Wamban v The State [1995] PGSC 1; SC479 (16 March 1995)

Unreported Supreme Court Decisions

SC479

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 71 OF 1993
TITUS WAMBAN - APPELLANT
V
THE STATE - RESPONDENT

Waigani

Los Brown Injia JJ
25 November 1994
16 March 1995

CRIMINAL LAW - Appeal against conviction - Powers of appellate court where appeal primarily based on questions of fact and inferences to be drawn - Leave to appeal.

The appellant was convicted of the murder of a young woman whose body was found at Sea Park, Ela Beach, Port Moresby on 10th July 1993. She had suffered serious bodily injury which had caused her death. The appellant was last seen with the woman, who was known to him, on the preceeding evening, when he had been described as drunk while physically assaulting the woman before forcing her into his motor vehicle and driving from Hanuabada Village. The find was based on inferences drawn from facts found by the trial Judge.

Held

(per Los Injia JJ): Leave to appeal granted. The inferences drawn by the trial Judge which led him to the conclusion that, on the facts found, the accused was guilty of causing grievous bodily harm to the victim and consequently her death are reasonable inferences in all the circumstances on our review of the evidence. The appeal should be dismissed.

(per Brown J): The trial Judge’s conclusion that the appellant had cause, opportunity to harm the victim and thus that he was a principal in the murder was by objective assessment, a reasonable conclusion on the uncontroverted facts. Consequently leave to appeal should be refused.

(By the Court): The respondent States concession by its lawyer conceding the appeal does not bind the Court which must apply the relevant law to the issues raised by the Appellant.

(Obiter per Brown J): “It is a shame that the State Prosecutor has not assisted the Court in carrying out its function.”

Cases Cited

Karo Gamoga v The State [1981] PNGLR 443

Lewis v PNG [1980] PNGLR 219

Koni Kambou v The State (SCA 142/92 unreported judgment dated 31st August 1993)

Tom Chinau v The State (SCA 92/92 unreported judgment dated 3rd December 1992)

Rimbuk Pato v Umbu Pupu [1986] PNGLR 310

Brian Kundi Lawi v The State [1987] PNGLR 183

Allan Oa Kuroka v The State (SCA 197/81)

R v Cavanagh R v Shaw (1972) 1 WLR 676

Appeal

This was an appeal against conviction for murder on a charge of wilful murder contrary to s 299 of the Criminal Code.

Counsel

Mr P Ousi for the Appellant

Mr V Noka for the State

JUDGEMENT

LOS J: I have had the benefit of reading the reasons of my brother Judges. I agreed that the appeal should be dismissed. The comments by my brother Brown J in relation to counsel for the State Prosecutor's failure to address the issues raised by the grounds of appeal are echoed.

BROWN J: Titus Wambun was convicted by the National Court in Waigani of murder having stood trial upon one count of wilful murder of a female, Aro Aua of Hanuabada village. The offence was alleged to be committed between the hours of 11:00 p.m. on the 9 July 1993 and 3:00 p.m. the following day. The Appellant denied the offence both in his record of interview with the police and later in his sworn testimony which he gave at his trial.

The Appellant has based his grounds of appeal on s 23 of the Supreme Court Act Chapter 37 which provides that this Court should set aside a verdict where, under all the circumstances of the case the Court finds that it is unsafe or unsatisfactory. The Appellant also says the Court should in any event set the verdict aside on the ground of a wrong decision on a question of law. Before dealing with the various grounds I propose to touch on the relevant sections of the Supreme Court Act which deal with Criminal Appeals to the Supreme Court.

Section 22 provides that a person convicted may appear to the Court against his conviction on any ground that involves a question of law alone or on a question of mixed fact and law. He may with leave of the Court appeal against his conviction on any ground of appeal that involves a question of fact alone or that appears to the Court to be a sufficient ground of appeal. Section 23 then provides power in the Court to allow the appeal if the verdict is unsafe or unsatisfactory or as previously pointed out where the Court is satisfied that the conviction should be set aside on a ground of a wrong decision on any question of law made by the lower Court or if there was a material irregularity in the course of the trial. Section 23 (2) goes on to say that the Supreme Court may dismiss the appeal if it considers no miscarriage of justice has actually occured.

In this case then as will be seen, the Appellant relies heavily on the factual findings of the trial judge as showing error on the evidence. Consequently this Court must decide whether leave should be given the Appellant in relation to those grounds involving questions of fact alone.

The circumstances surrounding this young girl's death are as follows:

“On the evening of Thursday the 9 July Aro Aua was with her sister Sheila Niugini at her sister’s home at Hanuabada. They had been talking together until at about 11:00 p.m., the accused came in a White Toyota Cressida with a number of other men, to the village. The Appellant was heavily affected by alcohol. Aro was forced into the vehicle after the Appellant had assaulted her. She was driven from Hanuabada. Sometime after midday on the Friday, (the next day) her body was found at Sea Park which is some kilometres from Hanuabada village on the other side of the Port Moresby Town area. She had suffered massive injuries causing internal hemorraging in her chest cavity with lacerations to her heart which in the doctor’s opinion had been caused by multiple blows by a blunt instrument of some kind.”

The Appellant’s notice of appeal (which included an application for lease to appeal) comprised various documents but can be summarised as follows:

His first ground relates to a conflict of evidence between the witnesses and consequently is wholly a question of fact for the trial Judge.

The second ground is one of mixed fact and law for the Appellant says that the learned trial judge erred in finding that the accused assaulted the deceased intending to cause grievous bodily harm. As a further leg the accused says that the trial judge erred in finding that the accused dumped the deceased body at Sea Park, Ela Beach. This latter ground relies on facts found by the trial Judge and accordingly requires this Courts leave.

The third ground is the second ground reworked while the fourth is not an appeal point. That is an assertion that the prosecution witnesses should not be believed and whilst an argument should not be included in a notice of appeal in that fashion.

The ‘fifth ground’ are supporting arguments.

The sixth ground relates wholly to a question of fact for the Appellant says that the trial Judge erred by not considering the evidence of one Serjeant Galeva a photographer who took photos of the scene and gave opinion evidence.

The seventh ground is a reiteration of an argument and is not an appeal point.

The eight ground goes to a question of weight which the trial Judge has given the various witnesses including those of the defence and relates to questions of fact. In that ground however the Appellant also raises the argument that the trial Judge has relied on material in the absence of statements by others who were in the vehicle with the Appellant at the relevant times, and whose evidence would seem to be material on the question of the Appellants guilty or innocence. Since the trial was concerned with inferences to be drawn from facts found by the Judge, inferences which pointed to the guilt of the Appellant then the failure to call witnesses, whether the failure is that of the prosecution or defence, has no bearing on the question for the trial Judge at the conclusion of the trial, whether he was satisfied beyond reasonable doubt. Whilst there may be said to be an evidentary onus on the accused, after a failed ‘no case’ submission in the absence of those parituclar witnesses who were in the vehicle at the material times, the defence case is left reliant on the Appellant’s own story given in his record of interview; in Court and on the evidence of a woman in whose house he spent time during the night. The trial Judge has not made adverse findings in relation to the failure to call those associates by the accused and consequently whilst those persons were competent witnesses, they were not named on the indictment and there was no obligation on the prosecution to call them in the prosecution case. The absence of these associates evidence is immaterial when this Court has to consider the basis of the trial Judge’s findings on the evidence actually before the trial Judge. The last ground of appeal was an assertion, not an appeal point.

