David v State [2006] PGSC 22; SC881 (22 November 2006)

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CRIMINAL LAW– circumstantial evidence – test to apply when conviction is dependent on circumstantial evidence.

CRIMINAL LAW – inconsistencies in evidence at trial – need to identify inconsistencies and explain significance.

The appellant was one of three men convicted of wilful murder. There were no eyewitnesses and the case turned on circumstantial evidence. The appellant argued that the trial judge erred by basing the conviction entirely on circumstantial evidence and ignoring inconsistencies in the evidence about the timing of different events. The appellant appealed against both conviction and sentence. His co-accused also appealed but failed to attend the hearing of the appeal. The Supreme Court determined only the appellant’s appeal.

(1). In a case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

(2). It is an integral part of a judge’s decision-making process in a criminal trial to state clearly the elements of the offence. If the elements are not stated and applied, an error of law will be made.

(3). In a homicide trial in which conviction turns on circumstantial evidence, the trial judge should make clear findings as to who killed the deceased and where, when, how and why the deceased was killed. Failure to do so will constitute an error of law.

(4). If there are inconsistencies in the evidence the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

(5). In the present case, the proven facts did not lead to only one conclusion; the trial judge failed to specify the elements of the offence and failed to make clear findings of fact; and inconsistencies in the evidence were not identified and assessed rationally.

(6). Accordingly the verdict of guilty of wilful murder was set aside on the ground that under all the circumstances of the case it was unsafe and unsatisfactory. A miscarriage of justice occurred; there was insufficient evidence to find the appellant guilty of an alternative offence and he was acquitted.

1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Bidar AJ) of the appellant, Devlyn David, on a charge of wilful murder.

2. On 23 October 1999, a man, John Francis Yip, lost his life at Kaut village near Kavieng, New Ireland Province. His body was found with a bush knife implanted in it. A murder investigation was started. The appellant and two others, Linson Paul and Kael John, were charged and committed for trial on 7 November 2000.

3. They were jointly tried in a six-day trial at Kavieng. Evidence was heard and submissions made on 13, 22, 25, 26 and 27 August 2003. On 28 August 2003 Bidar AJ convicted the appellant and the two others of wilful murder. Later the same day his Honour sentenced them to 30 years imprisonment each.

4. On 2 October 2003, they gave notice of an appeal. This was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

5. The appeal was heard at Kimbe in November 2005. Only the appellant Devlyn David was present. We do not know why the other two were not present. This judgment only deals with his appeal and the orders of the court only relate to him.

Linson Paul, Devlyn David and Kael John of Magean, Mussau, New Ireland Province, stand charged that they ... on the 23rd day of October 1999 at Kaut, Kavieng, in Papua New Guinea wilfully murdered John Francis Yip.

6. The indictment was presented under Section 299 of the Criminal Code (wilful murder), which states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

7. It was put to the appellant and his co-accused at the start of the proceedings that on the day in question they were at Kaut, a village on the Buluminski Highway between Kavieng and Namatanai. They went to the deceased’s house, chopped off the deceased’s arm, and stabbed him in the chest with a bushknife, causing him to die. The deceased’s body was found in the corridor of his house. They planned to kill him.

9. In opening the case the prosecutor, Mr Rangan, alleged that the three co-accused were in Kavieng on the afternoon of 23 October 1999. One of them approached a man called Gregory Ote (the key State witness) and asked if they could hire his vehicle to go to Kaut. He agreed, they gave him K20.00, he drove them to Kaut and they picked up another person, Collin, on the way. At Kaut, they left Gregory Ote and Collin with the car. They told Gregory what they were going to do and what they hired the vehicle for. They returned about 6.30 pm from the direction of the deceased’s house. They plus Gregory and Collin then headed back towards Kavieng.

10. The deceased was found by his neighbours. There was blood all around the house. He had a small bushknife stuck in his chest.

11. The State did not pinpoint any of the accused as directly killing the deceased but alleged that circumstantial evidence would connect each of them to the death.

