
29 June 1990
6 July 1990
2 August 1990
12 September 1990

KIDU CJ AMET LOS JJ: The appellant, John Kilburn Kil, was convicted of murder by the National Court in Mt Hagen on 11 September 1989 and sentenced to imprisonment with hard labour for 9 years. His appeal to this Court is against conviction.

Mr Kil conducted his own appeal and we must say that he did so with considerable ability, considering he was only provisionally admitted as a lawyer in November 1988 and has never practised law.

FRESH EVIDENCE

When the appeal came on for hearing on 29 June 1990 the appellant applied to call fresh evidence pursuant to s 6 of the Supreme Court Act (Ch No 37). Leave was granted (the State did not oppose the application). The fresh evidence sought to be called was that of an alleged confession by a State witness called during his trial (Mikmik Lupa) made after his incarceration that he (i.e. Mikmik Lupa) had been the one who stabbed the deceased (a male) and thereby causing his death.

Three witnesses gave evidence on behalf of the appellant. Two of these witnesses gave evidence that they had heard of Mikmik Lupa’s admission. Clearly their evidence was hearsay and cannot be considered by the Court. The third witness, Gorai Mondo, said he had been present at a meeting at which Mikmik Lupa had made the admission:

“Q. Something was said at the meeting, what was it?

A. ... during the discussions Mikmik Lupa admitted that he killed Willie.

Q. Were you present when Mikmik made this admission?

A. Yes, I was present and I heard it myself.”

Mr Mondo’s evidence was not impeached on cross-examination by Mr Noka, the lawyer for the respondent. Mr Noka endeavoured to show that as the witness did not report the admission to the Police, he should not be believed. But a reason was given for this failure:

“Q. Did anyone report the outcome of the discussions to the Police?

A. I did not report it to the Police. I was scared and my tribe is small.

Q. From time of admission to this day you have not reported this to the Police?

A. No, I have not, because we have received a big compensation payment and if my tribe makes a noise it might trigger a fight.”

The evidence given by Mr Mondo would have been admissible in the trial and if accepted by the trial judge this evidence would have resulted in the appellant’s acquittal, as the trial judge would have had to disbelieve Mikmik Lupa and other State witnesses.

The appellant urged that if the Court believes Mr Mondo’s evidence it should quash his conviction and enter a verdict of “Not guilty” or order a new trial. But he argued that since new trials are rarely ordered in this jurisdiction, his conviction should be quashed and a verdict of “Not Guilty” entered. This argument, of course, cannot be accepted as there have been some re-trials ordered by this Court.

If the fresh evidence was the only matter the Court had to consider we would order a new trial in this case but this is not so. There are eleven grounds of appeal which require consideration and they are:

1. The trial judge erred in admitting into evidence and accepting exhibit “B” as the murder weapon. As it was under the circumstance of the case, it was not established that the exhibit was the murder weapon, and it was not proved that such a knife or any knife at all was given to the police to be used in evidence, and there were doubts in the learned judge’s finding that I had handled the knife or any knife when the stabbing allegedly occurred, and there were doubts as to who actually owned and possessed the knife or any knife before, during and after the alleged stabbing.

2. The trial judge erred in admitting into evidence and accepting exhibit “A” as the black coat I was alleged to have worn and from which the murder weapon was said to have been produced from concealment, when there was no evidence at all to show that I had worn the coat and it was taken from me to be used in Court.

3. The trial judge erred in admitting into evidence and relying on an unsigned record of interview and/or his failure to state the Court’s position on this matter constituted the error itself.

4. The trial judge failed to caution himself on the evidence of the State witnesses that they were:

biased, fabricated and flimsy, when their evidence in all had these characteristics and especially when the key State witnesses were all “brothers” of the deceased and from the same village.

5. The trial judge failed to caution himself on the witnesses identification of me as unsafe to rely on because of the particular facts disclosed by the case in particular the circumstances the evidence disclosed, that the coat factor was not established and proved beyond doubt, that customs, practise, traditions and attitudes prevalent in situations like the alleged killing in a particular area needed the evidence to be received with caution, and, the approach to me by the deceased’s line after the death of the deceased and the questions asked ought to have raised the doubt and hence the need to caution.

6. The trial judge failed to consider the major flaws in the evidence of the State witnesses which threw so much doubt on their credibility as witnesses of truth and the flaws in themselves, the time of arrival of these witnesses, the amount paid as entrance fees and what had happened to the deceased right after being stabbed, threw the whole case in doubt, especially the witnesses credibility.