The Appellant’s separate notice of appeal filed initially seeks to rely on a miscarriage of justice “in that he was denied his choice of legal representative under s 37 (4) (e) of the Constitution”. The Appellant was represented throughout the trial and there are no facts on which to support such an assertion. That appeal point must consequently fail.

I now pass to the trial Judge’s findings of fact. His reasons for decision comprised some 23 pages of the Appeal Book. The case was clearly of a circumstantial nature. The trial Judge having found certain facts was satisfied beyond reasonable doubt that they led to an incontrovertable result. The result was that this Appellant caused the death of Aro Aua Neme and that his assaults were sufficiently violent for the trial Judge to be satisied that the Appellant intended to harm the woman and consequently the elements of a murder were satisfied.

This Court has previously had occassioned to consider a trial judge’s reasoning where the State relies on circumstantial evidence to found a conviction. In Karo Gamoga v the State [1981] PNGLR 443 @ 452 per Pratt J:

“I am not sure exactly why his honour came to this conclusion but it is the only pertinent area where an inference has been drawn which may have something to do with his honour's assessment of the credibility of a witness or witnesses appearing before him. Certainly the inference that the Appellant failed to take these matters into account is clearly open on the evidence and is not an unreasonable one. I shall have more to say on this aspect later on.

The question of what inferences may be drawn by a Court of Appeal and the judes of such Court have received comment by the Supreme Court in recent decisions and whether subject of specific submissions before this Court incur the Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 @ 275 Andrew J adopted the Australian High Court Approaches expressed in Warren v Coombas [1979] HCA 9; (1979) 53 ALJR 293 which as Miles J points out in Brian John Luas v The Independent State of Papua New Guinea [1980] PNGLR; 219 @ 233 is a somewhat delayed ‘conversion’ by that Court to the english approach expounded in mercy docks and Harbour Board v Procter [1923] AC 253 and Powell & Wife v Streatham Manor Nursing Home [1935] AC243 and Banmix v Austin Motor Co Ltd [1955] AC 370.”

PRATT J: Went on to distinguish carefully between cases where there is an appeal from a jury on a question of fact and those in which a magistrate or judge is the sole arbiter. He quoted and adopted a statement by Lord Summerville in Mercy Docks case (supra) where his lordship says @ 377:

“I would...respectfully defer from those who have suggested that an appeal on fact from a judge sitting alone is the same as who should be assimilated to an appeal from an jury. Apart from the fact that in the former case the appeal is a re-hearing, juries do not, and judges in varying degrees do, give reasons for their conclusions.”

Pratt J also agrees with a joint judgment Gibb ACJ, Jacobs & Murphy JJ in Warren v Cubra (301) where the Court dealing with an earlier dissenting judgment of Windeyer J said:

“We need say no more about it than that the traditional and practical reasons for the reluctance of an Appellant Court to interfere with the verdict of a jury do not exist where the judgement is that of a judge sitting alone - for one thing, the judge gives reasons, where as the verdict of a jury the jury is, as Lord Denning MR has said ‘as inscrutible as the sphinx’. Pratt approved of the High Court of Australia’s dictum in Warrent v Coombe's (supra) where there honours say:

‘Shortly expressed, the established principles are, we think, that in general an appellate Court is in as good position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate in Court would give respect and wait to the conclusion of the trial judge, but, once having reached his own conclusion, will not shrink from giving effect to it. These principals we venture to think, are not only sound in law, but beneficial in their operation. The duty of the appellate Court is to decide the case, the facts as well as the law, for itself. In so doing it must recognise the advantages enjoyed by the Judge who conducted the trial. If the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that he was wrong, they must discharge their duty and give effect to their own judgment.’”

In Lewis v PNG [1980] PNGLR 219 @ 235 per Miles J this Court said:

“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 he's not likely to be rejected. Where the decision is ultimately and largely and individual matter of opinion, for instance in a portioning flame for contributing negligence, or assessing damages the pain and suffering, the trial Judge’s finding, based on his own opinions, should carry substantial weight. So to 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.”

More recently the Supreme Court in Tom Chinau v The State (SCA 92 of 1992 - unreported decision of Hinchliffe Brown and Salika dated the 3 December 1992) said @ 4 “then in the absence of any critical appraisal of the evidence this Court can quite properly review the evidence but should not reverse conclusion seemingly arrived at by the trial Judge unless the evidence available to the trial Judge and relied upon was improbable or consistent with facts incontrovertibly established”. In that case the Court also has to decide whether the implications which arose on facts established by the trial Judge were reasonable in the circumstances of that case.

In Chinau’s case the Court further said @ 6:

“the findings of fact sufficient to support the inference that the Appellant was a party to stealing the motor vehicle were open on the evidence and there is nothing to show the trial Judge’s decision is clearly wrong on grounds not depending merely on credibility. The trial Judge was in the best position to determine who he believed. Where credibility was clearly an issue in face of the conflict of evidence between the security guard and the Appellant it was open to the trial Judge to accept that statement of the guard... That issue of credibility is for the trial Judge and we would not interfere.”

In the Supreme Court Appeal of Koni Kambou v The State (SCA 142 of 1992) dated the 31 August 1993 before Amet CJ Hinchliffe & Brown JJ the Court said at 4:

“It is clear that the approach to be taken by this appellate Court is to make an objective independent assessment of the evidence to decide whether the trial Judge must have entertain the reasonable doubt. It is not for this Court to determine whether it entertains a reasonable doubt... this facts, which were disputed in the trial, but established by the findings of the trial Judge, are facts upon which this Court may draw inferences. In deciding what are the proper inferences to be drawn, this Court may give respect and weight to the conclusion of the trial Judge unless it is clear that the trial Judge has misapprehended evidence where upon this Court may, by objective assessment, decide whether a mistake is apparent on the trial Judge’s reasoning.”

