Poning v State [2005] PGSC 17; SC814 (7 December 2005)

SC814

PAPUA NEW GUINEA
[In the Supreme Court of Justice]

SCRA 99 of 2003

BETWEEN

MECKLINA KAR PONING
Appellant

AND

THE STATE
Respondent

MT HAGEN: SEVUA, SAWONG & LAY, JJ.
2005: 28 June & 7 December

CRIMINAL LAW – Appeal - Murder – Self defence – Whether appellant established self defence – Whether prosecution negatived self defence – Standard of proof in establishing self defence – Standard of proof in negativing self defence - Proper tests.

CRIMINAL LAW – Practice and procedure – Record of interview – Defence objection to admissibility - Voir dire not conducted– Prosecution allowed to cross examine accused on questions in ROI not in evidence – If cross examination on basis of prior inconsistent statement, no leave sought - Prosecution not entitled to cross examine on answers to questions in ROI without a voir dire – Prosecution not entitled to cross examination on prior inconsistent statement without establishing basis and without leave - Whether accused given a fair trial – whether prosecution’s conduct proper – Whether trial Judge’s omission to disallow prosecution’s cross examination on ROI not in evidence is error of law.

Constitution, s. 37
Evidence Act, ss. 22 and 23

Cases cited.
R v. Muratovic [1967] Qd. R. 15
Tapea Kwapena v. The State [1978] PNGLR 316
The State v. Takip Palne [1976] PNGLR 90
The State v. Leonard Masiap [1997] PNGLR 610
The Queen v. Nikola Kristeff (1961) unreported, No 445 (Frost, J)
Regina v. Korongin (1961) unreported, No 204 (Mann, J)
The State v. Kole Nawa & Kumbe Yakola [1991] PNGLR 76
Epeli Davinga v. The State [1998] PNGLR 263

Mr. B. Aipe for Appellant
Mr. J. Waine for Respondent

7 December 2005

BY THE COURT: The appellant was charged that on 1st August 2002 at Andu village, Anglimp, Western Highlands Province, she murdered one Agnes Neng, contrary to s. 300 Criminal Code Act. On arraignment, she entered a plea of guilty, however her counsel, Mr. Aipe, made an application for the guilty plea to be changed to a not guilty plea as the appellant was raising self defence. Accordingly, the trial Judge granted her application and entered a plea of not guilty. After a trial, she was convicted of murder and sentenced to 12 years imprisonment. She lodged an appeal against both conviction and sentence, however at the hearing of the appeal; she abandoned her appeal against sentence. Therefore this appeal is against conviction only. The appellant’s husband, Paul Tike Mark was the co-accused who was also charged with the same crime and appeared at the trial with the appellant in the same indictment. The deceased was the other wife of the co-accused, Paul Tike Mark who was acquitted and discharged.

The allegations against the appellant were these. At about 10 am on 1 August 2002, there was a gathering of some village leaders on a road at Andu village, where the deceased was present. The gathering was to resolve a fight between the deceased and her husband, Paul Tike Mark, which occurred the previous day. The leaders were waiting for the co-accused to arrive at the meeting place. The appellant was not part of the gathering. When the co-accused arrived at the meeting place, he was told that the leaders were waiting for him to come so they could resolve the fight he had had with the appellant the previous day. He became upset because he said this was a domestic issue to be resolved within their matrimonial home and not in a public place. It was alleged that he then took out his knife and struck the deceased three times, the third strike was to the left thigh of the deceased. The deceased then ran away from the gathering and shortly met the appellant. Both women then engaged in a fight in which the appellant stabbed the deceased near her armpit thereby causing her death.

The prosecution’s case rested solely on the evidence of Sally Pora, a young 15 year old girl who was the daughter of the deceased, but not the biological child of the co-accused since her mother, the deceased, had previously married another man and the witness was the offspring of that union.

Sally Pora’s evidence is this. At the material time, she walked down to the road with the co-accused, Paul Tike, Rebecca and the appellant to where the gathering was. She said that the co-accused did not go to the gathering alone. Her evidence of the assault against her deceased mother was that Paul Tike struck her (deceased) twice on her back and once on her left leg with a bush knife. The deceased then ran away, but met the appellant on the road and the appellant grabbed her, (deceased) by the shirt and so they grappled with each other until the deceased wanted to hit the appellant with a stone then the appellant got a knife and "poked" her on the back then threw the knife away and escaped.

At this juncture, one observation becomes apparent. This incident purportedly occurred in the presence of other people who were named in the trial and in a clearing on a road resembling a Village Court area; however the prosecution failed to call those other persons as witnesses. This is relevant in relation to the issue of self defence, and in particular, whether the State had negatived that defence. It is also relevant in respect of the credibility of Sally Pora. We will revert to this issue later.

