Towingo v State [2008] PGSC 47; SC983 (3 October 2008)

SC983

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 29 OF 2005

BETWEEN:

PATRICK TOWINGO,
JEFFERY NEGMA, &
BENSON GAMBOKOLI
Appellants

AND

THE STATE
Respondent

Mt. Hagen: Kandakasi, Manuhu and Yagi, JJ.
2008: 30th September
: 03rd October

CRIMINAL LAW - PRACTICE & PROCEDURE – Where identification is an issue – Trial judge under an obligation to remind and warn him/herself of the dangers inherent in identification evidence – Failure to consider and apply relevant principles – Effect of – Identification unsafe – Effect of – Conviction unsafe.

CRIMINAL LAW - PRACTICE & PROCEDURE – Functions of trial judges – Duty in trial judge to provide reasons for decision – Trial judge failing to provide reasons for accepting prosecution witnesses as truthful witnesses and ignoring serious inconsistencies in prosecution evidence – Consequence of – Decision arrived at without good reason.

CRIMINAL LAW – Particular offence - Willful murder – Essential elements of – Onus on prosecution to establish each of the essential elements of the offence – State failing to properly establish identity of offender – Alleged motive not properly established and not sufficiently strong to cause alleged offenders to committed the offence - Trial judge failing to consider serious inconsistencies in prosecution’s evidence – Trial judge accepting prosecution evidence as truthful without providing reasons for decision - Effect of – State failing to establish charge beyond reasonable doubt - Conviction unsafe – Conviction quashed – s 209 Criminal Code..

EVIDENCE – Serious inconsistencies in prosecution’s evidence –Trial judge failing to consider and or failing to provide reasons for effectively ignoring inconsistencies in prosecution’s evidence - Prosecution witnesses failing to specify the conduct of each offender - Evidence against accused vague and too general - Effect of – Evidence unreliable.

Cases Cited:

Devlyn David v. The State (2006) SC881.
The State v. Ben Simakot Simbu (No 1) (2004) N2573.
The State v. Thomas Sange, &3 Ors (2005) N2805.
Jimmy Ono v. The State (2002) SC698.
Ombudsman Commission v. Peter Yama (2004) SC747.
In the Matter of Benson Gegeyo, Margaret Misso, Brian Bell and Sir Ravu Henao v. The Minister for Lands and Physical Planning [1987] PNGLR 331.
Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404.
Niggints v. Tokam [1993] PNGLR 66.
Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub–Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (2004) N2533.
Kelly Yawip v. Commission of Police and The State [1995] PNGLR 93.

Counsels:

Jeffery Negma, for himself and other Appellants.
R. Auka, for the Respondent.

3 October, 2008

1. BY THE COURT: The National Court convicted Patrick Towingo, Jeffery Negma and Benson Gambokoli who are former Appellants for willfully murdering a child, Albert Geri, during the early hours of 15th September 2005, allegedly with the use of a gun to shoot and later throw him into a burning house which they set on fire. At the time of the commission of the offence, the Appellants were members of the Royal Papua New Guinea Police Constabulary. They carried out investigations and eventually arrested three men for the murder of another person who was also a former police officer.
   
2. The State alleged and the National Court accepted that, the Appellants’ motive for committing the offence was because of the failure to compensate the Appellants for allegedly using unspecified bad language against them by a pastor, James Geri, the deceased father, and had the necessary intention to kill the deceased. In so doing, the National Court decided to accept the prosecution’s witnesses as truthful witnesses despite inconsistencies in their testimonies and without providing any reasons for that decision. Further, the National Court arrived at that decision without the learned trial judge reminding himself of the dangers inherent in identification evidence and applying the relevant principles. In the circumstances, the Appellants argued that their conviction is unsafe by reason of which, they argue that, their conviction should be set aside. On the other hand, the State argues that the conviction is safe and that this Court should not disturb it.
   
3. On what is before us, it is clear that the main issue is whether the conviction of the Appellants is safe and should not be disturbed. In order to determine that issue, it will be necessary to determine the following subsidiary issues:
   
   1. Did the State establish on the required standard of proof, the Appellants motive for willfully murdering the deceased?
      
   2. If the answer to question 1 is ‘yes’, was that motive strong enough to cause the former to kill the deceased?
      
   3. What is the effect of the learned trail judge’s failure to consider and apply the relevant principles governing the treatment of identification evidence?
      
   4. Was the learned trial judge obliged to provide reasons for accepting the State’s witnesses as truthful witnesses and effectively choosing to ignore inconsistencies in the State’s witnesses’ testimonies?
      