The trial Judge clearly disbelieved the version of events given by the Appellant Titus Wamban. HIs inconsistent stories concerning the events of that night leave me in no doubt that the trial Judge’s disbelief was based on reasonable grounds related to the accused own inconsistencies and the absence of any real explanation about the girl's disappearance until her body was found the next day. The trial Judge has accepted the testimony of the various witnesses who recounted the events leading up to Aro Aua’s departure from Hanuabada village on the night of the 9 July 1992. The trial Judge found that she had been assaulted to such an extent that she was bleeding from the ears before she was forced into the motor vehicle by her assailant Titus Wamban. He accepted the State witness Shila Niugini where she recounted facts which confirm the accused Titus Wamban was seriously affected by alcohol, “behaving badly” and struck Aro so hard on the side of the face “that blood came from her ears”. Titus Wamban’s attitude towards the deceased was further deposed to by Shila Niugini where she said “Titus and Aro had an argument. Titus said ‘I’ll put the gun in your cunt and shoot you’. I heard this from a distance of 2 yards (witness marks distance). Titus was sitting down. He was full drunk”.

I am satisfied that the trial Judge had ample cause to accept the prosecution case that Titus Wamban had evinced an intention to cause the deceased grievous bodily harm and that whether missapprehended or not Titus Wamban was angry with the decased for supposedly going out with other men in the week leading up to his visit to Hanuabada village.

The girl’s death was caused by a seemingly violent assault. Whether that assault was caused by a blunt instrument or by kicks or punches cannot be determined. The trial Judge found that the Appellant Titus Wamban had assaulted her causing grievous bodily harm. As a consequence he had caused her death. In the circumstances the Appellant says the trial Judge has erred in law for there is no direct evidence which relates the Appellant’s behaviour recounted by the State witnesses to such an assault which resulted in her death. That result must be necessarily be inferred from the foregoing. The Appellant says in those circumstances the conviction is unsafe or unsatisfactory. I would say that having regard to the expressed attitude of the Appellant and his serious assault of the girl at Hanuabada before she was forced into the vehicle certainly raises, (taking into account the accused obvious intoxication), a reasonable inference that he exhibited a callous in difference to the girl’s welfare. She left with him in the motor vehicle. She was not seen again until her body was found at Seapark Ela Beach the following day. Although the accused say she left the vehicle (in his last self serving statement) some 100 metres from where she entered the vehicle) she was never seen alive again after she left with Titus Wamban in the motor vehicle.

The State’s discretion to call or not call the other persons in the vehicle with Titus Wamban on this night cannot be interfered with by the Court, unless the failure to call them was for improper reasons. It was suggested in this case that those other persons had disappeared for they might reasonably expect to be the subject of police enquiries into this death as well. There was never anything to stop the defence calling these acquaintances of the accused, Titus Wamban in the trial. He chose not to do so.

The ground of appeal which contends that the Prosecutor’s failure to call these persons as essential witnesses to complete the narrative of events after the woman was taken from Hanuabada, thereby leaving the burden of proof undischarged and entitling the Appellant to be acquitted, ignores the finding of facts by the trial Judge findings which lead to no mere speculation but satisfaction in the Judge’s mind of cause, opportunity and an expressed intention to harm the woman which led to the conclusion that the accused was a principal in the murder. That reasonable conclusion arose from the findings that the accused alone had the motive to commit the crime, and that his various accounts of the events on the night give reason to the Judge’s inference of a guilty mind because of these fabrications. The guilt of the accused then, was the only rational inference.

In all of the circumstances I am not satisfied that there has been a miscarriage of justice such as to warrant this Courts interference. I would refuse leave to appeal and dismiss the appeal. As a consequence the sentence is confirmed. The inference drawn by the trial Judge that the Appellant caused the girl’s death is reasonable on the facts.

At the time of this appeal Mr Vele Noka appeared for the State. He said he conceded the appeal and nothing more. His attitude was unhelpful in that the Court was left to consider the argument of the Appellant without contrary arguments of the State. As can be seen Mr Noka did not even raise the issue of leave so necessary in these proceedings.

Whilst the State Prosecutor has an unfetted discretion in relation to the presentation of indictments in the National Court (see s 525 of the Criminal Code and the Commentary in Chalmers Weisbrot and Andrew - Criminal Law and Practice of Papua New Guinea - 2nd edition Law Book Company 1985) the duties of the State Prosecutor in the Appeal Court are not enuciated in the Supreme Court Act Chapter 37. Those duties spring from the Prosecutor’s traditional role up to and since Independence as the State’s representative, to argue on the State’s behalf, the merits or otherwise of such appeals. It is important from the point of view of the proper administration of justice that not only should the State be effectively represented but that Counsel should carefully and accurately address the issues raised by grounds of appeal and be prepared to argue those grounds for the elucidation of this Court. That course regrettably has not been followed, as has been the practice, on this occasion.

By ‘conceding the appeal’ neither Appellant nor the State Prosecutor can expect this Court to blindly accept the Appellant’s propositions. The Supreme Court Act gives this Court power to make orders on appeal in accordance with law. Whilst the contrary arguments of the State may be lacking, the duty and function of this Court is to apply the relevant law to the issues raised by the Appellant, having regard to his grounds. This has been done. It is a shame that the State Prosecutor has not assisted the Court in carrying out its function.

INJIA J: This is an appeal against a decision of the National Court at Waigani made on 15 April 1993. The appeal is against conviction only. On an indictment charging the Appellant with wilful murder under s. 299 of the Criminal Code Ch. No. 262 (hereinafter referred to as the “Code”) he was convicted on the alternative count of murder under s. 300 (1) (a) of the Code. He was sentenced to seven (7) years imprisonment.

NOTICES OF APPEAL

There are two notices of appeal before us. The first one was filed by the Appellant in person. It sets out only one substantive ground which is that there occurred a miscarriage of justice in the conduct of the trial because “the Appellant was denied his choice of legal representation as provided for by s. 37 (4) (a) of the Constitution”. Because this ground was not argued before us and because the transcript of proceedings show that the Appellant was well represented by private lawyer Mr Sosorua, I would dismiss this ground of appeal. That effectively disposes of the first Notice of Appeal.

The second notice of appeal was filed by the Appellant’s lawyers. It sets out further nine (9) grounds of appeal lettered (a) - (i). These grounds were fully argued before us by Mr Ousi who appeared for the Appellant.

After the close of Mr Ousi’s address, counsel for the Respondent Mr Noka conceded the second appeal saying the circumstantial evidence against the Appellant did not support a conviction. He did not make any detailed submissions in respect of all or any of the grounds of appeal. The decision of Mr Noka to concede the appeal is his prerogative. But that does not mean that the appeal automatically succeeds. This court has a duty to consider the merits of the appeal and to decide whether or not in all the circumstances the appeal should be allowed on any of the grounds set out in s. 23 (1) of the Supreme Court Act Ch. No. 37. In arriving at this decision, the position taken by the Respondent will of course of be borne in mind.