12. Fourteen exhibits were admitted into evidence by consent. Five witnesses gave oral evidence.

13. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

No	Description	Content
A	Statement: Charlie Roy	On 23.10.99 at about 3.30 pm he was standing beside the road at his place – saw a Toyota Hilux double-cab, grey and black with red stripes, travelling very fast from town and following the Kaut road – he saw five men in the vehicle – it was raining and he did not recognise the men – the vehicle returned between 7.00 and 8.00 pm.
B	Statement: Andrew Malus	On 23.10.99 he was at his block – saw a double-cab Hilux, grey with red stripes, drive past, towards Kavieng – at about 5.30 or 6.00 pm the same vehicle drove past towards Lokono – ten minutes later it came back again.
C	Statement: Koniel Igomat	On 23.10.99 he was walking back from the beach at Kaut towards his house on the Kaut road – saw a Toyota Hilux double-cab, grey with red stripes, parked on the road near his house – he and the driver exchanged greetings – walked to his house and then back to the Hilux, by which time another man was there – they asked him for water for the radiator so he went back to his house with one of them to get water – he asked where they had come from and they replied that they had dropped some people from Djaul Island at Palum and the engine got hot and they stopped the vehicle – he said good night and walked back to Kaut.
D	Statement: John Mark	On 23.10.99 at about 5.30 pm he was sitting in his house near the Kaut road and saw a Toyota Hilux double-cab, grey with red stripes, drive towards Lokono village – there were two men in the vehicle, the driver and his off-sider – four or five minutes later the vehicle drove back towards Kavieng.
E	Statement: Timbe Tongiana	On 23.10.99 he was the driver of a PMV called Zikanda – about 3.00 pm he drove to Kaut – came back to town about 4.30 pm and then drove back to Kaut – arrived at John Yip’s place – his crew, Tom, went to see John Yip to ask him for his fishing net – left John Yip’s place at about 6.00 pm and drove back to town – they did not meet anyone on the road and nobody stopped them – he saw lights from a vehicle travelling behind them but it stopped somewhere – he finished work at about 7.00 pm and went home.
F	Statement: Johnson Kasup	About 6.00 pm on 23.10.99 he and his wife and children were walking on the road from Kaut to their block – they met three men who did not say anything to them and just hurriedly walked past.
G	Statement: Landawa Manau	He is John Yip’s grandson – left John Yip’s house around midday on 23.10.99 – came back about 5.45 pm and called out for John Yip but there was no answer – called for him again then heard a whistle coming from John Yip’s room – by this time it was 6.30 pm and dark – then he saw John Yip sitting and leaning against the door – went over and held his head but there was no movement and he realised he was dead – he went to get Benson Guyu who came back with him – they saw a knife sticking out of John Yip’s chest – also two of his fingers on the left hand were cut off – he then ran to Kaut and phoned the police in Kavieng – he does not know who killed his grandfather.
H	Statement: Yansa Yanam	He is the police officer who with another officer responded to the call to go to Kaut on the night of 23.10.99 re death of John Yip – he did the preliminary inquiries and took the deceased’s body to the morgue.
I	Statement: Robert Romalus	He is a Detective Senior Constable in the RPNGC – interviewed the appellant on 08.08.00.
J	Statement: Steven Lasingan	He is a Constable in the RPNGC – was present at the appellant’s interview.
K	Post-mortem: Dr Alex Wanganapi	External examination revealed: > on left arm, three fingers chopped off; > on left shoulder tip, a wound 12 cm long x 3 cm wide x 9 cm deep; > right side of sternum cutting through right second rib. Internal examination revealed: > the object that cut through the rib went through the right lung, right side of oesophagus, right of ascending aorta, down to the spinal bone. The deceased died of internal haemorrhage from the cut through the ascending aorta causing cardiac arrest.
L	Records of interview	(a). The appellant, Devlyn David, said that on 23.10.99 he and Kael John and Linson Paul went in Gregory Ote’s vehicle on the highway to Kaut and picked up another boy on the way – they were dropped at Kaut – they told Gregory and the other fellow to check them later – they then followed a small road into the bush – they were looking for a chainsaw, found none, then returned to the road – did not know whose chainsaw they were looking for as it was not his original intention to look for a chainsaw – had come to town that day to look for transport to go to Lakurumau where he was working – met Gregory, Linson, Kael and another boy and asked to go with them – thought they were going to Lakurumau but the driver turned the vehicle along the Kaut road – he asked why and Kael replied that they were going to get the chainsaw – he, the appellant, was not happy and felt frightened as he had never been involved in stealing or fights – Kael and Linson told him to hide in the bush – not long after, they returned, without a chainsaw, and told him it was not there – they returned to the road and Gregory picked them up – he asked them to drop him at Lakurumau but they took him back to town and told him to find another vehicle to go to Lakurumau the next day. He confirmed that when they went into the bush the three of them were carrying bags – his bag contained his change – he does not know what was in the others’ bags. They had arrived at Kaut between 4.00 and 5.00 pm. He heard about John Kip’s death the next day from his uncle, Kiso, at Matla. (b). Kael John denied knowing anything about the death of John Yip and refused to sign the record of interview. (c). Linson Paul agreed that on 23.10.99 he and Devlyn David (the appellant) and Kael John hired a vehicle belonging to Gregory and went to Kaut – on the way they picked up another boy, Collin, at Putput village – at Kaut, he and Devlyn and Kael told Gregory to stop the vehicle – the three of them got off the vehicle and followed a small track into the bush – they told Gregory to pick them up on the road later – Devlyn did not go into the bush – the three of them went to Kaut as someone told them to go there and steal a chainsaw – he cannot remember the name of the person – they were not told John Yip’s name – they were not told where the chainsaw was – they arrived at Kaut at about 5.30 pm – he does not know about Kael telling Gregory and Collin on the way back, that they had just killed a man – denied killing John Yip – he was at Raval village when he heard about the death of John Yip.
M	Sketch plan	Prepared by Robert Romalus – no further details given at the trial.
N	Two bushknives	No details given at the trial.
O	Statutory declaration: Robert Romalus	Not available.

14. Table 2 lists and describes the State witnesses in the order they were called and indicates the days and dates of the trial on which they gave evidence.

15. He stated in examination-in-chief that on 23 October 1999 he was in Kavieng town when Kael John asked him for assistance to use his vehicle to take some things to Kaut. That was about 3.00 or 4.00 pm.

16. He took Linson, Devlyn and Kael to Kaut. He was driving his father’s vehicle: a grey-white Toyota Hilux, with red and black stripes, four-wheel-drive, double-cab.

17. On the way, he picked up a wantok from Mussau, Collin. It was a sunny day. They drove to the plantation. Linson, Devlyn and Kael got off the vehicle at a junction, where the road leads up to the bush. That was about 4.30 to 5.00 pm.

18. He and Collin waited for some time, then went to Kaut. The car radiator heated up at Kaut so someone from the village helped them with water.

19. He and Collin went back to the junction, met up with Linson, Devlyn and Kael again. The three of them jumped into the second cabin and drove back to Kavieng. That was about 6.00 to 6.30 pm.

20. On the way back to Kavieng, Kael said that they had killed somebody, a man. They told them not to report them or mention their names. They said they would kill him (Gregory) or do him harm if he reported them. They started telling him and Collin that story about 4 kilometres from where they had been picked up.