   5. If the answer to question 4 is ‘yes’ then, what is the consequence of the learned trial judge’s failure?
      
4. These issues arise in the context of the State having the overall obligation to establish a charge against an accused on the required standard of proof, which is, prove beyond any reasonable doubt in criminal cases. This, the State must do in respect of all of the essential elements of the offence with which it has charged an accused. It would therefore, be appropriate for us to consider the issues raised by reference to the essential elements the State was obliged to establish beyond any reasonable doubt against the Appellants.
   
5. So what are the essential elements that the State was required to establish against the Appellants. The State charged the Appellants with wilful murder under s 299 of the Criminal Code. Subsection (1) of that provision creates the offence in the following terms:
   

"299. Wilful murder.

(1) ... a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder."

6. As has been made clear by a number of decisions of both the Supreme and National Courts,[1] the following are the essential elements of the offence of wilful murder:
   
   • (1) A person who:
     
   • (2) Unlawfully kills;
     
   • (3) Another person; and
     
   • (4) With intent to cause his (deceased) death or that of some other person.
     
7. The first and third elements require an identification of both the offender and the person against whom the offender committed the offence. The second and fourth elements concern a person’s reason or the motivation for the commission of the offence and how that motivation is carried out or translated into action.
   

Identification of the Appellants as offenders

8. Considering first the issue of identification of the accused as well as the deceased, we note that, there is no issue as to the identity of the deceased, namely Albert Geri a 12 year old child. We also note that, there is no issue that the Appellants were at the scene of the alleged offence. Further, there is no dispute that, the incident took place sometime well after 12:00 midnight and so the place was dark. However, the issue of whether the Appellants where the persons who killed the deceased by shooting him with a gun and later setting fire to three houses and throwing the deceased body into the fire was an issue seriously contested.
   
9. We remind ourselves that, the law in relation to the issue of identification is well settled in our jurisdiction. A recent statement of the law is in the judgment of this Court in Jimmy Ono v. The State,[2] in the following terms:
   

"The law on identification evidence is settled. The often-cited authorities are the judgments of this Court in John Beng v. The State [1977] PNGLR 115. Just recently Kandakasi, J summarized those principles in an easy to follow manner in The State v. Marety Ame Gaidi (...01/08/02) N2256, in these terms at page 5 to 6 of the judgement:

1. ‘It has been long recognised that, there are dangers inherent in eye-witness identification evidence;
   
2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
   
   1. a convincing witness may be mistaken; or
      
   2. a number of witnesses could be mistaken;
      
3. Provided such a warning is given, no particular form of word need be used;
   
4. There should be a specific direction to closely examine the circumstances in which the identification was made;
   
5. Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;
   
6. All these go to the quality of evidence – if the quality of evidence is good, the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
   
7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
   
8. There should be an acquittal if the quality of the evidence is bad".
   
10. On behalf of the State, Mr. Auka argued that, on the evidence before the learned trial judge, he was entitled to find that the Appellants were properly and sufficiently identified as Albert Geri’s murderers. At the same time however, Counsel for the State, correctly acknowledged that, the learned trial judge did not have any regard to any of these principles in any manner or form.
    
11. With respect, we note that, the learned trial judge failed to give any consideration to a number of important factors. First, the learned trial judge failed to give any consideration at all to the fact that, the incident took place in the dark and the only light at the relevant time of the State’s eye witnesses’ purported identification of the Appellants as the offenders was from a motor vehicle’s light shining into the house in which the State’s key witness was and was looking out from. In other words, the key State’s witnesses’ identification of the Appellants was against the direction of a light shining in. Secondly, although identification was by recognition, there was no clear evidence of any prior dealings or contacts between the Appellants and key State witnesses. Thirdly, the State’s key witnesses, Elizabeth Stan, the only person who was able to identify the Appellants as the murderers, did not give any clear evidence of being in a much better position to properly see and identify what each of the Appellants did, in relation to them allegedly shooting at the deceased, setting fire to the houses and throwing the deceased into one of the burning houses.
    
12. Additionally, the learned trial judge did not give any consideration to serious inconsistencies in the testimonies of two of the State’s key witnesses, namely Elizabeth Stan and Michael Luke Wai in two respects. First, Elizabeth who testified of being in the same house in which the deceased was said, Pastor Geri and his wife had left the house long before the Appellants came and kicked open the door she was in and then open-fired. However, Michael testified to seeing Mrs. Geri coming out of the house after the police had kicked open the door as opposed to being already out of the house. Secondly, Elizabeth testified to her being the last person to get out of the house but Michael said Elizabeth was the first to run out of the house. If these two witnesses were talking about the same incident why are there these inconsistencies? What is or are the explanations for these inconsistencies and are they reasonable?
    