BACKGROUND CIRCUMSTANCES OF THE APPEAL

The case involves the death of a young woman from Hanuabada village between the night of Thursday the 9th and about 8am Friday the 10th of July 1992. The victim was picked up by the Appellant and some drunk men including the Appellant in a motor vehicle at her residence at Hanuabada village at about 11pm on Thursday. On Friday morning at 11am, the body of the victim was found at the Sea Park beach area which is situated at the foot of Paga Hill. The body showed signs of being hit with some blunt objects thereby inflicting serious multiple internal injuries from which she died. The State alleged that the Appellant and his friends murdered the victim and dumped her at the Sea Park beach.

At the trial, the State called 10 witnesses. Some 4 statements of State witnesses were admitted into evidence by consent. The medical post mortem report and the Record of Interview were also admitted into evidence by consent. All these witnesses were people who saw the Appellant taking away the victim on Thursday night in the car and using the same car on Friday morning. There was no direct evidence against the accused as to what happened between the time the accused took the victim away and the time when the victim’s body was found at the Sea Park beach the next morning. The evidence was highly circumstantial.

The accused gave sworn evidence. His only other witness was the wife of Mr Aloysius Agu. He admitted taking the victim away and after he assaulted her in the car, she got out of the car and went away near Elevala village. He did not see her until the next morning when he heard that she had been killed.

At the end of the trial, the trial judge found that the Appellant and his friends took her to an undisclosed location and assaulted her as a result of which she sustained the serious injuries disclosed by the medical evidence and that the Appellant in assaulting her did not intend to cause her death but did intend to cause grievous bodily harm from which internal injuries she died. The trial judge acquitted the Appellant on the charge of wilful murder but convicted him of murder under S. 300 (1) (a) of the Code.

PRINCIPLES RELATING TO APPELLATE COURT’S REVIEW OF TRIAL JUDGE'S DECISION

The grounds of appeal mainly challenge the findings of fact made on the evidence and the inferences drawn therefrom. The principles relating to an appellate court’s review of a decision made by a judge sitting without a jury are well settled by this court in various cases including Karo Gamoga v The State [1981] PNGLR 443; Rimbink Pato v Umbu Pupu [1986] PNGLR 310; Brian Kindi Lawi v The State (1987) PNGLR 183 and Allan Oa Koroka v The State (1988-89) PNGLR 135. As this appeal involves findings of fact in a case where the evidence against the Appellant was substantially circumstantial, I consider the principles conversed in Allan Oa Koroka v The State (per Amet J (as he then was)) appropriate and adopt them. At p. 135-136, Amet J states:

“The evidence in the case was totally circumstantial. In support of the ground that the inferences of guilt, based on the primary facts, were unsafe and unsatisfactory, it is necessary to make a detailed examination of the evidence adduced before the trial judge. Before embarking upon the exercise of examining those facts, I should like to adopt and restate some pertinent observations of Kirby P in the case of Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-211. He said:

‘It is useful before embarking upon the facts, to recall three rules relevant to the approach which this court should take to the re- examination of the conclusions of the trial judge upon the facts proved before him. In the nature of most cases (...) direct evidence is not available to settle every judicial wish for certainty. As in most cases, there are conflicts to be resolved, and in the absence of direct evidence, inferences to be drawn. Three principles should guide this court in its approach to the re-evaluation of the evidence taken before the District Court.

First, since Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, it is clear law that this Court is to be taken as being in as good a position as the trial judge to decide upon the proper inferences to be drawn from acts which are undisputed or which, although disputed at the trial, are established by the Judge’s findings. Respect and weight is to be given to the conclusions which the trial judge draws from the evidence. However, once having reached our own conclusion on the facts, we are not to shrink from giving effect to it: see also Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 426... Detailed argument must be addressed to disputed evidence and competing, permissible inferences from that evidence, although this process of evaluation has already taken place before the trial judge. An appeal court is, to some extent, always at a disadvantage in conducting such a reassessment. It lacks the impression of witnesses, the opportunity to evaluate non-verbal communication and the immediacy and command of detail which is the proper province of the trial judge. It sees the evidence through a curtain, penetrated in selected parts by the reading of evidence, presented, often out of order and in an inevitably disjointed and selective way by the parties. This approach carries an inevitable risk of encouraging appellate wisdom after events. Without care, it may result in undue weight being given to words considered without the benefit of the full context.

None of these observations touch the legal duty of the court, which is that defined in Warren v Coombes. It is a duty that must be loyally fulfilled...

Secondly, appellate courts will normally show deference to the assessment of credibility made by the trial judge.

Thirdly, the court, like the trial judge, in evaluating circumstantial evidence, is obliged to tread the narrow path which has been drawn between reliance upon reasonable and definitive inferences (which is permissible) and upon conjecture, speculation and guesswork (which is not).’”

The learned President continued (at 211):

“It is doubtful that the suggested distinction between conjecture and inference is as plain as some of these authorities suggest. With greater knowledge of human psychology and greater understanding of probability theory, it is nowadays increasingly recognised that the one process of reasoning merges into the other. In order to draw inferences, it is always susceptible to strict logical analysis. This has been recognised in decisions of high authority. The fact that competing inferences which are available cannot be positively eliminated does not render an inference derived from proved or accepted facts a mere conjecture, surmise or guess: of Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.”

I quote and adopt also the remarks of the majority of the High Court in Warren v Coombes (at 552):

“Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question.”

A little later, Amet J continues (p. 139):

“The learned trial judge adopted and applied the correct principles applying to circumstantial evidence in Papua New Guinea, which is as Miles J applied in The State v Morris [1981] PNGLR 493, relying on the Australian High Court decision in Barca v The Queen [1975] HCA 42; [1975] 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117, which is that:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that circumstances would enable them to draw’... However, ‘an inference to be reasonable must rest upon something more than mere conjecture’.”

The course of evidence in the trial.

Before I consider each grounds of appeal, I wish to set out the course of the evidence in the trial as to the sequence of events in the material period.

a) Events on Thursday Between 6pm-11pm

There was not much dispute as to what happened in this period. The Appellant is an Engan man and a resident of Lae. The victim is a “girlfriend” or “wife” of his. He had known her for some 3-4 years. At one time she lived with him in Lae. It appears the victim’s relatives knew him well. At the material time, the victim was living with her aunty, one Sheilla Niugini, at Hanuabada village. On 09/07/92, the Appellant was in Port Moresby. He arrived in Port Moresby a couple of days earlier. On the afternoon of 9 July 1972, at 1.30pm, the Appellant was dropped off at Konedobu at Aloysius Agu’s house. There he met up with one Phillip Pambu who was a Security Officer with the PNG Investment Corporation. Phillip had in his custody an Avis Rent a Car, a Toyota Cressida, white in colour, Reg. No. BAB 556. According to Mr S. Epa, who was the Deputy Managing Director of the Corporation, Phillip took the vehicle from him during office hours on Thursday and never returned it. There they drank some beer. The drinking continued throughout the evening. Sometimes in the evening, the Appellant asked Phillip to drive him to Hanuabada to Sheilla’s home. Phillip agreed and they set out for Hanuabada with another friend of Aloysius. They carried a carton of beer with them. They arrived at Sheilla’s house at about 11pm.

