Andrew v State [2009] PGSC 21; SC997 (3 November 2009)

SC997

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 32 OF 2007

ONAMA ANDREW
Appellant

V

THE STATE
Respondent

Waigani: Cannings, Gabi & Yagi JJ
2009: 2 July, 3 November

CRIMINAL LAW – admissions in record of interview – whether trial judge has duty to order voir dire if no request for a voir dire is made by defence counsel – whether trial judge should order re-opening of State’s case to allow cross-examination of police investigator – contradictory statements of State witness, Evidence Act Section 22.

CRIMINAL LAW – circumstantial evidence – test to apply when conviction dependent on circumstantial evidence – basing conviction on confession or admissions: need for corroboration.

The appellant was convicted of wilful murder after a trial. There were no eyewitnesses to the killing of the deceased by the appellant but the appellant made admissions in his police interview. The defence counsel allowed the record of interview to be tendered by consent. There was no voir dire conducted. After the close of the State’s case the defence counsel made an application for the State’s case to be re-opened so that the police investigator could be cross-examined. The application was refused. The appellant remained silent and the only evidence for the defence was the appellant’s statement to the District Court during the committal hearing: "What I said to the police is not true". The appellant was convicted on the basis of the admissions made in his police interview together with the evidence of State witnesses that he was at the crime scene in company with others chasing the deceased and at one stage was carrying a knife. The trial judge ruled that he could be convicted on the basis of his confession (the admissions in the record of interview) as the facts of the case were distinguishable from those in the leading case R v Namiropa Koinbondi [1969-1970] PNGLR 174. The appellant appealed against his conviction on three grounds: (1) a voir dire ought to have been conducted; (2) the trial judge erred in refusing the application for the State’s case to be re-opened; (3) the trial judge erred by disregarding an inconsistency between a State witness’s oral evidence and her statement to the police. In the course of considering the appellant’s submissions, the Supreme Court’s attention was drawn to three major issues which gave rise to the question whether the conviction was safe and satisfactory:

- whether the trial judge adequately addressed the significance of a large part of the State’s case depending on circumstantial evidence;

- whether proper consideration was given to the defence argument that it was unsafe to enter a conviction on the basis of the confession made in the record of interview; and

- whether the trial judge set out the elements of the offence of wilful murder, in particular the requirement for the State to prove an intention to kill.

Held:

(1) The defence counsel notified the court that a voir dire was not necessary, so no error was made by the trial judge in that regard.

(2) The trial judge properly refused the defence counsel’s application for an order requiring the State to re-open its case.

(3) The State witness’s statement to the police was not in evidence and she was not cross-examined on it, so no error was made by the trial judge in giving no weight to it.

(4) Because the State’s case hinged on admissions in the record of interview the trial judge should have applied the principles regarding circumstantial evidence and the principles regarding entering a conviction based on a confession.

(5) His Honour did not apply or mention the principles regarding circumstantial evidence and in that regard an error of law was made. Furthermore, the guilt of the appellant was not the only rational inference to be drawn from the evidence.

(6) His Honour applied the principles regarding entering a conviction based on a confession but failed to note that there was no corroboration of the appellant’s admission that he killed the deceased and took insufficient account of a contradictory statement the appellant made to the police and the appellant’s Section 96 statement to the District Court.

(7) Further, the trial judge did not set out the elements of the offence of wilful murder, in particular the requirement for the State to prove an intention to kill.

(8) Accordingly the verdict of guilty of wilful murder was set aside on the ground that under all the circumstances of the case it was unsafe and unsatisfactory. A miscarriage of justice occurred; and the court ordered a new trial.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2005) SC881
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
R v McKay [1935] HCA 70; (1935) 54 CLR 1
R v Mon and Debong [1965-1966] PNGLR 42
R v Namiropa Koinbondi [1969-1970] PNGLR 174
The State v Malepo (No 2) [1996] PNGLR 252
The State v Thomas Some (1982) N366(M)
The State v Tom Morris [1981] PNGLR 493
The State v Ungum Ovohe (1980) N245

APPEAL

This was an appeal against conviction for wilful murder.