The evidence of Sally Pora is at odds with the evidence of Paul Tike, the co-accused, and the appellant herself. Tike was a teacher until his arrest. At about 10.00 am on the date of this incident, he walked down by himself to the road where the people were. He met Patrick Deting and the deceased. He also saw Pais Tiri cutting grass there. There was an argument between the couple over the deceased’s insistence that the co-accused’s previous attack should be dealt with by the Village Court, and the co-accused’s refusal to co-operate as he maintained it was a private domestic matter to be resolved in their home.

The argument led to a physical confrontation where the couple held each others shirts and grappled back and forth until Patrick Deting intervened and stopped them. The deceased then ran away, and then some 20 – 30 metres away she got a knife out of her bag and continued running. When the co-accused caught up with her, he observed the deceased fighting with the appellant. There is no evidence that the co-accussed saw the prosecution witness, Sally Pora, at the scene of fighting between the two women. The co-accused denied Sally Pora’s statement on oath that she was present. He said Sally and Rebecca were not there. In fact he said Sally lied on oath in Court.

The appellant gave sworn evidence which was tested in cross-examination. On the day of the incident, on 1 August 2002, she was carrying a car battery in a bag with the strap on her head. She had two plastic water containers on her hands and a knife on her side. She was walking up the road with both hands on her head when she met the deceased. The deceased ran towards her (appellant) with a knife, but the appellant did not expect a fight because they had not quarreled or fought at anytime prior to that day. When the deceased came to the appellant, she (deceased) said "you are the only one" and then swung the knife at the appellant. The deceased struck the appellant on her forehead. The appellant attempted to release the strap of the bag from her hand when the deceased struck her twice on her hands. The appellant then got her knife and struck the deceased who was consequently injured and ran away.

At the top of page 61 of the appeal book, the appellant said she was afraid after being struck on her forehead by the deceased. Then at the bottom of page 62 at line 39, the appellant said in her answer to a question, " that was my first time to get a knife wound so I thought I am going to die."

Most of the questions raised in cross-examination were related to the record of interview, which was not part of the prosecution’s evidence. It was not tendered into evidence therefore did not form part of the prosecution’s case against the appellant. The Court views this procedure with great concern. The defence counsel did not raise objection to this until the end of the cross examination. But then, the trial Judge did not rule whether the prosecution could proceed in that manner. When raised by defence counsel at the end of cross examination, the trial Judge said counsel could raise this issue during submissions. We consider this as an injustice to the appellant and a gross error by the trial Judge, which amounted to a miscarriage of justice to the appellant. That raises the question, was the appellant given a fair trial?

The State’s case consisted only of the sworn testimony of Sally Pora while the defence adduced evidence from three witnesses including the appellant. The evidence of these three defence witnesses clearly contradicted that of Sally Pora. So the question necessitated by this state of evidence would have been, was the trial Judge satisfied beyond reasonable doubt that the defence of self defence has been negatived by the State?

We are of the view that the appellant had sufficiently raised self defence in her evidence. She needed only to establish that on the balance of probability then the State has the onus of negativing that defence. It is our view that self defence was sufficiently raised by the appellant on the balance of probability. The evidence was that she was on her way when confronted by the deceased who offered assault and struck her on the forehead with a knife and further struck her twice on her hands. We are satisfied this was an unprovoked assault. The appellant said she was afraid and she thought that she was going to die so she reacted. In our view, that amounted to a reasonable apprehension of death. The State did not negative that defence beyond reasonable doubt. Therefore the question is, did the trial Judge err in finding that the appellant was guilty beyond reasonable doubt?

We consider that there were errors of law by the trial Judge in his findings and conclusion. With respect, the trial Judge did not address the issue of self defence and the relevant principles of law established by well known precedent case authorities. We have already alluded to the evidence of the appellant and we reiterate that she reacted to the deceased’s assault under an apprehension of death. She did not provoke the assault. She reacted after an unprovoked assault by the deceased.

The relevant principles of law in self defence were established by the Queensland case, R. v. Muratovic [1967] Qd R 15 which was followed by the Supreme Court in Tapea Kwapena v. The State [1978] PNGLR 316. The Supreme Court held inter alia that:-

"Where a defence of self defence to murder is raised................the questions to be determined beyond reasonable doubt are: (a) Whether the assault on the accused by the deceased was such as to cause reasonable apprehension of death or grievous bodily harm, (b) whether the accused believed that he could not preserved himself from death or grievous bodily harm otherwise than by using the force that he in fact used; and (c) whether the accused’s belief was based on reasonable grounds; or rather whether the State had negatived beyond reasonable doubt the possibility that the accused so believed on reasonable grounds."