Sheilla told the Court that the Appellant asked her for the victim. She came out and stood next to Sheilla near the car. An argument occurred between the Appellant and the victim whereby the Appellant swore at the victim and accused her of going around with other men. Sheila told the Court the Appellant was full drunk and wanted to hit the victim but didn’t and instead poured beer onto her and the victim. Then a short man came out and pulled the victim into the car. The Appellant admitted the argument occurred and he poured beer on the victim and Sheilla. The Appellant also did not contest Sheilla’s evidence as to the short man pulling her into the car. The Appellant however denied Sheilla’s evidence that he threatened to shoot her vagina with a gun.

b) Events After Thursday 11pm and up to Friday 6am

The State evidence was given by Ms Vicky Tau and Mr Aloysius Agu. The defence evidence came from the accused himself and Mrs Agu. According to the Appellant, he and the others came out of Hanuabada and proceeded to the turn-off at Elevala village. On the way, the other man in the car (Aloysius’ friend) wanted a girl for himself. And so the Appellant asked the victim to go and look for another girl. The victim got out of the car and went to fetch one Ms Vicky. At that place, there was a gathering and there were many people there. She returned 5-10 minutes later and told the Appellant that Vicky refused to come. That is all that the accused said about Vicky.

The Appellant did not contest the evidence of Ms Vicky Tau that she accompanied the victim to the car, that the victim told her to get into the car with her but she refused, that the Appellant came out of the car and told her to get into the car and when she refused the Appellant threatened to shoot her and that he told her they would go and “get gold” but he did tell her the place where they were going to get “gold”.

As to what happened from here onwards and for the rest of the evening, the Appellant gave evidence assisted by Mrs Agu. The Appellant’s story is that Vicky refused, they drove on and came to a turnabout where the vehicle came to a stop to give way to another vehicle. There he asked the victim what she had been doing that week to which she replied “Is it your business”. This angered him and he responded by hitting her (in a slapping motion) once on her face. The victim then got out of the vehicle and told them to “fuck off” and screamed at them. The Appellant told her to get back in the vehicle but she refused. And so they left her there and drove off. That was the last time the Appellant saw her alive. From here, they drove back to Aloysius house where they continued drinking. Later Aloysius went to sleep. The Appellant and two other “guys” then drove to Gordons to drop off “another fellow” there. It appears that it was after the Appellant and others went to drop off the other fellow at Gordons that Mr Sam Epa called in at Aloysius house to check for Phillip. According to Mr Epa, the time was 3am. He could not find them there so he left. As to the return of the Appellant to Aloysius’ house, all that the Appellant could remember was dropping off the other fellow at Gordons because he said he “must have slept in the car”. He said he woke up the next morning at Aloysius’ house.

Aloysius’ wife confirmed the drinking at her house. But she gave a different version of the movements of the Appellant and her husband and the others that evening. She said they all walked down to the club at about midnight. She repeatedly maintained everyone including the Appellant did not go anywhere else that night. She also confirmed Aloysius went to sleep at around midnight. She slept and woke up the next day sometimes after 6-7am and saw “a lot of boys who were drunk were sleeping in the car”.

It is to be noted that Mrs Agu’s evidence is in direct conflict with the Appellants’ evidence as to his movements to and from her house that evening. The state’s critical witness in this respect is Mr Aloysius Agu whose statement was admitted into evidence by consent. His evidence also conflicts with the evidence of Mrs Agu in that he said by 7pm he was so drunk that he broke the wall of his house with his hands and went to sleep right away and woke up the next morning. He never mentioned anything about going down to the club to drink and drinking there until midnight.

c) Events of Friday Morning From 6am - 12pm.

There is a good deal of evidence both from the prosecution and defence witnesses as to the movements of the Appellant, Phillip and others on Friday morning between 6am to 8am. The Appellant’s story is supported to some extent by some State witnesses. The issue of the timing of the Appellant’s movements to various places in this period is one of the important areas of dispute in this appeal.

As for the State witnesses, there is not much difference in the story as to the events between 6am - 8am or thereabouts. I will first look at the evidence as to events which occured outside the Sea Park beach area. The State evidence was that Mrs Agu made breakfast which they all had. Then they all, that is the Appellant, Phillip, one Raymond Ako, and Aloysius went to Hanuabada village to fetch water to wash as there was no water at Konedobu. They took with them 3-4 plastic containers which they placed in the booth of the car. They arrived at Hanuabada at around 7am. There was no water at Hanuabada as well so they bought some more beer. From there, they went back to Sheillas’ house. Also present there was Sheillas’ brother one Gari Morea and his elder brother one Michael Gore. The Appellant came with the others and continued drinking. The Appellant also gave some beer to Gari and Michael. Then the Appellant queried if the victim was at the house. He was told she did not return. Then the Appellant drove out with others with the Appellant driving. Aloysius also confirmed that the Appellant was not drinking and driving around. According to Michael (and confirmed by Gari), they told him they were going to Paga Hill to bath. In cross examination, the Appellant failed to positively deny this evidence even though it was put to him. Then sometimes later, between 7am - 7.30am - 8am, the same vehicle returned to Sheilla’s house and drove very fast into the yard and stopped. When the car stopped at the house, the Appellant and others said the owner of the car was chasing them. Gari told the court, (and supported by the Appellant), that a little later, he and the Appellant left for Gerehu to check for the victim at one Lapen Wallens house, leaving behind the others at Hanuabada. She was not at Gerehu. From there, they went back to Hanuabada where they all continued drinking. That was the time, (7-7.30pm) when Gari went to sleep because he was going to work in the night.

The Appellant’s story was that he agreed that upon arrival at Sheilla’s house, he asked for the victim. He said he left his other friends drinking at Hanuabada and went to BP Service Station to fetch water where he was told by Michael’s mother and his younger sister that the victim did not return to the house at night. Then he bought some more beer and went back to Hanuabada where he dropped off the beer and picked up Gari and the two of them went to Gerehu to check for the victim. At Gerehu, he did not find her there and they came back and joined the rest of them at Hanuabada and continued drinking. Later he slept in the house. When he woke up later, Morea told him the victim was dead. The Appellant denied driving up to Paga Hill, Ela Beach or Sea Park beach.

As to events at the Sea Park beach, the State’s most important witness was John Kaupa, a Village Peace Officer living at Paga Hill. He left his house at about 7am to go to Sea Park to bath as there was no water at Paga Hill. The Sea Park gate was opened by a City Council worker by the name of John Amti. He went in and washed. Also bathing there was a woman namely Maria. Whilst he was washing near the gate he saw a lightly tinted white car drive through the gate in at high speed and went right down. As the tinting was not heavy, he could see through the windows 5 heads of people - 2 in the front seat and three in the back seat. He didn’t see or recognise their faces or see if they were male or female. It then drove out at about 7.45am - 8am with only 4 heads inside.

