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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA 61, 62 & 63 of 2002
BETWEEN:
DENDEN TOM, DANIEL WILSON & SAMUEL TOM
Appellants
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
Waigani: Salika, DCJ, Kandakasi and Gabi, JJ.
2008: 28th February
01st May
CRIMINAL LAW – PRACTICE & PROCEDURE – Application to visit scene – Trial judge has discretion to decide whether visiting the scene is necessary and desirable – Party applying for visit of scene must make out a case for it – If evidence before the court is sufficiently clear no need to visit scene – Criminal Code s.574
CRIMINAL LAW – Appeal against conviction - Particular offence – Willful murder - No direct evidence of accused causing deceased death—Strong and credible circumstantial evidence suggesting accused involvement and killing of deceased - Accused raising alibi belatedly – Trial judge rejecting alibi evidence – Effect of - No error or omission of trial judge identified – Conviction safe – Appeal dismissed
EVIDENCE - Circumstantial evidence - Principles governing - Accused identified as a known person – Accused identified with weapons used to kill the deceased – Source of evidence credible safe to act on circumstantial evidence.
JUDGES – Disqualification of – Serious matter to ask for a judge to disqualify – There must be good factual and legal basis to disqualify a judge – Seeking disqualification for being in charge of organization prior to become judge no reason to disqualify a judge unless judge actually involved in dealing with the case in subsequently going before him.
Cases Cited:
Papua New Guinean Cases
Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes (02/02/07) SC853.
PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998) SC592.
An Application by Herman Joseph Leah (2006) SC855.
Peter Yama & Ors v. Bank South Pacific & Ors (2008) SC921.
Gobe Hongu v. National Executive Council & Ors (1999) N1964.
Hitron Pty Ltd v. PNG Telecommunication Authority [2000] PNGLR 357.
Coecon Ltd v. National Fisheries Authority of PNG (2002) N2182.
Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor (2003) N2369.
The State v. Puli A'aron (2003) N243.
Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (29/08/03) N2455.
John Peng v. The State [1982] PNGLR 331.
Michael Tenaram Balbal v. The State (22/02/07) SC860.
Paulus Pawa v. The State [1981] PNGLR 498.
The State v. Tom Morris [1981] PNGLR 493.
Garitau Bonu & Rosanna Bonu v. The State (1997) SC528.
The State v. Tony Hahuahori (2002) N2185.
John Jaminan v. The State (No 2) [1983] PNGLR 318.
Regina v. Joseph Kure [1965-66] PNGLR 161.
The State v. Emmanuel Bais and Felix Fimberi (11/06/03) N2416.
The State v. David Yakuye Daniel (15/07/05) N2869.
Norris v. The State [1979] PNGLR 605
Simon Kama v. The State (01/04/04) SC740.
Ure Hane v. The State [1984] PNGLR 105.
Gimble v. The State [1998-99] PNGLR 271.
Steven Loke Ume & Ors v. The State (19/05/06) SC836.
The State v. Baupo & Fabian Girida (1989) N795.
The State v. Tony Pandua Huahahori (No, 2) (21/02/02) N2186.
The State v. Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (11/12/02) N2312.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (01/04/04) SC741.
The State v. Thomas Waim [1995] PNGLR 187.
The State v. Kevin Anis & Martin Ningigan (07/04/03) N2360.
Overseas Cases Cited:
Browne v Dunn (1893) 6 R 67 (HL)
Counsel:
C. Narokobi, for the Appellants.
P. Kaluwin, for the Respondent.
01st May, 2008
1. BY THE COURT: Denden Tom, Daniel Wilson and Samuel Tom are appealing against the decision of Mogish J., in the National Court. His Honour found the appellants guilty after a trial and sentenced each of them to life imprisonment on a charge of murder in the course of committing an armed gang robbery. They rely on 7 grounds for their appeal. These are; (1) the National Court did not consider their evidence which included their alibi evidence; (2) their conviction is unsafe because the National Court relied on unreliable circumstantial evidence that did not support an inference only of their guilt; (3) because the deceased died of a single gun shot wound, only one of them could have been convicted of willful murder; (4) the State did not establish the element of intention to kill; (5) the trial judge did not visit the scene of the crime; (6) the trial judge should have disqualified since he was the Public Prosecutor prior to his appointment as a Judge; and finally, (7), the sentence of life imprisonment was excessive given their youthfulness and the particular circumstances of the case. The State argues strongly for a dismissal of the appeal because each of the grounds of appeal is without merit.
2. Given the arguments of the parties, the issues for us to determine are these:
(1) Did the learned trial judge fail to take into account the appellants' evidence which included their alibi evidence?
(2) Was guilt of the appellants the only inference to be drawn from the circumstantial evidence relied on by the trial judge?
