Do and Do Ruin v The State [1992] PGSC 4; [1992] PNGLR 388 (29 July 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 388 - Habi Do and Do Ruin v The State 

[1992] PNGLR 388

SC433

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HABI DO AND DO RUIN

V

THE STATE

Waigani

Kapi DCJ Konilio Brown JJ

29 July 1992

CRIMINAL LAW - Leave to appeal, Supreme Court Act Ch 37 s 22(c).

CRIMINAL LAW - Unsafe and unsatisfactory conviction.

Facts

Appellants, convicted of wilful murder and sentenced to 12 years imprisonment, seek to appeal against both the conviction and sentence. The only question before the Court was whether the trial court's conviction was unsafe and unsatisfactory?

Held

N1>1.       The evidence on which the trial judge relied was, if not suspect, quite lacking in credibility.

N1>2.       The verdict was, therefore, unsafe and unsatisfactory.

N1>3.       Conviction and sentence should be set aside. Appellants acquitted.

Counsel

J Kil, for appellants.

P Mogish, for the State.

KAPI DCJ KONILIO BROWN JJ: These 2 appellants were convicted of the wilful murder of one Kaiya Puri at Baiyer River on Sunday 9 February 1986 by Cory J after a trial lasting some 4 days at Mt Hagen in July 1987. Habi Do is the son of Do Ruin. Both were sentenced to 12 years in jail on 20 July 1987 and have been serving time since then. The appellants originally sought to appeal against both the conviction and sentence, but after, it would seem, the lawyers for the appellants withdrew, nothing further transpired until only recently, when a Prison Visitor was able to pursue the appeal. In the event, Mr Kil now appears for them both, relying on the ground that the conviction was so unsafe and unsatisfactory that it could not stand. He seeks the leave of the Court to appeal required by s 22(c) of the Supreme Court Act Ch 37, the grounds relating to questions of fact.

The trial judge found that these 2 were involved in a tribal fight which occurred on 9 February 1986, when the accused's line confronted the line of the deceased at Ropunda, a place adjacent to the Lutheran Church at Iki. Both lines were armed with bows and arrows, while the appellant Do Ruin had a shield and his son a shotgun. When Do Ruin had a clear view of Kaiya Puri, he said, "That is Kaiya Puri, shoot him", and his son aimed the gun at and discharged it towards Kaiya Puri. Kaiya Puri was carried to the local health centre suffering from a gunshot wound from which he was later found to have died. A postmortem conducted at the Mount Hagen Hospital confirmed this fact.

The judge found that both accused persons' names were given to the police investigating officer, first Constable Ohdonoh of Mount Hagen CIB, on 10 February. The constable went to Baiyer River to locate them without success.

Later, on 24 July 1986, they apparently came to Mount Hagen, where they were arrested.

Mr Kil criticised the trial judge's reasons for those findings.

The judge said that he accepted the evidence of 3 eye witnesses of the deceased's line. Their evidence was, he said, supported by the medical evidence as to the nature of the wound and by first Constable Ohdonoh as to the scene and the alleged suspects. He rejected the evidence of the 2 appellants, their alibi defence and the evidence of 2 witnesses in support.

We need not consider the alibi evidence for we are satisfied, primarily for the reasons advanced by Mr Kil, that the verdict was unsafe and unsatisfactory from the weaknesses inherent in the prosecution case. The evidence, on an objective view, did not support the judge's conclusions.

There was a crucial failure of the CIB Officer to note the names of the suspects in the occurrence book at the Mount Hagen Police Station on or about 10 February. In cross-examination he was asked to check the crime report in the occurrence book and admitted no suspect names nor eye witnesses were then reported there, although dated 10 February. In fact, the statements of the witnesses were not obtained until 25 July 1986, some 5 months afterwards. These statements, it transpired on cross-examination, were taken when one Makap Tupoka, the provincial member, came to see the Constable with Joe Palim and other witnesses, bringing with them to the police station the 2 accused. It would seem to be a classic case of "marking", and the judge's finding that the accuseds' names were known to the police by 10 February, if not erroneous, was clearly subject to doubt in the light of the cross-examination and in the absence of any police notations at the time, notations which one would reasonably expect if suspects were named. The crime report given by Makap Tupoka at 10.00 am on 10 February states that Kaiya Puri of Iki Village, Baiyer River, was shot on the head on Sunday 9 February 1986, in a tribal fight at Metai by a high-powered firearm. No suspects were mentioned and Makap Tupoka, the original complainant, was not called to give evidence to substantiate the assertion of first Constable Ohdonoh that he had been told of the names of the assailants on that day.

Again, since the postmortem report had been tendered without objections and was not critically dissected, we accept that it correctly recites the facts.

The autopsy was performed by Dr Gagina Babona, DMS, the Medical Superintendent of the Mount Hagen Hospital. The deceased Kaiya Puri was identified by his brother Lai Puri. The particulars relating to the time and date of death were 8 February 1986 at 2 pm. This information did not correspond with the eye witness accounts nor the indictment. The brother, Lai Puri, was not called to clarify the discrepancy for the doctor, who did the autopsy on 18 February and relied upon the history given him by the brother.

The internal examination disclosed a 1-1 1/2 cm hole over the posterior aspect of parietal bone (behind the ear), with a fracture 3-4 cms long and severe injuries to the brain mass and the skull. In addition, there was a deep wound over the right arm, which was unexplained in the evidence. The cause of death given was "severe head injuries due to gunshot". There was no evidence of recovery of bullet or shot residue from the head, nor opinion evidence as to whether the injury was caused by a rifle bullet or shotgun pellets.

No evidence was brought to exclude the possibility of the deceased having been shot from the side by others. The eye witness accounts were to the effect that the marksman who fired at the deceased was facing him. In fact, the doctor was not called and no evidence was forthcoming as to the possible trajectory of a bullet or pellet which struck the head in the fashion described, at the rear of the ear.

We feel, with respect, that none of these matters has been properly addressed by the trial judge. The state of the case at the conclusion of the prosecution evidence was clearly deficient in a number of aspects which we have illustrated, and we consider the verdict unsafe and unsatisfactory. No admissions were forthcoming in the defence case.

This Court should make its own independent assessment of facts where they are uncontroverted, in determining whether a verdict is unsafe or unsatisfactory. It is clear the evidence in this case has been misapprehended by the trial judge. There really is no question of a conflict of evidence where the trial judge is in an advantageous position. The evidence on which the trial judge relied in finding that the investigating officer had known of the particular suspects on 10 February was, if not sorely suspect, quite lacking in credibility.

The conviction and sentence should be set aside for the reasons given and a verdict of acquittal entered in respect of each appellant.

Lawyer for the appellant: Peter Steele Lawyers.

Lawyer for the State: Public Prosecutor.