Api v The State [2001] PGSC 2; SC684 (29 August 2001)

SC684

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 16 OF 2001

BETWEEN

TONY IMUNU API

APPELLANT

AND

THE STATE

RESPONDENT

WAIGANI: LOS, SEVUA & KANDAKASI, JJ

2001 : 27TH & 29TH AUGUST

CRIMINAL LAW – Wilful murder – Appeal against sentence – Grounds of Appeal raise issues on conviction – Defence of alibi not raised in examination – Rule in Browne v. Dunn.

CRIMINAL LAW – Wilful murder – Circumstantial evidence.

CRIMINAL LAW – Wilful murder – Sentence – Life imprisonment – Worst type of killing – Comments on a death penalty in serious wilful murder cases.

Cases referred to in judgment:
Paulus Pawa v. The State [1981] PNGLR 498.
The State v. Tom Morris [1991] PNGLR 493.
Barca v. The Queen (1975) 113 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117.
Browne v. Dunn (1893) 6 ER 67.
The State v. Sei Nakiking Tubol & Ors [1994] PNGLR 378.
William Norris v. The State [1979] PNGLR 61.
House v. The King (1936) 55 CLR 499.
Reg v. Taylor [1985] VR 285.
Wanosa v. The Queen [1971-72] PNGLR 90.

Counsel:
Appellant in Person
C. Sambua for Respondent

29th August, 2001

BY THE COURT: The appellant was convicted of wilful murder by the National Court at Waigani on 11th October 2000, and sentenced to life imprisonment on 28th December 2000. He now appeals against sentence, although his grounds of appeal appear to dispute conviction as well.

The notice of appeal filed on 23rd January 2001 is headed "APPEAL AGAINST SENTENCE". We do not intend to set out the grounds of appeal, suffice it to say that the appellant seems to raise the defence of insanity and the issue of circumstantial evidence.

The facts of the case resulting in the charge of wilful murder were these. The deceased John Sarufa, was a 14 year old, Grade 6 student at Kilakila Community School, who, prior to his death, was recently transferred from Daru in Western Province. On the afternoon of Wednesday, 25th August 1999; he returned home to Kaugere after school when he changed clothes and took K2.00 from his aunt and walked to the shop. He never returned to the house and was subsequently found dead behind the Kenmore City hill near Gabutu on 27th August 1999. When the body was discovered, the deceased had no clothes, and had faeces on his rectum.

The evidence which was circumstantial, was that, on the afternoon of 25th August 1999, at approximately 4 or 5pm, the prisoner was seen by two women, Magi Lare and Kathy Kevin, pulling the deceased by the collar of his shirt from the bus stop at Kaugere towards Gabutu. Both women know the prisoner personally. The deceased went missing since that sighting until found dead, two days later. Basil John, who resides at Gabutu, saw the prisoner between 6 – 7pm that evening walking from the direction of Koki towards his (witness’) house. The prisoner walked past the witness’ house when the witness’ dogs started to bark at the prisoner. The witness observed the prisoner to be shocked and frightened, and suspected that the prisoner must have done something. The witness said the prisoner’s appeared that this was not because the dogs barked at him.

On Friday, 27th August 1999, Inspector John Midi received a complaint from the deceased’s family members about the missing school child. He proceeded to Kaugere where, upon information, the prisoner, known to this witness then as Tony Black was located in a house at Kaugere and taken to Badili Police Station for questioning. Following a short caution administered by Inspector Midi, the prisoner was questioned about the missing boy. At first, the prisoner denied any knowledge of the deceased, however, due to information received, Inspector Midi persisted in questioning the prisoner who eventually agreed to show the Police Officer the location of the deceased.

The prisoner then led Inspector Midi and other policemen in police vehicles to Kenmore City wall near Gabutu at about 9 or 10am. Opposite the Four Square Gospel Church, he told the police to stop. The prisoner then led the police to Kenmore City premises by climbing a fence into that property. Approximately 120 metres from the vehicle, the prisoner located the body of the deceased and said in pidgin, "Boss o, em yia, wampela bodi yia" (Oh, Boss, here is a body). The deceased was observed as lying naked face down with faeces still on his anus. The prisoner was later taken to Boroko Police Station when he was subsequently charged and arrested.

During the brief questioning at Badili Police Station, the prisoner initially raised the defence of alibi. He said, he saw the deceased being led away by a Goilala man known as Auna, as he (prisoner) was walking to the Kaugere field to play torch rugby. However, he saw a police vehicle arrived at Kaugere to disperse gamblers so he returned to his home when his father told him to assist his (fathers) wife to chop firewood, which he did. The prisoner did not go anywhere from then onward, and remained at the house with his brother and his wife.

