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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NOS 51 & 52 0F 2002
BETWEEN
COSMAS KUTAU KITAWAL
AND
CHRISTOPHER KUTAU
Appellants
AND
THE STATE
Respondent
Wewak: Jalina J, Mogish J, Cannings J
2006: 26 April,
2007: 22 February
APPEAL
CRIMINAL LAW – trial judge’s findings against the weight of evidence – dying declaration – Evidence Act, Section 20 – rule in Browne v Dunn – whether failure of defence counsel to adhere to rule in Browne v Dunn vitiates an accused’s defences – whether failure to adhere to rule necessarily results in defences being regarded as recent inventions – whether failure to adhere to rule necessarily results in acceptance of prosecution evidence.
CRIMINAL LAW – offence of wilful murder – proof of intention to kill – provocation as a defence – Criminal Code, Section 303.
CRIMINAL LAW – proof of prosecution of common purpose – Criminal Code, Sections 7, 8 and 9.
CRIMINAL LAW – presumption of innocence – burden of proof – standard of proof – variable standards of proof according to nature of offence – duty of trial judge to afford an accused person the full protection of the law.
APPEALS – against conviction for criminal offences – consequences of finding that a conviction was unsafe or unsatisfactory or involved errors of law – miscarriage of justice – substitute verdicts – substitute sentences.
The appellants, a father and son, were convicted by the National Court of wilful murder of a man, by stabbing him in the course of a fight. Both appellants had pleaded not guilty. The father denied stabbing the deceased or being involved in the fight. The son admitted stabbing the deceased, but said he was provoked and only wanted to hurt the deceased and denied that his father was involved. The trial judge dismissed a defence of provocation and rejected most of the defence evidence as being a recent invention as key aspects of it were not put to the State witnesses in cross-examination contrary to the rule in Browne v Dunn. The trial judge accepted the evidence of the main State witness: that both the father and son were involved in the fight and that it was the father who stabbed the deceased. Each appellant were convicted of wilful murder and sentenced to 40 years imprisonment. This was an appeal against conviction and sentence. As to conviction, there were numerous grounds of appeal which focussed on the trial judge’s alleged failure to insist that the prosecution prove its case beyond reasonable doubt; instead, the trial judge had, in effect, placed the burden on the defence to prove innocence. As to sentence, 40 years each was argued to be manifestly excessive.
Held:
(1) The finding that the father stabbed the deceased was against the weight of the evidence; made contrary to Section 20 of the Evidence Act as the trial judge did not give due weight to the deceased’s dying declaration (that it was the son who stabbed him); and overly reliant on one witness who had a number of characteristics tending to diminish his reliability.
(2) There was insufficient evidence to conclude beyond reasonable doubt that either of the accused intended to kill the deceased.
(3) The rule in Browne v Dunn (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them.
(4) The requirements of the rule in Browne v Dunn vary according to the circumstances of the case and will be lessened if, in fact, prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence.
(5) A defence counsel’s failure to adhere to the rule in Browne v Dunn does not necessarily result in the conclusion that all defences are a recent invention, unreliable and should be rejected.
(6) In the present case, the evidence given at trial by both accused (that it was the son who stabbed the deceased and that the father had no involvement in the fight) was consistent with their police records of interview, which formed part of the evidence in the trial. Therefore it was necessary to put only the gist of those defences to the State witnesses.
(7) If there is evidence of a defence such as provocation, the onus is on the prosecution to negative the defence beyond reasonable doubt.
(8) Having established the person physically responsible for killing a person, the trial judge must carefully apply Sections 7, 8 and 9 of the Criminal Code before convicting an accomplice.
(9) If the defence case is rejected for whatever reasons, the State nevertheless still bears the burden of proving all elements of the offence beyond reasonable doubt. Failure to subject the prosecution’s evidence to appropriate scrutiny in such circumstances can result in the trial court reversing the onus of proof, contrary to the presumption of innocence enshrined in Section 37(4)(a) of the Constitution.
(10) In the circumstances the conviction of each accused was unsafe and unsatisfactory, the judgment of the National Court involved wrong decisions on questions of law and miscarriages of justice occurred.
(11) There was insufficient evidence to find the father guilty of any offence and he was acquitted.
(12) An alternative verdict of manslaughter was entered against the son and a sentence of 14 years imprisonment was substituted for the original sentence of 40 years.
Cases cited
The following cases are cited in the judgment:
Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)
Browne v Dunn (1893) 6 R 67 (HL)
Haiveta v Wingti (No 1) [1994] PNGLR 160
John Jaminan v The State (No 2) [1983] PNGLR 318
Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812
Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505
R v Borauda Sem (1964) No 311
R v Brown and Brown [1980] TASRp 8; [1980] Tas R 61
R v Byczko (No 2) (1977) 17 SASR 460
R v Dogwaingikata Miakawo (1971) No 630
R v Killick (1980) 24 SASR 137
R v Manga-Kitai [1967-68] PNGLR 1
R v Nikola Kristeff (1967) No 445
R v Schneidas (No 2) (1981) 4 A Crim R 101
Rosa Angitai v The State [1983] PNGLR 185
Sidi Adevu v MVIT [1994] PNGLR 57
The State v Albert Gias (2005) N2812
The State v Angela Colis Towavik [1981] PNGLR 140
The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) N2245
The State v Cosmos Kutau Kitawal and Christopher Kutau (No 2) (2002) N2249
The State v David Yakuye Daniel (2005) N2869
The State v John Beng [1976] PNGLR 471
The State v Kevin Anis (2003) N2360
The State v Leah Tununto (1990) N947
The State v Leonard Masiap [1997] PNGLR 610
The State v Matilda Edward (2004) N2726
The State v Michael Nema Melpa (2003) N2450
The State v Misari Warun (1989) N753
The State v Pennias Mokei (No 1) (2004) N2606
The State v Peter Oh Piom Mo [1998] PNGLR 66
The State v Rose Yapihra (1997) N1741
The State v Takip Paine of Dumbal [1976] PNGLR 90
APPEAL
This was an appeal against conviction and sentence for wilful murder.
Counsel
V Narokobi, for the appellants
P Kaluwin, for the respondent
1. BY THE COURT: This is an appeal against the conviction and sentence by the National Court (Kandakasi J) of the appellants, Cosmas Kutau Kitawal and Christopher Kutau, on a charge of wilful murder. They are father (Cosmas) and son (Christopher).
THE NATIONAL COURT PROCEEDINGS
2. Both accused were indicted with wilful murder under Section 299 (wilful murder) of the Criminal Code, 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.
3. It was put to the appellants on arraignment that on the night in question the second co-appellant, the son, Christopher, fought with the deceased at the Kairuru wharf, Wewak. The deceased punched Christopher, who fell on the grass. The first co-appellant, the father, Cosmas, appeared on the scene and stabbed the deceased on the back, penetrating his lung, causing his death.
4. It was alleged that Cosmas and Christopher were angry over another fight the previous night with the deceased, in which the deceased had swung a bottle at Christopher. That made them so angry they started a fight the next night – 7 April 2000 – intending to cause the death of the deceased.
5. The appellants pleaded not guilty.
The State’s case
6. At the commencement of the case for the State three exhibits were admitted into evidence by consent. They were exhibits A, B and C. Three witnesses gave oral evidence. They were Sam Navi, Linus Natio and Ronald Kipma.
