Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998)

Unreported Supreme Court Decisions

SC558

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO 60 OF 1996
BETWEEN:
DAVID KANDAKASON - Appellant
And:
THE STATE - Respondent

Waigani

Amet CJ Los J Kirriwom J
23 September 1997
7 July 1998

CRIMINAL LAW - Identification - Onus of proving identity of third party alleged by accused as the perpetrator - Failure of prosecution to disprove defence assertion of the existence of third party and/or as the principal offender - Whether such failure amounts to an error of law.

PARTIES TO OFFENCE - Accessorial liability of appellant by deliberate association at the material time of the offence and subsequent conduct thereof as the result of or after the commission of the offence - Third party’s only reason for being at the scene of the crime was providing company to the appellant who had a purpose for being there - Whether third party’s presence at the scene and the calculated criminal act leading to or causing the explosion was deliberate or accidental.

Facts:

On an indictment charging the appellant with wilful murder, he was found guilty of murder and sentenced to nine years imprisonment, and he appealed against his conviction.

Held, dismissing the appeal:

(1) That the issue of identification depended largely on the question of credibility of the witnesses including the appellant, once the trial judge accepted the State witnesses’ version of the story as reliable and credible evidence, further contention on this issue was pointless and futile because of the parties familiarities with each other and in the light of the identification made under the given circumstances.

John Beng v The State [1977] PNGLR 115

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

R v Preston [1961] VicRp 14; [1961] VR 76 followed

(2) That it was open on the evidence for the trial judge to be satisfied beyond reasonable doubt that the appellant was the perpetrator who threw the hand-grenade into the crowd that exploded causing injuries to those present and resulting in the subsequent death of one of them.

(3) That once the trial judge disbelieved the appellant’s version about the existence of a third party who might have been responsible for the explosion, it was unnecessary for the trial judge to go beyond his finding and to enquire into the truth or otherwise of this claim asserted by the appellant.

R v Wheeler [1976] 3 All ER 828 distinguished

(4) That, if the third party was the perpetrator, appellant is not an innocent observer and is nonetheless accessorially liable under section 7 of the Criminal Code for the actions of the third party as they were both present at the scene and the third party whose only reason for being there was to provide company and support to the appellant if needed, reacted to a threatening situation already created and set in motion by the appellant himself.

R v Clarkson and Others [1971] 3 All ER 344

(5) Trial judge misdirected himself when he accepted the prior written statements and rejected sworn oral evidence tendered in court by two witnesses who had earlier given depositions to the police in committal hearing; however, such misdirection is not substantial to affect the outcome of the trial because there is other independent evidence to sustain a conviction against the appellant.

Regina v Olivia [1965] 1 WLR 1028 applied

Cases Cited or Referred to:

PAPUA NEW GUINEA AUTHORITIES

John Beng v The State [1977] PNGLR 115

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

OVERSEAS AUTHORITIES

R v Preston [1961] VicRp 115; [1961] VR 761

Raspor v R [1958] HCA 30; [1958] 99 CLR 346

Woolmington v DPP [1935] AC 462

R v Wheeler [1976] 3 All ER 828

Regina v Golder Jones & Porritt [1960] 1 WLR 1169

Driscoll v The Queen [1977] HCA 43; [1977] 137 CLR 517

Reg v Jackson & Anor [1964] Qd R 26

Deacon v The King [1947] 3 DLR 772

Regina v Olivia [1965] 1 WLR 1028

R v Clarkson & Ors [1971] 3 All ER 344

Texts and Legislations:

Gillies P, Criminal Law, Law Book Company publication (1985)

Counsel:

F Pitpit for the Appellant

C Manek for the Respondent

DECISION

7 July 1998

AMET CJ: I have read the proposed judgment of Kirriwom J and agree that appeal be dismissed.

LOS J: I have also read the draft judgment of Kirriwom J and for the reasons he has given, I too would dismiss the appeal.

KIRRIWOM J: The appellant appeals against conviction. He was indicted for wilful murder in the National Court and after hearing all the evidence in the trial from both the State and the defence, the Court found the appellant guilty of murder and not wilful murder as charged. He was sentenced to nine years imprisonment but one year three months was deducted for pre-trial custody period. Sentence is not appealed.

The charge against the appellant arose in a somewhat bizarre and tragic circumstances and the trial itself took almost one month to complete. The deceased, a married Chimbu woman known as Cecilia Kaupa alias Cecilia Kimbiri died at the Port Moresby General Hospital. She was a victim of an explosion caused by a hand-grenade at 5-mile settlement of Port Moresby on the night of 28th November, 1994 between 11pm and 11:30pm. About 13 people were injured including the deceased. She died about a week or so later whilst under medical care at the Port Moresby General Hospital.

The issue in the National Court was one of identification although it was suggested in the course of the trial that somebody else was responsible for perpetrating the unlawful act of throwing the explosive object that blew up and injured many innocent people gathered there including the deceased. Apart from this the accused did not rely on any particular defence except take the State to task to prove its case against him beyond reasonable doubt.