The National Court also adopted and applied R. v. Muratovic (supra) in The State v. Takip Palne [1976] PNRLR 90, and the relevant test applied in both cases is re-established by the National Court in The State v. Leonard Masiap [1997] PNGLR 610 at 617. The test is set out in this manner. To raise a plea of self defence under s.269 (self defence against unprovoked assault) evidence of the following must exist:-

1. The accused was unlawfully assaulted.
2. The accused had not provoked the assault.
3. The nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm.
4. The accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he in fact used.
   

Two other cases which needed to be mentioned, which also established the same test are The Queen v. Nikola Kristeff (1967), unreported, No. 445 per Frost, J at p.23 and Regina v. Korongin (1961) unreported, No. 204 per Mann, CJ at p.8.

We are satisfied that the appellant’s evidence before the trial Judge satisfied the test in self defence which the above authorities have established.

The trial Judge had relied on Sally Pora’s testimony, however, other persons present at the scene of the court hearing were not called as witnesses. They were material witnesses, why weren’t they called to give evidence? How could the trial Judge had satisfied himself beyond reasonable doubt of the guilt of the appellant, by believing and accepting one witness’s evidence as opposed to three defence witnesses and the failure of the State to call persons who were present at the material time? In any event, the appellant had sufficiently raised self defence. How did the trial Judge satisfy himself beyond reasonable doubt that the appellant was not assaulted, she had provoked the assault, she did not have a reasonable apprehension of death and finally, she did not have a reasonable belief that she could not preserve herself from death or grievous bodily harm than by striking the deceased with a knife? Whilst we acknowledge that the trial Judge is entitled to believe one witness and reject the other witness’s evidence, in this case, the evidence of Sally Pora was quite unconvincing and totally unreliable. As we have adverted to, there were other men who were present who would have been eye witnesses too but were not called by the prosecution.

It is our opinion that the trial Judge failed to consider the relevant principles of law and therefore fell into error. In our view, the appellant’s evidence that she was assaulted first by the deceased, and that she retaliated after being struck three times with a knife because she was apprehensive of death is credible. It has not been disputed by Sally Pora. The fact that she thought she was going to die after having been struck three times with a knife is evidence of a reasonable belief that she could not preserve herself from grievous bodily harm or death. The fact that she did not offer assault against the deceased, but was first stabbed on the forehead with a knife then twice on her hands, in our view, is sufficient evidence that she did not provoke the assault and is further evidence of a reasonable apprehension of death or grievous bodily harm. The appellant’s evidence of thinking she was going to die is consistent with that principle.

From the evidence before the trial Judge, we are of the view that his findings and conclusion were against the evidence and weight of the evidence. In our opinion, the evidence was such that the trial Judge should have found that the appellant was unlawfully assaulted, she did not provoke the assault, the nature of the assault were such that she held a reasonable apprehension of death or grievous bodily harm, and finally, that she relied on reasonable grounds that she could not preserve herself from death or grievous bodily harm otherwise than by striking back at the deceased. As we alluded to, we are satisfied that the test on self defence has been satisfied and the trial Judge should have returned a verdict of not guilty and acquitted the appellant.

In our view, the trial Judge in failing to consider the relevant principles of law on self defence as expounded by these cases, easily fell into error. The standard of proof in establishing self defence is the civil standard of proof. In our opinion, the appellant’s evidence was sufficient to establish that defence on that standard of proof, however because the trial Judge was not mindful of what the Courts held in those cases, he easily fell into error.

Furthermore, the manner in which the trial Judge allowed the prosecutor to cross examine the appellant on the record of interview, which was not part of the State’s case, was clearly an error of law, which rendered the whole trial an unfair trial.

The record of interview was not tendered by the prosecutor therefore it was not part of the evidence against the accused. However, the trial Judge had allowed the prosecutor to cross examine the appellant on various questions and answers recorded during that interview. That was unfair to the appellant. Although the defence counsel did not object to that course until the end of cross examination, and he should have, the trial Judge had the overall and ultimate power to disallow any improper course or abuse of the Court process or admission of improper evidence.

In view of the very serious nature of the charge, the severity of the penalty and the need to present the evidence before the Court in a proper manner, the trial Judge should have directed the prosecutor not to cross examine the appellant on her answers to questions asked in the record of interview, not when the record of interview had been objected to by the defence and the State had not put this document into evidence through a voir dire, which is the normal procedure.

