Palili v The State [2006] PGSC 16; SC848 (31 August 2006)

SC848

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 17 OF 2005

BETWEEN:

ANDREW PALILI
-Appellant-

AND:

THE STATE
-Respondent-

Wewak: Kirriwom,
Batari & Mogish JJ
2006: 28 & 31 August

CRIMINAL LAW – Murder – appeal against conviction – verdict unsafe and unsatisfactory – credibility of witnesses – oath against oath – failure to show or demonstrate analysis of evidence – lack of evidentiary support for the verdict – proof beyond reasonable doubt – appeal upheld – verdict of murder quashed – verdict of manslaughter returned – sentence of 6 years substituted.

Facts
The appellant was initially charged with manslaughter but tried of murder. The case strongly contested by the appellant who denied responsibility for the death of the deceased who died a week after their fight. Evidence was given on both sides. Trial judge disbelieved the defence witnesses and convicted the appellant. He appealed against his conviction.

The issue in the Supreme Court was, inter alia, whether the trial judge correctly analysed the evidence and could he have been satisfied beyond reasonable doubt in the light of the medical evidence comprising the autopsy report done following the death of the deceased in the village one week after the altercation between him and the appellant?

Held: appeal upheld, conviction for murder quashed, verdict of manslaughter returned, sentence of six years imposed.

Cases Cited:
David Kandakason v The State [1998] Supreme Court Judgment SC558
In The State v Mole Manipe, Jina Molo, Sam Molo, Yakim Saponga and Wame Lucas [1979] Unreported National Court Judgment (1/6/79) N196
Rex Lialu v The State [1990] PNGLR 487
Anna Max Marangi v The State (2002) SC702.

Counsel
Appellant in person
R. Auka, for the Respondent

31 August, 2006

1. BY THE COURT: The Appellant appeals against his conviction. On 21 April 2005 the appellant was found guilty of murder and sentenced to twelve years imprisonment the following day on 22 April, 2005.

2. His grounds of appeal against conviction are based on this reasoning: first, he says that as the deceased died on 3 February, 2004 about a week after the alleged date of assault by him and not on the same day, he cannot have been responsible for his death. Secondly, the deceased was the one who attacked him and broke his left arm so he could not retaliate and fight back due to the injury and the pain. He therefore cannot have been responsible for his death.

3. This case arose out of some missing betel nuts. On the morning of 27 January, 2004 at Mombuk village, the deceased Henry Ason was in a foul mood as someone stole his betel nuts. And that morning he made sure that everyone knew that he was unhappy as he complained and swore openly within the hearing of those present. It was not established in the evidence as to how big that village was, its layout, its population and how many people were in the village at the time the deceased voiced his complaint. As he did he proceeded towards the house of Joseph Naura. The appellant’s house was also somewhere close and within hearing distance and he heard the deceased complaining about his missing bunch of betelnuts.

4. The deceased was not directing his complaint at anyone in particular but the appellant, it seems, took offence at his generalization and use of grossly offensive words and responded angrily. There are different versions in their respective evidence in the way the appellant responded and what happened after that. But whatever the end result, there was a fight in which one assaulted the other and the other retaliated. The issue arises as to the use of stone and timber in the fight.

5. The argument was stopped between them and both men were separated. The deceased complained of pain on his body and was treated with hot water and escorted to his house that night. He was not taken to the hospital or health centre immediately or the next day and remained at home until he died a week later on 3 February, 2004. It was only after his death that the village committee considered it important enough to take the body to the morgue at Boram Hospital for an autopsy to determine the cause of death. It was only after the autopsy that complaint of this assault was lodged and police investigated it and charged the appellant.

6. The case was strenuously contested in the National Court by both the prosecution and defence. The issue rested on whether the court believe the prosecution or defence witnesses. The trial judge decided to accept the evidence of the prosecution witnesses and convicted the appellant; hence this appeal.

7. The issue before the Supreme Court is whether the trial judge had erred in his evaluation of the evidence when accepting and relying on the prosecution evidence as opposed to the defence evidence adduced through the appellant and his witness?