The appellant lodged his own appeal on 12th September, 1996 a day after he was sentenced. He relied on a number of grounds that were set out in a form of submission. I don’t intend to list them here to avoid repetition suffice to say that his dissatisfaction as expressed in his own words in the notice of appeal were subsequently subsumed into the supplementary notice of appeal filed by the Public Solicitor at the hearing of this appeal. But before I address those grounds in the supplementary notice of appeal, it would be helpful to properly understand the facts as I deduce from the evidence before the Court below and now before us in the recorded transcripts as certified in the appeal book by both parties.

The deceased Cecilia Kaupa, also known as Cecilia Kimbiri, was amongst a group of relatives at 5-mile settlement, drinking and playing cards on the evening of 28th November, 1994. She is from Chimbu and lived in that settlement. Many of those gathered there were also from Chimbu. The place is predominantly Chimbu territory.

Between 11pm and 11:30pm the appellant and another person called Luso also happened to be at the settlement. Both the appellant and Luso are from Enga. It is not disputed that Luso lived at 5-mile settlement.

They are both well known to the Chimbus at the settlement. This night was not the appellant’s first time to be at the settlement. It is not disputed that the appellant was regarded as an in-law by the Chimbus in the settlement because he was married to Miriam Jerry. Miriam is the daughter of Jerry Bani from Chimbu, a key prosecution eye-witness in this case and who also lived at 5-mile settlement.

It is also not disputed that this marriage between Miriam and the appellant had been a stormy one for the three odd years they lived together in a de facto union. According to the appellant, this was largely due to non-payment of bride-price but it would seem to be more to this than that. The relationship itself never had its dull moments without constant domestic quarrels forcing Miriam at times running away to her parents at 5-mile. On this particular night Miriam was with her parents at 5-mile settlement having left the appellant a few days before, following one those recurring episodes of domestic arguments. When the appellant was at the settlement that night he knew that his wife was there.

It seems that the appellant and Luso may have been drinking that night although there is no clear evidence of how much was consumed. But it is obvious that they were under the weather, as the saying goes, and they could have been drinking beer for some time before proceeding to 5-mile settlement that night.

The appellant says that his purpose for going to the settlement was to drop-off Luso. However, it could also be true that he went there to check on Miriam and to take her back home. Unfortunately, when the appellant arrived at the settlement with Luso there was an unwelcome or hostile reception from his prospective father in-law, Jerry Bani although Jerry Bani denied this. Jerry Bani said he was talking to Luso and not the appellant but the appellant insists that Jerry Bani argued with him over the appellant’s non-payment of his daughter’s bride-price.

Whoever initiated the argument or how it started is immaterial, the fact is that there was an argument involving the appellant and Jerry Bani which attracted other people who proceeded to get involved. There were angry calls from the crowd to fight him, referring to the appellant, who suddenly became conscious of his personal safety and that of his vehicle. He retreated to his vehicle and there was an explosion from an object that was thrown into the crowd of people from the direction of the appellant’s vehicle.

After the explosion the appellant got into his vehicle and drove away and never went back to the settlement until he was arrested and charged. Following the death of the deceased, Jerry Bani was threatened, his house was burnt down and he was forced out of the settlement by the relatives of the deceased and those who were wounded in the explosion.

The State called four witnesses who were at the scene of the explosion. Jerry Bani and James Wemin identified the appellant as the perpetrator while Betty Kaupa and Peter Kaupa did not see the person who threw the object.

Appellant gave evidence at the trial and called three witnesses. While he denied throwing the hand-grenade, he accused his cousin brother, one Joseph Kamen, as the perpetrator. He said he saw him swing the object although he thought he was throwing a bottle of beer towards the mob of people until it exploded. After the explosion he drove Joseph Kamen to Gerehu and dropped him off and returned to Waigani where he lived. Two of the three defence witnesses, Joanes Bogi Kobla and Moi Kaupa, had previously given written statement to the Police, as potential prosecution witnesses. In those statements they identified the appellant as the perpetrator. At the trial in the National Court they gave evidence on behalf of the appellant and denied their earlier story saying that they did not see the person who threw the object. However, defence witness Lucas Kaupa said he saw another person sitting at the back of the vehicle throw the object into the crowd which exploded.

A matter of significant interest in the case worthy of noting here is that the person called Luso or Luso Nai Eric as is shown on the list of witnesses in the back of the indictment, assuming that he is the same Luso who went with the appellant that night was not called to give evidence. There is no explantion on record for him not being called as a witness by the State. There is also no explanation of any efforts being made to apprehend and charge this person called Joseph Kamen, if he did exist as insisted by the appellant.