Exhibits
7. Exhibit A was a post-mortem report by Dr Joseph Sands on Raymond Ningel, dated 18 April 2000. Dr Sands noted that the deceased was stabbed at the back with a sharp knife. External findings included a wound 2 x 4 cm at 5th inter-costal area. Internal findings were: penetrated pleural cavity at 4th, 5th ICS; lacerated lung 2 cm wide.
8. Cause of death was a haemothorax on the left pleural cavity; excessive blood loss into left pleural cavity and externally; lacerated lung tissue that bled into the main airway obstructing the patency of the airway. The direct cause of death was hypovolaemic shock with obstructed airway. These have been directly due to the injury that he sustained, the report stated.
9. Exhibit B was Cosmas Kutau’s record of interview, dated 12 April 2000. Cosmas states that he is married with seven children; his son, Christopher, being the only boy. On Thursday 6 April 2000 Christopher fought with the deceased, Ray, in front of the beachfront canteen. Ray is from Drekkikir. Ray had tried to get some goods free from Joe’s store. Ray had also argued with him (the interviewee, Cosmas) by hitting him on the face and grabbing his neck. Ray’s argument with Cosmas was before Ray’s argument with Christopher. After Ray argued with him, he, Cosmas, went into the house to get Christopher to come. Then, he, Cosmas, had an argument with Linus Natio.
10. On the morning of the next day, Friday 7 April 2000, Linus came and apologised to him and his family. He accepted Linus’s apology.
11. Later on Friday 7 April 2000 he was in his premises with his wife and family, including Christopher, having a prayer meeting. Ray came and asked for a fight with Christopher. They fought for about 15 minutes and then he came down after the fight. Ray had already been stabbed.
He denied stabbing the deceased with a knife. Asked whether he had helped Christopher in the fight by swinging his hand at the deceased, he said that he could not remember.
12. Exhibit C was Christopher Kutau’s record of interview, dated 13 April 2000. He states that he stabbed the deceased with a knife. He had fought with him the previous night in front of the Seaside Store. Ray hit him with a bottle so he defended himself by hitting his hands with an iron rod. Ray had sworn at him, grabbed his father’s neck and thrown a full bottle of beer at him. Christopher denied saying after that first fight that he was after Ray or that he would kill him. He denied still being angry with Ray.
13. On the morning of Friday 7 April 2000 Linus Natio and John Tika came to his house and said sorry for Thursday night’s fight. He (Christopher) denied saying that he would hold Ray’s neck anytime.
14. On the night of Friday 7 April 2000 he fought again with Ray. Ray and his group had broken their gate on Thursday night and chased the family away. On Friday they came to burn the house and kill the whole family. Ray pulled him out of the gate and fought with him. He stabbed Ray with a small pocket knife that he got from his father’s office. He stabbed him somewhere around the shoulder. His father (Cosmas) did not help him in this fight.
Oral evidence
State witness No 1: Sam Navi
15. He stated in examination-in-chief that he was present when Christopher and Cosmas fought with Ray on the night of Friday 7 April 2000. He had gone to the front of the Yacht Club with Ray. They were telling stories with some Wosera boys.
16. Cosmas and Christopher were at their house, heard them talking and ran down. Christopher opened the gate of their residence and came out and wanted to fight Ray. Cosmas followed one metre behind, with a knife. Christopher and Ray fought and Cosmas jumped out and stabbed Ray on the back.
17. The lighting was good. When Christopher was approaching Ray he was shouting as they had fought the previous day. Cosmas had a long knife. Christopher had no weapon. The fight happened in front of him. They were only one metre away.
18. After Ray was stabbed, Cosmas and Christopher ran back to their home. He, Sam, called out to Simon Joe to bring his car.
19. Apart from Cosmas and Christopher and himself and Ray, Simon Joe’s security guards were there. One of them – John – tried to help Cosmas and Christopher in the fight. But he, Sam, pushed him away.
20. In cross-examination Sam Navi stated that he was not with the deceased, Ray, when he fought with Cosmas and Christopher on the night of Thursday 6 April 2000.
21. The next night, Friday 7 April 2000, he was drinking with Ray at the Mango Club outside Moem Barracks. They had about six beers each. They later met two of their friends, Jeremy Powas and Rigo Sofo, at the Seaview. They drove in Jeremy’s mother’s car to the Yacht Club to pick her up. Four people were in the vehicle: Sam, Ray, Jeremy and Rigo.
22. Defence counsel, Mr Saulep, put a number of propositions to Sam, which he responded to as follows:
23. Sam said Cosmas and Christopher only fought Ray – they did not fight him. He, Sam, tried to stop the fight.
24. In re-examination Sam Navi said that though he had drunk about six bottles of beer he was normal. He was thinking clearly. Ray did not tell him that he was going to fight with Cosmas or Christopher.
State witness No 2: Linus Natio
25. He stated in examination-in-chief that he was present on Thursday 6 April 2000 and saw the fight between Ray and Cosmas and Christopher. He was not physically involved. He was only trying to stop the fight.
26. The next day, 7 April 2000, he went to their house and apologised to them for the incident the previous night. Cosmas and Christopher’s mother and sisters agreed with the apology but Christopher was not very happy. Christopher told him that if he met Ray he will fight with him.
27. Asked by the prosecutor, Mr Ruarri, for the exact words Christopher used, the witness, Linus, replied:
Uncle, if I meet Ray, I will square it up with him.
28. Linus was not present on the night of 7 April 2000, when the deceased was stabbed.
29. In cross-examination Linus Natio stated that he knew the deceased, Ray Ningel, well. They were neighbours. He also knows Cosmas and Christopher.
30. On the night of Thursday 6 April 2000, he was drinking at the Mango Club. Ray had gone there too, by himself, before he arrived. Ray was drinking. When it came time to go home, he gave Ray and a couple of other guys a lift in his car.
31. They went to the 24-hour trade store at the seaside, near the Yacht Club, to buy cigarettes. He parked the car and Ray went to buy the cigarettes. It was about 10.00 pm.
32. Not very long after Ray left the car he observed Christopher fighting with Ray, beating him with a grass-knife. Ray did not defend himself. He just let Christopher beat him. Cosmas came down from his house and supported Christopher.
33. He, Linus, asked Cosmas politely what the fight was about. Cosmas did not listen and still wanted to help Christopher, but did not actually fight Ray.
34. Cosmas and Christopher had some weapons, something like a fishing gun and spear. They were about to use those things against him, Linus, and Ray so his boys – those he had given a lift to – threw stones at Cosmas and Christopher and chased them back into their house.
35. The next day he went to see Cosmas and Christopher and apologised about the fight as he felt the fight was not good.
36. He did not know why Ray and Christopher fought that night.
37. In re-examination Linus Natio said that he could not remember whether Ray said or did anything to Christopher before Christopher attacked him with the grass-knife. Ray just went to buy cigarettes.
38. Ray was involved with the other boys in chasing Cosmas and Christopher with stones and sticks. No one was injured in the fight.
State witness No 3: Ronald Kipma
39. He stated in examination-in-chief that he has known Cosmas and Christopher for ten years.
40. At about 7.30 pm on Friday 7 April 2000 he was with the councillor, Charlie Buatu, and they met Christopher at the Seaside store near the Yacht Club. Christopher approached them and asked the councillor if he had seen Ray.
41. Christopher said:
If I meet Ray I will send him to the morgue.
42. The councillor said: ‘Do not do that, you will create another problem’. But Christopher replied:
Honest to God, if I meet him, I will send him to the morgue.
