Makalminja v The State [2004] PGSC 41; SC726 (3 February 2004)

SC726

PAPUA NEW GUINEA

[ IN THE SUPREME COURT OF JUSTICE ]

SCRA NO: 34 OF 2002

BETWEEN:

TITUS MAKALMINJA and
TOBBY ANUNAU
Appellants

AND:

THE STATE
Respondent

Waigani : Injia DCJ, Jalina, Gavara-Nanu JJ

2003. : 26th October,
2004. : 03rd February,
      

CRIMINAL LAW – Appeal – Supreme Court Act, Chapter No. 37, s.6; - Powers of the Supreme Court to review evidence before the trial judge – Powers of the Supreme Court to make findings of facts upon evidence adduced before the trial judge.

Case Cited:

MVIT v John Etape [1994] PNGLR 596

Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No.2) [1969-70] PNGLR 410

Counsel:
S. Siminj for the Appellant
C. Manek for the Respondent

BY THE COURT: The appellants were charged and tried for the murder of one Joe Pexxy, on 21st July, 2002, in Gerehu in the National Capital District. On 19th April, 2002, they were convicted of manslaughter and were each sentenced to 8 years in hard labour.

The appellants are appealing only against their conviction.

The appellants raise three grounds of appeal.

(a) There was inadequate or insufficient evidence to prove beyond a reasonable doubt that the appellants were parties to the assault of Joe Pexxy.

(b) There was inadequate or insufficient evidence to prove beyond a reasonable doubt that the appellants aided or encouraged the unlawful killing of Joe Pexxy.

(c) There was an error in law on convictions in that the alternative charge of manslaughter was not available on the evidence adduced by the State.

Orders sought.

(a) That the appeal be allowed.

(b) The decision of the National Court be squashed, and

(c) The sentence be set aside.

Undisputed facts.

In the evening of 21st July, 2000, the appellant Titus Makalminja and another policeman Thomas Suwibu who were both reserve policemen and appellant Tobby Anunau a regular policeman who were all stationed at the Waigani Police Station met at that police station and decided to go to Gerehu. Appellants Titus and Thomas Suwibu were dressed in police uniforms but appellant Tobby was in civilian clothes as he was off duty at that time.

At about 10.00 pm they arrived at Gerehu stage 4. They wanted to buy cigarettes at a road side tucker shop so they stopped the police van they were traveling in, near the tucker shop. Appellant Titus was driving the police van. While they were waiting, someone threw an empty bottle towards them so Titus drove the vehicle to the direction where the bottle was thrown. They drove into the area and woke the occupants of a house. The owner of the house came out and started talking to appellant Titus and Titus was asking the owner of the house as to who threw the bottle at them. While that was going on, a police Mobile Unit (Mobile Unit) arrived in another vehicle and joined them. The appellants and their friend Thomas then briefed the Mobile Unit members of what happened. Soon after, the deceased was apprehended by the Mobile Unit members while walking along the main road, after he was identified by appellant Titus as the one who threw the bottle. He was assaulted by the Mobile Unit members which contributed to his subsequent death.

Submissions.

Mr Siminji submitted generally that there was no evidence that the appellants had encouraged the Mobile Unit members to assault the deceased, which led to his death. He said, even if there was some evidence against the appellants, it was insufficient for the trial judge to convict them of manslaughter. It was submitted that the trial judge therefore made an error in finding the appellants guilty of manslaughter. Mr Siminji submitted that the conviction was therefore unsafe and should be quashed and the appeal should be allowed and sentences set aside.

Mr Manek on the other hand argued that, there was more than sufficient evidence for the trial judge to convict the appellants of manslaughter, because the appellants not only encouraged the Mobile Unit members to assault the deceased but they themselves also assaulted the deceased. Mr Manek submitted that the conviction was therefore justified. It was submitted that the appellants have not shown any error by the trial judge thus the appeal should be dismissed and the conviction affirmed.

Evidence.

To properly determine this appeal, we need to look at the evidence upon which the trial judge made findings and convicted the appellants of manslaughter. The relevant evidence appear from a number of witnesses called by the State. These evidence are largely uncontested.