It is important to note that the Appellant did not deny the sighting of the white car at Sea Park at those times specified by Mr Kaupa. Mr Kaupa’s description of the car matched the Toyota Cressida driven around by the Appellant and others on Friday morning. He also did not deny the reliability of his observation of seeing the number of heads of people sitting inside the vehicle. In cross examination the Appellant’s counsel only confirmed Kaupa’s inability to recognise the identity of the people inside the car.

The body of the deceased was found at the Sea Park beach at about 11am by police. As to locating the body at the scene, the State called Constable Galeva of the Police Forensic Science Squad. The State tendered into evidence, by consent, photographs showing the body of the deceased where it was found.

The photographs showed there were some disturbance on the grass indicating the body had been dragged over the grass. The state also called one NCDC worker, one Joe Mare who initially found the body some 100m away from the beach where the vehicle was parked.

Finally, the state called Dr DL Barua to elaborate on his post mortem report which was admitted into evidence by consent. The doctor made the following findings:

(i) Multiple larcerations on both legs, feet and knees.

(ii) Deep contusion on the right side of the chest (front).

(iii) Fracture of 3rd, 4th ribs right side (front).

(iv) Haemorrhage in the anterior mediastinum and laceration of pericardium (ie. bleeding in the chest).

(v) Haemorrhage in the psoas muscle (bleeding in the pelvis).

The doctor concluded that the cause of death was multiple internal injuries caused by some blunt object.

d) The Trial Judge’s Findings of Fact and Inferences

The trial judge’s findings of fact and inferences drawn therefrom on the whole of the evidence are set out on page 49-51 of his judgment. His findings are as follows:

“On Sheila’s unchallenged evidence the accused had a motive for assaulting the deceased. I make the following findings on the whole of the evidence:

(1) The accused started drinking at Mr Agu’s residence at 1.30pm, 9 July 1992.

(2) The accused went to Hanuabada at about 8.30pm 9 July 1992 with Phillip Pambu driving and one other passenger.

(3) The accused and the other two people with him had a carton of beer in the motor vehicle. The accused continued drinking at Hanuabada.

(4) At Hanuabada between 8.30pm and 11.00pm the accused threatened and assaulted the deceased.

(5) As described by Sheila the accused was highly intoxicated at the time.

(6) The deceased never left the motor-vehicle at Hanuabada as claimed by the accused.

(7) The deceased was taken to some location by the accused and his friends in the motor vehicle where the accused assaulted her intending to cause her Grievous Bodily Harm as evidenced by the injuries that she suffered as described above.

(8) The accused did not intend to kill the deceased.

(9) The deceased died as a result of the injuries she received when assaulted by the accused.

(10) The deceased was later dumped at the Sea Park Ela Beach area by the accused maybe with some assistance from his friends. These are where the body was dumped is in the vicinity of the Paga Hill area.”

His Honour’s conclusions based on these findings were:

“In making the above findings I have believed the evidence from the State witness. From their evidence a conflict of evidence between the (State) witnesses.

The Appellant relies on some conflicts in the evidence given by State witnesses in a number of areas. The main area is the times at which the Appellant was present at various places on Friday morning. The Appellant seeks to show that at the material time, he was travelling between Aloysius’ house, Hanuabada, BP service Station and Gerehu and was not and could not have been at Sea park or Paga Hill simultaneously. To some extent, his evidence is supported by most of the State witnesses.

However, on the evidence of the Appellant alone, it is clear that there was a change of the driver (between Phillip and the Appellant), that there was frequent change of the occupants in the car and frequent change of the purpose of various trips to various destinations within the town area (initially to search for water, then to look for beer, then look for the victim, then to look for water and then to buy beer, etc. all within the time frame of 6am - 8am). Further he failed to rebut or deny the evidence of Morea and Michael of telling them he was going to Paga Hill to bath. He also did not deny Kaupa’s evidence of seeing the car at Sea Park, which vehicle fits the description of the toyota cressida driven by the Appellant that morning. In the light of these evidence, his trip to Sea Park beach either as a passenger or as a driver of the toyota cressida is not an absolute impossibility. In my opinion, the conflicts in evidence as to time relied on by the Appellant are not so significant so as to totally remove the Appellant from the Paga Hill area and the Sea Park beach in the material period.

Another area of conflict is the number of occupants in the car seen at various places on Friday morning. Again in view of the frequent change of occupants and drivers and the drinking spree involving different people at different places and the frequent change of purpose of various trips in this period, it would be almost impossible for any witness to point out the number of people and the identity of these people at a specific point in time and place with pin-point accuracy.

There are other areas of conflict but those areas are in minor areas and I do not intend to dwell on them. Some areas of conflict are repeated in other grounds of appeal and they will be dealt with later.”

In my opinion, the trial judge carefully covered the evidence given by each of the witnesses for both sides in great length and carefully addressed the conflicts in the evidence. He correctly rejected the accused’s evidence that he did not and could not have driven to Paga Hill and Sea Park beach on Friday morning. In my opinion, the trial judge’s findings of fact and inferences drawn therefrom are supported by the evidence as a whole. The Appellant has failed to show that “the rejection of testimony favourable to him, and the drawing of inferences adverse to him, flowed from some fundamental misconception of the evidence by the trial judge, or from his failure to take properly into account the evidence as a whole”. Ura Francis Miriva v The State, Unreported Supreme Court Judgment SC 197 [1981] (per Kearney Dep. CJ).

I would dismiss this ground of appeal.

(b) The Appellant appeals on a mixed basis of fact and law in saying that the learned Judge erred in finding as a fact, the accused assaulted the deceased intending to cause a grievous bodily harm and that the accused later dumped the deceased’s body at Sea park, Ela Beach.

In support of these two grounds, the Appellant states, there is no evidence identifying the Appellant as an occupant of the vehicle which was alleged to have been seen at the Sea park, Ela Beach. The witness, John Kaupa, saw five people in the car, two in front and two at the back but could not recognise the people inside. The witness, John Yamti who opened the gate to the Sea park was not called to verify this evidence. The witness, Gari Daura (and Vicky Tau could not recognise but saw about four people in the car. At no time during any of the evidence, was the Appellant identified as being at the Sea park or assaulting the deceased in a manner which would cause grievous bodily harm.