8. We note from the documents compiled in the appeal book that an indictment was presented in this matter on 10th June 2004 before Kandakasi, J by Mr Wala on a charge of manslaughter. That indictment is dated 7 June 2004. This appears in page 9 of the appeal book. The trial on that indictment did not proceed.

9. About a year later on 14 April 2005 the case came before Lenalia, J. This time the State presented another indictment which was one for murder under section 300 of the Criminal Code. The prosecutor was Mr. Wala. This appears in page 14 of the appeal book. The indictment charging the appellant with murder does not form part of this appeal book. The court file contains an indictment for murder dated 11 April 2005 and signed by Mr Wala but without any notation on it showing that it was read or sighted by the trial judge either before or any time in the course of the trial.

10. There is no question that the trial was run on the charge of murder as understood by both parties. What is of concern here is that there is no evidence of the earlier indictment of manslaughter presented on 10 June 2004 being withdrawn in preference over the latter one for the charge of murder. So what then happens to that indictment still pending in the court file? It is good practice for trial judges to take particular care and attention when dealing with indictments so that no loose ends are left lying around raising causes for concerns. It is also good practice for judges to endorse the indictments once presented so that if that matter ultimately reaches the Supreme Court, it is easy for the appellate court to ascertain the relevant documents in the appeal book without shifting through the file itself to identify them where the appeal book is deficient. It is easy for those not involved in the trial itself (such as the Public Prosecutor and the Deputy Registrar Supreme Court) to simply certify the appeal book by relying on the reports submitted by the officers involved in the case one way or other.

11. We also note an anomaly or a discrepancy in the appeal book where the trial judge appears to have made two conflicting findings and conclusions after analysing all the evidence. At page 140 Line 40 the trial judge made this remark:

‘I find there is a serious flaw in the defence evidence and I must find the State evidence to be more credible and that the defence – sorry-, I must find the State evidence more credible than the defence and I must find the accused guilty and convict him on this charge of manslaughter.’

12. Then in page 141 of the appeal book where the trial judge is explaining the verdict to the accused he makes this remark to the accused at Line 40:

‘..Quite obviously either you or your second witness is telling the court lies. And so for this reason the court must convict you, find you guilty and convict you on this charge of murder.’

13. His Honour had already found him guilty and convicted him of manslaughter; a verdict no doubt was open on the evidence. Why then did he now change that to murder? Was this a slip of the tongue? Or was the earlier verdict of manslaughter a slip of the tongue, when it should really have been murder? Or is the transcript wrong? This raises a question of substantial irregularity when the indictment in the appeal book is one of manslaughter and the trial proceeded on the charge of murder. Could the trial judge have at one point or other in the course of the trial become aware of the indictment containing the charge of manslaughter?

14. We make note of this discrepancy in the records of the case in passing in order to alert the court registry that is responsible for compiling the appeal books where it is the prisoner in person appeals and at the same time as a reminder to those involved in the trial courts to be more vigilant and attentive in the handling of the necessary documents that initiate the proceedings before the court because observance of those steps and compliance with the processes themselves are just as important as the trial itself and the verdict in the overall dispensation of justice.

15. This is a case of oath against oath. Two State witnesses, Christopher Hiafufu and Michael Hiworo claimed to have seen the fight between the appellant and the deceased from the beginning to the end when the defence assertion was that neither of these two was present when the argument started. Defence asserted that these two witnesses’ houses were some 300 meters away from Joseph Naura’s place where this incident occurred. Both Christopher Hiafufu and Michael Hiworo said they saw and heard the deceased complaining about someone stealing his betel nuts without pinpointing anyone in particular. They saw the appellant confront the deceased telling him to uproot his betel nuts and shove them up his penis and go away. One of them said he heard the deceased then responded saying ‘mother fucker’ to the appellant which led to the appellant punching or assaulting the deceased on the left side of his body, he then picked up a stone about the size of two folded fists and hit the deceased with it on the same left side of the body and next he picked up a 3 x 2 timber and struck the deceased on the same left side of the body.