(3) Was the evidence the trial judge relied upon to convict the appellants credible?
(4) Was the lack of evidence identifying the person who pulled the trigger of the gun that shot the deceased critical?
(5) Did the State fail to establish the element of intention to kill?
(6) Did the trial judge fall into any identifiable error when he decided against visiting the scene of the offence?
(7) Did the fact of being the Public Prosecutor prior to his appointment as a Judge required the learned trial judge's disqualification?
(8) Given the appellants' youthfulness and particular circumstances of the case, is the sentence of life imprisonment excessive?
Did the fact of being the Public Prosecutor prior to his appointment as a Judge required the learned trial judge's his disqualification?
"A careful perusal of what transpired in the Court below shows that the issues raised by these claims were not fairly raised and put before the trial Judge. They are therefore, raised for the first time before this Court, which BCL is not entitled to do. The reason for this is simple; an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below. An appellate court does not and can not sit as a court of original jurisdiction. Further, there is always the need for finality in litigation. Additionally, fairness to a trial judge and the parties themselves, the need for proper and timely management and disposition of cases and the need to minimize costs of litigation to the parties and the Court, demands that an appellate Court should not hear and determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the Court very exceptional circumstances such as want of jurisdiction."
"the test applied in determining whether apprehension of bias was satisfied was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion."
"1) For a judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is: would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?
2) The suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds.
3) General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.
4) If the Judge's knowledge of the subject matter of legal proceedings is contended to be the basis for a suspicion or apprehension of bias there must be a real connection between the Judges knowledge and the issues for adjudication in those proceeding, eg if the Judge has expressed a prior opinion on the issue in adjudication."
"1) Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause...;
2) Judges should resist from being driven from their Courts by the conduct or assertion of parties..;
3) A judge may disqualify himself in circumstances where a fair minded lay observer, with knowledge of the material facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue...;
4) A judge should disqualify himself by reason of apprehension of bias, under one or more of the following principles, where it is demonstrated that, firstly, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Secondly, by his conduct including published statements, whether such conduct is in the course of, or outside the proceedings. Thirdly, where the Judge, through association or relationship, either by himself, his spouse or children, has a direct pecuniary interest in the case and finally, disqualification by extraneous information, where the Judge had presided over an earlier case or he has had some knowledge of prejudicial and inadmissible facts...;
5) It is of fundamental importance in the administration of justice that litigants and the general public have full confidence in the integrity, including the impartiality and the Constitutional independence of the judiciary is not interfered with...;
6) The test of an objective observer established by the Supreme Court in PNG Pipes Ltd & Anor v. Mujo Sefa & Ors should also include 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association."
11. Many subsequent decisions as in the case of Hitron Pty Ltd v. PNG Telecommunication Authority,[6] Coecon Ltd v. National Fisheries Authority of PNG,[7] Bank of Papua New Guinea & Anor v. Marshall Cooke QC & Anor,[8] The State v. Puli A'aron[9] and Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea [10] adopted and applied these principles.
12. It should follow reasonably therefore that, where an application is made without any proper factual and or legal foundation would amount to scandalizing the Court. This, in our view, imposes a duty on a party's legal counsel to properly screen and assess the basis before advancing his or her client's application for a judge's disqualification. Indeed, s. 15 of the Professional Conduct Rules imposes a number of duties upon lawyers in matters before a Court. In particular, subsection 10 provides that:
"In all cases, it is the duty of a lawyer—
(a) to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are an abuse of a lawyer's function; and
(b) to exercise his own judgement both as to the substance and the form of the questions put or statements made.'"
13. In this case, counsel for the appellants is a senior lawyer. He was thus in a better position to appreciate the above principles. However, on what is before us, it is clear that counsel failed in his duty as an officer of the Court and hence breached the professional duties and responsibilities reposed in him. He failed to initially raise the issue before the trial judge and eventually raised the issue before us without appreciating the fact that, the issue was not in fairness, raised with the trial judge. Further, counsel failed to place before both the Court below and now before us, any factual and legal basis for raising the issue. In the circumstances, we find that the learned trial judge was not required to disqualify. Accordingly, we would dismiss appeal ground A (viii) for being scandalous and without any merit.
Did the trial judge fall into any identifiable error when he decided against visiting the scene of the offence?
14. We now turn to the issue of failure to visit the scene, which is appeal ground A (iii) (i). It is clear that, at the end of the State's evidence, it applied for a visit of the scene, which the defence supported. The Court deferred a decision on the application until the end of the defence case. At the end of the defence case, the defence made the application again.