7. The trial judge erred when he made out a case for himself by compromising evidence from both parties. He was not at liberty to do that; he only had to elect which party’s evidence he would reject and which to accept after satisfying himself of the evidence he accepts that there is no reasonable doubt.

8. Trial judge erred when he rejected oral and medical evidence of a fight in which the deceased was stabbed in a confusion and no-one was able to see who had done the stabbing, even after the Defence evidence was strengthened by State’s evidence called in rebuttal.

9. The conviction in all the circumstances of the case is unsafe and unsatisfactory; in particular, Section 300(1)(a) of the Code was not satisfied of its elements of motive and intention to do grievous bodily harm and in all a judge or jury sitting alone ought to have entertained a reasonable doubt on the facts of the case and would not have found the case proved by the standard recognized by law.

10. The learned judge was biased in his decision to convict me; in particular that he had previously refused to grant me bail for murder and the fact that I was an provisionally admitted lawyer, and because of the general law and order problem in the Highlands, especially Western Highlands Province and the general approach by the trial judge and the manner in which he handled it.

The eleventh ground of appeal was with respect to the sentence but was abandoned.

In his judgment the trial judge summed up the State’s case but we reproduce the whole judgment as it is very short and also most of it is relevant for purpose of the appeal grounds:

“The accused, John Kil, is charged with the murder of Willie Warea on the night of 17th December last year. The evidence is of a dance at the Puguwa Social Club near Tambul. Estimates vary as to how many people were there ranging from about 200 to about 400 if we take the figure of the gate-takings. The Club appears to be a fairly large club with a large building itself and a large area around the building between the fence and the building. There was lighting in the Club and even by the owner’s evidence, the lighting appears to be adequate. The State’s evidence is that late in the evening there was an argument at the entrance gate which appeared to involve some of the line of the deceased. The accused who had been at the dance for some time already that evening apparently had come outside of the hall for some reason and came over to the gate to find out what the trouble was and to either control or dispel or do something to solve the arguments at the gate which appeared to be developing into a fight. The State’s case is that he then returned to the dance-hall and there was a confrontation of some sort within the dance-floor with the victim and another person and the accused was alleged to have produced a knife, struck at Elvis Galewa and then struck at the deceased, penetrating the deceased’s chest and the deceased died shortly thereafterwards.

The accused denies stabbing the deceased. In his story he admits being at the dance that night and he had been inside for a while and he came outside and he went to the gate to see what the problem was and he gives his story of being attacked at the gate and chased by the deceased’s line and was beaten up outside the hall and even inside the hall and he does admit to handling the knife at some stage but he denies that he actually stabbed anybody with the knife.

However, there is no real evidence to support his story. In evidence he denies that when confronted by the line of the deceased later that evening he had admitted killing the deceased. He just states that when faced with the group of line of the deceased, he said; “Well, look, kill me if you want to.”, “If you want to kill somebody, kill me,” but he denies that he actually admitted killing the deceased.

Submissions on behalf of the accused suggest that the evidence raises a number of questions. There are various stories by witnesses as to the extent of the fighting. Of course, different people see fighting in such a situation in different ways depending on their involvement or where they are. However, there is no evidence that the dance-hall was too packed with people dancing and fighting. The extent of the confusion about the fighting is really conjecture by vague estimates of the number of people, not by eye-witnesses of the details of any apparent fighting in the hall or in the area. The owner himself is vague. I’m not sure that what he is talking about is actual fighting around the hall when he finally appeared on the scene or whether it was the kind of arguments you get in a large group of people with a bit of minor fighting. But there’s no real evidence that there was so much fighting that the stabbing itself would have been so confused that it would be impossible to identify who did the stabbing. There’s no evidence to suggest that the amount of fighting inside was such that nobody could have identified or seen the stabbing.

So the extent of the fighting whatever there was does not really take away the clear eye-witnesses’ account of the stabbing.

Another question raised concerns the approach by the line of the deceased to the accused when he had been taken into the bar-room afterwards and the way that they asked him, ‘Did you kill Willie?” However, I see this really as a confused approach in the shock of the moment confirming what the deceased’s line could not really believe and seeking answers as to why this had happened. They really wanted an admission out of the accused’s own mouth. It didn’t appear to me in their evidence to be saying, ‘Look, we don’t know who did it. Did you do it?” It was more a matter of seeking an admission because in the heat of the moment they were a bit stunned by what had happened. That then raises the next question as to the motive. There is no clear motive. Motive is not always necessary in any murder case. It can help, but it is not necessary to prove a murder and in this case, I am not sure what the motive was, even myself, but as I said, it’s not necessary. Perhaps it was a more drunken reaction to a confrontation but we don’t know.