The evidence as to the assault of the victim by the Appellant is not wholly circumstantial. There is the direct evidence of Sheilla and the Appellant’s own admissions that the Appellant threatened and assaulted the victim in front of Sheilla at Hanuabada on Thursday night by pouring beer on her and later assaulted her in the car near Elevala village. The only dispute is the gravity of the assault which occurred near Elevala village or thereabouts on Thursday night after they left Sheilla’s house. In my view, the Appellant was determined to attack the victim. He abused, threatened and humiliated the victim who was his own “girlfriend” or “wife” by pouring beer on her in the presence of the victim’s relative, Ms Sheilla, with impunity. He later threatened to shoot Vicky. Still later that evening, he questioned the victim in the car about her movements that week and assaulted her. He was very drunk and agitated. As to how far he would hit her between Thursday evening and Friday morning when he was alone with her away from her relatives, with or without the presence of his other friends in the car and with or without the assistance of his friends, is only a matter of degree. The trial judge inferred from all these facts that it was the Appellant, with the help of his other friends, who seriously assaulted the victim in a manner intending to cause grievous bodily harm as shown by the medical evidence. In my opinion, these inferences were rational, “reasonable and definitive inferences” and not “conjecture”, “speculation” or “guesswork.”

The inference that the Appellant and others dumped the body of the victim at the Sea Park beach is also not unreasonable. It is based on the finding that the same person who assaulted the victim and caused her death dumped her body there. There is also the unchallenged evidence of Mr Kaupa that he saw a vehicle of similar description at Sea Park on Friday morning with 5 people inside.

The issue is one of whether on the evidence, there existed any other reasonable hypothesis open which was inconsistent with the Appellant’s guilt. The Appellant suggests 3 possible hypothesis. The first one which was raised at the trial was that someone else, perhaps the security guard John Amti and others who were there at the Sea Park beach were responsible. However, the Appellant did not produce any evidence or adduce any evidence from State witnesses to support this theory. In my opinion, this hypothesis is an unreasonable one.

The second one is that she was attacked where she got out near Elevala village. However, Hanuabada village being close to Elevala and there being a lot of people at Elevala that night, she could easily have made her way back home. She was not in hostile or enemy territory. If she was attacked there, someone would have known about it. This hypothesis is an unreasonable one too.

The third hypothesis is that she was driven to the Sea Park beach on Friday morning and beaten to death, dragged over the grass and left there. Mr Ousi says the third person seated at the back of the car seen by Mr Kaupa was the victim and that the killing occurred in say 5 minutes the most. However, I do not think she was murdered at that point in time because then Mr Kaupa or Joseph Amti or the other persons there would have heard the noise or the victim’s scream. But they didn’t. Besides, nothing much can be inferred from the absence of the third person when the car drove out because of the ever changing occupants of the car and frequent change of purpose of various trips between 6am - 8am on Friday morning as well as the whole of Thursday night. The 5th person could be one of the Appellant’s friends or it could be the body of the deceased who was being brought there to be dumped. This hypothesis is also an unreasonable one.

One could argue that the conduct of the Appellant on Friday morning in going back to the victim’s residence and goin were not closely related to her. And so on Thursday night when the Appellant went to Sheilla’s house to pick her up, he was able to abuse, threaten, assault and humiliate her in Sheilla’s presence with impunity. Therefore, it is open to infer that after killing her and dumping her at the Sea Park beach, he had no difficulty in going back to the victim’s residence and look for her to cover up for what he did in order to avoid detection.

I would agree with the trial judge that on the evidence, there was no other reasonable hypothesis inconsistent with the Appellant’s guilt. The guilt of the accused was the only rational inference that could be drawn on the evidence. I would dismiss this ground of appeal.

(c) The Appellant states the learned judge erred in fact and in law in finding that the Appellant assaulted the deceased in a manner which caused her death. The Appellant admits and concurs that he did assault the deceased but in a minor fashion which could not endanger her life.

For reasons I set out under ground (b) and (c) above I would also dismiss this ground.

(d) The Appellant states the learned judge erred in law in accepting the Prosecutor’s submission to believe its witnesses and to infer from their evidence that it was the accused who killed the deceased relying upon the text: “Cross on Evidence”.

(e) The Appellant states that the case referred to in the judgment at pages 17 and 18 of: “Cross on Evidence”, is distinguishable from the present fact situation in that at no time was the Appellant found to have bloodstained clothes or found to have acted in a manner which was likely to cause grievous bodily harm or death; found near the body, seen to assault the deceased causing grievous bodily harm or found within close proximity to the body in either place or time.

These two grounds are based on a passage from Cross on Evidence (Third Edition) which the trial judge referred to. The trial judge said:

“At the outset the State has stated that the case it has against the accused is circumstantial. As to what is circumstantial evidence, at p 17 and 18 of Cross on Evidence (3rd Australian edition by Byrne and Heydon) the authors define circumstantial evidence as any fact (evidentiary fact or fact relevant to the issue) from the existence of which the judge may infer the existence of a fact in issue (a principal fact). The authors give a typical instance where a witness at a trial for murder makes a statement that he saw the accused carrying a blood-stained knife at the door of the house in which the deceased was found mortally wounded. The prosecutor in this instance invites the judge first to assume that the witness is speaking the truth, and, secondly to infer that the accused inflicted the mortal wound with the knife.

In this case then the State is inviting me to believe its witnesses and then to infer from their evidence that it was the accused who killed the deceased.”

Mr Ousi submits that the trial judge erred in applying the wrong principles because the facts of the present case where different to those mentioned in the above text. In my opinion, I do not think the trial judge was applying any principles of law applicable to circumstantial evidence. He merely relied on the text to define what is meant by “circumstantial evidence” generally.

I suppose the Appellant could argue that the trial judge erred in not referring to and applying the principles applicable to circumstantial evidence as set out in State v Tom Morris) [1981] PNGLR 493. Indeed I have not found any reference to these relevant principles in the trial judge’s judgment. All that the trial judge said was that the case involved circumstantial evidence and that “the evidence points to no other conclusion but that it was the accused who assaulted the deceased intending to cause her grievous bodily harm resulting in her death”. However, failure to advert to those legal principles specifically in his reasons is not fatal so long as the principles are adhered to by the trial judge in his reasons: Biwa Geta v The State [1988-89] PNGLR 153 at p. 159 (per Bredmeyer, J). I am satisfied that the trial judge had in mind the relevant principles on circumstantial evidence and adhered to them when he decided the case.

I would dismiss these two grounds of appeal.

(f) The Appellant states the learned judge erred in fact in not considering the evidence of Sergeant Galeva, who photographed the body and the site and who gave evidence that shrubs had been disturbed and an object seem to have been dragged over it and did not consider this evidence with the evidence of John Kaupa as to the time that had been spent in the Sea Park on the morning of the 10th of July 1992 when he says he saw five people in the car.

Mr Ousi contends that a likely scenario was that the victim (the 5th person in the car) was kicked, punched or bashed to death at Sea Park, then dragged over and left there all in 5 minutes and that Mr Kaupa. As I have already said, this scenario is high conjecture. The uncontested fact is that the vehicle of the same description as the toyota cressida being driven by the Appellant that morning was seen with the occupants of the vehicle. Nothing more can be inferred from the change of occupants in the car because of the frequent change of occupants in that car the whole of Thursday night and Friday morning between 6am - 8am. It was open for the trial judge to infer that the victim was killed at any time between Thursday night and early Friday morning and the body dumped at Sea Park in the same period.