21. The first time the police asked him about what happened, he told the police the story that he had been instructed to tell. Later he told the full story and gave the names. He told a different story the first time as he had been threatened and intimidated.

23. Asked whether he heard Kael or the other two say any other things about the killing, Gregory said he could not recall.

24. In cross-examination he agreed that he and Kael were good mates as they used to play on the same soccer team. Kael offered him K20.00. Kael was the first person he picked up.

25. Then he picked up Linson and then Devlyn. He left Kavieng between 3.00 and 4.00 pm. It took about 25 minutes to drive to the Kaut junction. On the way there, their appearance was normal. One was sitting as the off-sider to the driver. Two were in the second cabin.

27. He dropped them at the junction where the road leads into the bush. He noticed that they were carrying two small bags, with handles. He could not recall whether they were carrying anything else.

28. He waited for about two hours before they came back. He did not have a watch. He is just estimating the time. It was getting dark, late in the afternoon. When he picked them up, they looked normal, just the same as they looked when he dropped them off.

29. On the way back, Collin was his off-sider. Kael, Devlyn and Linson were in the back seat of his father’s dual-cab Toyota Hilux.

30. He denied making up the story that one of them said that they had just killed a man. There was no music in the car and there was no longer talking as he was feeling scared for his life.

31. When he was first asked by the Police about what happened, he told them a different story, in a verbal statement, to the story he is now telling the court. Later he made a written statement to the Police.

32. In re-examination Gregory Ote said that he could not remember which of the accused was carrying a bag when they got off the vehicle at the junction.

33. He stated in examination-in-chief that he was together with the deceased, John Yip, at his house on the day he died.

34. He (Benson) went by himself to the garden about midday. He came back two or three hours later to get some timber and saw one of the accused [it is not clear from the transcript which one he was identifying] squatting and staring hard at him. He spoke to that person from the side but he did not reply. The other person was wearing black overalls. So he left quickly with his piece of timber. That was about 2.00 or 3.00 pm.

35. He later saw the deceased and asked him if anyone had come to see him and he said no. They stayed in the house until 6.00 pm.

36. At about 6.30 pm the deceased told him to start the generator. The deceased’s house is close to his own.

37. Later, about 7.00 pm, another person, Landeva, came to see him and told him that he had tried to wake "grandfather" but he did not wake up. He went to the deceased’s house, forced open the door, then tried to lift him and saw a knife sticking out of his chest.

38. In cross-examination he stated that he last saw the deceased alive between 6.00 and 6.30 pm, when the deceased came to his house to see him.

40. Answering questions from the bench Benson Guyu said that when he came back to get the timber, he could feel that there was someone looking at him from the back. He felt scared and walked off.

41. In examination-in-chief he stated that he lives at Kaut. At about 5.00 pm on the day John Yip died, he saw a vehicle being driven past him, when he was at his house. The vehicle was about 50 metres away from where he was standing. There were three young people sitting on top of the vehicle. They were wearing overalls. The driver was a fat person, wearing a cowboy hat. They stopped at Alois Yip’s house, which is two houses away from John Yip’s house. His house lies between them. The young men were drinking and smoking.

42. He saw the vehicle return around 5.45 pm. There were again three young boys and the driver in the vehicle. He did not see anyone sitting beside the driver. They were driving slowly.

43. He identified the three co-accused as being among the group that he saw in the vehicle.

44. In cross-examination Ephraim Kapiaten said the vehicle was dark blue in colour. It was a single-cab. The co-accused were sitting at the back, on the tray, with their backs to the cabin.

45. He confirmed that the first time he saw them it was 5.00 pm. The last time he saw them was 5.45 pm, when they drove past as he was sitting at his house.

46. In re-examination Mr Rangan asked him if he knew the difference between a single-cab and a double-cab. He said that he did and explained the difference. The vehicle he saw had only space for the driver and another person at the front and the tray at the back.

47. Answering questions from the bench Ephraim Kapiaten said the car he saw had two doors, not four doors. As for the times he specified – 5.00 pm and 5.45 pm – he knows how to tell time. He used the sun and estimated the time from the sun.

48. He stated in examination-in-chief that he is Collin Boas’s father. He is from Mussau. A police officer gave him a court summons to give to Collin, which he did. He does not know why Collin did not attend court in accordance with the summons.

50. He said in examination-in-chief that he made a statutory declaration about the lack of co-operation of State witnesses Ote and Boas. It was admitted into evidence by consent as exhibit O. However, a copy of this exhibit was not available to the Supreme Court. Apparently it could not be located.

51. We think that that is inconsequential, in view of the oral evidence given by the witness, which was about the difficulties he had experienced getting Collin Boas to co-operate. He said he strongly suspected that Collin was frightened to give evidence.

52. Mr. Rangan attempted to introduce into evidence, through this witness, a statement made by Collin Boas. The defence counsel, Mrs Painap, objected and the trial judge upheld the objection.

53. There was no further evidence and Robert Romalus was not subject to cross-examination.

55. The defence counsel, Mrs. Painap, then made a no-case submission based on the second limb of The State v Paul Kundi Rape [1976] PNGLR 96. The trial judge refused the submission and the case continued.

56. The defence tendered one exhibit, a witness statement by the first State witness, Gregory Ote. It was tendered during cross-examination. Defence counsel called it a prior inconsistent statement. The defence called two witnesses to give oral evidence.

57. Table 4 lists and describes the defence witnesses in the order they were called and indicates the days and dates of the trial on which they gave evidence.

58. He stated in examination-in-chief that on the afternoon of Saturday 23 October 1999 he was in Kavieng with Linson. At about 4.00 pm they stopped Gregory then went to Matla and picked up Devlyn.

59. Then they went to the Kaut junction, the junction of the main highway and the dirt road leading into Kaut village. On the way they picked up Collin.