43. They left Christopher, bought smokes and went home.
44. Asked by Mr Ruarri what Christopher meant by his words, the witness, Ronald, said that Christopher meant he would fight with Ray and that he sounded serious.
45. In cross-examination Ronald Kipma stated that the deceased, Ray Ningel, was his friend.
46. He is not aware of any previous ill-will or ill-feeling between Ray and Cosmas or Christopher.
47. He heard the things that Christopher said to the councillor, Charlie. Christopher did not say the things to him, Ronald, directly. Christopher was speaking to the councillor and he, Ronald, was standing with the councillor.
48. The councillor is in Wewak, right now.
49. When he, Ronald, heard Christopher say that he would send Ray to the morgue, he interpreted that to mean that there was a fight between Ray and Christopher. He drew no other implications.
50. There was no re-examination of Ronald Kipma.
Case closed
51. After calling the third witness, the State’s case was closed.
No-case submission
52. The defence counsel, Mr Saulep, then made a no-case submission based on the ground that there was insufficient evidence of an intention to kill.
53. The trial judge considered that both of the accused had a case to answer and refused the submission and the case continued.
The defence case
Outline
54. The defence tendered one exhibit by consent: a sketch of the crime scene. It was tendered through the first State witness, Sam Navi. The defence called three witnesses to give oral evidence: the two accused and an eyewitness.
Oral evidence
Defence witness No 1: Christopher Kutau
55. In examination-in-chief he gave evidence about the events of both Thursday 6 and Friday 7 April 2000.
56. On the night of Thursday 6 April 2000 he and his father, Cosmas, went down to the Seaside canteen to buy the next morning’s breakfast. Ray and his drunkard mates parked their vehicle next to the canteen. Ray jumped out of the car, ran towards them and punched his father on the jaw. Ray tried to smash a bottle of beer over his, Christopher’s, head so he ran behind the counter, got a piece of metal rod and tried to hit Ray’s hands.
57. He and his father ran back to their residence. Ray’s mob, including Joel Natio, John Tiga and Linus Natio, ran up to the gate, shook it, shouted that they would kill them all and chased them out of their residence. His mother and father and sisters crawled under the fence and went down to the Yacht Club to take refuge. He stayed at the house. The mob damaged furniture and pot plants outside the Club and shouted that the next day they would come back and kill him and his family and burn down their house.
58. On the night of Friday 7 April 2000 he was at home with his father and the rest of the family when they heard a commotion at the gate. The people making the noise sounded as if they were drunk.
59. He felt that his life and the lives of his family members were in danger because of what had happened the previous night.
60. He went down to the gate by himself. He took a little knife with him. He saw the deceased, Ray Ningel, there with two of his mates: Sam Navi and another boy he did not know. He tried to lock the gate but Ray grabbed his hands. Then there was a fight between him (Christopher) and the three others: Sam, Ray and the other one he did not know.
61. They moved him out towards the canteen. Ray punched him and he fell down. When he got up, Ray swung his left hand at him, he ducked, then swung the knife at Ray. He intended to wound Ray on his hand, to stop him fighting. He did not mean to kill him but he stabbed him, just once.
62. Immediately after stabbing Ray he ran towards his residence, met his father there, told him someone was wounded and that they should go back to the house.
63. His father was not involved in the stabbing.
64. When he stabbed Ray, Simon Joe heard the fighting noise. He was standing nearby under a cherry tree. Ray went to Simon and said:
Toppa [short for Christopher] stabbed me and I am dying.
65. In cross-examination Christopher Kutau said that he stabbed the deceased, Ray Ningel, on the left shoulder. The knife he used was about 10 cm long, similar to a pocket knife. Ray was fighting with him so he went under his shoulders and stabbed him.
66. The area in which they fought was dark.
67. Sam Navi was fighting with another boy, John, from Wosera. John worked at the canteen and lived on the seaside.
68. Sam did not stop his father from attacking Ray. His father was in the house. He only came out after the stabbing.
69. Ray was under the influence of liquor. He, Christopher, was under threat so he had no choice but to injure him.
70. When he heard the noise at the gate he went down to the gate. There were three people there: Ray, Sam and one other. He went to the gate just to lock it. He had no intention of killing Ray. The gate was not locked. It just had a chain around it. He had to unlock the lock and lock the gate.
71. He denied making his intentions known to councillor Charlie Buatu, Linus Natio or Ronald Kipma. Linus and Ronald made false statements to the court.
72. In re-examination Christopher Kutau said that Ronald Kipma’s evidence about meeting him on the night of Friday 7 April 2000 was false. He did not meet Ronald or Councillor Charlie. He also denied saying to Linus Natio on the morning of 7 April 2000 that he still wanted to fight Ray.
73. Answering questions from the bench, Christopher Kutau said that at about 9.00 or 10.00 pm on 6 April 2000 his mother used the Yacht Club phone to report that night’s incident to the police. They did not follow up the next day as they had no phone in their house and they felt threatened and could not come out and move around Wewak.
Defence witness No 2: Simon Joe
74. He stated in examination-in-chief that he is the owner of the Seaside tucker shop/trade store, which is at the crime scene. It is a 24-hour shop. He was present on the night of Friday 7 April 2000.
75. He was on his own and he saw a car arriving with four boys in it. He recognised Ray Ningel and Sam Navi. He did not recognise the other two. When they arrived they shook the gate and repeatedly called out:
Kan, where is Christopher? Tell him to come out here and we will kill him.
76. He did not have any conversation with them. He saw Ray and Sam smash a bottle of beer each at the Kutaus’ gate. As soon as Christopher came down they pulled him out and the fight started.
77. Actually there were two separate fights. Sam and some other boys were fighting his (Simon’s) boys, as his boys were helping Christopher. Ray and the others were fighting Christopher.
78. He, Simon, called out for them to stop but they were drunk and did not listen. He saw Christopher holding a knife. He thinks that Ray saw that Christopher was holding the knife and was looking for a weapon to injure Christopher.
79. Then Ray approached him and said:
Uncle Sai, Christopher stabbed me with a knife
80. Ray fell to the ground face first, then turned backwards and coughed out blood three times. He took Ray to the hospital but he was dead on arrival.
81. He then went to the Police Station and told the police that this was a minor problem but because they did not attend to it, it has turned out to be a big problem.
82. He did not see Cosmas at the scene of the incident on the night in question, 7 April 2000.
83. There was no cross-examination of Simon Joe.
84. Answering questions from the bench Simon Joe said that when he went to the Police Station the police told him they had already received a call from Cosmas. He did not go to the police earlier than that, to get them to stop the fight, as there were a lot of men and it was hard to do that while the fight was happening.
85. There were four of them (meaning Ray and Sam and two others) and, later, two of his boys (John and Dason).
Defence witness No 3: Cosmas Kutau Kitawal
86. He stated in examination-in-chief that on the night of Thursday 6 April 2000 he and Christopher went down to the Seaside canteen to buy kaikai for the family. Ray Ningel punched him, Cosmas, for no reason. Christopher came to his assistance then used a metal rod to scare the drunkards away. He and Christopher ran up to their house and told his wife and children to crawl through the fence to the Yacht Club. Two Yacht Club members, Danny Chun and Noel Laki, saw what happened and contacted the police. The police arrived a few hours later. One of them, Sergeant Wani, told him that he had the right to kill those who had caused the problem.