15. According to the transcript, it is clear that the trial judge took into account the relevant statutory provision concerning the application before him. That is s. 574 of the Criminal Code. This provision, vests discretion in a trial judge to view the scene of a crime, if the trial judge forms the view that a visit of the scene is necessary and or desirable. Usually, scenes are visited in appropriate cases for the Court to get a better understanding and appreciation of the evidence already before him or her, particularly in relation to the physical settings of the place at which an alleged offence may have been committed. Where on the evidence before a trial judge, it is easy to understand the evidence and come to a decision, visiting a scene would serve no useful purpose and amount to unnecessary costs. Hence, discretion is in a trial judge to decide when to and when not to view the scene of a crime. Therefore, there is no obligation on a trial judge to view the scene of a crime. It should thus follow that, unless the court in its own discretion decides to view the scene, a party who wants the Court to view the scene of a crime must make out a case for it.
16. In this case, the trial judge decided that the evidence before him was sufficient and that he could act on it. Therefore, he ruled that, it was not desirable to take a visit of the scene. Accordingly, he declined the application for a visit of the scene. Apart from pointing out that the trial judge made a decision against visiting the scene of the crime, the appellants have not demonstrated that, the trial judge erroneously arrived at his decision and that in doing so, justice miscarried. The appellants have failed, for example, to point how a visit of the scene would have assisted in establishing or clarifying something in their favour thereby causing justice to be miscarried. The onus was on the appellants' to demonstrate an erroneous exercise of the discretionary power vested in the trial judge. In the circumstances, we can not see how the learned trial judge could have fallen into any error in the exercise of the discretion vested in him. Accordingly, we would order appeal ground A (iii) (i) to be dismissed as having no merit.
Evidence, Findings of Fact and Application –
Appeal Grounds A (i) (ii) (iii) (a) – (h), (j) (iv) – (vii), (xi), (xii)
17. This now leaves us to turn to questions (1) to (4), which are appeal grounds A (i) (ii) (iii) (a) – (h), (j) (iv) – (vii), (xi), (xii). As we noted earlier, these grounds concern the evidence that were before the trial judge, how His Honour treated and used them. Rather than going through each of the grounds of the appeal, we consider it more appropriate to consider them in the context of the evidence before the Court, the findings of facts, the relevant and applicable law and the application of the relevant law to the facts. Thereafter, we consider it would be appropriate to determine each of the grounds of appeal.
Evidence and Facts
18. There is no contest that there was a killing resulting in the death of a Billy Armitage at Magesubu Village, in Alotau. Milne Bay Province. The deceased died from gun shot wounds he sustained. Similarly, there is no dispute that, the State's case was based on circumstantial evidence as there was no direct evidence as to who shot the deceased. The appellants raised the defence of alibi, some two years after the alleged date of the killing. Hence, the State had the burden of calling evidence putting the appellants at the scene of the crime at the relevant time possibly committing the offence.
19. At the trial, the State adduced mainly oral testimony through its witnesses and so did the appellants. Included in the State's list of witnesses were the deceased wife and an aunt of the appellants. Additionally, the State adduced into evidence with the consent of the appellants, an autopsy report confirming the death of the deceased through a gunshot wound. Further, through the relevant police investigating officer, the State adduced into evidence a spent cartridge shell and a double edged grass knife, which the witness found at the scene of the crime.
20. The State's case was this. The deceased and his family were in their family home having dinner. It was dark except for a small hurricane lamp. As they were there, a group of men approached them and started to attack them. The deceased wife, Nancy Armitage, testified to seeing the attack being led by a masked man who she described as dark and young. That person wore a blue overall and armed with a two edged grass knife, which fitted Denden Tom's features. The witness saw the masked man hesitant for a little while, constantly looking outside. That caused the deceased to confront the masked man in blue overall and tried to remove the double edged grass knife away from him. Shortly, after that, the witness heard a gun shot and heard sounds of people running away from the scene. Soon she realized that the attackers shot dead her husband.
21. Another State witness, Ann Neddy, said, she met the appellants who were her husband's nephews within close proximity of the deceased house during the same evening of the killing. She saw them armed with a factory made shotgun and a double edged grass knife. One of the appellants' accomplices, Charlie Barnabas was carrying the double edged grass knife, while Sam Tom had the shotgun. She also saw Denden Tom wearing a blue overall. When she asked, where they were heading, they told her to shut up and go home.
22. At the end of the State's evidence, the appellants made a no case submission. The Court ruled against that submission and found that the appellants had a case to answer. Following that ruling, the appellants decided to go into evidence in their defence and called a total of 14 witnesses including themselves. Their evidence was mainly in support of their claim of alibi. They gave evidence of being elsewhere at the time of the killing of the deceased. Denden and Sam Tom and Daniel Wilson gave evidence with the support of other witnesses of, working on a shed for village store about six kilometers away from the deceased place and where the killing took place. Additionally, Daniel Wilson had accompanied his sister who took her baby to the aid post at about the time of killing.