Counsel

O Andrew, the appellant, in person
R Auka, for the respondent

3 November, 2009

1. BY THE COURT: This is an appeal against the decision of the National Court constituted by Justice Mogish to convict Onama Andrew, the appellant, of wilful murder. The appellant was sentenced to life imprisonment but appeals only against his conviction.

THE TRIAL

2. The State’s case was that on 24 May 2006 the appellant was in the company of others at Gerehu Stage 4. They had gathered at a tuck shop owned by a Wabag man to watch a State of Origin match on television. The deceased, Eganda Kane, who was alleged to be drunk, went over to a Goroka lady who was cooking meat to buy some but threw a scone on to the barbeque plate causing hot oil to spill on the lady and others nearby. An argument developed between the deceased and the Goroka lady. Bystanders, including the appellant, joined in and chased Eganda Kane to the front of his house where they stabbed him to death.

3. Two State witnesses gave oral evidence and other evidence for the State consisted of a post-mortem report and an affidavit by Dr Golpak who conducted the post-mortem and the appellant’s record of interview and a ‘confessional statement’ made by the appellant to the police.

4. The defence counsel allowed the record of interview to be tendered by consent. There was no voir dire conducted. After the close of the State’s case the defence counsel made an application for the State’s case to be re-opened so that the police investigator could be cross-examined. The application was refused. The appellant remained silent and the only evidence for the defence was the appellant’s statement to the District Court during the committal hearing that what he had said to the police was not true.

5. The learned trial judge convicted the appellant on the basis of the admissions made in his police interview together with the evidence of State witnesses that he was at the crime scene in company with others chasing the deceased and at one stage was carrying a knife. His Honour ruled that the appellant could be convicted on the basis of his confession (the admissions in the record of interview) as the facts of the case were distinguishable from those in the leading case R v Namiropa Koinbondi [1969-1970] PNGLR 174.

GROUNDS OF APPEAL

6. This is a prisoner appeal and the grounds are not very specific or clear:

1. Introduction of fresh evidence (void dire) in defence of my innocence in the act of w/murder;

2. That the trial judge erred in his discretion by refusing to exercise his discretion when the interest of justice demanded it – under the circumstances at hand; and

3. An introduction of yet another fresh evidence which is marked as Exhibit "B" in this proceedings which is the statement of Helen Tege dated 29/05/2006. (sic)

7. The appellant filed written submissions and it appears that ground 1 relates to the admissibility of the record of interview. It is submitted that a voir dire ought to have been conducted and that the record of interview ought not to have been admitted into evidence. Ground 2 relates to the refusal by the trial judge to order that the State’s case be reopened to allow the defence counsel to cross-examine the arresting officer. Ground 3 concerns an alleged inconsistency between Helen Tege’s oral evidence and her statement to the police.

GROUND 1 – VOIR DIRE AND RECORD OF INTERVIEW

8. The appellant alleged before us that after he and other suspects were arrested two of the other suspects threatened him with violence and as a result he made false admissions to the police that he was the one who killed the deceased. The admissions were included in his record of interview. He argued that there was a conspiracy between the other suspects and the arresting officer to ensure that he was convicted.

9. These allegations were not aired at the trial, however, as the record of interview was admitted into evidence by consent. The defence counsel advised the trial judge that a voir dire was not required. The exchange between the trial judge and the appellant’s lawyer on the question of the voir dire is recorded in the transcript:

MS LUBEN [THE PROSECUTOR]:.. Those are the statements which we have consented to be tendered.

HIS HONOUR: Thank you, Mr Sakumai?

MR SAKUMAI [THE DEFENCE COUNSEL]: I consent to those documents. In relation to the record of interview, the matter raised there is not a matter for a voir dire to be conducted. It is a question of who to believe.

HIS HONOUR: Not a voir dire issue.

MR SAKUMAI: Not a voir dire. It is a question of who to believe; the weight to be given to the evidence of the accused and the police witnesses.

10. As the trial judge raised the issue and dealt with it properly in accordance with the defence counsel’s position, we dismiss this ground of appeal.