87. The next night, Friday 7 April 2000, he held a fellowship and prayer meeting at his house. Present were his wife and children and two community leaders from Tupuru Island, Elias and Mrs Bosowari. For some reason the police came and picked them up and took them to the station. After they left he went back to the room where they had prayed, heard a loud noise and sent Christopher down to lock the gate. Normally the gate is left open for friends or customers (for the small club) to come in. The lock was locked but the gate was not locked.
88. He heard more screaming and noises so he went down to the gate. That is when Christopher told him that someone had been injured. He told Christopher to go back to the house, which they did. He gathered the family together then went out the back gate to the house of one of his in-laws, Peter Taiko. Peter looked after them and took them to Turubu, where they hid for safety.
89. He said it was not true that he came down to the gate with Christopher or that he had stabbed Ray.
90. In cross-examination Cosmas Kutau Kitawal said that when he was tidying up after Elias and his wife left after the fellowship he heard drunkards swearing and making a lot of noise. There are normally drunkards around the Yacht Club but the volume of noise was quite unusual. His own club was not operating at the time.
91. He went down to the gate about 10 to 15 minutes after he sent Christopher to lock it. That is when Christopher told him that someone was injured. Then he was hurrying to move his family out. He knew from pervious incidents that there would be retaliation.
92. There was no re-examination of Cosmas Kutau Kitawal.
Case closed
93. After calling the third witness, the defence case was closed.
Defence counsel’s submissions
94. Mr Saulep submitted that there was insufficient evidence on which to base any conviction against Cosmas. The only State witness to give eyewitness evidence, Sam Navi, should not be believed. His was the only evidence that put Cosmas at the scene or had him stabbing the deceased.
95. The countervailing evidence of Simon Joe, who was also present, should be preferred: Cosmas was not present and it was Christopher who had the knife. Christopher admitted stabbing Ray and his evidence should be believed.
96. Mr Saulep did not raise the defence of self-defence but contended that Christopher had the defence of provocation available to him. He acted in the heat of passion. He was out-numbered and did what he thought necessary to stop the fight. His evidence is clear: he did not intend to kill the deceased and did not tell Linus Natio or Councillor Charlie that he was going to kill him. Christopher should therefore be acquitted of wilful murder.
Prosecutor’s submissions
97. Mr Ruarri submitted that the evidence showed that both Cosmas and Christopher were involved in the fight with the deceased. Cosmas stabbed the deceased from behind.
98. They each had the intention of killing the deceased. As to Cosmas, his intention can be inferred from the dangerous weapon that he used and the manner in which he stabbed the deceased: into the back, below the shoulder, where the knife would penetrate the heart or the lung.
99. As to Christopher, there was evidence of his intention to kill in the statements he made to or in the presence of Linus Natio and Ronald Kipma.
THE NATIONAL COURT JUDGMENT
Verdict
100. The judgment on verdict has been reported as The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (2002) N2245.
101. The trial judge began by summarising the evidence and setting out the duty of the State to prove its case beyond reasonable doubt.
102. His Honour described the State’s case, which was:
103. The trial judge considered that cross-examination of the State’s witnesses failed to create any doubt in the above story and no reason was elicited for the witnesses giving false evidence.
104. His Honour also considered that the defence case was in breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), which was described in these terms:
Where an accused calls evidence without first in fairness putting it in cross–examination to the prosecution witnesses, such evidence should be treated as recent inventions and unreliable. ...
The position was clearly spelt out in the case of John Jaminan v The State (No 2) [1983] PNGLR 318 at pp 332 by Bredmeyer J in these terms:
The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: see The State v Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done the weight of the evidence given by the party, in this case the accused, is reduced. ...
The object behind this is in line with our system of justice. Fairness to both parties must prevail in all trials before our Courts. This principle requires an accused person to put his case to the witnesses called against him or her so that in fairness the witnesses can comment and choose to either maintain or retract their evidence. This must be done during cross-examination because under our trial procedure, the prosecution does not normally and readily have a right or opportunity to either recall witnesses or call new witnesses to rebut fresh evidence introduced by the defence.
105. His Honour held that the defences of self-defence and provocation were not properly put to the State’s witnesses as the following important facts were not put to the State’s witnesses:
1 Cosmas did not fight with the deceased at any time on 6 or 7 April 2000;
2 Cosmas did not inflict the fatal sword knife wound that eventually claimed the life of the deceased;
3 their properties were damaged by the deceased and his group on 6 April 2000;
4 the deceased and his group indicated they would come back the next day and kill Cosmas and Christopher and burn down their house;
5 Christopher did not say to Councillor Buatu in the presence of Ronald Kipma that if he saw the deceased he would send him to the morgue;
6 Christopher did not say to Linus Natio that he would square it up with the deceased if he saw him;
7 both the fights of 6 and 7 April 2000 were started by the deceased;
8 the deceased pulled Christopher by the hands out of his premises and fought him outside the gate on 7 April 2000; and
9 the deceased, Sam Navi and Jeremy Powa attacked and fought Christopher and Christopher had to fight his way out using a sword knife.
106. His Honour held that the defence’s failure to put the above matters to the State witnesses rendered the defence evidence recent inventions and unreliable and it ought to be rejected. His Honour concluded:
Your lawyer was not able to assist me with any argument, and rightly so as to how I could not allow that consequence flow through. I therefore reject your evidence and proceed on the basis of the State’s evidence.
107. His Honour gave three other reasons for rejecting the evidence for the defence.
109. Secondly, the defence evidence did not stand up against any sense of logic or common sense in the following respects:
110. Thirdly, the demeanour of both accused failed to give the impression that they were telling the truth.
111. His Honour proceeded to find both accused guilty as charged:
For these reasons, I reject the whole of your evidence and accept that of the prosecution. As a result, I find the charge against you both being established beyond any reasonable doubt. You both set out to kill the deceased and you did. It does not really matter who actually landed the fatal blow. You achieved your intended object of killing the deceased without any provocation as I will shortly elaborate. In so finding, I also reject your claim in the alternative of the defence of self-defence or provocation.
112. His Honour stated that the defence counsel had correctly abandoned the defence of self-defence.
113. As to provocation, his Honour held that this defence was not available as it could not be said that either of the accused acted in the heat of passion or that their heat of passion was caused by sudden provocation or that their passion had not had time to cool. The first arguable provocation was the fight on 6 April 2000. But that was settled when Linus Natio apologised the next morning. As to the second arguable provocation – when the deceased and his friends came to the front gate on 7 April 2000 – they had only come to the Yacht Club to pick up Jeremy’s mother, not to kill anybody or burn down anybody’s house. Neither of the accused was badly beaten up or injured in such a way as to warrant the use of a knife against the deceased who was unarmed. They both acted without any legal provocation or excuse.
114. Therefore they were both guilty of wilful murder.
Sentence
115. The judgment on sentence has been reported as The State v Cosmos Kutau Kitawal and Christopher Kutau (No 2) (2002) N2249. The trial judge imposed a sentence of 40 years imprisonment on each of the appellants.
116. His Honour emphasised that Christopher planned to kill the deceased. He made that clear to two of the State witnesses. He armed himself and attacked an unarmed man. Cosmas came to the aid of his son and stabbed the deceased from the back with a dangerous weapon. Their motive was the damage caused to the property the previous night, which in itself was a reaction to Christopher first attacking the deceased. They could have easily resolved that matter by involving the community leaders and or the police and failing that, the court system, without killing the deceased. There was no evidence of them taking any steps to resolve the dispute through these lawful and peaceful means except only to report the incidents of the previous night to the police. Instead, they chose to take the law into their own hands and killed the deceased in cold blood.