The first such witness is Mr John Kakusio. He said, he was sleeping in his house when he was woken by a drunken policeman who went to his house and broke a fibro wall of his house. He said, the fibro wall was broken into pieces and some pieces fell on him an some fell on his child. When he went out of the house to investigate, he met the policeman who broke the wall of his house. He protested to the policeman that his actions were unbecoming of a policeman. While he was talking to the policeman, the other policeman was pointing a gun at him. He identified appellant Titus in Court as the one who broke his wall, and appellant Tobby as the one who pointed the gun at him.

He told the Court that two policemen were in police uniforms, but the other policeman was in civilian clothes.

Mr Kakusio saw the deceased being apprehended by the Mobil Unit members on the main road, as he was walking, after appellant Titus told the Mobil Unit members that the deceased was the one who threw the bottle at them and they must not let him go. He saw the deceased being assaulted by the Mobile Unit members. The deceased was lifted up and held on his two legs and thrown onto the ground twice. Mr Kakusio said, he also saw both appellants assault the deceased.

He saw those from about the distance of 8 meters. He said the lights in his house were off but there was a spot light from the store nearby and that light was shinning onto his area, so he could see what was happening. As the deceased was lying on the ground, he went close to the deceased to identify him and he noticed that the deceased’s neck appeared to be broken. The deceased’s hands and legs were shivering as if he was going into fits. He told the policemen that they should not assault the deceased. At that time he saw appellant Titus went across to the deceased as he was lying on the ground and kicked him on his side quite strongly with his boots. The deceased was lying face down on the ground and was not moving.

The other State witness was Inventor Hitsy, Mr Kakusio’s son. He was sleeping in his house, and when he heard his father talking to the policemen outside, he decided to go out and see what was happening. When he went outside, he was told by the police to put his hands up, and one of the policemen tried to punch him but his father told the policeman that he was his son so the policeman did not punch him. He said the policeman that was talking with his father was drunk. At that point, he saw the deceased walking down on the main road and the other policemen held him. He said the policeman who was drunk and standing and talking with his father told those other policemen that the deceased was the one who threw the bottle, so they must not to let him go.

In Court, he identified appellant Titus as the one who was drunk and standing and talking with his father and was the one who identified the deceased and told the other policemen not let him go.

He saw the deceased being lifted twice and thrown on the ground. He then saw his father and the drunken policeman walk to where the deceased was lying. He saw that from under the lights coming from the spot light from the Chinese store next door. The spot light shone directly onto the deceased, so he could see clearly when the deceased was lifted up twice and thrown to the ground by the other policemen. He confirmed that two of the policemen who came to his yard were in police uniforms but the other one was in civilian clothes.

The other State witness was Thomas Suwibu. He was with the appellants in the night of the incident.

He said, after the deceased was apprehended by the Mobile Unit members, he saw appellant Titus slapping the deceased across the face. He then saw appellant Tobby lift up the deceased and threw him onto the ground once. Appellant Tobby then lifted the deceased from the ground and threw him onto the police vehicle. They then got in their police vehicle and took the deceased to Gerehu Police Station and left him there. The three of them, then went to Waigani Police Station. While at the Waigani Police Station, they received a call from Gerehu Police Station telling them to go and pick up the deceased. So they went back to Gerehu Police Station and picked up the deceased. The deceased was put in the police vehicle and brought to Waigani Police Station. He said at Waigani Police Station, he saw that the deceased was about to die. He confirmed that, at Gerehu, where the incident happened, there was light coming across from the supermarket next door. He also confirmed that he and appellant Titus were in police uniforms but appellant Tobby was in civilian clothes.

At Waigani Police Station, he did not tell anyone about the condition of the deceased because he was scared.

