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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA 27 OF 2005
BILLY NARA
Appellant
V
THE STATE
Respondent
Mount Hagen: Kandakasi J, Lenalia J, Cannings J
2007: 26, 28 November
CRIMINAL LAW – circumstantial evidence – test to apply when conviction is dependent on circumstantial evidence
CRIMINAL LAW – principles of law on circumstantial evidence – need to identify and apply the principles of law on circumstantial evidence
The appellant was convicted of murder. He appealed against the conviction and sentence on the basis that he was convicted on hearsay evidence. He also argued that the trial Judge did not properly apply the law on circumstantial evidence.
Held:
Per Kandakasi J and Lenalia J:
(1) Where a case against an accused person is only circumstantial, he must be acquitted unless his guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of proof beyond any reasonable doubt.
(2) No party can put to their opponent's witnesses any case or suggestion they will not follow through and eventually establish in their evidence. A failure to observe these principles ordinarily results in adverse consequences against the offending party.
(3) Where a party calls evidence for which no foundation was laid in cross-examination of his or her opponent's witnesses, such evidence may attract little or no weight at all and therefore loses credibility.
(4) An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened rather than remain silent (per Andrew J in Paulus Pawa v The State).
(5) The law requires a Judge to properly take into account the relevant and applicable law and correctly apply them to the case before him or her. This can be discharged in at least three ways. The first and often utilised and preferable way is to expressly state the relevant and applicable law and its source and then correctly apply them to the case before the Court. The second way could see a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court. The third and final way might see a simple reference to the relevant authority such as the leading authorities on point and its application to the case at hand.
(6) The only basis on which the Supreme Court can interfere with a decision of the National Court is where an appellant demonstrates a clear case of the trial judge falling into a seriously identifiable error which has the effect of vitiating the trial Judge's decision, and the justice of the case warrants correction.
(7) It is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which mere conjunctures are and which party they should favour. At the end of the prosecution case, where there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit.
(8) The inference the trial Judge drew was the only rational and reasonable inference open on the evidence before the trial Judge and now before the Supreme Court, particularly in the absence of any evidence or explanation to the contrary.
Per Cannings J (dissenting):
(9) The trial judge must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.
(10) In the present case the confession was vague and made orally, in an informal setting, for no apparent reason. The proven facts did not lead reasonably to only one conclusion. The trial Judge erred by inferring guilt from the making of a single, vague confessional statement.
(11) The principles about convicting on the basis of circumstantial evidence are precise and exacting: it is necessary not only that the accused's guilt be a rational inference but that it is the only rational inference that the circumstances would enable the court to draw.
(12) There is a reasonable doubt, not merely a lurking doubt, about the guilty verdict (John Beng v The State [1977] PNGLR 115).
By majority (Kandakasi J and Lenalia J; Cannings J dissenting):
(13) The appeal was dismissed.
Cases cited
Papua New Guinea Cases
The following cases are cited in the judgment:
Allan Oa Koroka v The State and Mariano Wani Simon [1988-89] PNGLR 131
Devlyn David v The State SCRA 74/2003, 22.11.04
Garitau & Rosanna Tau v The State (1997) SC528
Ian Setep Napoleon v The State (2000) SC666
Ian Setep Napoleon v The State (2000) SC666
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Michael Tenaram Balbal v The State (2007) SC
Paulus Pawa v The State [1981] PNGLR 498
R v Mon and Debong [1965-1966] PNGLR 42
R v Namiropa Koinbondi [1969-1970] PNGLR 174
Sidi Adevu v MVIT [1994] PNGLR 57
The State v Ben Noel (2002) N2251
The State v Gari Bonu Garitau and Rosanna Bonu [1996] PNGLR 48
The State v Jenny Kebana Peter (2004) N2521
The State v Kevin Anis (2003) N2360
The State v Malepo (No 2) [1996] PNGLR 252
The State v Michael Herman and Albert Paul (2003) N2475
The State v Paul Yepei (No 1) (2004) N2570
The State v Thomas Some (1982) N366(M)
The State v Tom Morris [1981] PNGLR 493
The State v Ungum Ovohe (1980) N245
Wanosa & Ors v The Queen [1971-72] PNGLR 90
William Norris v The State [1979] PNGLR 605
Overseas Cases
Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108
Browne v Dunn (1893) 6 R 67 HL
R v McKay [1935] HCA 70; (1935) 54 CLR 1
R v Sparrow (1973) 57 CR App 352
Counsel
P Kumo, for the appellant
J Waine, for the respondent
28th November, 2007
1 KANDAKASI J: The National Court convicted Billy Nara, the appellant, of the murder of an expatriate man, on purely circumstantial evidence and is now before this Court on appeal. Initially, he grounded his appeal on bias against the learned trial Judge and the evidence against him being hearsay. However, at the hearing of his appeal, the appellant abandoned those grounds and with leave of the Court, claimed that the trial Judge erroneously inferred guilt against him on account of the State failing to call evidence establishing only one killing of an expatriate man on the date, time and placed alleged in the indictment. The State of course, opposes the appellant's arguments and argues for an upholding of the learned trial Judge's decision.
