Kalupai v The State [1995] PGSC 8; SC492 (1 November 1995)

Unreported Supreme Court Decisions

SC492

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 39 OF 1994
GEORGE KALUPAI - APPELLANT
V
THE STATE - RESPONDENT

Waigani

Woods Doherty Sevua JJ
29 August 1995
1 November 1995

CRIMINAL - Fresh Evidence.

CRIMINAL - identification - alibi - rebuttal - weighing evidence - appeal dismissed.

Cases Cited

Tabe v The State [1983] PNGLR 10

John Beng v The State [1977] PNGLR 471

Biwa Geta v The State [1988-89] PNGLR 153

Counsel

I Nwokolo for the Appellant

C Manek for the Respondent

29 August 1995

WOODS DOHERTY SEVUA JJ: The Appellant was convicted by the National Court on 20th March 1994 of the offence of attempted murder and the offence of robbery following a trial and was duly sentenced to terms of imprisonment.

He is appealing to this Court against those convictions. In summary the grounds of appeal raise contradictions in the evidence, challenge the evidence of identification and that the conviction is unsafe in the circumstances.

At the hearing of the appeal there was initially an application to introduce fresh evidence. The material sought to be introduced included matters that happened after the trial and which is suggesting some kind of conspiracy. It was merely allegation based on hearsay which did not actually challenge the evidence before the trial judge. It did not have the value and weight of the type of fresh evidence that had been admitted in previous cases such as in the Tabe v The State [1983] PNGLR 10 case where the fresh evidence sought to be adduced affected the basic issues in the conviction. There was also some evidence which related to matters at the trial but that was clearly not fresh. We were satisfied that there was no suggestion that witnesses were denied the right to give evidence and there was no suggestion that the appellant was unable to call witnesses or evidence at the trial and no real explanation was presented as to why certain evidence was not brought at the trial. We therefore refused the application to adduce fresh evidence.

At the trial the victim of the attack gave evidence of being at home in his house at Waigani watching television and answering a knock at the door and saw three men standing there. He said they came in and told us not to move and not to shout and the victim said he pushed closed the door on them. He then said that they used an axe on the door. He said that the accused George pointed a gun at him. It then appears from the victims evidence that he accused may have moved around the outside of the house and fired at him through the window and the victim was hit and fell down. He then said they struck him on the head with the blunt side of an axe and then took his TV and left. He stated the assailants spoke the Enga language. He positively identified the accused and used his name at the time of the attack. He stated that he knew him from playing rugby and running trade stores. He said that they did not disguise their faces. From the way the victim gave his evidence it is submitted that there were so many inconsistencies that his story cannot be accepted. For example he says that when he answered the door they came in and then he shut the door and then axed it. So did they come in or not or did they remain outside. However from the detailed questioning it seems quite clear that the assailants came to the door and when the victim opened the door and saw them he immediately pushed the door shut on them and they damaged the door and then moved to the window from where they shot him. And throughout the questioning he remained adamant that the accused was the man who shot him. There was one question namely are you telling lies and the victim said “No, I was a bit confused.” What he meant by that was never directly clarified but perhaps as so often happens to witnesses it was more than likely meaning that he was confused by the questions, not by what happened. The trial Judge closely analysed the victim’s evidence in his judgement.

The victim’s evidence was supported by a George Kapi Imbu, who was with the victim that night in his house. He tells of the victim pushing the door closed on the assailants and they attacking it with an axe. He then tells of the accused standing outside and pointing the gun and shooting through the window. Then the accused came and took the TV set. The witness states that he knew the accused well although he normally calls him George Iki. The witness says that he received pellet wounds from the shooting and went to the hospital. The defence suggests that therefore the assailant was another person and not the accused however the witness clearly identifies the accused as the person he calls George Iki. And the witness Andrew Ingiman also notes that the Appellants father’s name was Iki.

The Accused gave evidence that it was not him at the victim’s house that night. Rather he had been injured two nights earlier and had attended hospital and was treated for his injuries and had limited mobility and could not have been with the assailants. Instead he said he was quietly recuperating and resting at his own home on that night. And he said he had visitors calling to see him that night. He brought witnesses who say they knew he had been injured two nights previously and could not move around freely because of the injuries. Also they say that they visited him on the night of the attack on the victim. They thereby provide an alibi for time of the incident.

However the State brought witnesses to rebut the alibi. First there was a witness Apakas Make who said he saw the accused walking around quite normally at the Port Moresby General Hospital on the day of the incident which thereby suggests there was no difficulty with mobility. He also said he went to the accused’s house on the evening of the 27th January but there was nobody there. Another witness Andrew Ingiman also said that he came to the accused’s house on the evening of the 27th January and there was nobody there.

The trial judge carefully analysed all the evidence and considered carefully the established principles of identification by reference to the cases of John Beng v State [1977] PNGLR 471 and Biwa Geta v State [1988-89] PNGLR 153. He also carefully assessed the nature and details of the evidence of the supposed alibi. So where has the trial judge erred. He has recited the principles and analysed the evidence as it was presented before him in accordance with those principles. He considered the evidence of identification and found “there is no doubt about identifying the accused as the person who shot him.” And the identification was not just by name, the use of the name Iki is not a major discrepancy, people often have other names and anyway the identification was not by name but by identifying the accused in person regardless of what name was used.

The trial judge did not accept the alibi and there was enough evidence to discredit the alibi especially as the evidence of identification was just too good.

We cannot find that the trial judge has placed the wrong interpretation on any of the evidence. We are satisfied that he has properly considered the principles governing the reception and consideration of the evidence. The trial judge found certain facts and it is very difficult for an appeal court to challenge such findings without there being a clear error in his reasoning.

We dismiss the Appeal.

Lawyer for the Appellant: Ikennas Lawyer

Lawyer for the Respondent: Public Prosecutor