60. When they got to the Kaut junction he, Linson and Devlyn got off the vehicle. There were no houses there. Collin had told them two weeks before about a chainsaw he had hidden there. They arrived there about 5.00 pm.

61. Collin pointed to the place where the chainsaw was hidden. Collin stayed in the vehicle. When they got off the vehicle Devlyn was carrying a small, green bag. They went away for about 25 minutes. The chainsaw was not there. They came back to the road and waited for Gregory and Collin to pick them up.

62. Gregory and Collin picked them up at 6.00 pm. They got back in the vehicle and sat in the back.

63. He told Collin the chainsaw was not there. It was not true that he told Gregory that they had just killed a man or that Gregory asked why he had killed the man. Gregory might have said that because he was scared that the police would charge him also, as he was with him (Kael) that day.

64. When he came out of the bush he was wearing a tee-shirt and shorts. He did not consume any alcohol or smoke that day.

65. When they got off the vehicle, Devlyn was carrying his little green bag. He does not know what was inside it. Linson was not carrying anything.

66. In cross-examination Kael John said that he, Linson and Devlyn planned to go to Kaut on the afternoon of 23 October 1999.

67. Gregory first knew of the plan when he (Kael) told him at Bisi Trading. Collin did not know of their plan to go to Kaut until they picked him up on the road. It was the first time for him, Devlyn and Linson to go to Kaut. Collin was in fact trying to come to Kavieng.

68. It was in town about two weeks beforehand that Collin had told him, Linson and Devlyn about the chainsaw. Collin was surprised that they were looking for the chainsaw that day.

69. The place where they were dropped off was not close to a bridge. He had never been to that place before.

70. He denied telling Gregory on the way back to Kavieng that they had just killed a man. He denied threatening anybody. Gregory might have been scared because the police had arrested him; that is why he made up the story.

71. In re-examination Kael John confirmed that Collin did not know what time they would pick him up to get the chainsaw. He confirmed that the place they were dropped off had only mangroves, no houses.

72. In examination-in-chief he stated that on the afternoon of 23 October 1999 he was at Matla, in Kavieng, when Linson, Kael and Gregory came to see him. They told him they wanted to pick up the chainsaw.

74. The vehicle stopped at the Kaut junction about 5.00 pm. He and the others got out of the vehicle. There were no houses there and no people. Only mangroves. The vehicle continued along the Kaut road.

75. He and the others went into the bush. He was carrying a small, green handbag. They did not find the chainsaw. They were in the bush for about 45 minutes.

76. When they came out, the vehicle turned up and they jumped on. They told Collin they did not see the chainsaw.

77. On the way back to Kavieng they did not have any conversation. He did not hear Kael say anything about killing anybody. He did not hear Gregory ask why they had killed someone.

78. It was still light when they got back to Kavieng. He was wearing shorts and a shirt.

79. In cross-examination Devlyn David said that Collin had told them about the chainsaw at his uncle Monali’s place in town.

80. He denied that Kael said anything about killing a man. He denied that anyone was threatened.

82. The third co-accused, Linson Paul, did not give evidence. The appellant’s evidence marked the end of the defence case.

83. On the fifth day of the trial, 27 August 2003, the National Court visited the crime scene. No record of what transpired is in the transcript other than a reference to the visit by the trial judge in the judgment on verdict.

84. Mrs Painap submitted that the State’s evidence as to the timing of events was inconsistent. On the one hand the key State witness, Gregory Ote, said that he picked up the co-accused in Kavieng between 3.00 and 4.00 pm. That was also the evidence of the appellant, Devlyn David, and Kael John. By contrast, State witness No 2, Benson Guyu, said he saw one of the three co-accused, Linson Paul, staring at him at 3.00 pm. Charlie Roy’s statement (exhibit A) was that he saw the car at 3.30 pm.

85. The evidence of other State witnesses about what sort of vehicle they saw and how many people were in it was also inconsistent.

86. Gregory Ote’s evidence must be treated with great caution. He said that when the three co-accused got back into the vehicle after he picked them up at the road junction they appeared normal, yet he said that on the way back to Kavieng one of them said that they had just killed somebody. This was contradicted by the evidence of both Kael John and Devlyn David who testified that nothing was said on the way back to Kavieng. Gregory could not remember who was sitting where in the vehicle. Gregory Ote had a motive to lie as he was part of the group that was seen by other witnesses. 87. He was trying to shift the blame to others. He realised that he might be charged too so he made up the story about them saying that he had killed a man.

88. Mrs Painap submitted that the court must be guided by the principles of circumstantial evidence in Paulus Pawa v The State. The inference to be drawn from the evidence was that the three co-accused were never anywhere near the crime scene.

89. Mr Rangan began by submitting that the evidence of Devlyn David and Kael John about where they were dropped off by Gregory Ote was a recent fabrication. They made it up while they were in custody as they never told the police that story when they were first interviewed.

90. The evidence supported the conclusion that neither Gregory Ote nor Collin Boas was aware of the co-accuseds’ plan. Collin was forced into the vehicle on the way.

91. The State relied on the evidence of Gregory Ote that on the way back to Kavieng, Kael John said that they had killed a man and they threatened Gregory. There may have been some inconsistencies between Gregory’s police statement and the oral evidence he gave the court. But the essentials of his evidence were consistent: he dropped off the three co-accused at a place close to where the killing took place. There was no reason available for Gregory making up a story against the co-accused.

92. The evidence of the other State witnesses put the co-accused in the area at the time of the killing. Benson Guyu said that he saw one of the co-accused. He seems to have been confused about the timing of that event, as it would have been well after 3.00 pm. His demeanour was of a witness of truth. The State has proven the elements of wilful murder beyond reasonable doubt, Mr Rangan submitted.

