Maraga v State [2009] PGSC 5; SC968 (30 April 2009)

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Criminal law- appeal─there is no rule that judge must accept or reject the whole of a witness’s evidence─judge may accept part and reject other part─circumstantial evidence─reasonable hypothesis other than guilt must be founded in evidence─only reasonable inference is guilt of the appellants─evidence supports conviction─sentence─terms of years plus fines plus compensation ordered─fines in excess of jurisdiction─order for fines and conditional reduction of sentence upon payment of fines set aside.

During a rock throwing fight between male villagers from Baruni and Tatana on the Tatana causeway a bomb went off killing a boy from Tatana. No one saw anyone with a bomb. The Appellants were seen at the place where the bomb went off shortly before the explosion. Anos Naime Marage was seen sitting down and doing something while Hariki Badi stood guard with a gun. Gaigo Arua Hariki was also there. When Anos stood up he told Hariki and Gaigo to run back, then he also retreated. The Appellants submitted the inference that Anos set off the bomb was unsafe, that there was no evidence that Gaigo was involved and the identification of Hariki was unsafe. The Appellants also submitted that the fines of K2500 each were in excess of jurisdiction and that combined with orders to pay compensation and the terms of imprisonment, was excessive.

1. That Anos Naime Maraga was setting the bomb to go off while Gaigi Arua Hariki and Hariki Badi stood by protecting him is the only reasonable hypothesis available on the evidence;

2. There is no rule that a judge must reject all of a witness’s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events;

3. There was clear evidence placing Gaigo Arua Hariki at the scene with Anos Naime Maraga and Hariki Badi, after all the other men and boys from Baruni had retreated;

6. the fines of K2500 Kina each are in excess of the jurisdiction granted by Criminal Code s19 and are set aside together with the orders for conditional reduction of sentence on payment of the fines.

D. Sakumai and O. Oiveka,: For The Appellants
C. Sambua,: For The Respondent

1. BY THE COURT Late in the afternoon of 21 April 2001, the Appellants and other Baruni village boys and men were together involved in a stone throwing fight with the boys and men from Tatana village on the causeway leading to Tatana Island. During the fight a bomb was planted under a pile of stones to one side of the causeway. When the Tatana boys were close to the pile of stones where the bomb was planted it exploded, resulting in the death of Nicky Kelson, 15 years of age, from Tatana.

2. No one saw any of the Appellants with the bomb. The evidence for the State came from 4 witnesses from Tatana whom the trial court found identified the Appellants being at or doing something at the location of the bomb blast before the bomb exploded. The issues at trial were identification and whether the court could safely draw the inference that the Appellants were planting the bomb or lighting the fuse or assisting in doing so when they were seen near the place where the bomb was planted and ultimately exploded.

2. Each of the Appellants was convicted of the offence of wilful murder pursuant to section 299 (1) of the Criminal Code and each of them appeals against conviction and sentence.

(a) that the convictions were unsafe and unsatisfactory in that there was inadequate or insufficient evidence to prove the identity of each of the Appellants to be responsible for the killing of the deceased;

5. The general principle of law applicable on an appeal against conviction is stated in the Supreme Court decision of John Beng v The State [1977] PNGLR 115 where the court said:

"On appeal against convictions, the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safest and satisfactoriness of the verdict (conviction) before the appeal is allowed".

6. We address the grounds of appeal in the order pleaded. Each of the Appellants' admitted being at the causeway and throwing stones. The Appellants contended that there was insufficient evidence to prove that Anos Maraga planted or armed or lit the bomb, or that Harika Badi was assisting him, and that there was no evidence that Gaigo Arua Hariki was present with Anos Maraga and assisting him with his presence.

7. We have gone carefully through the transcript of evidence for the State witnesses Willie Igo, Fred Gavera, Billy Gagoa and Nonoa Kove in the appeal book and the following table is a summary of the relevant evidence which they have given, in the context that the 2 opposing groups were throwing stones at each other on the causeway leading to Tatana Island. There were 2 vehicles belonging to Baruni people on the causeway, which later moved to the road Junction near the mangroves. Readers should also note that Hariki Badi and Haraka Badi are 2 different people. Haraka Badi is a mature man, not a youth, described in the evidence as balding with a beard; and his alibi that he was not there, he was at the hospital with his wife, who had just delivered a baby, was accepted and he was acquitted:

8. we have constructed the following table to show at a glance the State evidence available against each of the Appellants:

Witness Name	Name of the Appellants
	Anos Naime Maraga	Gaigo Arua Hariki	Hariki Badi
Willie Igo	He did not see Anos sitting down doing anything or talking to anyone, he saw him move out of the grass (in the area where the bomb exploded) towards the mangroves (appeal book pages 79-80), he saw him come out of the bush by himself and go straight to the vehicle, all the others were already on the vehicles, at the same time the bomb exploded (appeal book page 91)	he saw him at the scene generally (appeal book page 74 line 20)	The Prosecutor drew to Willie Igo’s attention Hariki Badi sitting in the dock, Willie Igo then said “I think I saw him" but gave no evidence of having seen him in any particular setting. He also named Haraka Badi as a person generally present.
Fred Gavera	He saw Anos standing where the bomb went off carrying a home-made gun. Anos slowly moved back pointing at them with a gun. Then he ran towards the mangroves. He was down at the mangroves when the bomb went off. After the bomb went off Anos fired the gun.	He saw him generally at the scene (appeal book page 102) and after the bomb went off the accused (no names mentioned) ran towards the car.	When Anos was standing at the bomb site (prior to the explosion), Hariki Badi was with him.
Billy Gagoa	Anos was standing where the bomb went off with Hariki Badi and Gaigo. The other (Baruni) boys got on the tip truck and car and drove down to the junction leaving only Anos, Gaigo and Hariki. Anos was holding a home-made gun, he handed it to Hariki and sat down. He was doing something but the grass obscured his hands. When he got up he got the gun from Hariki, told Gaigo and Hariki to run to the tip truck (appeal book pages 136/137 repeated at 147 and 164).	He was standing where the bomb went off with Anos and Hariki.... when Anos got up he got the gun from Hariki and told him and Gaigo to run to the tip truck.	He was standing where the bomb went off with Anos and Gaigo... Anos sat down to do something, when he got up he got the gun from Hariki and told Gaigo and Hariki to run to the tip truck.
Nonoa Kove	at the place where the bomb later exploded he saw Anos get up and run (appeal book page 210)	he saw him generally at the fight (appeal book page 212)	He does not mention Hariki in his evidence. He says he saw Haraka Badi with a gun standing 5 to 6 m away from Anos.

9. The Appellants submission is that although they were present, there was insufficient evidence to prove that Anos Maraga planted the bomb. Specifically it is submitted, that Anos was the one who planted the bomb which killed the deceased, was not the only rational inference that could be drawn from the evidence. It is submitted that the other inference open on the evidence is that the deceased was attempting to light a bomb when it accidentally exploded and killed him. The following factors based on what the Appellants submit is supporting evidence are put forward to support the argument:

(a) it was the Tatana villagers who started throwing stones at Baruni villagers;

(c) the day after the explosion some Tatana villagers went to Baruni village and one of them was injured by a bomb he had intended to use against the Baruni villagers;

(e) the bomb was buried in a pile of stones, the fuse would have gone out and the bomb would not have exploded.

10. The proposition that the deceased was holding a bomb was put to only one of the State's witnesses, Billy Gagoa, who was talking to the deceased immediately prior to his death, and he denied it.

11. Only one person was called with technical expertise in bomb-making, a bomb disposal expert from the Defence Force Marine Base. He gave no evidence that a burning fuse would give off smoke, nor did he give evidence that rocks would cause a fuse to go out. We therefore conclude that there is no evidence to support those 2 contentions.

12. We do not think that the "similar fact" rules as discussed in Phipson on Evidence 14th Edition beginning at paragraph 17-24 can be stretched to the point that a single instance of a course of conduct by one person from a group could paint a whole group of people, a whole community, with a propensity to act in a particular way. Similar fact evidence must be logically probative. As it is said in the text referred to in paragraph 17-24, generally evidence is not admissible of similar acts done by others, similarly circumstanced to a particular individual to show that he would be likely to act as they did. As a general rule the evidence must bear a striking similarity to conduct by a relevant person, an accused or another person who may have perpetrated the act, and it must be evidence of acts by that person (Phipson para 17-33). The fact that one person from Tatana was injured by a home-made bomb being carried by him is not in our view evidence that other people from Tatana are likely to prepare home-made bombs for use in village disputes and injure themselves or that the deceased was likely to so act or did so act.

13. Accepting for the moment the submission that the evidence that Tatana villagers started the fight is correct, the fact that the fight started with rocks being thrown is not in our view any indication that it is more likely that someone from Tatana would use a bomb than someone from Baruni or that it is a reasonable inference that someone from Tatana , in particular the deceased, could have placed and ignited the bomb.