The evidence of the knife involved is quite clear. It was recovered immediately after the incident and I can’t see any doubts about it. It was recovered immediately after the incident and handed to the police and I can’t see any evidence about the knife which can lead to any confusion on who did the killing.

In summary, we have a fatal stabbing in the middle of a dance in a fairly large club. Many people were there. There is a way to come to this club. So it may not have been exactly in their own area. There is evidence of lighting in the club and the evidence does not suggest that the lighting was impossible to see anything. So the evidence appears to be that there was sufficient lighting and we have a stabbing, a fatal stabbing. People must have seen the stabbing, no matter how confusing the scene may have been and I am not satisfied that the confusion was really all that bad. Some people would have seen the stabbing and some people did see the stabbing. The State witnesses have come to this Court and they have given their evidence. They saw the stabbing and they identified who did it; they’ve named the accused. No-one had given any other version of the events. So I am entitled to accept the version given to me by the State witnesses. Their evidence was clear and in actual fact in cross-examination it was confirmed and made stronger. Of course, the accused denies it but his denials are in themselves not very clear.

I find that there can be no other explanations of the events that night but that the accused JOHN KIL was responsible for the fatal stabbing of the deceased. Such a stabbing must infer an intention to cause grievous bodily harm. I therefore find the accused guilty of the murder of Willie WAREA.”

We make some general observations on some of the things the trial Judge said in his judgment. The first is his statement with respect to the appellant’s evidence:

“However, there is no real evidence to support his story.”

This seems to indicate that his Honour thought that the appellant’s story should have been corroborated or supported by other evidence. The law, of course, does not say this. Apart from certain types of evidence in sexual cases or evidence of accomplices the law does not require an accused person’s evidence to be supported or corroborated by other evidence. It goes without elaboration that there was a clear error of law made by the trial Judge.

The second observation we make is with respect to the treatment of the testimony of defence witness, Joe Wangi, the owner of the Club where the deceased was stabbed. We set out relevant parts of Mr Wangi’s evidence:

Q. What did you do leading up to the trouble and what did you see?

A. At this time I was sleeping in my house. It is not far from my club. When I was still in bed I heard a lot of noise and I heard people saying fight, fight. I ran to the gate and I came there and the men started fighting. I went to stand in the middle of the fight to settle the fight. When I stopped the fight I saw the member for yano Clan fight with the member of Aiyaka clan and a boy from Tueba the son of Monda, Alphonse Monda. They fought with him.

Q. Why they fight with him?

A. The Yano clan got up and fought with Alphonse Monda because he was talking with a girlfriend of a Yano man. they fought him badly outside and I took him up to the gate. When I took him inside I asked Yano clan to get out to gate and I told gatekeeper not to open gate to let them in. I asked gatekeeper not to let them in because this third time Yano boys caused trouble. I took Alphonse into the dancing-hall. I let him stay inside and I stood there for 10 or 15 minutes. They fought again from outside into the club. This time the Yano clan waited to fight with Alphonse again. They broke the gate and fought with the gatekeeper and they came inside when they come inside they fought with John Kil outside and I saw Jack yangon and Aruru Eram, they two fight with John. I knew then they fought with another two men prior to this inside at a previous dance. I gave Jack a hard push and he fell and one who came close to me I grabbed him tightly. I pushed both of them outside and I ran inside and I saw them fighting inside. When I came inside I saw there was a fight in all parts of the club. they fought in all corners of club involving children, women and men. They were trying to push each other and get out of the building. When I saw that I saw fighting in all corners of the club. When I tried to stop in one side three was fighting on the other side. I tried my best but I could not help. When I came to the middle of the club I felt someone come close and scratched me and I saw Willie Warea. He said something “Kas”. I looked at him, he told me that “someone had hit me with a pocket knife”. I saw it was bleeding and then assisted him to walk to the doorway and he took a step from door outside. I felt him lose his weight and trying to fall. When he fell and landed down, many who were at the club came around and surrounded him. Some ran away outside the gate and some were running out from inside. I discovered later that the members of my group had gone home. I ran out to the gate to my vehicle. When I switched a light in car I saw it was 11.45 pm. I then opened toolbox and got a 20 litre fuel container and I took petrol to generator and refilled and let the lights on till next day. In the morning the Yano people got the body and went home. I went to buy coffin and blankets. I put body of Willie in the box and then took it to Hagen.