2 I have had the benefit of having read the draft judgments of my learned brothers, Lenalia and Cannings JJ, which correctly outline the background to this appeal, the arguments and issues for determination before us. Having carefully read their Honour's respective draft judgments, I am inclined to agree with Lenalia J for the reasons he gives. I would however express my views in the following way by way of addition to what his Honour says in his judgment.
RELEVANT ISSUES
3 Based on the arguments of the parties, the main issue before us is did the learned trial Judge err in inferring the appellant's guilt in the absence of evidence confirming only one death of an expatriate man on the date and place alleged by the State? This requires a consideration of what evidence was before the trial Court, whether the State established a case against the appellant on the required standard of prove, beyond any reasonable doubt, the appellant's conduct in terms of what answers he provided in the record of interview, cross-examination of the State's witnesses and what evidence if any, he called in his defence that might have raised any serious doubt on the case against him. I turn to a consideration of these issues generally starting with the allegations that was before the National Court followed by the evidence called in support and the Court's treatment and use of the evidence before it.
ALLEGATIONS AGAINST THE APPELLANT
4 In support of the indictment presented against the appellant, the facts which the State put to the appellant and the appellant denied was this. Between 1 and 6 am on 4 October 2002 at Eriku, in Lae the appellant and two other accomplices were dropped of by another person. They then walked to the house of one Patrick Dennis McLean (the deceased) at Section 41, Lot 29. The appellant and his accomplices were armed with a kitchen knife, and cutting implements or tools, which they used to cut open the deceased wire fence and gained entry into his premises and eventually his house. Thereafter, using the kitchen knife, they stabbed the deceased on his left cheek and once on the mid left chest intending to cause the death of the deceased, which result they reached with the deceased dying instantly from the knife wounds. The appellant and his accomplices left the scene in a getaway vehicle driven by another accomplice.
5 On the appellant pleading not guilty to the charge against him, a trial followed. At the trial the State called two key witnesses. One of them was the appellant's then father in-law Mr Giling and the other was his then sister in-law. These witnesses gave evidence in terms of the appellant confessing to them of the murder of a white or expatriate man at Eriku. According to these witnesses, the appellant with two other men from Sepik went to the appellant's then father in-law's house. That was in the afternoon sometime in January 2003. At that time those in the house with the appellant and his friends had dinner and were telling stories. In the course of telling stories, the appellant told them a story of him and two other friends going into an expatriate's house at Eriku and stole his money and killed him. The appellant told the witnesses and others that he got something from the deceased house, dug up a hole and buried it and then went on to tell the witness what else happened. Further, the appellant told the witnesses that when his other two friends get out of prison, they would go to Markham and pick up what they have hidden.
6 When asked in examination in chief, Mr Giling said the appellant appeared normal, not drunk and or angry at the time. Further in examination in chief, when asked as to what motivated the witnesses to come forward and testify against the appellant who was then related to them through marriage, the witnesses said they were telling stories and what the appellant said did with his accomplices was not good and they felt bad. Thus they reported the matter to police. Indeed, Mr Giling was a special police constable and he felt it was his duty to report the matter to police and testify against the appellant.
7 In cross-examination the defence tried to cast some doubt on the credibility of the witnesses by suggesting that they were telling lies and that they were making up a story because they wanted to get rid of the appellant and thereby enable the appellant's then wife who was the witnesses' daughter and sister in-law respectively to leave the appellant and marry another man. The witnesses however maintained their testimonies and evidence in chief.
8 At the end of the State's case, the appellant made a no case submission. The learned trial Judge rejected that submission and found that the appellant had a case to answer. The appellant decided to remain silent and did not go into evidence in his defence. This was consistent with his attitude at the record of interview where he denied the allegations against him. At conclusion of the trial and during submissions, the Court and the parties accepted that the State's case was circumstantial. The learned trial Judge heard arguments from both the prosecution and the defence and decided to accept the State's submission that, evidence before the Court support an inference that the appellant killed the deceased as alleged and that, that was the only rational and reasonable inference open to the Court. The learned trial Judge found that the appellant's confessions to the State witnesses connected him to the commission of the offence. In so finding, the learned trial Judge rejected submissions by the appellant for a rejection of the State's witnesses' testimonies on the basis that they were inconsistent, hearsay and incredible.