13. There is nothing in the judgment which shows that the learned trial judge was cognizant of the long recognized dangers inherent in eye-witnesses’ identification evidence. As a matter of law, the learned trial judge was under a duty to warn himself of the special need for caution before convicting in reliance on the correctness of the identification evidence. This was necessary because, the witnesses though convincing and might have made their identifications by recognition, they might have been mistaken even in the identification of known persons, including close relatives and friends. Therefore, His Honour was under an obligation to closely examine the circumstances in which the witnesses made the identification. This required an examination of the quality of the evidence by closely examining the circumstances in which the identification was said to have been made. If on proper consideration, the learned trial judge found the quality of the evidence was good, the identification would have been reliable. If however, the learned trial judge found the quality of evidence was bad, the identification would have been bad. The learned trial judge with respect failed to do any of these. At the same time, the learned trial judge did not provide any reason for being satisfied on the issue of identification against the Appellants, apart from only saying, he found the State’s witnesses as truthful witnesses and telling the truth. But what made His Honour to come to that conclusion, he did not say.
    
14. Further, we note that, the learned trial judge with respect, failed to have any regard to the fact that, there were serious inconsistencies in the evidence called against the Appellants. He does not say if any reasons or explanations were advanced for the inconsistencies? If any reasons or explanations were advanced, His Honour does not state that and how he found those reasonable and convincing to the point that the inconsistencies were rendered insignificant.
    
15. It is settled law that, every decision maker is obliged to provide reasons for his or her decision in a democratic society such as ours. A failure to provide reasons forms the foundation for the conclusion that, the decision maker had no good reason for his decision by reason of which, the decision in question should be set aside or quashed.[3] In the present case, as we noted earlier, the learned trial judge provided no reason for effectively finding that the Appellants were properly identified as Albert Geri’s murderers, without properly considering and applying the principles governing the treatment of identification evidence and in the face of serious inconsistencies that were not properly explained and accounted for.
    
16. As far has we are able to ascertain, there was a serious danger of the witnesses being mistaken in their purported identification of the Appellants as Albert Geri’s murderers. This was particularly so in view of the learned trial judge failing to give any consideration to the matters we have outlined above. In the circumstances, we are of the view that, it was unsafe for the learned trial judge to proceed to convict the Appellants. We would thus uphold their appeal against their conviction and quash it on this ground alone.
    

Was compensation sufficient motive?

17. However, we note that, there are other reasons for upholding the appeal. The first is the issue of the Appellants’ motive for killing Albert Geri. The State argues through its lawyer, Mr. Auka that, the Appellants’ motive for killing Albert Geri was their demand for compensation from Pastor James Geri, Albert’s father, saying some bad words against them. In so arguing Mr. Auka correctly notes and accepts that:
    
    1. there is a total lack of detail in relation to what exactly were the bad words James uttered;
       
    2. to whom did James utter the unspecified words;
       
    3. where and when did James say the unspecified bad words;
       
    4. there is no evidence of the Appellants making their demands any time prior to the night of the alleged murder; and
       
    5. the first time the issue of compensation came was when, someone traveling with the police in a police vehicle asked one of the State’s witnesses, Ruth Kuk, to tell James that they would go to see James for their compensation.
       
18. Our careful examination and consideration of the evidence that was adduced before the trial judge, reveals no evidence directly pointing to any of the Appellants asking Rose Kuk to tell James that they would go to him for compensation. This was only an assumption of one of the State witnesses, Mr. Joseph Kesan, who had only heard words to that effect from someone in the police vehicle. From both Mr. Kesan and Elizabeth’s evidence, it is clear that a civilian Kunumb Apa was with the Appellants when the Appellants’ allegedly went about committing the offences of killing and setting the houses on fire. Hence, it is possible that the civilian might have said something about compensation.
    
19. Assuming for the moment that the Appellants did make a demand for compensation, the next most obvious question is, what was it that caused the Appellants to demand compensation and failing any compensation, go heavily armed, take their time, break into Pastor James Geri’s house, shoot indiscriminately and kill the deceased, burn down three houses and throw the deceased into the burning house, see the houses burn down into ashes in full view and witness of a civilian and other witnesses in the village? Just what was the issue between the Appellants and James that could have given rise to such alleged actions of the Appellants? It is generally most unusual for people to just simply loss their senses and take the law into their own hands and go about committing serious offences like, wilful murder and arson, with trivial or no apparent reason. Only a few people that are mentally affected might get into such behavior but not necessarily in unison or in association with others. The State was under an obligation to have these questions answered by appropriate evidence, but it failed to adduce any such evidence.
    