16. Defence strongly maintained that the two State witnesses hardly saw anything; they were not there when the fight started as their houses where some distance away. They could not have known what was happening at or near Joseph Naura’s place.

17. The appellant’s evidence was that he was with Joseph Naura and family in their house chewing a betel nut offered to him. Deceased came complaining quite audibly very angry over someone stealing his betel nut not accusing anyone in particular. He was using grossly offensive language using these words ‘who stole my betel nuts you, mother fucker, fuck you dad, I will kill you and shove your dad’s penis in your mother’s vagina’. He got annoyed by the deceased’s language so he left Joseph Naura’s house and went towards the deceased and told him to calm down. The deceased then challenged him saying I will kill you and swung at him. He said the only people who were present at the time this took place were himself, the deceased, Joseph Naura and his wife Jamelia. He said he avoided the deceased’s punch and he fell down towards Joseph Naura’s house. When he rose he picked up a piece of timber from Joseph Naura’s house and with it he struck him on his left hand thereby breaking it. He was therefore helpless but the deceased continued to fight him until Joseph Naura intervened and stopped the fight.

18. The next defence witness was Joseph Naura. He was originally listed on the back of the indictment as a State witness but State decided not to call him when he was seen talking to the appellant during the course of the trial. Joseph Naura’s evidence was that on the morning of 27 January 2004 he was sitting outside his house with his brother in-law Vincent and Jamelia chewing betel nuts when the appellant joined them. They were all chewing betel nuts when the deceased also came and at the same time complaining about someone stealing his betel nuts. He was swearing and saying words to the effect: ‘who stole my betel nuts, if I see that kid I will kill him and put him into his father’s penis or into his mother’s vagina’. He said the deceased was actually naming a person but he did not go to the extent of calling that name in this evidence. The appellant then told the deceased that it wasn’t good to swear like that and asked him to join them and sit down so they could talk about it in a civilized manner. But the deceased would not take this and told the appellant to shut up. He argued that he was talking about his things and said to him ‘fuck your mother and father’. The appellant repeated the same insult to the deceased who then came and swung at the appellant. In the process of trying to swing at the appellant the deceased fell down onto the steps of Joseph Naura’s house and landed on his side. Angered by this he grabbed a piece of timber from Joseph Naura’s house as he got up and hit the appellant with it. The appellant’s hand broke and he was in pain and did not retaliate as he held his hand. Joseph Naura then intervened and stopped them. He said there were no other people around at the time. He did not see the appellant assaulting the deceased.

19. In his statement he gave earlier to the police dated 4/2/04 Joseph Naura said that on that morning his sister and her husband came to his house. The appellant saw them and he too joined them so they all sat down chewing betel nuts. They heard the deceased complaining about his betel nuts going missing and suggesting to the community at large to control their children and advise them not to steal something belonging to other people. The appellant got infuriated and used insulting words at him and both went into the open space where they started throwing punches at each other. He stopped them from fighting and thereafter he did not see what happened.

20. This story was markedly different from what he told the court where he said that he did not see the appellant assaulting the deceased. His statement also differs with his evidence where he stated that the deceased fell on the steps of Joseph Naura’s house and landed on his side and also of picking up a piece of timber and breaking the appellant’s arm with it. As a consequence that statement was tendered into evidence as a prior inconsistent statement.

21. His Honour appears to have given credibility to the witness’s prior inconsistent statement in support of evidence for the prosecution in determining the issue of credibility of witnesses. The law has been clearly stated in David Kandakason v The State [1998] Supreme Court Judgment SC558 where the Supreme Court said that where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words, both the sworn testimony of the witness and his statement given out of court are discredited and both are no longer reliable evidence.

22. After analysing the evidence given by the witnesses on both sides, the trial judge reached the conclusion that he must believe the prosecution witnesses and disbelieve the appellant and his only witness. He therefore found him guilty of murder. Nowhere in the judgment does the trial judge demonstrate the evidentiary basis for reaching that conclusion. Bearing in mind that in a murder case, the barest minimum that the prosecution must establish beyond a reasonable doubt, where the charge is laid under s.300(1)(a) as is the case here, is that, there is or must be an intention to cause grievous bodily harm. This is the critical element of the charge of murder under s.300(1)(a) which provides:

‘(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or
(b) .....’