9 As I earlier noted the appellant abandoned his appeal based on the trial Judge acting on hearsay evidence and there being no confession made by the appellant. The only ground relied on is the appellant's argument that the inference that was drawn by the learned trial Judge was not safe, particularly when the State did not adduce evidence establishing only one killing in Eriku at the relevant time.
10 Although the appellant did make it a big issue at the trial in relation to the credibility of the State's key witnesses and their testimonies, the same is not pursued in this Court. In my view this is a correct approach given that the appellant did not observe the accepted and established principles in Browne v Dunn,[1] which says that a party must put his case to the opposing party's witnesses during cross-examination and have that followed through with that party's own evidence. Consequently no party can put to their opponent's witnesses any case or suggestion they will not follow through and eventually establish in their evidence. A failure to observe these principles ordinarily results in adverse consequences against the offending party. For instance, where a party calls evidence for which no foundation was laid in cross-examination of his or her opponent's witnesses, such evidence may attract little or no weight at all and therefore loses credibility.[2] In this case it is clear to me that the appellant unfairly attacked the credibility of the prosecution's witnesses and their testimonies, especially when he did not call any evidence to establish the basis or any foundation for the suggestions and or allegations he put to the prosecution's key witnesses.
11 As a follow on from the above position and what is apparent is that, there is no real challenge against the learned trial Judge's acceptance and or finding that, the appellant made the confession to the key State witnesses. What is in issue is, whether the evidence before the Court was sufficient to form the foundation for the inference the learned trial Judge drew and whether or not the learned trial Judge correctly considered and applied the principles governing the treatment of circumstantial evidence.
SUFFICIENCY OF EVIDENCE
12 I firstly, turn to the question of sufficiency of evidence. The evidence before the learned trial Judge was as I earlier noted that the appellant had voluntarily and in a normal state of mind confessed to killing a white or an expatriate man at Eriku. He also confessed to entering his victim's house with two others and stole from the victim some things and buried them. Further, he said, when two of his friends get out of jail, they will go and get what they buried.
13 The appellant's argument is that, that evidence was insufficient. He goes on to argue that, if the State adduced additional evidence in terms of there being no other murder of an expatriate man on the day, time and place the State alleged, it would have been save for the learned trial Judge to infer his guilt. That argument, with respect in my view, ignores the fact that, that was not part of the State's allegation and a relevant and appropriate issue in the trial. At the trial the State amongst others alleged only one death of an expatriate man at Eriku and none other. That is what they were required to establish and they did just that albeit in the form of the circumstantial evidence it produced.
14 It follows therefore that if what the State alleged was not the case, and the appellant wanted a different inference to be drawn from the one the learned trial Judge drew, the duty was on the appellant to call witnesses and adduce the relevant and appropriate evidence. Such evidence should have established in line with his argument that there was more than one killing in Eriku of an expatriate man at about the time and date the State alleged. On the basis of such evidence, it could have been safely argued for the appellant that it was not safe for the trial Judge to draw the kind of inference he drew.
15 The appellant who was represented by a lawyer made a deliberate and informed decision not to call any evidence in his defence and chose to remain silent. Whist that was his Constitutional right to do so and that guilt cannot be automatically inferred from that, he denied himself the right to adduce evidence in his defence and effectively left no basis to rebut the evidence adduced against him[3] especially when the learned trial Judge rejected the appellant's no case submission and found instead that there was a case for him to answer. Not only that, whilst an accused person's right to remain silent is a Constitutional right, it is clearly accepted that "an innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened" rather than remain silent. That statement of law was made by Andrew J (as he then was) in the Supreme Court in Paulus Pawa v The State[4] which was effectively an adoption from the English case of R v Sparrow[5].
16 Given the foregoing the question than is, was the inference the learned trial Judge drew against the appellant reasonably open to him on the evidence before the Court to the exclusion of what was not properly adduced in evidence and placed before him? This requires a consideration of the principles of law relevant to treating circumstantial evidence.
17 As I observed in many other cases before[6], the law on a State case that is based purely on circumstantial evidence is clearly established in our jurisdiction. The Supreme Court in Paulus Pawa v The State,[7] in the words of Andrew J stated the relevant principles by quoting with agreement the words of Miles J in The State v Tom Morris[8] in these terms:
I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117):
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than guilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.
18 What these principles say in simple terms is that where a case against an accused person is only circumstantial, he must be acquitted unless such a person's guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of prove, beyond any reasonable doubt. This means the Court must consider only the evidence properly adduced and presented before the Court and nothing else.
