Byawako v The State [1991] PGSC 5; SC417 (9 October 1991)

Unreported Supreme Court Decisions

SC417

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC APPEAL NO 98 OF 1989
BETWEEN: PAUL KOMBE BYAWAKO
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ Sheehan Jalina JJ
27 November 1990
9 October 1991

CRIMINAL APPEAL - Application to introduce fresh evidence - Appeal against conviction on grounds that decision against weight of evidence.

Counsel

Paul K Byawako, appellant, appearing in person.

C Manek, for the State, respondent.

DECISION

KAPI DCJ SHEEHAN JALINA JJ: The appellant was convicted of wilful murder before the National Court at Mt Hagen on 2nd of November 1989, and sentenced to life imprisonment.

The essential facts which form the background to this offence have been set out in the decision by the learned trial judge. In brief they are that on the 6th of April 1987 there was a tribal fight between the Kiakai and Yaigamani Clans in the Wapenamanda area of Enga Province.

That day the two warring tribes lined up opposite each other armed with bows and spears. But before battle was joined, a man from the Kiakai line was seen to step forward and fire several shots from a shotgun at the opposing clan. One of those shots killed Kirink Taian. The trial that followed two and half years later resulted in this appellant being found to have been the man who fired the shotgun and guilty of the killing of Kirink Taian.

In this appeal the accused has appeared for himself and he sought to introduce a certain “new” evidence under the provisions of s 6 of the Supreme Court Act. That evidence was largely details of post-trial investigations which, inter alia, ostensibly contradicted prosecution witness views of just which clans were involved in this inter-tribal fight that day, the nature of the terrain on the fighting ground and further speculation on possible reasons for the appellant having been deliberately “marked” as responsible for killing by the deceased’s clan. There was also alibi evidence and evidence that the Occurrence Book at the Kadibo Police Station had no record of the killing; the relevant page of the book having being removed.

This Court declined to allow any of this as fresh evidence because it was found to be speculative opinion, or in any case, available at the time of trial. In the case of the page removed from the Occurrence Book this was seen as equivocal and not considered as having such significance as to warrant being introduced as fresh evidence.

The appeal then continued on the grounds that did not rely on that “new” evidence.

It was the basic contention of the appellant that his conviction was against the weight of evidence. He said that because all the State witnesses were members of the clan of the deceased they could not be regarded as impartial witnesses. Contrary to what the learned trial judge found in his judgment, they did have good reason to mislead the court with regard to the accused by “marking” him because of his known affiliation to the opposing Yaigamani tribe.

He also said that the learned trial judge was in error in failing to acknowledge the consistent evidence offered by the defence witnesses from the Kiakai clan who in fact stated that it was their own clan member, Poko Ipakai, who was responsible for this killing.

A further ground acknowledged the learned trial judge’s findings that as the fighting zone was flat and without trees or long grass it had to be plain and obvious that the participating warriors could see each other well and clearly. And, just as obviously, the person responsible for the shooting should have been clearly identifiable. Yet it was not until eight months after the killing that the accused was arrested and charged. Despite the fact he had been regularly coming and going to and from Wabag each day, was well known as a school teacher in the area, the fact that it took so long to arrest him, had to, at least, suggest that he was not the person first blamed or named as responsible for the death of the deceased.

In this case the State witnesses as to the shooting were all participants in the tribal fight that day and were all from the clan of the deceased. Each said that they had clear view of the person responsible. They said that it was the accused and they said they knew him as a teacher in the area. They were equally certain it was not Poko Ipakai from the clan opposing them in the fight that day. Poko was known to them also, but it was not him. The denial by the accused that he was present at that fight was not accepted by them or the court. His alibi supported by the Enga Provincial Minister who testified the appellant was working in Wabag that day was also not considered sufficient to raise any doubts.

At the end of the trial after evidence had been adduced by both State and defence the learned trial judge found himself faced with contradictory evidence. He said:

“I am therefore faced with two sets of witnesses. The State witnesses say it was the accused. The accused witnesses say it was Poko. Someone is lying. This was a killing close, and in the clear view of many people, ...

Here the accused is not a stranger. So who do I believe or can I believe?”

In deciding that the prosecution witnesses were telling the truth, the learned trial judge considered that if the prosecution witnesses had wished to be vindictive, they would surely have named one from the enemy camp rather than an outsider such as the accused. There was in any case, he said, no evidence offered that anyone volunteered any name other than that of the accused during the two and half year investigation leading up to the trial.

Following on from that he considered that there could be no inferences drawn from the fact the accused was not arrested until eight months after the killing.