I would dismiss this ground.

(g) The Appellant submits, if the evidence of John Kaupa is believed, then the body was dumped somewhere between 7.00am and 7.30am on the morning of 10th July, 1992. There is no evidence as to the time of death. However, the Appellant submits there was insufficient time for an attack to take place, the body to be dragged and left in the position it was found and for the car to leave within the evidence of the time span given by John Kaupa.

The Appellant submits that the reliance upon circumstantial evidence is too great to safely enter a conviction against the Appellant in the circumstances. The evidence of John Kaupa is that he saw five (5) people in the car when it entered the Sea Park on the morning of 10th July 1992.

The Appellant states the learned judge erred in fact and in law by failing to accept the evidence of the Appellant which was supported by the evidence of Aloysius Michael Gari and Morea Gari.

For reasons I have set out in relation to grounds (b) - (f), I would dismiss this ground as well.

(h) The Appellant states, the learned judge erred in fact and in law in not accepting the evidence of the Appellant and in finding that the State’s case had been made out when the other persons who were in the vehicle with the Appellant at the time the alleged defence took place, were not called to give evidence either for or against the State.

This ground raises important questions concerning the onus and standard of proof in a criminal case. The basic principles are canvassed by this Court in many cases including SCR No 1 of 1980 [1980] PNGLR 28. The State bears the burden of proving each element of the offence beyond reasonable doubt. It carries the evidentiary burden. In discharging its evidentiary burden, it has a duty to prosecute in all fairness. The prosecution however has a wide discretion to call any witnesses it desires to call. He must call all witnesses who are available at its disposal and who may give evidence not only for the State but also for the accused. I would adopt the statement of these principle by Lord Chief Justice Parker of the English Court of Criminal Appeal in R v Oliva [1965] Cri-App.R. 298 at p. 809-810. Lord Parker after examining the development of the case law on this area since 1843 summarised the principles as follows:

“Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them, either calling and examining them, or calling and tendering them for cross-examination.

The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further its control, different considerations apply. I would adopt the principles canvassed by Brightman J in the Court of Appeal in R v Cavanagh, R v Shaw [1972] 1 WLR 676 at p. 679:

‘The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present. The reason for that is obvious and was expressed in Reg v Woodhead [1847] EngR 1017; [1847] 2 C & K 520, a case at Liverpool Assizes, where Alderson B. said at p. 520:

‘You are aware, I presume, of the rule which the judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment. The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to have them in court, but they are to be called by the party who wants their evidence. That is the only sensible rule.’

If, however, it proves impossible, despite such steps, to have the witnesses present, the court may in its discretion permit the trial to proceed provided that no injustice will be done thereby. What considerations will affect the exercise of the court’s discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witness’s attendance within a reasonable time? Are the Prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent witness have been likely to assist the defendant? If the absent witness can be procured, will other witnesses by then have become unavailable? There will be many other matters which may have to be considered.”

I consider the above principles to be appropriate and applicable to the circumstances of this country.

Mr Ousi contends that the State should have called the other persons who were with the Appellant on Thursday night and Friday morning.

In the trial, the State did call Mr Aloysius Agu but he was not a party to the trips on Thursday night and most of the trips on Friday morning. The State made no mention of the availability of the other witnesses whose identities were known or would have been known to the State through Mr Agu. Their names were not listed on the indictment either. I infer from this that they did not provide statements to the police. Likewise, the Appellant made no mention of them as to their whereabouts. He did not implicate them in any way. At the end of the evidence, both counsels did not make any submissions on this issue and the trial judge did not address this issue either.

It is clear from the evidence that these men in particular Phillip Pambu are the friends of the Appellant. The Appellant knew or ought to have known and their whereabouts at the time of the trial. As for the Appellant’s main friend, Mr Agu, he sought to distance himself from the critical times when the Appellant came into physical contact with the victim on Thursday night and Friday morning between 6am - 8am. As for the Appellant’s only witness Mrs Agu, she set up a false alibi for the accused and to some extent, her husband. And so if there was any person who knew the truth, it was the accused and his other friends with whom he associated with on Thursday night and Friday morning.

In a case where there is some direct evidence and strong circumstantial evidence against the accused, the onus is on the accused to persuade the court, on the balance of probabilities, the existence of some other reasonable hypothesis which is consistent with his innocence. There are different ways by which he can do this. In a case where the evidence is such that the truth may be known only to the accused or his associates, it is in the accused’s own interest that the accused should require the prosecution to call these witnesses or make them available at his disposal. If the prosecution fails to comply with the accused’s request, then the accused should invoke the discretion of the court to require the attendance of these witnesses. Even better, it would do his case good to call them himself as witnesses for the defence. In the instant case, the Appellant did not adopt any of these measures.

Mr Noka’s decision to concede the appeal may have been prompted by the prosecution’s inability to call these witnesses. However, the prosecution called all witnesses who were at its disposal and whose names were listed on the indictment including Mr Agu. Mr Agu’s evidence did not assist the State very much whereas Mrs Agu who gave evidence for the defence set up a false alibi for her husband and everyone else including the Appellant. Her evidence was correctly rejected by the trial judge as setting up a false alibi for everyone including her husband. At the trial, there was not the slightest hint of the prosecution acting unfairly. Nor did the trial judge suspect any such improper exercise of prosecutorial discretion. The issue of the prosecution’s failure, if any, to call any of these witnesses or the Appellant’s failure to call any of these witnesses was not raised at the trial. The case was decided on the evidence presented before the trial judge. And the evidence was such that it was sufficient to warrant a conviction without the evidence of the other friends of the accused who were with him in the material period.

I would dismiss this ground of appeal.

(i) The Appellant appeals against the decision in fact on the findings of the learned judge who says that the assault by the accused upon the deceased was sufficient to cause her grievous bodily harm and that the deceased was later assaulted by the accused to the extent that he caused her death.

This is the final ground of appeal.

I have already covered this ground of appeal in my discussions under grounds (b) - (g). I would dismiss this ground for the same reasons I dismissed grounds (b) - (g).

CONCLUSION

The upshot of the above discussions is that all of the grounds of appeal in the second ground of appeal fail. Therefore the whole appeal is bound to be dismissed. The possibility of a re-trial has been suggested by both counsels but I think the evidence against the defendant at the trial was so strong, that any reasonable judge in the trial judge’s position would have convicted the Appellant.

ORDER

Appeal dismissed, conviction and sentence confirmed.

Lawyer for the Appellant: Warner Shand Laywers

Lawyer for the Defence: The State Prosecutors