19 These principles have been applied in many Supreme and National Court decisions. A case that comes closer to the present case is the Supreme Court decision in Garitau & Rosanna Tau v The State[9]. In that case, the National Court convicted the defendants of murder applying a logical and commonsense approach and inferred the guilt of the appellants purely on circumstantial evidence, even when there was no evidence directly showing that the defendants had killed the deceased. The Court was of the view that the defendants were in a position to provide a reasonable explanation for the appearance of a badly wounded deceased body in their house, but they did not. They chose to remain silent after having not admitted to anything providing any explanation in their defence in their respective records of interview. On appeal the Supreme Court affirmed the National Court's approach and dismissed the appeal. The Supreme Court referred to and relied on the principles enunciated in Paulus Pawa v The State[10].
20 In the present case, the evidence accepted by the learned trial Judge is not being challenged but accepted by the appellant. That evidence establishes that the appellant voluntarily and without any force or threat confessed to the killing of an expatriate or white man at Eriku after gaining entry to his premises and house forcefully by cutting through his victim's fence with the help of two other persons. The appellant and his accomplices stole some money and stole something from the deceased's house and buried them in the ground. He and his friends will go and get the things they buried when the appellant's two friends get out of jail. As the trial Judge noted, which is not the same as making a finding of fact in the way my brother Cannings J observes in his judgment, there was no evidence before the trial Judge and now before us of more than one killing on the date, time and place the State alleged. Instead as I have earlier noted, there was an allegation of only one killing and the evidence spoke of only one killing of an expatriate man in Eriku. The trial Judge found this connected the appellant to the murder of the deceased and found him guilty. In my view the basis on which the learned trial Judge inferred guilt of the appellant was much more than was the case in Garitau & Rosanna Tau v The State[11]. The appellant was in a position to provide an explanation or at least comment on his alleged confession to the key State witnesses but he did not. Accordingly I am of the view that the inference the learned trial Judge drew was the only rational and reasonable inference open on the evidence before the trial Judge and now before us, particularly in the absence of any evidence or explanation to the contrary.
21 In the circumstances, I find that there is no merit in the appellant's argument. On that basis I would dismiss this part of the appellant's argument.
EXPRESSLY STATING THE RELEVANT PRINCIPLES
22 With this I now turn to the other aspect of the appellant's argument. The argument is that the learned trial Judge was duty bound to expressly state the principles governing the treatment of circumstantial evidence and apply them. I am not aware of any law that requires a Judge to expressly or strictly state the relevant law in relation to a case he or she is dealing with and expressly state that he is applying them to the case before him. I do know however, that the law requires a Judge to properly take into account the relevant and applicable law and correctly apply them to the case before him or her.
23 In my humble view, this placed on a trial Judge or any court for that matter can be discharged in at least three ways. The first and often utilized and preferable way is to expressly state the relevant and applicable law and its source and then correctly apply them to the case before the Court. The second way could see to a mere statement of the relevant principles possibly in a summary form either with or without citing its source and applying them to the case before the Court. The third and final way might see a simple reference to the relevant authority such as the leading case authority or authorities on point and its application to the case at hand. This might be preferable where the principles are well settled and there is not much of a debate on the authority cited. In the case before us the learned trial Judge referred to the leading Supreme Court authority on point.
24 I agree with my brother Lenalia J that by referring to the relevant and applicable case authority on point, the learned trial Judge reminded himself of the relevant and applicable principles governing circumstantial evidence and correctly applied them to the case before him as I have noted already in the foregoing. This must be contrasted with a case in which a judge arrives at a decision without referring at all to any relevant and applicable authority or authorities on point and or not stating in any manner or form the relevant and applicable principles.
25 The principles which the case of Paulus Pawa v The State[12] stands for is well known and well accepted. Although it would be preferable to expressly state the relevant and applicable principle to put matters beyond argument, there is no need to require a trial Judge to repeat and restate that which is obvious in every case. For what matters at the end of it all is how a court arrives at its decision. In our jurisdiction it is not uncommon for a court to arrive at a decision without expressly stating the relevant applicable principles in full together with their source. The Supreme Court has upheld decisions as in the case of Michael Tenaram Balbal v The State[13] where a trial judge arrives at a decision which reflects a correct application of the relevant principles even though the trial judge may have not expressly stated fully the relevant and applicable principles. The Supreme Court is usually very slow to interfering with a trial judge's decision. The only basis on which the Supreme Court can interfere with a decision of the National Court is where an appellant demonstrates a clear case of falling into a seriously identifiable error which has the effect of vitiating the trial Judge's decision and the justice of the case warrants correction[14].