In a criminal trial it is for the prosecution to prove its case beyond reasonable doubt. That is well known. It is equally well known that the accused does not have to prove that he is innocent of a charge. He need not offer any evidence whatsoever. If defence evidence is offered, certainly it becomes part of the evidence in the trial. But when the defence offers evidence contrary to, or inconsistent with, the prosecution case, then it must be seen as testing the prosecution case. It must be looked at to see whether it raises any doubt as to the prosecution case.

The proper position is that at the end of a criminal trial when all the evidence is in, the court must examine the evidence to see whether the prosecution evidence establishes the charge against the accused. If the prosecution evidence is prima facie sufficient to establish all the necessary elements of a charge, the proper manner in which to assess the defence evidence is to ask, has that evidence raised any reasonable doubt on any relevant matter? If it does then the prosecution has failed to prove its case. If upon consideration the court rejects the defence evidence, then it must state its reasons for so doing.

It must also be remembered that when the defence offers evidence of its own, even if that evidence is not accepted, whether as irrelevant or untrue, such a finding in no way advances the prosecution case unless that evidence can plainly be recognised by the court as evidence deliberately given, a lie deliberately told, to hide the truth from the court.

Here the learned trial judge found that the prosecution witnesses had no reason to lie, because the appellant was not a member of the opposing clan. But on the same reasoning neither did the defence witnesses, members of Kiakai clan, have reason to name one of their own as the true culprit. In fact, they would have less reason to nominate a member of their own clan as a murderer of their enemies.

The learned trial judge goes on to say:

“The Police have investigated the case for two and half years. There is no evidence at all that any one even volunteered any name to the Police as culprit until the trial was in progress last month and suddenly we have a fresh name suggested. If the leaders and responsible people like the defendant witnesses were concerned at doing their duty they could have and should have assisted the Police earlier with the appropriate evidence.”

Though obviously not intended, there appears to be an implication here, that there was a legal duty for the defence witnesses to have come forward with the name of the supposed killer once they learnt that the appellant had been arrested for that offence. This reasoning carries with it the implication that the defence witnesses are obliged to justify the evidence that they gave. There is in fact no duty or obligation on them to do so.

Again the issue of the delay in charging the accused was squarely raised by the defence. The learned trial judge states:

“It is submitted that I should have inferred from the delay between the time the killing took place and the arrest - eight months later, but how can I if there was no evidence presented or question asked to the Police as to why the delay or if they were told about Poko? So how can the fact merely of a delay suggest doubt in the Police mind? If Poko name has been given to the Police earlier the evidence as to how the Police discounted his involvement may have been appropriate. But when the name is only presented half way through the trial after the adjournment to enable the defence to find its name and witnesses - two and half years after the incident there is no onus on the State to find him.”

With the above passage recorded in the manner set out, we cannot find that there is any other way of interpreting it other than as a requirement on the part of the defendant to have introduced evidence as to the delay and reasons why the appellant or his witnesses had not named the probable culprit earlier.

In any trial it is not the defence that has the obligation of proving anything, it is the prosecution case that is to be tested. In a criminal prosecution the State in effect says that on the witnesses that it alone produces, the case can be proved against an accused. In this case it offered only “eye-witness” evidence from the clan of the deceased. There was no evidence from Police officers involved in the investigation at all. There was thus no explanation offered as to why the Police required two and half years to investigate this case. There was no evidence offered as to why it was eight months after the event that the appellant was arrested and charged. These were matters which were legitimate queries that the defence should raise without any obligation on its part to provide the answers to them.

In this case the Court found, not unreasonably, that the person responsible must have been easily identifiable by many people:

“... a man was killed in full view of many people before any real muddle and confusion was going on. It is inconceivable that they would be any confusion over who was responsible.”

If that was so then there was a serious issue raised, going to credibility if not identity, as to why it took eight months to arrest this man who according to the evidence (not challenged by the prosecution) had been during the whole of that time, freely coming and going throughout Wabag and the Enga Province, without any reaction from the population or having any Police queries made of him.

All these were matters which in our view required explanation, not by the accused, but by the prosecution. The fact that the defence raised these matters in the trial though it could not answer them, does not go to the credibility of the defence, but to the overall credibility of the prosecution case. Notwithstanding that the learned trial judge was a judge of fact, able to determine the credibility of the witnesses before him, we must conclude that when considering the evidence before him, the learned trial judge did not adequately direct himself as to the consequences of the prosecution’s failure to address the issues raised by the defence. It seems to us that, without adequate prosecution explanation of the matters raised by these challenges or the court’s reasons for rejection of them, it is not possible to say that some doubts were not raised by the defence.

In the circumstances, we believe the appeal should be allowed. The conviction is therefore set aside.

Appellant appeared in person.

Lawyer for the respondent: Public Prosecutor.