14. In short we do not think that the facts pointed to by the Appellants raise a reasonable inference that the deceased might have been injured by a bomb being carried by him or placed by him. It is not an alternate inference, available on the evidence, to the one drawn by the trial judge.

15. The law on circumstantial evidence is clearly established in this jurisdiction. The Supreme Court in Pawa v. The State [1981] PNGLR 498 at 501, in the words of Andrew J stated the relevant principles who cited with agreement the words of Miles J in The State v. Tom Norris [1981] PNGLR 493 at p 495 where he said:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.’”

16. The trial judge properly directed himself by citing the relevant case law. All 4 of the State witnesses saw the Appellant Anos doing something separately from most of the group of men and boys who had come from Baruni. They did not all see all of the relevant facts. However, taking their evidence together, Anos was sitting down, guarded by Hariki armed with a gun, doing something right at the point where the bomb subsequently exploded, he stood up, took the gun from Hariki, and backed slowly away from the point keeping the Tatana men at bay with the gun he was holding, at the same time telling his 2 associates, Gaigo and Hariki to run to the truck. He then ran. Anos simply made a complete denial of having stopped or done anything other than run to the vehicle, in the face of detailed evidence of his actions to the contrary.

17. The Appellants do not challenge the credibility of the State witnesses, simply the adequacy of the evidence. It is not submitted that the evidence of Anos should be believed over the evidence of the 4 State Witnesses. In our view the only inference available on the evidence given by the State witnesses is that the bomb had been planted where Anos was seen sitting and that Anos, knowing where it was, lit the bomb, sent his associates out of danger then fell back himself, tempting the Tatana’s to run forward into the danger zone.

18. We find, with respect, that His Honour the trial judge was wrong in saying "Willie Igo told the court that he saw Anos Naime Maraga sitting in the grass where the bomb exploded.”: Appeal Book page 712. In fact that witness said he did not see Anos Naime Maraga sitting down doing anything. He said “He saw Anos go away from that spot to the tip truck when the bomb exploded.” However, the trial judge's summary and analysis of the balance of the evidence in respect of Anos Naime Maraga is correct. In our view the error made does not detract from the strength of the evidence against Anos Naime Maraga.

19. This was not a case in which the evidence against the accused was wholly circumstantial. The only part of the evidence which was circumstantial was the issue of whether Anos Naime Maraga lit the bomb, which the trial judge recognised. There was direct evidence that there was a bomb which exploded, the place where it was situated and that in the expert's opinion the bomb was set off by a fuse. There was direct evidence that Anos Naime Maraga was sitting down doing something at the very place where the bomb was situated a little time before the bomb exploded. Inferences must be drawn from the evidence, not from any hypothesis which might be developed outside the evidence, and they must be reasonable. If there was another inference to be drawn, other than the guilt of Anos Naime Maraga, it was not apparent from the evidence which the trial court accepted.

20. The next submission is that there was no evidence that Gaigo Arua Hariki was with Anos Maraga or assisted in planting of the bomb in any way. As the above table shows, the submission is not factually correct. Billy Gagoa's evidence places Gaigo Arua Hariki with Anos Maraga at the place where the bomb went off while Anos Maraga was doing something on the ground. The inference is that he was still there after Anos Maraga had finished what he was doing because Anos is then heard to tell him and Hariki Badi to run to the tip truck. All of the other 3 State witnesses placed Gaigo at the fight, although they do not mention him assisting Anos Maraga. Fred Gavera said the accused (no names mentioned) ran to the vehicles when the bomb went off.

21. The next submission is that the evidence of Billy Gagoa is in direct conflict with the evidence of Nonoa Kovi in that one said Hariki Badi held a gun and stood close to Anos Maraga and the others said Haraka Badi held the gun and stood close to Anos Maraga. It is submitted that Willie Igo, Billy Gagoa and Nonoa Kovi said that Haraka Badi was at the scene of the crime.

22. By reference to the evidence summarised in the table it can be seen that the submission is not entirely correct. Fred Gavera and Billy Gagoa both said that Hariki Badi was standing with Anos Maraga at the bomb site. Willie Igo was vague as to whether he saw Hariki Badi at the scene at all, although he identified Haraka Badi as a person present. Nonoa Kove said he saw Haraka Badi holding a gun and standing about 5 to 6 m from ANOS. It is submitted that the trial failed to resolve the conflict in evidence.