The other state witness is Raphael Rokipa. He is a police sergeant based at the Waigani Police Station. He was on night duty on 21st July, 2000, so he saw both appellants driving into Waigani Police Station in a police vehicle. Sometime later, he saw the two appellants pouring water on the deceased who was still lying at the back of the vehicle. He said appellant Titus was driving the vehicle. He saw him drove out of Waigani Police Station and back in the same police vehicle a few times. When he asked appellant Titus, whether he had picked up his driver, appellant Titus became agitated and started arguing with him for no reason. He said, he heard a person crying in agony and sounded as if the person was about to die. At that time, appellant Titus was trying to wake the deceased up and was telling the deceased several times in pidgin to get up, he was saying "kirap, kirap". He confirmed that, appellant Titus was in police uniforms and was drunk and appellant Tobby was wearing a cap and a yellow T-Shirt. He said, the last time appellant Titus drove out of Waigani Police Station, he did not return until about twenty minutes later. When appellant Titus drove out, he drove towards Waigani market and Morata. And when he returned, he left the vehicle and the key and left. After appellant Titus left, he went and checked the vehicle that appellant Titus left, but it was empty, the deceased was not there, so he drove to Hohola Police Station and picked his driver. While he was on his way back to Waigani Police Station, he heard on the police radio that a dead body was found at the back of the PSA building. He drove to the scene and identified the dead person as the one who appellant Titus was trying to revive at the back of the police vehicle at Waigani Police Station. And he was the same person that the two appellants brought in from Gerehu Police Station.

Reasons for decision.

As we noted earlier in the judgment, the appellants were charged with the murder of the deceased, but the trial judge convicted them of manslaughter. His Honour found that the deceased was assaulted by the Mobile Unit members in the evening of 21st July, 2000, in the presence of the appellants. And the appellants did not stop the Mobile Unit members from assaulting the deceased although it was their duty as policemen to stop the assault on the deceased. His Honour said in those circumstances, the appellants had encouraged the Mobile Unit members to assault the deceased. Consequently, the appellants were acquitted of murder but were found guilty of manslaughter.

The relevant part of the trial judge’s decision appears in page 116 of the Appeal Book, which reads:

"The question is whether these two accused encouraged or aided the policemen in the assault at the time. There is no suggestion from the evidence that they carried out their duties lawfully in accordance with the law. That is to say, they prevented any unlawful action being taken by the other policemen in assaulting this youth, and that they would not assault but they should first investigate, ask questions about whether this youth had anything to do with the throwing of the bottle. There is no suggestion that they tried to stop the policemen. There is also no report by them to the Waigani police station that they witnessed other members of the police force seriously assaulting this deceased and that they should be charged.

I find from the whole of the evidence when these two witnesses went across to see the youth who was being unlawfully assaulted took no steps to prevent or to stop. I can infer from the whole of the evidence that their presence across where the youth was being assaulted, at least I can infer beyond reasonable doubt that they would have aided and encouraged those who ere actually assaulting the youth. I am therefore able to find them guilty not of murder as charged, but find them guilty of manslaughter in the alternative from the whole of the evidence."

The appeal to this Court is by way of rehearing of the evidence given in the court, the decision of which is appealed against, pursuant to s. 6 of the Supreme Court Act (Chapter No. 37).

Section 6 is in these terms:

"6. Appeal to be by way of rehearing.

1. An appeal to the Supreme Court shall be by way of re-hearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court – (a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it, and (b) to draw inferences of fact.
   
2. For the purposes of hearing and determining the appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
   

So by virtue of this provision, this Court can exercise the powers, authority and the jurisdiction that would have been exercised by the trial judge. This means, this Court can revisit the evidence given before the trial judge and make findings of facts which may or may not be the same as those found by the trial judge. This Court can exercise these powers where the trial judge has misconstrued the evidence or has put less emphasis or greater emphasis on evidence, or has overlooked some evidence. This point was expressed in MVIT -v- John Etape [1994] PNGLR 596. The Supreme Court at page 601, said:

"The appellant relies on s.6 of the Supreme Court Act, Ch.37, which provides for the Court’s powers on appeal. Section 6(2) provides that this Court has all the powers, authority, and jurisdiction of a judge exercising the jurisdiction of the National Court. In the circumstances, this Court may substitute a finding on evidence before the trial judge."