GROUND 2 – REFUSAL TO ORDER REOPENING OF THE STATE’S CASE

11. The appellant submitted that the trial judge’s refusal of the defence counsel’s application to reopen the State’s case was a miscarriage of justice. He argued that it was an erroneous exercise of discretion and/or against the interests of justice as the admissions in questions and answers Nos 14, 16 and 18 in the record of interview conflicted with the evidence of John Kane Mukaro, the deceased’s father, who said he saw Michael Garas and Eneme Koike stab the deceased but who gave no evidence that he saw the appellant stab the deceased.

12. The trial judge heard arguments on the application to reopen and gave his reasons for refusing the application in the following terms:

Yes, thank you. The application is refused. The appropriate time to call the – cross-examine the investigating officer would be when the State’s case was still open. That opportunity had come; it had gone without you, Mr Sakumai resolving to cross-examination. So for those reasons and according to procedures, I am not inclined to grant you your application to have this witness called so your application to ask the State to re-open its case is denied; it is refused. Mr Sakumai, you still want time to see your ...

13. Mr Auka of counsel argued that the trial judge was correct in refusing the application and urged the Court to dismiss the second ground as well.

14. We agree with Mr Auka that the trial judge was correct in refusing the application. First, the State decided not to call the arresting officer as the record of interview was tendered and admitted into evidence by consent. Counsel for the appellant indicated to the Court that a voir dire would not be conducted. Secondly, there was no suggestion of any impropriety on the part of the arresting officer during cross-examination of the State witnesses by the appellant’s counsel. Thirdly, there was no evidence or suggestion of any alleged threat or conspiracy in the conduct of the record of interview before the trial judge.

15. It is clear that the defence counsel made a serious tactical error by allowing the record of interview to be admitted by consent and not taking any steps to ask that the investigating police officer give evidence until after the close of the State case. The defence counsel should have either made his consent to tendering of the record of interview conditional on the police officer being available for cross-examination or asked that the police officer be summoned to give evidence. Because neither of those steps was taken the trial judge had to deal with what was an ill-conceived application to force the State to reopen its case. In the circumstances his Honour made the correct ruling.

16. We dismiss this ground of appeal.

GROUND 3 – ALLEGED INCONSISTENCY IN HELEN TEGE’S EVIDENCE

17. The appellant argues that ‘fresh evidence’ was introduced in the form of a written statement by one of the two State witnesses, Helen Tege, and that this statement dated 29 May 2006 was inconsistent with her sworn evidence as it made no mention of the appellant. In her sworn evidence, she said she saw the appellant climb over the fence with a bush knife after the murder.

18. Mr Auka submitted that the witness gave sworn evidence and was subject to cross-examination but was not asked about her statement in accordance with Section 22(b) of the Evidence Act. As the matter was not raised at the trial, this Court cannot entertain it.

19. Section 22 (contradictory statements of witness) of the Evidence Act provides:

A witness –

(a) on his examination in chief; or

(b) under cross-examination,

may be asked in any legal proceedings whether he has made a statement relative to the subject matter of the proceedings that was inconsistent with his present testimony (the circumstances of the alleged statement being referred to sufficiently to designate the particular occasion), and if he does not admit that he made the statement proof may be given that he did in fact make it.

20. We agree with Mr Auka that the matter was not raised in the trial and therefore it cannot be raised now. Helen Tege’s statement was not admitted into evidence and the learned trial judge made no error by not giving it any weight. Ground 3 is therefore dismissed.

OTHER MATTERS

21. We have dismissed the three grounds of review expressly relied on by the appellant. However, in the course of consideration of his submissions, which addressed not only the grounds of appeal but also the manner in which his case was defended, including the complaint that his defence counsel did not consult him on important matters in the course of the trial, our attention has been drawn to three important issues which have caused us to question whether the conviction is safe and satisfactory.

22. First, it seems that the learned trial judge may not have adequately addressed the significance of a large part of the State’s case depending on circumstantial evidence.

23. Secondly, we query whether his Honour gave proper consideration to the defence argument at the trial that it was unsafe to convict the appellant on the basis of the confession made in the record of interview.

24. Thirdly, his Honour did not set out the elements of the offence of wilful murder, in particular the requirement for the State to prove an intention to kill.

CIRCUMSTANTIAL EVIDENCE

25. There was no direct evidence against the appellant as none of the State witnesses saw him stab the deceased. The only direct evidence against him was his admission (confession) in the record of interview that he stabbed the deceased.