Summarising the grounds of appeal, in a nutshell, the appeal centres around: (i) identification; (ii) what is the value, if any, to be attached to prior written statement, inconsistent with a subsequent sworn oral evidence; (iii) proof, standard and burden; and (iv) evaluation of the evidence by the trial judge. I will deal with the ground in the above order in order to accommodate the various issues raised. But firstly, I set out hereunder the appellant’s grounds of appeal in the supplementary notice of appeal:

The conviction was and is unsafe and unsatisfactory in the circumstances of this case in that:

The learned trial judge failed to warn himself of the inherent dangers in convicting the appellant when the identity of the person who committed the offence was in issue;

That the learned trial judge erred in law when he rejected the evidence of the Appellant that Joseph Kamen existed and that at the relevant time was with the appellant and was responsible for throwing the explosive object;

That the learned trial judge erred in law when he placed the onus to be upon the appellant to prove the existence of Joseph Kamen;

The learned trial judge erred in law when he concluded that the appellant threw the explosive object into the crowd, in that there existed major inconsistencies between the evidence of the State eye-witnesses as to the identity of the person who threw the explosive object;

The learned trial judge erred in law when he failed to exercise care during the evaluation of the whole evidence of the State against the appellant in that there were other serious inconsistencies between the evidence of the two eye-witnesses;

The learned trial judge erred in law when he concluded and accepted the prior statements by the two defence witnesses as truth, when prima facie inconsistencies have been established;

The learned trial judge erred in law when in his final evaluation of whole of the evidence, acted contrary to section 37 (4) (a) of the Constitution and the general principle on onus of proof in criminal cases;

On the whole conclusion as to guilt was against the weight of the evidence.

IDENTIFICATION

The main issue in the trial centres on identification. Two prosecution eye-witnesses, namely, Jerry Bani and James Wemin, positively identified the appellant as the perpetrator although James Wemin subsequently resiled from that positive assertion in cross-examination and said he was not sure. There was plenty of light from the number of tuck-shops in the vicinity which clearly illuminated the place and there could not have been possibility of mistaken identity.

Other prosecution witnesses did not positively identify the appellant but their evidence generally was that the object came from the direction of the main road and that is where the appellant’s vehicle was parked. None of the prosecution witnesses identified Joseph Kamen, as the person who caused the explosion with a bomb. The only defence witness who goes closer to supporting the appellant’s story is Lucas Kaupa but he does not say that Joseph Kamen threw the explosive object. Lucas Kaupa’s evidence is that somebody other than the appellant who sat at the back of the vehicle threw an object towards the crowd at the settlement that exploded.

So the question that His Honour had was not simply just identifying who it was but whether it was the accused or somebody else? This was the issue he had to resolve because there was already direct eye-witness testimony that identified the accused as the perpetrator of this crime. His Honour adverted to this issue at p. 122 of the appeal book, which I quote:

“I now turn to the issues. I turn firstly to identification. The accused denies responsibility for the explosion which injured the deceased and others which caused the deceased’s death. I find at the outset that the accused was at the scene of the explosion at the relevant time. That is between 11pm and 11:30pm on 28 November, 1994. The rest of the essential facts are clear and I find them to have been proven beyond reasonable doubt.”

It is obvious from the above quoted passage in His Honour’s judgment that he was cognizant of the issue and he addressed his mind to it. And he resolved that when he said “the rest of the essential facts are clear and I find them to have been proven beyond reasonable doubt”. What His Honour is saying here is that he has seen the witnesses and heard them on oath including the accused himself, and he is satisfied that the perpetrator is the accused and nobody else. This is not the same situation as in John Beng’s SC558.html#_edn230" title="">[ccxxx]1 case where the Court was confronted with the evidence of an expatriate bar maid who had never before seen or been acquainted with her attacker, and who worked in a dimly-lit bar room at the formerly Papua Hotel where she was attacked by the accused. She had earlier seen him on two or three occasions in the bar that same day before she was attacked. Similarly this is not the same as Biwa Geta’s SC558.html#_edn231" title="">[ccxxxi]2 case where the principal witness who identifies the accused is a total stranger. Both John Beng and Biwa Geta share this similarity. Therefore the warning expounded in the English case of Raymond Turnbull & Others SC558.html#_edn232" title="">[ccxxxii]3 are appropriately applicable to John Beng and Biwa Geta cases. The issue in this case was ‘Could His Honour be satisfied beyond reasonable doubt on the evidence of Jerry Bani and James Wemin that the accused is the perpetrator?’ And after critically analysing all the evidence before him, the trial judge came to the conclusion that the accused perpetrated the wrong-doing that resulted in the death of the deceased. Even if His Honour did not explicitly refer to the inherent dangers in identification evidence in his summing up as expressed in John Beng’s case, there can be no identifiable error of law for the basic reason that the issue in the trial is not one of identification per se. In Biwa Geta’s case the Supreme Court said (see head-note):

“Whilst it may be helpful for a trial judge, in his reason for judgment to advert to the legal principles involved in the dangers inherent in, for example, identification evidence, failure to do so will not of itself constitute an error of law if a critical examination of the evidence is given which demonstrates the adherence to those principles.”

Both Sir Buri Kidu CJ and Bredmeyer J separately found there to have been a number of errors made by the trial judge, however, their ultimate conclusions were that no substantial miscarriage of justice had occurred and the appeal was therefore dismissed.

The view I express here in respect of this case finds support from an observations made in the Court of Criminal Appeal of Victoria in R v Preston SC558.html#_edn233" title="">[ccxxxiii]4 by Lowe J while referring to the High Court decision in Raspor v R SC558.html#_edn234" title="">[ccxxxiv]5 where he said at p. 762:

“Appropriate warning...must depend upon the circumstances of the case before the Court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the Court.” (emphasis added).

