Aen and Nicholas v The State [1999] PGSC 8; SC582 (30 April 1999)

Unreported Supreme Court Decisions

SC582

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO. 59 OF 1995
BETWEEN: NICHOLAS AEN AND STEVEN NICHOLAS
APPELLANTS
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ, Jalina Sawong JJ
25 March 1999
30 April 1999

APPEAL AGAINST CONVICTION AND SENTENCE

This was an appeal against both conviction and sentence on a conviction for murder contrary to s 300 of the Criminal Code (ch No 262).

Counsel

B. TAKIN for the Appellants

P. MOGISH for the Respondent

30 April 1999

KAPI DCJ, JALINA SAWONG JJ: This was an appeal against both conviction and sentence. At the hearing of the appeal, the appeal against sentence was dismissed as being incompetent as the appellants had not sought and obtained leave of the Supreme Court to do so pursuant to s 22 (d) of the Supreme Court Act (ch No. 37). See also Porewa Wani v. The State [1979] 593, at 594 – 595.

The appeal against conviction remained on foot and submissions were heard on this aspect. The appellants were charged with wilful murder, but were convicted of the murder of a man called Phillip Kipakali at his home at East Boroko.

The State alleged that the appellants went to the deceased’s house on the evening of (date) and started an argument. A fight then errupted inside the house and the appellants were chased out of the house. A few minutes later the argument continued on the verandah at the back of the house and the deceased was severely beaten up on his head which lead to his eventual death.

The appellants denied hitting the deceased and said that they had no motive to kill the deceased.

At the end of trial, the trial judge found the appellants not guilty of wilful murder but guilty of murder.

The appellants have now appealed against their convictions. The grounds of the appeal are set out in the supplementary Notice of Appeal, which are as follows:

“SUPPLEMENTARY GROUNDS OF APPEAL

GROUNDS:

Conviction:

3. That the learned trial judge erred in finding as a fact:-

(a) that the key witness Linda Kipakali was the wife of the deceased Philip Kipakali.

(b) that deceased Philip Kipakali defended his wife when appellant Steven Nicholas became aggressive towards her.

(c) that it was a family dispute which brought about the death of deceased.

4. That the learned trial judge erred in law in finding:-

(a) that the state’s key witnesses evidence were credible.

(b) that the evidence of doctor in respect to the assault on deceased’s head and the injuries sustained directly conflict with state’s key witness.

(c) That the key witness evidence that deceased was also assaulted by one of the Defendants namely Philip Kipalan also directly conflict with the doctor’s evidence.

(d) That there was a conflicting evidence on the issue of lighting from the key witnesses.

(e) That there were other persons present other than Appellants at the scene of crime prior and during the commission of the offence.

(f) that there was no motive for the Appellants to cause the deceased’s death.

(g) Defendant Philip Kipalan was acquitted and it follows that the Appellants should follow suit.

Grounds 3 (a) (b) and (c) relate to findings of facts made by the trial judge. We consider that as no leave has been granted by the Supreme court, pursuant to s 22 (c) of the Supreme Court Act, these Grounds are incompetent. These are dismissed.

The remaining grounds of the appeal are set out in Ground 4 (a) to (h) inclusive in the Supplementary Notice of Appeal. During the hearing of the appeal, Grounds 4 (g) and (h) were not pursued. Those Grounds are therefore dismissed.

We consider that Grounds 4 (a), (b) and (c) may be conveniently dealt with together. The essence of the appellants submissions was that there was conflicting evidence between the State own eye witnesses’ evidence and that of the evidence by the doctor as to the number of blows that were said to have been inflicted upon the deceased.

Mr Takin submitted that Linda Kipakali’s evidence of seeing the appellant hitting the deceased two times on the same spot on the forehead where the doctor says that he observed only one injury on the forehead. Furthermore, the description of the nature of the injury given by the doctor infers that only a single blow was inflicted.

Mr Mogish submitted that there was no dispute the deceased died from a hit on the head by a blunt object. He further submitted that whether it was one blow or two blows, it does not matter. What matters is that the injury to the head which caused the death.

We have read the transcript of the evidence of Linda Kipakali and evidence by the Doctor. We are of the view that there is really no dispute between Linda Kipakali’s evidence and that of the doctor. For instance, in the first page of the Post Mortems Report (Exhibit 5), under the heading “Summary of Significant, Abnormal Findings at Examination” the doctor lists six such findings. Towards the end of that page he stated:

“6. Small fracture at the base of the skull.”

The doctor was never cross-examined on this aspect. This piece of evidence thus remained unchallenged and undisputed. Thus as it can be seen, there is undisputed evidence from the medical report that the deceased was in fact hit two times. Thus there is really no dispute between the evidence of Linda Kipakali and that of the doctor as to the number of blows inflicted.

Further, even if there is such an inconsistency which we do not accept, we consider that such a inconsistency is not fatal nor does that give rise to any substantial miscarriage of justice. We would accept Mr Mogish’ submission and dismiss these grounds.

In so far as the remaining grounds are concerned, we do not consider there is any conflict in the evidence, such as would give rise to any substantial miscarriage of justice. We dismiss these also.

The final upshot is that the appeal is dismissed and the decision of the National Court on the verdict and sentence are confirmed.

Lawyer for the Appellants: B. T. Bobu & Associates

Lawyer for the Respondent: Public Prosecutor