Q. These Yano boys do you some others of them as well as Jack and Aruru?

A. Elvise, Mikmik, Pokapi Jim and some others came with the group.

Q. Do the Yano boys frequently came to your club?

A. 3 times I put the live band on and they came.

Q. What you know about their character and behaviour?

A. They cause trouble there 2 times they have fight with 2 boys from my clan.

Q. When you saw them come in were they drunk?

A. They had been drinking and were drunk.

Q. You saw John Kil being chased, what was John doing that time?

A. He went inside that time.

Q. Did you see what he doing inside?

A. I was busy with the fight in all corners.

Q. When deceased held you, did he tell you who stabbed him?

A. No, he did not tell me who.

With respect to Mr Wangi’s evidence the trial Judge said that this evidence was “vague”. He said:

“But there is no real evidence that there was so much fighting that the stabbing itself would have been so confused that it would be impossible to identify who did the stabbing. There’s no evidence to suggest that the amount of fighting inside was such that nobody could have identified or seen the stabbing.”

What “real evidence” had to be shown? Mr Wangi’s evidence was clear. The trial Judge, without justification, merely brushed this evidence aside. If the trial Judge had properly considered Mr Wangi’s evidence he would have noticed that Mr Wangi clearly said that inside the club “there was a fight in all parts of the club” and that “They fought in all corners of the club”. When cross-examined by the Prosecutor, Mr Wangi repeated this evidence and said, “I did not count how many involved in fighting but there was fighting in all corners of the building”. The clear evidence here was ignored, it seems to us, by the trial Judge and in our view this was an error on his (i.e. the Judge’s) part.

In the second last paragraph of his judgement the trial Judge said:

“The State witnesses have come to this Court and they have given their evidence. They saw the stabbing and they identified who did it; they’ve named the accused. No-one had given any other version of the events. So I am entitled to accept the version given by the State witnesses.”

This finding is clearly contrary to evidence. The appellant, Mr Wangi, and the Record of Interview tendered by the State, clearly gave another version of what happened but the trial Judge simply ignored this evidence. Once again we say categorically that the trial Judge erred in his treatment (one might say mistreatment) of the Defence evidence.

The most glaring errors in this case are those relating to the admission of the knife into evidence and the wound which it was supposed to have caused. Firstly the knife was wrongly admitted into evidence. There was to start with, no evidence which connected the knife to the one which the appellant was alleged to have used to stab the deceased. It was supposed to have been handed to a policeman by one of the State witnesses. When the knife was produced in the National Court the three main so-called eye-witnesses testified it was the knife used by the appellant to stab the deceased. How did they identify it? Purely by saying, “That’s the knife.” There were no peculiar features by which these witnesses identified the knife nor was there any mark by which they said they identified it.

The second thing about this knife is that it does not seem to have been the knife which caused the wound sustained by the deceased. Dr Jacob Ollapallil, the surgeon who carried out the post-morten on the deceased, in his uncontested report, described the wound as follows:

“Penetrating injury into the right side chest 2 cm long and penetrating deep into the chest.”

The knife accepted as the murder weapon is 2-3/4 cm long. So it would seem that that knife, nearly 1 cm longer than the wound, could not have been the one used to stab the deceased. Also the knife has a serrated edge. There is no suggestion in the medical report that the wound was serrated. We discern from the evidence given by the State, one curious factor about the knife which was said to have been used by the deceased. Mikmik Lupa said the knife was a pocket-knife:

“Q. Show something?

A. Yes, it is the pocket-knife.”

The knife produced in Court is very definitely a hunting-knife rather than a pocket-knife.

On this evidence of knife and the wound alone, the trial Judge should have seriously questioned the evidence given by Mikmik Lupa, Jack Yangon and others. Quite clearly a serious doubt arose from this and the appellant should have been given the benefit of this. This evidence should have raised serious questions about the alleged admission made by the appellant to these witnesses.

It is our firm opinion from careful reading of all the evidence and the judgment of the trial Judge that justice miscarried in the trial of the appellant.

We allow the appeal, quash the conviction, set aside the sentence and enter a verdict of “Not Guilty” and discharge the appellant.

Lawyer for the appellant: Appellant for himself.

Lawyer for State: Public Prosecutor.