At this juncture, we make one very important observation, Defence counsel, despite the suggestion of an alibi, never put that defence to the prosecution witnesses in cross examination, a clear breach of the well known principle of Browne v. Dunn (1893) 6 ER 67; commonly referred to as the rule in Browne v. Dunn. In fact, we also observe from the transcript that the manner in which the defence case was conducted did not reveal what the defence was at all. Whether it was general denial, alibi or, something else the prisoner’s defence was never raised in cross examination. Be that as it may, we consider that the prisoner’s counsel’s failure to raise the issue of alibi in cross examination, denied the State the opportunity to refute, confirm or offer any explanation on the alibi defence during the examination of the prosecution’s witnesses. See also The State v. Sei Nakiking Tubol & 8 Ors [1994] PNGLR 378.

The prisoner gave sworn testimony and denied the commission of the crime. In fact, he maintained his alibi and even went to the extent of denying that he led the police to the site where the body of the deceased was found.

The medical evidence reveal very serious injuries. Upon examination, Dr. Diro Babona, found multiple depressed fractures to the skull. On the left frontal area were a 3 cm diameter crepitus and a 4 cm crepitus on the right. On the left temporal area was a 10 cm cross depressed fracture while a 6 cm fracture was found on the right side. There were multiple abrasions on the right shoulder and abdomen and faeces were found around the rectum with dilation of 5 cm and some excoriation of rectal wall.

We agree that the evidence in this case is largely circumstantial and we are of the opinion that the trial Judge’s findings and conclusions were correct in fact and law. We agree with His Honour’s conclusion that the prisoner’s guilt was the only rational inference that the circumstances enabled the Court to draw. The evidence of Lari, Kevin and John connected the prisoner to the crime. The police Inspector’s evidence that the prisoner voluntarily led police to the body of the deceased connected the prisoner with the crime. There is no evidence suggesting that the prisoner came across the deceased body by mistake. He led police to the body. The quality of the circumstantial evidence was very good therefore the conviction could not be said to be unsafe and unsatisfactory. See the relevant principles in Paulus Para v. The State [1981] PNGLR 498; The State v. Tom Morris [1981] PNGLR 493; Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; [1975] HCA 42; 50 ALJR 108 at 117.

The prisoner was sentenced to life imprisonment. In his submissions, he has not shown where the trial Judge erred in the exercise of his discretion or sentence. He has not demonstrated any identifiable or unidentifiable error on the part of the trial Judge.

It is trite law that a person appealing against sentence must persuade the appellate Court that a more lenient sentence was warranted in law and should have been imposed then the Court would quash the sentence upon being persuaded. He does this by showing some error on the part of the trial Judge. If no error is shown, the Court will not interfere with the sentence. A discourse of these principles is found in the judgment of the Supreme Court in William Norris v. The State [1979] PNGLR 612, at 612 – 613. Other related authorities are House v. The King (1936) 55 CLR 499, at pp 504 – 505; R. v. Taylor [1958] VicRp 46; [1958[ VR 285, at 289 – 290 & 299, and Wanosa v. The Queen [1971-72] PNGLR 90, at 97 – 105.

In this appeal, we reiterate that the appellant has not demonstrated that the trial Judge made an error in his sentencing discretion. In face, there is no submission that the sentence was manifestly excessive and how this was so. The onus is on him to show some identifiable errors before this Court can overturn the sentence imposed by the trial Judge. He has not shown this and we are satisfied that there is no merit in this appeal.

We are of the opinion that this was a worst type of wilful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view. We therefore hold the view that the prisoner should have been sentenced to death.

However, we note that the State did not appeal against the life sentence, and we also note that the prisoner who was unrepresented in this appeal most likely did not appreciate the gravity and enormity of this crime when he lodged his appeal. But since s.23(4) of the Supreme Court Act empowers the Supreme Court to vary a sentence, the Court has the power to reduce or increase a sentence. This issue was not raised in this appeal therefore it has not been fully argued before us.

Nevertheless, we consider that the National Court should in appropriate circumstances, consider that Parliament had amended s.299 of the Criminal Code for a purpose. In the light of the prevalent commission of wilful murder in the country, some of which can be categorized as very serious cases of unlawful killings, the National Court must not ignore the concerns of the community at large. We think the time has come for the National Court to seriously consider paying some attention to serious willful murder cases, and where appropriate, impose the death penalty. We say this without in anyway trying to usurp the power and independence of trial Judges in the National Court.

For these reasons, we dismiss the appeal and confirm the conviction and sentence.
______________________________________________________________
Appellant in Person
Lawyer for Respondent : Public Prosecutor