23. His Honour does not address how he satisfied himself of this element of the offence on the evidence before him when he reached the conclusion that the charge had been made out on the required standard of proof. Usually in such cases where eye-witnesses accounts of what actually took place are at variance or there is a divergence of observations made, medical evidence often holds the balance on the severity of the assault on the description of the injuries inflicted leading to death. Nowhere in his analysis of the evidence does the trial judge advert to the medical evidence and discuss whether this evidence is reliable given that it is a description only of the findings of the autopsy, how that evidence is supportive of the eye witnesses account of the assault on the deceased or vice versa for the court to conclude beyond reasonable doubt of the offence of murder. The trial judge does not even discuss the medical evidence at all in his deliberation on the case for purpose of determining whether the charge of murder can be legally sustained. If the trial judge had directed his mind to the medical evidence, there were critical questions that remained unanswered such as: Why was the deceased not taken to the hospital immediately following this fight if he was hurt? How far was the nearest hospital or health centre from the village? Was the deceased’s death preventable if taken to the hospital quickly? Could the internal bleeding as found to be the cause of death have been arrested had the deceased been taken to the hospital the same day or soon thereafter?

24. The autopsy report also shows that the deceased had a pre-existing condition dating back to 1986. Could it not have been this condition that may have accelerated his death that it really would not require excessive force such as the ones described by the eye witnesses to bring about this tragic fatality? These were serious questions that the trial judge needed to have addressed his mind to when determining the issue of guilt or innocence on the charge of murder.

25. If the trial judge had adverted to the medical report, he would no doubt have had very serious doubts on the strength of the evidence in the State case in support of the charge of murder. This would then have necessitated a ‘view’ being taken for him to be satisfied beyond reasonable doubt as to whether the witnesses were being truthful or some were lying and others were telling the truth. We note that defence counsel was insistent on a view being taken when State counsel’s re-examination of his or prosecution witness centred on the issue of the location of houses belonging to the persons named in the evidence and also of the general lay-out of the village. We note that the State counsel and the court brushed that aside on the basis that the issue in the trial did not warrant a view. This appears at page 69 of the appeal book where Mr. Mwawesi said at line 10: ‘If there are confusions, we ask that a visit to the scene would solve all the confusions’. Then Mr Wala responded saying that he was only re-examining his witness on matters raised in cross-examination for purpose of clarification but it was up to the court to decide if a visit to the scene was necessary. The trial judge seems not have absorbed the line of questions raised by defence in cross-examination from pp. 56 to 65 of the appeal book where it was strongly asserted that the prosecution witnesses were lying to the court because their houses were far away and they could not have been within sight or hearing to see and hear what happened that morning. It was suggested that they had got together to make up this story of what they saw much later after they got to the scene when all the excitement was over.

26. The trial judge also does not demonstrate how he resolved the issue of liars from those witnesses who were telling the truth especially when bearing in mind that a lying witness can be just as forceful and convincing and yet lying while a truthful witness can be so unconvincing in his story and his appearance and yet telling the truth. Wilson J in The State v Mole Manipe, Jina Molo, Sam Molo, Yakim Saponga and Wame Lucas [1979] Unreported National Court Judgment (1/6/79) N196 proposed the following hints as useful guidelines for assessing the demeanour of witnesses who may be telling lies or telling the truth:

"All I desire to do at this stage in this trial is to draw attention to the discussions .. on the subject of liars and to add that, in addition to the methods described .. for assessing whether a witness may be lying or not, one may usefully examine (as Mr. Roddenby urged me to do in this case regarding the witness, Jim Sam):

(a) whether the story told by the witness is inherently probable or not;
(b) how it fits in with the prosecution case;
(c) how it fits in with the defence case;
(d) how it fits in with the evidence as a whole.

