Kik v The State [1996] PGSC 11; SC511 (8 November 1996)

Unreported Supreme Court Decisions

SC511

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 37 OF 1992
PAKE KIK - APPELLANT
V
THE STATE - RESPONDENT

Mount Hagen

Kapi DCJ Sakora Injia JJ
5 November 1996
8 November 1996

APPEAL - where reasons for decision are lost - the proper approach to be taken by the Supreme Court - the Court may infer findings of fact.

Counsel

Appellant in person

P Mogish for the respondent

8 November 1996

KAPI DCJ SAKORA INJIA JJ: The appellant was charged with one count of wilful murder. He pleaded not guilty. He was convicted after a trial and sentenced to 25 years imprisonment with hard labour.

He has appealed in person against conviction.

The record in the appeal book shows (at page 28) that judgment by the trial judge was recorded on tape but the tape has apparently been lost and it is not available. We take it from this that the trial judge had no notes available from which an outline of his reasons could be extracted. The judgment was given in March 1992. In the circumstances, we consider that it is pointless requesting a report to be provided under O 11 Div. 12 of the Supreme Court Rules (Cap. 37).

How should the Court approach the appeal in the circumstances? There are no reasons for decision to take into account.

Counsel for the respondent has submitted that we can review the decision of the trial judge by looking at the evidence given in the National Court and determine whether on the evidence it was open for the trial judge to convict the appellant.

He further submitted that the facts in the present case are not complicated and we can infer the findings of the trial judge from the conviction itself.

With respect we have adopted the approach suggested by the Public Prosecutor.

The State case against the appellant was that he was walking along the road with five others including the deceased. While walking along, the accused and another person, Noah Sakaru, who were armed with a bush knife and an axe respectively, suddenly attacked and chopped the deceased on the left side of the neck thereby killing the deceased instantly. The State called the brother of the deceased who was one of the five persons walking along the road at the time. He gave an eye witness account of what happened.

The appellant gave evidence at the trial and denied any knowledge of the killing. He said he was in Mount Hagen at the relevant time. However, he did not call any alibi witnesses to support his story.

We will deal with the grounds of appeal in the order they are raised in the appeal form.

The first ground of appeal is that the State witness did not appear in court to give evidence. At the trial, the State Prosecutor indicated that he would call only two witnesses, Nasinge Kaeio and Napele Paul. Mr Kaeio was not called because he was not available (see page 12 of the record). The State called the brother of the deceased, Napele Paul. This is not a valid ground of appeal.

The second ground of appeal is that the medical report produced in court was incorrect. It appears from the record that the cause of death was not an issue. When the medical report was tendered, there was no objection to its admissibility. This is not a valid ground of appeal.

The next ground of appeal is that the trial judge did not allow the appellant to call his witnesses. The appellant was represented in the National Court by defence counsel from the Public Solicitor’s Office. At the end of the appellant’s evidence, the defence counsel closed the defence case. There is no suggestion that counsel requested further time to call other witnesses. There is also no record to suggest that the appellant personally requested further time to call other witnesses. This is not a valid ground of appeal.

The final ground of appeal simply states that he was sentenced for an offence he did not commit. This does not take the matter any further.

The ultimate issue is whether the trial judge could be satisfied beyond reasonable doubt that the appellant was guilty as charged? On this issue, we find that it was open to the trial judge to reach the conclusion he came to. We further find that the trial judge must have rejected the appellant’s version of facts and accepted the State witnesses on how the crime was committed. We are not convinced that the trial judge erred in this regard. We dismiss the appeal and confirm the conviction and sentence imposed by the trial judge.

Appellant in Person

Lawyer for the Respondent: Public Prosecutor