20. Further, we note that, where there is some intention to commit an offence and some pre-planning is involved, there is usually care exercised to ensure there are no witnesses. In this case, the Appellants were no ordinary men. They were experienced Appellants. If they were going to commit the offences as alleged, they could have disguised themselves, and have done a quick job and fled from the scene as quickly as possible. The evidence called by the State gives a different impression. They did not take any precautions to avoid being caught. They did not disguise themselves, took a civilian along with them, who seemed to have had no part to play in the commission of the various offences, spoke to people at the scene, took much more time than necessary at the scene of the crime to commit the offences and in so doing, exposed themselves to the risk of being identified and even being killed in retaliation. This simply does not sound right and does not fit in well with any sense of logic and commonsense from the point of view of an offender and other ordinary thinking people.
    
21. In carefully considering all of the above, we are unable to tell what was it that caused the Appellants to demand compensation and that they in fact demanded compensation. Similarly, we have great difficulty in finding that a failure to receive compensation was the motivation for the Appellants to go about committing the murder and the other offences, in the way the State’s witnesses claimed the Appellants committed. In the circumstances, we are of the view that, the learned trial judge could not have and certainly we cannot be satisfied beyond any reasonable doubt that, compensation was the motive for killing the deceased. Accordingly, we find that the learned trial judge erred in making such a finding and we would set that finding aside.
    

Did the Appellants have the intention to kill?

22. What we have just said leads us into the remaining issue of intention to kill the deceased or another person. The State argues that, the Appellants displayed their intention to kill the deceased when they initially shot at him and later had him thrown into the burning houses.
    
23. This argument with respect overlooks the fact that, the State’s witnesses, testified to the Appellants shooting indiscriminately and not necessarily directly at the deceased or anyone in particular. There is no direct evidence that the deceased was shot at and he sustained a gun shot wound. However, the State has submitted with the support of its witnesses claims that, the deceased possibly sustained a gun shot wound and fell down and remained motionless. On this evidence, it is clear that the deceased was dead before his body was thrown into the fire. The medical evidence, which the State adduced in support of the charge, does not support the State or its witnesses’ claims and suggestions that the deceased sustained a gun shot wound. So what caused him to fall and remain motionless before being thrown into the fire? The State has failed to have that question satisfactorily answered. On these facts, no intention to kill the deceased or any other person could be inferred. If at all, it could be a case of careless discharge of a firearm resulting in the death of the deceased. That is certainly not wilful murder but possibly manslaughter.
    
24. Taking into account our view that the State failed to establish beyond any reasonable doubt, the Appellants had a good motive to kill the deceased or any other person and what we have just observed, we are of the view that, the State failed to establish beyond any reasonable doubt that, the Appellants did have the necessary intention to kill the deceased or any other person. This renders the conviction unsafe.
    
25. In summary, we answer each of the questions raised in these proceedings as follows:
    

(1) Question: Did the State establish on the required standard of prove, the Appellants’ motive for willfully murdering the deceased?

Answer: No

(2) Question: If the answer to question 1 is ‘yes’, was that motive strong enough to cause the Appellants to kill the deceased?

Answer: Answer not required in view of the answer to Question (1).

(3) Question: What is the effect of the learned trial judge’s failure to consider and apply the relevant principles governing the treatment of identification evidence?

Answer: Identification of the Appellants as offenders has not been properly made out and as such, it is unsafe to allow their conviction to stand.

(4) Question: Was the learned trial judge obliged to provide reasons for accepting the State’s witnesses as truthful witnesses and effectively choosing to ignore inconsistencies in the State’s witnesses’ testimonies?

Answer: Yes

(5) Question: If the answer to question 4 is ‘yes’ then, what is the effect of the learned trial judge’s failure?

Answer: The learned trial judge did not have any good reason to arrive at his decision. Hence, the conviction of the Appellants is unsafe.

26. On the basis of the foregoing answers, we make the following orders:
    
    • (1) The Appeal is upheld.
      
    • (2) The Convictions and sentences of the Appellants are quashed.
      
    • (3) The charge of wilful murder against the Appellants is dismissed and the Appellants are acquitted forthwith of that charge.
      

___________________________________________________________
Jeffery Negama: For and on behalf of himself and the other Appellants
Public Prosecutor: Lawyers for the Respondent.

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^[1] See for example Devlyn David v. The State (2006) SC881; The State v. Ben Simakot Simbu (No 1) (2004) N2573 and The State v. Thomas Sange, &3 Ors (2005) N2805.
^[2] (2002) SC698.
^[3] See for example, Ombudsman Commission v. Peter Yama (2004) SC747; In the Matter of Benson Gegeyo, Margaret Misso, Brian Bell and Sir Ravu Henao v. The Minister for Lands and Physical Planning [1987] PNGLR 331; Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404; Niggints v Tokam [1993] PNGLR 66; Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub–Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (2004) N2533 and Kelly Yawip v. Commission of Police and The State [1995] PNGLR 93.