93. The trial judge gave an extempore judgment on verdict on 28 August 2003. He later published a seven-page written judgment in similar terms.

94. His Honour began by summarising the evidence of the three main State witnesses: Gregory Ote, Benson Guyu and Ephraim Kapiaten. The evidence of the last two witnesses, Boas Lemes and Robert Romalus, was of no assistance, his Honour said.

95. He then summarised the evidence of the two defence witnesses, Kael John and Devlyn David, which was substantially the same.

96. After describing the evidence, his Honour began his assessment of it by focussing on the evidence of the defence witnesses: the co-accused Kael John and Devlyn David. He accepted the prosecution’s submission on this evidence, which was that it was a recent fabrication. His Honour stated:

Assessing the evidence thoroughly and having had the benefit of travelling the road and shown the locations, the vehicle in question with people it travelled and stopped, travelled back to Kaut to fetch water for radiator and back towards Lokono again, it’s quite clear that the accuseds’ story about getting off at the main Buluminski junction and Kaut road is hard to accept. It is clear that the accused have cooked up this story recently to put themselves as far away as possible to the crime scene. If Gregory Ote and Collin Boas accompanied the court party to the scene, they would certainly show the court party the precise drop off spot. I deduce from the witnesses’ statements who saw the vehicle with people on it eventually going towards Lokono and witness Benson Guyu’s identification of accused Linson Paul some 100 to 150 metres from the scene of killing, puts the accused person to the scene of the crime. [sic]

97. His Honour acknowledged that there were inconsistencies in the evidence of the State witnesses as to the timing of events, the type of vehicle that was seen in the vicinity of the crime scene and the number of people in it. However, he regarded these inconsistencies as insignificant:

I accept that there are inconsistencies as to the time, type of vehicle and number of people on it, but I appreciate the fact that most of these witnesses are village people and village people normally guess times. These inconsistencies are not fatal to the crux of the evidence. The evidence is that the accused were seen wearing overalls and they wore something like false hair when they were passed by witnesses on the road. The inference I draw from all the facts is that the bags that they carried were to contain overalls and other clothes perhaps as well as murder weapons.

98. His Honour considered that the three co-accused had a motive for killing the deceased:

It is apparent that the motive for killing is to steal a chainsaw. The only person who had a chainsaw around that area was the deceased. The accused persons learned from some source that the deceased had a chainsaw and they planned to steal it. If there was resistance they were prepared to go as far as killing, which they did.

99. Finally his Honour addressed the circumstantial nature of the evidence and concluded that the only rational inference to draw was that the three co-accused were guilty beyond reasonable doubt:

The law on circumstantial evidence is quite clear in our jurisdiction. Basically the law is that when a case is dependent wholly or substantially on circumstantial evidence, the court, after considering all the facts and circumstances finds that the only rational inference to draw is the guilt of the accused beyond reasonable doubt, it is lawful to convict on circumstantial evidence. But if there are conflicting or other several inferences to be drawn from all the facts and circumstances it is unsafe to convict.

In this case I have considered all of the evidence thoroughly and discounting the inconsistencies as to time, the type of vehicle, the number of people on it and the identity of them, the only rational inference I draw is the guilt of the accused beyond reasonable doubt. As I alluded to, the accuseds’ evidence is a recent fabrication to put themselves as far away as possible to the scene of the crime.

In all the circumstances I return a verdict of guilty of wilful murder on all three accused persons.

100. The trial judge stated that it was a very bad killing. Aggravating features of the case were that the deceased was a defenceless old man. The appellant and the two others killed him, to steal a chainsaw. They could have stolen the chainsaw without killing him. It was a brutal killing as part of the deceased’s arm was cut off, a bushknife was plunged into his chest and he was killed in his own house. It appears to have been pre-meditated.

101. Mitigating factors were that the offenders had no prior convictions and cooperated with the police.

102. His Honour sentenced them to 30 years imprisonment each and deducted the three years each offender had spent in custody.

104. This is a pro-forma notice of appeal and application for leave to appeal dated 28 August 2003, which is the date of conviction and sentence. The appellant or someone associated with him appears to have filled it in. It states five reasons for the appellant wanting to appeal:

105. This is a supplementary notice of appeal filed by the Public Solicitor on 13 October 2003. It states that the conviction was unsafe and unsatisfactory as the trial judge failed to resolve conflicting evidence about:

106. As to the sentence it was claimed to be excessive in all the circumstances.

107. The first three grounds in the first document relate to the appellant’s conviction; the last two relate to the sentence. Of the first three, ground No 1 argues that the trial judge relied too much on circumstantial evidence and misapplied the rules for assessment of that sort of evidence. Ground Nos 2 and 3 are vague and were not pursued at the hearing of the appeal. We strike them out. Ground Nos 4 and 5 argue that the sentence was excessive in all the circumstances.

108. The first part of the supplementary notice of appeal highlights various aspects of the evidence alleged to have been conflicting. The second part argues that the sentence of 30 years was excessive.

1. the trial judge erred in fact and law by basing his findings of guilt entirely on circumstantial evidence while misapplying the rules about assessment of such evidence, and for that reason the verdict was unsafe and unsatisfactory;

2. the trial judge erred in fact and law by failing to resolve the conflicting evidence of State witnesses as to the time of events, description of the vehicle, number of people seen and identification of the accused, and for that reason the verdict was unsafe and unsatisfactory;

3. the trial judge erred in law by imposing a sentence that was excessive in all the circumstances, in particular by not considering that the appellant cooperated with the police.

GROUND NO 1: DID THE TRIAL JUDGE ERR IN HIS TREATMENT OF CIRCUMSTANTIAL EVIDENCE?