Preston case related to identification of a complete stranger by a householder at night time and under circumstances that were extremely difficult to make any proper and accurate observation. The householder went out for walk leaving the house in the dark. On his return some hours later he saw a light in his house. When he entered he saw someone on the top of the stairs inside the house. He himself was at the foot of the stairs.

After noting the profile of the man the householder went to the telephone and called the police. The man then went out of the house and onto the street. He followed him down and was 30 yards behind the man and had a view of him from the rear. This was the evidence relied upon by the prosecution. The accused raised the defence of alibi. The Full Court of the Supreme Court of Victoria came to the conclusion that the circumstances of the case required appropriate warning to have been given and proper direction to the jury was called for which the trial judge failed to do. Conviction was over-ruled and re-trial was ordered.

In the circumstances of the case before us, it would be correct to say that warning was probably not necessary. Therefore His Honour had not fallen into any error.

EVIDENTIARY VALUE OF PRIOR INCONSISTENT STATEMENT

The appellant testified on oath in the trial and also called evidence in his defence. Two of the three defence witnesses, namely Joanes Bogi Kobla and Moi Kaupa gave sworn evidence on behalf of the appellant. They were originally State witnesses and their names appear on the back of the indictment. At the hearing in the National Court they changed their story and decided to testify for the appellant. During cross-examination by the prosecuting counsel, their prior written statements taken by the Police regarding the incident at 5 mile were shown to them. They admitted to making those statements but claimed them to be wrong and untrue. They said the statements contained the story that Jerry Bani wanted them to tell the Police. They said the story they gave on oath on behalf of the Appellant is the truth.

Appellant challenged the trial judge’s decision where he rejected the sworn oral evidence of these two witnesses and accepted as truth what they each told the police which was contradicted by their sworn evidence. His Honour said at p. 123 of appeal book:

“Two of the three witnesses were cross-examined in relation to their statements they gave to the police about two weeks after the incident. In their statements they told the police that they saw the accused throw the object which exploded. Those statements were made some one year nine months ago. Now, in the light of these inconsistencies, that are between their sworn evidence and those statements, and my observation of their demeanour in Court, I give very little weight to their sworn testimony. I accept what (sic) each said in his (sic) statement as the truth.”

The critical part or sentence in the passage quoted is the last line. His Honour is clearly accepting their prior written statements as the truth of what they stated therein as opposed to their sworn oral testimony. Those two statements were tendered in cross-examination with the purpose of contradicting their sworn evidence in court. The effect of these statements going into the trial is that the sworn testimony of the witnesses concerned has now become unreliable and they remain discredited. Their credibility as witnesses have been seriously tainted and reduced and none of their stories can now carry any weight or ring of truth. This is really the ultimate goal of tendering into court prior inconsistent statements of witnesses.

Appellant’s submission on this ground stems from the principle evolved in Regina v Golder, Jones and Porritt SC558.html#_edn235" title="">[ccxxxv]6 which says that when a witness is shown to have made a previous statement inconsistent with the evidence given by the witness at the trial, not only must his evidence at the trial be regarded as unreliable, so must his previous statement, whether sworn or unsworn. They do not form part of the evidence in the trial upon which the court must or can act. At pp.1172-1173 of the judgment of the Court of Criminal Appeal Lord Parker CJ stated:

“In the judgment of this court when the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial be regarded as unreliable, they should also be directed that the previous statement, whether sworn or unsworn, do not constitute evidence upon which they can act.”

However, the above view was expressed in obiter and subsequent cases decided in some Australian State Courts, Canada and even England have not consistently followed that view. For example see Reg v Jackson & Anor SC558.html#_edn236" title="">[ccxxxvi]7, Driscoll v The Queen SC558.html#_edn237" title="">[ccxxxvii]8, R v Prestano & Ors SC558.html#_edn238" title="">[ccxxxviii]9 and Deacon v The King SC558.html#_edn239" title="">[ccxxxix]10. These cases tend to encourage flexibility. The High Court of Australia in Driscoll v The Queen SC558.html#_edn240" title="">[ccxl]11 whilst adopting the first part of the proposition in Golder, Jones and Porritt SC558.html#_edn241" title="">[ccxli]12 said “it cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable”. In other words the existence of a prior inconsistent statement ipso facto does not make a witness’s evidence unreliable. On the other hand the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness’s previous written statement to prove that his subsequent sworn testimony is untrue. In R v Prestano & Ors SC558.html#_edn242" title="">[ccxlii]13 it was held: ‘that the witness having given evidence which directly opposed statements made to the police it was permissible for the Crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong’. The Court held further that the evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, which could be attached to it.