Trial Judge's Treatment of the Evidence
23. The trial judge found the appellants and their witnesses as untruthful and unreliable witnesses. He found them giving inconsistent testimonies. Their claim of alibi was belated or raised well passed the stages of record of interview, committal and awaiting trial at the National Court. After carefully weighing the evidence, the trial judge found that, he could not believe the appellants and their witnesses' testimonies. Instead, he found their evidence as being concocted to cover up for the killing of the deceased. Accordingly, he rejected all their evidence. On the basis of that, the trial judge found each of the appellants guilty on the charge of willful murder.
Appellants Claims or Arguments
24. The appellants claim that, a Charles Siba was responsible for the murder of the deceased. They go on to claim that, one of the key State witnesses; Anne Neddy, gave a false testimony against them to cover up for her brother Charles Siba. They point to there being evidence of Charles Siba wearing a blue overall and carrying a double edged grass knife during the same evening of the killing. They also claim that, Charles Siba knew how to use a shotgun. In so claiming, they attack the evidence of a tender age witness who testified to Charles Siba going out at the relevant time prawn fishing. They point to cross-examination of that young witness which they claim caused the witness to break down and caused him to admit that he was saying what his mother told him to say.
25. In making these claims, the appellants' emphasise the fact that, this case turned on circumstantial evidence. They then go on to claim that, their testimonies with that of their witnesses were credible. As such, the Court should have accepted their testimonies and returned a verdict of not guilty. They point to only one factor in support of their arguments that their testimonies and evidence were credible. That factor is that, one of their witnesses was a nurse, who is a government officer and so therefore, she was credible. They also argue that, the State did not provide any evidence disclosing each or any of their motive or intention for killing the deceased. They further point out that only one gunshot killed the deceased. As such, they could not all have pulled the trigger and killed the deceased for the purpose of the charge and conviction, but only one of them was capable of doing that, which the State did not establish by any of the evidence it called. Furthermore, the appellants point to the gun used to kill the deceased not being produced in Court.
Consideration of the Arguments
26. Before anything else, we need to remind ourselves of the principles of law that govern appeals from the National Court to the Supreme Court against conviction. The relevant principles are well settled in our jurisdiction, starting with the decision of the Supreme Court in John Peng v. The State.[11] In the matter of Michael Tenaram Balbal v. The State,[12] the Supreme Court restated the relevant principles in these terms:
"... an appeal against conviction is usually pursuant to and governed by s. 22 of the Supreme Court Act... For such an appeal to succeed, the Court has to be satisfied that, there is in all of the circumstances, a reasonable doubt as to the safeness and satisfactoriness of the verdict. That has been made clear by a large number of decisions of the Supreme Court such as the one in John Beng v. The State... It follows therefore that, unless we are persuaded in all of the circumstances of your case that, the National Court's findings of guilt on the two charges against you is unsafe and unsatisfactory, your appeal can not be upheld."
27. It follows therefore that, unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court can not be easily upset. The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants' verdict.
28. We have already setout the evidence that the parties adduced in the Court below. We also setout, the trial judge's treatment of the evidence and the decisions he made in respect of the evidence called, the facts he found based on the evidence adduced and he decided to accept and the use he made of the facts he found. The end result of all that was that, the appellants' were found guilty on the charge of willful murder. What is therefore left for us to consider is the appellants arguments against the trial judges decision.
29. The first point raised in the appellants' argument is that, their case turned purely on circumstantial evidence. This is not the first time for the Court to find an accused person guilty purely on circumstantial evidence. Indeed, the law allows for conviction on circumstantial evidence even where there is no direct evidence. Where there is circumstantial evidence connecting an accused person to the commission of an offence, the Court is entitled to draw inferences from such evidence to return a guilty verdict. Hence, nothing much can be made out simply because the trial judge acted on circumstantial evidence, unless it offends the established principles concerning the reception, treatment and acting on circumstantial evidence.
30. The Supreme Court decision in Paulus Pawa v. The State,[13] per Andrew J quoting Miles J. in The State v. Tom Morris[14] spelt out the law 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) [1975] HCA 42; 50 A.L.J.R. 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 the guilt of the accused': Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 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 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 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 W.L.R. 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.'"