This approach was broadly stated in the case of Director of District Administration -v- Custodian of Expropriated Property (Re Wangaramut) (No. 2) [1969-70] PNGLR 410. The Supreme Court in that case was hearing an appeal under s.38 of the Land Titles Commission Ordinance, 1962 – 1968, from the decision of a single judge who set aside parts of the decision of the Land Titles Commission. The appeal was on the ground that the decision was against the weight of the evidence. The Supreme Court while exercising powers similar to those granted under s.6 of the Supreme Court Act, held that the appellant was entitled to appellate court’s review of all the evidence, its consideration of their probative values, its evaluation on the inferences drawn from such evidence and its consideration of the relevant laws so far as they affected such evidence. The Supreme Court held that the appellate court was not simply to substitute its own conclusions for those of the decision under appeal if it disagreed with them.

This principle is expressed at the footnote:

"Upon an appeal under s.38 on the ground that the decision under appeal is against the weight of the evidence, the appellant is entitled to the appellate Court’s review of that evidence, its consideration of its probative value, its evaluation of the inferences drawn from that evidence and its consideration of the relevant law so far as it affects that evidence. The appellate Court is not simply to substitute its own conclusions for those of the decision under appeal if it disagrees with them..." (see also at page 416).

Then at page 439, the Supreme cited a passage from the decision of the Privy Council on the West African Court of Appeal decision in Ibrahimah v Gariba [1954] W.A.C.A 174.

"An Appeal Court is not barred from coming to its own conclusion on the facts, and where a judgment has been appealed from on the ground of the weight of evidence, the Appeal Court can make up its own mind on the evidence, not disregarding the judgment appealed from, but carefully weighing and considering it ..."

Applying the principle to this case, this Court has the power, to review the evidence that was before the trial judge and make such findings and draw inferences from the evidence that were before the trial judge.

In this case, the evidence as discussed clearly shows that the appellants did in fact assault the deceased. There is direct evidence that the appellants assaulted the deceased. Furthermore, before the deceased was assaulted by the Mobile Unit members, appellant Titus called out to them and told them not to let the deceased go because he was the one who threw the bottle. It was following that, that the deceased was assaulted by the members of the Mobile Unit members, and the appellants. Direct evidence against appellant Titus was that he kicked the deceased on the side as he was lying on the ground, then slapped him across his face. And as to appellant Tobby Anunau, he was seen by Thomas Suwibu picking up the deceased and threw him down to the ground, then lifted him up and threw him into the police vehicle.

These clearly establish that the appellants were not just passive by-standers but they were active participants in the crime.

The events that followed after the deceased was assaulted are in our view also relevant as they reflect on the physical condition of the deceased and the appellants’ behaviours, which in our view were consistent with their guilt. By the time the deceased was picked up by the appellants and Thomas Suwibu, from Gerehu Police Station, he was struggling to breath. The appellants together with the Mobil Unit members were the only people who assaulted him before he was taken to Gerehu Police Station. And by the time the appellants brought the deceased to Waigani Police Station, the deceased was very weak and the evidence shows that appellant Titus was trying to revive him by pouring water on him and was telling him to wake up. There is the inescapable inference that after failing to revive the deceased, appellant Titus was the one who took the deceased away from the Waigani Police Station and dumped him where he was later found by the other police patrol unit at the back of the PSA Haus. That conduct is in our view consistent with appellant Titus trying to conceal his crime. In this regard, we also note that appellant Titus told the arresting officer in his record of interview that the deceased had escaped from Waigani Police Station.

It is therefore clear in our view that, not only did the appellants encourage the members of the Mobil Unit members from assaulting the deceased but they themselves also assaulted him. Therefore there was evidence justifying the conviction for manslaughter.

For these reasons, we do not accept the contention by the appellants that there was insufficient evidence for the trial judge to convict the appellants of manslaughter.

The appeal is therefore dismissed and conviction is affirmed.
____________________________________________

Lawyer for the appellants: Public Solicitor

Lawyer for the respondent: Public Prosecutor