There is no explanation as to why the witnesses Joanes Bogi Kobla and Moi Kaupa subsequently changed sides and gave evidence for the defence. They don’t explain why, although they claim that what are stated in their previous written statements are what they were told to tell the police by Jerry Bani. The factual circumstances in this case are comparable with an English case of Regina v Olivia. In this case the complainant Rutledge was knocked down by two men from behind who brutally beat him up. He sustained cuts and bruises on his face and body. His eyes were swollen and closed as the result. Just before the attack he was talking to a couple of hostesses not far from a Club house. The defendant came with two women and another male person. As they entered the passage to the Club house the two men jumped on the complainant. The doorman to the club was called to intervene and stop the fight. Both the doorman and the victim Rutledge gave statements to the police. The doorman did not name the defendant as the attacker although the complainant did. At the committal hearing Rutledge gave his evidence. The doorman did not appear so he was summoned. The case adjourned. During this long period of adjournment both Rutledge and the doorman saw their respective solicitors and made declarations to the effect that the defendant was not the one who attacked the complainant. The solicitor for the prosecution was informed of the declarations. When the case resumed Rutledge gave further evidence and stated that the defendant and the other man did not hit him. He said he did not know his attackers. The doorman also gave similar evidence. Defendant was nevertheless committed for trial and indicted with one count of unlawful wounding with intent to do grievous bodily harm. The names of both the complainant and the doorman appeared on the back of the indictment under the list of witnesses.

At the hearing on indictment the prosecution declined to call the complainant himself and the doorman despite the defence application for the court to order the prosecution to call the two witnesses in the prosecution case or to make them available for defence to cross-examine them. The court over-ruled the application and held that the prosecution was not obliged to call every witness listed on the back of the indictment. As the consequence defence unwillingly called the complainant and the doorman in the defence case against very strong independent prosecution evidence from the hostesses who saw the attack upon Rutledge and who called for help from the door man to stop the fight. Prosecution then cross-examined the complainant and also called witnesses in rebuttal of his testimony.

The jury convicted the defendant and he appealed. While dismissing the appeal Lord Parker CJ held: (a) that there was a complete discretion in the prosecution as to whether they should call those two witnesses. It may have been the prosecuting counsel’s view that these two witnesses were wholly unreliable and the interest of justice would not be furthered by calling such witnesses. Trial judge was therefore correct in not interferring with the exercise of discretion of counsel in the circumstances of the case; and (b) that there was an error in the summing up of the evidence in that the trial judge failed to properly direct and guide the jury as to how they should approach the evidence of Rutledge whose evidence had been contradicted and discredited. There was in fact a non-direction as the appellate court found. But notwithstanding this error, the Court further found there to be adequate independent evidence from the hostesses whose evidence were to large extent confirmed by the complainant himself in cross-examination. The Court therefore came to the conclusion that even with proper direction given, the jury would nonetheless have come to the same conclusion. The appeal was therefore dismissed.

Olivia’s case provides a persuasive guide for the Supreme Court to follow the reasoning therein expressed in the light of the circumstances of that case which are relatively similar. Here we have two witnesses who had earlier given depositions to the police subsequently turned around and gave evidence quite contrary to their previous statements and for the adversary. But on careful examination of all the evidence before the trial judge, there was already evidence from Jerry Bani and James Wemin who saw the accused throw the hand-grenade, the evidence of the accused’s presence on the scene of crime and the evidence of the accused himself whose appearance and general demeanour in the witness box is an important factor that the trial judge is entitled to consider when determining guilt or innocence. It is obvious that the trial judge disbelieved the appellant in his evidence regarding Joseph Kamen. In other words the appellant was lying about the character called Joseph Kamen. Lies corroborate the evidence of the prosecution against the accused.

Therefore, albeit the trial judge did misdirect himself in so far as the prior inconsistent statements of Joanes Bogi Kobla and Mui Kaupa are concerned, this misdirection is not substantial to affect the eventual outcome of this case. There was ample evidence for the trial judge to have returned a verdict of guilty for murder in any event, but not for wilful murder, as he correctly found.

COMPLICITY AND ACCESSORIAL LIABILITY SECTION 7 (1) (B) CRIMINAL CODE

The appellant contended at the trial that the person who perpetrated the act of throwing the explosive object into the crowd which exploded was not him but it was his cousin Joseph Kamen. But, as it is now obvious, the trial judge did not fall for this story. Furthermore, it seems that nor were the police convinced by this claim at the investigation level (that is assuming that they took no official interest in investigating this lead from the accused who was already their prime suspect on the preliminary evidence before them). On appeal to the Supreme Court, the appellant has launched a two-fold argument: firstly, he argues that the trial judge fell into error by rejecting the evidence of the appellant as to the existence of his cousin Joseph Kamen who was with him at the material time and who was responsible for throwing the explosive object; and secondly, the trial judge erred in law by placing upon the appellant the onus of proving the existence of Joseph Kamen.

There is no question about who bears the onus of proving guilt in criminal trials and those exceptional circumstances when that onus or burden shifts to the defendant. However, on the facts presented before the court at the trial after all the evidence had been tendered, the issue that faced the trial judge, it seems, was not so much as to who was responsible for throwing the explosive object. The issue was as to the identity of this person called Joseph Kamen. It appears that, on the evidence before him, His Honour had already concluded that the perpetrator was the appellant which he was perfectly and legally entitled to. And the only difficulty that His Honour faced was the reliability of the appellant’s assertion on the existence of this person called Joseph Kamen. This is reflected in His Honour’s judgment at pp. 123 - 124 of the appeal book which states:

“In the accused’s evidence, he says that when apprehended and at the police station, he gave a full detail about his cousin, Joseph Kamen, but the police have not located his cousin ever since. This raises one question in my mind. The question is; was Joseph Kamen a real person? Can the accused now shift the blame to a fictitious person and get away with that. I find that there is no evidence to show that Joseph Kamen was a real person. The accused could have easily called witness from his area to show that he was his cousin. In my view, it is most unreasonable to expect the police to apprehend a non-existent person.”