31. Subsequent decisions of the Supreme and National Courts have adopted and applied these principles in our country. An early example of that is the case of Garitau Bonu & Rosanna Bonu v. The State.[15] That was a case of murder turning against the appellants purely on circumstantial evidence. In that case, there was no evidence linking the appellants to the murder of the deceased. There was however, evidence of the fatally stabbed and wounded body of the deceased found in the appellant's 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. The appellants made no admission either to the Police during their record of interview or at the time of their arrest or to anyone else. In their record of interviews, they both declined to offer any explanation or say anything and they both declined to give evidence at the trial. 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. On appeal the Supreme Court confirmed the verdict and conviction.
32. In the present case, the appellants have not demonstrated a lack of proper understanding and application of the relevant principles of circumstantial evidence. Indeed, in our respectful view, the learned trial judge correctly treated and acted on the circumstantial evidence in the way he did and the conclusion he arrived at was open to him. Accordingly, we find there is no merit on this part of the appellants' arguments.
33. The appellant's next and major complaint is the learned trial judge's rejection of their evidence. The learned trial judge found inconsistencies and incredible accounts in the appellants' evidence, making it difficult for him to accept them as credible. The law says that, unless an appellant makes out a case of serious error or omission on the part of a trial judge, the Supreme Court should be very slow to disturbing the findings of a trial judge in relation to his findings of the primary facts.[16] Save only for one of the witnesses they called being a government employee and their argument that, by reason of that witness' employment, her testimony should have been accepted as truthful, the appellants have not advanced any convincing argument or reason casting any serious doubt on the correctness of the learned trial judge's rejection of the evidence of the appellants.
34. The suggestion that all government employees are credible witness has no foundation as a matter of law. The credibility of a witness is not resolved by reference to ones employment, although the position a person holds in society is a factor. In most cases, the credibility of a witness is dependant on his or her performance in the witness box as a witness. A witness who is evasive, or is giving clearly inconsistent evidence, or giving an account of matters he or she supposedly witnessed but are illogical or out of common sense, that may lead to a conclusion that the witness is untruthful and therefore his or her testimony is not credible.
35. In addition, the law in some particular cases allows for a rejection or the placing of little or no weight on the evidence parties may call. A well known example is where a party puts into evidence matters not put to the other side in cross-examination under the well known rule in Brown v. Dunn.[17] Another good example is a case in which an accused person raises an alibi belatedly. The Supreme Court decision in John Jaminan v. The State (No 2),[18] made that clear in these terms:
"...[T]he alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated..." (Emphasis supplied)
36. Bearing the above principles in mind, we note that, all the evidence called by the appellants' were to support their belated claim of alibi. They also raised the argument that, the murderer was a Charles Siba and not them. If these were true, what stopped the appellants from stating that at the very outset or at the time of their arrests, records of interviews and committals, so that the police could carry out the necessary investigations and arrest the correct offenders and not them. They did not do that. Therefore, the trial judge was authorized by law and he was correct in rejecting the appellants' alibi evidence.
37. Further, the claim that Charles Siba was the murderer could not be right. According to the arguments advanced before this Court, we note that, the appellants are saying Mr. Siba was armed with a two edge grass knife and a shotgun. If that is correct, we wonder what happened to the gun he supposedly had before approaching the deceased with the grass knife according to the widow's testimony? Did he put the gun down? If he did put the gun down, where did he put it? Then when did he go and get himself armed with it and shoot the deceased? From whom did the other footsteps of people running away from the scene come from?
38. In the circumstances, we find that the learned trial judge correctly rejected the appellant's alibi evidence. When His Honour correctly rejected the evidence for and by the appellants' he was left with the State's evidence. Those evidence supported the primary facts based on which, His Honour drew the inferences that the appellants where the ones who killed the deceased. In the particular circumstances of the case, we find that the primary facts as found by the learned trial judge not only supported an inference of guilt of the appellants but was the only reasonable inference that could be drawn from the primary facts. Although we note that the learned trial judge did not specifically refer to any of the case authorities on point, it is clear that His Honour took into account the relevant principles and applied them to the case before him.
39. This leads us to consider the remaining argument by the appellants that the learned trial judge erred in finding them guilty when the State failed to establish beyond any reasonable doubt one of the essential elements of the charge against them, namely, their intention and or motive for killing the deceased. In furtherance of that argument, the appellants argue that they could all not be found to have had the necessary intention to kill and each killed the deceased when there was only one gun and the deceased was shot once.
40. The criminal intent of an offender has much to do with his state of mind at the time of committing an offence. An offender's intention can be ascertained in either of two ways. The first and perhaps the easiest way is where the offender expresses his or her intent before, during or after the commission of the offence. The second way is by looking at the conduct of the offender, before, during or after the commission of the offence. Numerous decisions of the National Court and Supreme Courts have stated and applied these principles in many of their decisions.[19]
41. In this case, there was no evidence of the appellants expressing their intention to kill the deceased. It was therefore necessary to consider the evidence of the appellants' conduct before, during and or after the commission of the offence and work out from there, whether they had the necessary intention to kill the deceased. Having found on the evidence before him that, the appellants killed the deceased, the learned trial judge inferred from the way in which the appellants killed the deceased their intention. His Honour took into account the fact that, the appellants were armed with a shotgun which was a deadly weapon. They used that weapon to kill the deceased. Having killed the deceased with one shot from the gun there was no need to use it again or use any other weapon as they achieved their objective which was, to kill the deceased.