26. The deceased’s father, John Kane Murako, said that the appellant was in the group that chased the deceased to the house. He said he saw Michael Garas and Eneme Koive stab his son. Helen Tege did not see the killing but saw Eneme Koive, Michael Garas and the appellant leaving the scene of the crime. She saw Eneme Koive with blood on his body, and carrying a knife. The next person she saw in front of the gate was Michael Garas who was also armed with a knife. She went past Michael Garas and saw the appellant, also with a knife in his hand, climbing the fence to get out. The medical report showed that the deceased suffered 14 stab wounds. The exact number of stab wounds inflicted by Eneme Koive and Michael Garas is not known, but it appears that they inflicted at least two stab wounds. The other stab wounds are not explained. However, what is clear is that John Wena, Taiti and the appellant were in the group that chased the deceased and were at the scene of the crime before the State witnesses arrived.

27. The record of interview shows that the appellant admitted stabbing the deceased. However, in a statement to the District Court made in the course of the committal proceedings under Section 96 of the District Courts Act (which gives the defendant an opportunity to say anything he wants to say in answer to the charge) the appellant said:

What I said to the police is not true.

28. That Section 96 statement was admitted into evidence at the trial as exhibit D.

29. There is a major conflict between that statement and the record of interview. If the record of interview were given little or no weight at all, the question we ask is whether the finding of the trial judge is safe or satisfactory (John Beng v The State [1977] PNGLR 115).

30. The appellant chose to remain silent and the evidence against him was circumstantial. The law on circumstantial evidence was stated in The State v Tom Morris [1981] PNGLR 493, by Miles J at 495:

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 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 guilty 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) 102 CLR 548 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.

31. The Supreme Court adopted these principles in Paulus Pawa v The State [1981] PNGLR 498. In order for the court to be satisfied beyond reasonable doubt of the guilt of an accused, it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that can be drawn. These principles have been adopted in many subsequent cases, including Devlyn David v The State (2005) SC881 where the Supreme Court restated them in these terms:

We suggest that these principles mean that in any case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

32. The Supreme Court in Paulus Pawa’s case adopted the conclusions of Professor O'Regan in his article Adverse Inferences from Failure of an Accused Person to Testify 1965 Crim LR 711.These conclusions are useful to test the particular circumstances of a case against the criteria for whether or not the court should draw an adverse inference:

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 testify.

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 is legally represented;

(d) whether the accused has before trial given an explanation which the Crown has adduced in evidence.

33. We offer the following comments with respect to the above principles:

1. We adopt the principle.

2. The appellant was seen leaving the scene of the crime by climbing the fence with a knife in his hand. That evidence was before the Court and he knew it. The absence of an explanation is only significant when the party against whom a prima facie case is proved can reasonably be expected to give an innocent explanation if there was one.

3. A prima facie case was made out against the prisoner.

4.

(a) The truth is not easily ascertainable by the State; however, it would be known to the appellant;

(b) The evidence against the appellant was circumstantial;

(c) The appellant was represented by a lawyer;

(d) The appellant offered an explanation by raising self-defence in the record of interview. However, by his Section 96 statement, which was admitted into evidence, the appellant was indicating that he wished to disown that explanation.

34. In these circumstances little weight should have been attached to the appellant’s failure to testify. The learned trial judge properly reached that conclusion.

35. However, we consider, with respect, that because the State’s case hinged on the contents of the record of interview, his Honour should have applied the principles regarding circumstantial evidence. His Honour did not mention them, however, and in that regard we consider with respect that an error of law was made.

36. We are not satisfied that if the principles regarding circumstantial evidence had been applied, the only rational inference that could be drawn was the guilt of the appellant. This drives us to the conclusion that the conviction was unsafe and unsatisfactory.

BASING CONVICTION ON CONFESSION

37. The learned trial judge took into account that the State’s case depended on acceptance of the incriminating admission made in the record of interview and considered an argument by the defence counsel that it was dangerous to rely on it to convict the appellant as it was uncorroborated and conflicted with the appellant’s Section 96 statement and also with the ‘confessional statement’ (which was admitted into evidence as exhibit D and gave a different version of events to that given in the record of interview). His Honour considered the leading PNG case on this issue, R v Namiropa Koinbondi [1969-1970] PNGLR 174, in which Clarkson J stated:

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.