26 In the case now before us, I am not persuaded that the learned trial Judge fell into a serious identifiable error which has the effect of vitiating the learned trial Judge's decision and therefore warrant interference by this Court. Even if he did not fully articulate the relevant and applicable principles or did not refer to the relevant and applicable case authority on point in the way my bother Cannings J puts it, the decision he ultimately arrived at was correct as I have demonstrated under the heading "Sufficiency of Evidence".
27 On the basis of the foregoing I would therefore dismiss this part of the appellant's argument on the basis that there is no merit. This would leave the appellant's appeal with no ground to stand on. Accordingly, I would dismiss the appeal and confirm the National Court decision on verdict and sentence.
28 LENALIA J: The appellant was originally charged for the offence of wilful murder under Section 299 of the Criminal Code. He pleaded not guilty to that charge and he was tried and was convicted for the offence of murder by the National Court in Lae. He was then sentenced to 25 years imprisonment.
29 The notice of appeal contains only one ground of appeal which alleges that the trial Judge erred in law and was biased in accepting the hearsay evidence presented by the State.
30 When the appeal was called during the call-over on Monday 26 of this month Mr Kumo indicated that the appeal was ready to proceed, but he wanted to seek leave to apply to add additional grounds.
31 When the matter was eventually called for hearing Mr Kumo of counsel for the appellant abandoned the only ground of appeal in the notice of appeal and made a verbal application seeking leave of the Court which the Court granted to argue the appeal on the issue of circumstantial nature of the evidence and insufficiency of such evidence adduced on trial.
32 The defence counsel's main arguments are that the trial Judge could not have reasonably reached a rational inference of the guilt of the appellant as there were other inferences that the trial Judge could have drawn from the evidence on trial. Part of his argument relates to the hearsay evidence given by the two State witnesses about the alleged confession or admission by the appellant to a killing of a white man at Eriku in Lae.
33 Counsel argued that no evidence was called to satisfy the trial Judge that the victim in the case for which the appellant was convicted was the only expatriate person who was killed about the time Patrick McLean was killed. He submitted therefore that there was insufficient evidence on which the appellant could have been convicted on.
34 Part of the appellant's counsel's submission is that the whole case was a set up by the relatives of the appellant's wife and that they had a motive to lie because the parents of the appellant's wife wanted her to marry another man. We note, those two witnesses were properly examined and cross-examined on such allegations.
35 For the respondent Mr Waine submitted that though he would concede with the defence counsel that may be the trial Judge did not specifically mention the principle of law on circumstantial evidence, his Honour (trial Judge) considered the principles of law enunciated by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498.
RELEVANT LAW
36 The law on circumstantial evidence had been stated in many cases in this jurisdiction both by the National and Supreme Courts. The issue before us is therefore, whether the trial Judge erred in finding the appellant guilty when there was no evidence directly connecting him to the commission of the offence. This issue can be determined by looking at the evidence that was presented before the National Court and what use the Court was entitled to make out of such evidence.
37 Only two State witnesses were called. The first of them Salus Giling gave short evidence followed by further examination in chief and cross-examination. Salus's evidence is that one day in January 2003, the appellant came to his house in Mumeng and told him that he (the appellant) and his two friends had killed an expatriate man at Eriku in Lae and that they had stolen certain items and dug up a hole and hidden stolen goods. This witness is a policeman and when he heard this he reported the confession to the police in Mumeng and Bulolo.
38 The next witness, Elaing Tatec gave similar evidence which corroborated his father wherein this witness said that one day in the first month of the year 2003, the appellant went up to his parents house at Mumeng government station and told the occupants in the house including him that he and his two friends had killed a white man at Eriku in Lae.
39 The appellant is also supposed to have told him and his parents that when his two friends complete their terms of imprisonment, they will go and dig up whatever stolen goods they had hidden underground somewhere in Markham River or valley.
40 From the above evidence the defence is arguing that the trial Judge finding of guilt was not safe and the appellant's guilt was not the only rational inference that the trial Judge could have reached. I note from the appeal book that the appellant did not give evidence nor did he call any witnesses. The issue is what other inferences could the trial Judge could have reached if there was no other evidence put to him to rebut the State's evidence.
41 The law on circumstantial evidence is clear. In Paulus Pawa v The State (supra), the Supreme Court consisting of Kearney DCJ, Andrew J and Kapi J (as he then was) Andrew J, at p 501 quoted a passage from The State v Tom Morris [1981] PNGLR 493 at p 495 where Miles J quoted the Australian High Court case of Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117, the Court there said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.': Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.
42 The principles governing reception of circumstantial evidence has been stated over and over again. As in the above case the principles enunciated from the practice in common law countries say that where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party they should favour and at the end of the prosecution case, where there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit.