42. From the evidence adduced before the Court, we find that the appellants went there to conduct a robbery. They set out to carry out the robbery with the use of a double edged grass knife first. The deceased put up a resistance and effectively prevented them from carrying out their robbery. This caused them to use the gun to kill the deceased. The fact that they went armed with a gun demonstrates their intent to use it even to kill for the purpose of achieving their criminal purpose of armed robbery. The appellants acted with and in association with or in the company of each other. This gave them the strength and encouragement to commit the offence. The State therefore correctly invoked the provisions of ss. 7 and 8 of the Criminal Code, which makes each person acting in the company of another as a principle offender. Consequentially, it does not matter whether; only one of them had the gun and pulled the trigger. Each of the persons involved was by law deemed to be the one who pulled the trigger of the gun that eventually killed the deceased. Thus the appellants' argument that they could not all be found guilty of having the necessary intention to kill and having killed the deceased is clearly against the law as enshrined in ss.7 and 8 of the Code and is without merit.
43. In the end, we find that the trial judge was correct in finding that the State had discharged its onus to prove beyond any reasonable doubt that the appellants did have the necessary intention to kill the deceased when they killed him. Accordingly, we find that the trial judge correctly found each of the appellants guilty of committing the offence they were charge with. Hence, we would dismiss their appeal grounds A (i) (ii) (iii) (a) – (h), (j) (iv) – (vii), (xi), (xii).
44. Ultimately, we find that the appellants have in the end, failed to establish any of the grounds of appeal against conviction. Accordingly, we have decided to dismiss each and every one of their grounds of appeal. This forms the foundation for a dismissal of the appellants' appeal against their conviction, by reason of which, we would order a dismissal of the appeal against conviction.
Appeal Against Sentence
Given the appellants' youthfulness and particular circumstances of the case, is the sentence of life imprisonment excessive?
(Appeal Grounds x) and (xiii))
45. This now leaves us to deal with the appellants' appeal against their part respective life sentences, which are appeal grounds (x) and (xiii).
46. The principles of law governing appeals against the severity of sentence are well settled in our jurisdiction.[20] The decision of the Supreme Court in Simon Kama v. The State,[21] restated those principles in this way:
"... the law is clear; the Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates a sentence to be manifestly excessive. A sentence could be manifestly excessive where, for example, the trial judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence... That means, this Court must be satisfied that the learned trial judge fell into some demonstrable error, which has the effect of vitiating the trial judge's discretion on sentence before it can change a sentence imposed by the National Court. ..."
47. In their appeal ground (x), the appellants claim that the learned trial judge did not take into account their youthfulness when considering and arriving at their sentence. In ground (xiii), they argue that the sentence imposed against them was excessive. In support of that ground, they argue that, the reasons given by the trial judge when sentencing them was based on wrong principles of law and clearly and manifestly excessive. They go on to argue through their learned counsel Mr. Narokobi that "most cases of willful murder of worst type received sentences of 20 years or less where there is direct evidence." Whereas in their case, they argue that, there was no direct evidence of any conspiracy and aiding and abetting or actual killing. They go on to argue that, the learned trial judge was wrong in applying the case of Ure Hane v. The State[22] and Gimble v. The State.[23]
48. The five member Supreme Court decision in Steven Loke Ume & Ors v. The State[24] for the first time gave serious consideration to sentencing in willful murder cases. It confirmed and restated earlier practice before the National and Supreme Courts that, sentencing in willful murder cases must be considered in the same way as in other cases. Hence, the principles of general application such as, in the exercise of its sentencing discretion, the Court must take into account all relevant aggravating and extenuating circumstances as well as all or any mitigating factors apply. The Court must then balance these factors and determine a punishment which best fits the offence under consideration.
49. The Court identified pre-planning, the degree of pre-meditation, use of any weapons, multiplicity of attacks or injuries inflicted and any inhuman acts such as torture or cutting up of the body performed after the killing, as factors that could be taken into account as aggravating. Then for extenuating circumstances, the Court said factors such as any de-facto provocation, duress or coercion, the degree and the extent of the offender's participation, the offender's medical condition such as psychopathic personality and the offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did, account for extenuating circumstances. In relation to mitigating factors, the Court said they include such factors as the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background, being a first offender, pleading guilty, early confession to police, expression of genuine remorse, co-operation with police, poor health and restitution or compensation.