38. The principles in Koinbondi’s case have their genesis in the decision of the High Court of Australia in R v McKay [1935] HCA 70; (1935) 54 CLR 1, which indicated that there is no rule of law that says a conviction cannot be based on an uncorroborated confession. However, it is equally clear that 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. These principles have been applied in a number of other PNG cases: R v Mon and Debong [1965-1966] PNGLR 42; The State v Ungum Ovohe (1980) N245; The State v Thomas Some (1982) N366(M) and The State v Malepo (No 2) [1996] PNGLR 252.

39. The learned trial judge ruled that Koinbondi’s case did not apply as the facts could be distinguished in three respects. First, the admissions of the accused that he was present at the crime scene were corroborated by the evidence of the two State witnesses. Secondly, this case was fully investigated whereas in Koinbondi’s case there was no full investigation. Thirdly, in the appellant’s case the police investigator was not cross-examined.

40. As to those three points, we consider that his Honour made an error of law on the first one. The question that should have been asked was not whether there was corroboration of the appellant’s presence at the crime scene but whether there was corroboration of his admission that he killed the deceased. The answer to that question was clearly no. If the question had been raised and answered in that fashion the danger of convicting on the basis of an uncorroborated confession would immediately have been apparent. It was particularly dangerous in this case as there was ample indication that the appellant wished to disown the confession. This indication came from the confessional statement and the Section 96 statement – both of which were admitted into evidence – and the clumsy and ill-fated attempt of the defence counsel to force the State to reopen its case so that he could cross-examine the police investigator.

41. With respect we consider that the learned trial judge was focusing unduly on identifying the points of factual distinction between the present case and Koinbondi’s case when the preferable approach was to apply the principles of law established by that case to the circumstances of the present case. If the principles had been applied in the manner required, we consider that it would not have been reasonable to convict the appellant. For this reason also, we have reached the conclusion that the conviction was unsafe and unsatisfactory.

ELEMENTS OF OFFENCE

42. We note that in delivering the verdict the learned trial judge did not set out the elements of the offence. As this was a wilful murder trial the State had the onus of proving beyond reasonable doubt the elements laid out in Section 299(1) of the Criminal Code. That is:

- the accused killed the deceased;

- the killing was unlawful; and

- the accused intended to cause the death of the deceased.

43. As to the duty of a trial judge to state and consider the elements of the offence, we rely on the Supreme Court’s discussion of this matter in Devlyn David v The State (2005) SC881, where it was stated:

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

44. In the present case the learned trial judge’s judgment (both the oral judgment and the written judgment) clearly disclosed his Honour’s finding that the appellant had killed the deceased and the conclusion that the killing was unlawful. However, the judgment did not contain a clear statement of the elements of the offence and in particular did not contain a determination of the element that the appellant intended to kill the deceased. This was, with respect, an error of law.

RESULT OF APPEAL

45. We consider that the issues about circumstantial evidence and basing the conviction on the appellant’s confession and the lack of a clear statement of the elements of the offence have been sufficiently encompassed, albeit indirectly, in the appellant’s grounds of appeal. Bearing in mind that he conducted his own appeal, it would not advance the interests of justice to simply say that none of the grounds of appeal were upheld and therefore the appeal should be dismissed.

46. Having regard to Sections 23(1)(a) and 28(1)(a) of the Supreme Court Act we think that the conviction is unsafe and unsatisfactory, that the appeal should be allowed and that a miscarriage of justice has occurred. Having regard to all the circumstances we think that the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make.

ORDER

(1) The appeal is allowed.

(2) The conviction of the appellant, Onama Andrew, is quashed.

(3) There shall be a new trial, which shall be commenced within four months after the date of this order.

(4) The Public Solicitor is directed under Constitution, Section 177(2)(b) to liaise with the appellant and provide him with legal aid, advice and assistance if he requests it in regard to the new trial and any incidental matters including bail.

(5) The appellant shall remain detained in custody but is at liberty to make an application to the National Court for bail pending a new trial.

________________________________

Lawyer for the Appellant: The Appellant in Person
Public Prosecutor: Lawyer for the respondent