The appellant challenges His Honour’s reasoning here and argues that His Honour had reversed the onus of proof by shifting that responsibility from the prosecution to the defence in requiring the appellant to prove the existence of this person called Joseph Kamen. In my view, the appellant’s whole argument here is grossly misconceived and indeed a total misapplication or at best misrepresentation of the law or the principles pertaining to the onus of proof and standard of proof in criminal cases as the courts have come to accept and apply them here. And I agree with counsel for the appellant that these principles are amply and articulately expressed in Woolmington v DPP SC558.html#_edn243" title="">[ccxliii]14 but the issue really is one of identifying what defence, either informal or formal, that is relied upon by the appellant. As was pointed out at the beginning of my judgment, the appellant did not raise any particular defence except denial of the charge. But in the course of the trial he decided to accuse his cousin brother Joseph Kamen as the perpetrator of the act of throwing the bomb that exploded. In fairness I mention also that this was his contention from the very beginning when he was apprehended and consequently charged for the crime of wilful murder. But this, in my view, still does not alter the fact that this contention did not constitute any legal defence nor did it impose any additional obligation on the prosecution to go to the extent of negating, to adopt counsel’s term, that story of Joseph Kamen as the perpetrator as alleged by the appellant. This is the misconception that counsel perpetuated by misconstruing the extent to which the prosecution can go in establishing all the elements of the offence including negating or negativing such formal defences raised by the accused.

Finger-pointing some named person as a perpetrator, be he real or just a figment of one’s own imagination, is not raising a legal defence that the prosecution must negative beyond reasonable doubt. All that the prosecution need do is adduce all the relevant evidence to prove the essential elements of the offence. This, in essence, is all that is necessary for the prosecution to do to discharge its function.

It was also argued that His Honour erred in commenting on the appellant’s failure to call evidence to prove the existence of Joseph Kamen. Taken in isolation, His Honour’s remarks may amount to some error but when viewed in the whole context of the case as perceived by him, I think His Honour was justified in making those remarks. The circumstances are analogous to an alibi situation. If you raise an alibi defence, you have to establish that alibi with some credible evidence before the prosecution can be expected to rebut that defence of alibi by rebuttal evidence. Appellant here did nothing more than simply allege that a certain named person committed the offence and expected the prosecution to locate that person and bring him to trial when there was ample evidence before the Court for it to conclude that the appellant was the offender. This is just not good enough for doing one’s best for one’s own defence in a serious criminal trial like this.

This case can be clearly distinguished with that of R v Wheeler SC558.html#_edn244" title="">[ccxliv]15 cited by the appellant’s counsel regarding the judge’s remarks on the accused’s failure to call witness to prove the existence of Joseph Kamen. In Wheeler’s case the appellant was charged with murder and robbery of the victim who is the deceased. There is evidence that both men had been drinking earlier in the evening. The offence was committed in the deceased’s house where the appellant was spending the night with his common law wife. The prosecution case was that the accused attacked and killed the deceased and the motive was robbery. However the defence case was totally different to what the prosecution alleged.

Accused claimed that he had acted in defence of his common law wife Wendy with whom he was sleeping on a mattress in the hall in the deceased’s flat when the deceased tried to rape her in the night. He raised self-defence and provocation. The deceased was hit with a half-full bottle of whiskey and kicked on his face as he lay on the floor bleeding heavily. His probable cause of death was asphyxia from blood. The appellant was convicted of manslaughter and simple larceny and he appealed. One of the grounds of appeal related to the remarks made by the trial judge on the failure of the appellant to call the woman Wendy in the defence case to inform the court as to whether it was true or not true that the deceased tried to rape her in his summing up to the jury. The prosecution was not quite sure if they were calling the witness until the last minute when they advised the defence that the witness was available for the defence. But the defence did not call her. The court of appeal criticised the trial judge’s remarks and his general summing up to the jury in this regard but did not find any miscarriage of justice and therefore dismissed the appeal.

This case is not the same. The trial judge here was commenting on the accused’s failure to establish by some credible evidence the identity of Joseph Kamen whom he alleged was the perpetrator.

Appellant sought to argue his way out of this serious crime by shifting the blame to his cousin Joseph Kamen which story the trial judge found to be untrue. Assuming that it was true, just for argument sake, there is no doubt open on the evidence for the trial judge to even return a verdict of guilty on the basis of accessorial liability pursuant to section 7 (1) (b) and (c) of the Criminal Code. Section 7 (1) provides:

“When an offence has been committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

· every person who actually does the act or makes the omission that constitutes the offence; and

· every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and every person who aids another person is committing the offence.”