43 The principles stated above have been stated and re-stated or referred to in many cases. Examples of such cases include Allan Oa Koroka v The State and Mariano Wani Simon [1988-89] PNGLR 131, The State v Ben Noel (2002) N2251, The State v Kevin Anis (2003) N2360, The State v Gari Bonu Garitau and Rosanna Bonu [1996] PNGLR 48, The State v Jenny Kebana Peter (2004) N2521, The State v Michael Herman and Albert Paul (2003) N2475.
44 Perhaps a case on point with similar circumstantial evidence was that of Garitau Bonu & Rosanna Bonu v The State (1997) SC528. That was a case of murder resting on circumstantial evidence. There was no evidence linking the appellants to the murder of the deceased. There was however, evidence of the body of the deceased being fatally stabbed and wounded in the appellants' house. There was some evidence of some attempts being made by them to give medical attention to the deceased prior to seeking help from the neighbours.
45 In the record of interview the appellants made no admission either to the police during the course of their arrest or even during the record of interview. When the records of interviews were conducted with the two appellants, they both declined to offer any explanation or say anything and they both declined to give evidence during the trial.
46 There was therefore no explanation from them as to how, when or why the deceased was found in their house and bleeding heavily with stab wounds to his body. The National Court found them guilty and the Supreme Court on appeal confirmed the verdict and conviction.
47 On the issue of the two appellants in that case not giving evidence, the Court said:
In the absence of any explanation from the appellants as to why and how the deceased happened to have ended up in their house and found by them in that condition, it is a common sense reaction for anyone to conclude that the appellants ought to know much more than they are prepared to admit or say. It is a rational inference consistent with logic and common sense. This in our view was a conclusion open to the trial Court on the facts available, and we see no justification in reversing the findings of the trial judge.
48 Further down in the judgment, the Court in the above case quoted from p 504 in Paulus Pawa's case in the following terms:
In our jurisdiction we have in effect the jury's findings of fact and the reasons for those findings. The question then is what may be the tribunal of fact make of an accused's absence from the witness box? The answer lies in common sense. An innocent man charged with a crime or with any conduct reflecting upon his reputation can be expected to refute the allegation as soon as he can by giving his own version of what happened (see R v Sparrow). But again, common sense must dictate in each case as to what weight could be given to an accused's absence from the witness box. I agree with the conclusion of Professor O'Reagan in his article "Adverse Inferences From Failure of An Accused Person To Testify" 1965 Crim L R 711 that:
1 The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testifying.
2 Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters.
3 Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case;
4 The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:
(a) whether the truth is not easily ascertainable by the Crown but probably well known to the accused;
(b) whether the evidence implicating the accused is direct or circumstantial;
(c) whether the accused has before trial given an explanation which the Crown has adduced in evidence.
49 In the circumstances of the appeal before this Court, the appellant did not give any evidence. That being the case the trial Judge came to the conclusion he reached.
50 I note at page 64 of the appeal book where the trial Judge noted:
Applying the law in circumstantial evidence as adopted in the Supreme Court case of Paulus Pawa against The State, I am satisfied beyond reasonable doubt that the voluntary confession by the accused connects him to the killing of Patrick Dennis McLean after midnight on 4 October 2002. I find therefore that in the early hours of 4 October 2002 the accused and his two friends unlawfully entered the premises of Patrick Dennis McLean and killed him.
51 I am of the view that when the trial Judge made the above comments, he was referring to the principles of law on circumstantial evidence adopted and applied in the case of Paulus Pawa v The State and The State v Tom Morris (supra) and all subsequent cases.
52 The reason I say this is because the phrase quoted above ought to be looked at in context of the issues that arose before the trial Judge on trial. To conclude otherwise would be taking the issue out of context of the issue of circumstantial evidence, which issue was before his Honour the trial Judge.
53 It is trite law that the Supreme Court cannot readily disturb a sentence imposed by a trial Judge unless an appellant demonstrates that there was an error or errors on the part of the trial Judge or that the trial Judge acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some silent features of the evidence (Wanosa & Ors v The Queen [1971-72] PNGLR 90).
54 This Court must be satisfied that the learned trial Judge fell into some demonstrable error which should have the effect of vitiating the trial Judge's sentencing discretion (William Norris v The State [1979] PNGLR 605, (see also Ian Setep Napoleon v The State, 18.05.00, SC666 (unreported)).
55 I am satisfied that the trial Judge did not fall into any error when he came to the conclusion he reached. There was no other evidence for the trial Judge to have concluded otherwise than to come to the conclusion that the only inference he could draw was the appellant's guilt.
56 On my part, I find there are no merits in this appeal. I concur with my brother Kandakasi J that, the appeal should be dismissed. The appeal is dismissed.