110. The principles to apply when the State relies on circumstantial evidence are well settled. The leading case is Paulus Pawa v The State [1981] PNGLR 498, in which the Supreme Court (Kearney DCJ, Andrew J, Kapi J) indicated:

111. We suggest that these principles mean that in any case substantially dependent on circumstantial evidence the question to be asked is:

112. In the present case the trial judge stated the principles correctly by saying:

Basically the law is that when a case is dependent wholly or substantially on circumstantial evidence, the court, after considering all the facts and circumstances finds that the only rational inference to draw is the guilt of the accused beyond reasonable doubt, it is lawful to convict on circumstantial evidence.

113. However, we agree with the appellant that his Honour did not apply those principles correctly. We consider that his Honour erred in seven ways.

114. First, his Honour did not set out the elements of the offence of wilful murder. The prosecution had the onus of proving beyond reasonable doubt that:

115. It is an integral part of the judge’s decision-making process in a criminal trial to state clearly the elements of the offence. If the tribunal of fact is a jury, one of the first things the trial judge must do is explain to the jury what things it has to be satisfied of, beyond reasonable doubt, in order to give a verdict of guilty. If the jury is not made aware of the elements of the offence it will be making its decision in a vacuum. In PNG there is no jury. The trial judge is the tribunal of fact. The directions that trial judges give in other jurisdictions to the jury are given to themselves. When trial judges in PNG pronounce the verdict they must give reasons for their decisions; and those reasons must disclose that they have given themselves proper directions.

116. In the present case the trial judge’s judgment contained no mention of the elements of the offence. The verdict was given in a legal vacuum and therefore was infected by an error of law.

117. The trial judge made no findings of fact. After summarising the evidence his Honour pronounced that he did not accept the evidence of the appellant and Kael John, then indicated, in effect, that, consequently, he would accept the evidence of the State witnesses.

118. A proper assessment of the evidence of the key State witness, Gregory Ote, would have revealed it to be vague and short on detail as to the places and the times that various events happened. One of the major disputed facts was: at what place did Gregory drop off the three accused, having driven them from Kavieng? Was it at the spot the appellant and Kael John described in their evidence, where there were no houses and a bush track? Or the spot further up the road, close to the deceased’s house? This was a critical finding for the trial judge to make. His Honour tacitly made a finding – that it was the spot further up the road. But his Honour failed to spell out that it was an important factual issue, failed to critically weigh and asses the evidence in support of the competing versions of fact, failed to assess the credibility of Gregory Ote as a witness and failed to consider the defence counsel’s argument that that witness had a motive for lying.

119. His Honour compounded that error by not making a clear finding about where the drop-off point was. He evidently formed a view of where it was following the site visit. But no record was made of what was viewed, who went, or what transpired. His Honour remarked that Gregory Ote did not attend but if he had attended he would have been able to point out where the drop-off spot was. The fact that that witness did not give direct evidence of the drop-off spot means that, in our view, his evidence remained vague and inconclusive. It was very difficult to make a firm finding of fact on the strength of it. Nevertheless, a clear finding should still have been made as, without it, a critical component of the matrix of circumstantial evidence was absent.

120. As this was a wilful murder case, the trial judge should have made clear findings about the death of the deceased. In particular:

121. It was important to identify who exactly killed the deceased as there was no eyewitness evidence of the attack on him. If it was one of the three co-accused, Sections 7 or 8 of the Criminal Code should have been invoked to make the others criminally liable. However the trial judge made no reference to those provisions.

122. As to where the deceased was killed, Benson Guyu’s evidence should have been assessed carefully as he was the witness who testified about finding the body; and this witness said he saw the deceased alive only 30 minutes before finding the body. His Honour failed to make a finding about the time of death. That was a critical finding to make. The State was relying on circumstantial evidence – which involved putting the accused at the place of death at the time of death, with a motive to kill the deceased. A conviction should not have been entered if the time of death was not identified. His Honour commented that he did not take too much notice of inconsistencies in the evidence of the State witnesses as to the times that things happened as they are village people who don’t have much idea about time. We can appreciate that that was a practical matter to weigh in the balance when deciding on what happened and when it happened. However it did not remove the trial judge’s obligation to make a finding of fact on this critical issue.

123. The time of death was critical. Benson Guyu’s evidence puts the time between 6.30 and 7.00 pm. Gregory Ote’s evidence has him driving the co-accused back to Kavieng at 6.00 or 6.30 pm. The evidence of the appellant and Kael John was that by the time they got back to Kavieng it was still light. The trial judge made no finding on the time of death.

124. As to the cause of death – ie how was the deceased killed? – there were two crucial pieces of evidence: the post-mortem report (exhibit K) and the bushknives (exhibit N). No witness gave evidence in relation to them. The doctor who performed the post-mortem did not give evidence. Nobody gave evidence that either bushknife was the one found implanted in the deceased’s chest. Neither counsel made reference to these exhibits in their submissions. The trial judge did not mention them in his judgment. The trial judge failed to make any finding about how the deceased was killed. There was no evidence to link the appellant or any of his co-accused with either bushknife; no evidence that he owned them, borrowed them, or was seen with them in his possession.

125. As to why the deceased was killed, the trial judge considered that the theft of the deceased’s chainsaw was the motive. His Honour concluded that the co-accused learned from some source that the deceased had a chainsaw and planned to steal it. However, the evidence was only that the co-accused went looking for a chainsaw. There was no direct evidence that the deceased had the chainsaw that they were looking for; that they had targeted the deceased; that they planned to steal a chainsaw or that they were prepared to kill him to obtain it. No chainsaw was adduced in evidence.