The appellant’s complicity in this crime is clearly open to inference from his own sworn testimony. The question is as to categorisation because on one view he could be the principal offender, and on the other he could be an aider and abettor to the principal, Joseph Kamen. If I accept the appellant’s argument that Joseph Kamen perpetrated the unlawful act that resulted in injuries and subsequent death of the deceased, then I must find that the appellant is guilty by virtue of section 7 (1) (b). What happened, supposing that Joseph Kamen really did exist and that he threw the hand grenade, was not an isolated incident. There is a casual link or connection between that act on the part of Joseph Kamen and the chain of reaction that the appellant had already put into motion by his argument with Jerry Bani. It is immaterial who started the argument but there is ample evidence of why there was this animosity between Jerry Bani and the appellant. Joseph Kamen’s reaction is no doubt a probable consequence of a course of events that the appellant himself had set in train. It was a spontaneous reaction to what appeared to be an imminent or foreseeable threat or danger to their own persons to which they both were exposed. This is plain from the appellant’s own evidence where he said that Joseph Kamen ‘threw the object in retaliation at the mob of people’. This is what the appellant said in his evidence in chief (pp. 76 - 77 appeal book):

“Q. What happened at 5 mile?

A. We went, I said goodnight to Luso and wanted to drive away. But Luso said he wanted to buy me a soft drink. He went to the tucker-shop, got his beer and walked back. No pepsi only coke there. As he was looking for change, I said I have some coins, I will buy my own drink. I walked up to the tucker-shop. Then Jerry Bani, my father in-law shouted at me in loud angry voice. He said, ‘Yupela i painim pipia, yu rabish man, yu ino baim bride price bilong pikinini bilong mi’. ( In English translation, what are you looking for or what do you want, you good for nothing or you rubbish man, you had not paid bride price for my daughter).

Q. Anyone else say anything?

A. Yes, some Chimbu people said, ‘Usait! Usait! Paitim em!’ ( in English translation, Who is that ! Who’s that! Hit him!) and charged at me. I was afraid. I did nothing to provoke them. Jerry Bani was violent and aggressive. I was concerned (sic) for my safety and safety of my car. I walked down to the car parked on the side of the road. I did not see what Joseph Kamen was holding in his hand. I thought he was holding a beer bottle. He threw it in retaliation at the mob of people. When I heard the explosion, I was surprised. I was shocked and panicked. My first impression was that Chimbus were getting at me for non-payment of bride-price. I thought they (Jerry) fired a gun or thrown a bottle at me.”

The above evidence clearly indicates how far removed from reality the appellant is as he tries to paint a very clean and innocent picture of himself and that of Jerry Bani as the bad and aggressive character who was violent towards him. It is nonsensical to even think that the Chimbus would be getting at the appellant with a big explosion for his failing to pay bride-price. This is a private affair between him and Jerry Bani. Why would all the Chimbus get themselves unnecessarily involved to the extent of wanting to hurt him?

If Joseph Kamen threw the bomb to facilitate both their escape, I fail to see how the appellant can escape conviction nonetheless, either as principal or as an accessory. Peter Gillies in his text on Criminal Law SC558.html#_edn245" title="">[ccxlv]16 says at p. 131:

“The accessory’s act need not be an effective one. The most marginal act of assistance or encouragement will, it appears, amount to an act of complicity. This is illustrated, again, in the cases establishing that mute spectatorship will incriminate D an accessory, where this act amounts to an encouragement of the principal. So long as the act may be classified as one of instigation at one extreme, or encouragement or assistance, including minor encouragement or assistance, at the other, it is a relevant act.”

The appellant wants to have this court believe, as he tried to do the court below, that he never provoked any trouble. He wants to see himself as an innocent and harmless person going about his lawful business at 5 mile settlement and Jerry Bani picked a fight on him for no reason at all. But he later concedes that there has been an on-going dispute between him and Jerry Bani over the appellant’s non-payment of bride-price of Miriam’s marriage to him. However, apart from this only concession that he has made, he would not say that he was there at 5 mile that evening to pick up his wife Miriam. And would not say that he went with his cousin Joseph Kamen just in case he needed his help when his in-laws turned nasty towards him. Therefore there can be no doubt that when the appellant went to 5 mile, he knew precisely why he was there, what he wanted to do and he did precisely that. Jerry Bani’s evidence is clear in that the appellant had threatened them on occasions before to blow them up. And that is what the appellant did on the evening of 28 November, 1994, either personally or through Joseph Kamen. It was by deliberate design, not by chance, coincidence or accident that both the appellant and Joseph Kamen were at 5-mile settlement. If the appellant claims that Joseph Kamen threw the explosive object, then he obviously must have known that this item was in the vehicle and that it would be used. Hand-grenades or any explosives for that matter are dangerous substances and are not toys that can be carried around in public places as if they are harmless things. It is simply parting company with reality to accept that the appellant did not know that Joseph Kamen had a hand-grenade and that he would use it at 5-mile if things got rough. If this story is true, then his subsequent conduct or behaviour after the explosion is not consistent with innocence or someone with deep concern over what had happened to his in-laws. He took no step to report the explosion to the police that same night, to bring the perpetrator of the unlawful act to the police to be charged either the same night or the next day and took no positive step to help the police in their investigation. The total indifference in attitude maintained by the appellant is abnormal for a person whose wife’s family and relatives have just been bombed by one of his own relatives. On this evidence, the appellant could even be guilty of assisting in and facilitating the escape of a person who had just committed a serious crime.