57 CANNINGS J: The appellant, Billy Nara, is appealing against his conviction for the murder of an Australian man, Patrick Dennis McLean, at Eriku, Lae, on 4 October 2002.
58 The appellant was convicted by Manuhu J after a trial in the National Court in Lae in May 2005 and sentenced to 25 years imprisonment. The conviction was based on a voluntary confession that the appellant was found to have made to his in-laws, three months after the deceased's death, that he and two of his mates had killed a white man at Eriku and taken some things and hidden them at the mouth of the Markham River. The people to whom the appellant made the confession gave evidence and were subject to cross-examination. It was suggested that they had a motive to lie: that they were not happy with the appellant marrying their relative. However, the appellant remained silent and presented no evidence in his defence. The trial Judge accepted the evidence of the two State witnesses and convicted the appellant on the strength of that evidence.
59 There is only one ground of appeal: that the trial Judge erred by convicting the appellant on circumstantial evidence and that ground relies on two arguments:
WAS THERE INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION?
60 Mr Waine, representing the State in this appeal submitted that the confessional evidence was strong and that there had been no failure by the State at the trial to bring vital evidence to prove the appellant's guilt.
61 I, however, have been persuaded by the appellant's counsel, Mr Kumo, to the contrary. The confession was vague. It addressed only three things:
62 The confession did not address:
63 The evidence did not address why the appellant would have made such a confession. The State presented no other evidence to bolster the confessional evidence. It presented no evidence that in the period leading up to the date of the confession (which his Honour concluded was January 2003) there was no white man other than Mr McLean killed in Eriku. The trial Judge addressed this issue by saying:
Does the confession sufficiently connect the accused to the killing of Patrick Dennis McLean? In this regard I take into account that the confession was made three months after the killing. There is no mention of the deceased person by name but there is clear reference to the deceased being a white man. There was also a reference to Eriku which is where Patrick Dennis McLean was killed. I further note that there is no evidence that another white man had been killed at Eriku between October 2002 and January 2003. In any case it is unreasonable to think that the accused was referring to another killing.
64 The appellant's counsel, Mr Kumo, argued that his Honour erred by saying that there was "no evidence that another white man had been killed" in the period and place at which the deceased was killed, as – if I understand the argument correctly – that was an issue of fact on which the State had brought no evidence. I agree with that argument. His Honour was, by saying that there was "no evidence", actually making a finding of fact – that no other white man had been killed in the period and place at which the deceased was killed – when, indeed, no evidence was before the court to support that finding; and that issue of fact had not been conceded by the defence.
65 It was an important finding of fact, relied on by the trial Judge to support his finding that the appellant was confessing to having killed Mr McLean, and it should have been proven by the State bringing evidence to support it. It was not up to the appellant to bring evidence to show that some other white man was killed in the period and the place the deceased was killed. It was up to the State to exclude the possibility that the appellant was confessing to the killing of some other white man at some other time at Eriku.
66 The National Court was left with a vague confession to support the State's case, without any other evidence to support it. The confession was unwritten and unrecorded and this tended to make it unreliable (The State v Thomas Some (1982) N366(M)).
67 There is no rule of law that says a conviction cannot be based on an uncorroborated confession. To put it more directly: a conviction can be based on an uncorroborated confession. That is what the High Court of Australia said in R v McKay [1935] HCA 70; (1935) 54 CLR 1, and it is a principle that has been applied in a number of PNG cases: R v Mon and Debong [1965-1966] PNGLR 42; R v Namiropa Koinbondi [1969-1970] PNGLR 174; The State v Ungum Ovohe (1980) N245; and The State v Malepo (No 2) [1996] PNGLR 252.
68 However, it is equally clear that the trial court must carefully examine the nature and extent of the confession and the circumstances in which it was made to exclude any reasonable doubt that it is a false or unreliable confession.
69 In Koinbondi's case Clarkson J said:
I think it is now clearly established that a court, taking proper safeguards may, even on a charge of wilful murder, act on a confession which is uncorroborated but it will do so only after the closest scrutiny and testing of the confession and only after an examination of the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence.
70 In the present case the confession was vague and made orally, in an informal setting, for no apparent reason. There was no evidence that the appellant was at Eriku at the time or in the period of the deceased's death. There was no evidence that the appellant knew the deceased or had any reason to want to kill him. There was no evidence that the appellant broke into the deceased's house. There was no fingerprint evidence. There was no evidence that anything stolen from the house was found in his possession. No forensic evidence of any description linking the appellant to the crime was admitted into evidence.