50. The Court went on to say that, although both have the same effect of reducing punishment, there is a distinction between extenuating circumstances and mitigating factors. It pointed out that, extenuating circumstances concern the particular circumstances in which the offence was committed and has the effect of reducing or diminishing the gravity of the offence while mitigating factors are usually unrelated to the particular circumstances in which an offence may have been committed and would also reduce punishment. This distinction, the Court said must be, maintained in murder cases "because the weight to be given to these two matters may vary." The Court then pointed out that:
"In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant: John Elipa Kalabus v. The State [1988] PNGLR 193."
51. The Court also reconfirmed the earlier position that, the maximum penalty of death must be, reserved for the worst case of its kind. What is a worse case of willful murder, is of course, dependant on the particular facts of each case. The Court went on to point out that, some of the factors that might point to a worse case of willful murder warranting the death penalty could be things like, the position of the victim, the capacity of the offender, the reasons or motive for the crime, the modus operandi and any lack of genuine remorse after the killing and the community concerns over prevalence of violent crimes and the need for strong deterrent and punitive sentence, public or private morality concerns, customary beliefs and values of both the deceased and offender's customary groups which influence the killing and the views of the victim's relatives.
52. The Supreme Court further went on to point out that, the death penalty may be appropriate in at least eight circumstances. These include killing of a child, a young or old person, or a person under some disability needing protection or a person in authority or responsibility in the community providing invaluable community service and killed in the cause of their duties such as a policeman, correctional officer, government officer, school teacher, church worker, company director or manager. They also include the killing of a leader in government or the community, for political reasons, killing of persons in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, or killing for hire or the killing of two or more persons in the single act or series of acts. Further the Court included in the list, killings by an offender who is a prisoner in detention or custody serving sentence for another serious offence of violence or has prior conviction(s) for murder offences.
53. Eventually the Court turned to the case before it, which was a case of willful murder by a group of men and said it was necessary for the Court to consider what part each of the offenders played before arriving at a sentence for them. In arriving at that view, the Supreme Court stated what was always the law that, where two or more people are charged with committing the same offence, it is necessary to consider the part each of them have played in the commission of the offence, even though s. 7 and 8 of the Code make them equally responsible and can be sentenced as principals. This is on the basis of the well accepted principle that, the punishment for an offence must fit the crime and the part each offender has played toward its commission, where more than one person is involved in the commission of the offence.
54. Bearing the above principles in mind, we note that, the learned trial judge in the present case carefully noted the circumstances in which all of the appellants committed the offence. He noted on the evidence before him that, they committed the offence in the company of each other. He also noted that they used a dangerous weapon, a gun to commit the offence against the deceased. The learned trial judge found on the evidence before him that the appellants committed the offence in furtherance of or for the purpose of committing another offence, namely armed robbery of a family at their dwelling house which he found were serious which called for a stiffer penalty in the light of the prevalence of the offence.
55. In arriving at that view, the learned trial judge, considered the guidelines for sentences in willful murder cases led by the decision of the Supreme Court in Ure Hane v. The State (supra). That case was the law in relation to sentencing in willful murder cases before the most recent decision of the Supreme Court in Steven Loke & Ors case in 2006. The learned trial judge also had regard to the decision of the Supreme Court in Gimble v. The State (supra) which stands for the proposition that, robbery of a dwelling house using dangerous weapons such as guns is the worst form of robbery, which could attract the maximum penalty of life imprisonment.
56. The cases the learned trial Judge referred to, though not the latest on point, they were relevant and on point. There can be no doubt therefore, that, the learned trial judge was correct in having regard to those authorities before arriving at his decision on penalty. Apart from merely arguing that, the learned trial Judge was wrong in doing what he did, the appellants have not provided us with any assistance as to the correct principles that the learned trial judge should have considered and applied.
57. This is not the first time the National Court has come to deal with a case like this. In 1989, Hinchliffe J, imposed a sentence of life imprisonment in the case of The State v. Baupo & Fabian Girida.[25] There, the prisoners killed a 65 year old man by stabbing him with a knife whilst pursing an armed robbery at a dwelling house. The prisoners and their accomplishes were armed with a shotgun, a spear gun and knives and had gone into the deceased premises to commit an act of armed robbery. They subsequently stole some money and fled from the scene in a motor vehicle they also stole in the same armed robbery. One of the prisoners was convicted on his guilty plea while the other was convicted after a trial.