117. His Honour concluded:
You should consider yourself extremely fortunate that I have decided not to impose the maximum penalty of death or failing that life imprisonment. You should also seriously consider making your life right with God and your fellow man. A failure to do so before the Lord Jesus Christ returns to take his people home to Heaven will result in sure death. There will be no leniency by then. Now is the time to get your relationship with your God and your fellow man right. I can only hope that you will do that.
THE APPEAL
118. The grounds of appeal are contained in two sets of documents.
119. The first is a pro-forma notice of appeal and application for leave to appeal for each appellant, dated 18 June 2002. These documents state simply that the trial judge made an unfair decision.
120. The second are supplementary notices of appeal filed by Narokobi Lawyers on 19 May 2005. They list 17 grounds of appeal regarding the convictions and one regarding the sentences, which are claimed to be excessive.
121. Some grounds of appeal were abandoned at the hearing of the appeal. The appellants’ counsel, Mr Narokobi, presented a written submission contending that the trial judge made six errors of fact or law:
122. We regard them as the six substantive grounds of appeal against the conviction of each appellant.
GROUND NO 1: DID THE TRIAL JUDGE ERR BY FINDING THAT COSMAS KUTAU KITAWAL WAS THE ONE WHO LANDED THE FATAL BLOW?
123. Four separate arguments have been raised in support of this ground.
(a) The trial judge’s finding that Cosmas stabbed the deceased was against the weight of the evidence.
124. We agree generally with this argument.
125. There were at least five pieces of evidence to support the proposition that it was not Cosmas, but Christopher, who stabbed the deceased:
126. By contrast there was only one piece of evidence to support the proposition that Cosmas stabbed the deceased:
127. We therefore find for present purposes that on the face of it the trial judge’s finding that it was Cosmas who stabbed the deceased was against the weight of the evidence. However, a final determination of the effect of the argument must await our determination of the ground of appeal No 3, which deals with the issue of whether his Honour erred by rejecting the whole of the defence case due to contravention of the rule in Browne v Dunn.
(b) The trial judge refused to accept the evidence of the deceased’s dying declaration contrary to Section 20 of the Evidence Act.
128. Section 20 states:
A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceedings if—
(a) at the time when the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not—
(i) he entertained at that time any hope of recovery; or
(ii) he thought that legal proceedings might eventuate; and
(b) at the time when the person made the statement he would have been a competent witness in the legal proceedings; and
(c) the person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.
129. Mr Narokobi for the appellants points out that Simon Joe gave evidence of Ray Ningel’s last words, which were:
Uncle Sai, Christopher stabbed me with a knife
130. That statement was made by the deceased orally before his death and related to the circumstances resulting in his death. It satisfied the requirements of Section 20 of the Evidence Act in that:
131. The deceased’s statement was therefore admissible evidence, which is significant as the person to whom the statement was made, Simon Joe, was not cross-examined. The dying declaration was therefore unchallenged.
132. The trial judge observed that Simon Joe’s evidence about what the deceased said was different to Christopher’s evidence, which was:
Toppa [ie Christopher] stabbed me and I am dying.
133. His Honour regarded the difference in words as a material inconsistency between Simon’s and Christopher’s evidence. We respectfully disagree. The gist of both testimonies was that the deceased’s last words were that Christopher had stabbed him. Their evidence was for all intents and purposes the same.
134. The trial judge did not give any other reason for rejecting Simon Joe’s testimony. His Honour did not comment on his demeanour or any motive he had for lying. Nor did his Honour dismiss the value of his evidence by reason of him being a neighbour or friend of the appellants; an issue that could, in any event, have been resolved by comparing the degree of his ‘independence’ as a witness with that of the State witnesses, all of whom were friends of the deceased.
135. We point out that the Section 20 issue was not put to the trial judge, so his Honour did not obtain the benefit of argument on it. However, it was an important point of law that should have been addressed. It was set out in the notice of appeal and it does not concern a question of fact only. It was therefore appropriate to allow the point to be argued. There is no hard and fast rule that prevents appellants raising new points of law that were not raised in the National Court (Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812).
136. We find that on the face of it the trial judge’s failure to give due weight to the deceased’s dying declaration was an error of law.
(c) The trial judge erred by relying solely on the evidence of one witness, Sam Navi, who was drunk and an associate of the deceased.
137. We agree with Mr Narokobi that as the State was basing its case on the proposition that Cosmas had stabbed the deceased and been aided and abetted by Christopher, the trial judge should have exercised considerable caution before upholding the case, given that it turned on the oral evidence of just one witness. Sam Navi was a friend of the deceased. He was involved in the incident as it was alleged that he had come to the gate with the deceased looking for trouble. He was a long way off being an independent witness. Furthermore, he had drunk six bottles of beer. At one stage of his evidence he admitted he was drunk. He later said he was "normal". This is hard to accept.
138. We consider that the trial judge should have warned himself of the danger of accepting the evidence of a witness who had such a number of characteristics tending to diminish his reliability. We also consider that his Honour erred by not subjecting his evidence to the level of scrutiny required, particularly whether his demeanour was sound; whether he had a motive to lie; and whether his evidence accorded with logic and common sense.
139. We find that on the face of it the trial judge erred by basing conviction on the evidence of a witness who appeared to have a number of unreliable characteristics without giving himself an appropriate warning of the dangers of doing so.
(d) The trial judge did not warn himself of the dangers of relying on the identification evidence of a single witness.
140. This argument is based on the principles developed by Frost CJ in The State v John Beng [1976] PNGLR 471. Where the case turns on the identification evidence of a single witness the trial judge must exercise considerable caution. The judge should warn himself or herself of the inherent dangers of convicting, as even an honest witness can be mistaken.
141. We consider that this argument is misconceived as this was not a case where the issue was identification. The witness Sam Navi knew the identity of both of the accused. The issue was whether he was a witness of truth and a witness who was too drunk at the time to give a reliable account of what happened.
142. We dismiss the argument based on Beng’s case.
Conclusion re ground No 1
143. Subject to our determination of ground No 3 we sustain three of the four arguments in support of ground No 1. We reach the tentative conclusion that the trial judge erred by finding that Cosmas stabbed the deceased.
GROUND NO 2: DID THE TRIAL JUDGE ERR BY NOT RETURNING A VERDICT OF GUILTY OR MURDER OR MANSLAUGHTER?
144. The offence of wilful murder comprises three elements: the accused killed the deceased; the killing was unlawful; and the accused intended to cause the death of the deceased. This ground of appeal focuses on the third element. It contends that the trial judge erred by concluding that each of the appellants intended to cause the death of the deceased. Four separate arguments are raised in support of the ground.
(a) The trial judge erred by finding that the knife used to stab the deceased was 30 cm long, when it was not tendered in evidence.
145. We do not think it is correct to say that his Honour made a clear finding of fact regarding the characteristics of the knife, including its length and whether it was a sword knife or a pocket knife. We consider that it is desirable in a case of this nature – where it is not in dispute that the deceased was stabbed to death – for a finding of that sort to be made and, indeed, for the knife to be adduced in evidence. If it was not in evidence, an explanation for that should have been given by the prosecution.
146. We do not agree that the trial judge made an error of law in the way that he described the knife or entered a conviction in its absence.
(b) The trial judge erred by finding that Cosmas formed an intention to kill the deceased.