71 The circumstantial evidence – which is an apt description of the confessional evidence – was sparse indeed.
72 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:
73 In Devlyn David v The State SCRA 74/2003, 22.11.04 the Supreme Court (Salika J, Cannings J, Gabi J) suggested that those principles mean that in any case substantially dependent on circumstantial evidence the question to be asked is:
74 In the present case, the proven facts implicating the appellant consisted only of his making a vague confession. There are other reasonable hypotheses that are not consistent with guilt. The appellant might have been big-mouthing himself, making a confession to scare his in-laws, with whom, the evidence suggests, he had been arguing. The appellant might have been confessing to some other killing. Those are other rational inferences that could have been drawn. The proven facts did not lead reasonably to only one conclusion.
75 I therefore conclude, with respect, that the trial Judge erred in law in the manner in which he inferred guilt from the making of a single, vague confessional statement.
DID THE TRIAL JUDGE FAIL TO SET OUT AND ADDRESS HIS MIND TO THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE?
76 I set out above the well established principles about convicting accused persons on the basis of circumstantial evidence. The question raised by this part of the appeal is whether the trial Judge adequately set out and addressed his mind to those principles.
77 After posing the question, in the passage quoted earlier, whether the appellant's confession sufficiently connected the appellant to the killing of Mr McLean, his Honour concluded, in the next paragraph:
After applying the law on circumstantial evidence as adopted by the Supreme Court in the case of Paulus Pawa v The State I am satisfied beyond reasonable doubt that the voluntary confession by the accused connects him to the killing of Patrick Dennis McLean after midnight on 4 October 2002. I find therefore that in the early hours of 4 October 2002 the accused and two of his friends unlawfully entered the premises of Patrick Dennis McLean and killed him.
78 With respect, I do not think that this was a correct or adequate statement of the law on circumstantial evidence. The principles about convicting on the basis of circumstantial evidence are precise and exacting: it is necessary not only that the accused's guilt be a rational inference but that it is the only rational inference that the circumstances would enable the court to draw. In the present case, the way in which the learned trial Judge set out the principles had the effect that the court had only to be satisfied beyond reasonable doubt that the proven evidence "connects" the accused to the offence.
79 It is arguable that by referring to the leading case of Paulus Pawa his Honour was indicating that he was aware of and was applying the principles developed in that case. However, I respectfully consider that it was not sufficient to allude to a case and not to say what the case stood for and not to apply the principles emerging from it. The trial Judge did not produce a written judgment, so what his Honour said in court in handing down the verdict remains the full reasons for decision.
80 The principles of the Paulus Pawa case were addressed by the prosecutor in his closing submission but his Honour did not refer to that aspect of the prosecutor's submission. It was therefore incumbent on the trial Judge to carefully articulate the relevant principles and to explain that he had applied them and reached the conclusion that the proven facts were inconsistent with any reasonable hypothesis other than guilt, the guilt of the accused was the only reasonable inference that could be drawn or that the proven facts led reasonably to only one conclusion: guilt.
81 I conclude, with respect, that the trial Judge erred in law by not setting out and addressing his mind to the principles about convicting on the basis of circumstantial evidence.
SHOULD THE APPEAL BE ALLOWED?
82 Both arguments in support of the ground of appeal have merit and I 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). I have considered all the circumstances of the case and focussed on the aggregate effect of what I respectfully consider to have been the trial Judge's errors.
83 The verdict of guilty of murder should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory. I consider that a miscarriage of justice has occurred.
84 Having regard to Sections 23(1), 23(2) and 27(2)(a) of the Supreme Court Act I would allow the appeal. I do not consider that the miscarriage of justice could be more adequately remedied by an order for a new trial. I would quash the conviction and direct that a verdict of not guilty be entered under Section 23(3) of the Supreme Court Act.
ORDER
85 The formal order of the Court by majority (Kandakasi J and Lenalia J, Cannings J dissenting) is that:
(1) The appeal is dismissed.
(2) The conviction and sentence of the National Court are affirmed.
__________________________________________________________
Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent
[1] (1893) 6 R 67 (HL).
[2] see Sidi Adevu v MVIT [1994] PNGLR 57 for example of an authority on point.
[3] See John Jaminan v. The State (N0.2) [1983] PNGLR 318 for a statement of the relevant principles in the context of a belated claim of an alibi.
[4] [1981] PNGLR 498 at p 504.
[5] (1973) 57 CR App 352.
[6] See for example The State v Paul Yepei (No 1) (2004) N2570.
[7] Supra note 4 at p.501.
[8] [1981] PNGLR 493 at p 495.
[9] (1997) SC528.
[10] Supra note 4.
[11] Supra note 9.
[12] Supra note 4.
[13] (2007) SC .
[14] See William Norris v. The State [1979] PNGLR 605 and Ian Setep Napoleon v. The State (2000) SC 666.
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