126. The trial judge’s failure to make clear findings of fact meant that there was a failure to identify all the circumstantial evidence warranting a finding of guilt.

127. The reasons given by the trial judge for drawing the conclusion that the appellant was guilty of wilful murder were, with respect, very scanty. Of the seven-page judgment on verdict only a little over one page was devoted to assessment of the evidence and the limited findings of fact made. Giving reasons for believing one version of events rather than another is an important part of the judicial decision making process. By giving reasons a Judge makes himself or herself accountable. If no reasons are given or they are expressed in a vague or scanty way, it is reasonably to be inferred that there are no good reasons to give. This is a principle that has been applied increasingly in judicial review of administrative action. We believe the same principle must apply when a higher court is hearing a review or appeal of a lower court’s decision.

128. It is one thing for a trial judge to say that he or she has considered all the evidence. It is another thing to actually do it; and another still to disclose through a reasoned judgment (whether oral or written or both) that it has actually been done. In the present case, we consider, with respect, that his Honour has failed to disclose through a clearly expressed process of reasoning why he drew the conclusions he did. The judgment was infected by error in that regard as his Honour did not say why he considered that the circumstantial evidence led only to one reasonable conclusion – guilt.

129. The trial judge ignored the defence counsel’s persistent submissions regarding the evidence of State witness No 1, Gregory Ote: it should be treated with extreme caution as he had a reason to lie.

130. Gregory was the driver of the vehicle. He was the one who gave evidence that Kael John said on the way back to Kavieng that they had just killed a man. When the prosecutor made his closing submission he placed great store in Gregory’s evidence about what Kael had said. Curiously, his Honour made no mention of it in his assessment of the evidence.

131. We consider his Honour should have considered the defence counsel’s submission more carefully. If, in fact, the three co-accused had killed somebody, why would they tell someone on the way back to Kavieng? And why would they immediately threaten the person and tell them not to tell anyone else? This part of Gregory’s evidence makes little sense. It seems very difficult to believe.

132. It seems such an incredible story the natural question to ask is whether the person who gave that evidence did so to cover up his involvement in the crime. We consider this to be a reasonable alternative inference to draw from the evidence. We say this in light of the fact that the other person in whose presence Kael’s statement was made – Collin Boas – did not give evidence at all. Was that because he was threatened? Or was it because he too was involved in the death of the deceased?

133. The evidence does not allow this court to draw any firm conclusions. But neither did it allow the trial court to draw firm conclusions of guilt.

134. State witness No 2 was Benson Guyu who said that he saw one of the three co-accused staring at him at about 3.00 pm. He identified one of the three co-accused in the courtroom as the person who stared at him. However, it was not clear from the evidence that Benson knew the person before or whether he was identifying a stranger. The trial took place well over three years after the date of death. It was not clear that Benson had identified the person earlier, eg whether there had been an identification parade.

135. The trial judge should have warned himself of the dangers of entering a conviction based on this sort of identification; particularly, we reiterate, because the case against the appellants and the other co-accused turned on circumstantial evidence.

136. State witness No 3 was Ephraim Kapiaten. He lives at Kaut close to where the deceased lived. He gave evidence about seeing a vehicle with a driver and three young boys in it at Kaut on the afternoon of the deceased’s death. The description he gave of the vehicle did not match that of the vehicle driven by Gregory Ote and in which the appellant and the other co-accused travelled from and to Kavieng. Ephraim said the vehicle was a single-cab, blue utility. All the other evidence was that it was a double-cab, grey-white utility with stripes.

137. The trial judge made no mention of this significantly different testimony in his summary of the evidence, let alone his assessment of it. We consider that it was a crucial piece of evidence, not only because it failed to support the State’s case but it contradicted the State’s case. It opened up the possibility that there were three other young men, in a different vehicle, at Kaut that afternoon; and that it was them – whoever they were – who were in a position to commit the offence.

147. This witness’s evidence, by itself, should have made it extremely difficult to enter a conviction when the rest of the evidence was circumstantial.

148. We do not consider that a trial judge should commence the process of assessing the evidence by labelling the defence evidence as a recent fabrication and then proceeding, with little further scrutiny, to indicate that the prosecution evidence is believed. That is not the correct way to address the fact-finding task. It portrays, with respect, a reversal of the onus of proof and a contravention of the presumption of innocence guaranteed to all accused persons by Section 37(4)(a) of the Constitution. The trial judge did not subject the evidence presented by the State to the level of scrutiny required. His Honour, in effect, placed the onus on the co-accused to prove their innocence. In so doing, the appellant was denied the full protection of the law.

- identify contradictions in the State’s case created by the evidence of the third State witness; and

150. By making these errors his Honour did not apply the principles regarding circumstantial evidence correctly. That the appellant was guilty not only had to be a rational inference to draw from the evidence, it had to be the only rational inference available. That was not the case here.

151. The circumstantial evidence was not strong enough. There was more than one inference to be drawn from the facts and the proven facts led reasonably to more than one conclusion. The appellant was entitled to be given the benefit of the doubt.

GROUND NO 2: DID THE TRIAL JUDGE ERR IN HIS TREATMENT OF INCONSISTENCIES IN THE EVIDENCE?

153. We have already referred to the inconsistencies in the evidence, particularly concerning the timing of events and the doubts created by the evidence of the third State witness.

154. In any criminal trial, if there are inconsistencies in the evidence adduced by the State, it is the duty of the trial judge to identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

155. The mere existence of inconsistencies does not mean that the State’s case should be rejected. However, an assessment must be made of how significant they are.