This approach may be particularly useful (as here) where the demeanour of the witness Jim Sam, was apparently satisfactory. I saw no reason whilst Jim Sam was giving evidence, to suppose that he was not an honest witness. He was cross-examined strongly and not shaken.......there are aspects of Jim Sam’s evidence which are inherently quite improbable; Jim Sam’s story does not fit in well with Councillor Ula’s for the State and the police evidence regarding when it was that Jim Sam first informed the police albeit belatedly of what he claimed to have seen. Jim Sam’s evidence cannot stand on one point..."

27. The relevance of this principle in this case is the way the trial judge addressed this issue. There appears to be no particular pattern or procedure that the trial judge adopted in screening the witnesses all of whom gave evidence on oath and all he did was simply disbelieve the appellant and his witness without even satisfying himself of the overall picture in the case as to the layout of the village, the location of the houses, the medical condition of the deceased on the days following the assault before death and just to be sure that the story told by the State witnesses was inherently probable of belief beyond reasonable doubt.

28. We are of the opinion that the trial judge could not have been satisfied beyond a reasonable doubt of the guilt of the appellant on the charge of murder in the circumstances and as such the conviction is therefore unsafe and unsatisfactory to be allowed to remain.

29. The only verdict open to His Honour on the evidence before him was one of manslaughter. And we believe that His Honour may have had that in mind when he initially found the appellant guilty of manslaughter. It was therefore not a slip of the tongue when he announced that verdict but it was a deliberate judgment. We accordingly uphold the appeal, quash the conviction for murder and substitute a verdict of manslaughter.

30. As the consequence of this finding, it is necessary for us to substitute an appropriate sentence. Sentences for manslaughter have been abundantly discussed in various cases by the Supreme Court such as in Rex Lialu v The State [1990] PNGLR 487 and Anna Max Marangi v The State (2002) SC702. The Supreme Court in the latter case established three (3) categories in which manslaughter cases could be grouped in their relevant degree of seriousness for purposes of sentencing. The Court said:

‘The first consists of cases in which force is used accidentally or in an uncalculated manner, such as a single blow, punches or kicks on any part of deceased’s body. This also includes cases in which death is cause by an acceleration of a pre-existing disease or condition leading to death. These kinds of killings attract sentences between three (3) years and seven (7) years.

The second are cases that involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if there is no other special aggravating factors, come under this category. This category attracts sentences between 8 and 12 years.

The third and final involve cases in which there is direction application of force in a calculated manner, on the body using a weapon such as a knife, bush knife or axe causing serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Deaths caused by chopping the neck, legs and arms with an axe or bush knife are examples of this kind of killings. This includes death caused by single or multiple knife stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. These kinds of killings attract sentences between 13 and 16 years.’

31. We are not satisfied as to the use of weapons by the appellant but the deceased suffered internal injuries as a result of the assault by the appellant in that altercation which was exacerbated by the deceased’s pre existing condition. This is shown in the medical report where it reports ‘(lt) nephrectomy done in 1986’ at page 156 of the appeal book which when translated into ordinary English language means that the deceased had his left kidney removed by surgical operation in 1986 and he lived on only one kidney. We believe that absence of medical attention at the earliest opportunity or at all was a contributing factor to the death of the deceased. There is no explanation as to why the deceased was not given this medical attention and allowed to die before anyone decided to show concern and started looking for his cause of death. In this regard the appellant must get the benefit of our doubt as he should have had initially, had His Honour directed his mind to it.

32. The appellant’s case in our view falls under the first category which attracts sentence between 3 to 7 years. Taking into account all the circumstances of the case both for and against the appellant, we consider this case to be serious to warrant a sentence of 6 years imprisonment. This sentence must be seen as a warning and lesson that unnecessary violence in the community must be stopped. This fight and altercation between appellant and the deceased was quite unnecessary.

Appeal upheld. Conviction for murder quashed. Verdict of manslaughter returned. Sentence of six years substituted for 12 years imprisonment.

Appellant in person
Public Prosecutor: Lawyer for the Respondent