147. We agree with this argument to the extent that there is no additional evidence, over and above Sam Navi’s evidence, of Cosmas coming from behind and stabbing the deceased, to corroborate the State’s case that Cosmas intended to kill the deceased. The evidence is that Cosmas accepted Linus Natio’s apology regarding the incident of 6 April 2000. The hard feelings he had towards the deceased about that incident would reasonably be expected to have subsided.
148. The issue of whether Cosmas had the requisite intention to kill rises or falls with resolution of the issue – in ground of appeal No 1 – whether he was the one who stabbed the deceased. If he, in fact, stabbed the deceased it might be concluded that he intended to kill him. But even then, the post-mortem report suggests that there was only one stab wound and the wound was of moderate size (2 cm x 4 cm); which would tend to support the conclusion that there was no intention to kill. On the other hand, if Cosmas did not stab the deceased – and it is concluded that he was not present at the critical time – it could not reasonably be concluded that he intended to kill him.
149. We find, with respect, that the trial judge erred by finding that Cosmas formed an intention to kill the deceased.
(c) The trial judge erred by relying on the evidence of Ronald Kipma to find that Christopher intended to kill the deceased.
150. Ronald Kipma gave evidence that on the morning of the incident, 7 April 2000, he was present and heard Christopher say to another person, Councillor Buatu, that if he, Christopher, saw Ray he would ‘send him to the morgue’. The trial judge regarded this as an express statement of Christopher’s intention to kill.
151. We agree with Mr Narokobi that his Honour erred in law by placing too much reliance on Ronald Kipma’s evidence for the following reasons:
152. We find, with respect, that the trial judge erred by finding that Christopher formed an intention to kill the deceased.
(d) The nature and force of the stab wound were not such as to evince an intention to kill.
153. Mr Narokobi argued that the medical evidence was to the effect that the deceased died from a single stab wound in his back measuring only 2 cm x 4 cm. This showed there was no intention to kill. If there were such an intention, the person wielding the knife would have inflicted a deeper wound and stabbed the victim on more than one occasion. There was no evidence that this was a ferocious attack. On the contrary the evidence supported Christopher’s claim that he intended only to hurt the deceased so as to stop the fight.
154. We agree with this argument. We consider that the trial judge ought to have subjected the medical evidence to more intensive scrutiny. The failure to do so constituted an error of law.
Conclusion re ground No 2
155. We sustain three of the four arguments in support of ground No 2. We conclude that there was insufficient evidence for the trial judge to be satisfied beyond reasonable doubt that either of the appellants intended to kill the deceased.
GROUND NO 3: DID THE TRIAL JUDGE ERR BY REJECTING THE EVIDENCE OF THE APPELLANTS AS RECENT INVENTIONS?
156. Mr Narokobi argued that the trial judge applied the rule in Browne v Dunn too strictly, disregarding the fact that both appellants had consistently told the same story about what happened since they were interviewed by the police. It could not therefore reasonably be concluded that the evidence of either appellant was a recent invention.
157. Application of the rule in Browne v Dunn was indeed pivotal to rejection of the defence case. The trial judge described the rule this way:
158. His Honour applied the rule by considering (as set out earlier) that nine important aspects of the defence case were not put to the State witnesses, ie:
1 Cosmas did not fight with the deceased;
2 Cosmas did not inflict the fatal knife wound;
3 the appellants’ properties were damaged by the deceased;
4 the deceased and his group issued threats to the appellants;
5 Christopher never said he would send Ray to the morgue;
6 Christopher never said he would square it up with Ray;
7 the deceased started both the fights of 6 and 7 April 2000;
8 the deceased pulled Christopher by the hands; and
9 Christopher was attacked by Ray and two others.
159. His Honour held the rule had been breached. Therefore all of the above aspects of the defence case were rendered recent inventions and unreliable and therefore rejected.
160. We consider that this ground of appeal raises three distinct issues of law:
Requirements of the rule in Browne v Dunn
161. We agree with the trial judge that the rule is actually a principle of fairness. It is a principle of evidence, adopted as part of the underlying law of Papua New Guinea for control of both civil and criminal proceedings. It has been expressed in many different ways. For example:
164. However, with respect, we do not agree with the trial judge that the rule in Browne v Dunn requires that every detail of the defence case must be put in cross-examination to the State witnesses. It requires that the gist or substance of the proposed defence be put to the State witnesses, in so far as it concerns that particular witness; not that every detail be put to them. (R v Brown and Brown [1980] TASRp 8; [1980] Tas R 61). Furthermore, if prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview, it may not be necessary to cross-examine to the level of detail that would otherwise be required. The rule is inherently flexible and its requirements vary from case to case, the principal aim being to impose fairness on the trial procedure. If a witness’s evidence-in-chief is "incredible or romancing" a detailed cross-examination is not necessary (R v Byczko (No 2) (1977) 17 SASR 460). If the examiner-in-chief traverses the opposition case thoroughly, the cross-examiner will not need to cover the same ground. An allegation may be so obviously a part of the defence case it is not necessary to formally put it to the State witnesses.
165. We agree with and adopt the following explanation of the rule, by WAN Wells, formerly a Justice of the Supreme Court of South Australia, in Evidence and Advocacy © 1988 Butterworths:
The spirit of the rule is that a witness’s evidence should not be impeached behind his back; if the opposing side has called, or intends to call, evidence that controverts or significantly enlarges part of, or all, that the witness has deposed to, he should be made aware of the substance of that evidence, and be given a fair opportunity of meeting it. The rule has nothing to say about the technique by which the opportunity is to be afforded, other than that it must be afforded fairly and comprehensively.
166. We conclude, with respect, that the trial judge erred by stating the requirements of the rule in Browne v Dunn too strictly.
Consequences of breach of rule
167. We also consider that the trial judge erred by ruling that breach of the rule in Browne v Dunn necessarily renders the evidence of the party in breach, a recent invention or unreliable and leads to automatic rejection of the evidence. We have been unable to locate a consistent line of authority in support of that proposition of law in Papua New Guinea or any other jurisdiction in which the rule in Browne v Dunn applies.
168. In the casebook Evidence Commentary and Materials 3rd edition © 1990, Law Book Company, at page 384, PK Waight and CR Williams discuss the issue of the ‘penalties’ attaching to a cross-examiner who offends against the rule in Browne v Dunn, ie what happens when the rule is breached? The learned authors cite three possible penalties and cite numerous cases in support of each approach.
169. First, notwithstanding the general rule against a party splitting its case, the opponent will be allowed to recall their witness and put forward new evidence to rebut the evidence that has been put in breach of the rule in Browne v Dunn (eg R v Killick (1980) 24 SASR 137).
170. Secondly, the tribunal of fact will be entitled to take the failure to cross-examine into account in determining which party’s account is to be accepted (eg Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505).
171. Thirdly, the cross-examiner in breach of the rule, will be precluded from calling evidence on the matter (eg R v Schneidas (No 2) (1981) 4 A Crim R 101).
172. Nowhere in any of these cases is it suggested that a breach of the rule leads to automatic rejection of the evidence of the party in breach. That is the point made by Jalina J in The State v Peter Oh Piom Mo [1998] PNGLR 66; a party’s failure to adhere to the rule is not necessarily fatal to that party’s case but will go to the question of the weight to be attached to the unchallenged testimony. It is the same point made in John Jaminan v The State (No 2) [1983] PNGLR 318. In a passage cited, ironically, with approval, by the trial judge in the present case, Bredmeyer J emphasised at page 332 that if a party’s case is not put to the opposing party’s witnesses, "the weight of the evidence given by the party ... is reduced". With respect, we consider the dicta in Oh Piom Mo and Jaminan correct and succinct summaries of the consequences of a breach of the rule in Browne v Dunn.