156. In the present case the trial judge alluded to the existence of inconsistencies "as to the time, the type of vehicle, the number of people on it". However, his Honour did not identify, in any more detail, what the inconsistencies were. It was incumbent on the trial judge to assess both the oral testimonies and the exhibits, as amongst the exhibits were a number of witness statements referring to the timing of different events. These are shown in table 5.

No	Witness	Evidence
A	Charlie Roy	Saw a car following the Kaut Road at 3.30 pm. The car returned between 7.00 and 8.00 pm.
B	Andrew Malus	Saw a vehicle between 5.30 and 6.00 pm – does not say how many people were in it – the vehicle drove back and forth.
C	Koniel Igomat	Gave no times but said goodnight to two men in a car after assisting them with water for radiator – his house is on the Kaut Road.
D	John Mark	At about 5.30 pm he saw the vehicle – only two men inside.
E	Timbe Tongiana	At 4.30 pm his crew, Tom, talked with the deceased about a fishing net. Left the deceased’s house at 6.00 pm.
G	Landawa Manau	He is the deceased’s grandson – came back to see the deceased between 5.45 and 6.00 pm – he was dead by then.
L(a)	Devlyn David	Arrived in Kaut between 4.00 and 5.00 pm.
L (c)	Linson Paul	Arrived in Kaut about 5.30 pm.
SW1	Gregory Ote	Left Kavieng for Kaut between 3.00 and 4.00 pm – drove 25 minutes – dropped off the three co-accused – he drove them back to Kavieng about 6.00 to 6.30 pm.
SW2	Benson Guyu	Saw the deceased alive at 6.00 to 6.30 pm – discovered the deceased’s body about 7.00 pm.
SW3	Ephraim Kapiaten	Saw a blue single-cab utility with three young boys and a driver between 5.00 and 5.45 pm.
DW1	Kael John	Arrived at Kaut junction at 5.00 pm – headed back to Kavieng at 6.00 pm.
DW2	Devlyn David	Stopped at Kaut junction at 5.00 pm – went into bush for 45 minutes – went back and they were picked up at the junction.

157. It is apparent that there were many inconsistencies regarding the timing of events. Because the trial judge did not identify them, he denied himself the opportunity to properly assess them. It was insufficient to rationalise the inconsistencies by saying, simply, that most of the witnesses were village people who normally guess time. In drawing the conclusion that each of the co-accused were guilty, his Honour stated that he was "discounting inconsistencies as to time, type of vehicle, and number of people on it and identity of them". Given the number and extent of inconsistencies, it was not proper for his Honour to discount them in that way.

159. We have upheld the two grounds of appeal regarding the appellant’s conviction. We consider that the appeal should be allowed as there is a reasonable doubt, not merely a lurking doubt, about the guilty verdict (John Beng v The State [1977] PNGLR 115). We have considered all the circumstances of the case and focussed on the aggregate effect of the trial judge’s errors. We are conscious of the superior position of the trial judge to asses the credibility of witnesses (Brian John Lewis v The State [1980] PNGLR 219). However, much of our review of the present case has been concerned with reviewing inferences drawn from specific facts, and in that regard an appeal court is generally in as good a position as the trial judge to evaluate the evidence (Karo Gamoga v The State [1981] PNGLR 443).

160. The verdict of guilty of wilful murder must be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory. A miscarriage of justice has occurred.

161. It is open to this court to enter an alternative verdict of murder or manslaughter under Section 539(1) (charge of murder or manslaughter) of the Criminal Code, which states:

On an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.

162. However, having considered all the evidence before the National Court, we do not think a conviction for murder or manslaughter is warranted in law. The circumstantial evidence was not strong enough to convict the appellant of any offence and there were too many inconsistencies in the evidence to warrant a conviction.

163. Having regard to Sections 23(1), 23(2) and 27(2)(a) of the Supreme Court Act we will allow the appeal. We do not consider that the miscarriage of justice can be more adequately remedied by an order for a new trial. We will accordingly quash the conviction and direct that a verdict of not guilty be entered under Section 23(3) of the Supreme Court Act.

4. the warrant of commitment to custody issued by the National Court is revoked.

No	Name	Description	Day	Date (2003)
1	Gregory Ote	Owner of vehicle used to travel from Kavieng to Kaut.	1	13 Aug
2	Benson Guyu	Person who discovered deceased’s body.	2	22 Aug
3	Ephraim Kapiaten	Person who saw a vehicle.	2	22 Aug
4	Boas Lemes	Father of person allegedly picked up on roadside.	3	25 Aug
5	Robert Romalus	Police investigator.	3	25 Aug

Exhibit	Description	Content
D1	Statement: Gregory Ote	On 23.10.99 he left his house at about 3.00 or 4.00 pm and drove to town – Kael, who he knew very well, stopped him in front of Bisi Electrical and asked to hire his vehicle to go to Kaut to pick up something – offered him K20.00 – Kael and his friend got in the vehicle – they drove to Matla to pick up Devlyn – drove along the highway, saw Collin Boas, picked him up – at Kaut, the three co-accused got out and followed a small track into the bush – he and Collin then drove to Kaut – had a problem with the radiator and a village man helped them – they came back to the junction where the three co-accused got into the vehicle at about 6.00 to 6.30 pm – then they drove straight back to town – on the way Kael said to him (Gregory) "we killed one man" – he and Collin were frightened and asked why and Kael replied "that’s his problem with his friend from Sepik" – Kael told him and Collin if they tell anyone, they will shoot the two of them – when he arrived in town, he dropped the three co-accused in front of the Kavieng Hotel – then he and Collin went to church.

No	Name	Description	Day	Date (2003)
1	Kael John	One of the three co-accused	4	26 Aug
2	Devlyn David	The appellant	4	26 Aug

Supreme Court of Papua New Guinea

David v State [2006] PGSC 22; SC881 (22 November 2006)