There is a clear causal link in this case to tie the appellant’s predicament with the explosion perpetrated by Joseph Kamen. He is not an innocent passive spectator like in the English case of R v Clarkson and Others SC558.html#_edn246" title="">[ccxlvi]17 where the appellants were present in the room while some of their friends were committing rape on a woman in the course of the night lasting several hours. Their presence in the room was not accidental. They heard of a woman being raped so they purposely went there to see for themselves. They did not actively encourage but their mere presence was said to be sufficient to give encouragement to their comrades. But the court held that it must be proved that the appellants intended to give encouragement by their presence, particularly in view of the possibility that the appellants, being under the influence of drink, were present at the scene without being aware that their presence was giving encouragement to those perpetrating the offence SC558.html#_edn247" title="">[ccxlvii]18.

In the light of what I have expressed herein, I fail to see how the appellant had contemplated in the first place to avoid conviction by blaming someone else, and worse still, a close relative who had no reason to be there but to be with him. I am therefore of the view that the appellant could well be equally liable under section 7 (1) (b) of the Criminal Code if this Court were to find that Joseph Kamen was a real and living person and he is the perpetrator of the offence. However, the trial judge had already found the appellant to be lying in this regard which is a finding of fact based on the demeanour of the witness and the evidence before him. This is a finding that we, as the appellate court, should not interfere with unless exceptional circumstances require us to do so.

THE VERDICT

The appellant’s remaining grounds relate to the trial judge’s summing up of the evidence, his analysis of all the inconsistencies in the evidence from all the witnesses and the conclusion he reached. Appellant argues that even in the State case alone, the inconsistencies were such that he could not have been satisfied beyond reasonable doubt. We do not think this is a fair criticism of His Honour’s evaluation and assessment of the evidence generally. His Honour was not obliged to believe every witness in every detail of his or her story. In this case His Honour decided that he should believe Jerry Bani and James Wemin. Although James Wemin did not avail himself for continuation of cross-examination until excused by the Court, it is obvious from the transcript that he had virtually completed his evidence. This is again a finding of fact that we cannot disturb. In any event, there is no rule of law that his evidence is unreliable because cross-examination had not ended. His evidence is already in the trial and rightly admitted. It is the court’s discretion to use that evidence as it sees fit. When one looks at the evidence of Jerry Bani and James Wemin and compares same with the evidence of other State witnesses, there are no direct contradictions, let alone glaring inconsistencies. The primary issue in the trial was the identity of the perpetrator of the unlawful conduct of throwing the explosive object. The evidence in the State case is that the appellant threw the object as testified by eye-witnesses Jerry Bani and James Wemin. The other State witnesses do not contradict this evidence. All they say is that they did not see who actually threw the object. His Honour therefore was satisfied beyond reasonable doubt that the perpetrator was the appellant. Defence case was no better. In fact the evidence led on behalf of the accused simply strengthened the State case even further because the appellant’s own testimony was so fanciful that His Honour could do no more but disbelieve him.

In the upshot I find there was sufficient evidence upon which His Honour came to the conclusion he did. There is thus no basis for this Court to disturb the verdict and I would therefore confirm the conviction and dismiss the appeal. Appeal is dismissed.

Lawyer for the Appellant: Public Solicitor

Lawyer for the Respondent: Public Prosecutor

SC558.html#_ednref230" title="">[ccxxx] See John Beng v The State (1977) PNGLR 115
SC558.html#_ednref231" title="">[ccxxxi] See Biwa Geta v The State (1988-89) PNGLR 153
SC558.html#_ednref232" title="">[ccxxxii] (1976) 63 Cr App R 132
SC558.html#_ednref233" title="">[ccxxxiii] [1961] VicRp 115; (1961) VR 761
SC558.html#_ednref234" title="">[ccxxxiv] (1958) 99 CLR 346
SC558.html#_ednref235" title="">[ccxxxv] (1960) 1 WLR 1169
SC558.html#_ednref236" title="">[ccxxxvi] (1964) Qd R 26
SC558.html#_ednref237" title="">[ccxxxvii] [1977] HCA 43; (1977) 137 CLR 517
SC558.html#_ednref238" title="">[ccxxxviii] (1981) Crim LR 397
SC558.html#_ednref239" title="">[ccxxxix] (1947) 3 DLR 772
SC558.html#_ednref240" title="">[ccxl] supra
SC558.html#_ednref241" title="">[ccxli] supra
SC558.html#_ednref242" title="">[ccxlii] supra
SC558.html#_ednref243" title="">[ccxliii] (1935) AC 462
SC558.html#_ednref244" title="">[ccxliv] (1976) 3 All ER 828
SC558.html#_ednref245" title="">[ccxlv] Gillies P: Criminal Law, The Law Book Company Limited, 1985
SC558.html#_ednref246" title="">[ccxlvi] (1971) 3 All ER 344
SC558.html#_ednref247" title="">[ccxlvii] Supra at p 347