We note from p.36 of the appeal book that on the first date of trial on 21 May 2003, when the prosecutor sought to tender the record of interview, the defence counsel had consented to the tender of the record of interview of co accused Paul Tike only. Counsel objected to the tender of the record of interview of the appellant. The record of interview of Paul Tike was subsequently admitted and marked Exhibit "A".

As a rule of law and of procedure, where the State seeks to rely on a record of interview, which is objected to by the defence, a voir dire should be conducted. It should proceed to call the investigator and adduce evidence from him in a voir dire and hope that the record of interview would be admitted after the voir dire. That was not done in the present case therefore, in fairness, and in the interest of justice, that should have been the end of that record of interview. However, at page 69 of the appeal book, the prosecutor commenced cross examining the appellant on questions she answered in the interview, without objection by the defence counsel, if we might add. Both counsel clearly acted improperly and unethically. The trial Judge, with respect, also erred in allowing this course of action to proceed in this manner.

Then at p.84 of the appeal book, towards the end of the prosecutor’s cross examination, counsel for the State sought to tender once again the record of interview containing the answers he had specifically cross examined the appellant on. Again, defence counsel objected to that. Instead of the trial Judge excluding this part of the evidence he simply said, "I have actually written those down and I will simply refer to them." It appears that the trial Judge had permitted evidence to be adduced on the record of interview under the disguise of a prior inconsistent statement, which we consider is a separate issue altogether. If there was a basis for cross examination as to a prior inconsistent statement, leave should have been sought and granted pursuant to ss. 22 and 23 Evidence Act as it is a mater in the discretion of the court. Leave is not granted unless enquiry is made into the circumstances of the giving of the prior inconsistent statement and the court is satisfied that it was not made in circumstances unfair to the accused: The State v. Kole Nawa and Kumbe Yakola [1991] PNGLR 76.

In our view, the whole conduct of the prosecution was not only misconceived and mischievous, but quite improper. Furthermore, the trial Judge’s acquiescence to that conduct by the prosecutor amounted to a miscarriage of justice. Procedurally therefore, both the prosecuting counsel and the trial Judge erred in their respective function and role. Counsel should have raised any issue on prior inconsistent statement before his cross examination so that the trial Judge could issue directions relevant to the issue, not at the end of the cross examination. As a matter of procedural law, the trial Judge also fell into error in this respect. It is obvious that the requirements in the Evidence Act were not complied with in respect of leave relating to prior inconsistent statement.

The appellant’s right to a fair trial as an accused person is a right which emanates from the Constitution – right to a fair trial and to the full prosecution of the law. Constitution, s. 37 (1) and (3). Accordingly, we are of the view that the trial Judge’s omission in not disallowing the prosecutor from cross examining the appellant on her answers to questions in the record of interview, which had been earlier objected to and not tendered into evidence, prejudiced the right of the appellant therefore amounted to an unfair trial. The omission by the trial Judge meant that the evidence in the record of interview was not presented according to the well established principles and procedures for the conduct of a criminal trial. Refer Epeli Davinga v. The State [1995] PNGLR 263; for a similar situation.

We are of the view that the only way the prosecutor could cross examine on the record of interview was to have the interview tendered into evidence through the investigator. An attempt to tender this by consent was objected to as we have adverted to earlier. The procedure at that point in time had not been exhausted and the State was at liberty to consider other procedures. It failed to exhaust all the avenues available to it therefore it could not properly and legally use its right to cross examination and question the appellant on a document which it had failed to put into evidence. Another way is by way of filing an admission of fact under s.581 of the Criminal Code Act, but again this was not done.

However the trial Judge omitted to deal with this issue, perhaps because defence counsel did not persist. Nevertheless, the trial Judge has an overriding obligation to ensure that the appellant got a fair trial according to law. That is a fundamental tenet of constitutional law and the foundation of a good vibrant democracy that the Courts must always bear in mind. We find that the trial Judge’s error in this instance amounted to a mistrial, although this was not raised as a ground of appeal. It is a glaring aspect of the errors of law perpetrated in the trial of the appellant and the Court just cannot ignore it and pretend it did not exist.

For these reasons we find that the trial Judge made fundamental errors of law. The appellant was not accorded a fair trial according to law resulting in a miscarriage of justice.

It is therefore the judgment of this Court that the appeal be upheld and the conviction and sentence quashed. We return a verdict of not guilty, and order that the appellant be released from custody forthwith.

Orders accordingly.

Lawyer for Appellant : Public Solicitor
Lawyer for Respondent : Public Prosecutor