23. In analysing that evidence concerning Haraka Badi at page 715 of the Appeal book line 20 his Honour says "The only evidence of his involvement in that incident comes from Nonoa Kove. But the other three eyewitnesses say nothing about this accused. Nonoa Kove’s evidence is only general". In fact Willie Igo, who was vague about the presence of Hariki Badi, identified Haraka Badi as a person generally present although he gave no evidence of him assisting Anos Maraga (Appeal Book page 74 line 20). Billy Gagoa also mentions Haraka as being present (Appeal Book page 139 line 19). Nonoa Kove was the only witness who mentions Haraka being involved in the facts surrounding the murder charge, as distinct from just being present at the rock throwing. He said he saw Haraka essentially in the position in which Fred Gavera and Billy Gogoa saw Hariki, standing near Anos Maraga holding a gun. That evidence was thus inconsistent with the evidence of Fred Gavera and Billy Gogoa.

24. There is no rule of law that a judge should reject all of a witness’s evidence if he finds some of it unreliable. He is free to reject parts and accept other parts, even where the evidence is related to closely linked events : S v M (1984) 36 SASR 316; and see the discussion in Cubillo v Commonwealth [2000] FCA 1084 commencing at [118].As general principle a trial judge should identify discrepancies in the evidence, say whether or not the discrepancies are significant and give reasons, not to do so may be an error of law: Deklyn David v State (2006) SC 881.

25. In this case the trial judge considered that the alibi evidence brought by Haraka raised a reasonable doubt as to Haraka’s presence. Consequently his Honour must have rejected the evidence to the contrary, not by any positive finding that the witnesses were lying or mistaken, which was not necessary in the circumstances, but simply because his Honour gave the benefit of the doubt to the accused Haraka. Whether his Honour would be of the same view if he had not made the errors in not referring to the other evidence against Haraka is not the subject of this Appeal. That left the evidence of Fred Gavera and Billy Gogoa positively identifying Hariki Badi as the person standing near Anos Maraga, holding a gun and guarding him while Anos was sitting. Inferentially the evidence by Nonoa Kove that it was Haraka Badi, was rejected. We do not consider that the error in not mentioning the other evidence against Haraka detracts from the safeness of the verdict against the Appellants and particularly against Hariki.

26. We do not consider that the matters submitted to the court by the Appellants make the verdicts unsafe or unsatisfactory, and we refuse the appeals against conviction.

(a) Anos Naime Maraga was sentenced to 21 years less one month pre trial custody. He was ordered to pay K5000 compensation to the mother, brothers and sister of the deceased. He was further ordered to pay K2500 within 2 weeks and upon payment of that amount the sentence would be reduced to 18 years and 5 months;

(b) Gaigo Arua Hariki was sentenced to 16 years less one month pre trial custody and ordered to pay K3500 as compensation to the mother, brothers and sisters of the deceased. He was further order to pay a fine of K2500 within 2 weeks upon payment of which the sentence would be reduced to 17 years and 6 months;

(c) Hariki Badi was sentenced to 19 years less one month pre trial custody and ordered to pay K3500 as compensation to the mother, brothers and sisters of the deceased. He was further order to pay a fine of K2500 within 2 weeks upon payment of which the sentence would be reduced to 17 years 5 months.

(c) that the combined effect of the terms of imprisonment, the fines and compensation payments was and is excessive in all the circumstances.

29. An appeal against sentence lies with leave: Supreme Court Act s22(d). As far as we can tell from the file leave was neither sought nor granted. As the Public Prosecutor has not taken the point, the appeal against sentence was commenced by the prisoners in person, and there appears to be some merit, for the avoidance of doubt we grant leave.

30. On the hearing of the appeal ground (b) was abandoned. In relation to ground (a) it was submitted that the National Court does not have jurisdiction to impose a fine exceeding K2000. In relation to ground (c) it was submitted that the combined effect of the prison sentence, compensation order and fine was excessive.

31. The power of the National Court to impose a fine in addition to any other sentence is provided by Section 19 of the Criminal Code which reads:

32. "(1) (b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2000 in addition to, or instead of, imprisonment;

33. The fine imposed of K2500 was in excess of jurisdiction and we allow the review in respect of the fine imposed against each of the Appellants and set aside those fines and the conditional orders for reduction of sentence.

34. In relation to the prison sentence and amount of compensation ordered, the submission is solely based on the combined effect of the prison sentence, fine and the compensation. The fines having been set aside, there is no other argument from the Appellants for the court to address.

(b) appeal against sentences allowed in part, the fine of K2,500 for each Appellant and the conditional orders for reduction of sentence upon payment of the fines are set aside.

Supreme Court of Papua New Guinea

Maraga v State [2009] PGSC 5; SC968 (30 April 2009)