173. We conclude, with respect, that the trial judge erred in law by automatically rejecting the defence evidence.
Application of the rule in Browne v Dunn in the present case
174. We uphold Mr Narokobi’s submission that there was no breach of the rule in Browne v Dunn; but, if the rule was breached, the breach was not serious and did not warrant the verdict returned by the trial judge.
175. The oral testimony of both Cosmas and Christopher was consistent with their records of interview. In his police interview (exhibit B) Cosmas said Christopher fought with Ray on the night of Thursday 6 April 2000 in front of the beachfront canteen. Ray had tried to get some goods free from Joe’s store. Ray had also argued with him (Cosmas) by hitting him on the face and grabbing his neck. Ray’s argument with him was before the argument with Christopher. After Ray argued with him, Cosmas went into the house to get Christopher to come. Then Cosmas, had an argument with Linus Natio. On the morning of the next day, Friday 7 April 2000, Linus came and apologised to him and his family. He accepted Linus’s apology. Later on Friday 7 April 2000 he was in his premises with his wife and family, including Christopher, having a prayer meeting. Ray came and asked for a fight with Christopher. They fought for about 15 minutes and then he came down after the fight and found that Ray had already been stabbed. Cosmas denied stabbing the deceased.
176. According to Christopher’s record of interview (exhibit C), he had fought with Ray the previous night in front of the Seaside Store. Ray hit him with a bottle so he defended himself by hitting his hands with an iron rod. Ray had sworn at him, grabbed his father’s neck and thrown a full bottle of beer at him. Christopher denied saying after that first fight that he was after Ray or that he would kill him. He denied still being angry with Ray. He stated that on the morning of Friday 7 April 2000 Linus Natio and John Tika came to his house and said sorry for Thursday night’s fight. Christopher denied saying that he would hold Ray’s neck anytime. On the night of Friday 7 April 2000 he fought again with Ray because Ray and his group broke their gate on Thursday night and chased the family away. On Friday they came to burn the house and kill the whole family. Ray pulled him out of the gate and fought with him. He stabbed Ray with a small pocket knife that he got from his father’s office. He stabbed him somewhere around the shoulder. His father did not help him in this fight.
177. The striking feature of both records of interview is that the versions of events given match those given by Cosmas and Christopher in their oral testimony. Each record of interview was tendered into evidence by consent and formed part of the State’s case. It cannot be reasonably said that the State was caught by surprise by the oral testimony of the accused persons or that the fairness of the trial was vitiated by the defence counsel’s failure to put enough detail of the defence case to the State witnesses. The rule in Browne v Dunn requires that the gist or substance of the proposed defence be put to the State witnesses; and we consider that that was done in this case.
178. We do not agree with the trial judge’s finding that the defence counsel was obliged, and failed, to expressly put nine aspects of the defence case to the State witnesses. The cross-examination that was undertaken was sufficient in the circumstances of this case, it being well understood by any reasonable observer what the defence case was: Cosmas did not stab the deceased – it was Christopher – and he did it in the course of a fight in which he was provoked and outnumbered. In any event the defence counsel squarely put to the key State witness, Sam Navi, that he and the deceased had started the fight by rattling the gate and shouting, that they were drunk and looking for a fight and were threatening to kill Cosmas and Christopher and burn their house.
179. Even if we were to agree with the trial judge’s finding that the rule in Browne v Dunn was breached, the penalty should not have been to simply brand the oral testimony of the accused persons as recent inventions. We agree with Mr Narokobi’s submission that that is an erroneous conclusion in this case as the version of events in the oral testimony matched those given in the records of interview. A ‘recent invention’ is a version of events that looks as if it has been manufactured at the last minute for the purposes of a trial. If an accused person gives oral evidence that matches what was said some time ago in a police interview it cannot fairly be called a recent invention. It should not be automatically rejected for that reason.
180. With respect we consider that the trial judge’s overly formulaic application of the rule in Browne v Dunn meant that the trial miscarried at the point when his Honour rejected the defence case in its entirety.
Conclusion re ground No 3
181. We uphold ground of appeal No 3. As our final determination of ground of appeal No 1 was dependent on ground of appeal No 3, we state that we uphold ground of appeal No 1.
GROUND NO 4: DID THE TRIAL JUDGE ERR IN DISMISSING THE DEFENCES OF (A) SELF-DEFENCE AND (B) PROVOCATION?
182. The trial judge did not err in dismissing the defence of self-defence as it was abandoned at the trial by the defence counsel of his own volition.
183. However, we respectfully consider that his Honour erred in law in his treatment of the defence of provocation in three respects.
Timing of treatment of the defence
184. First, the defence was not considered until after the trial judge pronounced that he found the charge against each accused "established beyond any reasonable doubt". Such a conclusion, which is tantamount to entering a conviction, with respect, cannot logically be drawn until after a consideration of the defence of provocation.
Onus of proof
185. Secondly, though he correctly set out the elements of the defence of provocation under Section 303 of the Criminal Code, which if satisfied, can reduce what would otherwise be wilful murder or murder to manslaughter, his Honour failed to put the onus of disproving the existence of at least one of those elements on the prosecution.
186. His Honour correctly referred to the decision of the Supreme Court in Rosa Angitai v The State [1983] PNGLR 185, which spelt out the difference between the partial defence of provocation under Section 303 and the complete defence of provocation under Section 267. The Court explained the three elements of Section 303 defence as:
187. His Honour then proceeded to assess each of those elements but, with respect, disregarded the principle that once an accused puts evidence of self-defence or provocation the onus rests on the prosecution to disprove the defence. The leading case is R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, in which Frost J stated:
As to onus of proof, so far as the defence of self-defence and provocation are concerned, there is no onus on the defence to establish these defences. Once a ground is disclosed by the evidence upon which a plea of self-defence may arise, or provocation, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or the other of all of the ultimate facts which establish those pleas are not present.
188. That principle has been applied in many subsequent National Court cases, including The State v Takip Paine of Dumbal [1976] PNGLR 90; The State v Angela Colis Towavik [1981] PNGLR 140; The State v Misari Warun (1989) N753; The State v Leah Tununto (1990) N947; The State v Leonard Masiap [1997] PNGLR 610; The State v Rose Yapihra (1997) N1741; The State v Michael Nema Melpa (2003) N2450; The State v Matilda Edward (2004) N2726 and The State v Albert Gias (2005) N2812.
189. His Honour, with respect, failed to insist that the prosecution disprove one or more of the elements beyond reasonable doubt.
Sudden provocation
190. Thirdly, the trial judge interpreted the "sudden provocation" element too narrowly. His Honour failed to consider the principle emerging from a number of cases that show that a series of incidents, a history of ill-will or a feud can, if they reach boiling point, be regarded as sudden provocation for the purposes of Section 303. See, eg, R v Manga-Kitai [1967-68] PNGLR 1; R v Borauda Sem (1964) No 311; R v Dogwaingikata Miakawo (1971) No 630. That principle should, with respect, have been given detailed consideration in the present case in view of the fight between Christopher and the deceased on the night of 6 April 2000.
Conclusion re ground 4
191. We uphold ground No 4(b) and find that the trial judge erred in rejecting the defence of provocation.
GROUND NO 5: DID THE TRIAL JUDGE ERR BY FINDING THAT THE APPELLANTS HAD A COMMON INTENTION TO KILL?