58. In The State v. Tony Pandua Huahahori (No, 2)[26], the National Court sent a young man to life imprisonment after a trial on a charge of murder. This was a case of robbery that went bad when a PMV that the robbers signaled to stop along the Maprik-Wewak Highway for them to rob failed to do so and the prisoner fired shots from his homemade shot-gun at the vehicle. Several passengers on the back of the vehicle were injured by the pellets, one of whom, subsequently, died at Boram Hospital and a young 16 year old school boy lost one of his eyes. His co-offenders were sentenced to a total of 30 years for murder because they pleaded guilty.
59. The National Court in The State v. Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi,[27] sentenced David Laiam Bawai to 50 years imprisonment on a charge of murder. There the prisoner in the company of others unlawfully entered a dwelling premises where the deceased and others had gathered for a prayer meeting. The prisoner and his accomplishes were armed with homemade guns and a knife. They held up those who were there and stole some money from one of the victims. Two of the offenders tried to abduct a teacher's daughter who was with the victims. The teacher reacted in his daughter's rescue and was gunned down.
60. On appeal from the above decision, the Supreme Court, in its decision in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State,[28] dismissed the appeal and opined that the trial judge should have imposed the maximum prescribed sentence of life imprisonment. The Supreme Court came to that decision after criticizing the Public Prosecutor for failing to indict the prisoners with willful murder.
61. The Supreme Court decision gave consideration to the issue of youthfulness of the offender. It had regard to the decisions of the National Court in The State v. Thomas Waim,[29] which was cited with approval and followed in The State v. Kevin Anis & Martin Ningigan.[30] These cases referred to other decisions of the National Court and came to the conclusion that, although youthfulness of an offender is a relevant factor for consideration, it should not prevent the Court from imposing an appropriate sentence. The Court came to that conclusion because of the frequent number of youthful offenders committing serious offences like armed robbery, murder and rape. This is a trend that has not changed since in any significant way but, continues to increase every year with more and more youthful offenders getting into armed groups committing serious crimes like rape, murder and armed robbery. These no doubt suggest that the kinds of sentences imposed these days are failing the community's desire to deter others from offending.
62. In the case before us, we note that, the learned trial judge did not give any detailed consideration to the issues discussed. His Honour promised to deliver a detailed written judgment which he has not to date done. We note in any case that, the learned trial judge did however, give some consideration to the issues raised before arriving at the decision to impose the sentence of life imprisonment, which is apparent from His Honour's reference to the Supreme Court's decisions in the Ure Hane and Gimble cases. Having regard to what His Honour did in fact, we are of the view that, it was open on the facts and the law for His Honour to impose the sentence of life imprisonment. That sentence in our view reflects the fact that, none of the appellants were found to have pulled the trigger of the gun that eventually led to the deceased death. It was also not clear has to who was their leader. Nevertheless, it is clear that the appellants acted in concert and in the company of each other, thereby encouraging and giving strength to each other to commit the offence in the way they did.
63. Having regard to all of the foregoing discussions, we find that the trial judge did not fall into any identifiable error warranting this Court's interference. Accordingly, we would also dismiss the appellants' appeal against sentence.
Ultimate Conclusion
64. In the end, we would order a dismissal of the appeal against both conviction and sentence. Consequently, we would order a confirmation of the conviction and sentence of life imprisonment imposed by the National Court. Accordingly, we make orders in those terms.
________________________________
Narokobi Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent
[1] (02/02/07) SC853.
[2] (1998) SC592.
[3] (2006) SC855.
[4] (2008) SC 921.
[5] (1999) N1964.
[6] [2000] PNGLR 357.
[7] (2002) N2182.
[8] (2003) N2369.
[9] (2003) N 2432.
[10] (29/08/03) N2455.
[11] [1982] PNGLR 331.
[12] (22/02/07) SC860.
[13] [1981] PNGLR 498, at p. 501.
[14] [1981] PNGLR 493 at p. 495.
[15] (1997) SC528.
[16] See Michael Tenaram Balbal v. The State (supra note 12) for a recent restatement of this principle.
[17] [1893] 6 R 67 HL.
[18] [1983] PNGLR 318.
[19] For examples of cases on point see Regina v. Joseph Kure [1965-66] PNGLR 161; The State v. Emmanuel Bais and Felix Fimberi (11/06/03) N2416 and The State v. David Yakuye Daniel (15/07/05) N2869.
[20] See Norris v. The State [1979] PNGLR 605 at pp.612-613.
[21] (01/04/04) SC740.
[22] [1984] PNGLR 105.
[23] [1998-99] PNGLR 271.
[24] (19/05/06) SC836.
[25] (1989) N795.
[26] (21/02/02) N2186.
[27] (11/12/02) N2312.
[28] (01/04/04) SC741.
[29] [1995] PNGLR 187.
[30] (07/04/03) N2360.
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