192. This ground of appeal is based on the trial judge’s finding that each of the co-accused had evinced their intention to kill the deceased, that the deceased was killed in cold blood and that it did not really matter who stabbed the deceased.
193. The trial judge found that Cosmas was the one who stabbed the deceased, while he was involved in a fist fight with Christopher. He evinced his intention by the force of the stab wound. His Honour found that Christopher evinced his intention by stating on two occasions that he was going to square it up with Ray or send him to the morgue.
194. We consider with respect, that, given the trial judge’s finding that it was Cosmas who stabbed the deceased (even though we consider such a finding was against the weight of the evidence), his Honour should have carefully applied Sections 7, 8 and 9 of the Criminal Code before proceeding to find Christopher guilty.
195. Section 7 (principal offenders) states:
(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
(2) In Subsection (1)(d), the person may be charged with—
(a) committing the offence; or
(b) counselling or procuring its commission.
(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—
(a) guilty of an offence of the same kind; and
(b) liable to the same punishment,
as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.
196. Section 8 (offences committed in prosecution of common purpose) states:
Where—
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.
197. Section 9 (mode of execution immaterial) states:
(1) Where—
(a) a person counsels another to commit an offence; and
(b) an offence is actually committed under that counsel by the person to whom it is given,
it is immaterial whether—
(c) the offence actually committed is the same as that counselled or a different one; or
(d) the offence is committed in the way counselled, or in a different way,
if the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
(2) The person who gave the counsel shall be deemed to have counselled the other person to commit the offence actually committed by him.
Conclusion re ground No 5
198. We uphold ground No 5.
GROUND NO 6: DID THE TRIAL JUDGE BREACH THE FUNDAMENTAL PRINCIPLES OF BURDEN OF PROOF AND PROOF BEYOND REASONABLE DOUBT?
199. The argument is that the trial judge failed to afford the appellants the full protection of the law, as required by Section 37(1) of the Constitution, by failing to insist that the State prove each element of the offence of wilful murder beyond reasonable doubt.
200. The first comment we make is that his Honour appears, at first, to have been fully cognisant of the rights of the accused persons, where the burden of proof rested and what standard of proof was required. After summarising the evidence his Honour made these statements before embarking on an assessment of the evidence:
I remind myself that under our system of criminal justice, the State always has the burden of proving beyond any reasonable doubt, the guilt of an accused person. This is because as the Supreme Court per Pratt J. in John Jaminan v. The State (No 2) [1983] PNGLR 318 at p 323 said:
"At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused."
That was in the context of a belated claim of the defence of alibi. Mr Justice Pratt also expressed the view that the State’s burden to prove beyond any reasonable doubt includes the need to disprove the existence of any defence an accused person may have.
As may be apparent from this, the State has the burden to prove beyond any reasonable doubt its case throughout the whole case. That means in my view that, a trial judge must first be satisfied that the evidence produced by the State does establish a prima facie case against the defendant. If that is done, only then should any evidence called for the defence be considered.
201. We find no error in that statement of principles. However, the submission that his Honour failed to apply those principles has merit, in three areas.
Adoption of the State’s case
202. Having dismissed the defence evidence for various reasons, his Honour proceeded to adopt the State’s case without appropriate scrutiny. This is evident from two passages of the judgment on verdict. The first instance was after applying the rule in Browne v Dunn – which his Honour held was breached, resulting in the conclusion that the appellants’ testimonies were recent inventions – when he stated:
I therefore reject your evidence and proceed on the basis of the State’s evidence. [Emphasis added.]
203. Then, after rejecting the defence evidence for other reasons – lacking logic or common sense and containing many inconsistencies – his Honour stated:
For these reasons, I reject the whole of your evidence and accept that of the prosecution. As a result, I find the charge against you both being established beyond any reasonable doubt. [Emphasis added.]
204. Earlier in the judgment, at the start of assessment of the evidence, his Honour stated that the defence counsel’s cross-examination of the State witnesses failed to create any doubt or hole in the State’s case. No reason, his Honour said, was elicited as to why the State witnesses would come to court and give such a story against the two accused unless that is what happened.
205. This process of reasoning, with respect, amounts to 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. We agree with Mr Narokobi’s submission that the trial judge did not subject the evidence presented by the State to the same level of scrutiny as that to which the defence case was subject. His Honour, in effect, placed the onus on the appellants to prove their innocence.
Defence of provocation
206. This issue was canvassed in ground No 4. We reiterate that the trial judge did not insist that the State disprove any of the elements of provocation, beyond reasonable doubt. With respect, this is a further manifestation of the failure to give the appellants the full protection of the law.
Significance of wilful murder trial
207. We uphold Mr Narokobi’s submission that the trial judge failed to give full regard to the fact that the appellants were charged with wilful murder. This is the most serious offence on the statute books as it carries death as the maximum penalty.
208. In all criminal cases the required standard of proof is beyond reasonable doubt. However there are degrees of proof within that standard. The more serious the charge, the higher the degree of proof required (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), National Court, Wilson J). In a wilful murder trial the court must insist on the highest degree of proof, within the standard of beyond reasonable doubt, that is known to the law (The State v David Yakuye Daniel (2005) N2869). With respect, the court did not do that in this case.
Conclusion re ground No 6
209. We uphold this ground. The appellants were not given the full protection of the law.
SHOULD THE APPEAL AGAINST THE CONVICTIONS BE ALLOWED?
210. We have upheld all or part of each of the six grounds of appeal regarding the conviction of each appellant. We will now consider whether the appeal of each appellant should be allowed in light of the provisions of the Supreme Court Act regulating appeals in criminal cases.
Cosmas Kutau Kitawal
211. The verdict of guilty of wilful murder should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory. Furthermore the judgment of the National Court should be set aside on the ground of wrong decisions on questions of law. A miscarriage of justice has occurred.
212. 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.
213. However, having considered all the evidence before the National Court, we do not think a conviction for murder or manslaughter is warranted in law.
214. 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.
Christopher Kutau
215. The verdict of guilty of wilful murder should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory. Furthermore the judgment of the National Court should be set aside on the ground of wrong decisions on questions of law. A miscarriage of justice has occurred.
216. As in the case of his father Cosmas Kutau Kitawal, this court can enter an alternative verdict of murder or manslaughter against the appellant Christopher Kutau. We propose to do that as we consider that the evidence before the National Court was sufficient to conclude:
217. The elements of the offence of murder were therefore evident subject to the defence of provocation under Section 303 of the Criminal Code. In that regard we consider that there was sufficient evidence before the court, which was not disproved by the prosecution beyond reasonable doubt, that:
218. Therefore the defence of provocation under Section 303 applies.
219. It follows, having regard to Sections 23(1), 23(2) and 27(2)(a) of the Supreme Court Act, that we will substitute, for the verdict of guilty of wilful murder, a verdict of guilty of manslaughter.
220. The sentence of 40 years imprisonment must be set aside. Having regard to all the circumstances of the case we consider that a much lower sentence is required. The sentence we will pass, under Section 27(2)(b) of the Supreme Court Act, in substitution for the sentence passed at the trial, which is proper and warranted in law for the offence of manslaughter, is 14 years imprisonment.
JUDGMENT
221. The Supreme Court directs entry of judgment in the following terms.
In regard to Cosmas Kutau Kitawal:
In regard to Christopher Kutau:
Judgment accordingly.
Narokobi Lawyers: Lawyers for the appellant
Public Prosecutor: Lawyer for the respondent
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